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‘Mass incarceration now, tomorrow, forever’: Gov. Jerry Brown and the politics of court bashing

Jonathan Simon, professor of law | April 16, 2013

Just about two years ago, in May 2011, the US Supreme Court in Brown v. Plata 131 S.Ct. 1910 (2011) upheld what Justice Scalia called the “most radical court injunction in our nation’s history.”  The injunction imposed by a special 3-Judge federal court in August 2009, required California to reduce its prison population by some 40,000 prisoners, to a level approximating 137% of its design capacity.  The State responded with a package of legislation known collectively as “realignment” and has been bragging about its success in achieving court benchmarks since Fall 2011.

However, starting in January of this year, Gov. Jerry Brown, apparently emboldened by his electoral victories last November, has engaged in a campaign of provocation and defiance of the courts.  Comparisons with the post-Brown v. Board of Education era of “massive resistance” by Segregationist states and governors are not only plausible, they scream out.  Consider one of the final paragraphs in the April 13, 2013 Opinion and Order of the special 3-Judge Court in a decision completely and angrily rejecting the State’s motion for that court to vacate its August 2009 order:

Finally, this Court observes that the prison overcrowding crisis has plagued California for over twenty years and defied the efforts made in good faith by Governor Brown’s predecessor, including Governor Deukmejian and Governor Schwarzenegger.  Fully aware of this context, the Supreme Court affirmed this Court’s determination…Accordingly, Governor Brown has a duty to exercise in good faith his full authority, including seeking any changes to or waivers of state law that may be necessary to ensure compliance with the Supreme Court’s judgment.  See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958), United States v. Barnett, 376 U.S. 681 (1964)

This is an extraordinary public slap down of a sitting chief executive.  The members of the special  court, two of whom have wrestled with California’s penal bureaucracy for nearly two decades in an attempt to improve medical and mental health care in prisons, and have seen more than four other Governors in office, clearly view Brown’s conduct as marking a new low in non-compliance for a state that has been operating prisons in open defiance of the Constitution since 1995 (or by some measures since 1976).

The two cases cited are more than pedestrian precedents and are from the era of what historians call “massive resistance,” when Southern governors competed with each other to denounce the Supreme Court’s Brown v. Board of Education decision and to “interpose” themselves between citizens and the school desegregation orders of federal judges.  Cooper, is perhaps the most famous modern civil rights case after Brown.  In this unanimous opinion, actually signed by all nine members of the Supreme Court, the Court rejected the position of Arkansas Governor Orval Faubus, that he had the authority to block implementation of a court ordered school desegregation plan in order to protect the public. United States v. Barnette involved a similar confrontation with another of the most infamous segregationist governors of that era, Mississippi’s Ross Barnette.

That California Governor Jerry Brown should end his long career as a modern Democrat, in the Constitutional company of these infamous Southern Dixiecrats is another mark of how transformative the “war on crime” has been to American democracy and the real costs of “governing through crime.”

Brown v. Plata and realignment

To recall the context, California is nearing the end of  what amounts to a four year period to reduce its prison population to a 137% of design capacity (yes, the courts considered requiring the elimination of overcrowding but decided that would go further than the minimum absolutely required to remedy the constitutional violations).  That order, first issued in August 2009, reflected court frustration with over (by then) a decade of efforts to improve mental health and medical care in the sprawling and overcrowded system.  In 1995 found California prisons violated the 8th Amendment bar on cruel an usual punishment because they lacked all dimensions of a minimally adequate mental health system.  In 2002 the State conceded that its prisons violated the 8th Amendment because of the lack of medical care. In each case the degree of violation was extreme with dozens of individuals every year dying or suiciding because of unmet medical or mental health treatment.  Seven years later, the special 3-Judge Court decided that these extreme constitutional violations would continue unless the State was compelled to reduce the chronic overcrowding that in the view of the court, made any reforms impossible to implement.  California, despite building 22 new prisons in the 1980s and 1990s, had been packing its prisons to well above 200% of design capacity more or less continuously for nearly twenty years (that term is noted by the Plata Receiver Clark Kelso in a report cited at p.42 of the Order and Opinion).

When California appealed the 3-Judge court’s population reduction order to the Supreme Court, the majority made utterly clear the Constitutional obligations that underlie the enterprise of incarceration.

