Appendix — Schwarzenegger v. Plata (Nos. 09-416, 09-553)

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No. ohZ) Caprene Opt U.S.

INTHE 099-416 00CT 5 - 2009

Supreme Gourt of the Ma PH ey

GOVERNOR ARNOLD SCHWARZENEGGER, et al.,

We

Appellants,

MARCIANO PLATA AND RALPH COLEMAN, et al.,

Appellees.

Appeal from the United States District Courts

for the Eastern District of California and

the Northern District of California

JURISDICTIONAL STATEMENT APPENDIX

EDMUND G. BROWN JR.

ATTORNEY GENERAL OF

CALIFORNIA

JAMES M. HUMES

CHIEF DEPUTY ATTORNEY

GENERAL

MANUEL M. MEDEIROS

STATE SOLICITOR GENERAL

GORDON BURNS

DEPUTY SOLICITOR GENERAL

JONATHAN L. WOLFF

ROCHELLE EAST

SENIOR ASSISTANT

ATTORNEYS GENERAL

KYLE A. LEWIS

DANIELLE F. O’BANNON

DEPUTY ATTORNEYS

GENERAL

455 Golden Gate Avenue

Suite 11000

San Francisco, CA 94102-7004

(415) 703-5500

CARTER G. PHILLIPS*

EAMON P. JOYCE

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

(202) 736-8000

JERROLD C. SCHAEFER

PAUL B. MELLO

S. ANNE JOHNSON

SAMANTHA D. WOLFF

RENJU P. JACOB

HANSON BRIDGETT LLP

425 Market Street

26th Floor

San Francisco, CA 94105

(415) 777-3200

Counsel for Appellants

October 5, 2009

*Counsel of Record

cheba ORDA carentbeBeB a ts A TERR REE IIE

WILSON-EPES PRINTING CO., INC. ~ (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

APPENDIX A: Coleman v. Schwarzenegger/

Plata v. Schwarzenegger, Nos. 2:90-cv-00520

LKK JFM P, C01-1351 TEH (E.D. Cal/N.D.

Cal. Aug. 4, 2009) (population reduction plan

TN in Senne la

APPENDIX B: Coleman v. Schwarzenegger/

Plata v. Schwarzenegger, Nos. 2:90-cv-00520

LKK JFM P, C01-1351 TEH (E.D. Cal/N.D.

Cal. Nov. 3, 2008) (order denying motion for

GEE sncncetsccssttccscauineduinimnendiiicsiniateietadti 257a

APPENDIX C: Plata v. Schwarzenegger, No.

C01-1351 TEH (N.D. Cal. July 23, 2007)

(order granting motion to convene three-judge

TIED cccseccnccrennsnensnensseenvesnnscensesicenlcinetetiiiientadin 273a

APPENDIX D: Coleman v. Schwarzenegger,

No. 2:90-cv-00520 LKK JFM P (E.D. Cal. July

23, 2007) (order granting motion to convene

CD SE Be innecscemeitemmimoninnmiialio 288a

APPENDIX E: Coleman v. Schwarzenegger!

Plata v. Schwarzenegger, Nos. 2:90-cv-00520

LKK JFM P, C01-1351 TEH (E.D. Cal/N.D.

Cal. Sept. 3, 2009) (order denying motion to

APPENDIX F: Defendants’ Populetion Reduc-

tion Plan, Coleman v. Schwarzenegger/Plata

v. Schwarzenegger, Nos. 2:90-cv-00520 LKK

JFM P, C01-1351 TEH (E.D. Cal/N.D. Cal.

SOG. TG, THD caccrnncccnssidsnnstennsecnsacsnemiosmennneidins 312a

(i)

i

TABLE OF CONTENTS—continued

Page

APPENDIX G: Notice of Appeal to the

Supreme Court of the United States, Coleman

v. Schwarzenegger/Plata v. Schwarzenegger,

Nos. 2:90-cv-00520 LKK JFM P, C01-1351

TEH (E.D. Cal./N.D. Cal. Sept. 3, 2009).......... 354a

APPENDIX H: Federal Statute ................00000.... 356a

la

APPENDIX A

UNITED STATES DISTRICT COURT,

E.D. CALIFORNIA AND,

N.D. CALIFORNIA.

No. CIV 8-90-0520 LKK JFM P.

No. C01-1351 TEH.

RALPH COLEMAN, et al.,

Plaintiffs,

We

ARNOLD SCHWARZENEGGER, et al.,

Defendants.

MARCIANO PLATA, e¢ al.,

Plaintiffs,

Vv.

ARNOLD SCHWARZENEGGER, et al.,

Defendants.

Aug. 4, 2009.

STEPHEN REINHARDT, Circuit Judge.

LAWRENCE K. KARLTON, Senior District Judge.

THELTON E. HENDERSON, Senior District Judge.

OPINION AND ORDER

2a

TABLE OF CONTENTS

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Il. FACTUAL AND PROCEDURAL

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A. Pomhee CORGRIOR CATO) iciiccssssicccscccssdesscecssacs

1. Complaint, Stipulation, and Order for

IIE seit tticsikcn thabielisnetibubacnens

2. Appointment of Court Experts and

ee ac ssctrariccqnnecdecrnceadentenanndes

3. Periodic Status Conferences .................

4. Proceedings To Determine Whether a

Receiver Should Be Appointed .............

5. Findings of Fact and Conclusions of

Law Concerning Continuing Failure

To Meet Constitutional Standards and

Necessity of a Receivership...................

