By Andrew Cohen
California Gov. Jerry Brown is openly defying a series of federal orders requiring state officials to reduce California’s prison population to comply with the requirements of the Eighth Amendment. Instead of obeying these orders, which were directly approved by the Supreme Court, the governor instead has made a series of false and inflamatory statements about the law, the courts, the inmate problem and California’s efforts so far to solve it.
Meanwhile, California Attorney General Kamala Harris, a rising star in national Democratic politics who is seen by some as a potential Supreme Court nominee, has authorized or permitted the filing of a series of dubious motions and briefs on behalf of the state as it tries to weasel out of its constitutional requirements to the inmates. Rejected and scorned by federal judges over the past two weeks, these court filings are largely void of dispositive facts and unworthy of a first-year associate, much less the chief lawyer of our nation’s most populous state.
Some of the coverage of this conflict sadly has displayed a measure of “false equivalence.” Gov. Brown’s position has been juxtaposed with the judicial orders as though the matter were still in legal doubt. Don’t be fooled by this coverage. There is no such dispute. There is what the Supreme Court and the lower courts have ordered to be done on behalf of the inmates. There is the failure and refusal of California to get it done. There is whining from state officials. And there is now the whiff of contempt sanctions against the governor and his tribunes.
The procedural history of this current generation of California prison cases, well into their second decade of litigation, is terribly complicated. The core of the story is not. In August 2009, a three-judge federal panel, after an exhaustive review of the evidence, concluded that to comply with constitutional standards California would need to reduce its prison population to 137.5 percent of its prisons’ design capacities within two years. There were simply too many inmates, the judges found, and too few beds, medical staff and other resources.
California appealed the ruling to the Supreme Court. In May 2011, in a decision authored by Justice Anthony Kennedy, a native Californian, the Court broadly upheld the 2009 ruling. There was little ambiguity from the Court’s majority: the state had until June 2013 to comply. In October 2011, California began to empty its prisons. “Thousands of inmates either serving prison terms or parole revocation terms for ‘non-serious, non-violent and non-registerable sex crimes’ were shifted to county jails,” the judicial panelists noted.
But then, California’s progress stopped well short of the 137.5 percent benchmark the courts had ordered. Why? Because of political pressure generated by the shifting of the inmates from state to county facilities. First, state lawyers asked the judges to raise the benchmark. Then, they sought a delay until December 2013 to comply with the order. Then, California’s lawyers argued that prison officials could comply with their obligations even if they couldn’t meet the benchmark.
Throughout 2012, California officials, attorneys for the inmates, and the federal judges fussed over the state’s failure to comply with the court orders. Over and over, the judicial panel gave state officials time and opportunities to fix the problem. Over and over, the prisoners’ lawyers complained about the pace of the progress. Over and over, California refused to commit to a plan that would bring the prisons into compliance by June 2013, or even December 2013. And then, in early January of this year, the state simply gave up trying.
On January 8, 2013, Gov. Brown announced that as of July 2013 he would no longer use whatever “emergency powers” he has as chief executive to comply with the order. He announced that “prison crowding no longer poses safety risks to prison staff or inmates, nor does it inhibit the delivery of timely and effective health care services to inmates.” California’s governor, in effect, unilaterally declared an end to his state’s constitutional obligation to end the prison emergency. One day earlier, his lawyers had quietly filed motions to terminate federal judicial oversight over state prisons.
In connection with Gov. Brown’s public pronouncement, California filed two motions: one to eliminate the overpopulation order, and one in which state officials asked to freed from their constitutional obligation to provide better mental health care for the inmates. The two motions had much in common-the gist of both was “we’ve done enough for the inmates”-but neither was supported by reliable evidence indicating that state officials had improved conditions within the prisons enough so as to render the court orders satisfied or irrelevant.
On April 5th, U.S. District Judge Lawrence Karlton rejected the mental health motion after concluding state lawyers didn’t come close to meeting their legal or factual burdens to improve conditions for the inmates: “Systemic failures persist in the form of inadequate suicide prevention measures, excessive administrative segregation of the mentally ill, lack of timely access to adequate care, insufficient treatment space and access to beds, and unmet staffing needs,” the judge wrote. (Here is The Atlantic’s coverage of that ruling.)
Then, last Thursday, the three-judge panel overseeing the overcrowding case rendered a similar ruling. In a unanimous decision blunt in its condemnation of state policies, the judges refused to end their oversight over the state’s prisons-and ramped up their concern about California’s continuing failure to abide by the existing court order. The text of this ruling is striking for two reasons. First, it vividly details how much the judges have done to help California comply. Second, it highlights the dubious positions taken by state lawyers.
“Defendants have already lost this argument,” the judges wrote of California’s request to avoid its obligations to reduce overcrowding, “and they should not be allowed to relitigate it once again… [T]hey have presented very little evidence,” the judges added. “Most of this evidence is irrelevant, as it points to partial compliance with this Court’s Order and not to a resolution of the problems of overcrowding. The remaining, relevant evidence is far too minimal” to prove that “overcrowding is no longer the primary cause of ongoing constitutional violations.”
