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.


Robert Galbraith/Reuters

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.)

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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