GD. TI BI vicesscccsseccsrecsscssscecsnsecss

7. Appointment of the Plata Receiver ......

B. Coleman (Mental Health Care)................

1. Findings of Eighth Amendment

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he) I Gicatceiiincesiucsemstcudaneorcians

a. Mental Health Care Beds and

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b. Transfers to Appropriate Level of

SI dchicisinstnastccddsnseudnananuinsunienceneninaeiens

Hh 9 SII lai aehanteh Usacencclamaahiniannsidanentesndasicies

3. Special Master's 2006 Monitoring

3a

C. Crowding in California’s Prison System..

1. The Increasing California Prison

ri a aitatysccesciale ruin Serconsdexaann

2. Studies Commissioned by the State

of California To Examine Prison

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3. Defining the Capacity of California

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4. Crowding in Relation to Capacity ........

D. Governor Schwarzenegger’s Emergency

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E. Motions To Convene Three-Judge Court

and Subsequent Prison Studies by the

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1. Motions To Convene and _ Initial

Pr cisitsnrcinsssnsdadgrsiaatuacccanessscias

2. Intervening Reports on Prison

SIE cinabiatsvensvitananseniwedenrscsencassceubes

3. Final Hearing and Rulings ...................

F. Proceedings Before this Three-Judge

III. LEGAL FRAMEWORK................:c:seseesseeeeees

A. The PLRA_ Standard for Prisoner

Release Orders: Primary Cause and No

EY IIIT tax cs ces, cekscaxessnicsadigeunebasiasieaananns

B. The PLRA Standard for All Prospective

Relief: Need-Narrowness-Intrusiveness

and Consideration of Public Safety..........

C. The Remedial Nature of the Three-

Judge Court Proceeding ..............csseeeeeceees

37

37

38

39

42

43

44

44

44

45

48

49

51

52

54

4a

IV. CROWDING AS PRIMARY CAUSE...........

A. General Problems in the Delivery of

5

2.

3.

Medical and Mental Health Care

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Space Issues Affecting the Delivery of

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Inability to House Inmates by

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4. Beds for Mentally Ill Inmates...............

C. Conditions of Confinement.......................

D. Other Access to Care Issues. .................0068

E.

F.

G.

1.

2.

3. Specialty Medical Care .................000

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b. Mental Health Stakl.......cccccccccccccceceses

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Medication Management ...................60.

DEOCIORL TROGOTGEB cnccessicsscocssccsnunianaan

Increasing Acuity of Mental Illness..........

Extreme Departures from the Standard

of Care and Preventable or Possibly

Preventable Deaths, Including Suicides..

Expert Opinions Regarding Causation....

Findings and Conclusions ....................00+

55

5a

CE WOMEN oo cicsccsscnsaancccsecvscenedseus

A. Alternatives to a Prisoner Release Order

1. Inadequacy of Construction as a

SEES RSS ar Serr

a. Prison Construction...................:...060

b. Construction of Re-entry Facilities...

c. Medical Facilities and Prison

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d. Construction as a Means of

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2. Inadequacy of Additional Hiring..........

3. Insufficiency of the Plata Receivership

and Coleman Special Mastership.........

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SE COMUAMIOTNY ....cyscscccessicsssecnsessosesansses

C. Findings and Conclusions ....................06

VI. NARROWLY DRAWN, LEAST INTRU-

SIVE REMEDY THAT EXTENDS NO

FURTHER THAN NECESSARY.................

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C. The Required Population Reduction........

Vil. POTENTIAL POPULATION REDUC-

TION MEASURES AND THEIR

IMPACT ON PUBLIC SAFETY AND

THE OPERATION OF THE CRIMINAL

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A. Criminogenic Nature of Overcrowded

101

102

102

102

103

105

108

109

109

112

114

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119

120

122

124

131

B.

C.

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Potential Population Reduction

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Early Release Through Expansion of

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Diversion of Technical Parole

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Diversion of Low-Risk Offenders with

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Expansion of Evidence-Based Rehabi-

litative Programming in Prisons or

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Sentencing Reform and Other

Potential Population Reduction

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Impact of Proposed Measures’ on

NN iors cosa ciecedecraxinancanetcaaions

Investigation and Prosecution of Crime

Effect on Jail Population.......................

Effect on Parole Supervision Resources

Impact on Community Corrections,

Rehabilitative Services, and Re-entry

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Impact on Integrity of Criminal

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Weight To Be Given Public Safety .......

Feasibility Notwithstanding the Present

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Inclusion of Mentally Ill Inmates in Any

Population Reduction Order.................00:.

139

152

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F. Empirical Evidence on Incarceration

NE SE TI isis can cnccvccscdscensducccsnsecccsnce 172

G. Findings and Conclusions ....................666 177

Ais EN ea sectacscecicnncnisasskecarsnenscioonscns 181

8a

I. INTRODUCTION

“California’s correctional system is in a tailspin,”

the state’s independent oversight agency has

reported. Ex. P3 at i (@Jan.2007 Little Hoover

Commission Report, “Solving California’s Corrections

Crisis: Time Is Running Out”).' Tough-on-crime poli-

tics have increased the population of California’s

prisons dramatically while making necessary reforms

impossible. Jd. at 11, 2-5, 9, 20. As a result, the state’s

prisons have become places “of extreme peril to the

safety of persons” they house, Ex. P1 at 7-8 (Governor

Schwarzenegger's Oct. 4, 2006 Prison Overcrowding

State of Emergency Declaration), while contributing

little to the safety of California’s residents, Ex. P3 at

ii. California “spends more on corrections than most

countries in the world,” but the state “reaps fewer

public safety benefits.” Zd. at 14. Although Califor-

nia’s existing prison system serves neither the public

nor the inmates well, the state has for years been

unable or unwilling to implement the reforms neces-

sary to reverse its continuing deterioration.

