Criminal Law and Procedure

Prison Blues: Prison Mess Tarnishes Brown's 'CA Comeback'

SNCJ Spotlight

Any day now, perhaps even as you are reading this, U.S. Supreme Court Justice Anthony Kennedy will decide whether to grant California Gov. Jerry Brown's (D) request to block an order by a three-judge U.S. District Court panel to cull over 9,000 prisoners from the state's chronically overcrowded prisons. It will be the latest in a long series of rulings on the overcrowding issue, but this one will do more than decide the immediate fate of the inmates in question. It will also go a long way toward determining Brown's own legacy.

Over the last two years, Brown has done an impressive — maybe even heroic — job of guiding the Golden State back from the brink of its mostly self-created fiscal cliff. In doing so, he has done much to erase the lingering pall clouding his first tenure decades ago. That Brown was a rock star, at 36 the youngest governor in the nation. He was brash, idealistic, unconventional and impetuous, a former Jesuit seminarian who dated Hollywood glitterati and wore his ambition — and his desire to outdo his respected and beloved father, former California Gov. Pat Brown — on his sleeve. He regularly battled with the Legislature, populated with lawmakers who knew and liked his father but who did not trust or much care for him. He pushed and prodded, challenging everybody and everything, thinking big and "out of the box" long before it was part of the lexicon, all of which contributed to Chicago newspaper columnist Mike Royko famously dubbing him "Gov. Moonbeam," an unflattering moniker Brown carried for years.

But California has long been fine with unconventional thinkers. That unto itself did not make Brown's eight years in office from 1975 to 1983 so memorably forgettable. By far his biggest handicap was a seeming lack of interest in actually governing the state. He ran for president three times during those years, the first time barely a year into his initial term. After yet another failed run at higher office, this time for a U.S. Senate seat in 1982 (losing to eventual California governor Pete Wilson), he left political life for several years.

He of course did not stay gone for good. By 1988 he had begun the long trek back to the top of Golden State politics, winding his way through posts as the state Democratic Party Chairman, Oakland mayor and attorney general before reclaiming the governor's office in 2010.

Fast forward to today. Brown's job performance this time around, particularly his handling of the economy, has garnered him almost universal praise and voter support. A Public Policy Institute of California poll released last week shows him with a 54 percent approval rating; lawmakers earned only a 36 percent endorsement. A recent Field Poll also showed Brown at over 50 percent approval.

Now 75, Brown clearly relishes this new persona. He carefully cultivates his new image as the grown-up shepherding a cast of willful, selfish lawmakers and unrealistic voters who want the best public services and yet who, until endorsing his tax hike last fall, seemed wholly unwilling to pay for them. Over the last few months, for instance, he has gladly participated in glowing profiles from the likes of Bloomberg Businessweek, American Prospect, The Atlantic and Financial Times, all while stealthily avoiding the Capitol Press Corps, which might not be as enthralled with his casual use of Latin or quotes from ancient philosophers. He much prefers the out-of-state press praising him as "the adult in the room." And he rarely misses an opportunity these days to take a swipe at the old Moonbeam tag.

"They don't call me Moonbeam any more," the Financial Times piece quotes him saying, allegedly in a growl. "We cut pensions, the equivalent of social security, we cut healthcare, childcare ... we had a tax [ballot measure] and everyone said, that's not going to pass — and it passes! We're getting things done. We're building the foundation for a renewed California."

All of which makes his reaction to the state's ongoing prison mess so puzzling.

For the uninitiated, California's prisons have been the subject of litigation for decades, predominantly over an inmate population that reached 200 percent of capacity in 2007. That growth was a direct result of a steady stream of "tough on crime" measures — particularly those addressing illegal drugs — that began pouring out of the California Legislature in the late 1970s. One of the first: 1976's SB 42, the state's landmark determinate sentencing law, which removed much of the leeway previously granted to judges and parole boards to decide who went to prison and for how long. The idea was to prevent offenders who committed similar crimes from serving vastly different sentences. In that regard it worked well, but it also ensured far more people ended up in prison for much longer periods than ever before. And if you were paying attention earlier, you know who was governor at the time to sign that bill into law.

Hundreds of similar bills followed over the next few decades. So did new prisons. In 1982, California had 12 such facilities; today it has 33. But building and running prisons is very expensive, and lawmakers and the public eventually grew tired of paying for them. The last new facility, Kern Valley State Prison, opened in 2005.

