California’s Prison-Litigation Nightmare
Activist judges are forcing the state to release prisoners—and crime is spiking.
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The Prison Law Office leveraged Schwarzenegger’s order to seek a mass release of state inmates, as provided for by the federal Prison Litigation Reform Act. That act, passed in 1996, sought to rein in the judicial micromanagement of prisons by requiring, among other measures, that prisoner-release motions be heard by a specially convened three-judge panel composed of the federal judge already overseeing a prison-reform case and two outside jurists. The two additional judges would counterbalance any bias that the presiding judge might bring. The attorneys asked the judge overseeing Coleman—Senior U.S. District Judge Lawrence Karlton—and the judge overseeing Plata—Senior U.S. District Judge Thelton Henderson—to convene a prisoner-release panel. Both agreed that a panel was needed; each put himself on it. This would be the first three-judge court constituted over the objections of a government defendant since passage of the Prison Litigation Reform Act.
With a majority already constituted by the two judges who deemed the panel necessary and who happened to be among the most activist trial judges on the West Coast, the only question was who would be the third jurist. U.S. Circuit Judge Stephen Reinhardt got the nod, presumably by random assignment. Reinhardt is not just one of the most liberal judges on the West Coast; he is arguably one of the most liberal judges in the country.
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A yoga class at San Quentin
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The panel ordered the state to reduce the prison population—which, during the trial, stood at 156,000—to 137.5 percent of the system’s design capacity within two years, a benchmark that the panel estimated could require releasing up to 46,000 prisoners. (The issue of “design” versus “operational” capacity has bedeviled California throughout the prisoner-release litigation. The state perversely continues to define its own “design capacity” according to the notion that every cell should house only one inmate, even if it was designed for two, and even though the federal government and every other prison system routinely use double celling. In 2010, the system’s design capacity was for 84,181 inmates; its “operational capacity,” based on the intended use of cells, was 149,624 inmates. By the time the panel issued its order, the prison population had fallen to 150,118 inmates—or within spitting distance of operational capacity.)
Then–attorney general Jerry Brown denounced the court ruling: “This order, the latest judicial intrusion by the federal judiciary into California’s prison system, is a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.” California appealed to the U.S. Supreme Court. In May 2011, a five-to-four majority, led by Anthony Kennedy, affirmed the panel’s population cap in a decision titled Brown v. Plata. Justice Kennedy, already on record as a critic of contemporary incarceration policies, found that the health care provided by the state’s prisons fell “below the evolving standards of decency that mark the progress of a maturing society” and that only a reduction in the inmate census would cure that constitutional violation. The majority’s ruling was the first time that the Supreme Court had ordered a prisoner release, much less one of such magnitude.
Justice Scalia’s blistering dissent claimed that the panel’s “factual” finding that a prisoner release would likely improve public safety, not harm it, was grounded in the judges’ policy preferences, rather than in any true findings of fact. Justice Samuel Alito, also dissenting, charged that the panel’s decree represented precisely the judicial overreach that the Prison Litigation Reform Act “was enacted to prevent.”
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Meanwhile, the panel’s population-reduction order had triggered profound criminal-policy changes. In May 2011, at the urging of now-governor Brown, the Democrat-controlled California legislature passed what Stanford University law professor Joan Petersilia calls the “biggest penal experiment in modern history.” Assembly Bill 109, known as “realignment,” would lower the prison count by sentencing certain felony offenders to county jail instead of state prison and by virtually eliminating parole supervision. Giving up on parole supervision is a perverse but simple solution to the alleged problem of too many parolees winding up back in prison for violating parole. In anticipation of the new realignment policies, Brown canceled $4.1 billion in previously authorized prison-construction bonds that would have added another 53,000 prison beds. That new construction was no longer needed, Brown said, since realignment would keep convicts out of prison in the first place.