In this proceeding, we address two particular

problems that every day threaten the lives and

health of California prisoners. First, the medical and

mental health care available to inmates in the Cali-

fornia prison system is woefully and constitutionally

inadequate, and has been for more than a decade.

The United States Constitution does not require that

the state provide its inmates with state-of-the-art

medical and mental health care, nor does it require

’ The Little Hoover Commission is a state agency charged

with preparing reports and recommendations regarding the

structure and operation of state government in order to improve

its economy, efficiency, and service. Cal. Gov’t.Code §§ 8501,

8521-8522.

9a

that prison conditions be comfortable. California

must simply provide care consistent with “the

minimal civilized measure of life’s necessities,”

Rhodes v. Chapman, 452 U.S. 337, 347 (1981)—care

sufficient to prevent the unnecessary and wanton

infliction of pain or death, Estelle v. Gamble, 429 U.S.

97, 103-04 (1976). Tragically, California’s inmates

have long been denied even that minimal level of

medical and mental health care, with consequences

that have been serious, and often fatal. Inmates are

forced to wait months or years for medically neces-

sary appointments and examinations, and many

receive inadequate medical care in substandard

facilities that lack the medical equipment required to

conduct routine examinations or afford essential

medical treatment. Seriously mentally ill inmates

languish in horrific conditions without access to

necessary mental health care, raising the acuity of

mental illness throughout the system and increasing

the risk of inmate suicide. A significant number of

inmates have died as a result of the state’s failure to

provide constitutionally adequate medical care. As of

mid-2005, a California inmate was dying needlessly

every six or seven days.

California’s inmates face a second everyday threat

to their health and safety: the unprecedente4 over-

crowding of California’s prisons. Since reaching an

all-time population record of more than 160,000 in

October 2006, the state’s adult prison institutions

have operated at almost double their intended

capacity. As Governor Schwarzenegger observed in

declaring a prison state of emergency that continues

to this day, this creates “conditions of extreme peril”

that threaten “the health and safety of the men and

women who work inside [severely overcrowded]

prisons and the inmates housed in them... .” Ex. Pl

10a

at 1, 8. Thousands of prisoners are assigned to “bad

beds,” such as triple-bunked beds placed in gymna-

siums or day rooms, and some institutions have

populations approaching 300% of their intended

capacity. In these overcrowded conditions, inmate-on-

inmate violence is almost impossible to prevent, in-

feciious diseases spread more easily, and lockdowns

are sometimes the only means by which to maintain

control. In short, California’s prisons are bursting at

the seams and are impossible to manage.

It is the relationship between these two critical

problems that lies at the heart of the cases before us.

We must answer the question whether overcrowding

is the primary cause of the unconstitutional medical

and mental health care to which California prison

inmates are currently subjected. Two federal lawsuits

have brought the crisis in California’s prisons to this

three-judge court. Plaintiffs in the two lawsuits

contend that a reduction in the prison population is

necessary to bring the California prison system’s

medical and mental health care into constitutional

compliance. In both Plata v. Schwarzenegger and

Coleman v. Schwarzenegger,” the federal courts

initially issued narrow orders requiring California to

develop and implement remedial plans to meet this

objective. However, as the state time and again failed

to meet its own remedial targets—let alone to achieve

constitutional compliance—both courts were forced to

adopt increasingly drastic remedies, culminating in

the Plata court’s 2005 appointment of a receiver to

manage the prison medical system. Ultimately, by

? Plata involves the prison system’s constitutionally inade-

quate medical care, while Coleman involves the constitutional

deficiencies in mental health care provided to California

inmates.

lla

late 2006 it became apparent that the overcrowding

in California’s prisons rendered the efforts of the

courts, the Coleman Special Master, and the Plata

Receiver utterly insufficient. At the request of the

Plata and Coleman courts, the Chief Judge of the

United States Court of Appeals for the Ninth Circuit

convened this three-judge court to consider the plain-

tiffs’ request for a court-ordered reduction i in the Cali-

fornia prison population.

During the pendency of this proceeding, the outlook

for California’s prisons has only grown dimmer. The

state is now in the throes of a fiscal crisis that rend-

ers it unable or unwilling to commit the necessary

resources to fix the problems in its prisons. As

Matthew Cate, Secretary of the California Depart-

ment of Corrections and Rehabilitation® and a defen-

dant here, recently put it, California “cannot at this

time become further indebted for correctional health-

care.”* Ex. 1 to Defs.’ July 1, 2009 Response to

Court’s June 18, 2009 Order, filed in Coleman, at 1.

Federal law makes any prisoner release order,

including the population reduction order requested

* Until 2005, California’s adult prisons were run by the

California Department of Corrections, which was a department

within the state’s Youth and Corrections Agency. On July 1,

2005, the agency was reorganized and renamed the California

Department of Corrections and Rehabilitation (“the CDCR”). Ex.

P5 at ix. In this opinion and order, we refer to the agency as the

CDCR except when quoting orders issued prior to the reorgani-

zation.

