Saying the Schwarzenegger administration is thumbing its nose at three federal judges with a flawed plan to ease overpopulation of prisons, inmates' attorneys Thursday asked the judges to find the governor in contempt.
Rather than complying with the three-judge panel's Aug. 4 order, a defiant Gov. Arnold Schwarzenegger and Corrections Secretary Matt Cate "essentially have told the court that they will reduce the state prison population as the state sees fit, to a level the state deems appropriate, and in a time frame the state has set for itself," the attorneys wrote.
The Governor whose low approval ratings and general fatigue at governing may have already peaked with his less than cordial greeting at a San Francisco Democratic Party event (the Guv was invited to "kiss my Gay ass" by Tom Amiano, read Carla Maranucci's reporting in the SF Chron), may rightly feel that he has tried to comply since his own plan was amended by the Democratic controlled legislature which backed off many of the cuts and the promise of a sentencing commission. But if Arnold wants to go out as an action hero he can still lead. As governor he can stop denying parole to scores of California lifers who have served decades and demonstrated substantial rehabilitation. He can order, as Ronald Reagan did, parole units to stop returning parolees to prison for minor violations of parole. With these steps alone he could bring the system into compliance before leaving office.
If, as seems increasingly likely, this whole case ends up in the Supreme Court sooner than later, look for several interesting legal flash points:
1. The three judge court in Plata and Coleman has suggested that the Prison Litigation Reform Act of 1995 (signed into law by Bill Clinton 13 years ago this month) need not be a barrier to court based structural reform of prison systems including prisoner release. The three judge panel, in my view, has put together an awesome record that will be hard for the Supreme Court to override, but look for Justice Alito in particular to focus on the federalism, public safety, and democratic accountability concerns embedded in the strong anti judicial intervention language of PLRA
2. I just taught the Supreme Court's 2005 Samson v. California case in which the power under California law to search all parolees without any suspicion by all peace officers (both parole and police) was upheld against a 4th Amendment challenge. The very complex case, which throws a lot of 4th Amendment doctrine into doubt, turns heavily on a bizarre (and in my view grossly incorrect) understanding of the same California parole revocation mess that will be at the center of a Plata Coleman decision. I will post more on this theme, but main point is that the Supreme Court in Samson took California's high revocation rate to prove that parolees were so dangerous they needed to be exempted from 4th Amendment protections (even the watered down special needs version of them). How will that square with the current view of the State of California, that parolees are so safe that most of them can be put on a form of "parole lite" in which revocation is not a possibility, supervision does not happen, and parole is reduced to the single fact of being exempt from search and seizure protections?
cross posted at prawfsblawg