But while prisons stopped coming, inmates did not. By 2006 they were being stacked like cordwood in many facilities, often sleeping in triple bunks placed in what were supposed to be gyms. Under such conditions, inmate health care rapidly deteriorated, spawning lawsuits that led to the federal government naming a special receiver to oversee prison health care. In 2009, the three-judge panel got even more specific: California's overcrowded prisons were in violation of the U.S. Constitution's Eighth Amendment protection against cruel and unusual punishment. The panel ordered the state to reduce its inmate population to 137.5 percent of capacity by Dec. 31 of this year.

One of Brown's first tasks upon returning to office in 2011 was to challenge that ruling before the U.S. Supreme Court. But in a 5-4 decision, the Court rejected his claim. Brown's response was AB 109, the so-called prison realignment plan that initiated one of the most comprehensive sentencing reforms in U.S. history. Under realignment, offenders guilty of committing one of 500 non-violent, non-sexual crimes now do their time in county jails rather than state prisons. Parole violators who commit one of those crimes also go to county lockups rather than back to a state pen, and counties also maintain parole oversight of those offenders. The plan has culled almost 25,000 inmates from the prison population since it went into effect in October, 2011, and by 43,000 since the population's high water mark of 2007. Even so, the system remains at 149 percent of capacity, prompting the three-judge panel in late June to reject yet another Brown request to stay their order while he lobbies the Supreme Court one more time.

And so here we all stand awaiting Justice Kennedy's decision. Citing realignment and a brand new prison medical-only facility recently opened in Stockton, Brown insists the state has done everything reasonable to improve prison health care and reduce the inmate population, short of releasing thousands of dangerous felons into the streets. But that claim is somewhat specious.

For one thing, Brown helped kill an agreement reached under his predecessor, Gov. Arnold Schwarzenegger (R), to sell $7.4 billion in lease-revenue bonds to fund new prison construction. Brown negated over $4 billion of that himself; lawmakers have cut most of the rest. He has also shown no interest in maxing out the number of inmates in the state's prison fire camps or releasing the bulk of the state's over 6,000 inmates age 60 or older, many of whom have expensive health issues that could then be handled through other means. Brown has, however, asked lawmakers for $450 million to help fund keeping around 8,500 prisoners currently in private out-of-state lockups.

Ironically, this all comes at a time when many states not known for liberalism, including Kentucky, Ohio, Indiana, Missouri, Georgia and West Virginia among others, have acted aggressively to reduce their own prison populations through a series of sentencing changes and overhauls of state prison codes. Costs are the main factor, but so is the realization that overcrowded prisons help drive recidivism. Almost all of the states listed here are pushing more money to drug rehabilitation and other re-entry programs aimed at keeping people out of jail rather than building new prisons.

It also comes as California's prisons are beset by entirely new troubles. Valley Fever, a flu-like disease that causes severe respiratory problems, has ravaged some Central Valley prisons. Hundreds of prisoners in other lock-ups are now engaged in a hunger strike in protest over solitary confinement policies, a cause that has caught the eye of Hollywood liberals, threatening to turn some of the state's most heinous offenders into media martyrs.

While no politician wants to be seen as soft on crime, California is no longer in a position to make defiance of the federal order its primary policy in dealing with its prisons. Justice Kennedy was the deciding vote against California's appeal in 2011, and nothing indicates he has changed his mind since. Even if he does grant Brown's request, the prisons will remain at well over capacity. While nobody can deny that Brown and lawmakers have done much to find a solution, much more work remains.

In his annual State of the State speech last January, Brown noted that "The rest of the country looks to California. Not for what is conventional, but for what is necessary." He was not specifically speaking to the prison issue then, but perhaps he should consider his own words in that regard. For if ever there was a time for bucking up and doing what is necessary — and securing a legacy that truly vanquishes the mistakes of his past — it is now.

CRIME & PUNISHMENT: NORTH CAROLINA Gov. Pat McCrory (R) signs SB 683, which among several things changes Tar Heel State law to allow underage prostitutes to be considered victims of sex trafficking and immune from criminal prosecution (CHARLOTTE OBSERVER).

HEALTH & SCIENCE:  ILLINOIS Gov. Quinn signs HB 1, legislation legalizing the use of marijuana for medicinal purposes. The four-year pilot program makes the Prairie State the 20th to legalize medical cannabis use (CHICAGO TRIBUNE).

— Compiled by RICH EHISEN

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