Like a top that now spins ever faster, going nowhere, powered mostly by its own unstoppable momentum, California’s prison overcrowding drama continues and continues. Last Thursday there was a new development when a federal judge ordered Governor Arnold Schwarzenegger and two of his main aides to answer questions under oath as part of a lawsuit that, in November, could result in a panel of three judges forcing the state to cap the number of inmates in its prisons.
(As of today, California’s 33 adult prisons, which were designed for about 100,000 inmates, hold 159,000—-give or take a thousand or five.)
The overcrowding affects everything, say the inmate plaintiffs and their lawyers. It affects the badly broken prison health care system, and certainly the safety and the mental health of the prisoners—more than 130,000 of which are paroled back into California’s communities every year.
It also helps spread communicable diseases like Hepatitis C,—which, in some of California’s prisons, may infect nearly 50 percent of the facility’s population.
All that said, should the Governor be required to testify about the issue? Speaking personally, I rather liked the idea, since I believe that someone ought to be answering questions as to why, after nearly five years of promises made about prison reform, the Governor has managed to reform pretty much exactly zero.
But on Friday, California Attorney General Jerry Brown officially opposed the judge’s order requiring Arnold and staffers to be deposed. What is more, the AG phrased his objection in fairly strong terms.
Curious, about his thinking—and knowing that, whatever the topic, no conversation with Jerry is ever dull—I asked to chat about the matter with the Attorney General. Here’s how the conversation went:
WitnessLA: On Friday you opposed the ruling that would require the Governor and several of his senior staff to be deposed in the trial upcoming in November about prison overcrowding. What was your reasoning?
Edmund G. Brown Jr: Well, first of all, I’m the Governor’s lawyer.
WLA: I understand, but I got the feeling that you also believe it’s a bad idea.
EGB: There’s no reason why the Governor should be questioned about the day-to-day running of the prisons. That isn’t his job. He doesn’t make the individual decisions about whether to move this group of prisoners to that facility. These depositions are a stunt. It’s a public circus that’s has more to do with a lot of lawyers making millions and millions of dollars with these lawsuits.
WLA: On the other hand, we have prison overcrowding that’s completely out of control.
EGB: But bringing a bunch of lawsuits isn’t the way to solve anything. Look, the courts are a blunt instrument.
WLA: Nothing else seems to have worked….
EGB: And many of these lawsuits aren’t working so well either. There are dozens of consent decrees already in place. It began with Ronald Reagan….
WLA: Yes, we have our own pleasant consent decree in Los Angeles with the LAPD. It began as a good idea. But we now have a federal judge who appears to actively hate our police department.
EGB: We had one in Oakland with the police department.
Now the California prison system has become a repository for lawyer activists who submit unending lawsuits. And when you have the judiciary trying to solve every problem, it goes against the basic principle of the balance of powers. It’s not at all what the authors of the Federalist Papers had in mind. The separation of powers, among the judiciary, the legislature, and the executive is fundamental to our form of government.
WLA: But to play devil’s advocate, we do have disastrously overcrowded prisons, and that problem isn’t going to get fixed by the head of the CDCR. [California Department of Corrects and Rehabilitation.] It’s far more in the hands of the Governor and the legislature. To my layperson’s eyes there are two remedies: One is sentencing reform and the Governor has failed to do anything to push that forward. And the second is letting prisoners out early. There was talk of the Governor releasing 22,000 short term nonviolent prisoners to relieve the overcrowding, yet that never came about. Why isn’t it valid to depose the Governor to ask him about those issues?
EGB: Listen, both those things are under the control of the state legislature, which means they’re subject to the political pressures of the legislative process. That’s how democracy works. And if the legislature isn’t doing isn’t doing its job we have this remedy we call elections.
Instead, the tendency is to sue, which adds a whole other set of cross pressures, which is often not productive. Rather than rely on the give and take of the democratic process, these plaintiffs want to reduce every political problem to something that can be solved in the courts.
WLA: But again, prison overcrowding is a disaster in California, and nobody else seems to be willing to solve it.
EGB: Okay, should we just forget democracy? Why don’t we just have a judgeocracy?
WLA: Good word. I think you made up a word the last time we talked, too.
