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California’s Prison-Litigation Nightmare : In 2009, Three Federal Judges Ordered the State to Release 40,000 Prisoners. Heather MacDonald

Posted By Ruth King on October 30th, 2013

http://online.wsj.com/news/articles/SB10001424052702304799404579153812943219656?mod=WSJ_Opinion_LEFTTopOpinion

Is it any wonder crime is on the rise?

Ms. Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute. This article was adapted from the Autumn 2013 issue of City Journal.

California Gov. Jerry Brown and the federal judiciary are locked in a dramatic constitutional battle over control of the state’s prisons. In 2009, three federal judges issued what Supreme Court Justice Antonin Scalia has dubbed “perhaps the most radical injunction issued by a court in our nation’s history”: an order that California release up to 40,000 prisoners within two years to correct allegedly unconstitutional prison health care.

California has since spent more than $1 billion on new prison medical facilities, brought its correctional health care far above constitutional standards, and shed more inmates than are housed in all but a few states. Yet the judges show no sign of relinquishing their hold. California’s recent sharp increase in property crime—a rise eight times greater than the national average—may be one consequence of the judicial intervention.

The prisoner-release order was the culmination of two long-running lawsuits, Coleman v. Brown and Plata v. Brown, in which an advocacy group representing California inmates, the Prison Law Office, challenged prison medical treatment. The attorneys alleged that understaffing and the incompetence of prison doctors resulted in serious misdiagnoses and long, sometimes fatal, waits for care.

In 2007, after years of litigation, a special three-judge panel was convened to consider the plaintiffs’ latest argument that overcrowding was now the primary source of remaining constitutional violations. The panel agreed, and in 2009 it ordered the state to bring the prison population, then at 150,118, down to 109,805. In May 2011, the Supreme Court, in a 5-4 majority led by Justice Anthony Kennedy, affirmed the panel’s release order, marking the first time the court had put its imprimatur on a prisoner-release directive. The panel then set the population reduction deadline for the end of 2013.

In response, Gov. Brown and the Democrats in the state legislature passed what Stanford law school Prof. Joan Petersilia has called the “biggest penal experiment in modern history.” Assembly Bill 109, known as “realignment,” would lower the prison count by sentencing felony property and drug offenders to county jail instead of state prison. The bill also virtually eliminates parole supervision—a perverse but simple solution to the alleged problem of too many parolees winding up back in prison for parole violations.

The complex bill has imposed potentially disastrous burdens on county sheriffs and city police departments, but it did accelerate California’s already falling prison count. From 2007 to the start of 2013, the prison census fell 42,000, and is now—at 120,000—at the lowest level in 17 years.

In January, Gov. Brown declared that California was capable of operating its own prison system and asked the three-judge panel to lift its prisoner release order. Prison overcrowding was a thing of the past, Gov. Brown maintained. The makeshift dormitories in prison gymnasia that had played so large a role in the Supreme Court’s opinion had been eliminated and prison health care is now far above the de minimis constitutional standard, he argued. California spends $17,924 per prisoner on medical treatment—four times what the federal government spends in its prisons and three times New York’s rate. Most offenders get better medical attention in prison than they would in their own neighborhoods.

Gov. Brown told the panel that the state could not reach the final population figure without releasing prisoners who posed an unacceptable risk of violence and other crime, further taxing already overwhelmed local law enforcement. Nevertheless, the panel declined to modify its population reduction order. In June—in a breathtaking assertion of power—it waived every state law that stood in the way of the release of nearly 10,000 prisoners, the remaining difference between the current census and the panel’s population cap.

The panel has ignored the effects of its order on California’s criminal justice system. By March 2012, just five months after the state began diverting felons to jails under “realignment,” county sheriffs were early releasing 11,000 inmates each month thanks to overcrowding from the newly diverted convicts. Few ex-cons were supervised once back on the streets.

California’s crime rate is now up considerably over the national average. Nationally, property crime was down 0.9% in 2012; in California it was up 7.6%. Car theft nationally was up 0.6% but in California it jumped 14.6%. Burglary nationally was down 3.7% but it increased 6.6% in California.

These differences could derive from reasons other than releasing 90,000 offenders from correctional control; it is premature to draw firm conclusions from a year’s worth of data. And the promised benefits from realignment—such as from keeping offenders away from prison culture and providing them with more social services closer to home—could eventually materialize. But one San Bernardino public defender, who is particularly concerned about the decimation of parole supervision, argues: “We were over-incarcerating before, now we are under-incarcerating.”

Meanwhile, in a final pincer movement, the Prison Law Office has started suing jails for health-care deficiencies. The advocates’ agenda is clear: to make incarceration so expensive that law-enforcement authorities will have to abandon it for all but the most heinous crimes. Both sides of the deincarceration debate have valid arguments. But the debate belongs in the political arena, not the courtroom.

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