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Judges Reinhardt, Henderson and Karlton Indicate Plan to Order California to Release About 25% of Its Inmates:
Howard has the links to this very interesting news development here. The tentative order of the three judge panel (all Carter appointees, as it happens) is here.

  This litigation is new to me, but it appears to have been going for a long time. The gist of the order is that California state prisons are terribly overcrowded, and the three judges have concluded that the only realistic way to avoid unconstitutional prison conditions is to force the state to agree to an order substantially decreasing the number of people in the California state prison system: "[G]iven the evidence presented to this Court, . . an order imposing a cap on the prison population and requiring the State to adopt a course of action to reduce overcrowding is warranted."

  Sounds fishy to me, but then I suppose I often have that reaction when the name "REINHARDT" appears on a judicial opinion. I hope someone who has been following this litigation and understands the Prison Litigation Reform Act can weigh in and provide some context and more informed opinion.
josil (mail):
The state is planning to release the prisoners in Judge Reinhardt's backyard.
2.9.2009 10:44pm
Anon21:
Not to be glib, but releasing some (hopefully non-violent) offenders and laying off some prison guards might have at least a marginally positive impact on California's dismal fiscal situation. (Although if the prisons really are severely overcrowded, perhaps they're also understaffed, meaning releasing prisoners would only bring things back into some sort of balance.) In a way, you could even say the Ninth Circuit might be doing California a small favor--breaking the usual political impasse occasioned by anything that might be construed as "tough on crime" and allowing Sacramento to reap the budgetary benefits while avoiding responsibility for the prisoner release.

This obviously has nothing to do with the litigation as such--just an interesting potential consequence that occurred to me.
2.9.2009 10:48pm
Anon21:
Should be "soft on crime" above.
2.9.2009 10:48pm
CrazyTrain (mail):
What I'd like to know is how these 3 judge district court panels are created. It seems odd that two very liberal senior district judges end up on this panel (one of whom is not even from ND Cal), and then the only active judge is the most liberal judge on the Ninth Circuit. Furthermore, it seems that Reinhardt finds himself on a lot of these 3 judge district courts -- I never see the conservative 9th Circuit judges on these courts. I imagine that Schroeder (when she was CJ) was just calling Reinhardt and asking him if he wanted interesting cases and then asking him which district judges he should get on the panel as well.
2.9.2009 10:50pm
Ricardo (mail):
California prisons have been beyond capacity for some time now. The prior strategy was to pay other states (sometimes actually private prison operators in other states) to take excess prisoners from California. I'm not sure if this ruling has implications for the prisoner transfer program but as Anon21 pointed out above, this could actually improve California's fiscal position.
2.9.2009 10:58pm
Cornellian (mail):
If you want to pass a lot of "tough on crime" laws that puts thousands of non-violent people in jail for long periods of time, you have to be prepared to pay for that in terms of prisons and prison guards. You could probably solve the entire overcrowding problem by letting out everyone who's in there for nothing more than nonviolent drug possession.
2.9.2009 10:59pm
TerrencePhilip:
I'm reminded of this classic bit: In the Supreme Court, “there is almost a palpable skepticism for what comes out of the 9th Circuit,” said Vikram Amar, a professor at UC Hastings College of the Law in San Francisco.

“They don’t have any faith that Reinhardt calls it straight. I don’t want to call him a bad judge, but a lot of these decisions are hard to understand,” added Amar, who was a clerk for the 9th Circuit and the Supreme Court.
2.9.2009 11:09pm
Jacob Berlove:
Prof. Kerr,

If you were a judge, and a state has been for a long time on judicial notice for a long time that its prisons have conditions that meet the standard for cruel and unusual prunishment, what would you do? Give the state an infinite amount of time to rectify the problem? If judges cannot issue drastic orders to force a state into compliance, I can't see what else would finally jerk California into doing soemthing when the essentially bankrupt state has up untilnow shown no interest in infusing the large amount of cash needed to et the system back into compliance or been willing to reform its laws so less people sit in prison for less time than before. This article is four years old, but nothing's changed. SO what would you do?
2.9.2009 11:13pm
Oren:
I can't speak to the legal issue, but I suggest that any interested folks watch Ted Koppel take a tour through one of these CA prisons. 2 prison guards, one unarmed, for a whole gymnasium full of prisoners, who are effectively self-governed in racially divided subsections (which would be entirely illegal if the state did, but perfectly fine for the prisoners to do to each others).
2.9.2009 11:18pm
OrinKerr:
Cornellian writes
You could probably solve the entire overcrowding problem by letting out everyone who's in there for nothing more than nonviolent drug possession.
According to this report, current as of 2005, Prop 35 already reduced the California prison population of individuals convicted of drug possession from around 20,000 to about 14,000. Given that the numbers raised by the opinion are more like 40,000 to 60,000, that would be a start but et you only about a quarter or a third of the way.

Jacob Berlove,

I think these California institutional reform cases are tricky. If you're the state, and you've drawn a very liberal judge, you know that there is one world before the trial judge and then another pretty different world on appeal. Your question seems to assume that the state should accept the world of the trial judge, and that it should accept that the trial judge is correct on the law and on the remedies and should not behave in a way that recognizes the appellate picture. Off the top of my head, I'm not so sure that's correct. Of course, this isn't a problem if the judge and the judges upstairs are all on the same page, but I'm doubtful that's the case here.
2.9.2009 11:24pm
GV:
Before anyone attacks what the court has tenatively ruled, you might want to read the ruling. It seems perfectly sensible.

(Also, as an aside, Judge Henderson is one of the most liberal district court judges in the Ninth Circuit. For an interesting story about his past, see here.)
2.9.2009 11:26pm
OrinKerr:
GV,

Yes, I did read the ruling. To my mind, the lack of citations made it quite hard to tell whether it was sensible (in the sense of grounded in law) or not.
2.9.2009 11:29pm
Thomas_Holsinger:
California's public employee unions have made political death threats to state Democratic politicians, so it is looking more and more like the state government will eventually file bankruptcy. If the public employee unions won't bend, they can deal with a bankruptcy trustee.

And I hope it will be Rudolph Giuliani.
2.9.2009 11:34pm
GV:
I wasn't implying that you hadn't read the opinion. (I knew you had, since you linked to it.) Rather, I was trying to pre-emptively respond to the comments (which we all know are coming) that this opinion is wrong because it’s the Ninth Circuit and the prisons probably aren’t all that bad.