AB 109 is nightmarishly complex and has produced a host of wholly foreseeable and potentially disastrous burdens on county sheriffs and city police departments. It did generate one intended effect: it greatly accelerated California’s already falling prison count. After realignment began in October 2011, the prison population dropped nearly 10 percent in the first three months alone, mostly because of the disappearance of parolees no longer getting punished for parole violations. From 2011 to the start of 2013, the prison count fell 24,000, and is now—at 120,000—at the lowest level in 17 years and well below the 150,000-person “operational” capacity of the prison system. The majority opinion in Brown v. Plata had featured—quite unusually—two outdated photos of bunk beds in prison gymnasiums. By February 2012, such nontraditional beds were gone, as was evident on a visit in August 2013 to the California Institution for Men in Chino. A dayroom outside a high-security block, once filled with beds, now contained only a TV and a single inmate watching it.
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In early January 2013, Jerry Brown did the unthinkable: he asserted that California was capable of operating its prisons. The “prison crisis is over,” Brown declared at a Capitol news conference. “We spent billions of dollars” complying with the court orders; highly paid attorneys are now “running around the prisons looking for problems” and trying to “gold plate” the system, he said. “At some point, the job’s done.” Brown backed up his words with actions. He asked Judge Karlton, who oversees Coleman, the mental health-care litigation, to terminate the case on the ground that the level of care provided to mentally ill inmates far exceeds the minimal constitutional standard. And he asked the three-judge panel to vacate its 137.5 percent population cap. The outraged reaction from the judicial triumvirate and its agents shows how difficult it will be for the state to extricate itself from their control.
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Judge Karlton scathingly rejected the state’s motion to terminate on April 5, 2013.
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“The United States has never experienced . . . what is going on in California” because of it, writes Petersilia. An unprecedented 90,000 offenders were removed from correctional control and let loose through 2012 alone. County sheriffs and police departments are already struggling to oversee the new crop of offenders that AB 109 has sent their way; giving them thousands more in one stroke would be asking for trouble. The panel’s refusal to take judicial notice of realignment’s effects to date is a grave mistake.
James Mendez, 34, is typical of the new class of criminal that realignment has dumped on the county jails. Bald and goateed, with a slender face and soft brown eyes, the tattooed gun trafficker is in a high-security wing of the Theo Lacy jail in Orange County. Mendez began his criminal career as a juvenile and proceeded to rack up a complicated incarceration history in federal and state penitentiaries for various gun and drug charges. “I’ve never completed a sentence in one prison, but get bounced from one prison to another for disciplinary issues,” he says, adding judiciously: “I’ve been a management problem, but I have my reasons.” He also has a “reason” for his “bad luck” with weapons charges.
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Thanks to inmates like Mendez, the Orange County jail system has seen a 35 percent increase in inmate-on-inmate assaults and a 200 percent increase in drug incidents. “The AB 109 offender is more criminally sophisticated,” says Assistant Sheriff Lee Trujillo. “He has a longer record and is bringing prison politics into the jails.” Asked if there are prison gangs in the jail, Mendez smiles beatifically and, like every jail inmate to whom I pose that question, says that he prefers not to answer. The realigned offenders are sucking up staff resources, since 50 percent need protective custody (meaning that they are from gangs or have committed offenses against children, which puts them at risk of retaliation). Everything that the AB 109 felon does in jail, including work, requires more supervision.
Offenders waiting in the lobby of the Orange County Probation Department attest to the changed jail population as well. “There’s more violence in the jails because it takes so long for people to get picked up and sent to prison now,” reports a 21-year-old pusher.
Despite Mendez’s discipline problems, he will be released on schedule, having lost none of his automatic good-time credits for his fractious behavior. Most worrisome, he will still come out with no parole or probation supervision, as AB 109 allows. Of all the myriad changes wrought by realignment, this gutting of parole supervision will undoubtedly prove the most consequential.
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“Pressure to make me do something makes me not do it,” Mendez says, explaining his history of parole violations. Now that he will be getting out of Lacy with no parole or probation supervision and “I don’t have to run from nobody,” he says, “I can just live.” His neighbors, however, may not be so confident in his latent self-control and may wish that he had someone regularly checking up on him. His employment record is spotty, at best—he claims, unconvincingly, to have family connections to a cement finisher willing to hire him.
