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Gov's "Emergency" Prison Plan Stumbles in Sacramento Superior Court

By Jonathan Simon

When Sacramento Superior Court Judge Gail Ohanesian blocked Governor Schwarnegger's emergency plan to transfer thousands of inmates out of state to private prisons, her ruling and the responses it triggered revealed a great deal about California prisons and the political order they help sustain (read the SF Chronicle story). At the outset it is worth noting that her judgment came in a lawsuit brought not by inmates but by the California Correctional Peace Officers Association (the state's powerful union of prison guards and parole agents). It is widely appreciated that the CCPOA is one of the most influential players in the state capital, but it may be more surprising to see them in the judicial field where we are used to seeing as the refuge of the politically weak (like e.g., prisoners). Next Judge Ohanesian's ruling was based on the theory that Governor Schwarzenegger's plan exceeded his reach under emergency powers because these are intended to allow state aid to local government, not to allow the governor to ignore the legislative process. Whether this ruling is upheld on appeal will be resolved relatively soon, but the theory itself helps trace the convoluted dynamics through which local prosecutors in county based state courts have packed the prison system with more than 70 thousand inmates more than the mammoth 100 thousand its 33 prisons were "designed" for. Legislatures and governors over the last 30 years have "authorized" and encouraged this runaway train of incarceration, but have sometimes balked at continuing to pay or borrow for the prison construction to keep up with it (they've done so enough to add more or less 30 prisons during those years). Governor Schwarzenegger's watch corresponds to a moment when federal (rather than state courts) may well order this massive transfer of county level problem actors to state prisons halted. Even the possibility of that constitutes a political "emergency" in California because it challenges the political consensus around which California government has been based for 30 years, i.e., the promise by the state to "disappear social problems" (in Angela Y. Davis' evocative phrase) while keeping taxes as low as possible for as long as possible.

Meanwhile, the Governor responded in the tried and true method of war on crime court bashing, he accused the court in effect of being a kind of criminal (by putting public safety at risk):

"Our prison system is in desperate need of repair, and the transferring of inmates out of state is a prudent alternative to the risk of court-ordered early release of felons,'' ....

Full post as published by Berkeley Jurisprude on February 22, 2007 (boomark / email).