Judge to state: Share data on prisons

There are some 10,000 of them – internal memos, e-mails, financial documents and the like that have circulated through Gov. Arnold Schwarzenegger's office and on to his corrections and finance departments and other state agencies.

In that electronic mountain of evidence, inmates rights' lawyers hope, will be a smoking gun: proof that inmate overcrowding is the cause of the prison system's constitutional breakdown, that the administration knows it, and that state officials also know their remedies aren't working.

On Thursday, U.S. Magistrate Judge John F. Moulds gave the plaintiffs' lawyers the go-ahead to start digging. Following an hourlong hearing in Sacramento, Moulds denied the state's claims that the documents represented privileged information, and he gave the administration until noon today to turn them over to the plaintiffs.

"We think there are documents in there that they really don't want to give us and that will really be at the heart of the case," said Lori Rifkin, the San Francisco lawyer who successfully argued for the document release. "We think the documents will show that the overcrowding crisis is something the state can't handle."

Schwarzenegger spokesman Bill Maile said after Moulds' decision that the administration would appeal the decision to the three-judge court that was empaneled last summer to consider whether to cap the state's prison population. Such an order could result in early releases for tens of thousands of prisoners.

"We disagree with the court's decision and will immediately file a motion for reconsideration and a request for a stay," Maile said.

The three-judge court has scheduled a Feb. 6 trial on motions by plaintiffs' lawyers in two class-action cases claiming that overcrowding is the main reason for the state's failure to provide constitutionally adequate medical and mental health care in the prison system.

As of Nov. 28, there were 172,132 inmates being housed in California's 33 prisons as well as fire camps, community corrections centers and private, out-of-state prisons. The state's prisons are currently crowded to 197 percent of their design capacity.

In court papers filed before Thursday's hearing, plaintiffs accused the administration of inappropriately claiming executive privilege in withholding the 10,000 documents – about 50,000 pages of information.

According to Rifkin, some of those documents concern the state's progress on Assembly Bill 900, the $7.9 billion legislation enacted last spring to resolve the prison overcrowding crisis. AB 900 promises to build space for 53,000 prison and jail beds and tie many of them to new rehabilitation programs. Administration officials have cited AB 900 as their chief defense in the overcrowding case.

The plaintiffs say some of the AB 900 documents raise questions about the ability of the corrections department to effectively roll out the legislation. The title of one document, for instance, appears to involve a discussion of the "barriers" the bill faces.

According to the attorneys, the documents are "directly relevant" to whether the three-judge court should impose a population cap. They said in court papers that the state has "abused the discovery process at every turn."

Lawyers defending Gov. Arnold Schwarzenegger and the corrections department countered in court filings that the dispute stems from failure to agree on a "joint discovery plan." They also acknowledged disagreement over what the state described in court papers as the administration's "official information privilege," as well as attorney-client privilege and protections that cover the deliberative process.

According to the attorney general's office, the state has provided 70,000 pages of electronic and paper documents to the inmates rights' groups, retained a vendor who has billed it for 1,500 hours in compiling and redacting documents, and deployed more than 100 attorneys from two agencies and a private firm who have spent another 5,000 hours "reviewing and privileging documents in this matter."

"In a document production of this size, the defendants have done the best that we can do," Deputy Attorney General Charles Antonen argued in court Thursday.

But Moulds said from the bench that after reviewing 5 percent to 10 percent of the documents the state was withholding, he was "substantially disturbed" by the state's claims of privilege. The administration, he said, has been holding back documents viewed by "anybody who might have gone to law school," and then claiming attorney-client privilege.

Moulds also said there was no evidence that some officials even viewed the documents in dispute, undermining the state's claims that the papers were part of the deliberative process and shouldn't be turned over.

About the writer:

• Call Andy Furillo, Bee Capitol Bureau, (916) 321-1141.