The three-judge court in the ongoing prison healthcare civil rights suit against California took a slight turn on January 20, 2013, when the court gave California a six-month extension of time to achieve the prison population reduction it had ordered earlier.  California’s prison population had been ordered to be reduced to 137.5% of design capacity, in order that overcrowding would no longer render medical care and mental health care unconstitutionally deficient.  In raw numbers, this means a population cap of 110,000 prisoners (down from the peak of the overcrowding at 172,000 just two years ago).  The population of California’s state prisons is currently at about 120,000 – so the remaining battle is over further cuts of 10,000.

The saga of unconstitutional healthcare in California’s prisons has been ongoing for over two decades in the federal courts.  The Coleman case on mental health care, and the Plata case on medical care, are now in essence merged under the auspices of the three-judge panel convened under the PLRA.  PLN has reported regularly on the developments of this litigation.  In May 1996, PLN reported on the initial ruling that California prison healthcare was so bad as to be found cruel and unusual punishment under the Eighth Amendment.  In March 2006, PLN reported the care remained so bad, notwithstanding over a dozen intervening court orders, that the court appointed a receiver to operate California’s prison health care system.

Even with the receiver, suicides remained all too frequent.  (March 2007 PLN.)  As a result, three-judge panel was convened.  (March 2008 PLN.)  That court eventually recognized that the principal driver of the healthcare problems was overcrowding, and ordered California to reduce its prison population (or build more prisons).  (March 2009 PLN.)  Six months later, the court laid down a timetable for this reduction.  (September 2009 PLN.)  The lead attorney for the prisoners, Donald Specter, wrote an article for the September 2010 PLN explaining how overcrowding was indeed the main culprit.  The state appealed the three-judge court ruling to the United States Supreme Court, which upheld the population reduction order.  (PLN, July 2011.)

With the unconstitutionality issue decided, the state was left with the problem of how to implement the reduction.  One major driver of prison population growth was the prison guards’ union, which, through its parole agents, made sure that sufficient parole violation arrests were made each day to keep all prison beds full.  In 2012, Governor Brown signed into law the prison Realignment act of the Legislature, which was designed, in part, to stem the flow of technical parole violators into the prisons.  Realignment also put low level offenders with less than three years to serve, back into county jails.  All prisoners released from jail confinement were no longer placed on parole, but rather on county probation.  This resulted in an 80% reduction in the number of state parole agents, who were left with only “high risk” offenders to monitor when they were released from prison.  Finally, in 2012, the voters repealed part of the Three-Strikes law, which had resulted in approximately 4,000 persons sent to prison for life terms when their “third strike” was only a non-violent, non-sex minor offense.  This change is estimated to permit approximately 3,000 eligible life prisoners to now apply for sentence recall and resentencing under the less onerous “two strikes” statute.

Presently, California has succeeded in eliminating technical parole violators from its prisons, has transferred numerous low level offenders to county jails, and has commenced the three-strike sentence recall petition process.  The state still has over 9,000 prisoners farmed out to private facilities outside the state, whom it wants to return to California for cost savings.  However, bringing prisoners home is not consistent with reducing the population by 10,000 more bodies, as required by the three-judge court.

Accordingly, the state will have to become more creative.  Either it will convince the court that in fact medical and mental health care no longer violate the Constitution, at the level of 120,000 prisoners, or it will have to decide which prisoners to either release early, or to send out of state.  One suggestion is to take the sizeable number of foreign nationals in California’s prisons, and deport them early.  Another suggestion is, in recognition of the 1% recidivism rate of life prisoners for murder and kidnap, to let the parole board do its statutory job of “normally” fixing the parole date of all such prisoners at their initial parole hearing.  The current record, one which has improved several-fold in just the last three years, only fixes terms for about 10% of such prisoners.  Restraint against the latter remedy is highly political, however, and may not get top billing.

The decision on how to resolve the dispute over the 10,000 excess bodies in California’s prisons has now been delayed until December 31, 2013.  PLN will continue to report on this important issue.

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