What part of the opinion would you like to see more citations? It’s pretty clear that California prisons are drastically overcrowded. The Governor has conceded that to be true. And the evidence as described seems to indicate that the overcrowding is causing constitutional violations. Lots of experts, some of whom had high ranking titles in the corrections industry, confirmed this. Even the state’s expert apparently conceded this to be true. The only real question seems to be what remedy is appropriate. Since the prisons are currently 200% overcrowded, there was evidence that anything over 145% would be unacceptable, and that you would need to reduce the prison population by 40k to reach 145%, I think the remedy the court selected makes sense. Perhaps people can quibble about the exact number. But the number they picked -- and the way they got there -- seems sensible.
2.9.2009 11:37pm
Oren:

And I hope it will be Rudolph Giuliani.

I feel like that would be appropriate punishment for both Rudy and California. Excellent.
2.9.2009 11:38pm
George Weiss (mail) (www):
orin-

i think jacob berlove was asking what the judge should do not what the state should do
2.9.2009 11:43pm
OrinKerr:
GV,

Ah, got it. I was struck by two related things. First, the court's decision that the PLRA allows the remedy to order the state to release prisoners. Second, the court's view that the only realistic solution was such a judicial order. As for the first, I believe the PLRA has a fairly complicated remedies section that has a lot of guidance as to what judges can and cannot do: It's somewhat vague guidance, but it's guidance nonetheless, and specifically restrictions on what remedies judges can impose. Maybe I just missed it, or it was in an earlier decision, but here the court just seemed to wave its hand and say "we think we can do this." As for the second part, the court's sense of the right remedy didn't refer to the statutory limitations on the remedies, which I thought was sort of odd. It seemed like a pretty free form analysis, reasoning from first principles, but I'm not sure the law gives that much power to courts.

I should add a big caveat: I don't know much at all about the law and only read the opinion once, so I may be way off. All corrections most welcome!
2.9.2009 11:45pm
bode:
Beyond overcrowding, the medical care of California prisoners is also suspect. California is fighting that federally-appointed overseer to the tune of 8 billion dollars, and does not appear to be winning. If you'll recall the powerful prison union even threatened to begin a recall against Gov. Schwarzenegger in the past year! There is no question California prisons are overcrowded, run poorly, and worst of all, run inefficiently. There are no great solutions, so I'm not sure this is a case of judicial overreaching. It's a serious problem California has not dealt with, and consequently it's being dealt with for them. I don't think there's much more that can be said: no one is willing to give, so it's breaking.
2.9.2009 11:53pm
OrinKerr:
George Weiss,

If I were a judge, I would try my damndest to follow the law faithfully wherever it took me, without personal bias or ego. But I don't know the law here, so it is impossible to answer the question more specifically.
2.9.2009 11:53pm
GV:
The relevant provision of the PLRA is 18 U.S.C.A. § 3626. Specifically, subsection (a)(3) deals with the power granted to three-judge panels to order the release of prisoners. I think if you look at that subsection, and then re-read the court's analysis, the court's tenative discusses all of the relevant factors. The opinion (I suppose since it's only a tentative ruling) doesn't really do a good job of clearly laying out the framework it is applying. That could be because the parties understood the framework and the court wanted to issue a tenative ruling as soon as possible.
2.10.2009 12:04am
Thomas_Holsinger:
GV,

That is correct. This case has received significant, and IMO surprisingly accurate, coverage in the San Francisco Chronicle. AFAIK, briefing on the subject was requested.
"The opinion (I suppose since it's only a tentative ruling) doesn't really do a good job of clearly laying out the framework it is applying. That could be because the parties understood the framework and the court wanted to issue a tenative ruling as soon as possible."
2.10.2009 12:08am
J. Aldridge:
I had no idea the US Constitution dealt with prison conditions. Must be another Warren Court work of fiction?
2.10.2009 12:11am
ThreeOneFive (mail):
J. Aldridge,

So prisoners don't have the right to petition for a writ of habeas corpus? What about the prohibition against cruel and unusual punishment? I'm pretty certain that is in the Constitution and not a "Warren Court work of fiction"
2.10.2009 12:23am
ReaderY:
Haven't there been an awful lot of prisoner overcrowding lawsuits? So much precedent, in fact, that it can't credibly be called unusual? Because of course if it isn't unusual, it's not cruel and unusual. And if it's not cruel and unusual, it's not unconstitutional.

I don't understand how a nonfrivolous claim of unusualness could stand given the sheer volume of precedent that exists in support of ubiquity.
2.10.2009 12:32am
DangerMouse:
When the judges rule that school conditions are terrible, they order the state to spend money on schools.

When the judges rule that prison conditions are terrible, they order the state to send prisoners home.

They should at least try to be consistent. Or maybe they should've reversed the rulings. Close the schools, spend money on prisons.

Judges make terrible lawmakers. All 3 of these softies should be impeached. Hey, here's an idea: if the feds were able to execute some of the jerkoffs on death row without waiting 40 years for appeals to end, they might have some free space.
2.10.2009 12:38am
BGates:
I imagine that Schroeder (when she was CJ) was just calling Reinhardt and asking him if he wanted interesting cases and then asking him which district judges he should get on the panel as well.
Stacking the panels like that seems like an unusual course of action for what you would call "pro-rule-of-law" judges.
2.10.2009 12:38am
Adrian P (mail):
wrong, they want civil unrest to impose martial law

http://www.youtube.com/watch?v=9HSKvaFC39Q

http://www.youtube.com/watch?v=yFx7lSI8srg

http://www.youtube.com/watch?v=us2CCARwn9I

listen in here

http://www.infowars.com/infowars.asx
2.10.2009 12:58am
I'm no expert, but I have westlaw and insomnia:
Gilmore v. People of the State of California, 220 F.3d 987, 998-99 (9th Cir. 2000) - Discusses the relevant statute, but no application to facts that would be relevant to the instant order.

I couldn't find a case where a court does an in depth analysis of what is required under 18 USC 3626(a)(3) for a panel to grant relief. Some general stuff, but no real specifics.

Having read both the tentative order and the relevant statute, the order seems to track a lot of the statutory language.
2.10.2009 1:14am
Dave N (mail):
I wasn't sure what the appellate remedy is, but it looks like 28 U.S.C. 1253 allows direct appeal (as opposed to certiorari review) to the Supreme Court.

A tentative guess is that at least five Justices will vote to reverse.
2.10.2009 1:53am
J. Aldridge:
ThreeOneFive said: "J. Aldridge, So prisoners don't have the right to petition for a writ of habeas corpus?"

