When Brown v. Plata was decided in 2011, and the Supreme Court per Justice Kennedy effectively ordered California to release 40,000-ish prisoners for its over-crowded system, many contended that the goal would simply be impossible.
Justice Kennedy was fully aware of this, and he prospectively admonished the District Court to be generous about granting continuances:
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 called out this chicanery:
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?
But what happens when the Governor of California is flatly ignoring the courts orders, engaging in intentional delays, and shows no desire to comply with the court orders. What is the court to do? That is precisely the situation in the Golden State.
Andrew Cohen writes:
omething extraordinary is happening in California. A long-running story about the atrocious conditions in the state’s prisons has expanded in the past two weeks into a story about state sovereignty, the doctrine of interposition, and about the ability and will of the nation’s judges to oversee the enforcement of the lawful orders they issue. The California prison crisis, in other words, has become an existential crisis over federal and state power.
California Gov. Jerry Brown is openly defying a series of federal orders requiring state officials to reduce California’s prison population to comply with the requirements of the Eighth Amendment. Instead of obeying these orders, which were directly approved by the Supreme Court, the governor instead has made a series of false and inflamatory statements about the law, the courts, the inmate problem and California’s efforts so far to solve it.
Meanwhile, California Attorney General Kamala Harris, a rising star in national Democratic politics who is seen by some as a potential Supreme Court nominee, has authorized or permitted the filing of a series of dubious motions and briefs on behalf of the state as it tries to weasel out of its constitutional requirements to the inmates. Rejected and scorned by federal judges over the past two weeks, these court filings are largely void of dispositive facts and unworthy of a first-year associate, much less the chief lawyer of our nation’s most populous state.
Some of the coverage of this conflict sadly has displayed a measure of “false equivalence.” Gov. Brown’s position has been juxtaposed with the judicial orders as though the matter were still in legal doubt. Don’t be fooled by this coverage. There is no such dispute. There is what the Supreme Court and the lower courts have ordered to be done on behalf of the inmates. There is the failure and refusal of California to get it done. There is whining from state officials. And there is now the whiff of contempt sanctions against the governor and his tribunes.
The governor has taken it upon himself to determine that the prison-overcrowding problem is no longer an emergency, and he declared “Mission Accomplished.” The only problem is that the court, authorized by Plata, is not satisfied:
On January 8, 2013, Gov. Brown announced that as of July 2013 he would no longer use whatever “emergency powers” he has as chief executive to comply with the order. He announced 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.” California’s governor, in effect, unilaterally declared an end to his state’s constitutional obligation to end the prison emergency. One day earlier, his lawyers had quietly filed motions to terminate federal judicial oversight over state prisons.
The extensions that Justice Kennedy asked for have not proven to be enough:
That Governor Brown may believe, contrary to the evidence before this Court, that ‘prison overcrowding [is] no longer… inhibit[ing] the delivery of timely and effective health services’ will not constitute an excuse for his failure to comply with the orders of this Court. Having been granted a six-month extension, defendants have no further excuse for non-compliance.
The court is incredulous that the governor will simply ignore the warning:
Oddly, defendants appear to read the results of their partial compliance with the Order in a rather unusual manner. They argue that, because the Order thus far has been effective in making progress toward its ultimate objective, we should terminate it, call off the rest of the plan, and declare victory before defendants can meet the Order’s most important objective—to reduce the population to 137.5% design capacity and eliminate overcrowding as the primary cause of unconstitutional medical and mental health conditions.
That is not the way the judicial system, or any other national system, functions. Indeed, the effectiveness of the Order thus far is not an argument for vacating it, but rather an argument for keeping it in effect and continuing to make progress toward reaching its ultimate goal.
This could be an amazing constitutional crisis if the case goes back to the Supreme Court. Justice Scalia will enjoy writing a dissent, even if from denial of cert.