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Prof. Margo Schlanger


Prof. Schlanger's paper tackles prison overcrowding

By John Masson
Oct. 19, 2012

Michigan Law professor Margo Schlanger notes a basic starting point in her forthcoming paper on the continuing court battle about overcrowding in California’s prisons: "No floor sleepers."

Which is to say, if you're incarcerated in California, you should at least have someplace to lay your head.

Both county jails and prisons in California have long operated under that rule. In the jails, sheriffs have shortened misdemeanor sentences and reduced bail for minor offenders in response, reducing crowding. But the state prisons, which house felons, don’t have that authority. So, with the spike in California's state prison population in recent decades, overcrowding and attendant breakdowns in decent medical and mental-health care rapidly followed. Lawsuits argued that conditions in the overcrowded system constituted unconstitutionally cruel and unusual punishment, causing hundreds of preventable deaths, and last year the Supreme Court upheld a district court order requiring the state to limit prison overcrowding to about 137 percent of design capacity by the middle of 2013—an order that requires a reduction in prison population of over 60,000 prisoners from the peak, in 2007.

What's happened since, Prof. Schlanger writes, is a fascinating interplay between the political process and the litigation that was designed to force reform. She examines the history of such litigation since the mid-'90s Prison Litigation Reform Act, the litigation history of this particular case, earlier court orders addressing prison and jail overpopulation, and the possibility that solving the crowding problem at the state level might simply push the problem down to the county jail level—making it even more difficult to combat.

"This was the most important prison case in the Supreme Court for at least the past 10 years," Prof. Schlanger said. "It’s a huge case."

And it's far from over. The prison system remains under the supervision of the federal court, and the state is required to report at regular intervals its population reduction progress. Current prison population in California is about 120,000, with an additional 8600 prisoners housed at private facilities out-of-state. While the state expects to meet its next population benchmark, on Dec. 27, it has also filed court papers that suggest it will only go to work on hitting future targets "if the court insists."

Prof. Schlanger reports that the court seems to be insisting; it issued an order just last week requiring the state to submit a population reduction plan by January 7, although more than hinting that the state could have a six-month extension if needed.

"So that's where it now stands. California says it's not really inclined to cooperate with some of the future benchmarks, and the court says it's not really inclined to soften the order," Prof. Schlanger said. "We seem to be heading toward a standoff, though it won't ripen for a few months."

Prof. Schlanger said she intends to keep a close eye on the situation.

The paper, "Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics," is scheduled for publication in 2013 by the Harvard Civil Rights-Civil Liberties Law Review. A draft version is currently available.


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