Tulare County officials are unsure of just how a federal court’s order for an early release of an additional 9,600 inmates from the state’s overcrowded prisons would affect Tulare County if it were carried out.
Hoping to block the court’s order to release the inmates, attorneys for Gov. Jerry Brown’s administration filed papers with the Supreme Court on Friday, July 19 asking the Court to delay the releases while it considers an appeal from the state.
Brown intends to ask the Supreme Court to reconsider its 2011 decision upholding the power of an appointed three-judge panel to order inmate releases as a means to reduce overcrowding and thus improve treatment for sick and mentally ill inmates.
Lacking evidence of any substantial improvements in the quality of health care that inmates are currently receiving, legal experts have given the state very little chance of prevailing in the Supreme Court thus paving the way for release of the 10,000 inmates by the Dec. 31 deadline mandated by the lower court.
This is only the latest move in what has been a long-running legal battle between the state and the three federal judges on the panel. The panel was convened in 2007 especially to consider motions from inmate’s attorneys for the release of inmates from California’s grossly overcrowded prisons, some of which had been operating in excess of 200% of their designed capacity.
On Nov. 16, 2009, after lengthy testimony from a bevy of experts from both sides, the panel of federal judges issued an opinion which imposed a population cap of 137.5% of designed capacity, or approximately 110,000 inmates.
The state promptly appealed the ruling to the Supreme Court and lost in 2011 on a 5-4 vote with the deciding swing-vote provided by Justice Anthony Kennedy. Later that same year, AB 109, or “realignment,” was born and the state was able to shed an additional 25,000 inmates by sending lower level offenders to local jails to serve their sentences.
Since 2006, the state has reduced its prison population by about 46,000 inmates, and currently holds about 116,500 inmates in its 33 prisons and various fire camps.
Brown angered the judges earlier this year when he lifted a special proclamation which had allowed the state to shift inmates to private prisons in other states. When the state’s contracts with the private prisons expired, Brown elected not to renew the contracts and instead will bring the almost 9,000 prisoners back to California’s already overcrowded prisons.
In its strongly worded June order calling for the release of an additional 9,600 inmates by Dec. 31, the federal court cited California’s “defiance,” “intransigence” and “deliberate failure” to provide inmates with adequate care. The judges threatened to hold the Democratic governor in contempt if its order is not carried out on time.
If the state can find no other remedy to the problem, the judge’s order requires that the state modify its “good time” credits policy and give every minimum custody inmate two days off for each one served without trouble and to apply the new policy retroactively. If this were the case, an additional 5,385 inmates would qualify for release by the end of December, according to the order. Currently California grants one additional day off for each day served without trouble.
In addition, the order calls for the state to send more inmates to fire camps and parole more sick and elderly inmates while seeking to lease county jail cells where they could house some of the excess inmates. The order also recommends that the state slow the return to California of the out-of-state prisoners.
In the event that the numbers of inmates released through all of these means still falls short of the 9,600 ordered by the Court, the judges ordered the state to compile a list of inmates least likely to reoffend; what it called the Low-Risk List. The remainder of inmates to make up the 9,600 would be taken from this list.
The judges left Brown very little wiggle room stating “We are willing to defer to their choice for how to comply with our order, not whether to comply with it. Defendants have consistently sought to frustrate every attempt by this court to achieve a resolution to the overcrowding problem,” the order states.
- There must be a “reasonable probability” that four Justices will grant certiorati, or agree to review the merits of the case;
- There must be a “fair prospect” that a majority of the Court will conclude upon review that the decision on the merits was erroneous;
- There must be irreperable harm that will result from the denial of the stay;
- In a close case, the Circuit Justice may find it appropriate to balance the equities by exploring the relative harms to the applicant and respondent, as well as the interests of the public at large.
Inmate’s attorney Donald Specter, director of the Berkeley-based non-profit Prison Law Office, filed a 73-page challenge asking the Supreme Court to reject the state’s request for a stay. “Brown,” said Specter, “is an inch away from contempt. He must make every effort to comply immediately.”
