Resource: Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics

By: Margo Schlanger

December 1, 2013

This Article explores pertinent features of the relevant legal and political ecosystem in which California shrank its prison population. Informed by court documents, state reports and policy papers, and interviews, I trace the litigation and policy that led to and that have followed the Supreme Court’s ruling affirming the Plata/Coleman population order. The result illustrates the complex interplay of institutional reform litigation and political outcomes and processes.

The Article proceeds in four parts. Part I sets out crucial background about how a 1996 anti-prisoners’-rights federal statute, the Prison Litigation Reform Act (PLRA), structures correctional civil rights litigation. Part II paints the relevant history of Plata and Coleman, in the district court and the Supreme Court, focusing on the interaction of court procedure and politics — describing, for example, how the litigation promoted a more explicit, open, and elaborate multiparty bargaining process over prison population and criminal justice policy; and how the focus during trial on public safety actually increased prisoners’ rights advocates’ effectiveness outside of litigation. It analyzes Governor Jerry Brown’s “realignment” plan — the state’s response to the Plata/Coleman population order, which shrinks the parole population and shortens parole-revocation sentence terms, moves some classes of prisoners from state to county custody, and encourages counties to consider nonincarcerative penalties for crime.

Part III looks at one of the key features of the environment in which realignment is being implemented: pre-PLRA population court orders. I demonstrate that contrary to Justice Scalia’s rhetoric, population orders such as the Plata/Coleman order have been very common in correctional civil rights cases; in fact, some of these run-of-the-mill population orders are vital parts of the ongoing story of California prison reform. In California, the existing jail population orders, and the mindset that accompanies them, are encapsulated by two (equivalent) rules of thumb — “One prisoner, one bed,” and “No floor sleepers.” Currently covering about a third of California’s jails and jail population, these orders have functioned for decades as county-specific bail and jail sentencing reform mechanisms.

Part IV concludes by examining the prospects of a litigation-focused response to what I call the “hydra risk” — the very real possibility that Plata and Coleman could succeed at chopping the head off of unconstitutional conditions of prison confinement in California, only to cause fifty-eight counties to develop unconstitutional conditions of jail confinement. The one-prisoner-one-bed mindset substantially ameliorates, but does not eliminate, the hydra risk. Going forward, it will be a huge challenge for prisoners’ rights advocates to find out what is going on in all the scattered county jails, much less to seek remedies for the problems that may be uncovered. Three types of litigation responses are likely: additional scrutiny of jails in ongoing statewide prison litigation; new jail litigation; and the revival of existing but more-or-less orphaned jail cases.