Prison Law Blog

Sara Mayeux

When Is a “Prisoner Release Order” Not a Prisoner Release Order?

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The Supreme Court announced today that it will hear California’s appeal of a federal court order to reduce the prison population (PDF link). (As Doug Berman notes, the order came under the curious heading of “jurisdiction postponed.” Lyle Denniston at SCOTUSblog explains here.) Many news sources describe the federal court’s order using the technical legal term “prisoner release order,” but that term could be misleading to readers who take it too literally. Since there seems to be some confusion in the press, I thought I’d clarify what the words “prisoner release order” actually mean in this context. The post is long, so I’ll put it all after the jump. NOTE: For readers unfamiliar with the California prison litigation, you’ll also find a nutshell summary after the jump.

Here’s an example of inaccurate coverage from the Los Angeles Times:

The U.S. Supreme Court agreed Monday to hear an appeal from California Gov. Arnold Schwarzenegger and decide whether the state can be forced to release 46,000 inmates — more than one-fourth of its prison population — to relieve overcrowding.

Here are some examples of more accurate descriptions, also from the Los Angeles Times and some other sources, although these descriptions could still be misleading to a reader giving the article a cursory glance before their morning coffee:

Gov. Arnold Schwarzenegger and state officials have challenged an edict from three federal judges that the California Department of Corrections and Rehabilitation must cut the prison population by 40,000, or about a quarter of its 165,000 inmates.Los Angeles Times

The Supreme Court said Monday it will review whether California must cut its prison population by 40,000 inmatesAssociated Press (also here at the Sac Bee)

The U.S. Supreme Court agreed to review an order that would require California to reduce its prison population by 46,000 within two years to ease overcrowding.Bloomberg/San Francisco Chronicle

So, here’s the deal. Contrary to the LA Times reporting above, California is not under a federal order “to release 46,000 inmates.” Rather, California is under a federal court order to “reduce the population of the CDCR’s adult institutions to 137.5% of their design capacity” (Plata/Coleman Opinion & Order, PDF p. 183). Currently, the prisons have about 40,000 inmates too many to meet that baseline. So in that sense, California has been ordered to reduce its prison population to about 40,000 inmates less than it currently has.*

But even if the federal court order is upheld, California is exceedingly unlikely to seek to satisfy that order simply by releasing 40,000 inmates all at once. California could achieve the required population reduction in a variety of ways without releasing any current inmate any earlier than he/she would have already been released under his/her existing sentence. It’s important to keep in mind that about 10,000 inmates cycle in and out of California’s prisons each month just as the ordinary course of business. A majority of new prisoners arrive not for new criminal convictions but for technical parole violations (see CDCR Annual Report, PDF p. 9). By adopting front-end reforms to the sentencing and parole laws, adjusting how prisoners earn good-time credits, and funding incentives to counties to keep prisoners in community correctional facilities, California could reduce its prison population over time, simply by sending fewer people to prison in the first place.** In the course of the litigation that produced this order, a number of correctional officials including Jeanne Woodford, former warden of San Quentin, testified that California could reduce its prison population through these types of reforms, without adversely affecting public safety (see Opinion & Order, PDF pp. 177-81). The federal court noted that “unlike measures such as indiscriminately and suddenly releasing inmates or closing prison doors to further admission, the measures we considered would not have a significant adverse impact on the operation of the criminal justice system” (PDF p. 178, emphasis added).

Another solution, though likely an impractical one, would be to build additional prisons. It’s not clear where the state would find the money to do that or whether it could be done quickly enough to meet the federal court’s deadline, but it would be another available way of satisfying the order without releasing a single prisoner early, and it seems to be the solution proposed by Republican gubernatorial candidate Meg Whitman.

So, if all of this is true, then why are the media calling the order a “prisoner release order”? Well, it is, but only in legalese. In the context of prison litigation, the term “prisoner release order” has a specific, technical meaning. The governing law here is the Prison Litigation Reform Act of 1995, which mandates that federal courts issue “prisoner release orders” only as a remedy of last resort. However, the Act defines a “prisoner release order” as “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison” (sec. 802(g)(4), emphasis added).

To be sure, the three-judge panel’s order qualifies as a “release order” under the PLRA’s definition, because implementing the order would have “the effect of reducing … the prison population.” As such, this order could only be issued as a remedy of last resort. That’s precisely the issue the Supreme Court will be reviewing: whether the federal panel overstepped in issuing an order of this type, or whether it should have allowed the state more time to pursue its own solutions to the overcrowding crisis. I don’t mean in any way to minimize the genuine burden that the federal court order imposes upon the State of California. But that burden does not include “be[ing] forced to release 46,000 inmates.”

California prison litigation — nutshell summary: Last year a panel of three federal judges ordered California to reduce its prison population, after years of protracted litigation over prison overcrowding. California’s prison population ballooned 750% from the 1970s to the mid-2000s. Although California built new prisons during that time, it didn’t build enough to keep up with the growth in the population. The prisons have become so overcrowded (stuffed to almost 200% of their capacity) that, the federal court found, it is basically impossible for the state to deliver the constitutional minimum of health care services to its inmates — because of lack of facilities, insufficient personnel, etc. After years of litigation in which the situation did not improve, a federal panel of three judges issued an order that California come up with a plan to reduce its prison population. A federal court can only order a state to reduce its prison population as a last resort, if every other attempt to remedy an unconstitutional prison situation has failed. The state doesn’t dispute that prison overcrowding and health care are serious problems, but argues that it has made progress in recent years in improving the situation, and should be allowed to continue its work without federal court meddling. Next fall, California will ask the Supreme Court to decide whether the federal panel overstepped and issued a population reduction order too early, before it had truly become the “last resort.”

More information on the Coleman/Plata lawsuits:


* I haven’t run the numbers on California’s current prison population as against design capacity myself, but trust that the media’s estimates of 40,000 to 46,000 are in the ballpark. Note, however, that the prison population has already declined by almost 10,000 prisoners from its all-time high in October 2006 just as a result of normal fluctuations combined with smaller reforms (you can download statistics from CDCR here). UPDATE: The Christian Science Monitor quotes the plaintiffs’ estimate that the required reductions would amount to 38,000 prisoners.

** Of these solutions, adjusting the good-time credits formula — which the state has already begun to experiment with — would yield results that look the most like early release. Even then, however, prisoners would still be released according to a structured formula based on their initial sentence; the prison wouldn’t be throwing the doors open for everyone all at once.

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  1. […] the other day I was somewhat critical of media reporting on the ongoing prison conditions litigation in California, particularly the […]

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