Attorneys for the inmates stress that all of the inmates being considered for early release would have been paroled in the next 12 months in any case.
Predictably, elected officials throughout the Golden State have rallied behind Brown’s efforts to block enforcement of the Court’s order citing certain danger to the public should almost 10,000 more inmates be released early to the streets.
In Sacramento, there is bipartisan support for the governor and Republicans are once again clamoring for funding to build more prisons, a call that is likely to gain little traction among the state’s voters. In fact, there are signs that California voters are becoming somewhat immune to the governor’s repeated predictions of public danger and rising crime rates that have accompanied each step that the state has been forced to take under the watchful eye of the court to reduce the number of inmates in the prisons.
In a recent poll of 1,500 registered California voters, 63% of those polled said they favor the release of low level, nonviolent offenders from prisons in order to resolve the long-running issue of overcrowding. The poll, by the USC Dornsife College of Letters, Arts and Sciences and the Los Angeles Times, supports the growing perception of an ongoing shift of the state’s voters away from the decades-long, tough-on-crime approach that led to the overcrowding problem.
Despite a slight uptick in crime throughout the state over the past year, 72% of those polled voiced support for reducing sentences for minor crimes if it would help to resolve the overcrowding issue. The federal court has suggested such a step by the state may be necessary. Fifty-three percent of the respondents, a much smaller percentage than in past years, backed the idea of building more prisons in order to ease overcrowding.
The telephone survey, conducted between May 27 and June 2, has a margin of error of plus or minus 2.9 percentage points. The poll was jointly conducted by a Democratic research firm, Greenberg Quinlan Rosner Research, and a Republican company, American Viewpoint.
In Tulare County, with his department’s resources stretched and strained by the challenges of dealing with several hundred additional “realignment” inmates arriving in the local jails over the past two years, Sheriff Bill Wittman watches and waits, while alluding that even his attitude might be changing just a bit.
“We are very concerned,” Wittman said. “We’ve been watching it very closely. We have no idea of how many of those would return to Tulare County, but the number would be significant. We have absolutely no more room to hold any more; our jails are completely full.”
Although the county has received a promise of $60 million from the state to help build a new jail facility in the Porterville area, no money has yet been received from the state and actual construction is a long way off, Wittman said.
“You know,” Wittman added, “I’m an old time sheriff. You do the crime, you do the time. But I guess after all, that there are limits…”
Tulare County’s chief probation officer, Christie Myer, acknowledges that Brown’s chances with the Supreme Court are “probably limited,” but she welcomes the opportunity to usher in much needed changes.
“It (the realignment process) has been a challenge,” Myer said “however, one of the positive outcomes has been to bring everybody together, seeking effective ways of dealing with the issue of low-level offenders, many of whom need treatment that they just weren’t getting in the state’s prisons.”
“There is not a family in this county who has not been affected one way or another by the issue of addiction to substance abuse,” Myer added, in referring to the issue most prevalent among low-level offenders.
As for the inmates who could be released early if Brown fails to block the Court’s order, Myer stated that “These people were always going to come out. They are just going to come out a bit sooner.” Myer said that she, too, sees a distinct shift among Californians away from the tough-on-crime approach.
“Change can be wonderful,” Myer said, “if it’s slow and steady.”
Gov. Brown’s slim chances of prevailing in his appeal to the Supreme Court may once again rest in the hands of Justice Anthony Kennedy. Kennedy handles all “petitions for stay” originating from the jurisdiction of the Ninth U.S. Circuit Court of Appeals which encompasses California.
Kennedy will be the first judge on the Court to decide on the application for stay. If he denies the application, California still has the option of taking it to another justice on the Court who could decide to issue the stay. The state could theoretically continue to appeal to each justice until a majority of the Court has denied the application. In practice, a petition that has been turned down by any justice and then renewed to another justice is generally referred to the full Court in order to avoid the lengthy process of appealing from one justice to another.
Attorneys for the inmates expect the Supreme Court to respond on the state’s request for a stay within the next three weeks, although the Court could conceivably sit on the request for much longer.