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California: Prisoners May Be Transferred Out of State To Alleviate Severe Prison Overcrowding

In 2008, the California Court of Appeal upheld the Governor's authority, under the California Emergency Services Act (Government Code, § 8550 et seq.), to proclaim a state of emergency because of severe overcrowding in the state's prisons, as well as the Governor's subsequent authorization for the California Department of Corrections and Rehabilitation (CDCR) to negotiate contracts for the transfer to and housing of prisoners in out-of-state facilities.

In October 2006, faced with what CDCR officials deemed to be a prison "population crisis" — the state then housed over 166,000 prisoners in 33 facilities designed to hold only about half that number — then-Governor Arnold Schwarzenegger issued a "Prison Overcrowding State of Emergency Proclamation," directing CDCR to negotiate contracts with out-of-state private prisons in an effort to alleviate overcrowding (by transferring thousands of state prisoners to facilities outside of California).

The politically powerful guards' union, the California Correctional Peace Officers Association (CCPOA), challenged the Governor's action on the grounds that (1) the emergency was not sufficiently localized to fall within the purview of the Emergency Services Act; and (2) contracting with private, out-of-state facilities to house California prisoners was a violation of the civil service protections afforded guards under article VII of the California Constitution.

The CCPOA's complaint, at bottom, was simply that transferring prisoners out of state threatened the number of jobs available to its membership.

The Superior Court agreed with the CCPOAs legal arguments. It declared the Governor's state-of-emergency proclamation "unlawful" and enjoined the transfer of prisoners pursuant to any contracts entered into pursuant to that proclamation. The Superior Court's judgment was stayed pending appeal.

The Court of Appeal reversed. It began by noting that CCPOA did not dispute the serious threat to the health and safety of prisoners, guards, and the general public posed by the overcrowding in the state's prisons. Specifically, the overcrowding (1) increased the risk of prisoner violence (against other prisoners as well as against prison staff); (2) caused power failures that jeopardized prison security; (3) resulted in sewage spills and environmental contamination that polluted groundwater and increased the risk of transmission of infectious diseases; and (4) required the early release of certain offenders from county jails because of lack of space to house them in the state's prisons.

The Court also noted that the Legislature had failed to deal with these problems, despite Schwarzenegger's call for a special session specifically to "address this crisis."

Observing that the unambiguous statutory language defined a state of emergency to include a qualifying condition that exists "within the state," the Court matter-of-factly rejected CCPOA’s contention that the Emergency Services Act applied only to local emergencies within the territorial limits of a city or county. Then, while acknowledging that the civil service mandate generally prohibited private contracting for services that could be performed "adequately and competently" by civil service employees, the Court found the record sufficient to establish that the need for additional space to house prisoners created an "urgent, temporary" need for services that fell within a statutory exception to that mandate. See: CCPOA v. Schwarzenegger, 163 Cal.App.4th 802 (2008).

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Related legal case

CCPOA v. Schwarzenegger