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"Court intervention is necessary because this state has simply been unable to take any meaningful action to resolve the prison overcrowding crisis," said Donald Specter, director of the nonprofit Prison Law Office, which filed one of the motions.

The Legislature's failure to act during a recent special session on prison crowding, Specter added, was final proof of government's refusal to address a teeming, violent system packed to twice its intended capacity.

Attorneys said that for now, they are not pushing for a court-ordered release of inmates to thin the population. Instead, they suggest diverting certain low-risk convicts, especially parole violators, away from prison and sanctioning them in the community.

Nearly 21,000 parole violators are in state lockups, serving terms rarely lasting more than six months. Many, Specter argued, are imprisoned on relatively minor violations and could be punished through home detention or electronic monitoring or sent to residential drug treatment programs.

The legal action follows Schwarzenegger's declaration that conditions in California's $8.6-billion correctional system have created a health risk and "extreme peril" for officers and inmates.

Crowding is so severe, the governor said, that it has overwhelmed water, sewer and electrical systems at some prisons and fueled hundreds of riots, melees and smaller disturbances in the last year.

Schwarzenegger issued his emergency decree in part to give him legal authority to ship thousands of inmates to prisons in other states. That process began earlier this month, when 80 inmates were flown to a private facility in Tennessee.

Contracts to house 2,200 more convicts in other states have been signed, and corrections officials are canvassing the population for more volunteers. If they do not reach their target of 5,000 felons who volunteer to be transferred, officials said, the moves would become mandatory.

Bill Sessa, spokesman for the Department of Corrections and Rehabilitation, acknowledged Monday that overcrowding is a problem but said prison leaders are addressing it. Sessa said officials would return to the Legislature in January with plans to add beds at existing prisons, build community reentry facilities and take other measures to create space.

Sessa expressed skepticism about any proposal to divert parole violators away from prison to cut the incoming population: "These people don't go back to prison for a trivial reason, contrary to popular myth," he said.

The legal motions were filed Monday before two federal judges handling ongoing class-action lawsuits over prison medical care and mental health treatment. The motions ask that a three-judge panel be convened to weigh the proposed population cap, a step mandated under the Prison Litigation Reform Act passed by Congress in 1995.

Although county jails have often been subject to court-imposed caps, it is rare for an entire prison system to be subject to such a limit, experts said. The legal papers suggest the population should range from 111,300 to 138,000. It numbers 173,000.

"Ideally, you want to see the executive branch bring this under control on their own steam," said Michael Jacobson, author of the book "Downsizing Prisons" and the former commissioner of corrections and probation in New York City. "But this could be a catalyst to spur California to undertake some serious, systemic reform, which it clearly needs to do."

Lawyers seeking the action say the governor's declaration of an emergency lays out a solid foundation for a population cap.

They also note that the federal receiver appointed this year to take over the disgraced prison healthcare system, Robert Sillen, has said overcrowding may make his court-ordered task of improving medical care to constitutional standards impossible. That statement could further influence judges evaluating the request, the lawyers said.

Over the last 25 years, the California prison population has grown by more than 500% and the system has expanded from 12 penitentiaries to 33. Projections show that 23,000 more convicts will be added within five years, bringing the incarcerated total to 193,000. More than 15,000 inmates are housed in areas not designed as sleeping quarters, including hallways and gymnasiums. About 1,500 are sleeping in triple-decker bunks.

In their legal papers, lawyers said the crowding has caused many prisons to operate on continual "lockdown" status, meaning that a "shockingly high" percentage of inmates are confined to their cells around the clock. While on lockdown, prisoners do not receive therapy, recreation time, educational programs or other services and are released only for an occasional shower.

Concerns about crowding are not limited to California and are not new. In 2004, an independent review panel appointed by Schwarzenegger and led by former Gov. George Deukmejian concluded that crowding was at the root of the system's myriad problems.

"The key to reforming the system," the commission wrote, "lies in reducing the numbers."

Since then, the population has increased by nearly 10,000 prisoners. And new laws toughening criminal penalties - including Proposition 83, which passed last week and lengthens prison terms for sex offenders - will intensify the growth.

On Monday, a second lawsuit was filed to block enforcement of Proposition 83. Filed in federal court in Los Angeles by a sex offender on parole, the suit says the measure is an unconstitutional invasion of privacy because it requires ex-offenders to undergo electronic monitoring for life.

Forcing sex offenders to wear tracking bracelets on their ankles equates to "a badge of shame, a scarlet letter, that guarantees a life as a pariah," said the lawsuit, filed anonymously to protect the plaintiff's safety.

A separate suit, filed last week in San Francisco, has temporarily blocked enforcement of another provision of the initiative that bans ex-offenders from living within 2,000 feet of a school or park. A federal court hearing on that suit is scheduled for the end of the month.

