California's Prison Crisis is Now a Constitutional Crisis

Gov. Jerry Brown won't obey a federal court ruling over state prisons. The federal judiciary is threatening contempt sanctions. Who will budge?
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Something extraordinary is happening in California. A long-running story about the atrocious conditions in the state's prisons has expanded in the past two weeks into a story about state sovereignty, the doctrine of interposition, and about the ability and will of the nation's judges to oversee the enforcement of the lawful orders they issue. The California prison crisis, in other words, has become an existential crisis over federal and state power.

California Gov. Jerry Brown is openly defying a series of federal orders requiring state officials to reduce California's prison population to comply with the requirements of the Eighth Amendment. Instead of obeying these orders, which were directly approved by the Supreme Court, the governor instead has made a series of false and inflamatory statements about the law, the courts, the inmate problem and California's efforts so far to solve it.

Meanwhile, California Attorney General Kamala Harris, a rising star in national Democratic politics who is seen by some as a potential Supreme Court nominee, has authorized or permitted the filing of a series of dubious motions and briefs on behalf of the state as it tries to weasel out of its constitutional requirements to the inmates. Rejected and scorned by federal judges over the past two weeks, these court filings are largely void of dispositive facts and unworthy of a first-year associate, much less the chief lawyer of our nation's most populous state.

Some of the coverage of this conflict sadly has displayed a measure of "false equivalence." Gov. Brown's position has been juxtaposed with the judicial orders as though the matter were still in legal doubt. Don't be fooled by this coverage. There is no such dispute. There is what the Supreme Court and the lower courts have ordered to be done on behalf of the inmates. There is the failure and refusal of California to get it done. There is whining from state officials. And there is now the whiff of contempt sanctions against the governor and his tribunes.

The History

The procedural history of this current generation of California prison cases, well into their second decade of litigation, is terribly complicated. The core of the story is not. In August 2009, a three-judge federal panel, after an exhaustive review of the evidence, concluded that to comply with constitutional standards California would need to reduce its prison population to 137.5 percent of its prisons' design capacities within two years. There were simply too many inmates, the judges found, and too few beds, medical staff and other resources.

California appealed the ruling to the Supreme Court. In May 2011, in a decision authored by Justice Anthony Kennedy, a native Californian, the Court broadly upheld the 2009 ruling. There was little ambiguity from the Court's majority: the state had until June 2013 to comply. In October 2011, California began to empty its prisons. "Thousands of inmates either serving prison terms or parole revocation terms for 'non-serious, non-violent and non-registerable sex crimes' were shifted to county jails," the judicial panelists noted.

California's governor, in effect, unilaterally declared an end to his state's constitutional obligation to end the prison emergency.

But then, California's progress stopped well short of the 137.5 percent benchmark the courts had ordered. Why? Because of political pressure generated by the shifting of the inmates from state to county facilities. First, state lawyers asked the judges to raise the benchmark. Then, they sought a delay until December 2013 to comply with the order. Then, California's lawyers argued that prison officials could comply with their obligations even if they couldn't meet the benchmark.

Throughout 2012, California officials, attorneys for the inmates, and the federal judges fussed over the state's failure to comply with the court orders. Over and over, the judicial panel gave state officials time and opportunities to fix the problem. Over and over, the prisoners' lawyers complained about the pace of the progress. Over and over, California refused to commit to a plan that would bring the prisons into compliance by June 2013, or even December 2013. And then, in early January of this year, the state simply gave up trying.

On January 8, 2013, Gov. Brown announced that as of July 2013 he would no longer use whatever "emergency powers" he has as chief executive to comply with the order. He announced that "prison crowding no longer poses safety risks to prison staff or inmates, nor does it inhibit the delivery of timely and effective health care services to inmates." California's governor, in effect, unilaterally declared an end to his state's constitutional obligation to end the prison emergency. One day earlier, his lawyers had quietly filed motions to terminate federal judicial oversight over state prisons.

The Judges

In connection with Gov. Brown's public pronouncement, California filed two motions: one to eliminate the overpopulation order, and one in which state officials asked to freed from their constitutional obligation to provide better mental health care for the inmates. The two motions had much in common—the gist of both was "we've done enough for the inmates"—but neither was supported by reliable evidence indicating that state officials had improved conditions within the prisons enough so as to render the court orders satisfied or irrelevant.

On April 5th, U.S. District Judge Lawrence Karlton rejected the mental health motion after concluding state lawyers didn't come close to meeting their legal or factual burdens to improve conditions for the inmates: "Systemic failures persist in the form of inadequate suicide prevention measures, excessive administrative segregation of the mentally ill, lack of timely access to adequate care, insufficient treatment space and access to beds, and unmet staffing needs," the judge wrote. (Here is The Atlantic's coverage of that ruling.)

Then, last Thursday, the three-judge panel overseeing the overcrowding case rendered a similar ruling. In a unanimous decision blunt in its condemnation of state policies, the judges refused to end their oversight over the state's prisons—and ramped up their concern about California's continuing failure to abide by the existing court order. The text of this ruling is striking for two reasons. First, it vividly details how much the judges have done to help California comply. Second, it highlights the dubious positions taken by state lawyers.

"Defendants have already lost this argument," the judges wrote of California's request to avoid its obligations to reduce overcrowding, "and they should not be allowed to relitigate it once again... [T]hey have presented very little evidence," the judges added. "Most of this evidence is irrelevant, as it points to partial compliance with this Court's Order and not to a resolution of the problems of overcrowding. The remaining, relevant evidence is far too minimal" to prove that "overcrowding is no longer the primary cause of ongoing constitutional violations."

Then the judges wrote this remarkable passage:

Oddly, defendants appear to read the results of their partial compliance with the Order in a rather unusual manner. They argue that, because the Order thus far has been effective in making progress toward its ultimate objective, we should terminate it, call off the rest of the plan, and declare victory before defendants can meet the Order's most important objective—to reduce the population to 137.5% design capacity and eliminate overcrowding as the primary cause of unconstitutional medical and mental health conditions.

That is not the way the judicial system, or any other national system, functions. Indeed, the effectiveness of the Order thus far is not an argument for vacating it, but rather an argument for keeping it in effect and continuing to make progress toward reaching its ultimate goal.

The legal rule, the court reminded state lawyers that "parties must comply whether or not they believe a court's order is incorrect and must do so during any period that they may be contesting its validity is applicable to public and private parties alike." And then, in case the message was lost on the executive branch, the judges emphasized it before warning that California state officials would be held in contempt if they blew off their responsibilities to the inmates:

That Governor Brown may believe, contrary to the evidence before this Court, that 'prison overcrowding [is] no longer... inhibit[ing] the delivery of timely and effective health services' will not constitute an excuse for his failure to comply with the orders of this Court. Having been granted a six-month extension, defendants have no further excuse for non-compliance.

The Governor

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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