Vol. 24 No. 19- Prison Litigation Update: The Federal Three – Judge court issued an order to Reduce the prison population by 40,000 Inmates


August 10, 2009

In our Client Alert dated February 10, 2009, we informed you that the Federal Three – Judge Court in the Coleman/Plata prison litigation had issued its tentative ruling indicating that the prison population should be reduced to “at most” 120% (58,400 population reduction) to 145% (37,650 population reduction) of design capacity. On August 4, 2009, the Court issued an opinion and order requiring the State to provide the Court with a population reduction plan within 45 days that will reduce the total adult prison population to 137.5% of combined design capacity in no more than two years.  The Court stated that in preparing this plan, the State shall consult with the plaintiffs, intervenors, and other relevant stakeholders, including the Coleman Special Master and the Plata Receiver.   The Court will consider the proposed plan and make any necessary modifications or changes to it before issuing a population plan as an order.

The Court stated: “Based on our detailed findings examining the evidence from correctional and public safety experts around the state and across the country, we are confident that a prison population reduction to 137.5% design capacity can be achieved in California without a meaningful adverse impact on public safety or the operation of the criminal justice system.”

On the same day the opinion and order was issued, CDCR held a press conference responding to it.  CDCR Secretary Matthew Cate said that CDCR and the Governor’s attorneys are still reviewing the 100+ page order to determine their course of action.  As far as they could tell, the order is only for the State to provide the Court with a population plan within 45 days.  CDCR estimates that such a reduction would amount to the release of 40,000 inmates over two years.  One question they were reviewing is whether such an order is appealable.  However, as noted above, the Court also stated that it would consider the State’s proposed plan and ultimately issue a population reduction plan as an order.

Cate said that fundamentally, the State and the Court agree that the prisons are overcrowded.  However, Cate stressed that much progress has been made in the last five years, and the Governor’s budget proposal will reduce the population and will include parole reform, alternative custody, GPS, and incentive credits (referring to a Deukmejian Committee Report).  Cate’s position was that the prison population should be addressed by the Governor and the Legislature, not a federal court.

In response to questions from the media, Cate stated that he assumes if the State is unable to comply with a plan as ordered by the Court, the Court would then set a population cap or order a release, which the State would appeal.  He said that the budget proposal doesn’t currently meet the standards set forth in the order as to population reduction; it would reduce the population by about 26,000-27,000 inmates.  He also stated that the plan is to build more prisons for Level 4 offenders (who they do not plan to release), although he acknowledged that prison construction would take time, and also utilize out-of-state placement as a bridge measure.  The budget plan, prison construction, and out-of-state placements together might reduce the population by 35,000-37,000 inmates.  While this is a large number, it falls short of the estimated 40,000 as a result of the Court’s order.   Cate noted that a revised plan to address overcrowding will probably be prepared by the end of the month.
Highlighting the progress made in the past five years, Cate stated that the Receiver had done a great job, clinician jobs are 95% filled, and inmates are getting treated.  He mentioned one area of improvement being a need for more mental health crisis beds, but he said inmates were receiving basic medical care daily.  Also, the current inmate population is 167,000-168,000, down 30,000 from a year ago.  Again, he stressed that the State should be given a chance to succeed without the federal court’s involvement.


At this point, it appears we have only the option of providing input for the proposed population reduction plan ordered by the Court, and to prepare for the release of 40,000 inmates following the Court’s order issuing a final plan.  The State has said it will appeal, and we will continue to follow its actions.  Our office has represented the law enforcement intervenors, who have made great efforts to show the Court the adverse impacts of a population cap or release, and to provide alternatives to a release order.  Nevertheless, the Court has determined that such an order is justified and will not result in a meaningful adverse impact to public safety.  Now is the time to plan, strategize, and inter-agency cooperation to prepare for the impending inmate release.

If you wish to discuss this case in greater detail, please feel free to contact either of us at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com or imt@jones-mayer.com.