* California has reduced spending on education, health care,

the social safety net, and services for the needy, the blind, and

children to the breaking point. Under these circumstances, we

would be reluctant to direct the state to allocate additional

funds to its prisons or to rehabilitative services at the expense of

others to whom it has a legal and moral obligation.

12a

by plaintiffs, a “remedy of last resort,” H.R. Rep. No.

104-21, at 25 (1995) (report of the House Committee

on the Judiciary on the Violent Criminal

Incarceration Act of 1995), and imposes various con-

ditions upon the issuance of such an order. See 18

U.S.C. § 3626(aX3). As we explain below, those condi-

tions have been met here: (1) crowding is the primary

cause of the state’s failure to provide its inmates with

constitutionally sufficient medical and mental health

care; (2) no relief besides a prisoner release order can

bring the California prison system into constitutional

compliance; (3) an order requiring the state to reduce

the population of its adult institutions to a lower

percentage of their combined design capacity than

presently exists—a population cap—is narrowly

tailored to the constitutional violations identified by

the Plata and Coleman courts, extends no further

than necessary to remedy those violations, and is the

least intrusive possible remedy; and (4) the state can

comply with such an order with little or no impact on

public safety and the operation of the criminal justice

system. There are numerous means by which the

state can reduce the prison population, from parole

reform and the diversion of technical parole violators

and low-risk offenders to sentencing reform and *)«<

expansion of good time credits and rehabilitative

programming. There is no need for the state to

release presently incarcerated inmates indiscrimi-

nately in order to comply with our order. Much of the

relief can be achieved instead by reducing prison

intake in a manner recommended by the state’s own

experts.

We recognize the gravity of the population reduc-

tion order we issue herein, and we do not intervene in

matters of prison population lightly. Nonetheless,

when federal court intervention becomes the only

13a

means by which to enforce rights guaranteed by the

Constitution, federal courts are obligated to act.

“Without this, all the reservations of particular rights

or privileges would amount to nothing.” The Federal-

ist No. 78 (Alexander Hamilton). California’s prison-

ers have long been denied constitutionally adequate

medical and mental health care, often with tragic

consequences, and the overcrowding in California’s

prisons, which have become criminogenic, must be

reduced if the prison system is to achieve constitu-

tional compliance. California’s prisoners, present and

future, (and the state’s population as a whole) can

wait no longer.

II. FACTUAL AND PROCEDURAL BACKGROUND

Because the courts’ prior remedial efforts are of

profound relevance in understanding the effect of

prison overcrowding and the inadequacy of forms of

relief that do not address that problem, we begin with

a detailed history of the individual Plata and Cole-

man cases. We then describe the crowded conditions

in California’s prison system and the history of the

three-judge court proceeding before turning to the

legal questions before us.

A. Plata (Medical Care)

The history of Plata involves extensive remedial

efforts over the last seven years that have faltered

because of the severe overcrowding in California’s

prisons.

The Plata class action was filed on April 5, 2001,

and plaintiffs filed an amended complaint on August

20, 2001, alleging constitutional violations in the

delivery of medical care to inmates confined in Cali-

fornia state prisons, as well as violations of the

Americans with Disabilities Act and § 504 of the

l4a

Rehabilitation Act. Ex. D1059. Plaintiffs asserted

that the “unconstitutional conditions” caused by

defendants’ failure to “properly care for and treat the

prisoners in [their] custody . . . caused widespread

harm, including severe and unnecessary pain, injury

and death.” Jd. 4 1. The Plata plaintiffs and defen-

dants negotiated a stipulation for injunctive relief,

which the Plata court approved by court order.°®

However, defendants proved incapable of or unwil-

ling to provide the stipulated relief. Three years after

approving the stipulation as an order of the court, the

Plata court conducted an evidentiary hearing that

revealed the continued existence of appalling condi-

tions arising from defendants’ failure to provide

adequate medical care to California inmates. The

Court found that defendants had been given “every

reasonable opportunity to bring [the] prison medical

system up to constitutional standards, and it [was]

beyond reasonable dispute that the State ha/ld]

failed.” Oct. 3, 2005 Findings of Fact & Conclusions of

Law Re: Appointment of Receiver (“FF & CL”), 2005

WL 2932253, at *1 (Ex. D 1063).* Following that

hearing, the Plata court concluded that it had no

choice but to place the CDCR’s medical health care

delivery system in receivership. The Plata Receiver-

ship continues to this date, but, as we explain below,

severe crowding throughout California’s prison

system renders the Receiver unable to resolve the

constitutional violations at issue in Plata.

* The stipulation resolved all of plaintiffs’ claims, including

their Rehabilitation Act and ADA claims.

® All references to court orders in this section of our opinion

and order are to orders filed in the district court in Plata.

15a

1. Complaint, Stipulation, and Order for

Injunctive Relief

In their amended complaint, the Plata plaintiffs

alleged that a number of specific deficiencies in the

CDCR’s prison medical care system rendered the

system as a whole unconstitutional. The alleged

deficiencies included inadequate medical screening of

incoming prisoners; delays in or failure,to provide

access to medical care, including specialist care;

untimely responses to medical emergencies; the

interference of custodial staff with the provision of

medical care; the failure to recruit and retain suffi-

cient numbers of competent medical staff; disorga-

nized and incomplete medical records; a “lack of

quality control procedures, including lack of

physician peer review, quality assurance and death

reviews’; a lack of protocols to deal with chronic

illnesses, including diabetes, heart disease, hepatitis,

and HIV; and the failure of the administrative griev-

ance system to provide timely or adequate responses

to complaints concerning medical care. Ex. D1059

q 192.’

