The Continued Defense Of The Indefensible

Timm Herdt was on a conference call yesterday with a top official from the Department of Corrections, and that official acknowledged that the plan due to federal judges by midnight today on prison reduction will not meet the goal:

Gov. Arnold Schwarzenegger on Friday will submit to a panel of three federal judges a plan that would reduce the inmate population at California’s overcrowded prisons by substantially less than what the court has ordered, a move that a top prison administrator acknowledged will place state officials at risk of being held in contempt.

Although the final plan will not be submitted until late Friday, administration officials have briefed other parties involved in the court proceedings on its major elements. They said exact projections of how much the prison population will be reduced have not yet been calculated, but the reduction would not lower the population to the court’s standard of 137.5 percent of the prison system’s design capacity.

“This plan will not meet the court’s requirements,” said Lee Seale, deputy chief of staff of the Department of Corrections and Rehabilitation, in a conference call Wednesday with legislative staff members. “I certainly don’t think this panel will be thrilled by this plan. I think we recognize we may be held in contempt.”

Under the plan the state will submit, they will get to around 27,000 prisoner reduction.  The judges want something close to 44,000.

The question is how the three-judge panel will react.  They may mandate a release of enough prisoners to get to that number, at which point the state will challenge the ruling and throw it to the US Supreme Court.  This is precisely was Tough on Crime member emeritus George Runner wants.

Sen. George Runner, R-Lancaster, who has intervened in the court case in the hope of preventing a judicial mandate to lower the prison population, believes the administration is taking exactly the right approach.

“I would like to see the state plan be as easily rejected as possible,” Runner said.

If the administration submitted a plan that came close to meeting the court’s order, Runner said, that could lead to a negotiated compromise. This way, he said, the court will be forced to propose its own plan – one that would set up a showdown before the U.S. Supreme Court.

Where Runner would pitch the “I’m right because I say so” defense.  And with this Supreme Court, who knows, that may work.

We don’t know when the appeal would come in the process.  The Governor’s office seem to think that they can appeal the initial ruling as soon as they offer their alternative plan, while others believe that they’d have to wait for the three-judge panel to issue a final order with the full reductions.  At some point, everyone agrees, an appeal is allowable.  Kevin Yamamura has more.

I don’t want to put this entirely on the Governor, though he’s clearly dragging his feet.  The Assembly forced the weak proposal you’ll see from the Governor today by scaling back the reform plan that would have come closer to the judge’s goal of reducing the population by 44,000 prisoners.  But the Governor didn’t actually have to follow the Assembly in submitting their plan.  They could have come up with one of their own making, putting pressure on the Legislature to conform it.  They chose not to stand behind their own plan and do so.  So while there’s plenty of blame to go around, I think the Governor needs to own this one, although he and everyone else want to take the blame off themselves.

By the end of the week, it will be apparent what all the posturing accomplished: nothing. That may suit lawmakers just fine — they can blame the coming prison reforms on the federal courts rather than taking heat from voters for being insufficiently hard on criminals. But the episode is further evidence that if California’s prison system is a national disgrace, its Legislature is a national laughingstock.

Perhaps it’s not surprising that, in this environment, Schwarzenegger seems to be taking on the characteristics of a dictator. On Tuesday, he rejected the Legislature’s plan to promote renewable energy and said he’d impose his own by executive fiat. He’s on surer legal ground when it comes to the prisons because his actions will be backed by the federal court. But it’s dismaying to watch the state’s democratic procedures break down so thoroughly.

As long as he now appears to be king of California, we humbly beseech our lord and Terminator to finally do the right thing by the prisons. His proposal to the court should be modeled on the one approved by the Senate and include a commission to review the unsustainable determinate sentencing system. Meanwhile, it’s time to drop the appeal to the U.S. Supreme Court of the federal court order so we can get on with the business of fixing the prisons and out of the habit of defending the indefensible.

But that’s not going to happen.  Seeing the Department of Corrections reduce the very rehabilitation programs by $250 million, that even the Assembly plan used as a means to let inmates out for completing them, show how the mission of corrections has been completely lost in this.  What the state is fighting by appealing the judge’s order is their privilege to let people die in jail needlessly in violation of the Constitution.  Today, they will continue to assert that privilege.