Any of them arguing they are being unlawfully detained?

ThreeOneFive said: "What about the prohibition against cruel and unusual punishment? I'm pretty certain that is in the Constitution and not a "Warren Court work of fiction""

None of these prisoners are being punished under England's laws of treason. The Eighth Amendment has nothing to do with state prison conditions nor does it provide federal jurisdiction. Some state prison conditions were considered horrendous in 1870 but radicals found no jurisdiction over the matter under their newly adopted 14th amendment. To be fair, federal prison conditions were probably worst.
2.10.2009 2:17am
Tony R:
A couple of observations:
- The court seems to conflate health care and mental health care throughout the opinion. I am not sure where the constitutional basis exists for the requirement that a state provide an inmate adequate mental health care. I'm not sure there is even a working definition for what "adequate" mental health care is in or out of prison. I can understand medication/counseling for seriously mentally ill inmates, but beyond that I'm not sure what further the state is compelled to, or should, provide. I would also assume that a majority of prison inmates have some mental health issue which makes application of any order impractical.
- The amount of money we pay per inmate on healthcare has increased dramatically over the past decade+. The quality of healthcare seems to have declined precipitously (although the opinion and articles pointed out by commenters provide no real examples besides vague statistics). I don't trust Sacramento much but they're not throwing the money out the window. It is more likely that the only thing that has increased is Reinhardt's ideal of what the standard of care for an inmate should be.
-The prison-building surge during the 90s focused on putting these prisons in rural areas that desperately needed the well-paying, low-skilled jobs that the prisons would provide. Many of these small communities don't have the medical personnel to sufficiently staff a community clinic let alone 5000 additional dangerous patients. How many psychiatrists live in Crescent City, CA (home of Pelican Bay Prison)? How many dentists? Surgeons? Nurses? Enough extra to provide care to 5,000 homicidal gangbangers? Unlikely. Even if Governor Reinhardt had his 8 billion in funding, that isn't going to get medical professionals to flock to rural areas.
-If these prisoners are released the quality and amount of healthcare they receive will decline. Indigent MediCAL recipients don't get the level of care required for prison inmates (unless you have 14 kids).
2.10.2009 3:34am
Public_Defender (mail):
It's possible that California officials are quietly happy with the ruling. The prison unions have been in control of crime policy, sending more and more people to prison and releasing fewer and fewer to less expensive (but often more effective) community options (like probation, local halfway houses, etc.). Sometimes, government officials welcome court involvement because the court makes the decision that the officials wanted to make, but were afraid to take the public heat for.

I'd love to listen to the conversations between Jerry Brown and Arnold Schwarzenegger about this.
2.10.2009 5:31am
lonetown (mail):
I think releasing 57000 felons into a shrinking job market will NOT have a beneficial effect on the economy.

Unless, of course, your heavily invested in those things we used to lock on our steering wheals in the pre-Bush years.
2.10.2009 6:12am
Mookie (mail):
Just for the info of the group, since the passage of PLRA, there have been very few "prisoner release orders" in the federal courts. Part of the reason for this is the PLRA's requirement that prisoner release orders be ordered only by a three judge court.

A notable example: in Mahoning Co, Ohio, the local govt. dodged a similar, albeit smaller, result, via settlement.

http://tinyurl.com/c8t2gh
2.10.2009 6:14am
Mookie (mail):
Just for the info of the group, since the passage of PLRA, there have been very few "prisoner release orders" in the federal courts. Part of the reason for this is the PLRA's requirement that prisoner release orders be ordered only by a three judge court.

A notable example: in Mahoning Co, Ohio, the local govt. dodged a similar, albeit smaller, result, via settlement.

http://tinyurl.com/c8t2gh
2.10.2009 6:14am
Perseus (mail):
California prisons have been beyond capacity for some time now. The prior strategy was to pay other states (sometimes actually private prison operators in other states) to take excess prisoners from California.

Perhaps der Governator could arrange to outsource the work to Mexico.
2.10.2009 6:54am
T Gracchus (mail):
The judges and the parties are meeting again shortly to discuss the tentative opinion and how the state may respond.
2.10.2009 8:10am
Just a Citizen:
In conjunction with their prisoner release order, I assume the 9th Circuit will also order the State of California to issue AR-15 rifles and 5,000 rounds of ammunition to every household?
2.10.2009 8:46am
Abdul Abulbul Amir (mail):

I served on the USS Kamehameha SSBN642. Crews berthing was in bunks three high. On one side of your bunk was an aisle about 30 inches wide with another set of bunks on the other side. Everyone cannot get out and stand up at the same time. On the other side of your bunk was a 3 inch space and another bunk. At the head or foot of your bunk was a three inch space and another bunk, or if you were lucky a wall.

I would content that overcrowding in prison can never rise to being unconstitutionally cruel if it is less crowded than conditions college students or military members routinely accept for themselves.

OTOH, that is perhaps too much to expect from Jimmy Carter judges.
2.10.2009 9:21am
Houston Lawyer:
There is always the Mexican "black bean" method of reducing prison overcrowding.

Elected state officials often do a horrible job in running prisons and schools. The only people who are worse are federal judges.
2.10.2009 9:45am
Oren:

Hey, here's an idea: if the feds were able to execute some of the jerkoffs on death row without waiting 40 years for appeals to end, they might have some free space.

California's death row has less than 1000 prisoners.

As I've said countless times, State legislatures should be forced to fund prisons at the time they legislate the penalties. If Joe Taxpayer knew that 3-strikes, or some other patent nonsense, was going to cost him a cool million per petty criminal (25 years @ $40k/year), he might think better of it. Same goes for all the other ridiculous penalties that are written into most State penal codes (interestingly, the real monsters like rapists get much more lenient treatment).
2.10.2009 10:15am
Clayton E. Cramer (mail) (www):
The parallel to Wyatt v. Stickney seems interesting. The ACLU's objective with that suit was to destroy the public mental health system, by creating a Constitutional goldplating standard for state mental hospitals. Now, admittedly, Alabama's system was a disaster, something that was completely indefensible. (The director of the mental hospital in question asked to be sued, to force the legislature to do the right thing.) But the net effect was to encourage putting mentally ill people on the streets, where they became a major problem to themselves, and a bit of a problem for the rest of the society.

