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 The answer could determine how many inmates are ultimately released, who that would be and even whether federal judges decide to hold Gov. Jerry Brown in contempt.
The Brown administration filed its plan late Thursday night to further reduce the inmate population by 7,000 inmates, a plan that comes after it already has dramatically lowered the population by shipping inmates out of state and sending more felons to county jails.
The latest plan still falls 2,300 inmates short of the target set by the courts to relieve overcrowding, however.
Under the court order, the state must reduce the population in its 33 adult prisons to about 110,000 inmates by year's end to improve the treatment of sick and mentally ill inmates. The state is preparing to appeal, but the U.S. Supreme Court already has upheld the decision once.
"We can't do any more without creating huge problems for the counties, without creating huge problems for this historic realignment that occurred, and without creating huge problems for the public safety, and we just won't do that," Corrections Secretary Jeffrey Beard said Friday.
But the three federal judges ordering the inmate reduction could take matters into their own hands, bypass state law and release additional convicts, setting up yet another clash between a governor who wants to end the costly court oversight and judges who say the state is not taking its orders seriously enough.
The judges gave the state until late July to develop a list of individual inmates who are deemed unlikely to commit new crimes and otherwise might be candidates for early release. The state could then meet the population reduction order "through the release of low-risk prisoners" if other steps don't work, the judges said.
"'Low risk' does not mean 'no risk'" warned Beard. "The only remaining 'low risk' people that are left in the system are people that you might consider serious and violent offenders. ... That's the group that the court would have to order the release from."
Moreover, most of the state's proposals would require emergency approval from state legislators. And while the administration said it would ask lawmakers to increase inmates' early release or "good time" credits and parole elderly and medically incapacitated inmates, the state argued in its court filing that Brown cannot be expected to lobby for measures that he believes would jeopardize public safety.
Michael Bien, one of the attorneys who sued over prison crowding, said the state's plan "is designed to fail."
"They are kicking and screaming rather than complying with this court order," Bien said. "I think they're risking a contempt finding."
Beard said about 90 percent of the plan involves increasing capacity at inmate firefighting camps, leasing cells at county jails, and slowing the return of thousands of inmates from private prisons in other states. The plan would cost taxpayers at least $110 million in the fiscal year that begins July 1, with the cost rising to $137 million next year, the department said.
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 Late Friday, the state amended its earlier court filings to make it clear it does not intend to allow inmate firefighters who have been convicted of serious or violent offenses.
The state also proposes to reduce the prison population by increasing early release credits for nonviolent inmates and paroling elderly and medically incapacitated felons.
Bien and reform groups including the American Civil Liberties Union said the state could do much more to ease California's historically tough sentencing laws or divert felons into drug treatment or alternative custody programs without jeopardizing public safety.
Sen. Mark Leno, D-San Francisco, predicted that lawmakers would go along with proposals including slowing the return of prisoners being housed out of state. He said lawmakers also are likely to support releasing more incapacitated inmates on medical parole, expanding on an existing law that he authored. So far, only about 50 incapacitated inmates have been paroled under the 24-month-old program.
"There are ways to do this thoughtfully so that in our limited options we can sustain public safety," Leno said. "All of these steps are certainly better than having a federal court much less judiciously release prisoners."
However, Senate President Pro Tem Darrell Steinberg, D-Sacramento, supported Brown's plan to appeal the lower court's order rather than taking additional steps beyond the state's already sweeping changes to its criminal justice system.
Sen. Jim Nielsen, R-Gerber, was most upset with proposals to add an additional 1,250 inmate firefighters by allowing inmates to participate even if they were convicted of serious or violent felonies.
Beard said that won't be necessary this year, but could be allowed in the future.
Nielsen also objected to giving inmates more "good time" credits because inmates rarely have to do anything to merit the days off their sentences.
The better solution would be to keep inmates in private prisons while the state builds more cells, Nielsen said, echoing the views of other Republican state lawmakers.
[Associated
Press; By DON THOMPSON]
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