On May 23, the U.S Supreme Court upheld the order of a three-judge federal court, in the case of Coleman/Plata v. Schwarzenegger (now Brown v. Coleman/Plata), that mandated that the state prison system reduce its population to no more than 137.5 percent of design capacity within the next two years. The order had been stayed pending the appeal by the State of California to the Supreme Court. The appeal to the Supreme Court presented the question of whether the remedial order issued by the three-judge court was consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA).
By the three-judge court’s own estimate, the required population reduction could be as high as 46,000 persons. Although the State has reduced the population by at least 9,000 persons during the pendency of this appeal, this means a further reduction of 37,000 persons could be required.
The two-year deadline for compliance begins to run upon final certification of the judgment sometime this week. The State may wish to move for modification of the three-judge court’s order to extend the deadline for the required reduction to five years from the entry of the judgment of this Court.
The three-judge court may also condition an extension of time on the State’s ability to meet interim benchmarks for improvement in provision of medical and mental health care. The three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order.
Alternatives for Compliance
The reduction need not be accomplished in an indiscriminate manner or in these substantial numbers if satisfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs that will mitigate the order’s impact.
Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts. The State now sends large numbers of persons to prison for violating a technical term or condition of their parole, and it could reduce the prison population by punishing technical parole violations through community-based programs. This last measure would be particularly beneficial as it would reduce crowding in the reception centers, which are especially hard hit by overcrowding.
Impact of Ruling on Realignment Discussions
The State has already made significant progress toward reducing its prison population through the development of a realignment plan that provides counties with the flexibility and resources it needs to provide critical public safety services. If appropriately funded, local governments can play a key role in building on this momentum and assisting in the creation of a more robust local continuum of sanctions.
Many affected stakeholders are viewing realignment as a credible vehicle to mitigate the impacts of this ruling by continuing efforts on identifying full funding and constitutional protections to begin implementation of realignment locally.
The timing of the ruling points to the opportunity of the State to mitigate the population reduction order. The ruling today necessitates the collective commitment to continue discussions and implementation on realignment in an effort address the federal order. In doing so, it is imperative that full funding and constitutional protections for public safety realignment be identified. The ruling largely leaves the details to the discretion of the State in order to implement changes in the criminal justice system which creates a constructive backdrop to discussions among the Administration, California Department of Corrections and Rehabilitation and public safety stakeholders. The impact of the decision is still being processed, politically and legally, so there is certain to be more to come.
Nick Warner is managing partner of California-based advocacy firm Warner & Pank LLC, a firm that represents several justice organizations, including California State Sheriffs’ Association, Chief Probation Officers of California, and the California Probation, Parole and Correctional Association.