EGB: You’ll have to figure out how to spell it. If you want to go that way, you will be letting the judiciary run everything. This would be a breakdown of our system of separation of powers. Today increasingly the three functions of government are collapsing in on themselves.
WLA: Well, okay, that’s an interesting point.
EGB: You can always formulate a claim to justify intervention in the prison system. But if you’re going to go that route, what about the state’s health care system? What about education? What about traffic? Don’t people have the right to have less traffic? Does that justify judicial intervention in all these aspects of state government?
WLA: I understand. But, then again, bad traffic doesn’t violate the Constitution.
EGB: Wait until somebody sues and claims that it does. Right now we have a federal monitor who wants to take $8 billion dollars out of California’s treasury. For the federal judiciary to think it can run the state’s prison health care system in all its complexity is just not realistic. But I don’t want to get off track here. We can talk about the $8 billion later because I’ll be representing the Governor on that issue, and we’re going to oppose it. Right now we’re opposing the demand to depose the Governor which is outrageous. The inmate attorneys have not demonstrated that the Governor has any relevant information concerning the issues at stake. As I said before, the move is a circus stunt.
WLA: Okay, one last question: If you were going to advise the Governor—and/or the legislature—as to how to fix the prison overcrowding mess, what would you advise?
EGB: That’s going to require a little more thought than we have time for today.
WLA: Alright. So, when you formally oppose the $8 billion that Judge Henderson is expected to demand, may we talk again?
EGB: I don’t see why not.
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AP Photo by Rich Pedroncelli
Edmund G. Brown Jr: Well, first of all, I’m the Governor’s lawyer.
Where have I heard that line before? Seems like it comes close to something Monica Goodling was reported to have said. Doesn’t the CA AG have a broader responsibility than being the Governor’s lawyer?
From Wikipedia:
Now if we plug in this little ‘violate the constitution’ piece (WLA: I understand. But, then again, bad traffic doesn’t violate the Constitution.), then presumably, we’re back to EGB: Listen, both those things are under the control of the state legislature, which means they’re subject to the political pressures of the legislative process.
Around, and around it goes.
I suppose as long as all prisoners are treated uniformly badly (1), then the AG has no responsibility in that area, and can default to the position of defending the Governor from being held to account wrt any constitutional violations (3)?
EGB: But bringing a bunch of lawsuits isn’t the way to solve anything. Look, the courts are a blunt instrument.
Well, the courts may be a blunt instrument, but that assertion doesn’t answer the question as to how else folks are supposed to seek legal remedy for constitutional violations.
[My kingdom for a Preview option.]
Unless kept in check, activist judges would see no limit on their power–including the power to tax and administer government. I like AG Brown’s word of “judgeocracy.” Justice Scalia calls it “rule by judicial fiat.” I call it a “violation of a judge’s oath of office.” Judges enter areas and pass rules where they have no authority and have given themselves judicial immunity by twisting the Constitution to say what suits them. Technically, when they do that, they are committing treason. It’s time to hold them accountable and to resist their overstepping.
– – –
C: To my layperson’s eyes there are two remedies….
Celeste, open your eyes and expand your thinking.
BTW, good interview.
Okay, listener, next Brown interview I’m patching you in on a three-way. 😉
Celeste,
I’d be real curious to see the dialog from this one:
Naturally, we assume his advice will involve no blunt instruments. However, will it answer the remedy issue?
Today’s Daily News (from their news wire service, so can’t blame them totally for this huge mixup in non-copy editing) is headlined “County Supes Push” for implementing the state drug rehab initiative (Prop 5) giving those convicted of non-violent drug offenses, rehab time instead. However, the text of the article says they oppose this as too expensive –Baca is quoted saying that it would cost the state an extra almost $500k/year, NOT save a billion/year as proponents claim.
Can’t make sense of it beyond that (what happens when so much editorial staff is laid off) — but what authority do the County Supes have to overrule a voter-approved state measure like this, let alone a court order? How does this tie into the mandate to spend $8 billion more that Arnold’s fighting — is that the total for all counties in Calif.? Can Arnold just pass the buck to other counties like LA, and let them oppose implementing it?