Vol. 22 No. 15 – Prisoner Release Update

October 22, 2007


Previously, we published a Client Alert Memorandum entitled “40,000 INMATES RELEASED TO YOUR COMMUNITIES” regarding the prisoner release matter currently before a Three-Judge Court under the Prison Litigation Reform Act to decide whether to issue a prisoner release order that would potentially release up to 40,000 state prison inmates and/or impose a population cap on state prisons.  Here is a re-cap of recent events in the case:

The Initial Hearing

 The initial hearing in the case took place on September 24, 2007, to address a number of procedural questions and how the intervenors and the original parties saw the intervenors’ role in the litigation.  The hearing lasted three hours and touched on a large range of topics.  The panel indicated that they would be seeking input on the procedure by which the three judge panel is to proceed, how the parties should proceed to gather and present evidence, on which issues in the litigation the intervenors could or should be involved, how to coordinate evidence and arguments to avoid undue repetition, discovery, what relief is being or could be sought by Plaintiffs, etc.  The Court

also indicated that despite the fact that the cases have been consolidated, that each case will be considered and ruled on separately – in other words, a release order could be issued in one case, both cases or neither case depending on the factual showing in each case.

The following groups were represented at the hearing:  The Governor was represented by outside counsel and the Attorney General’s office on both cases; the Plaintiffs in both cases were represented by counsel; the California Correctional Peace Officers Association was represented as an intervenor on behalf of the Plaintiff prisoners; Defendant-Intervenor Sonoma County was separately represented, and the other County Intervenors appeared by one representative; the Republican Legislators were represented; the District Attorney Intervenors were represented;  and the Sheriff, Chief Probation, Police Chief, and Chief of Corrections Intervenors were represented by Kimberly Hall Barlow and Ivy M. Tsai of Jones & Mayer.

There was much discussion at the initial hearing about whether the intervenors should be entitled to offer evidence on the issue of whether over-crowding is the cause of the constitutional deprivations which have already been found to exist in provision of medical care and mental health care.  We requested on behalf of our clients that they be given a role in determining whether there were less intrusive means of meeting the needs of inmates than a release or cap order and, of course, that they be permitted to offer evidence and input on the impact on public safety of a release order.

We especially emphasized to the Court the difficulty that the intervenors have in conducting discovery, analysis and preparation of evidence in the absence of having a specific request for relief from the plaintiffs.  We want, as the Court does, to tailor our evidence regarding alternatives and impacts to the specific remedy sought by the plaintiffs.  That is very hard to do when the plaintiffs want the state and the intervenors to suggest the remedies.

After discussion of all the issues, the only order issued by the Court was that each counsel advise the Court whether his or her clients would consent to ex parte communications.  The Court took everything else under submission.

The Three-Judge Court’s Order

On October 10, 2007, the Court surprised everyone by issuing an order bifurcating the proceedings.  Although the Court brought up bifurcation during the Initial Hearing, the parties were not given notice to prepare a response or time to file any arguments in writing on the subject.  Furthermore, intervenor-defendants are excluded from Phase I, which will address the issues of whether 1) crowding is the primary cause of the violation of a federal right, and 2) no other relief will remedy the violation of the federal right.  These are necessary elements under the Prison Litigation Reform Act.

The Court set a schedule for Phase I in its order.  The trial for Phase I is set to begin on February 6, 2008.  The Court anticipates that the trial will last three days.

If the Court decides after Phase I that crowding is the primary cause of the violation of a federal right and that no other relief will remedy the violation, then the case will move on to Phase II, which the Court stated will address 1) whether a prison release order will be imposed, and 2) the nature and terms of any such order in light of public safety and other concerns.  The Court’s reasoning for bifurcating was to move the case along faster.  It pointed out that the number of intervenors has already slowed things down in the case.  The Court determined that the intervenor-defendant’s interests would be adequately represented in Phase I by the Attorney General’s office.

Immediately after receiving the Court’s order, our office set up a conference call with counsel for the other intervenor-defendants to discuss the implications of the order and possible action in light of it.

Current Action

On October 16, 2007, our office hosted a conference call that was attended by counsel for all intervenor-defendants: Republican members of the California Senate and Assembly; County Intervenors; the County of Sonoma, intervening separately; and District Attorneys.  The majority of counsel were concerned that, while the Court stated in its order that a decision on issuing a prisoner release order would not be made until Phase II, the Court will really make that determination in Phase I if it finds that those two elements of the Prison Litigation Reform Act are met.  This would prevent the intervenors from having any say in the matter until after a decision has been made, and Phase II would only be about how to implement a release order in light of public safety concerns.

Counsel for the intervenors agreed to work collectively, with the exception of the County Intervenors (including Sonoma County), to prepare and file a Motion for Reconsideration/Motion for Clarification, to try to assert the intervenors’ rights in participating in the Phase I proceedings.  While the Attorney General’s office will make the argument in Phase I that overcrowding  is not the primary cause of violation of prisoners’ constitutional rights, we believe that they cannot – and will not — adequately address the issue in Phase I of whether any relief other than a prisoner release order will remedy the violation.  This question seems to require the Court to consider the alternatives that the intervenors are prepared to present, including AB 900’s re-entry facility component and probation reform.

Therefore, we, along with counsel for the other intervenor-defendants, are acting as quickly as possible to prepare and file a Motion for Reconsideration -Motion for Clarification.

As always, if you wish to discuss this in greater detail, please feel free to contact Martin J. Mayer at (714) 446-1400 or by e-mail at mjm@jones-mayer.com.