Normally, it's uncomfortable at best to hear a federal judge -- let alone
a panel of three such jurists -- thunder criticism atone from the
But as usual, Gov. Jerry Brown is different. For beyond doubt, prison
realignment has drawn more criticism than any other single thing he has done in
his second incarnation as governor, even more than his devotion to high speed
rail. But the judges' tirade now provides Brown a convenient scapegoat, one on
which he can pin blame for the entire prisoner-release program, and with
That, of course, wasn’t the way the three-man judicial panel intended
things to go when making bald threats against the governor if he doesn’t release
even more convicts.
“At no point over the past several months have defendants indicated any
willingness to comply, or made any attempt to comply, with the orders of this
court,” said the panel, referring to Brown and his administration. “In fact,
they have blatantly defied (court orders).”
The three jurists – district judges Lawrence Karlton and Thelton
Henderson and Ninth Circuit Court of Appeals Judge Steven Reinhardt – gave Brown
21 days to submit a plan for meeting their prison population target by the end
of this year. If Brown doesn’t simultaneously begin complying with the court
order, the judges said, he risks being cited for contempt. So the governor said
he would ready a plan to release 10,000 more prisoners in case his appeals
Imagine a California governor sitting in the basement lockup of a federal
courthouse eating cheese sandwiches. Theoretically, at least, it could happen,
if the judges aren’t satisfied with Brown’s response.
The court’s latest order stems from the fact that even after Brown’s
controversial realignment program reduced convict numbers by about 20,000 over
the last 18 months, state prisons are remain filled to 149 percent of their
designed capacity. The judges say this overcrowding constitutes cruel and
unusual punishment, and prior, similar rulings have been upheld by the U.S.
Meanwhile, Brown looks around the state and sees cities cutting police
forces to balance budgets, well-to-do neighborhoods hiring private security to
compensate, a 65 percent rise in warrants issued for paroled sex offenders
supposedly tracked by GPS devices who have gone missing and a few felons turning
violent after being convicted of non-violent offenses and then paroled under
Possibly the most significant of the latter type of case was the early
April fatal stabbing of a woman in a Fontana park-and-ride lot. California
Highway Patrol officers later shot and killed the alleged murderer, David
Mulder, a 43-year-old transient with a history of drug offenses released from
state prison a few months earlier under realignment.
Mulder, like many others, had been transferred to the supervision of
county probation officers.
Complained Fontana Police Chief Rod Jones to reporters after that
incident and another where a felon released to county supervision alleged raped
a woman in a hotel room, “Dangerous prisoners that belong in state prison
continue to be released early.”
These and other cases caused Brown’s conservative critics to rip him,
even suggesting he be indicted for assisting those crimes.
But the entire realignment program was a response to federal court orders
– upheld by the U.S. Supreme Court – to reduce prison crowding and improve
prison medical care. Brown’s first two budgets in his current term provided
money for local agencies to supervise the supposedly low-level, non-violent
The problem, of course, is that there’s always a risk of a previously
non-violent offender turning to more serious crime. Car thieves occasionally
become arsonists, burning vehicles and whatever is near where they’re parked.
Some drug addicts become armed robbers, rapists or killers. This happens even
without realignment, but draws much more focus when prisoners are being released
early and some go missing either because local parole officers are overloaded or
tracking devices fail or are removed.
Brown said little about those cases, except that they’ve been rare
exceptions under his program, which is correct.
Now he won’t have to be very defensive any more. For by resisting the
latest court order, even to the point of approaching a constitutional crisis, he
can argue that whatever he’s done has not been of his own volition and was
designed to minimize risk.
In a state with a long tradition of voting for tough-sounding
law-and-order candidates and ballot propositions, the judges’ threatening
language has inoculated Brown against most soft-on-crime charges that might be
leveled against him during his anticipated 2014 reelection
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