Forcing major releases from prisons will be far worse.
2.10.2009 10:25am
Clayton E. Cramer (mail) (www):

I served on the USS Kamehameha SSBN642. Crews berthing was in bunks three high. On one side of your bunk was an aisle about 30 inches wide with another set of bunks on the other side. Everyone cannot get out and stand up at the same time. On the other side of your bunk was a 3 inch space and another bunk. At the head or foot of your bunk was a three inch space and another bunk, or if you were lucky a wall.

I would content that overcrowding in prison can never rise to being unconstitutionally cruel if it is less crowded than conditions college students or military members routinely accept for themselves.
While generally in agreement that this definition of "cruel and unusual" has reached absurd proportions (right down to the recent demand for bingo and yoga rooms as part of a proposed new California prison), I would point out that submariners are screened for their ability to live in conditions that might be a problem for many others. My wife would go stark raving mad after a few weeks under those conditions, and I would certainly have a hard time with it.
2.10.2009 10:28am
Clayton E. Cramer (mail) (www):

If Joe Taxpayer knew that 3-strikes, or some other patent nonsense, was going to cost him a cool million per petty criminal (25 years @ $40k/year), he might think better of it.
Yes, he might decide that some of the more serious crimes should be capital. Oh, but liberals won't allow that either.


Same goes for all the other ridiculous penalties that are written into most State penal codes (interestingly, the real monsters like rapists get much more lenient treatment).
While it is true that forcible rape is a less serious crime than violations of some of California's gun control laws (again, the result of liberals), some of the people getting locked for life for three strikes have rape as one of those strikes.
2.10.2009 10:31am
Thales (mail) (www):
Aldridge once again makes a bald assertion about the scope of the Bill of Rights that not even Justice Thomas would support.

Why do you think the *text* of the Eighth Amendment is not applicable to prisons, which are by definition "punishment."

As for the 14th amendment making the 8th Amendment (and also Art. I sec. 9 constitutional habeas corpus, in some plausible views) apply to restrain the states, incorporation is both settled law *and* has a respectable textualist-originalist pedigree. I would suggest you engage with Akhil Amar's work, wrestle with his criticism of Berger and Fairman, and come up with a more compelling answer before you continue to pursue the quaint view that the 8th Amendment only restricts federal punishment of the English crime of treason--incidentally, we have our own law of treason, defined in Article III.
2.10.2009 10:32am
Raffi (mail) (www):
I'm confused by this like others. Doesn't the court (and, indeed, the 3 judge panel) have to at least find that the conditions are actually unconstitutional? I don't see that anywhere in the tentative opinion. Have I missed it, is it assumed or what? Seems very odd.
2.10.2009 10:32am
Thales (mail) (www):
Mr. Amir--one question: Did you voluntarily subject yourself to those conditions, i.e. did you enlist? Were you free to leave at the end of your term of service?
2.10.2009 10:34am
NaG (mail):
At first, before I had read the opinion, I felt like the court was going for the most dramatic remedy without considering less sweeping remedies first. But after reading the opinion, it appears that this has been going on for at least 14 years, with the prisons being in receivership for half of that time, and at this point it is still agreed that there are too many prisoners to provide them with adequate healthcare, and the state has no plans (due to its crashing budget) to allocate more resources to the problem.

Fourteen years after it was first determined that prisoner rights are being constitutionally violated due to the effect that overcrowding has had on prisoner healthcare, there has been no solution, and there is no solution in sight. I guess my question is, if the panel is wrong about the remedy, what other remedy is left?
2.10.2009 10:36am
Clayton E. Cramer (mail) (www):
This appeared in the January 22, 2009 Santa Rosa (Cal.) Press-Democrat:

SACRAMENTO -- California's attorney general asked a federal appeals court Wednesday to block what he described as an extravagant spending proposal for prison medical facilities.

The Legislature has refused to act on the request for $8 billion made by the court-appointed receiver overseeing overhaul of California's prison health care system. Receiver J. Clark Kelso is seeking an immediate $250 million as a down payment.

In his court filing, Attorney General Jerry Brown argued that a federal judge cannot order the money from the state treasury without violating federal law and state sovereignty.

Brown also criticized the receiver's spending proposal, saying it has not been subject to proper review. He said the plan includes regulation-size basketball courts, electronic bingo boards, music and art therapy rooms, and landscaping to hide fences.

Brown cited additional amenities in a news release accompanying his court filing, including yoga rooms and horticulture therapy, that were included in an earlier draft from the receiver's office.
Like I said, the objective is to goldplate and Constitutionalize resort like conditions as a way to get all the violent felons released. That's the liberal goal, and has been for decades. That way they will have room for gun owners and cigarette smokers.
2.10.2009 10:38am
Realist Liberal:
Someone above asked how this panel was drawn. 2 of the 3 judges actually made sense. I'm not sure how Reinhardt was appointed. However, Karlton and Henderson got the case because they were already hearing separate lawsuits on prison conditions. The Prison Litigation Office (yes they really call themselves the PLO) filed two huge lawsuits involving prison conditions. One was specifically about medical care in Pelican Bay which was later expanded to include medical care in every prison. This case was assigned to Henderson right before he went senior status (ironically these two cases are pretty much all he works on now according to a friend of mine who was an extern for him). There was a separate class action for general prison conditions (overcrowding and the alleged violations that went along with that). This was filed against the Governor, the head of Dept of Corrections and the Attorney General so it was filed in Sacramento. This was assigned to Karlton. Because Henderson and Karlton in theory had some understanding of the issues, when the three judge panel was drawn up, they were immediately assigned.

Also, California really backed itself into a corner several years ago. At the time, the strategy they employed was admitting a Constitutional violation and then saying "give us time to fix it." The problem was that they could never fix it to the satisfaction of Henderson (who as noted above is incredibly liberal, his first major case was ruling that Prop 209 which ended affirmative action in public schools was unconstitutional; no matter your feeling on affirmative action that was an incredible stretch) and Karlton (who is also fairly liberal but nowhere near Henderson and Reinhardt). Also, California is no stuck with the concession that there was a constitutional violation. That is why there is little if any discussion of that in the opinion.

For an interesting time, you may want to check out more articles on what Clark Kelso is doing as Henderson's receiver in the medical care case. He is going nuts and demanding money for "spiritual care" such as yoga, aroma therapy and massages. It was that money that the state refused to release that led to the threatened contempt in the article that Clayton Cramer linked to above.

Wow, that was a ridiculously long post, sorry.
2.10.2009 11:17am
ArthurKirkland:
You want a "War," you must be prepared to pay the bill. The War On Drugs might turn out to be as financially costly as it is immoral, hypocritical and counterproductive.

