The drama of whether and when federal courts in California will order population caps on California's super-sized and massively overcrowded prison system took another step forward yesterday. The three judge panel composed of Appeals Court Judge Stephen Reinhardt from the 9th Circuit and two District Court judges, Judge Lawrence Karlton of the ED District of California and Judge Thelton E. Henderson of the Northern District issued a seven page ruling (check here for it to be posted) that set out a briefing a trial schedule for a two part process. In phase I, the plaintiffs will have the burden of proving that a prison population cap is the least intrusive approach the courts can take in relieving the unconstitutional conditions brought on by the overcrowding. If the courts find with the plaintiffs in phase I, phase II will unfold to consider the actual form a population cap remedy might take.
The order also sets out a briefing and hearing schedule that aims to bring phase I too trial in February of 2008. Assuming the court finds that a cap is necessary, phase II should be underway by spring. With appeals however, it is hard to imagine real caps biting before 2009 begins. Keep in mind that the courts have already found that currently unconstitutional practices lead to as many as 1 unnecessary death from medical care failings every week in the system. That probably means 100 inmates will die from untreated by treatable medical problems before the caps come into play (how many prisoners have died at Guantanamo or Abu Ghraib?)
The order also makes an important determination that statutory intervenors including state legislators, county district attorneys, county sheriffs and other local criminal justice officials will be allowed to intervene as parties (giving them powers of discovery and a voice in the hearings) only during phase II. These intervenors are precisely the political actors that my book Governing through Crime describes as the most reliable and fierce defenders of a war on crime mentality (see chapter 2 on prosecutors and chapter 3 on legislators). The Prison Litigation Reform Act, a classic piece of war on crime legislation, enacted in the 1990s to hamper prison reform action by the courts, specifically empowered those kinds of actors to intervene as of right in proceedings to which a population limitation is possible outcome. This suggests that one of the express purposes of the Act was to maintain the growth of mass imprisonment in the US. In limiting the statutory intervenors to only one phase the three judge panel is opening one of the largest avenues for reversal on appeal. This might result in an immediate delay in the case if an appeal is taken to this intermediate order. But if the judges are permitted to continue with phase I, this could result in a finding that a population cap is necessary sometime early spring 08. The actual cap would be delayed as the intervenors sought discovery and other litigation rights that will slow the process. This might have the happy result of putting maximum pressure on the Governor and the California legislature to solve the problems of the system before the no longer imaginary caps are implemented, while also providing space for the nearly paralyzed California political system to work.
The order does allow one third party to participate fully in phase I. That is the CCPOA, the union of the correctional officers. The union has no statutory right to intervene, but the panel has apparently concluded that they are essential to producing a viable cap (which the union supports).