CPOA Newsletter Article- Status of Litigation Regarding Potential Release of 40,000 State Prisioners


February, 2008

By:  Martin J. Mayer
General Counsel to CPOA

The following is a status report as of February 2008, regarding the litigation involving the potential release of thousands of felon from our state prison system.


Two class action law suits (Coleman v. California and Plata v. California) have been active in the federal court for the past 12 to 17 years involving allegations that the constitutional rights of inmates, to receive adequate medical and/or mental health care, have been violated by the state of California.  Part of the suit is based on the claim that overcrowding in the system contributes to the constitutional deprivation.  The California Department of Corrections and Rehabilitation (CDCR) currently has approximately 175,000 inmates in a system designed to hold approximately 83,000.

In June, 2007, the Chief Justice of the Ninth Circuit U.S. Court of Appeal appointed a Three Judge Court to hold hearings and decide whether or not to issue a prisoner release order which would involve both the release of, up to, 40,000 inmates and the imposition of a cap on the remaining number of inmates in the state system.  The effect of the cap would be to prevent the transfer of any other inmates to the state system until the number of inmates dropped below the cap.

In August of 2007, at the request of the Governor and Attorney General of California, a group of individuals and entities decided to file motions to intervene, in support of the defendants (the State of California and Governor Arnold Schwarzenegger), in the hearings before the Three Judge Court.  Pursuant to the federal Prison Litigation Reform Act (PLRA), those who are entitled to intervene and, therefore, become active parties in the litigation, include those who run correctional institutions, those who fund such institutions, those who prosecute offenders, and those who would be impacted by such an order.

The groups which chose to intervene are 39 elected Sheriffs, 17 Chief Probation Officers, 15 municipal Chiefs of Police (all represented by the law firm of Jones & Mayer) and identified as the Law Enforcement Interveners; 21 elected district attorneys (represented by attorneys from the office of the Riverside County District Attorney); 40 Republican members of the state assembly and state senate (represented by the law firm of Aiken, Gump); and several counties (represented by various county attorneys).

Funding for the Law Enforcement Interveners to participate in the litigation was provided by several associations in which those interveners are members:  the California State Sheriffs Association (CSSA); the California Police Chiefs Association (CPCA); the Chief Probation Officers of California (CPOC); the League of California Cities (LCC); the California State Association of Counties (CSAC); and the California Peace Officers Association (CPOA).  CSSA, CPCA, CPOC, LCC and CSAC each contributed $25,000 and CPOA contributed $10,000 as “start up” money for the litigation.  It was acknowledged, from the start, that additional funding would probably be necessary since this was unchartered territory and major, federal, litigation which might involve petitioning the U. S. Supreme Court.

Litigation Activity and Accomplishments

Immediately thereafter, the respective attorneys filed motions to allow participation of the various interveners in the litigation and the motions were granted.  Two of the primary purposes of the interveners, according to the PLRA, are to provide the Court with information as to the impact a prisoner release order would have on local communities and the criminal justice system, and what alternatives exist which could be implemented in lieu of such an order.

On September 24, 2007, the Three Judge Court held a hearing involving all parties and subsequently issued an order bifurcating the process.  The Court ruled that Phase I of the process would decide first, whether overcrowding contributed to the constitutional deprivations and second, whether any alternatives existed to the prisoner release order which would alleviate those deprivations.  At the same time, however, the Court ruled that the defendant/interveners would not  be permitted to participate in Phase I, although the Court allowed the California Correctional Peace Officers Association (CCPOA), which intervened on behalf of the inmates, to participate fully in Phase I.  One major justification by the Court for this exclusion was that the defendant State of California and the Governor would adequately represent the interests of the defendant/interveners.

The attorneys for the Law Enforcement interveners, the prosecutors and the state legislators joined together and filed a motion urging the Court to reconsider its decision, citing a variety of reasons, including the obvious fact that exclusion from Phase I was exclusion from the most significant part of the process and was in violation of the law.  The Court refused to reconsider and continued to exclude those interveners.  Additionally, the Court ordered the defendant/interveners to respond to discovery demands but refused to allow the defendant/interveners to propound discovery.

The Court then appointed a Settlement Referee and Settlement Consultant to conduct meetings in an effort to arrive at some negotiated agreement to resolve the dispute.  Defendant/interveners participated in those discussions, in order to have a voice in the process, but also filed objections with the Court regarding the process being imposed on the defendant/interveners. The Court continued to refuse to allow defendant/interveners to have full participation in the process.

As a result, the respective attorneys, again as a group, filed a Petition for a Writ of Mandate with the Ninth Circuit U. S. Court of Appeal challenging the exclusion of their clients, the defendant/interveners.  The Ninth Circuit granted the writ, stating the defendant/interveners had set forth significant issues which needed to be addressed.  Shortly thereafter, the Three Judge Court issued an order staying the proceedings.

While all this was occurring, the attorneys for the defendant/interveners were directed by the Court to prepare and submit settlement proposals setting forth meaningful alternatives to a prisoner release order.  The three groups were ordered to develop, prepare, secure approval from clients, and submit the proposals to the Settlement Referee and Settlement Consultant, within five (5) days!  Once again, the attorneys for the defendant/interveners worked in a collaborative manner and accomplished the task.

The proposals focused on reducing entry into the prison system, through increased involvement by probation departments, and developing re-entry facilities, programs and supervision to deal with the releasing of inmates back into the communities.  Subsequently, the Settlement Referee and Consultant informed counsel for the defendant/interveners that the ideas were well received by the Three Judge Court.

Current Status

As a result of the writ petition being granted, further discussions were held with the Settlement Referee and Settlement Consultant in an effort to secure full participation by the defendant/interveners.  Agreement was reached at that level and, as part of the agreement, the defendant/interveners filed an additional motion to the Three Judge Court to reconsider their earlier decision, excluding the interveners from Phase I.

One of the primary issues raised in this motion was that the State of California and the Governor were not representing the interests of the local defendant/interveners, as evidenced by the announcement by the Governor that he proposed releasing 22,000 felons in order to reduce the state budget deficit.  That motion is currently pending before the Court and it is anticipated that it will be granted.  If that occurs, the defendant/interveners will, finally, be full participants in the litigation.

At the same time, the amount of funding pledged by the six associations has been exhausted, as a result of the need to fight to secure participation by the defendant/interveners – a fight never anticipated by the parties.  The associations must now decide whether to continue to fund the litigation or withdraw from participation.  Withdrawal would mean that the local interests of sheriffs, chief probation officers and municipal police chiefs would not be presented to, nor considered by, the Court in deciding whether or not to issue a prisoner release order.  That decision must be made by the boards of directors of the six associations and only time will tell what will be that decision.