Posted on Wed, Jun. 28, 2006  
 

Early release of inmates unlikely, despite Schwarzenegger warning

DON THOMPSON
Associated Press

SACRAMENTO - Gov. Arnold Schwarzenegger's warning that a federal judge could order the early release of tens of thousands of inmates to ease prison crowding is unlikely to come true any time soon, inmate lawyers said Wednesday.

The governor made the claim to back his call for approval of new prisons in a special legislative session he ordered Monday. But there are no lawsuits seeking early releases and no judge has suggested it - though inmate attorneys said conditions are so poor that early release might be merited.

Nor have there been successful petitions for early releases in other states since a stringent new federal law took effect 10 years ago, said David Fathi, senior attorney with the American Civil Liberties Union's National Prison Project. That law requires approval of releases by a three-judge panel after all other options have been exhausted.

"It's a very cumbersome and demanding standard and I'm not aware of a single case in the last 10 years where it's been done," Fathi said. "Politicians sometimes use the specter of tens of thousands of prisoners being turned loose for rhetorical purposes, but the reality is it is vanishingly rare."

Schwarzenegger wants state lawmakers to approve building at least two new prisons, while sending thousands of parole violators and soon-to-be-released inmates to privately run lockups in communities around California.

A state prison system designed for 100,000 inmates had nearly 172,000 as of last week, with 16,300 inmates housed in prison gyms and day rooms, he said in a speech Monday to the California District Attorneys Association in Orange County.

"Our prisons are dangerously overcrowded right now," Schwarzenegger said. "The courts may very well take over the entire prison system and order the early release of tens of thousands of inmates."

Aides could not say what prompted the governor's warning of imminent early release. It came during the first of a series of events this week in which the governor touted his law enforcement record as he seeks re-election in November.

Schwarzenegger also promised to oppose changes to the state's tough three-strikes sentencing law.

Spokesman Adam Mendelsohn said Schwarzenegger is concerned as well about proposals to free elderly and nonviolent offenders, and that more than 150,000 Los Angeles County Jail detainees have been freed in the last four years because of crowding there.

"The mere threat of the courts taking receivership of the prisons is a concern for public safety," Mendelsohn said.

"There's no motion or lawsuit which requests that a court order the release of prisoners at this point in time," said Steve Fama, an attorney with the nonprofit San Francisco-based Prison Law Office, which has forced numerous prison reforms with lawsuits.

Moreover, the U.S. Supreme Court ruled in 1980 that crowding by itself is not unconstitutional, unless lawyers can prove there are accompanying violations of human rights, Fama said.

Nonetheless, "I don't think it's imprudent to believe it's a possibility," he added. "It's a recognition that there is a serious overcrowding problem."

Fama said he will consider arguing that crowding is a primary cause of problems that have triggered court orders or settlements involving inmate medical, mental health, dental and disability care, and parole revocations.

But Schwarzenegger's call for new prisons and community lockups doesn't solve those problems, Fama said: "It's like having a morbidly obese patient and deciding the cure is buying him a bigger pair of pants."

Corrections officials say they need the extra prison space to provide inmate programs that would help keep most prisoners from quickly returning to prison after they are released.

The community lockups would be required to help soon-to-be-released inmates find jobs, housing and substance abuse treatment programs, and would help parole violators who would otherwise be sent back to prison. About 70 percent of California inmates eventually are returned to prison after their release.

Schwarzenegger's warning resonated with Assemblyman Todd Spitzer, R-Orange. Spitzer co-chairs Schwarzenegger's High Risk Sex Offender Task Force and is leading Assembly Republicans' consideration of the governor's prison plan.

Prison reform would be easier if a federal judge simply ordered changes, Spitzer said. But he said lawmakers need to act on the governor's requests for fear the judge would turn inmates loose as one solution.

Any such ruling would likely take years, lawyers said.

"The fear factor that suddenly the doors are going to open and inmates are going to stream out, that's a 'Terminator'...movie whenever the governor gets back to private life," said Senate Majority Leader Gloria Romero, D-Los Angeles, who has chaired numerous hearings on prison reform.

It would also take years to build the new prisons Schwarzenegger says are imminently needed, Romero said, and even two new 5,000-bed prisons would only marginally cut the crowding.

The only real answer is trimming prison sentences while finding ways to keep ex-cons from quickly returning to prison, she said.

The National Conference of State Legislatures said that federal court oversight of prisons and jails was common in the 1970s and 1980s and carried over into the last decade, but has become less frequent as conditions have improved nationwide.

By 2002, the most recent year in its survey, prisons systems in six states and the District of Columbia, and individual prisons in 10 other states, were under federal court order to correct problems that included crowding and poor inmate care. However, the survey did not break down the reasons for the federal oversight.