Rarely since the Civil War have state officials anywhere in America been as close to openly defying federal authority as Gov. Jerry Brown and the Legislature are today.
Brown averted a constitutional crisis in mid-May, when he acceded to the demand of a three-judge federal court panel and submitted a plan to reduce the state prison population by 10,000 convicts on top of the approximately 24,000 already cut by the ongoing realignment program.
That program sees many nonviolent, supposedly non-serious offenders who previously would have gone to state prisons staying in county jails or getting released under supervision earlier than they previously could have been.
Some sheriffs already complain local probation officers are overworked and their jails underfunded despite the state’s sending money their way to pay for additional county caseloads.
But realignment and its unprecedented slashing of well over 10 percent of the prison population isn’t enough for the judges, whose previous orders have been upheld by the U.S. Supreme Court. They insist prison health care is still substandard, despite Brown’s claim that California’s system is “one of the best in the nation.”
The new plan Brown submitted under duress would move 1,600 inmates from state prisons to leased cells in county jails with extra space. It would send more people to private prisons, where about 8,000 California convicts sit today. And about 1,250 inmates with serious or violent convictions would move to firefighting camps now housing lesser offenders.
It would still fall 2,570 inmates short of the court-demanded cuts.
Brown will appeal the court order, but if it’s eventually upheld, his plan will require action by the Legislature for both funding and the authority to make moves like granting “medical paroles” to about 400 elderly or disabled inmates.
Brown appointees call his partial plan “ugly,” admitting it might pose risks to public safety and suggesting it might cause state courts to release inmates from local jails. It’s still far short of what the federal judges demand. This eventually could cause the governor and some of his top aides to be held in contempt of court.
Meanwhile, former Republican Lt. Gov. Abel Maldonado now makes the possible public safety danger the main early theme of his campaign for the GOP nomination to challenge Brown’s re-election next year.
Both Democratic and Republican legislative leaders also express reluctance to go along with the court order.
Democratic state Senate President Darrell Steinberg of Sacramento said he supports Brown’s appeal, as did Assembly Republican leader Connie Conway of Tulare, who told a reporter that government “must do everything within (our) power to prevent the release of dangerous felons.”
Maldonado started his campaign by announcing an initiative petition drive to overturn the entire realignment program Brown began because of the initial court order. Maldonado says he would satisfy federal courts by reopening shuttered prisons, building new ones and begging for more time.
“The court said reduce, not release,” he said in an interview. But the judges have refused extensions before and most of Maldonado’s program would take years.
There was a threat that Brown could be held in contempt if he did not file a plan in May, but no court order demands anything of the Legislature, except via the fact the governor cannot do all he reluctantly proposes without a legislative OK. This may leave lawmakers safe, no matter how they eventually vote.
But Brown could find himself in a situation somewhat like former Alabama Gov. George Wallace, who stood in the door of an auditorium at the University of Alabama in a symbolic attempt to keep it lily-white. Brown won’t stand in a prison gate, blocking convict releases. Unlike Wallace or predecessor Arnold Schwarzenegger, he’s not a grandstander; he created no photo-ops during this spring’s wildfires. But he could precipitate a crisis by failing to act if the Supreme Court backs the judges’ current order.
What might happen if Brown became the first governor of this century held in contempt for defying a court order? Would he be arrested by federal marshals? Might his Highway Patrol bodyguards clash with federalized National Guard troops? Not likely. It’s also improbable President Obama would confront a Democratic governor who maintains he’s protecting public safety.
But an unresolved standoff could undermine the authority of federal judges everywhere, which Brown, the former state attorney general, would not want.
This makes it most likely that even if the Supreme Court backs the judges now jousting with Brown, some compromise will emerge before there’s a true constitutional crisis. But all bets are off if Maldonado’s initiative should make the 2014 ballot and pass.
— Reach syndicated columnist Tom Elias at firstname.lastname@example.org