It appears California has been acting unlawfully for more than a decade. Those responsible for correcting the problem have failed to act, likely because they are insulated against personal accountability for their unlawful conduct (which afflicts the innocent and the guilty, despite the willingness of many to avert their eyes from that point, and plenty of people whose offenses did not warrant imprisonment).

The real dope in the War On Drugs is the proponent. If this decision undermines the War On Drugs to any degree, I welcome it.
2.10.2009 11:35am
Rock Chocklett:
I'm guessing (hoping) the lack of citations is due to the fact that this is only a tentative opinion. Once it's in final form, hopefully it will look more like a real opinion -- with a better explanation of the underlying facts and some analysis of the application of the 8th Amendment and the PLRA. Because right now it reads like: "There's a problem and this is the only solution. Here's what we're going to order the state to do."
2.10.2009 11:54am
Clayton E. Cramer (mail) (www):

You want a "War," you must be prepared to pay the bill. The War On Drugs might turn out to be as financially costly as it is immoral, hypocritical and counterproductive.
As a number of people have pointed out in other discussions here, the number of people in California prisons strictly for drug abuse is not high. Jails have lots of inmates awaiting trial on drug charges, or serving short sentences (less than one year) for drug violations. Someone who is sitting in prison for a drug related offense in California is probably there for trafficking, not for use.
2.10.2009 12:29pm
first history:
Clayton Cramer:

It appears that it is Governor Schwarzenegger's administration that installed the first yoga rooms and instituted horticulture therapy for inmates. From the LA Times of February 4, 2009:


Gov. Arnold Schwarzenegger and state Atty. Gen. Jerry Brown have lambasted efforts by J. Clark Kelso, the court-appointed overseer of prison healthcare, to spend $8 billion on a "gold-plated utopian hospital plan" for 10,000 inmates. It features a "holistic" environment with natural light and space for yoga, music, horticulture and art therapy.

On Tuesday, Kelso fired back, saying that the facilities are meant for mentally ill inmates, and that he had simply followed the state's example for treating them. The evidence? Sexual predators forced to live at Coalinga State Hospital, which opened on Schwarzenegger's watch, have access to an electronic bingo board, a state-of-the-art gymnasium with a rubberized floor, a weight room and eight landscaped atriums.
. . .
"They are criticizing their own treatment program," he said. "It does remind me of the poem, 'I shot an arrow up into the air, it fell to Earth I know not where.' Well, the arrow this time is falling on the state's own Coalinga State Hospital, opened by the Schwarzenegger administration in 2005."

I don't think either the administration or the court receiver are trying to construct a 'utopian environment." It is the policy of the state, enacted mostly through initiatives supported by the people, to have extremely long prison sentences for most crimes, and not to construct adequate facilities to house prisoners. Yet, shock of all schocks, the people don't want to pay the bill.
2.10.2009 12:34pm
MartyA:
So, the members of this panel believe that excessive discomfort for convicted criminals is a greater problem than the effect that those same criminals set free on normal society will have? Where is the analysis of the impact on society?
Think of all the California (and federal!) regulations that must be met to do many things in California. Think of the environmental impact studies that must be evaluated before you can build a new golf course, paint your house bright green, raise foreign fish in your stock pond, or build a nucular plant in Los Angeles county.
2.10.2009 12:36pm
RPT (mail):
"Holsinger:

If the public employee unions won't bend, they can deal with a bankruptcy trustee.

And I hope it will be Rudolph Giuliani."

We can at least be sure the Trustee's fees will be stratospheric, and that Bernie Kerik will be part of the deal.
2.10.2009 12:58pm
Jiffy:

The problem was that they could never fix it to the satisfaction of Henderson (who as noted above is incredibly liberal, his first major case was ruling that Prop 209 which ended affirmative action in public schools was unconstitutional; no matter your feeling on affirmative action that was an incredible stretch)


The Prop 209 case was hardly Henderson's "first major case"--he'd been a judge for 17 years already and had decided a number of significant cases.

Also his ruling there was hardly a "stretch." Instead it was a pretty straightforward application of the Supreme Court's decisions in Hunter v. Erickson and Washington v. Seattle School District. One can argue that those decisions are bad law and wouldn't be followed by the Supreme Court now, but if you read the Ninth Circuit's decision overturning Henderson's ruling, you can see what a difficult time it had dancing around them. In fact, the issue is alive again in a case currently before the California Supreme Court.
2.10.2009 1:07pm
Oren:


If Joe Taxpayer knew that 3-strikes, or some other patent nonsense, was going to cost him a cool million per petty criminal (25 years @ $40k/year), he might think better of it.

Yes, he might decide that some of the more serious crimes should be capital. Oh, but liberals won't allow that either.

The proportion of criminals that would be eligible for the death penalty (even assuming Kennedy v. LA is reversed and rape of a child is included) is not sufficient to solve this problem. I support the jury's option of DP, but not for this reason.



Same goes for all the other ridiculous penalties that are written into most State penal codes (interestingly, the real monsters like rapists get much more lenient treatment).

While it is true that forcible rape is a less serious crime than violations of some of California's gun control laws (again, the result of liberals), some of the people getting locked for life for three strikes have rape as one of those strikes.

Which seems funny, in retrospect. Commit a rape, get out in 18 months on parole but then shoplift twice and it's 25 to life. Just bizarre.
2.10.2009 1:30pm
Oren:


As a number of people have pointed out in other discussions here, the number of people in California prisons strictly for drug abuse is not high. Jails have lots of inmates awaiting trial on drug charges, or serving short sentences (less than one year) for drug violations.