Then the judges wrote this remarkable passage:
Oddly, defendants appear to read the results of their partial compliance with the Order in a rather unusual manner. They argue that, because the Order thus far has been effective in making progress toward its ultimate objective, we should terminate it, call off the rest of the plan, and declare victory before defendants can meet the Order’s most important objective-to reduce the population to 137.5% design capacity and eliminate overcrowding as the primary cause of unconstitutional medical and mental health conditions.
That is not the way the judicial system, or any other national system, functions. Indeed, the effectiveness of the Order thus far is not an argument for vacating it, but rather an argument for keeping it in effect and continuing to make progress toward reaching its ultimate goal.
The legal rule, the court reminded state lawyers that “parties must comply whether or not they believe a court’s order is incorrect and must do so during any period that they may be contesting its validity is applicable to public and private parties alike.” And then, in case the message was lost on the executive branch, the judges emphasized it before warning that California state officials would be held in contempt if they blew off their responsibilities to the inmates:
That Governor Brown may believe, contrary to the evidence before this Court, that ‘prison overcrowding [is] no longer… inhibit[ing] the delivery of timely and effective health services’ will not constitute an excuse for his failure to comply with the orders of this Court. Having been granted a six-month extension, defendants have no further excuse for non-compliance.
It has been fascinating to watch the arc of Gov. Brown’s reaction to these defeats in court. At first, he pretended that all was well with its prisons.* Ten days ago, for example, following Judge Karlton’s ruling, a spokesman for the governor said, “It’s unfortunate that the judge didn’t give the appropriate weight to reports by national experts who found that [the California Department of Corrections and Rehabilitation] is providing constitutional mental health care to inmates, and in fact is a model for the nation.”
Then, last Thursday, immediately after the three-judge panel rejected California’s attempt to evade the “overcrowding” ruling, the governor got angry. “Jerry Brown defiant of contempt of court threat in prison case,” screamed one headline Friday. “Gov. Brown vows fight with judges over prisons,” screamed another. One such story had him vowing to “litigate until the Supreme Court tells us we’re not on the right track,” which, of course, the Supreme Court “told” California very clearly in its May 2011 ruling.
Gov. Brown was in China when the last week’s ruling was handed down. Clearly someone sensible got to him there following his initial remarks and urged him to tone down his defiant rhetoric. By Saturday, he dutifully began talking like an elected official who wasn’t spoiling for a constitutional showdown after all. “I did speak with my lawyers” about the “overcrowding ruling,” the governor told reporters. “I said, ‘Take a good luck at this stuff… We’ll review it very, very carefully. We take it seriously.”
By Sunday, as reported in the Los Angeles Times, Gov. Brown was telling reporters, “We’ve got to come up with a plan… [the Supreme Court] may not issue a stay.” I suspect the federal judges who issued the order are gratified both that the governor no longer is disrespecting their rulings or expecting the justices in Washington to ride to the rescue. Yet, the governor’s latest comments do little to quell the problem here: California was required to “come up a plan” two years ago and it clearly has failed to do so.
Gov. Brown has a right to be frustrated. The question of how to reduce the state’s inmate population without unduly jeopardizing public safety is terribly complicated-but it is not unsolvable. For decades, California has tolerated an arbitrary and capricious prison system which the federal judiciary has consistently declared to represent an “ongoing constitutional violation.” The solution won’t be cheap. But we are either governed by the rule of law or we are not. And if we are, it’s not up a governor to disobey clear judicial authority.
The Attorney General
A few years from now, if Kamala Harris is ever nominated to the federal bench, and especially if she is nominated to the Supreme Court, she surely should have to answer for the legal work presented by California since the beginning of the year. Gov. Brown was not the first client ever to hold his breath and jump up and down over a bad result in litigation. And, by definition, the work of an attorney general is political in nature. But what’s Harris’ excuse, as a lawyer, for allowing California to file and argue such poorly-conceived motions?
California has legal and ethical standards which may govern here. A lawyer may not present a motion “for an improper purpose, such as to harass or cause unnecessary delay.” In such a motion, the “claims, defenses, and other legal contentions therein” must be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of existing law.” Allegations and “factual contentions” must have “evidentiary support.”
You could make a reasonable argument that California’s work over the past four months skirts these standards. Or you could read the two recent rulings which essentially make that same point. The three-judge panel clearly was not convinced that California offered any facts or law justifying the relief it requested. Judge Karlton’s April 5th ruling, meanwhile, practically accused state officials-including state lawyers-of misconduct because they improperly interrogated mentally ill prisoners without telling the prisoners’ lawyers of the questioning.
Indeed, both federal court rulings that rejected California’s arguments contained language you rarely see in opinions involving state lawyers. That’s why the panel last week threatened to hold Gov. Brown in contempt if California doesn’t solve the problem. And that’s why it will likely be easier than it was the first time for Justice Kennedy to tell his fellow Californians that he wants more action, and less talk, when it comes to prison reform.
The governor may have gotten all the great headlines last week, but the federal courts still have the facts and the law on their side.
*Unrelated to this litigation, but certainly coming at a relevant time for purposes of public pronouncements of the strength of the state’s prison system, the Inspector General of California issued a regular report earlier this month which listed 278 cases of alleged staff misconduct within the state prison system. If the California penal system is a “model for the nation” in any way, it is not likely a good thing for the nation.
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