Governor Brown Will Ask for Extension Following Brown v. Plata. Justice Scalia says “See I Told You So.”

June 2nd, 2011

A little over a week after the Supreme Court in Brown v. Plata affirmed the Three-Judge Panel’s decision to order California to release 30,000 prisoners, Governor Brown has announced that he will likely need more than the two years the Court provided.

The U.S. Supreme Court ruled last week that California’s overcrowded prisons violate the constitutional rights of state prisoners, and gave officials two years to slash the number of inmates.

The Brown administration has to submit a plan to a three-judge panel by next week, outlining how it intends to move those prisoners out of state facilities.

But Brown said Thursday the timelines offered by the high court were unrealistic.

“It’s going to take more than two years,” Brown told reporters Thursday.

When asked if he planned to ask federal judges for more time to comply with the Supreme Court ruling, he said, “I’m looking at that option.”

This should not come as a surprise to anyone who read Plata. The Three-Judge Panel should take note of this passage from Justice Kennedy’s opinion, where he basically told the judges that they better modify the order, or else.

The three-judge court did not err in providing a 2-year dead-line for relief, especially in light of the State’s failure to contest the issue at trial. The State has not asked this Court to extend the dead-line, but the three-judge court has the authority, and responsibility,to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes re-quire that court to exercise its jurisdiction to accord the State consid-erable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not in-tended to cast doubt on the validity of the order’s basic premise.

I expect a huge “See I Told You So” from Justice Scalia, who criticized this passage as an improper prospective order to a lower court to do something no one had asked for.

I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the released inmates. But it would achieve that at the expense of intellectual bankruptcy, as the Court’s “warning” is entirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on that motion first, subject to review for abuse of discretion if it declines to modify the order.

So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s responsibility. After all, did we not want, and indeed even suggest, something better?

I suspect this litigation is far from over.

Cross-Posted at