The fight between many states and the federal government over carrying out the health-care law figured to be the most significant states’ rights blowup of the decade. Yet the most colorful battle of this sort may be taking place in California over prison overcrowding.
Jerry Brown, the quirky progressive governor, is defying the orders of three liberal federal judges to release thousands of criminals from the state’s prison system in order to relieve chronic overcrowding. The rhetoric is growing more heated as the state defies a special judicial panel that last week rejected the governor’s attempt to delay the releases and used harsh language in doing so: “Despite our repeated efforts to assist defendants to comply with our Population Reduction Order, they have consistently engaged in conduct designed to frustrate those efforts.”
In picking up the states’ rights banner, Brown finds himself being compared to Alabama’s segregationist governor, George Wallace, who in 1963 defied a federal order to desegregate the state’s schools. But some see Brown as a hero.
In California, the federal government might order marshals to open the cell doors and Brown could stand in a cell, argued Los Angeles Times columnist George Skelton. “Wallace was shamefully standing in the schoolhouse door trying to protect a university’s bigotry from integration by black students,” Skelton wrote. “Brown would be heroically protecting citizens from thugs.”
The governor isn’t just resisting the justices. He is poking his finger in their eye after a series of federal court rulings -- including one from the U.S. Supreme Court in 2011 -- that require the state to reduce its prison population. The Brown administration responded with a “realignment” program, which sent thousands of inmates to county jails as a way to save money and comply with the federal orders.
Like it or not, realignment was a defensible policy. But the administration didn’t stop there. It launched what Jonathan Simon, a law professor at the University of California, Berkeley, labeled “an offensive against the courts with the self proclaimed objective of re-establishing ‘full state control’ over the prison system.”
As Simon noted on the Berkeley Blog, the administration claimed that realignment had worked and used an aggressive legal and public-relations strategy designed to thwart further prison-population reductions. In April, the court rejected California’s attempt to have the court vacate its 2009 reduction order. It also slapped down Brown and the state government for failing to act in good faith.
In response to the court, the Democratic governor sent the Democratic-controlled Legislature a package of court-ordered plans, as required. But the legislators have no more interest than Brown does in releasing criminals onto the streets -- the one move in this liberal state that might move voters in a more Republican direction. The Brown administration has “a plan they are presenting to the Legislature that they are, let’s just say, ambivalent or neutral on whether we pass it or not,” Senate President Pro Tem Darrell Steinberg said.
As was clear from the federal panel’s refusal last week to grant a stay of its order, the judges don’t like to be openly mocked.
The aggressiveness of the Brown approach seems puzzling until one considers the fallout of his realignment plan. Even though California’s crime rate is almost at a historical low, crime in its largest cities has spiked. Republicans and conservative groups have said that the transfer of prisoners to county jails has let criminals “fall through the cracks” and end up on the streets.
County jails aren’t set up for longer-term inmates. News reports have pointed to cases in which paroled sex offenders have disabled their GPS-linked ankle bracelets since being “realigned” to the jails, which don’t have the space to deal with parole violators. Brown, it seems, is trying to avoid blowback from his realignment policy by noisily opposing the release of prisoners outright.
The continuing brouhaha signals the return to the law-and-order oratory that has paradoxically dominated California’s liberal politics for many years, after some movement in a less severe direction. (In November, voters approved Proposition 36, which softened the state’s “three strikes” law by requiring that the last strike be a serious or violent crime before triggering a life sentence.)
That law-and-order frenzy reached its apex in 1998, when Democratic Governor Gray Davis argued that Singapore, which executes convicted drug dealers, was “a good starting point” for criminal-justice policies.
With his theatrics, Brown is showing once again that he is the master of false choices as he evades real government reform. He persuaded voters to approve a tax increase last year by threatening to cut basic services. He has failed to address whether government can stretch its dollars through changes in its unsustainable largesse, which benefits unions and other Democratic interest groups in the state.
Brown would rather spark a crisis with the courts than take on the prison guards’ union, even though California’s incarceration costs -- far above the national average per capita -- are a scandal. Better to distract the public with the specter of rising crime than address overcrowding by confronting the waste and outrageous compensation in the prison-industrial complex.
There are issues worthy of a confrontation with the feds. “Our prisons are full of nonviolent criminals,” U.S. Senator Rand Paul, the Kentucky Republican, said recently in discussing a bill he co-wrote that would let judges reduce drug-related sentences despite federal mandatory-minimum sentences.
When Brown ran for president in 1992, he showed an iconoclastic side as he, for instance, championed a flat tax. But this Jerry Brown is a conventional politician who seems to care more about politics than policy -- even if it evokes comparisons to George Wallace.
(Steven Greenhut is vice president of journalism for the Franklin Center for Government and Public Integrity. He is based in Sacramento, California.)
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