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Criminal Law and Procedure

California Governor Brown Still Not Facing Reality With Prisons


After months of judicial wrangling and failed attempts to avoid it, California Gov. Jerry Brown (D) last week finally unveiled a much-anticipated plan to cull almost 10,000 inmates from the state's overcrowded prisons. But, as has often been the case throughout the Golden State's muddled attempts to fix its prisons, the proposal has created more questions than answers.

In this latest case, it took less than 24 hours for Senate pro Tem Darrell Steinberg (D) to essentially declare the governor's plan dead in the water. Steinberg instead introduced a reform plan of his own, setting up what is shaping up to be a nasty showdown between the state's top elected leaders over one of its thorniest issues with barely two weeks left in the legislative session.

Brown's proposal last Tuesday was in response to a federal court order for the state to make the inmate reduction by the end of the calendar year. California has been fighting a years-long battle against lawsuits that contend its prisons are so overcrowded they cannot provide the proper level of constitutionally-mandated health care, suits the federal courts have consistently upheld. The latest came on Aug. 2 when the U.S. Supreme Court rejected Brown's plea to stay a three-judge federal panel's order to reduce the inmate population from its current level of about 149 percent of capacity down to 137.5 percent. That would necessitate moving around 9,600 prisoners out of state lock ups (See In our view: Prison mess tarnishes Brown's 'CA Comeback' in the Aug. 5 issue of SNCJ).

Brown contends that California has already cut 40,000 inmates from the system since 2006, with 25,000 of those coming since lawmakers adopted his controversial "realignment" plan — which sends most non-violent, non-sexual offenders to county jails rather than state penitentiaries — in 2011. Any further cuts, he says, would require releasing violent criminals that would create a dramatic risk to the public. But in a 6-3 decision, the high court rejected the plea, giving California until Dec. 31 to hit the new inmate population mandate.

But how the state gets there is now very much in question. Under Brown's proposal, California would spend approximately $730 million over the next two years — around two-thirds of the state's rainy day fund — on a variety of measures to meet the population cap. One would send more prisoners into private lockups out of state; another would have the state prison system lease a privately-owned in-state facility that would then be staffed by state-employee prison guards. The latter measure effectively negates longstanding opposition to the greater use of private prisons from the California Correctional Peace Officers Association, the state's politically powerful prison guard union.

Steinberg was notably absent from the governor's press conference, where Brown stood surrounded by a variety of other Capitol power players: law enforcement groups, crime victim advocates, both GOP legislative leaders and, perhaps most critical, Assembly Speaker John A. Perez (D). When pressed about Steinberg's absence and whether the pro Tem supported the plan, Brown would only say, "No, he doesn't."

That was made clear in a brief statement Steinberg issued shortly thereafter in which he called Brown's proposal "a plan with no promise and no hope," saying growing prison capacity without also reforming existing sentencing and rehabilitation policies would be at best a very expensive temporary fix, leading only to more overcrowding and federal release mandates. The following day, backed by a dozen members of the Senate Democratic Caucus, he released his own plan which called for, among several things, settling the state's prison lawsuit with its litigants, allowing a temporary commission to set a prison population cap and establishing a grant program to fund the expansion of county rehabilitation, drug and mental health treatment programs for criminal offenders. The plan would provide counties with $200 million annually for the first two years, growing to $300 million thereafter. The plan, however, also depends on the court extending by three years the deadline for meeting the population cap.

That final tenet is the chief sticking point. Perez and Brown don't believe the three-judge federal panel that issued the population order will go along with any length of extension for getting to the 137.5 percent cap. Steinberg, however, got a huge boost last Wednesday when the Berkeley-based Prison Law Office, the legal team representing inmate litigants, lauded the proposal and said they were open to just such an extension, provided the state was willing to also adopt long-term solutions for easing chronic prison overcrowding.