Prior to filing suit, the Plata plaintiffs had been in

informal negotiations with defendants since July

1999. Ex. D 1060 7 3 (June 13, 2002 Stip. & Order).

After Plata was filed, the parties ultimately agreed to

a stipulation for injunctive relief, which the Plata

court entered as an order on June 13, 2002. Defen-

dants agreed to and were ordered to implement

certain policies and procedures on a staggered basis,

’ As we explain below, infra Section [1.A.2, it became appar-

ent early in the Plata litigation that, given the size of their

populations, California’s prisons lacked the space and facilities

required to deliver constitutionally adequate medical care or to

remedy the above deficiencies.

16a

with seven prisons to complete implementation in

2003. Id. [J 4-5. In each subsequent year, defendants

were to complete implementation at five additional

prisons, such that statewide implementation would

be achieved by the end of 2008. Id. 5.®

The stipulated policies and procedures, which

defendants filed with the Plata court on February 15,

2002, and supplemented on May 30, 2002, “are

approximately 800 pages long and contained in 11

volumes.” Mar. 10, 2003 Order at 2. Although the

stipulated policies and procedures were “designed to

meet or exceed the minimum level of care necessary

to fulfill the defendants’ obligation to plaintiffs under

the Eighth Amendment of the United States Consti-

tution,” the stipulation “require[s] defendants to pro-

vide only the minimum level of medical care required

under the Eighth Amendment.” Ex. D 1060 J 4.

The stipulation for injunctive relief provided inter

alia for regular audits of defendants’ compliance. Jd.

{WI 19-23. These audits were to include a review of no

less than 180 inmate health records at each prison.

Id. J 21(a). Medical assessments or treatment plans

contained in those records would be deemed substan-

tially in compliance with the settlement agreement if

they were consistent with the policies and procedures

or with the community standard of care “imposed

under the laws of the State of California upon health

® This roll-out plan did not include Pelican Bay State Prison,

which was under the Plata court’s jurisdiction in a separate

action, Madrid v. Cate, Case No. C90-3094 TEH (N.D.Cal.), and

was not included in the Plata case. However, on June 6, 2008,

the parties stipulated, and the court ordered, that prisoners

housed at Pelican Bay State Prison be included in the Plata

class. Thus, the Plata case now includes all thirty-three adult

institutions within the CDCR.

17a

care providers licensed to practice in California.” Jd.

q 22(b) & at 11 n.3. Compliance with the agreement

would also require “conducting minimally adequate

death reviews and quality management proceedings,”

having “tracking, scheduling and medication admin-

istration systems adequately in place,” and the

absence of any “pattern or practice that is likely to

result in serious problems [where] those problems are

not being adequately addressed.” Id. 1] 22(c)-(e).

Had the stipulated policies and procedures been

implemented, they would have resulted in compre-

hensive improvements to nearly 9!1 aspects of the

medical delivery system in California’s prisons,

including quality management; health records man-

agement; infectious disease control; staffing; inter-

institution transfers; and the timing and manner in

which inmates are provided with physician and nurse

care, as well as with necessary medications. Unfortu-

nately, defendants utterly failed to comply with the

implementation schedule to which they had stipu-

lated. As of May 10, 2005, when implementation

should have been completed at twelve prisons, “not a

single prison ha[d] successfully completed implemen-

tation.” May 10, 2005 Order to Show Cause (“OSC”),

2005 WL 2932243, at *2 (Ex. D1062). The same

remains true now, more than seven years after the

court approved the parties’ settlement agreement. As

we explain below, this is due in large part to the

severe overcrowding in California’s prisons.

2. Appointment of Court Experts and Their

Findings

In addition to stipulating to an implementation

schedule, the parties agreed to the appointment of

medical and nursing experts “to advise the Court on

the adequacy and implementation of defendants’

18a

Policies and Procedures and any other matter that

appropriately may be the subject of the experts’

testimony.” Ex. D1060 {J 16-17. The _ experts

routinely reviewed defendants’ progress towards

implementing the stipulated injunctive relief and

periodically communicated their findings and rec-

ommendations to the Plata court.

In their July 16, 2004 report to the court, the

experts identified a pattern of serious deficiencies

relating to physician quality at California prisons,

and defendants agreed to address those deficiencies

in a stipulation entered as an order of the court on

September 17, 2004 (“Patient Care Order”), Ex.

D1061.

The Patient Care Order required defendants to

engage an independent entity to (a) evaluate the

competency of physicians employed by the CDCR

and (b) provide training to those physicians

found to be deficient. It also required defendants

to undertake certain measures with respect to

the treatment of high-risk patients, to devclop

proposals regarding physician and nursing

classifications and supervision, and to fund and

fill Quality Management Assistance Teams

(“QMAT”) and other support positions.

Oct. 3, 2005 FF & CL, 2005 WL 2932253, at *2.

However, “[djefendants failed to come close to meet-

ing the terms of the Patient Care Order, even with

generous extensions of time from the Court.” Jd. The

experts noted one example of defendants’ failure to

comply after visits to the Substance Abuse and

Treatment Facility in February and March 2005:

[NJot only has little progress been made in the

implementation of Plata, but the initial morale

19a

and enthusiasm in utilizing QMAT has evapo-

rated in large part because of the inability of the

California Department of Corrections to provide

the necessary staff and support to this process.