The proposition is that the War on Drugs creates a massive amount of "spillover" crime that would otherwise not exist. If true, that would mean that ending it would remove quite a bit more prisoners than those directly charged with drug violations.
2.10.2009 1:38pm
Thomas_Holsinger:
Tony R.,

One of the reasons for escalating prison medical expenses in California is that the Three Strikes law has resulted in a sharply increased number of older inmates with geriatric medical problems. With some exceptions, notably for mentally disordered sex offenders, these guys no longer pose threats to the public and it is just nuts to keep them locked up.
2.10.2009 1:39pm
JoeSixpack (mail):
I think that a fundamental big picture issue here is that we need to find some other acceptable forms of criminal punishment besides fines and sending people to prison. I'm not saying I know what those are, but the current system is unsustainably expensive and not an effective deterrent for people with little or nothing to lose. Maybe bring back the public stockade? Public lashing or paddling?
2.10.2009 1:55pm
Clayton E. Cramer (mail) (www):

The proportion of criminals that would be eligible for the death penalty (even assuming Kennedy v. LA is reversed and rape of a child is included) is not sufficient to solve this problem. I support the jury's option of DP, but not for this reason.
I won't claim that reversal of Kennedy (or more importantly, the Georgia case that limited DP to murder cases) is going to dramatically change things for California. If you go back through California's Penal Code for the 19th century, many violent crimes like rape were not severely punished even then. But telling the average voter that his choice is release a lot of violent criminals, spend a lot of money, or make a lot more crimes capital, and I think I know how the voters will lean.
2.10.2009 2:25pm
Clayton E. Cramer (mail) (www):
Oren writes:

Which seems funny, in retrospect. Commit a rape, get out in 18 months on parole but then shoplift twice and it's 25 to life. Just bizarre.
The theory is that a person who keeps committing felonies is either a slow learner, or has some serious antisocial tendencies, and the society is better off with such a person behind bars.

I've seen the claim that most three strikers become less dangerous in their 40s, and keeping them beind bars is a mistake. Very possibly true. But some of those three strikers continue to be extremely dangerous far beyond that point--for example, the guy who hacked off the 14 year old's arms, and then was convicted of murdering a prostitute in Florida in his 70s. Distinguishing the two categories of repeat felons isn't easy.

If you want bizarre: sale of an assault weapon under California law is more severe in punishment than sale of a live, functioning hand grenade.
2.10.2009 2:30pm
Oren:
TH, this is a rare moment of agreement between us. I'm going to savor it while it lasts.

JSP, you might want to read up on C&U.
2.10.2009 2:34pm
Clayton E. Cramer (mail) (www):

I think that a fundamental big picture issue here is that we need to find some other acceptable forms of criminal punishment besides fines and sending people to prison. I'm not saying I know what those are, but the current system is unsustainably expensive and not an effective deterrent for people with little or nothing to lose. Maybe bring back the public stockade? Public lashing or paddling?
For first offense non-violent property crimes, such as burglary, the solution might be home arrest, allowed out to work, and for some reasonable period of time to and from work, and to get to the grocery store. Progressive states like Georgia have been doing this for years, but California, run by liberals, can't seem to figure out to do this.

There are people that need to be locked up and kept there. There are a lot that should be subject to house arrest, and subject to prison only if they refuse to abide by those rules.

Long-term, the real solution is to work harder on preventing the sexual and physical abuse and dysfunctional family structures that underlies a fair percentage of career criminals. But again, that's a long-term strategy, one that does not bear fruit for decades, and therefore of no interest to politicians, who have to get re-elected every 2 or 4 years.
2.10.2009 2:36pm
Clayton E. Cramer (mail) (www):

The proposition is that the War on Drugs creates a massive amount of "spillover" crime that would otherwise not exist. If true, that would mean that ending it would remove quite a bit more prisoners than those directly charged with drug violations.
I'm familiar with the proposition, and it is true. But what gets left out of the equation is that a lot of violent crimes (murder, rape, child molestation, vehicular manslaughter) and even some economic crimes (robbery and burglary, for example) are the results of the disinhibiting effects of intoxicants. We've got a big problem with alcohol already; legalizing more intoxicants is likely to add to the problem. As much as the violent crimes caused by prohibition? Hard to say for sure.
2.10.2009 2:41pm
Abdul Abulbul Amir (mail):

Mr. Amir--one question: Did you voluntarily subject yourself to those conditions, i.e. did you enlist? Were you free to leave at the end of your term of service?



Why yes I did what I had to do to serve under those conditions, as did many others. There only two kinds of ships, submarines and targets. : )

BTW, the criminals in our slammers voluntarily did what they had to do to get where they are as well. They are also free to leave at the end of their term.
2.10.2009 2:41pm
Clayton E. Cramer (mail) (www):

BTW, the criminals in our slammers voluntarily did what they had to do to get where they are as well. They are also free to leave at the end of their term.
Understood, and yes, we don't have to go too far in making conditions pleasant for criminals, but I think would agree that there are conditions so unpleasant that they would qualify as cruel.

For example, the cells in the Tower of London that are too short to stand up, and too narrow to lie down. I recall reading about the Venetian Republic's solitary cells that were underground, no windows, and only a few inches taller than the prisoner, with no ventilation except through the grate of the cell door.
2.10.2009 2:50pm
Clayton E. Cramer (mail) (www):

I don't think either the administration or the court receiver are trying to construct a 'utopian environment." It is the policy of the state, enacted mostly through initiatives supported by the people, to have extremely long prison sentences for most crimes, and not to construct adequate facilities to house prisoners. Yet, shock of all schocks, the people don't want to pay the bill.
If the Schwarzenegger Administration was constructing prisoners for sex offenders that nice, no wonder money is in short supply. That some state prisons are unnecessarily nice does not make such facilities everywhere a constitutional right.
2.10.2009 3:18pm
Thales (mail) (www):
Mr. Amir:

A clever response, and you have convinced me of the superiority of submariners to lesser sailors. I suppose that I would rebut that you signed up for both the job and the accompanying conditions as a matter of employment or contract, and the criminals (assuming actual guilt, which is largely, but no doubt not quite 100% accurate) voluntarily committed their offenses and gambled that they would not be caught or punished, but did not in any sense consent to punishment as you consented to work. If you doubt that, open the cells and gates and see if they remain for the duration of the sentence.

I am left of the contemporary American center on civil liberties but not "soft" on crime--I think violent criminals should be deterred and punished with long sentences and don't believe much in the concept of rehabilitation. However, in a brief stint as a legal intern for the ACLU, I have visited county jails and state prisons that would truly make you gag. I've seen very conservative federal judges impose decrees on the prisons to provide humane and sanitary space that flippant legislatures simply ignore. Overcrowding past a certain point isn't just inhumane and unconstitutional, it's downright dangerous for the guards and other prison officials and winds up costing the state more money in tort liability and employee turnover than it's worth.
2.10.2009 3:19pm
Clayton E. Cramer (mail) (www):

I've seen very conservative federal judges impose decrees on the prisons to provide humane and sanitary space that flippant legislatures simply ignore.
How much of this is "flippant legislatures" and lack of knowledge? My experience is that ignorance causes far more problems than wilfull inhumanity. Much of what caused the correction of the deplorable state of public mental hospitals after World War II is that lots of conscientious objectors were assigned to public mental hospitals during the war, and they worked hard to make everyone in America aware of how dreadful the situation had become because of the funding problems of the Depression and World War II. (They obviously weren't worried about being fired for blowing the whistle.)