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People aren’t as scared now,” says a violent homeboy in the Orange County jail. “Hanging out with a gang member used to get you, like, one year. Now, it’s three months, so screw it.”
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You might think that AB 109 would be a hit with criminals. Not only does it radically reduce post-sentence supervision; it also keeps offenders in their home communities when they serve time, instead of sending them to a distant state prison. Moving incarceration to local county jails, nearer to family, was supposed to aid rehabilitation. In fact, criminals overwhelmingly prefer prison to jail. Robert, a 42-year-old member of Santa Ana’s infamous F Troop gang, has served three prison terms, including for car theft. He is now waiting to see his drug counselor in the Orange County Probation Department after the husband of the woman he was “messing with” reported the three pipe bombs he had in his car trunk. “I loved prison. They give you more freedom,” he says. “The way jails are now, they are far worse. The last time I checked, Lacy has a $200,000 budget for movies, but they don’t give it to you.”
“Being in jail sucks,” says Bryant Islas, a rapping, meth-dealing member of Santa Ana’s Alley Boys gang. Islas is currently in Lacy awaiting retrial for a 2011 attempted gang murder, committed while Islas was AWOL from an Orange County drug rehab program. His ubiquitous tattoos—SO FUCKING SICK across his forehead (“It’s a little saying amongst us guys,” he chuckles) and the usual Aztec-Mayan Brown Power iconography—attest to his deep expertise in prison culture. “The guards are more respectful to prison inmates. Here they try to challenge us and we get in fights. There’s substance abuse treatment in prison, and anger management and school. They offer a lot of stuff—parenting, you can get certified.”
Ironically, several jail inmates tout the prison medical care. “In prison, the medical care is free. Here, they charge you,” says Islas. He had been carrying around a bullet in his stomach from a gunshot to the back. The last time he was in prison, he decided, “Why not take it out?” He put in a medical slip and was seen in three days. (The surgeon gave him the bullet, which he has since lost.) “I thought the care was pretty good,” he says. “The complaining comes from the older lifers. A lot of the dudes fake psychiatric problems.”
A blond carjacker in hiking boots, shorts, and no shirt in the Chino men’s prison did accost me to grouse that “the doctors aren’t as good here compared to other institutions” that he has frequented. He only sees his cardiologist every four to five months, instead of every three months, and he is supposed to be on Coumadin but is taking aspirin instead. Neither failing would seem to rise to the level of a constitutional violation.
Some AB 109 convicts are even pushing to get back into prison. Islas recently came across one of the bizarre consequences of realignment: an AB 109 offender serving a whopping ten years in jail with half off for good time. Why didn’t you go to prison? Islas asked him. “I tried to,” he responded, “but my commitment offense was not violent.”
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In November 2012, a Filipino gang member, Ka Pasasouk, killed four people outside a boardinghouse in Northridge, northeast of Los Angeles. Though carrying a previous robbery conviction, he was on county probation supervision because his last offense was for car theft. A judge had decided to let him go free after an arrest for meth possession two months before the quadruple murder. In March 2013, Tobias Dustin Summers kidnapped a ten-year-old girl from her bedroom in Northridge during a burglary and raped her; Summers was an AB 109 probationer, despite a record of kidnapping, robbery, explosives possession, and petty theft.
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And in a long-anticipated, final pincer movement, the Prison Law Office has started suing jails for overcrowding-induced health-care deficiencies. Fresno, Riverside, Monterey, and Alameda Counties have all been hit; “every sheriff up and down the state is worried,” says Orange County sheriff Sandra Hutchens. The jails are easy targets: designed for short-term stays, they cannot offer anywhere near the services, amenities, and medical specialists as state prisons, as the inmates themselves attest. Yet they will now have to spend millions of dollars that they don’t have to bring their own medical care up to a state-of-the-art standard or face litigation and further population-reduction orders.
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.
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