What Prisons Plan Will Judges Get?

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On Friday, a trio of federal judges will be waiting with hands outstretched for a plan from the state of California to resolve the overcrowded conditions behind its prison walls. And it's now looking like a distinct possibility that the plan will not be limited to the pared-down proposal ratified by the Legislature as last week's session came to an end.

It's been more than seven months since the panel of judges released its preliminary ruling that California needs to reduce its prison population by some 40,000 inmates. The final ruling, made in early August, brought us to this week... as it set a deadline of 45-days for state officials to submit a formal plan of action. The administration of Governor Arnold Schwarzenegger sought to extend that timeline, but was rejected by the U.S. Supreme Court last week.

The rejection from the Supremes came at the same time the Legislature was finally coming to grips with the lack of bicameral support for the original Schwarzenegger plan. When it was all over, Assembly Democratic leaders were unable to find enough votes in their caucus for the plan, which was ratified by the Senate in August.

But it's important to note that the federal judges never demanded a plan blessed by both California's executive and legislative branches of government. On the contrary, the formal ruling simply says that "within 45 days, defendants shall provide the court with a population reduction plan that will in no more than two years reduce the population of the [CA Department of Corrections & Rehabilitation] adult institutions to 137.5% of their combined design capacity."

And the lead defendant? That would be the governor.

All of this leads us to this week, and what plan the Schwarzenegger administration will submit: the much criticized 'prison lite' package approved by the Legislature, or one of its own making?

There's been no official announcement, but given estimates that the legislative bill would only reduce the prison population by about 20,000, it seems reasonable to assume that the governor will rekindle some of his own ideas in the documents filed in a federal court in San Francisco on Friday.

Gubernatorial press secretary Aaron McLear told reporters this morning that it's "possible" the administration will submit some of the items rejected by legislators.

Might that include the much debated 'alternative custody' plan, which would allow some inmates described as "lower risk" to serve the final 12 months of their sentence under house arrest with GPS monitoring? That idea, beaten back in the halls of the Legislature by both law enforcement groups and Republican legislators calling it "early release," was estimated to alone reduce the prison population by 6,300. Another reduction -- of 5,600 inmates -- was pegged to changing some felony crimes to misdemeanors; that, too, was shot down by powerful lobbying in the final days and weeks of the legislative session.

The rejection of those proposals prompted a sharp rebuke from the governor almost three weeks ago. "They don't have the guts to now make these decisions," he said.

The decision on what kind of plan the Schwarzenegger administration submits will be closely watched this week, but it's by no means the final word. In fact, it seems a safe bet that the ultimate legal battle will be fought in Washington, not San Francisco. If the three judge panel orders systemic prison changes -- or even immediate prisoner releases -- ease overcrowding, it's virtually certain that Schwarzenegger will take the case to the nine men and women on tha nation's highest court... in what would be a historic showdown between the constitutional issues of cruel and unusual punishment... and the ultimate rights of a state in administering its penal system.

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About John Myers

John Myers is senior editor of KQED's new multimedia California Politics & Government Desk.  He has covered California politics for most of the past two decades -- serving previously as Sacramento bureau chief for KQED News and, most recently, as political editor for KXTV News10 (ABC) in Sacramento. He moderated the only gubernatorial debate of 2014, and was named one of the nation's top statehouse reporters by The Washington Post. Follow him on Twitter @johnmyers.

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