Although the judicial panel has not indicated if it would accept Steinberg's proposal, he believes strongly that it would. While noting his support for the governor's decision to challenge the court's rulings, Steinberg said it is now time for Brown to stop battling and settle with the litigants.

"Look, we lost the case," he says. "The governor is not sitting down with the plaintiffs, and he must."

But Perez is equally adamant in his doubt the courts will endorse an extension. During a radio appearance last Thursday, he called Steinberg's proposal "well intentioned but wrong." He has also repeatedly insisted that lawmakers will endorse the governor's proposal before the end of the session on Sept. 13, saying it has the votes in both the Assembly and the Senate. The usually affable Steinberg noticeably bristled when asked about this during his press conference on Wednesday, saying "I'm glad he thinks he knows what [the Senate] is going to do." He insisted that the Senate will not pass the governor's plan in its current makeup.

All of which leaves California's prison system in the same limbo it has been in for years.

Tackling highly complex issues in a mad rush at the end of a legislative session is hardly the best way to solve major problems, but it is a process California lawmakers seem to revel in. As with last year's 11th hour effort at public employee pension reform, what results is inevitably less than what could or often should be accomplished.

Whether that happens this year with the prisons remains to be seen. Brown offered an immediate, terse rejection to Steinberg's proposal, saying in a statement that "it would not be responsible to turn over California's criminal justice policy to inmate lawyers who are not accountable to the people." (The Sacramento Bee also reports that Brown laid out his case to the panel last Thursday, which he did without any mention of Steinberg's opposition.)

While such rhetoric sounds good to tough-on-crime advocates, it belies the cold, hard fact that power over the state's prison system has already been turned over to both those attorneys and the federal court system. While Brown's proposal would likely meet the court's immediate demands — presuming the state could physically carry out the plan by the deadline — it would, as Steinberg asserts, almost certainly allow the system to creep back to unconstitutional population levels within a few years.

Brown and Perez claim their plan is a short-term one meant to buy time to develop a longer-term solution that permanently removes California's prison system from federal oversight. But neither offered any details of how that would be accomplished. Given Brown's persistent foot dragging to date, it is hard to take that promise on faith alone. And committing over $700 million from the state's hard-earned reserve fund without details for a permanent fix seems downright irresponsible.

While there is much disagreement among the major players here, there is also one area of unanimity: all swear they are not willing to see even one prisoner released early. That is at least a start. And while Perez and Brown are still in the talking tough stage, Steinberg has indicated at least a willingness to discuss "a principled compromise." But he also made it clear that he would consider what some might consider a nuclear option — sidestepping Brown by taking the Senate plan directly to the judicial panel.

One can't presume to know how that would play out. What seems more obvious is that if the litigants are willing to discuss a settlement that would be acceptable to the courts — as they have said they would — Brown should at least make the effort to listen. Only months ago, he was adamantly opposed to sending more prisoners out of state or into California private lockups, and he was even planning to bring home thousands currently in out-of-state facilities. The reality of the situation forced him to change his mind. Brown is notoriously stubborn, but it might be time for him to do so again.

CRIME & PUNISHMENT: The CALIFORNIA Senate approves SB 255, which would make so-called "revenge porn" — posting nude or lascivious photos or videos of someone on the Internet without their permission — a misdemeanor punishable by a fine or jail time. It is now in the Assembly (SACRAMENTO BEE). • A NORTH CAROLINA appeals court rules that a Tar Heel State law barring sex offenders from accessing commercial social media sites is unconstitutional. State officials say they will appeal to the state Supreme Court (CHARLOTTE OBSERVER). • The U.S. Dept. of Justice announces it will not sue to block new voter-approved state laws legalizing recreational use of marijuana in COLORADO and WASHINGTON, provided those states enact regulations to prevent sales to minors and combat illegal cartel and gang activity, interstate trafficking and violence involving the drug (NEW YORK TIMES).

— Compiled by RICH EHISEN

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