Vol. 24 No. 3- Federal Court Issues Tentative Order to Release 40,000 and 60,000 Inmates from State Prisons

Federal Court Issues Tentative Order to Release
40,000 and 60,000 Inmates from State Prisons

As you may know, the Prison Release Litigation, in the Coleman and Plata cases, concluded testimony on December 19, 2008.  Closing arguments were on February 3 and 4, 2009 and the Court then took the matter under submission.  Immediately after the conclusion of argument, the Court issued an order directing all of the parties, including the intervenors, to brief the scope of the Court’s power to order funding of programs to address the public safety impacts of a prisoner release order.  That briefing is not due until February 18, 2009.

As counsel for the Law Enforcement Intervenors we have been coordinating a response to these legal questions with the attorneys for the other defendant intervenors (except the Legislators, who have a different viewpoint on this issue).

This issue is important because much of the evidence that we presented at trial on behalf of the Law Enforcement Intervenors involved the tremendous negative impact on public safety by issuing a prisoner release order; the availability of alternatives to such an order; and most especially, how additional probation funding, and funding for evidence-based programs at the local level, would reduce the number of probation violators and others being sent to prison in the first place.

We were surprised by the issuance of the Court’s tentative ruling, primarily because of the Court’s previous order requesting additional briefing from the parties and intervenors on the issue of the scope of their authority under the Prison Litigation Reform Act.   We did not expect the Court to issue any ruling, tentative or otherwise, until they had received that briefing.  Nonetheless, the Court did issue a tentative ruling on this matter late yesterday afternoon, February 9, 2009.

The Tentative Ruling

We have now had an opportunity to more fully analyze the Three Judge Panel’s Tentative Ruling.  As we previously noted, the Court stated that its ruling is tentative and could change based on further review of the evidence, the proposals submitted by the parties, and additional hearing(s).

At least for now, however, the Court has concluded (largely based on the Governor’s emergency proclamation regarding prison overcrowding and its impacts) that overcrowding in the prisons is the primary cause of the State’s failure to provide constitutional levels of medical and mental health care to inmates in the Coleman andPlata cases.

The Court acknowledged that there are other causes of the unconstitutional conditions, but that overcrowding is the principal one which, if not addressed, will continue the unconstitutional conditions, no matter what else may be done.

The Court went on to note that while the Receiver and the Special Master in both underlying cases have been able to accomplish significant improvements in the conditions, it is apparent that the prison population must be reduced if the conditions are to improve further.  In addition, the Court pointed out that the State is actively trying to have the Receiver removed which, if successful, would obviously prevent the Receiver from making additional improvements.

Alternatives to a Release Order

With respect to alternatives to a prisoner release order, the Court explained that both individual judges in the Coleman and Plata cases have issued scores of orders over many years designed to correct the violations.  Noting the current budget shortfall, the Court indicated that it does not believe that issuing any other orders to the State will either correct the problems or be done fast enough to avoid a release order.

The Court did acknowledge that many of the possible steps which could be taken to reduce the prison population without early releasing prisoners are nonetheless “prisoner release orders” under the Prison Litigation Reform Act, including diversion, additional credits, provision of evidence-based programming, parole reform, etc.

Prison Capacity

The Court was very concerned about what level of commitment in the prisons could allow the State to provide constitutionally adequate care.  The prisons currently house approximately 159,000 inmates, which is nearly 200% of the design capacity of 83,000.  The Plaintiffs requested an order capping the population at 130% of design capacity, which would have resulted in release/diversion of 52,000 prisoners.

The Court referred to the Deukmejian Report which had indicated the maximum population should be 145%, and other testimony which recommended no more than 100% of design capacity is appropriate.  Ultimately, the Court indicated that the population should be reduced to “at most” 120% (58,400 population reduction) to 145% (37,650 population reduction) of design capacity.   In addition, some institutions or clinical programs should be reduced to 100%, or less, of capacity.

Adverse Impacts on Public Safety

With respect to adverse impacts on public safety, the Court concluded, largely on the basis of the testimony of Plaintiffs’ expert, Dr. James Austin, that a cap of 120-145% of capacity could be accomplished without adversely affecting public safety.

The court indicated that parole reform, diversion of prisoners with short sentences, and additional good time credits could bring the population down to acceptable levels.  The Court also noted that the State’s own proposals for this years’ budget demonstrate that public safety will not be adversely affected.

Law Enforcement Intervenor’s Arguments

The court accepted our argument that evidence-based rehabilitative programming could reduce impacts on public safety, but concluded that such programming cannot be provided to prison inmates due to the present overcrowding.

The Court also noted our arguments that local governments do not have enough funding to address the needs of released prisoners. However, it concluded that this is a current problem and could change.  Since the State will achieve substantial savings by complying with the Court’s order, that would enable the State to pass on all or part of the “savings” to the counties.

The Law Enforcement Intervenors, as well as the Counties and the District Attorneys, offered very compelling testimony regarding the risks of issuing a prisoner release order, including increase in crime at a time when law enforcement resources are shrinking; lack of available community programs for probationers and parolees; the importance of evidence-based programming, particularly for those who have not yet been sent to prison; the feasibility of reducing the prison population at the front end through implementation of reforms similar to what occurred in the Juvenile Justice System over the last few years; and the increased victimization that will occur as a result of a release order.

The Court’s Orders

Nonetheless, the Court indicated it intended to adopt an order requiring the State to develop a plan to reduce the population by 120-145% over a period of two or three years, concluding that the State has many options to choose from in such a plan.

The Court may hold an additional hearing before issuing a final order, but asked that all parties and intervenors submit written proposals “setting forth the specific percentages and dates that they believe should be incorporated into the order regarding the ultimate population cap and compliance date” as well as any interim mileposts to be included.

The Court also encouraged the parties and intervenors to engage in discussions regarding a joint recommendation with respect to any or all issues to be included in the order.

We have been asked to advise the Court no later than February 19th if we wish the assistance of a Court-appointed settlement referee to aid in any such discussions, suggesting the appointment of Justice Elwood Lui and Justice Peter Siggins, both of whom previously served as Settlement Referee and Consultant.  In addition, we would want to include discussion about funding of local services in any “settlement” of this matter.


Obviously, if there is a release of between 40 and 60,000 inmates over a two to three year period, with no additional monies for supervision, rehabilitation, treatment programs, etc., there will be a significant impact on local law enforcement.  At this point in time, the District Attorneys and State Legislator Intervenors have indicated their intent to appeal a prisoner release order to the United States Supreme Court.  If that occurs, and the Court issues a stay on the Three Judge Court’s order, things will be status quo.  If, however, the Supreme Court refuses to accept the case or does not issue a stay, the order of the Court will be carried out.

It is important to note that a prisoner release order occurs because the Court places a cap on the prison population and the order is to bring the population down, thereafter.  No new prisoners will be accepted into the state system until that population cap is reduced below the specified number.  As a result, newly sentenced defendants will not be accepted into the state’s system and will be held at the local level.  That will then create a huge housing problem for county facilities.
Unfortunately, we have no answers as to how local government will handle this situation and can only hope that the Three Judge Court will still recognize the potential impact on the public’s safety and reconsider its tentative ruling.

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