To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’ ” ….Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.

While four Justices dissented, they did so because of their expressed concern that the population reduction order might endanger public safety; not because they could defend California’s prison conditions.  For a while it seemed as if the completeness of the State’s legal defeat, and the stinging moral tone of the majority’s condemnation of practices incompatible with “civilized society” was having an effect.  The legislature quickly passed a plan calling for many of the kinds of reforms that the 3-judge court recommended, including diverting parole violators and low level felony offenders away from prison and into county court systems.  The website of the CDCR became festooned with links showing the efforts and progress toward meeting the court’s orders, with lower populations marked in flashy graphics in safety green.

The penal empire strikes back

Something happened, however, toward the end of 2012.  In October, anticipating potential difficulties with California making its population targets for 2013 (which was supposed to see the state hit 145% and finally the level of 137.5% which has been affirmed as establishing a constitutional level for the specific purposes of this litigation), the 3-Judge Court asked the State and the lawyers representing the prisoners to develop plans to achieve compliance “without adverse impact on public safety,” (that being a requirement of the Prison Litigation Reform Act which already puts a heavy thumb on the judicial scale against releasing prisoners).  In early January the state launched what can only be described as an offensive against the courts with the self proclaimed objective of re-establishing “full state control” over the prison system.

  • On Jan. 7, 2013, the state simultaneously filed motions in the Coleman case (the mental health case) and the combined Coleman-Plata case (the population cap case) seeking to terminate ongoing proceedings.  The 3-Judge Court had clearly been expecting a motion from the state for delay or modification of the population plan, but this motion called for a complete termination of the order (and presumably the 3-Judge court itself which only came into existence to consider the necessity for a population order).  These were, in short, extraordinary motions, ones that, in effect, denied California was any longer in Constitutional arrears and telling the courts to take the equivalent of a hike.
  • The Governor combined these legal filings with a flurry of press statements in which he declared that as a result of spending billions, the prison system was now among the “finest in the nation.”  Speaking of mental health, a topic on which the Supreme Court had been particularly moved at the loss of human dignity in California prisons, Brown proclaimed prison mental health care far better than that in the community, and at the highest standards for prison care in the world.
  • On January 8, 2013 Governor Brown terminated his own emergency powers over the prison system that had been in effect since Governor Schwarzenegger had declared the state of emergency in 2006 to deal with epic overcrowding.  The powers included authority to house prisoners in private and public facilities out of state.  In his statement, A Proclamation by the Governor of the State of California, Brown declared that “prison crowding no longer poses safety risks to prison staff or inmates, nor does it inhibit the delivery of timely and effective health care services to inmates.”  As the 3-Judge Court noted, this effectively placed the Governor as denying the factual predicate on which the population reduction order had been put in place to begin with.
  • Later in the month when the state turned in the regular status report that it was required to do as part of the Coleman-Plata case, the state indicated bluntly that it planned to take no further steps to comply with the courts orders.

Legal defeat, political victory?

This month both Judge Karlton in the Coleman case, and the 3-Judge Court in the Coleman-Plata case issued their opinions on the motions to terminate.  I will write later about Judge Karlton’s very strong opinion in Coleman.  The State’s positions on mental health turned out to be humiliatingly erroneous.  For example, as of the latest available statistics, California’s prison suicide rate remains well above the national average (for prison suicide) and more or less where they were when the population cap order was affirmed.  Suffice it to say for now that in both cases the legal position of the state was completely routed and declared to be nearing the borders of frivolity.  Here I will comment a bit more about the Coleman-Plata opinion before turning to the question of political motivations.

One of the oddest features of this litigation is the fact that the State’s legal position in their own provocative motion to vacate, changed dramatically even during the pendency of the motion (leading to a bizarre series of motions and cross motions).  In its initial motion, the state took the position that the population reduction order should be terminated because the underlying constitutional violations of inadequate mental health (Coleman) and medical care (Plata) had been resolved.  In February, after the 3-Judge Court had issued an order staying their motion, and requiring them to advise as to whether or not the defendants intended to file a parallel termination motion in the Plata case (consistent with the Coleman termination motion), the state came back and asserted a different ground altogether for its termination motion. Abandoning the claim that constitutional violations no longer existed, they now asserted that due to its success in reducing overcrowding, overcrowding was no longer the “primary barrier” to rectifying constitutional violations (which may or may not exist apparently from the State’s perspective).