Still, yoga rooms? Prisons don't have to be cruel. But they also don't need to be too nice.
2.10.2009 3:49pm
keypusher64 (mail):
It is my understanding (please correct me if I am wrong) that California cannot declare bankruptcy.
2.10.2009 3:51pm
Thales (mail) (www):
States aren't eligible to declare bankruptcy under the code. They can, of course, default on their debt--this has happened many times, especially in early America.
2.10.2009 4:03pm
Richard Aubrey (mail):
Shouldn't there be--what if there were--an environmental impact statement with citizens rather than trees as the objects of study?
2.10.2009 4:31pm
GEORGE LARSON (mail):
Thales

Military personnel are not free to leave at the end of their enlistment contract. They can be involuntarily extended or called back to active duty after they leave.
2.10.2009 4:42pm
Edmund Unneland (mail):
To clarify this is a three-judge court sitting for both the eastern and northern districts of California. The reason a three-judge court was required (which is now a rarity) is that the Prison Litigation Reform Act requires it when a party (or the court itself) believes a prisoner release order is the only way to remedy unconstitutional overcrowding. The argument was presented to Judges Karlton and Henderson. They both ruled that a three-judge court was indicated, and then-Chief Judge Schroeder appointed them, and Judge Reinhardt to constitute the panel in both Plata and Coleman for both district courts. The request from Judge Karlton for a three-judge court is here.

Does Judge Schroeder lean left? Perhaps she does, and perhaps that influenced her choice of Judge Reinhardt. On the other hand, Judges Henderson and Karlton are at the coalface, as it were, and possibly got as far as they could with the tools at hand. One bit of good news for California is that this helps ensure a quick resolution of the matter, with direct review by the Supreme Court (assuming they note probable jurisdiction).

My question is whether the three-judge court can only speak to the release of prisoners, or may it assume jurisdiction over the entire class-action litigation?
2.10.2009 4:53pm
Thomas_Holsinger:
Well, if California can't declare bankruptcy, things will get mighty interesting here given the control public employee unions have over the Democratic majority in the legislature. The state goverment just does not have the money to pay all the obligations the legislature and governor have created.

At least I'm in the judicial system, which can order that its staff be paid first.

Someday the people of California may wise up. That day has not come.
2.10.2009 6:04pm
R Gould-Saltman (mail):
I'm going to urge that would-be commenters who haven't actually seen the inside of the Cal correctional system, even from "the lawyer's side of the glass", or talked to some folks who've spent time there, should frankly just shut the XXXX up. If you're planning on having that learning experience, make sure your flu, hep and meningitis vaccines are up to date, and decontaminate yourself before hugging your spouse or kids afterwards.

It's not like the CDC hadn't been warned...

AAA: no doubt, conditions on a sub were more crowded, in per capita square feet, than at Folsom, though I suspect they were cleaner. Conditions in monasteries are often more stark, and I know ultra-marathon runners who not only make themselves more uncomfortable, but pay for the privilege, again and again.

On the other hand, you, and the guy next to you in the boat were both there voluntarily, had some uniformity of purpose and discipline, and had been (at least ostensibly) regularly screened as to your mental and physical health, and general lack of major criminality and sociopathy. Imagine throwing into your bunk space a couple of schizophrenic diabetics who'd shot up a bunch of folks in meth lab deals gone bad, and an HIV-HepA-B-and C positive crackhead gangbanger, and imagine how smoothly things would have gone. For good measure, make one of 'em a member of the Aryan Brotherhood, the Mexican Mafia, or some other group of ORGANIZED psychos.
2.10.2009 6:29pm
Harry Eagar (mail):
'Not to be glib, but releasing some (hopefully non-violent) offenders and laying off some prison guards might have at least a marginally positive impact on California's dismal fiscal situation.'

Well, you are being glib. and since these non-violent offenders must mostly have gotten in by stealing, count on them stealing when they're out.

So your glib question rephrased is, let's hope they steal less from the private sector than the public sector saves in upkeep.

Not a bet I'd take.
2.10.2009 6:51pm
Oren:

Imagine throwing into your bunk space [....] For good measure, make one of 'em a member of the Aryan Brotherhood, the Mexican Mafia, or some other group of ORGANIZED psychos.

Actually, the prisoners themselves organize a very rigid system of racial segregation that ensures that you will only be bunked with crazy ****ers with the same skin color as yourself.
2.10.2009 7:18pm
Thomas_Holsinger:
Oren,

You left out that the prisoners control a lot more than the bunking system.

R Gould-Saltman,

Avian flu would certainly resolve the prison over-crowding problem.
2.10.2009 7:47pm
pete (mail) (www):

The state goverment just does not have the money to pay all the obligations the legislature and governor have created.

At least I'm in the judicial system, which can order that its staff be paid first.

Someday the people of California may wise up. That day has not come.


A lot of the obligations were created by the people of California through the initiative process by requiring certain percentages of the budget go to certain obligations.
2.10.2009 9:33pm
J. Aldridge:
Thales said: "Why do you think the *text* of the Eighth Amendment is not applicable to prisons, which are by definition 'punishment.'"

Didn't Cooley say a statute that provides the same punishment for an offense that was provided at common law would hardly be regarded as cruel or unusual?

Thales said: As for the 14th amendment making the 8th Amendment (and also Art. I sec. 9 constitutional habeas corpus, in some plausible views) apply to restrain the states, incorporation is both settled law *and* has a respectable textualist-originalist pedigree.

Geez, the court in Gitlow which started the entire nonsense didn't seem settled at all, but just "assumed" without making any factual inquiry! There is nothing "respectable" about incorporation. If there was anything respectable about it then the majority of the members responsible for adopting the Fourteenth Amendment would not had attempted to amend the Constitution in order to restrain the states from violating the Religious Clause (Blaine Amendment).

Thales said: "I would suggest you engage with Akhil Amar's work, wrestle with his criticism of Berger and Fairman, and come up with a more compelling answer before you continue to pursue the quaint view that the 8th Amendment only restricts federal punishment of the English crime of treason--incidentally, we have our own law of treason, defined in Article III."

