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.