Bee Capitol Bureau

Two federal judges tasked with overseeing California's troubled prison
system have decided to create a three-judge judicial panel charged with
setting a population cap for California's prison system.

The decision, by U.S. District Court Judges Thelton Henderson and
Lawrence Karlton, is to create a three-judge panel empowered to force
the early release of thousands of prisoners from the California system.

Lawyers for state prisoners have appealed successfully to the judges
that inmate overcrowding is contributing to constitutional violations
of inadequate medical and mental health care in the state's prisons.

"There is no dispute that prisons in California are seriously and
dangerously overcrowded," wrote Karlton in his decision, released
Monday.

The three-judge courts were created as a component of the Prison
Litigation Reform Act signed in 1996 that was designed to restrict the
power of a single federal judge to order early inmate releases from
jails and prisons.

Once empaneled, the three-judge courts can order early inmate releases
only if there had been an earlier finding of a constitutional
violation, if the defendants failed to fix it in a reasonable amount of
time and if they found that overcrowding is the main cause of the
problem.

Before they order the early releases, three-judge courts must first
hold hearings in which interveners that include legislators,
prosecutors and county jailers are allowed to file briefings and
testify. Republicans in the California Assembly have said they plan to
intervene if a three-judge court is empaneled.

Only two such panels have imposed early release orders, one in Youngstown, Ohio, and the other in Washington, D.C.

Inmates rights lawyers filed motions Nov. 13 requesting the three-judge
courts in California. They characterized a prison population cap as a
last resort for a prison system that had failed for years to bring its
medical and mental health systems into constitutional compliance.

A key exhibit in their initial filing was Gov. Schwarzenegger's
declaration on Oct. 4 that overcrowding had created an emergency in the
prison system that as of July 4 housed 173,017 inmates in space
designed for about half that many.

The plaintiffs attorneys said in court papers that the "maximum, safe
and reasonable capacity" for the prison system is 137,764, a figure
they culled from the Corrections Independent Review Panel report
commissioned in 2004 by Schwarzenegger and chaired by former Republican
law and order Gov. George Deukmejian.

If a three-judge court agrees with the figure, it would mean the
release of more than 35,000 prisoners. Attorneys have said the number
could be achieved by parole changes that would eliminate the return of
truly technical parole violators and by releasing low-risk offenders
within 15 days to a month before they would have gotten out anyway.

Assemblyman Todd Spitzer, R-Orange, said he will intervene in the case
by objecting to any population cap on prisons once the three-judge
panel is named. He was disappointed the judges agreed to form the panel
but said the upside was that it gives the Legislature legal standing in
the case.

"If these judges go ahead and order early release, all it does is
jeopardize public safety," Spitzer said. "It makes a statement to
people on the street that all you get is a slap on the hand. It would
make a mockery of the entire judicial system."

But Michael Bien, one of the plaintiffs' lawyers, said the judges'
ruling moved California closer to resolving its prison overcrowding
problems.

"I think it's a very historic step in an effort to bring California's
prison system back to constitutional levels," Bien said. "It's out of
control. It's plummeting over the precipice, and this is the first step
in a process to bring the kind of remedies that are necessary."

Bien said the judges agreed with him that a legislative solution signed
by the governor in April does little to change the system. Under
Assembly Bill 900, the state plans to build 53,000 new prison and jail
beds at a cost of $7.9 billion, as well as enhance and improve its
rehabilitation programs and transfer as many as 8,000 more inmates out
of California.

"AB 900 is not only not a solution to the overcrowding problem, but it
aggravates the problem," Bien said. "Expanding the prisons, which is
what AB 900 does, makes the problem worse, not better. There's nothing
in AB 900 about staffing. There's very little about treatment space. We
think AB 900 really does nothing to address overcrowding and certainly
does nothing in the next several years. It served political purposes,
but it did nothing to address overcrowding in my mind."

Spitzer disagreed. He said the courts should allow AB 900 more time to take effect.

"We should now be given the opportunity to implement AB 900," Spitzer
said. "It's not for a three-judge panel to question prior to
implementation whether it will resolve the issue of overcrowding. We
have taken more than a good-faith effort to act on overcrowding."