On these terms the Court accepted the motion and rejected it on every conceivable point.  The State had the burden of proving by a preponderance of the evidence that overcrowding was no longer the primary barrier.  The State’s evidence consisted essentially large of assertions that things have gotten a lot better under Brown.  The State offered the opinion of one of the prisoners’ former experts, now the new Secretary of Corrections for California (and thus a Defendant), that overcrowding was no longer the primary problem in fixing health care problems.

The State pointed to the fact that the infamous “bad beds”, the hallways and day-rooms filled with double and triple bunks that became the symbol for the extremity of overcrowding were gone by the end of 2012. The State pointed to audits of the state prisons showed that some which had high levels of overcrowding nonetheless had relatively effective health care delivery, while others with less overcrowding had greater delivery difficulties.  The State also relied on the fact that neither the Receiver appointed by the Plata court to oversee reform, or the Master, appointed by the Coleman court, had mentioned overcrowding in their latest reports to their respective courts (unfortunately for the State both filed briefs on the motion to vacate directly contradicting the State’s position).

The State’s legal position was rejected completely and overwhelmingly.  At the heart of the matter was the State’s insistence that its success in driving overcrowding down under the Realignment plan meant that the basis for court intervention was now removed and no further justification for preemptive judicial oversight any longer existed.  As the Court pointed out with understandable frustration, the only reason the State undertook Realignment was to comply with the Court’s order and that the reduction in steps was precisely the point of the two year (now stretched to nearly four years) order and not a reason to conclude it was no longer necessary.  Indeed, the Court pointed to the State’s own eagerness to increase the population through repatriating out-of-state prisoners to indicate that current population reductions did not yet suggest the State had reached a “durable remedy.”

The State does not walk away empty handed.  The 3-Judge Court effectively gave the state an extension until Dec. 31, 2013 to achieve 137% of design capacity (which had previously been due in June), but it was an expensive way to get a modification that the Court was almost certainly willing to give the State anyway.  In an extraordinary section on compliance the 3-Judge Court openly questioned the Governor’s good faith and threatened him with spending New Years 2014 in jail for contempt if the latest orders are not complied with.  The State has promised to appeal to the Supreme Court, but its almost certain to lose in Coleman and win only what it already has in Coleman-Plata (that is a modification of the plan).  The State’s bizarre set of legal maneuverings are either a sign of deep incompetence in the Office of the Attorney General, or a sign of politics trumping law.  Because the AG’s office is by no means incompetent, we can assume the latter.  But what explains this?


I admit that the politics of Governor Brown’s court bashing have long puzzled me.  Jerry Brown might seem to have clean hands on mass incarceration and be well placed to offer realignment as a sensible corrective to California’s overblown punitive policies (most of which he is not identified with).  Yet the Governor’s personal commitment to court bashing has convinced me otherwise. Here are a few speculations on what may be going on.  (This is the history of the present, so pardon me in advance for getting it wrong).

