California Defies Supreme Court on Prison Releases

Jerry Brown tells the US Supreme Court to go to hell.

Brown speaks at a news conference to announce the Public Employee Pension Reform Act of 2012 at Ronald Reagan State Building in Los Angeles

The Supreme Court has ordered California to release thousands of inmates to assuage overcrowding. Jerry Brown has told them to go to hell.

The Atlantic (“California’s Prison Crisis is Now a Constitutional Crisis“):

Something extraordinary is happening in California. A long-running story about the atrocious conditions in the state’s prisons has expanded in the past two weeks into a story about state sovereignty, the doctrine of interposition, and about the ability and will of the nation’s judges to oversee the enforcement of the lawful orders they issue. The California prison crisis, in other words, has become an existential crisis over federal and state power.

California Gov. Jerry Brown is openly defying a series of federal orders requiring state officials to reduce California’s prison population to comply with the requirements of the Eighth Amendment. Instead of obeying these orders, which were directly approved by the Supreme Court, the governor instead has made a series of false and inflamatory statements about the law, the courts, the inmate problem and California’s efforts so far to solve it.


In May 2011, in a decision authored by Justice Anthony Kennedy, a native Californian, the Court broadly upheld the 2009 ruling. There was little ambiguity from the Court’s majority: the state had until June 2013 to comply. In October 2011, California began to empty its prisons. “Thousands of inmates either serving prison terms or parole revocation terms for ‘non-serious, non-violent and non-registerable sex crimes’ were shifted to county jails,” the judicial panelists noted.

But then, California’s progress stopped well short of the 137.5 percent benchmark the courts had ordered. Why? Because of political pressure generated by the shifting of the inmates from state to county facilities.


Over and over, the judicial panel gave state officials time and opportunities to fix the problem. Over and over, the prisoners’ lawyers complained about the pace of the progress. Over and over, California refused to commit to a plan that would bring the prisons into compliance by June 2013, or even December 2013. And then, in early January of this year, the state simply gave up trying.

On January 8, 2013, Gov. Brown announced that as of July 2013 he would no longer use whatever “emergency powers” he has as chief executive to comply with the order. He announced that “prison crowding no longer poses safety risks to prison staff or inmates, nor does it inhibit the delivery of timely and effective health care services to inmates.” California’s governor, in effect, unilaterally declared an end to his state’s constitutional obligation to end the prison emergency.

This is a fascinating case. Clearly, the law is on the side of the prisoners, who have already won—repeatedly—in federal court. There’s simply no question that 1) the federal judiciary has authority to order what they’ve ordered and that 2) federal judicial rulings trump the desires of the governor of California.

It’s precisely situations like this that require having an independent judiciary. It’s hard to think of a class less likely to generate sympathy than convicted felons forced to share tighter-than-ideal quarters. But we have a Constitutional protection against the infliction of cruel and unusual punishments and it’s the courts who decide what that means.

Yet, it’s not obvious who it is that’s gonna make Jerry Brown comply. The courts have no army or police. For enforcement, then, they’re reliant on the executive branch.

Can anyone imagine President Obama’s Justice Department intervening here? Or, taking a page out of President Eisenhower’s book, federalizing the California National Guard and forcibly enforcing this court order? One that calls for convicted felons to be released from prison into the general population before the completion of their sentence? I can’t.

James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. michael reynolds says:

    This is reckless, stupid and immoral. I’m ashamed of Jerry on this.

  2. steve s says:

    In a perfect world, Obama would mobilize and make it happen, but in this world he would be impeached or possibly even thrown out Mubarak Style.

  3. Travis says:

    I don’t think it’ll go that far.

    The federal courts have already put the state prison health care system under receivership, and they could theoretically do the same with the entire CDCR if Brown continues to ignore their orders. It’s one thing to issue public pronouncements of noncompliance, it’s another to invite the court system to take over another executive branch function.

  4. Mikey says:

    Jerry Brown’s a Tenth-er? Who knew?

  5. Tsar Nicholas says:

    Ah, “Moonbeam.”

    From a parody of leftism to a hard core realist. He’s not technically or in practice even colloquially a conservative, even in his current incarnation, so you can’t necessarily point out the whole “mugged by reality” rubric, which nearly has become a hackneyed cliche.

