Panel to consider prison overcrowding

By Julia Cheever

July 28, 2007

A special three-judge panel to consider overcrowding in California prisons and possibly an order for the release of some prisoners has now been appointed.

The panel was named Thursday by Chief Judge Mary Schroeder of the 9th U.S. Circuit Court of Appeals in San Francisco.

It will consist of U.S. District Judge Thelton Henderson of San Francisco, U.S. District Judge Lawrence Karlton of Sacramento and 9th Circuit Judge Stephen Reinhardt of Los Angeles.

Henderson and Karlton are the two federal trial judges who issued simultaneous orders on Monday calling for the creation of a three-judge court.

Henderson and Karlton are presiding over two separate lawsuits filed over inadequate health care for the 173,000 prisoners in the state's overcrowded prisons. Both said in their orders that a prison population limit, while a last resort, may be the only way to correct health care that is so deficient it violates constitutional standards.

A federal law, the U.S. Litigation Reform Act of 1995, provides that only a special three-judge panel can order the release of prisoners in a constitutional case.

Reinhardt, the third judge on the special panel, is considered to be one of the most liberal judges on the 9th Circuit.

There was no word on how soon the panel may hold a hearing, according to lawyers in the cases.

Donald Spector, an attorney for prisoners in both lawsuits, said, "We're looking forward to litigating our request for a limit on the prison population."

He said he was pleased that Schroeder acted quickly.

As chief circuit judge, Schroeder was designated by the federal law to appoint the panel.

Bill Maile, a spokesman for Gov. Arnold Schwarzenegger, said the administration yesterday filed notice that it is appealing the two orders to the 9th U.S. Circuit Court of Appeals.

Schwarzenegger also asked the two trial judges to stay their orders until the appeal is heard. A stay is not automatic in such cases, however, Spector said.

Maile said that while awaiting developments on the appeal and the stay request, the state government "will work with the panel."

He said, "We will seek to show that efforts by the administration to address overcrowding explain why a prisoner release order is not necessary.

"We will continue to do all we can to ensure public safety," Maile said.

The convening of a three-judge panel under the prison litigation law is rare. Spector said he knew of only two other such panels created since the law was passed and in one of those cases, a settlement was reached before the panel could rule.

The 173,000 prisoners are housed in facilities originally designed for 100,000. Lawyers for the prisoners said in court briefs that a reasonable and safe limit might be 138,000, the number suggested in a 2004 report by an independent prison review panel.

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