Jerry Brown, Constitutional Scofflaw

On Thursday, three federal judges again reminded the California governor that his failure to fix prison overcrowding is a continuing violation of the Eighth Amendment.
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Whatever happened to Jerry Brown? You know, the Jerry Brown who once studied to be a Jesuit priest. The Jerry Brown who once fought like a wildcat against the entrenched and the powerful on behalf of the powerless and the dispossessed. The Jerry Brown who once traveled to India and worked with Mother Teresa at her Home for the Dying. The Jerry Brown that conservatives (and others) once derided as "Governor Moonbeam." The Jerry Brown who never made it as a national political figure because he was considered too much of a softie on law and order, crime and punishment.

That Jerry Brown, now the governor of California, has morphed into a 21st century version of a 1950s Southern governor.* He is currently in "direct defiance" of a series of federal court orders, including one from the Supreme Court, ordering him at last to ease unconstitutional overcrowding in California's prisons. And the tactics he and his lawyers have employed to evade their obligations to the inmates -- and to the nation's judges -- are those employed by Southern governors when they chose to disobey federal commands to desegregate their public schools. Delay. Obfuscation. Interposition. It's all here again, like a bad dream.

The latest wrinkle in this decades-long tragedy came Thursday afternoon when a panel of three federal judges, in an opinion seething with frustration, pointedly reminded Gov. Brown yet again that he still has not done what he is required to do to bring constitutional relief to the state's overcrowded prisoners, many of whom have been cruelly deprived of basic medical or mental health care. The judges also warned the governor that he is very likely in contempt for failing to abide by their previous orders. Here is the link to the ruling. It reads just like a ruling from the 5th U.S. Circuit Court of Appeals in the school cases a half century ago.

"The history of this litigation is of defendants' repeated failure to take the necessary steps to remedy the constitutional violations in its prison system," the judges wrote on Thursday. "It is the defendants' unwillingness to comply with this Court's orders that requires us to order additional relief today." Over and over again in their 54-page ruling, the judges highlighted the flawed reasoning and false assertions made by California as it tries to evade its legal obligations. "This Court would therefore be within its rights to issue an order to show cause and institute contempt proceedings immediately," the judges wrote. "Our first priority, however, is to eliminate the deprivation of constitutional liberties in the California prison system."

If the state were an ordinary litigant and this were an ordinary case, these judges long ago would have punished Gov. Brown and his lawyers for their willful disobedience to lawful court orders. But there is nothing ordinary about this case. And so these federal judges, in Thursday's order and in their previous commands, have sought to recognize the genuine separation-of-powers concerns this dispute represents. They have tried, in other words, to remind the executive branch of California that it must comply with the Constitution even though it disagrees with the judiciary about what the Constitution requires. (The cost of this patience, it's worth noting, has been borne only by the prisoners.)

In return for this judicial patience, this courtesy, Gov. Brown and his lawyers have offered little more than scorn. Yes, it is true that the state has spent a great deal of money to improve the lot of some of these prisoners. Yes, it is true that some prisoners already have been released. But complying halfway with a federal court order is like paying half your mortgage bill each month. It's just not good enough. The federal courts aren't responsible for the California prison crisis. California is responsible for it. It's been 20 years since these concerns first were expressed about the conditions in which the prisoners live. And still Gov. Brown is pushing for delay.

If all of these seems familiar to you it should be. I wrote about this story for The Atlantic in April, when these same judges reminded Gov. Brown, the former Yale Law School student, that citizens, even governors, do not get to ignore those laws with which they do not agree. I wrote about it for The Atlantic in May 2011 when the United States Supreme Court, in a decision styled Brown v. Plata, ruled that conditions in Gov. Brown's prisons violate the Eighth Amendment rights of prisoners to be free from "cruel" conditions. And I will write about it again and again until the biggest state in the union, and one of the nation's most prominent governors, decides it will comply with the Eighth Amendment.

Every day this governor and his lawyers disobey the law, every day they interpose a frivolous appeal, is another day the prisoners are deprived of their constitutional rights. It is another day in which the state and its representatives are failing to own up to the colossal mistakes made by their predecessors, the officials who long ago turned California into a form of penal colony. Gov. Brown already has declared that he will appeal these latest rulings to the Supreme Court and again seek to "stay" the judicial orders requiring him to release non-violent prisoners more quickly. He's daring the judges to hold him in contempt -- and they should.

________________

* For a more general perspective on Gov. Brown's recent tenure in California, one that does not address the ongoing prison crisis, I urge you to read James Fallows' excellent cover story in the June issue of The Atlantic. I was particularly struck by Fallows' line near the end about how the governor has "learned the difference between fights that were tough but winnable... and those that mean certain defeat." I'm sure that's true. Historically, however, defying a federal court order has been about as good a path to defeat as any I can think of.

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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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