George Skelton: Brown holds a good hand

Judges need to accept changes in prison system

July 5, 2013 

Supreme Court-California Prisons

FILE - In this May 20, 2009 file photo, several hundred inmates crowd the gymnasium at San Quentin prison in San Quentin, Calif. The Supreme Court on Monday, May 23, 2011, endorsed a court order requiring California to cut its prison population by tens of thousands of inmates to improve health care for those who remain behind bars. The court said in a 5-4 decision that the reduction is "required by the Constitution" to correct longstanding violations of inmates' rights. The order mandates a prison population of no more than 110,000 inmates, still far above the system's designed capacity. (AP Photo/Eric Risberg, File)

ERIC RISBERG — ASSOCIATED PRESS

Three liberal federal judges — relics of the Jimmy Carter era — are trying to force Gov. Jerry Brown to release nearly 10,000 criminals from state prisons. Politically, it doesn't get much better for a governor.

The judges are threatening to hold Brown in contempt of court if he refuses to free the felons.

Go ahead, to paraphrase a former Carmel mayor, make his day. Fine him.

That's one fine, I suspect, most California taxpayers would gladly pay for a governor trying to keep bad guys behind bars.

Except if I were an ambitious state controller like John Chiang, I'd refuse to write the check.

Then what? The federal government could retaliate by withholding funds from the state, such as money to help pay for poor people's medical care. Would President Obama really allow that? He has more political smarts. You'd think.

The judges could order federal marshals to open the cell doors. Brown then could stand in one, a la segregationist Alabama Gov. George Wallace. That certainly didn't hurt Wallace politically.

And Wallace was shamefully standing in the schoolhouse door trying to protect a university's bigotry from integration by black students. Brown would be heroically protecting citizens from thugs.

The marshals could slap cuffs on the governor and drag him off to jail. Can't visualize that, either. But there'd be no better way for him to campaign for re-election next year.

Although a recent USC Dornsife-Los Angeles Times poll found that most voters favor the early release of low-level, nonviolent offenders, they also don't want to sacrifice public safety by dumping more criminals on the street.

Brown clearly holds a solid hand politically in this escalating confrontation. It's long past time, however, to pull the curtain on the little drama.

"Enough already!" Brown told reporters, and that was in January. "Our prisons are not overcrowded." The three-judge panel since then has emphatically disagreed and recently ordered Brown to shed 9,600 inmates — about 8 percent of the prison population — by year's end. And by the way, the judges said, commence "forthwith, notwithstanding any state or local laws." Brown is asking the panel for a stay while he appeals to the U.S. Supreme Court, which two years ago ruled that California prison conditions amounted to cruel and unusual punishment.

The federal panel consists of three liberals originally appointed by Carter:U.S. District Judges Thelton Henderson, 79, of San Francisco and Lawrence Karlton, 78, of Sacramento; and U.S. 9th Circuit appellate Judge Stephen Reinhardt, 82, of Los Angeles.

Their jurisdiction over the state's prison population stems from two class-action lawsuits, one filed in 1990 on behalf of mentally ill inmates, the other in 2001 for medically ill prisoners. The jurists have ruled that overcrowding caused inadequate health care.

And for many years that was hard to dispute.

In 2007, the state had 173,000 inmates crammed in prisons built for fewer than 100,000. They were stacked like cordwood in some lockups — triple-bunked in gyms, day rooms and hallways, leaving little space for rehab, education or drug treatment.

But that's no longer the case, prison officials assert.

"The prison systems were screwed up," Brown admitted in January. But "we've done a lot to fix them. ... Most people in prison get better (health care) inside the prison than they'll get once they're released." But the federal judges aren't buying it. In a recent ruling, they accused the Brown administration of "defiance," "intransigence" and "deliberate failure" to provide inmates with adequate care.

"The judges aren't giving the state enough credit for everything it's done," insists Jeff Beard, the governor's new corrections secretary. "This is really a huge states' rights issue. Maybe there needs to be more attention to this before we just start releasing people or go to contempt citations."

In 2008, Beard was Pennsylvania's prisons chief and testified as an expert witness against California's lockups in federal court. After he retired in 2010, Beard was hired as a California prisons consultant and became impressed.

He doesn't think the federal judges have been doing their homework and are focused on outdated numbers, stuck in old assumptions.

"The state has spent almost $2 billion since 2008 on upgrades," he says. "The prison population also has been reduced quite a bit more than the judges seem to recognize." Beard says it's down by 43,000 inmates from the peak, partly because of Brown's "realignment" program that places many low-level felons under county control.

The governor has sent the Legislature a plan to further reduce the prison population by leasing beds in county jails and private pens. It would cost $450 million over two years. But not even Brown likes the idea. And it's DOA in the Legislature.

California already is planning to spend nearly $9 billion on prisons during the new fiscal year. That's more than 9 percent of the general fund.

"We get criticized regularly for spending more than we have," says Senate leader Darrell Steinberg (D-Sacramento). "I don't want to put more money into building prisons or jails. That's throwing money down a rat hole.

"If we're really serious about overcrowding," Steinberg continues, "we have to keep people out of prison once they leave. The crying need is for more mental health services."

But who knows what would satisfy these federal judges.

"Will they take three-fourths of a loaf?" asks UC Davis law Professor Gabriel Chin. "That wouldn't surprise me."

The judges should find a way to declare victory and move on. Proclaim their mission accomplished.

If not, they'll be tossing Brown a fat pitch down the middle, one he can't miss.

LOS ANGELES TIMES

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