“A report released by the analyst’s office said [California] will likely fall several thousand inmates short of the 34,000-man reduction ordered by the [Supreme] court.”

August 6th, 2011

Not too surprised that California will be unable to meet the order issued by the Court in Brown v. Plata (in light of previous reports).

Gov. Jerry Brown’s plan to keep tens of thousands of low-level offenders in county jails instead of state prisons won’t reduce the inmate population enough to fully comply with a federal court order, the nonpartisan Legislative Analyst’s Office said Friday.

A report released by the analyst’s office said the state will likely fall several thousand inmates short of the 34,000-man reduction ordered by the court.  The report urges officials to ask a judge for more time, look at other ways to reduce crowding and consider sending more prisoners to private prisons in other states.  “Asking for a court extension is probably the most important thing,” said analyst Paul Golaszewski, the report’s author.

And as Justice Kennedy preemptively ordered–and Justice Scalia said would almost certainly have to happen–the 9th Circuit will have to give California an extension.

Kennedy wrote an extension may be in order. At the time I noted, “wow.” Today, I say, no shocker.

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 theissue 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 willpromptly and effectively correct the violations consistent with publicsafety. 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 observa-tions reflect the fact that the existing order, like all ongoing equitablerelief, must remain open to appropriate modification, and are not in-tended to cast doubt on the validity of the order’s basic premise.

Justice Scalia took exception with this note, and claimed it is not so much as a suggestion as a “warning shot across the bow,” which is tantamount to “intellectual bankruptcy.”

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 achievethe benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the releasedinmates. But it would achieve that at the expense of intellectual bankruptcy, as the Court’s “warning” is en- tirely 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 thatmotion 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?

Somewhere Nino is going “See I told you so!”

H/T Sentencing Blog