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Berkeley Law Duo Plays Role in SCOTUS Prison Crowding Case

By Andrew Cohen

Berkeley Law’s Barry Krisberg and Jeanne Woodford recently served as experts in a highly-publicized case in which the U.S. Supreme Court ordered California to reduce its prison population by 33,000 over the next two years.

In a 5-4 majority opinion, the Court held that overcrowded prison conditions violate the Eighth Amendment’s ban on cruel and unusual punishment—citing “telephone booth-sized cages” and a system that has often failed to provide minimal care to inmates with serious health problems. Justices Antonin Scalia and Samuel Alito, Jr. filed dissents, with Scalia saying the ruling was “perhaps the most radical injunction issued by a court in our nation’s history.”

Krisberg is the research and policy director at Berkeley Law’s Chief Justice Earl Warren Institute on Law and Social Policy, where Woodford—former head of the California Department of Corrections and Rehabilitation—is a senior fellow. Both were retained by plaintiffs’ counsel last year.

Summarizing his extensive research on the subject, which covered the past two decades, Krisberg made a declaration on whether the proposed inmate release would endanger public safety. Woodford’s declaration amplified her research on the adverse consequences of prison overcrowding.

“I found no evidence that slightly accelerating the release of inmates would harm public safety,” said Krisberg, who served 26 years as president of the National Council on Crime and Delinquency. “There was no concern there whatsoever and I’m relieved that the Court agreed. To me, this is one of the most important human rights decisions of the last 10 years.”

Krisberg and Woodford were both cited in the plaintiffs’ briefs, and each filed a supplemental declaration when the case moved up to the Supreme Court. The ruling upheld a three-judge federal court order that required California to lower its prison population to 110,000—still more than 137 percent of the system’s capacity. In addition to releasing prisoners early, the majority opinion cited other potential ways to lower the prison population such as new construction, out-of-state transfers, and using county facilities.

“My personal rule about being an expert witness is that I’ll only do it if it can help save someone’s life or improve public policy,” Woodford said. “To me, reducing prison overcrowding and the cost of corrections, if done correctly, can dramatically improve public safety.”

A recent proposal by California Governor Jerry Brown could satisfy the Supreme Court order by transferring as many as 40,000 low-level offenders to county jurisdiction. But Woodford remains concerned about how the reduction will be implemented amid increased county authority to implement sentencing reforms, and to send offenders to drug and mental health treatment programs rather than jail.

“We’re pretty much letting 58 counties do it their own way,” she said. “Some counties will act responsibly, but some will lock too many people up and others won’t show enough respect for due process. Without a statewide plan to implement the court order, there’s potential for confusion and chaos.”

Since the late 1990s, jails in 22 California state counties have released nearly 100,000 inmates a year to meet various caps on the number of people their facilities can accommodate. Despite those releases, California’s crime rate is at its lowest level since the Eisenhower administration.

“For each of those 22 counties, we looked at trends in how the cap was used and how many people were released early,” Krisberg said. “Crime plummeted during that time in virtually every county, and I went to great lengths to show that state leaders from varied political viewpoints embraced these proposals, from Jerry Brown to Ronald Reagan. This isn’t some crazy, radical notion.”

Krisberg further notes that 250,000 people were slated to be released from California prisons over the next two years, even without the Court’s decision. Additionally, states such as Texas, Florida, Illinois, New York, Michigan, Ohio, and Washington have reduced their prison populations over the last 25 years without experiencing a spike in crime or recidivism afterward.

In 2009, according to Woodford, 47,000 people in California spent less than 90 days in state prison—11,000 of them for less than 30 days. Because short-term prisoners have the highest recidivism rates, she has seen corrections departments continually “jumping through hoops and fighting fires while coping with overcrowding … That has prevented them from achieving substantive reform, which is why this decision is so significant.”