    Granted, certainly it’s the case that parents, relatives and friends often see even starker changes, as Loopy von Space Cadet grows up from being a drunken liberal frat boy to a buttoned-down conservative Republican. But still the extent to which Brown has gone from space cadet to what he is today is something to behold.

  6. Dave Schuler says:

    Gov. Brown should be impeached. Failing that, the citizens of California should recall him.

    It’s a no-win situation for President Obama. He’ll make people unhappy if he fails to act to enforce the law; he’ll make people unhappy if he acts to enforce the law. In the end, his job is more to enforce the law than it is to be popular. He should allow a reasonable amount of time for the California legislature and/or people to act, then send in the National Guard.

  7. Travis says:

    Also, there are a number of pretty liberal elected county sheriffs in California – many of whom are already hopping mad about the county jail issue. If one wanted to make a nice political point and make a name for him/herself with California progressives, they could personally serve the court order on Brown. County law enforcement officials have statewide authority in California.

  8. matt bernius says:

    This is a great example of the adage that once power is given it’s very difficult to take back.

    California’s prison system is in miserable shape. And sadly, most people don’t care.

    This American Life did a great segment on the ability of the Governor to overturn parole board findings in CA. It’s just one example of everything that is currently wrong about the way state corrections are being run and why it’s so hard to get *out* of prison there:

  9. Ben says:

    Wow, Gov. Brown is pulling an Andrew Jackson! Sickeningly shameful. If Obama had the cajones to call in the guard and enforce the order, I would gain a new-found respect for him.

  10. john personna says:

    It could be related to the heat Brown is already getting on released prisoners:

    Gov. Jerry Brown’s prison program blamed in fatal stabbing

  11. legion says:

    Can anyone imagine President Obama’s Justice Department intervening here? Or, taking a page out of President Eisenhower’s book, federalizing the California National Guard and forcibly enforcing this court order?

    If it really does come down to it, I’d expect something more along the lines of federalizing the California DoP. I remember my dad telling me stories of the fed doing something like this during the big railroad strikes… “Hey, mister rail depot manager! You’ve just been made a Major in the US Army. You’re ordered to make these trains run or face a court martial.”

  12. PD Shaw says:

    I think this points to the problems with the court’s order. By eschewing individualized assessments for a collective solution, its not terribly easy for the courts to figure out how to reduce prison size or figure out which inmates to release without significant state assistance.

    Compare the situation with a more traditional grant of habeus relief: The Court finds that the State does not have the authority to hold Prisoner X under conditions A, B, & C. If those conditions are not cured with all due haste, then Prisoner X will be released. The State fails to comply. The Court orders Prisoner X released. The State refuses. Send in federal troops. Prisoner X is freed. End of conflict.

  13. MstrB says:

    @michael reynolds: To stick up for Brown, he is in a tough spot. From the last group of early releases that the State did went out and kidnapped a 10 year old girl.

    The system they use to pick low risk for released is flawed, given a guy with 10 years of battery and theft convictions was let out and promptly went on the kidnap and possibly sexually assault a 10 year old girl.

    What is Brown supposed to do? Ignore the Supreme Court or risk the public backlash if he releases another prisoner like Summers?

  14. MstrB says:

    @john personna: Its also blamed in the Northridge Kidnapping.

  15. Dave Schuler says:

    What is Brown supposed to do? Ignore the Supreme Court or risk the public backlash if he releases another prisoner like Summers?

    I think this question exhibits some confusion. He’s supposed to do his job and his job is reflected in the oath of office he took on becoming governor:

    I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter

    Nothing there about avoiding public backlash.

    This does, however, illustrate one of the contradictions inherent in our system of government. Politicians are elected because they’re popular and like the rest of us they’re predisposed to continue doing things that have been successful for them. But that’s not the job. The job is not being popular but enforcing the law..

  16. KariQ says:

    @Dave Schuler:

    In an ideal world, sure. But we’re talking reality here. The governor is not likely to face political consequences from California voters for refusing to reduce the prison population. He will face very unhappy voters if crimes from a released prisoner get pinned on him. It’s hard to see a best case scenario, from Brown’s perspective, that includes him obeying the court order.

    This isn’t to defend him, simply to say I see how he is situated and it’s not a good spot to be in.

  17. MstrB says:

    @Dave Schuler: You’re right there is nothing about avoiding public backlash, but again last round of early releases to comply with the court order led directly the kidnapping and assault of a 10 year old girl. I wouldn’t be surprised if that event played a role in his decision to do this.