This has delivered an unspoken message that no

change will occur.

May 16, 2005 Experts’ Report on Substance Abuse

Treatment Center, at 3 (filed in Plata on May 19,

2005).

The experts’ reports following visits to San Quentin

State Prison were no better. Following a February

2005 visit to that facility, the court’s nursing experts

observed that clinics in housing areas were some-

times “nothing more than an office used by correc-

tional officers” and “lacked basic medical equipment

and supplies.” Apr. 9, 2005 Nursing Experts’ Report

on San Quentin, at 2 (filed in Plata on May 10, 2005).

The “[mlost disturbing” conditions were in one unit

where

{t]he area used for nursing triage [was] a small

room at the end of the tier that the nurse

accesses by walking through a gate and into the

men’s showers. . . . Because of a clogged shower

drain, standing water was present outside the

clinic door. Inside, the room was filthy. The

furniture was old and in disrepair. There was

no examination table, medical equipment or

supplies, or handwashing facilities. According to

staff, equipment (otoscope [an instrument used

to examine the ear] ) requested for this area had

been denied. As well, there was no telephone or

computer access. Prior to this room being used, a

broom closet on the fourth tier was used for

nurse triage.

20a

These conditions are deplorable and have no

resemblance to a medical setting whatsoever.

Id. at 2-3. Following their visits to San Quentin in

January and February 2005, the medical experts

noted that “[m]Jedical record reviews demonstrate[d]

multiple instances of incompetence, indifference,

cruelty, and neglect. Ten deaths were reviewed. All

showed serious problems; most deaths were prevent-

able. . . . Routine medical care [was] replete with

numerous errors resulting from both system failures

as well as physician mistakes.” Apr. 8, 2005 Medical

Experts’ Report on San Quentin, at 13 (filed in Plata

on May 10, 2005).

Perhaps most damning was tne medical experts’

conclusion that “overall compliance with the Stipu-

lated Order and subsequent Court Orders was non-

existent [at San Quentin]. In fact, it was clear that

for most areas we reviewed there has been indiffe-

rence to beginning the process required in the Stipu-

lated Order,” id. at 2—despite the fact that the prison

was to have completed that process by the time of the

experts’ site visit. The experts ultimately concluded

that San Quentin was “so old, antiquated, dirty,

poorly staffed, poorly maintained, with inadequate

medical space and equipment and overcrowded that

it is our opinion that it is dangerous to house people

there with certain medical conditions and is also

dangerous to use this facility as an intake facility.”

Id. According to the experts, “the overcrowding and

facility life-safety and hygiene conditions create a

public health and life-safety risk to inmates who are

housed there.” Jd.

3. Periodic Status Conferences

Beyond receiving periodic reports from the experts,

the Plata court also conducted regular status confe-

2la

rences with the parties to help monitor and facilitate

implementation of the stipulated injunctive relief, as

well as to assess defendants’ ability and willingness

to comply with the court order approving such relief.

Based on the experts’ dismal reports of defendants’

progress, the court increased the frequency of these

conferences and, in February 2005, started meeting

with the parties on a monthly basis. To facilitate

these meetings, which typically involved large

numbers of CDCR staff housed in Sacramento, the

court rotated the location of these meetings between

San Francisco and Sacramento.

The Court invited the parties during [the]

monthly status conferences to contribute ideas as

to possible remedies, and the Court especially

encouraged defendants to consider ways in which

they could take the actions necessary to solve the

medical care problems through measures within

their own control, including use of the extraordi-

nary powers of the Governor. The Court went to

the length of requesting that defendants present

it with a series of proposed orders so that the

Court could help empower them to overcome

some of their bureaucratic hurdles on their own.

Defendants did not submit a single proposed

order.

Oct. 3, 2005 FF & CL, 2005 WL 2932253, at *26 (cita-

tion omitted).

4. Proceedings To Determine Whether a Re-

ceiver Should Be Appointed

Ultimately, the Plata court found itself with no al-

ternative but to issue an order to show cause (“OSC”)

why defendants should not be found in civil contempt

and why a receiver should not be appointed to man-

22a

age medical care delivery for the CDCR. As the court

noted when it issued the OSC on May 10, 2005:

In the four years since this case was filed, which

includes the year and a half that this Court has

been meeting with the parties on a regular basis,

two things have become ever increasingly clear:

(1) the Governor has appointed, and the State

has hired, a number of dedicated individuals to

tackle the difficult task of addressing the crisis in

the delivery of health care in the California De-

partment of Corrections (“CDC”), and, (2) despite

the best efforts of these individuals, little real

progress is being made. The problem of a highly

dysfunctional, largely decrepit, overly bureau-

cratic, and politically driven prison system,

which these defendants have inherited from past

administrations, is too far gone to be corrected by

conventional methods.

The prison medical delivery system is in such a

blatant state of crisis that in recent days defen-

dants have publicly conceded their inability to

find and implement on their own solutions that

will meet constitutional standards. The State’s

failure has created a vacuum of leadership, and

utter disarray in the management, supervision,

and delivery of care in the Department of Correc-

tions’ medical system.

