"Judges seem willing to cap prison population" by Nancy Vogel, Los Angeles Times

28th June 2007

SACRAMENTO - Two federal judges charged with forcing changes to California's troubled, overcrowded prisons expressed doubt Wednesday that Gov. Arnold Schwarzenegger would turn the system around, and indicated a willingness to move toward capping the inmate population.

Such a move could push California's correctional system - the biggest in the nation - to overhaul the way it sentences criminals or even, some say, trigger the early release of thousands of inmates.

In a federal court hearing, lawyers representing prisoners appealed Wednesday to U.S. District Judges Lawrence Karlton of Sacramento and Thelton Henderson of San Francisco to impanel a three-jurist court to impose a cap.

Schwarzenegger administration attorneys told the judges that recent progress on improving medical and mental healthcare for inmates rendered such a drastic move unnecessary.

Under a 1995 federal law, three judges must weigh a prison population cap before such a limit can be imposed. To convene such a panel, Karlton and Henderson would have to decide that other methods to reduce overcrowding have been tried for a reasonable length of time.

If a panel were convened, the three federal judges would have to determine, before they could set a number for the prison population, that overcrowding was the primary cause of inadequate care for sick and mentally ill prisoners, and that public safety would not be compromised by a population cap.

Henderson and Karlton, who have spent years handling class-action inmate lawsuits in which they've found medical and mental healthcare for prisoners so deplorable as to be unconstitutional, are expected to issue a ruling within weeks.

The judges said the $7-billion, 170,000-inmate system, designed to house 100,000, seems to be deteriorating, not improving, despite years of federal court intervention that includes stripping control of prisoner healthcare and mental health treatment from the California Department of Corrections and Rehabilitation.

"I actually had the delusion that we would someday get out of this system," Karlton said, "and it's clear that in the last year and a half, two years, with all of the work, with all of the effort, there's been a backsliding that's perceptible."

The judges also expressed doubt that the state would come up with a workable plan to ease overcrowding even if they set a population cap in motion.

"It would not surprise me at all, should we do that, that this plan would not be worth much more than the paper it's written on," Henderson said. "That's been my experience."

Karlton said he "wouldn't even consider what is being asked" if the governor and Legislature were to adopt a meaningful plan to deliver mental health care.

"But there's no evidence at all that that's going to happen," he said. "A third of the [mentally ill inmate] population is getting no adequate care. We don't have staff; we don't have beds. We can't reach them."

Lawyers for inmates called the decision one of life and death, saying prisoners die each week unnecessarily for lack of adequate medical care, while others become mentally unbalanced dealing with the stress of teeming, violent institutions.

"We understand the trepidation that you feel in taking that step," Don Specter, attorney for the Prison Law Office in San Quentin, told the judges, "but it's one that must be done because the governor and Legislature have essentially abdicated their responsibility to run a constitutionally adequate prison system."

Attorneys for the Schwarzenegger administration pointed to the recent enactment of legislation - AB 900, backed by Democrats and Republicans - to borrow $7.4 billion to add 53,000 prison and jail beds. They noted that Schwarzenegger has also begun moving prisoners to out-of-state lockups, with a goal of exporting 8,000.

And they pointed to recent progress by Robert Sillen, the man appointed by Henderson to oversee prison healthcare, including construction of a new clinic at San Quentin prison and the hiring of an additional 25 registered nurses each month.

Paul Mello, an attorney representing the corrections department, quoted from one of Sillen's recent reports: "The cure to existing healthcare problems will be difficult and costly to implement regardless - regardless - of population control efforts."

"Seems like that answers the question," Mello told the judges in a two-hour hearing. "A population cap or prisoner release order isn't going to solve the problem."

"I think we need to give it a chance," he said of Sillen's work. "I think we need to give AB 900 a chance."

Henderson said he believed Schwarzenegger was trying hard to fix the problem but was stymied by legislators who were not willing to reform California's sentencing policies.

Republican lawmakers and a handful of moderate Democrats have resisted the creation of a commission to scrutinize California's sentencing policies, and several months ago Schwarzenegger eliminated $450,000 from his proposed budget to fund such a commission.

"We have senators say, 'I will never agree to a program that lets anyone get out of jail one day before their sentence,' " Henderson said.

Sen. Gloria Romero (D-Los Angeles) is pushing legislation - SB 110 - to launch a sentencing commission. She attended the federal court hearing Wednesday."To a large extent, the judges accurately described this political system that refuses to act even when it knows it must," Romero said.

Schwarzenegger spokesman Bill Maile said the governor remained confident that Henderson and Thelton would not move to limit the prison population.

"The governor has consistently said that releasing dangerous prisoners early is not a solution to prison overcrowding," Maile said. "Public safety is his highest priority."

Some corrections experts said tens of thousands of prisoners could be freed from prison without threatening public safety if inmates were carefully screened and given time-off credit for working or participating in rehabilitation programs.

Barry Krisberg, president of the nonprofit National Council on Crime and Delinquency, said he recently reviewed 14 studies of state and county early-release programs and found no increase in crime rates or the rate at which those who were released early returned to prison.

"There's 140,000 people a year released anyway" from California prisons, he said. "If you marginally release a few extra people, but if you do good risk assessment and provide services, you'll actually improve public safety."

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nancy.vogel@latimes.com