Panel convenes, plans speedy trial and admonishes interveners that ‘this is a judicial and not a political process' in lengthy hearing

A panel of three federal judges, convened under the Prison Litigation Reform Act (PRLA) to consider ordering the release of prisoners in the overcrowded California penal system because of years of deaths and serious health problems, held its first hearing in what was called by one of the attorneys a "shakeout hearing" to plan for a trial in two class action cases. Before them were 20 attorneys representing the State of California, prisoners, law enforcement, District Attorneys, counties, the legislature's Republicans, and the state's prison guards and an audience of about 75. Three hours later, at the end, Judge Thelton Henderson thanked the attorneys and said, "This has been helpful and exhausting."

The judges appeared to be serious and determined to expedite the process and set an early trial date despite pleas for more time from some of the new intervener defendants. There were both explicitly stated acknowledgements by the defendants of what two of the judges on the panel have already found in the underlying cases - that there were serious problems with the delivery of medical care in violation of the U.S. Constitution - and also an aura of expectation that the judges will order a cap on the prison population or releases of some prisoners.

While there were the statements of those defending the state of California that the attorneys for the plaintiffs in the cases representing the prisoners had the burden of proving that overcrowding was the primary cause of this denial of basic constitutional rights, much of the hearing focused on the size of the reduction of the prison population and the appropriate remedy under the PRLA.

Of note is the presence of the California Correctional Peace Officers Association (CCPOA) - the state's prison guards - on the side of the prisoners who want reductions in the prison population to the level that adequate medical care can be delivered. This represents a sea change in the CCPOA that has been developing for some time, as both individual prisoners and some groups concerned about inmate rights have often vilified the guards.

But yesterday in open court, Ron Yank, the attorney for the CCPOA, sitting at the table with Don Specter of the Prison Law Project, took the lead in suggesting a procedure to speed up preparation for the trial and in ringing tones stated that his client was opposed to even "one day of delay for settlement talks." He also said the mess "isn't going to be done without prison reform - sentencing reform."

On the surface, most of the hearing dealt with mundane questions of the amount of time needed for the depositions of witnesses and the marshalling of the evidence, expected pre-trial motions, and the anticipated length and calendaring of the trial. For instance, there was a discussion throughout the hearing of whether the trial should be bifurcated into two parts - with the preliminary questions of whether overcrowding is the primary cause of this violation of federal rights and whether no other relief will remedy the situation - separated from the actual remedies to be ordered - numbers of prisoners released, etc. - if there is a finding of those facts.

The judges took all of this under submission. But you could tell where they are headed. They appear suspicious of arguments that AB 900, the massive prison construction bill, with other provisions passed and signed into law a couple of months ago, will take care of the problem. They snapped at the idea that the date for the trial should be pushed back further into 2008.

When the attorney for the District Attorneys stated her opinion that at least 90 days was needed to designate expert witnesses and for her to complete discovery (depositions of witnesses and the production of evidentiary documents), Judge Henderson said matter of factly, "Don't count on it." Judge Karlton, who has presided over a case since the early 1990s involving the failure to provide mental health care, which has led to the suicides of some prisoners, said: "There's an emergency. There's a tremendous emergency. Part of it is: How do we address your needs while people are dying?" Henderson then said that the reason he responded as he did was "the undisputed evidence in the case."

While the District Attorneys suggested 180 days until trial, Don Specter, lead attorney for the prisoners in the Plata case, suggested a trial in late January. He said, "We'll work as hard as we need to get this done." He noted that with all the attorneys present, there was no reason why two or three depositions could not be taking place simultaneously on a daily basis.

Requests for information have already been made by Specter's office on the defendants, and when counsel for one of the defendants raised the issue of premature requests for "discovery" of information, Judge Karlton asked why this was considered premature. The response was that the hearing was supposed to deal with discovery as one of the matters.

Near the beginning of the hearing, Judge Henderson stated that this was a judicial and not a political process. He said while different governmental agencies have the right to intervene in the case, "their comments must remain focused on legal arguments ... We can't stress this enough."

The California Department of Corrections attorneys were designated as lead counsel for the defense and Don Specter of the Prison Law Project for the plaintiffs. There was a question raised by Judge Karlton about whether the Assembly and Senate Republicans, being only a subset of the legislature itself, had "standing," the legal right to be a party in the case. But it appeared after a colloquy Karlton had with Specter that they will be allowed to participate.

Specter questioned the knowledge of many of the interveners on the defense side as to the relevant issues involving the California Department of Corrections and Rehabilitation.

Defense counsel repeatedly made the point that they could not prepare quickly for a trial without knowing the relief sought, which they characterized as the numbers of prisoners to be released. Attorney Michael Bien, the lead attorney in the Coleman case involving psychiatric care, disputed this, saying they were seeking an order that the state of California develop a plan to reduce the prison population to a level where constitutional care can be delivered.

Bien and Specter said that there have been numerous reports commissioned by the state, including one headed by former Republican Gov. George Deukmejian, that can provide this information. Specter said that if the state would agree to such reports, "We wouldn't be here today."

Bien had looked at the most recent statistics right before the hearing and said that "we're at 200 percent" of capacity. He said that there are prisons over 250 percent and there is one 500 percent above what they are supposed to hold. He told the court that there could be a preliminary order that could "start the process" and see how it works.

At one point in the hearing, an exasperated Karlton said, "We have a process that will never end."

Judge Henderson noted that there were 170,000 prisoners in a system designed for 110,000. He said that there must be some number in between that "fits the scale."
It is unclear exactly whether and how the special masters and receiver in the two underlying cases will be allowed to testify, as it was suggested that with their intimate knowledge of the prisons and the impact of overcrowding on care, they could provide a great deal of assistance in arriving at the proper numbers - which may not be system wide, but may need to deal with individual prisons and correctional facilities.

Karlton's initial assessment, which he described as coming from his "gut" rather than being a fully reasoned legal opinion, was that his special master is answerable only to him and might not testify. Judge Henderson appeared to be more open to the idea of Robert Sillen, who he appointed as receiver of the prison medical system, answering questions.

It was noted that there doesn't have to be a massive and indiscriminate release of prisoners, and both Specter and Bien pointed to reductions of the numbers of parole violators coming back into the prisons, enhancement of good time credits and the release of some non violent offenders a few weeks early as possible parts of a solution.

It was stated by a number of defense counsel that the plan - the solution - was to be found in AB 900, the prison bill, and that it should be given a chance to roll out.
It is expected by the judges that there will be about 15 days of trial at the pace of four days a week with a possible intervening recess during the trial. Any appeal, if there is one, goes directly to the U.S. Supreme Court from the three judge panel.
Judge Karlton expressed a hope, which he has stated on previous occasions, that the legislature and governor solve the problem and settle the case. He said that the minute we start this case, it can't be settled. He indicated it would not be delayed "as we regard this as a crisis."

After the hearing in the hallway outside the courtroom, Specter told me that the real issue is not about the numbers of those needed to be released, but "providing adequate care." He said there had been "plenty of recommendations by experts for over a decade. The problem is that the state has not picked one." He also said, "We've told everyone from the governor to the legislature to law enforcement that we don't want to win a case; we want to solve the problem."

Bien noted that the governor himself was "the one who declared the overcrowding emergency" a year ago. He said, "We don't see AB 900 as a solution. We will prove that in court."

Neither Specter or Bien are hopeful that the imminent trial will lead to a political solution.

This story was originally published by the California Progress Report, www.californiaprogressreport.com.

Tag it:

?