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jenifer.warren@latimes.com

Copyright 2006 Los Angeles Times

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sacbee.com - The online division of The Sacramento Bee

This story is taken from Sacbee / Politics.
State inmate limit sought
Prisoner rights lawyers ask U.S. judges to reduce overcrowding.
By Andy Furillo - Bee Capitol Bureau
Published 12:00 am PST Tuesday, November 14, 2006

With Gov. Arnold Schwarzenegger and the Legislature coming up empty on relieving prison overcrowding, inmate rights lawyers Monday petitioned federal courts in Sacramento and San Francisco to impose a population cap as the fastest and surest way to stem the system's burgeoning crisis.

The attorneys insisted that their motion for the population limit, if it is approved, would not amount to an early release program. But a spokesman for the Department of Corrections and Rehabilitation characterized it as such and said the prison agency will contest the action.

Coming in the middle of a program to ship inmates to private, out-of-state prisons, the attorneys said the legal actions amounted to a last resort on their part to force the state to comply with a federal court order to fix medical care in California's 33 prisons and to meet its mandate in another class- action case to better treat and classify mentally ill inmates.

The only way to get right with the courts on mental health and medical care, the lawyers said in interviews and in court papers, is to reduce the prison population.

"My clients are suffering and dying under these conditions," said Michael Bien, the plaintiffs' lawyer in the mental health suit. "We can't wait any longer." His motion said 37 inmates committed suicide in California prisons this year.

Corrections spokesman Bill Sessa said that problems in mental health and medical delivery in the prisons go way beyond population. He acknowledged, however, that prison overcrowding "has a number of detrimental consequences" and "that's why we've been taking so many steps to relieve it," including the out-of-state transfer program in which 80 inmates have already been shipped to Tennessee. The state is seeking more than 2,200 such transfers, with the next ones scheduled to take place as soon as next week.

One thing the administration is not interested in is lawsuits that propose population caps, and Sessa said he fully expects the state's attorneys to contest the motions sought by the inmate rights lawyers.

"I'm sure we will," Sessa said. "We've never endorsed the early release of criminals."

The motions filed in the courtrooms of U.S. District Judges Lawrence Karlton in Sacramento and Thelton Henderson in San Francisco are asking for the appointment of a three-judge panel that would take up the issue of the population cap under the federal Prison Litigation and Reform Act. The motions are expected to be heard on Dec. 11.

Barry Krisberg, president of the National Council on Crime and Delinquency, called the population cap a "temporary emergency measure." He said the most likely reduction strategy would focus on cutting down the number of technical parole violators being reincarcerated. Increasing good behavior credits and shortening prison terms by a month on the least serious offenders scheduled for release are other potential means for the state to get under a cap, he said.

"Until such time that we roll up our sleeves and reform the parole and sentencing systems, this might return a modicum of safety to prisons and the people who have to work in them," said Krisberg, a court-appointed expert on correctional issues who has studied population caps.

Schwarzenegger sought to propel prison overcrowding to the top of the Legislature's agenda over the summer when he called for a special session to tackle the issue. But his proposals to stem the problem -- including more prison construction -- were first heavily modified and then outright rejected.

The governor then issued a proclamation declaring a prison overcrowding emergency on Oct. 4, saying there were 4,313 inmate assaults and batteries in the prisons last year, including 1,671 on the staff. The proclamation set the table for his out-of-state transfer plan.

In their papers filed Monday, the plaintiffs' lawyers did not spell out a firm population cap figure. California's prison population, stood at 173,462 as of midnight Nov. 1 -- and, since Oct. 25, has officially exceeded 200 percent of capacity in the 33 institutions.

One of their motions, however, quoted from a 2004 report issued by the Schwarzenegger- appointed California Independent Review Panel that said the "maximum safe and reasonable capacity" for male prisoners in the state is 137,764.

With 161,652 men in the system as of Nov. 1, the panel's figures would appear to suggest a reduction of about 24,000 male inmates is in order.

But Donald Specter, the head of the Prison Law Office, which filed the suit that led to the appointment last year of a receiver to oversee the prison health care system, said the motions are not designed to act as an early- release mechanism.

"The main culprit in the equation is the parole violators," Specter said. "That's the thing you could do the quickest, safest and easiest, without even a change of law."

Monday's filings gained support from the California Correctional Peace Officers Association, whose vice president, Chuck Alexander, said "we can't get the mission accomplished" with the current population and that the plaintiffs' actions would mean "relief for my members."

State Sen. Gloria Romero, D-Los Angeles, a longtime legislative prison oversight specialist, said the population cap "affords us an immediate and real opportunity to evaluate who belongs in the prison system and to jump-start parole reform."