Defendants have devised a long-term strategy

to contract out health care management and

much of the delivery of care. However, full

implementation of that plan is, by defendants’

own estimates, years away. In the meantime,

roughly 162,000 prisoners are being subjected to

an unconstitutional system fraught with medical

neglect and malfeasance. Defendants themselves

23a

have conceded that a significant number of

prisoners have died as a direct result of this lack

of care, and it is clear to the Court that more are

sure to suffer and die if the system is not imme-

diately overhauled.

Since the entry of the Stipulated Injunction in

June 2002, the most notable characteristic of this

case has been defendants’ failure to achieve any

substantial progress in bringing the medicalcare

system even close to minimal constitutional

standards.

May 10, 2005 OSC, 2005 WL 2932243, at *1-2. “Even

following issuance of the OSC—on the brink of possi-

ble contempt and the imposition of a Receivership—

defendants were able to enact only very limited and

piece-meal measures, with no prospect for system-

wide reform or restructuring.” Oct. 3, 2005 FF & CL,

2005 WL 2932253, at *26.

Beginning on May 31, 2005, and concluding on

June 9, 2005, the Plata court conducted a six-day

evidentiary hearing concerning the OSC. Id. at *2.

The court considered eighty-two exhibits, id., and

heard testimony from the court experts; relevant

state officials, including Undersecretary of Correc-

tions Kevin Carruth and Dr. Renee Kanan, the Act-

ing Director of Health Care Services for the CDCR;

and defendants’ medical expert Dr. Ronald Shansky.®

Following the hearing, the parties submitted legal

briefs addressing both contempt and the appointment

* As noted in our discussion below, although Dr. Shansky

testified as defendants’ expert witness in the proceedings before

the Plata court, he testified as plaintiffs’ expert witness in the

proceedings before this three-judge court.

24a

of a receiver, and several unions representing state

prison medical personnel filed an amicus brief. Jd.

Defendants did not dispute that the Plata court had

the power to appoint a receiver; instead, they argued

only that a receivership was an extraordinary remedy

to be used only if less intrusive remedies had failed or

were likely to fail. Defs.’ June 20, 2005 Response to

OSC at 2, 25.

On June 30, 2005, the Plata court heard argument

on the OSC. Oct. 3, 2005 FF & CL, 2005 WL 2932253,

at *2. “Based on the arguments of counsel, the

evidence presented, the full record in this case, and

the Court’s own observations on prison tours [of two

facilities, accompanied by counsel for the parties], the

Court delivered an oral ruling at the conclusion of the

hearing that it would take control of the medical

delivery system of the CDCR and place it under the

auspices of a Receivership.” Id.

5. Findings of Fact and Conclusions of Law

Concerning Continuing Failure To Meet

Constitutional Standards and Necessity of a

Receivership

On October 3, 2005, the court issued findings of

fact and conclusions of law setting forth the detailed

reasoning behind its oral ruling. As the court noted in

its written decision:

By all accounts, the California prison medical

care system is broken beyond repair. The harm

already done in this case to California’s prison

inmate population could not be more grave, and

the threat of future injury and death is virtually

guaranteed in the absence of drastic action. The

Court has given defendants every reasonable

opportunity to bring its prison medical system up

25a

to constitutional standards, and it is beyond

reasonable dispute that the State has failed.

Indeed, it is an uncontested fact that, on average,

an inmate in one of California’s prisons need-

lessly dies every six to seven days due to consti-

tutional deficiencies in the CDCR’s medical deli-

very system. This statistic, awful as it is, barely

provides a window into the waste of human life

occurring behind California’s prison walls due to

the gross failures of the medical delivery system.

It is clear to the Court that this unconscionable

degree of suffering and death is sure to continue

if the system is not dramatically overhauled.

Decades of neglecting medical care while vastly

expanding the size of the prison system has led

to a state of institutional paralysis. The prison

system is unable to function effectively and

suffers a lack of will with respect to prisoner

medical care.

Id. at *1.

In its order, the court identified a number of

serious problems in the care provided to inmates. The

court found that the CDCR failed to follow its own

policies regarding access to medical care, and

inmates routinely lacked timely access to care, both

in terms of screening requests and in receiving care

once it was determined that an appointment with a

physician was warranted. Jd. at *13. Inmates needing

specialty services to treat serious medical problems

were forced to wait inordinate and inexcusable

amounts of time for appointments; at one prison,

inmates with consultation referrals from early 2004

had yet to be seen in May 2005. Id. at *16. In addi-

tion, the CDCR had failed to develop or implement a

system to track and treat inmates with chronic care

26a

needs, id. at *14, and the court’s nursing expert

found that CDCR nurses often “failfed) to perform

basic functions,” such as taking vital _ signs,

conducting examinations, and identifying urgent

medical issues requiring immediate referral to a

physician. Jd. at *9.

Not unexpectedly, death reviews’ revealed

“repeated gross departures from even minimal stan-

dards of care.” Jd. at *7. The lack of adequate care

also resulted in “an inordinately high level of

morbidity,” defined as “any significant injury, harm

or medical complication that falls short of death,”

among CDCR inmates. /d. at *8-9. For example:

[I]In 2004 a San Quentin prisoner with hyperten-

sion, diabetes and renal failure was prescribed

two different medications that actually served to

exacerbate his renal failure. An optometrist

noted the patient’s retinal bleeding due to very

high blood pressure and referred him for imme-

diate evaluation, but this evaluation never took

place. It was not until a year later that the

patient’s renal failure was recognized, at which

point he was referred te a nephrologist on an

urgent basis; he should have been seen by the

specialist within 14 days but the consultation

never happened and the patient died three

months later.