Akhil Amar's Fourteenth Amendment conclusions have been so thoroughly debunked by the recorded history of the 39th Congress that only a yoo-yoo would bother. Plus, Bingham's January 1870 Judiciary House Report, in his own words, completely demolishes Amar's contention that Bingham believed the "Privileges or Immunities Clause of the Fourteenth Amendment applied the Bill of Rights to the states."
2.11.2009 5:12am
Public_Defender (mail):
I hadn't heard about the "yoga rooms," but they make sense from a prison-management perspective. They cost almost nothing--basically a warm, empty room. Even yoga instructors are pretty cheap. They could avoid the instructor cost by buying a cheap TV and DVD player.

But more importantly from a prison-management perspective, yoga would give prisoners the opportunity to stay healthy (less expensive medical care). Many find yoga calming (better prison discipline). Yoga teaches discipline (less recidivism and better prison discipline). Yoga doesn't build bulked up muscle (again, better prison discipline). And if prisoners like yoga, the yoga room gives prison officials a cheap carrot and stick (once again, better prison discipline).

Even with a yoga room, prison will still be prison. Prison will still be very unpleasant. Not everything that makes a prisoner's life less bad is inherently a bad idea.

As to the overcrowding, we can argue about whether California should incarcerate more or fewer prisoners (I think California will find that even for many property and violent offenders, community based options can be cheaper and more effective), but California chooses to incarcerate as many as it does now, it has to commit the money to do so with a minimum level of humanity. Given the budget shortfall and the miserable conditions in California prisons, California has three choices--more taxes, cutting other programs, or releasing prisoners and incarcerating fewer.
2.11.2009 6:36am
pintler:

If Joe Taxpayer knew that 3-strikes, or some other patent nonsense, was going to cost him a cool million per petty criminal (25 years @ $40k/year), he might think better of it.


We had a bit of a local flap hear a year or so ago - it turned out that you would typically accumulate several (memory is fading - 7? 11?) auto theft convictions before serving any time in jail (other than time served if you couldn't make bail).

Just manufacturing some SWAG numbers, if a thief steals 25 cars a year, and the average loss is $5000, that's 125K per year. That makes prison for car thieves a bargain.
2.11.2009 8:41am
Abdul Abulbul Amir (mail):
Thales,


...you have convinced me of the superiority of submariners to lesser sailors mere mortals.


See correction. BTW, "submariners" is not how we refer to each other. Better is the coveted appellation of Bubblehead.



Marines, a few good men.




Submarines, all good men.


Sorry for the blatant OT.
2.11.2009 10:21am
Thales (mail) (www):
Aldridge:


"Akhil Amar's Fourteenth Amendment conclusions have been so thoroughly debunked by the recorded history of the 39th Congress that only a yoo-yoo would bother. Plus, Bingham's January 1870 Judiciary House Report, in his own words, completely demolishes Amar's contention that Bingham believed the "Privileges or Immunities Clause of the Fourteenth Amendment applied the Bill of Rights to the states.""

Half of Amar's book on the subject is a pretty exhaustive examination of the 39th Congress and Bingham's remarks--I don't have it in front of me, but I'm pretty sure he looked at the house report you mention--do you have any evidence that Amar was quoting Bingham or others out of context? He and I would agree with you that Gitlow and many other incorporation cases were not exactly intellectually coherent. That doesn't make the results or the idea of incorporation wrong. Basically I think the onus has been shifted by Amar's book to those opposing incorporation as a historical matter (Prof. Kerr mentioned some post-Amar scholarship some time ago that I'm curious to read). As a legal matter, of course, virtually all of the Bill of Rights has been applied to restrain the states--and it's a good thing too.

Mr. Amir:

I will remember the term "bubblehead" the next time I'm in the company of a submarine crewman. I suppose I was thinking of Prince Namor of Atlantis.
2.11.2009 11:33am
Oren:


If Joe Taxpayer knew that 3-strikes, or some other patent nonsense, was going to cost him a cool million per petty criminal (25 years @ $40k/year), he might think better of it.

We had a bit of a local flap hear a year or so ago - it turned out that you would typically accumulate several (memory is fading - 7? 11?) auto theft convictions before serving any time in jail (other than time served if you couldn't make bail).

Just manufacturing some SWAG numbers, if a thief steals 25 cars a year, and the average loss is $5000, that's 125K per year. That makes prison for car thieves a bargain.

I have no problem with the CA legislature mandating more serious penalties for car theft (or whatever) provided they concurrently set aside money to carry out those penalties. If it's really a bargain, the taxpayers should not balk at paying the bill.

Instead, they vote for longer prison sentences and expect the Dept of Corrections to just magically accomplish this.
2.11.2009 11:54am
Oren:
Incidentally, since CA's prisoners are so damned expensive, why don't they just truck them to another State that can do it more economically? Comparative advantage and all that. I'm sure the locals in MT or UT would love to take them at $25k/yr a head for a nice 30% reduction in costs, even after transportation costs.
2.11.2009 11:59am
Clayton E. Cramer (mail) (www):

I have no problem with the CA legislature mandating more serious penalties for car theft (or whatever) provided they concurrently set aside money to carry out those penalties. If it's really a bargain, the taxpayers should not balk at paying the bill.

Instead, they vote for longer prison sentences and expect the Dept of Corrections to just magically accomplish this.
I'm not generally impressed with the overall awareness and intelligence of voters here in Idaho, but compared to what I saw when I lived in California, wow, what an improvement! There is at least awareness that government programs consume money, and you can't just vote for whatever sounds good and expect it to happen without a tax increase.

As a result, one of the continual struggles in our legislature, every year, is, "What programs do we need? What programs do we have to cut to meet the budget?" And a lot of average voters seem to understand that. (Democrats here, much like their California counterparts, just bemoan how "unprogressive" the legislature is for not passing every social program that gets offered.)
2.11.2009 4:08pm
Mike O'Neill (mail):
R Gould-Saltman opines that those lacking a prison visit on their resume should "shut the ... up". By this logic, comments on judicial decisions would be limited to judges. Further, if first-hand experience of prison life is the only basis for permissible comment, then one would expect judges themselves to remain mute.

Back here on planet Earth, however, debate continues to rage. Although prisoner space and health care vary widely between, say, minimum, medium and max-security slammers (which I don't see addressed by commenters here) I agree with his comment that throwing schizophrenic diabetics, HIV-infected gangbangers and members of the Aryan Brotherhood together might well result in -- how does one put it? -- complex social interactions. Point taken.

Yet I wrestle with the notion that freeing these worthies will neither A) increase their access or desire for mental health care, nor B) have positive results for the rest of us. Hey, call me crazy.
2.11.2009 4:57pm

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