The Ninth Circuit three judge panel’s order to release nearly 10,000 prisoners from California jails by the end of the year seemingly has put a resisting Governor Jerry Brown in a box.
On one side, Brown is threatened by the courts to free prisoners. On the other side, political opponents are mounting a campaign against Brown arguing that freed prisoners threaten public safety.
The left hook from the courts: The judges on the panel give no indication that they will accept any plan the governor puts forward to relieve prison overcrowding and the Supreme Court has already sided with the three judge panel when a previous challenge to their orders about the California prison system came before the high court.
The right jab from political adversaries: Former Lt. Governor Abel Maldonado is building a campaign for governor on the issue of prison releases, claiming California’s citizens are less safe because of the governor’s actions. Maldonado is making his claims based on the already operating realignment plan Brown backed transferring prisoners to local jails. Some of the transferred prisoners have been released according to guidelines and a few local officials believe the releases have lead to an increase in crimes. A score is tallied by frustrated legislators like state senator Jim Nielsen who continues to pound Brown with press releases over the issue.
Brown might twist away from the box closing in on him in a number of ways.
Brown could be successful with his new appeal to the high court, as I suggested previously.
The governor could offer an enlarged plan to deal with overcrowding. He has previously suggested using firefighting camps, county jails and private jails to ease prison overcrowding. He might expand the push for private jails both in and out of state. However, he will certainly feel pressure from the powerful prison guard union on any major expanded privatization effort.
Brown can urge a speeded up review of three strike cases as directed by the voters when they overwhelmingly passed Proposition 36 last November to reform the law.
And, he can expand the number of beds by building more prison space.
All the pieces of a back-up plan would take time and cost money that the governor says the state can’t afford.
Don’t be surprised if the governor turns the rhetoric around on California’s traditional tough-on-crime position, which would ultimately lead to reducing the prison overcrowding. This would be a natural for Governor Brown.
Brown could follow the lead of a number of states that are softening the tough-on-crime rhetoric by lessening penalties for drug and non-violent crimes, which include rehabilitation and home monitoring instead of jail.
Ironically, over the weekend, Andrew Cohen in the Atlantic attacked Brown on his stance on prisons comparing him to Southern governors of a half-century ago who defied court orders. At the same time, the Wall Street Journal ran an article about a number of governors, many in the South, who are embracing a re-writing of the criminal codes to lessen prison time, reducing prison population, and decreasing a heavy burden on their state budgets.
According to the article, Texas, a state often identified as the toughest on criminals, led the campaign to lessen criminal sentencing when its legislature balked at building new prisons six years ago and directed funds toward rehabilitation efforts. The prison population declined by 6,000 prisoners since then.
If Brown adopts a similar philosophy it would be in the spirit of that nearly 70% support Proposition 36 received reducing punishment under the three-strikes law.
The larger question for Brown should he adopt this philosophy is will the court give it time to work?
This is not to say that Brown won’t continue to face criticism from political opponents who will press the safety issue.
However, as Brown sees the walls moving in on him he might use this platform to make his case with the voters, who are the ultimate judges for a governor interested in re-election.