A plan for inmate population reduction in California's prisons that was submitted Thursday by Gov. Jerry Brown and his corrections department to three federal judges may be dead on arrival.
Nearly the whole plan depends on the Legislature's approval, and a number of lawmakers on both sides of the aisle said Friday they see serious flaws in it.
Even if the required appropriations and changes in the law were made, it would take some months to get the measures up and running.
In the document containing the plan, it is made clear that Brown is not going to spend any of his political capital getting the Legislature to act.
The plan was submitted to the accompaniment of loud protest by Brown and Corrections Department Secretary Jeff Beard, and only because the three judges threatened them with severe discipline if they refused.
The 46-page document is labeled the response to the court's order to produce a plan, but its overarching message is that the three judges are just plain wrong to keep pushing for a further cut in population. It contends that the underlying problem of abysmal inmate health care which the judges found in 2009 is caused by overcrowding has been solved.
The judges have not given "full or fair consideration to the substantial evidence showing the quality health care system that now exists," the document says. Consequently, the state is "preparing an appeal to the United States Supreme Court."
The high court heard the state's appeal of the 2009 reduction order, but sided with the three judges in 2011.
The three judges agree much progress has been made since they decided after a 2008-09 non-jury trial that California's prison health care was so bad as to be unconstitutional. But they believe the problem still is unsolved, based on evidence presented by inmates' lawyers and reports from court-appointed overseers.
All but one of the measures discussed in the plan "would require the Legislature's approval to implement," Thursday's document emphasizes. "The court's 'best efforts' directive certainly cannot mean that the governor must advocate for the Legislature to pass measures that would jeopardize public safety or the population reductions achieved under realignment."
The document strongly defends Brown's realignment program, which shifted responsibility for incarceration and parole of low-risk offenders to counties, but says further realignment would burden "already strained counties."
In blunt but polished remarks at a news conference Friday, Beard told reporters the plan was submitted "to avoid contempt of court charges but we are doing so under protest."
The court U.S. District Judge Lawrence K. Karlton of Sacramento, 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt of Los Angeles, and U.S. District Judge Thelton E. Henderson of San Francisco wants the population of the state's 33 adult prisons reduced to 137.5 percent of design capacity by Dec. 31.
Beard said the judges are working off an outdated model of one inmate per cell, and are ignoring recently added health treatment space and a large, new health facility in Stockton that will come on line this summer.
The court directed that the inmate population be reduced to roughly 110,000, down from more than 160,000, about 200 percent of capacity. As of April 24, the prisons housed 119,506 inmates 149.5 percent of capacity and the judges are insisting on a cut of another 9,500 inmates by the end of the year.
It can't be done, Beard said Friday. But, he said, if the Legislature goes along, his department can come close.
"Any further forced reduction in our population is unnecessary and unsafe," said Beard, a veteran penal executive.
The state filed a motion in January asking that the court vacate or modify its 2009 order. In a ruling April 11, the judges denied the motion. The same day, they gave state officials 21 days to produce a plan.
"This plan is ugly," Beard said. "We don't like it. But, considering the inmates we have left in our prison population, it is the best plan that we could come up with. It is the best of the worst."
The first component, which accounts for about 90 percent of the plan, is an increase in capacity. It will be accomplished by continued use of out-of-state facilities, maxing out the number of inmates at fire camps, contracting with county jails for additional beds, and eventually leasing more in-state beds.
The second part is an increase of some credits for certain inmates. Beard promised this will include no violent offenders, it will not be retroactive and there will be no further realignment. He said these inmates will be on state parole when released and sent back to prison if they fail.
The third component involves loosening the criteria for medical parole and creating parole for some elderly prisoners. Beard explained that eligible inmates will go through a review by the Board of Parole Hearings, and those released will go on state parole and return to prison if they violate its terms.
Together, he said, the three measures fall about 2,500 inmates or about 2 percent short of what the court wants.
But, he added, "This plan will allow us to meet the court's target in 2014. There was simply no way to meet the court's number by the end of this year without adding more responsibilities on the counties, jeopardizing realignment, and adversely affecting the public's safety."
All but the increase in fire camp populations require legislative approval, either because the law would have to be changed or more money would have to be appropriated.
But the plan doesn't have fans in the Legislature so far.
Senate President Pro Tem Darrell Steinberg, D-Sacramento, said Friday he doesn't see the Senate passing the required legislation.
"I'm sympathetic with the governor here," Steinberg said. "He put out these untenable choices under protest, but I'm not for that."
Aspects of the plan that would allow more inmates to be released, such as expanding good behavior credits for felons, are not "consistent with public safety," he said. Contracts with counties or building to increase prison capacity also do not make sense, he added.
Steinberg said he would rather increase funding for rehabilitation programs an option, he said, that could provide stable, long-term population cuts.
"The federal courts don't have to consider the very true dilemma that if we spend more money in building more prisons or jail beds, that's less money to invest in mental health, substance abuse, treatment and vocational training for parolees and probationers," he said. "The key is to reduce recidivism, not to keep building more capacity."
Republicans were also critical of both the court's stance and parts of the plan, but for different reasons.
Sen. Jim Nielsen, R-Gerber, who is considered knowledgeable on prison issues, said: "I appreciate the governor standing up to the court, certainly. However, this is not a plan. What I insist we have is a comprehensive overhaul of the entirety of the realignment program, which is a disaster, and present that to the court."
Nielsen wants the state to scrap Brown's idea to build a high-speed rail system and use the savings from the reduction of debt service on bonds issued for that project to build more prison facilities.
"Not only do we need more prison space, we need absolutely more jail space and substantial monies to rehabilitate existing jails for whatever state inmates and parolees would be occupying those jails," he said.
Nielsen said the part of the plan related to good-time credits will have the state "dumping a lot more dangerous individuals" on the streets, and expanding inmate eligibility for firefighting could lead to more altercations within the camps and more prisoners running away. He was also critical of releasing elderly or infirm inmates.
"We're going to take more infirm, ill inmates and send them back to the counties. Now they're going to be the burden of our local communities. It's just another step of dumping the state's problem on the counties rather than the state dealing with it.
"First you have to fix the justice system and ensure the safety of citizens before you get into rehabilitation."
STATE'S ANSWER TO COURT ORDER
The California Department of Corrections and Rehabilitation's blog, cdcrtoday.blogspot.com, highlights some of the actions the state may take to reduce its prison population. Almost every proposal would require legislative approval.
Expand the capacity of fire camps: By expanding fire camp capacity, the state estimates it could reduce the prison population by 3,750 inmates by Dec. 31.
Slow the rate of returning out-of-state inmates to California: The Legislature could appropriate funds to slow the return of inmates housed in private prisons in other states. As of December 2013, the existing appropriation allows for 4,596 inmates to be housed out of state. The Legislature could expand the program to house 8,165 out of state.
Lease beds from county jails and other facilities where there is sufficient capacity: The Legislature could appropriate money to lease private prison space in California. Privately run prisons are not secure enough to house prison inmates and would need to be retrofitted, the state says.
Increase good-conduct credit for nonviolent inmates: If inmates in minimum custody were to have their credit-earning rate increased to the same level as those in fire camps, the state estimates an inmate reduction of 148 inmates by Dec. 31.
Expand medical and elderly parole: Corrections Secretary Jeff Beard said eligible inmates would go through a review by the Board of Parole Hearings, and those released would go on state parole.
Source: State Department of Corrections and Rehabilitation
Call The Bee's Denny Walsh, (916) 321-1189.