    There is a whole other aside that the LAPD has brought up regarding how the early release is selected that it involves the most recent crime and doesn’t count if the person plead out to a lesser crime (but that’s the issue with AB 109).

  18. 11B40 says:


    Admittedly, California’s one of those one-party states, so I’m sure that party (whatever its name is) will have its elders bring Governor Brown around on this. Oh, wait, Governor Brown is that party’s elder.

    “Governor, Governor please hear the call,
    Don’t stand in the cell door, don’t block up the hall”

    Bob Dylan sang something like that about a another politician from an unnamed party.

  19. jd says:

    In some military warehouse, Gov. Brown’s name is being painted on the side of a drone.

  20. Concerned Citizen says:

    My friend I grew up with who never has been and never will be a criminal is serving a 24 year sentence for threatening someone with an assault rifle. The gun was not even fired. First offense. My friend had zero prior record and could have been charged with brandishing a firearm with a sentence of up to one year in the county jail. He was a businessman and a hunter and a gun collector who had too much to drink one night and made a mistake by threatening someone with an assault rifle. No one got hurt. Why did my dear beloved friend get 24 years for this? The punishment does not fit the crime. California should not be able to get away with this injustice. My friend has to serve 85% of his sentence with no possibility of getting any additional time off for good behavior. Makes me sick every single day of my life. He has been in prison for 11 years and has 9 to go. I am NO LONGER PROUD TO BE AN AMERICAN as our constitution does NOT protect us from cruel and unusual punishment. My friend has had his teeth pulled instead of getting fillings that were needed. Now he only has 2 molars that meet on one side of his mouth to chew with. The mental health care is absolutely a crime in itself. They cut my friend off of his antidepressant medication that he had been on for 25 years. Cold turkey and it almost killed him. The medical care is terrible and the environment of overcrowded dormitory style living is inhumane and unsafe and enough to drive someone crazy. The inmates are treated worse than animals. This is not a system that will correct or rehabilitate anyone. Living in the California State Prison system is worse than being in hell. I wish Jerry Brown could experience how it really is to be in the overcrowded prison system. Jerry Brown and Jeffrey Beard should be ashamed to say that conditions in the California State Prison system are acceptable and the Federal government does not need to oversee it. That is the biggest lie I have ever heard in my life!

  21. Barry says:

    @Travis: Personally, I’d just issue a bench warrant for the governor’s arrest under contempt of court, and hold him until he’s complied (he’s had years already, and can’t plead lack of time).

  22. Barry says:

    @PD Shaw: “I think this points to the problems with the court’s order. By eschewing individualized assessments for a collective solution, its not terribly easy for the courts to figure out how to reduce prison size or figure out which inmates to release without significant state assistance.”

    That’s because the courts are not practicably able to do so (and generally shouldn’t). This was a mass problem and needs a mass solution.

  23. Barry says:

    @KariQ: “This isn’t to defend him, simply to say I see how he is situated and it’s not a good spot to be in. ”

    First, that comes with the job. Second, he’s actually being given a nice out here.

  24. Mike says:

    It seems that just about every commenter here has come down hard on Governor Brown.

    The conundrum is that he can obey the court order and release the prisoners and endanger the public, or he can keep them in prison and defy the court order. The governor chose public safety.

    One could argue that it is immoral to deliberately endanger the public. One could also argue that it is immoral to keep the prisoners in inhumane conditions. It is truly a conundrum.

    One could argue that the solution is simply to obey the law. The governor has a duty to do that. On the other hand he has a responsibility to not deliberately endanger the public.

    No doubt the governor is a intelligent and thoughtful man, who is pulled between two conflicting responsibilities. His conscience must be telling him which duty to obey.

  25. TimesFlies says:

    Time flies when you’re busy ignoring a problem? Governor Brown had two years to make this a reality.

    I seriously doubt he defies a court order he is sure to lose. This looks more like grandstanding or hoping the 9th Circuit or Supreme Court overturn the order — even if it isn’t immediate enough to help now, it would help when faced with similar issues in the future.

    That said, the executive doesn’t have a strong track record when it comes to questioning the orders of the judicial branch (Marbury to Padilla).

    Best guess?

    He’s looking for political cover if any of those 9 to 10k hurt someone he can say, “Wasn’t me! It was the evil, judicial activist courts!”