The Supreme Court’s ruling on prisons means California must start facing reality

Capitol Journal

My initial gut reaction to the U.S. Supreme Court’s ordering California to empty its prison cells of 33,000 criminals was that Gov. Jerry Brown should respond: “Easy for you to say. You have bodyguards.

“And you don’t have to run for reelection.

“Forget it. No way. Not today. Not ever.”

Sort of like President Andrew Jackson purportedly said about a Supreme Court ruling favoring the Cherokees, whom he was trying to boot from the Smoky Mountains and onto the “Trail of Tears”: Chief Justice “John Marshall has made his decision, now let him enforce it.”


Jackson apparently never said that exactly, and the actual court case didn’t really fit the tale. But it’s a wonderful, long-surviving myth.

We do know that President Lincoln ignored the Supreme Court’s pro-slavery Dred Scott decision.

On the flip side of historic heroism was segregationist Arkansas Gov. Orval Faubus, who defied the Supreme Court by using the state National Guard to block the enrollment of nine black students at Little Rock Central High School. President Eisenhower federalized the guard and sent in the 101st Army Airborne to protect the students.

But Eisenhower was safeguarding innocent children, not convicted felons.

If Brown refused to release thousands of potential Willie Hortons, would President Obama intervene and open the cell doors? While Obama was running for reelection?

Probably not.

And I’ve never known of any governor who was denied reelection because he refused to free hordes of criminals.

OK, before it came to any of this, the troika of liberal federal judges that two years ago ordered the state to dramatically reduce its prison overcrowding would probably hold Brown in contempt of court. Marshals could lock on the cuffs and haul the governor off to jail.


Obama’s not likely to allow that, either.

Fine the state? Would state Controller John Chiang — a Democrat with political ambitions —write the check? The state’s practically bankrupt. Hopefully not.

This seems to be a situation ripe for state rebellion.

I called Vikram Amar, associate dean of the UC Davis law school and a constitutional law expert.


“If Jerry Brown thumbed his nose at the court — said, ‘I’m not going to; make me’ — and if marshals tried to arrest Brown, and Brown ordered the Highway Patrol to resist, then you’d have a crisis,” Amar allowed. “We’d spiral down a terrible path.

“The executive branch of the federal government would have to back the judiciary. We have a supremacy clause [in the Constitution] that says federal law is supreme over any state law in conflict….

“Ever since the Civil War and the civil rights movement, the strong presumption has been that an executive may disagree with the Supreme Court, but all must come in line once the court has spoken.”

All right. Telling the Supreme Court to shove off is not going to work.


In fact, Brown already has announced that he’ll “work to carry out the court’s ruling” while taking “all steps necessary to protect public safety.”

So here’s another idea that isn’t exactly original: Round up all the illegal immigrant prisoners and dump them off at the nearest federal courthouse. Or at least the immigration office.

It’s the federal government’s responsibility to guard our borders and keep out illegal immigrants. The feds should take the sneaks off our hands and deport them.

According to the governor’s budget, 11.2% of inmates in the state prison system are illegal immigrants, about 18,300.


I asked Assembly Speaker John A. Pérez (D-Los Angeles) about possibly handing off these convicts to U.S. immigration authorities.

“People’s knee-jerk reaction is to say, ‘Deport the undocumented perpetrators,’” Pérez told me. “And I understand that. It’s my reaction as well. Deport them to their country of origin. The problem is there’s no guarantee that they’d continue to serve their sentences.

“The other fear is that if you release them to go back to their country of origin, they’d have the potential to come back and be on our streets.”

Pérez added, “You don’t want to give them a get-out-of-jail-free card just because they’re here undocumented. And that’s what you’d be doing.”


So that’s another flawed idea.

State Senate Republican Leader Bob Dutton of Rancho Cucamonga suggested the state look into transferring illegal immigrant inmates into federal custody to serve out their sentences.

But why would the federal government imprison people who haven’t been convicted of breaking federal law? True, they broke into the country illegally. But that’s a deportable offense. See above.

All foolishness aside, it’s time for California to stop living in denial and get real.


Face the facts: If we insist on tough sentencing, we have to pay the piper.

Brown wants to extend increases in sales and car taxes to pay for moving low-level offenders from prisons into county custody.

It comes down to this under the court’s edict: Criminals either will be released to local authorities or they’ll be set free on the streets. Either the tax revenue is generated for jail time, or taxpayers will distribute get-out-of-jail-free cards.

Long term, we’ve got to overhaul our sentencing structure. The three-strikes law, which voters have twice embraced, can lock up three-timers for life for drug possession.


And we send parolees back to prison for stupid stuff like failing to meet with their parole agent.

California needs a sentencing commission to look objectively at just who we want to lock up and for how long.

The conservatives’ twin mantras of lower taxes and tougher sentencing finally have been exposed as hopelessly contradictory.

We can thank a usually conservative Supreme Court. Brown, I suspect, regards the ruling as a godsend.