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All the King’s Inmates
Richard Ehisen | Photo: Alex Farnum | October 15, 2013
Jerry Brown would prefer to avoid California’s prison problem. But the courts aren’t letting the governor off so easy.
Someday soon, California will be forced to fix its overcrowded prisons. But before that can happen, something even more dramatic must occur: Jerry Brown will have to stop behaving like Jerry Brown. That is to say, our three-term governor—the longest-serving in California’s 163-year history, and perhaps the most bullheaded—will have to accept defeat. He’ll have to take marching orders from judges. He’ll have to strike a deal with inmates’ attorneys. And worse, he’ll have to admit that he was wrong to wage war against the courts on the prison issue. That humbling day isn’t here yet, but when it does arrive, it won’t be pretty, it won’t be cheap, and it won’t be because Brown—bless his cantankerous soul—made it easy.
More than anything else currently facing our Teflon governor (including the $51 billion train to nowhere that is high-speed rail), the issue of California’s overcrowded prisons has the potential to blow up in his face. Even now, the state remains under order from a three-judge United States district court panel to cull thousands of inmates from its chronically overcrowded prison system. It is the latest in a long—and for Brown, mostly humiliating—series of rulings on the overcrowding issue, but this setback will do more than decide the immediate fate of the inmates in question. It will also go a long way toward determining Brown’s legacy—and may even affect his reelection chances.
“If Brown is defeated in 2014, it’s going to be because of a problem with the prisons,” says Dan Schnur, former aide to Republican governor Pete Wilson and director of the Jesse M. Unruh Institute of Politics at the University of Southern California. Like most observers, Schnur expects Brown to seek another term in 2014—and to win in a cakewalk. But still, a year is a lifetime in politics, and if something were to go drastically wrong (as with the Willie Horton ordeal that torpedoed Michael Dukakis’s presidential bid in 1988), it’s not hard to imagine the right GOP challenger making inroads against Brown.
It would be foolish to think that Brown isn’t aware of this. As biographer Chuck McFadden notes in his book Trailblazer, “Jerry Brown is one of the most ambitious, canny, and opportunistic politicians around,” the kind of man you can imagine “attending a Zen retreat in Big Sur and, in the car on the way home, plotting the downfall of a political rival.” But the governor’s mesmerizing mojo—what some in Sacramento call the cult of Jerry—hasn’t played nearly as well with the courts. The judiciary has not been the least enthralled with Brown’s handling of the prison mess, which, in a true touch of irony, he had a hand in creating. Indeed, many of the tough-on-crime statutes of the late ’70s, which are principally responsible for the inmate boom of the ensuing decades, were signed into law by none other than Governor Jerry Brown.
In 1982, the year before Brown left office the first time around, California had 12 prisons. Today it has 33, the last of which, Kern Valley State Prison, opened in 2005. While the flood of prison construction has stopped, the deluge of inmates has not. When the prison population peaked in October 2006, the state had just under 173,000 prisoners—more than the United Kingdom and France combined. The system was running at an incredible 200 percent of capacity: Many facilities were stacking inmates like cordwood, often sleeping them in triple bunks stuffed into every available nook and cranny. Inmate healthcare rapidly deteriorated under such conditions, sparking lawsuits. In 2005, a federal three-judge panel named a special receiver to oversee the prison healthcare system. In 2009, the panel got even more specific: California’s overcrowded prisons constituted cruel and unusual punishment, it ruled, ordering the state to reduce its inmate population to 137.5 percent of capacity within two years.
The order fell upon then–governor Arnold Schwarzenegger, but with the Governator on his way out, it was really up to his successor to execute. Brown watchers will tell you that while some of his sharper edges have dulled over the years, he is still loath to accept anything that feels like an order. “He wanted to create a solution on his own terms, the way he has with so many other intransigent problems,” says Barbara O’Connor, a Brown colleague from the old days and emeritus director of the Institute for the Study of Politics and Media in Sacramento. “But the order was foisted upon him. It was a no-win situation.”
Not that that stopped Brown from going to war anyway. One of his first acts was to challenge the order, first to the panel itself and then to the U.S. Supreme Court. Both rejected his request, with Justice Anthony Kennedy, a Sacramento native, casting the deciding vote in the contentious 5–4 Supreme Court decision in 2011. Two more appeals were similarly swatted away like pesky flies at a barbecue.
Unbowed, Brown devised his controversial prison realignment plan, under which offenders guilty of one of 500 “non-non-non” crimes—nonserious, nonviolent, nonsexual—do their time in county jails rather than state prisons. While the plan has culled around 24,000 inmates over the last two years, the system remains at 143 percent of capacity, with around 123,000 prisoners in all. Hitting 137.5 percent means that approximately 8,000 more must go before the end of the year.
It doesn’t get easier from here. Brown has already killed plans to fund new prison construction, max out the number of inmates in the state’s prison fire camps, and release some of the state’s 6,000 elderly (and often sick) inmates. In September, he pitched an alternative: spending $730 million to send more prisoners to private lockups both in and out of California. That set up a nasty battle with Senate pro tem Darrell Steinberg, who proposed reducing the prison population by expanding county-led rehabilitation programs, to the tune of around $200 million.
Common sense ultimately prevailed, and the two sides reached a compromise that finally struck a chord with the federal panel. In late September, the judges ordered Brown to work out a long-term deal with inmates’ attorneys and extended the deadline from December 31 to the end of January. It also barred Brown from signing any new contracts to ship prisoners out of state, setting up the real possibility that he’ll simply have to cut thousands of inmates loose.
None of this, O’Connor notes, works to Brown’s advantage. “Clearly, what Jerry wanted least was to give in to the courts,” she says. Kevin Eckery, a GOP strategist, agrees and tacks on a note of caution. “[Brown] can blame the court, he can blame the legislature, he can blame the prisoners’ lawyers. But at the end of the day, it is still a ticking time bomb waiting to go off on his watch.”
Which brings us back to Brown’s original sin of enabling the overcrowding in the first place. Sacramento Bee columnist Dan Walters, who has covered the capitol for decades, says that Brown’s handling of the prison issue is reminiscent of a younger, less successful Governor Brown. “The new Jerry Brown has been pretty pragmatic and flexible,” he says. “The old Brown would get his back up and work himself into a corner. That’s what he’s doing here. He doesn’t want to admit he lost, and so he’s taking a scorched-earth policy.”
Right or wrong, Brown has shown little inclination to back down. And assuming that yet another pending Supreme Court appeal gets rejected, he’ll need all of his fight to deal with what comes next. The issue of overcrowded prisons will remain. Come next year, Brown is almost guaranteed to find himself under pressure to start easing that population down, which could necessitate a comprehensive overhaul of the state’s sentencing laws. The sentencing issue is not likely to arise before the 2014 election, but when it does, the gloves will really come off. “If you think that the politics of this is difficult,” Eckery says, “wait until you get to the politics of whether we should have reduced sentences. That’s what we’re going to see after 2014.”
Originally published in the November 2013 issue of San Francisco