  1. Follow the money?  The Governor’s offensive was anticipated in Spring 2012 with a glossy new CDCR brochure The Future of California Corrections: A Blue Print, which promises to “save of billions of dollars,” “end federal court oversight” and “improve the prison system.”  The order is clearly not random.  One explanation for the Gov’s efforts to bum-rush the courts out the of the way, is that he hopes he can do Realignment and prison reform even cheaper if human rights is not part of the equation.  The fact that the State trumpeted its interest in bringing nearly 10,000 California prisoners home from out-of-state mostly to save money (currently being spent on paying for out-of-state prisons) undercut its motion to vacate because it suggested that even current overcrowding reductions might be reversed as soon as the State could get away with it.  Thus it is possible that this is all part of a budget-above-all strategy; but if so it’s a misguided and expensive one (in legal costs).  In the long run, an effective alternative to mass incarceration is not going to mean big short term cost savings for the State (or perhaps any at all).
  2. As it was for Orval Faubus, Ross Barnette and George Wallace, losing to the federal courts may just be another way of winning politically for Jerry Brown by cashing in on the populist appeal of “interposing” oneself between the frightened public and demonized activities linked to the elitist federal courts, like school integration or early release of prisoners.  On this scenario, Brown knows that he is going to have to cross the biggest river yet in population reduction by actually reducing the sentence of a currently serving prisoner (the boogey man of “early release”), something realignment scrupulously avoided).  This will result in a great deal of public concern and if there are publicized crimes, possible political damage.  From this perspective, this entire performance is a kind of court bashing insurance bought against populist backlash.  It worked for Faubus, Barnette and Wallace, who gained near immortality in office.
  3. It is possible that this is really about the penal bureaucracy and demonstrating the Governor’s loyalty to a penal culture anchored in trauma  and seething with hostility toward human rights for prisoners and the courts that enforce them.  This history  began with the infamous “adjustment center” uprising of Aug. 21, 1971.  During that violent day, in events that remain shrouded in dispute, prisoner leader (and Black Panther) George Jackson briefly took over the security wing of San Quentin and with collaborators killed several guards and prisoners before Jackson died in hail of bullets (some say he was set up for assassination).  That trauma remade California corrections, gutting any remaining loyalty to the rehabilitative penology, and placing the nascent prison officers union on a war-footing.  Governor Brown inherited this trauma during his first stint in the office from 1977-1983, during which time he added to it by approving the Determinate Sentence Law that removed any remaining legal mandate for rehabilitation, removed parole as a release mechanism from prison, and made punishment a meaningful goal in itself (one that unlike rehabilitation the penal bureaucracy would embrace).  These ingredients combined to form California’s toxic penal philosophy in which an extreme form of penal incapacitation is infused with a deep contempt for human rights and courts.  It is this penal bureaucracy and its culture, one long established in the broader political field of California government and administration that produces the cruel, unusual, and degrading penal practices on display in Brown v. Plata.  Or consider, our obsession with SHU housing, for example, which lies behind California’s super-sizes version of supermax imprisonment in which far more prisoners are held far longer than any other state on the planet, began under Governor Brown’s Department of Corrections, with the SHU units at San Quentin and Folsom which were litigated in Toussaint v. McCarthy (1984).  In short, this legal strategy may have largely been for the benefit of the Department and the Prison Officer’s union, powerful organizations that the Governor needs to maintain an alliance with.

The State is heading toward a likely second defeat in the Supreme Court if it gets there.  In the meantime, those of who want to see some accountability for the past wrongs of our correctional system, and real efforts to rebalance and legitimize a penal system now tainted with a global reputation for human rights violations (note here that Governor Brown must be receiving some sympathetic encouragement from China’s leaders with whom he is banqueting this weekend while on a trade mission) must realize that it is not just the most visible partisans of the “prison industrial complex,” who we must persuade or overcome, but unfortunately the political establishment of the State.

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

Comments to “‘Mass incarceration now, tomorrow, forever’: Gov. Jerry Brown and the politics of court bashing

  1. A majority of the prisoners I have spoken with would prefer 40 lashes to a year in jail or prison … and it would be better for the other interests, too, including taxpayers, law enforcement, victims (especially of spousal abuse), and the families of prisoners.

  2. Thank you! Your article is very in depth. However, I wish you had touched on the “indeterminate sentencing” laws. With so many people complaining against the possible “early release” of inmates, no one is saying anything about the inmates who are years, and in most cases decades, BEYOND their “mandatory minimum” sentences.

    Instead of releasing illiterate gangsters, dedicated career criminals, drug-addicts and assorted sex-offenders, with NO resources or potential other than more crime, how about the group with the undisputed lowest recidivism rate? Known as “lifers”, these are inmates who have actual parole plans. Job offers. Family/friend support. Clearance from CDCR’s own psychologists. These are inmates who have become “political prisoners” in the sense they are being held solely to advance the political careers of elected officials. The prison guards’ union wants to keep them as role models for the other inmates to make their jobs easier. And all it would take is for California to follow its own parole laws. Look up the matrix for these inmates. Require it be followed.


  3. Jonathan, orale, you put the blog on target and we can appreciate your right on unfront article and your insights into the workings and politics of the prison-industrial complex… more aptly referred to by me as Callossusaurus X (reptilian, insatiable, and stone cold man-eater).

    As of August 21, 1971, the prison guards hijacked Corrections into their paramilitary mentality and union, with the slogan “never again.” All prisoners have since then been viewed and treated as internal external security threat to modern civilization.

    Yet no story of imprisonment today, as you indicated, can be told without mention of comrade George Jackson, and the human mess made and left by Reagan, Brown, the Iron Duke [former Gov. George Deukmejian], and the other recent score of mis-administrators, while my comrade Hugo Pinell at Pelican Bay (last of the San Quentin Six), after 48 years of needless imprionment has cost these reckless governors of prisoners nearly a million dollars in rent inside a solitary-confinement SHU box. Why?

    orale Bato (aka Talamantez, of the San Quentin 6)

  4. I slogged all the way through this article, and at then end, have just this simple proposal:

    How about we radically simplify?
    1. Decriminalize drugs
    2. Create a middle segment of incarceration for mental illness-driven criminality
    3. Treat property crimes like property crimes–emphasize restitution to the victims
    4. Treat violent crimes like violent crimes–emphasize containment of the criminals

    I consider myself something of a prison abolitionist (see points 1 and 3, above) but still see a social value in removing certain people from the public sphere.

    All of this legal rigamarole seems more like an autopsy than an intervention to improve the health of our body politic. Let’s change the tone of the discussion and see if we can radically intervene in our (now moribund) civic life.

  5. Thank you for this article, it is very timely. I have been considering leaving California, and recently narrowly escaped prosecution, and possible jail time (though I didn’t even commit any crime) – I had the help, I should note, of a California State employee, who shall remain un-named, in the process of ensuring my ongoing existence would be free from imprisonment. Existing in California has become something of a strange ritual in which merely to venture outdoors, to eat, or to engage in actions routinely corresponding to the exercise of one’s Constitutional rights, can result in extraordinary levels of State attention, and potentially imprisonment.

    Then there’s the whole “you are “mentally ill” and should have your rights taken from you” bit. Living in California as a ‘disabled’ person is an extraordinary challenge, particularly given the ongoing lumping of many of us into this vague “mentally ill” category that legislators love to do lately, which they then use to scare up the public further, and create laws to imprison us more.

    Sadly, there’s a bill right now which is designed to do exactly that, which is quietly making its way through the State legislature. I have some information on it here. I hope you will oppose it. The bill is known as AB-1265. Here’s a link, with (lots) more info:

    Thanks again for your article and thanks in advance for helping to fight AB-1265 which will force people like myself and many others, if passed, to be subjected to medication and imprisonment at the whim of staff of public agencies.

  6. Prisoners are the least popular segment of society. Politicians get elected for being tough on crime and lose for being soft on crime. Coleman and Plata showed how bad the incarceration regime is, but as in the case of civil rights, the question of enforcement is the real issue and problem. Prisoner releases due to overcrowding legislation generally cause crime rates to rise. Released California prisoners will return to California addresses and commit more crimes, because incarceration is not a very good deterrent. Tactics need to change. The usual liberal versus conservative dialogue is not likely to solve the problem if the entire institution of incarceration is ineffective at deterrence and rehabilitation.

    The way to reduce crime while cutting the American prison population in half is to re-institute traditional judicial corporal punishment in lieu of incarceration, in public and witnessed by the sentencing judge. It has worked everywhere they’ve ever tried it and is not abolished for ineffectiveness. Judicial corporal punishment has never been held unconstitutional; all 4 presidents carved into Mt. Rushmore favored it to control citizens of all races.

    When it is published, please read “Prison Overcrowding Cure: The Constitutionality & Effectiveness of Judicial Corporal Punishment Compared to Massive Incarceration” by John Dewar Gleissner in The Criminal Law Bulletin. Or stop by the blog Incarceration Reform Mega-Site.

    • Hey John Dewar Gleissner:
      When (not if) people like myself get locked up in 72 hour holds or longer, being labeled “mentally ill” by the State for harboring differing opinions or being placed in a category or “condition” that the State has determined through legislation requires forced care (which means, just another way to arrest people it doesn’t like), or if the State decides it doesn’t like guns (not a hard thing to figure out from the nearly 70 gun-control bills running in various stages through the legislature), or if the State doesn’t like some kind of protest or expression we are doing (and believe me, this is pretty much all the time), and if we end up getting given your “traditional judicial corporal punishment” because of any of these things (or anything else), believe me: We won’t let your “corporal punishments” become an effective tool of suppression. They’ll just turn into another tool of protest against the State. We’ll take our whippings, leave blood on the floor, and go back to what we were doing before.

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