Id. (citations omitted). This incident was simply a

“representative example[ |” of the grossly inadequate

care that could be found throughout the prison

systern. Id. at *6. Many prisoners were the victims of

similar treatment, or worse.

Beyond these quality of care problems, the court

noted a number of additional deficiencies in the

27a

prison medical system. Prison medical facilities

“lack[ed] the necessary medical equipment to conduct

routine examinations and to respond to emergencies,”

id. at *15, and were also “completely inadequate for

the provision of medical care”:

Many clinics [did] not meet basic sanitation

standards. Exam tables and counter tops, where

prisoners with infections such as Methicillin-

Resistant Staph Aureus (MRSA) and other

communicable diseases are treated, [were] not

routinely disinfected or sanitized. Many medical

facilities require[d)] fundamental repairs, instal-

lation of adequate lighting and such basic

sanitary facilities as sinks for hand-washing. In

fact, lack of adequate hygiene hald] forced the

closure of some operating rooms.

Id. at *14 (citations omitted). Likewise, the manage-

ment of prison pharmacy operations was “unbelieva-

bly poor.” Id. at *16. No statewide coordination

between pharmacies existed, and there were “serious,

long-standing problems with dispensing medication,

renewing prescriptions, and tracking’ expired

prescriptions.” Id. Medical records in most CDCR

prisons were “either in a shambles or non-existent. . . .

makling] even mediocre medical care impossible,” id.

at *14 (citation omitted), and the resulting lack of

access to inmates’ medical histories “resultied) in

dangerous mistakes, delay in patient care, and severe

harm.” Jd. Furthermore, the reception center intake

process, which was designed to allow medical staff to

identify inmates’ medical issues, including commu-

nicable diseases posing a risk of transmission to

other inmates and staff, was woefully inadequate. Id.

at *12-13.

28a

The court also noted a number of serious personnel

problems. Qualified medical staff were sorely lacking

at every level. According to one court expert, “20-50%

of physicians at the prisons provideld] poor quality of

care.” Id. at *5. However, the CDCR was incapable of

recruiting qualified personnel to fill the significant

vacancies that existed throughout the system, id. at

*11, and the CDCR’s lack of a medical credentialing

policy resulted in many CDCR clinicians’ practicing

outside of their areas of medical expertise. Jd. at *21.

The CDCR also lacked medical leadership, both at

the central office and at individual prisons, and the

resulting lack of supervision “foster[ed] a culture of

non-accountability and non-professionalism whereby

the acceptance of degrading and _ humiliating

conditions bec[ame] routine and permissible.” Jd. at

*10 (internal quotations, citation, and alteration

omitted).

Bases on these findings, the Plata court concluded

that “the establishment of a Receivership, along with

those actions necessary to effectuate its establish-

ment, are narrowly drawn to remedy the constitu-

tional violations at issue, extend no further than

necessary to correct a current and ongoing violation

of a federal right, and are the least intrusive means

to correct these violations.” Jd. at *33. The court

recognized that:

the imposition ot a Receivership is a drastic

measure. But it is not a measure that the Court

has sought, nor is it one the Court relishes.

Rather, the Court is simply at the end of the road

with nowhere else to turn. Indeed, it would be

fair to say that the Receivership is being imposed °

on the Court, rather than on the State, for it is

the State’s abdication of responsibility that has

29a

led to the current crisis. Since the Court has

jurisdiction over this matter, it has no choice but

to step in and fill the void.

Id. at *31 (citation omitted). The court held the

contempt remedy in abeyance after concluding that a

finding of contempt was not a prerequisite to the

appointment of a receiver. Jd. at *33. Nevertheless, it

sought to employ all feasible means other than a

prisoner release to remedy the constitutional viola-

tions.

6. Interim Remedies

On plaintiffs’ motion, the court considered

appointing a temporary receiver but ultimately opted

instead to appoint a correctional expert pending the

search for and appointment of a receiver. Jd. at *34-

35. On November 14, 2005, the Correctional Expert

filed a report and recommendations on interim reme-

dies concerning clinical staffing and death reviews.

“(Tihe Correctional Expert’s report powerfully

underscore[d] the depth of the crisis in the delivery of

health care services in the CDCR... .” Ex. D1065 at

1 (Dec. 1, 2005 Order). Over defendants’ objections,

the court ordered a series of “discrete, urgently

needed, remedial measures that could be undertaken

immediately” to improve recruitment and retention of

clinical staff. Jd. at 1, 6-15.

7. Appointment of the Plata Receiver

With the parties’ participation, the Plata court

engaged in a national search for a receiver. On

February 14, 2006, the court appointed Robert Sillen

as Receiver, with an effective date of April 17, 2006.

In its order of appointment, the court conferred broad

authority on the Receiver to “provide leadership and

executive management of the California prison

30a

medical health care delivery system with the goals of

restructuring day-to-day operations and developing,

implementing, and validating a new, sustainable

system that provides constitutionally adequate

medical care to all class members as soon as practic-

able.” Ex. P313 at 2 (Feb. 14, 2006 Order). The

Receiver was assigned “the duty to control, oversec,

supervise, and direct all administrative, personnel,

financial, accounting, contractual, legal, and other

operational functions of the medical delivery compo-

nent of the CDCR,” id., and was granted “all powers

vested by law in the Secretary of the CDCR as they

relate to the administration, control, management,

operation, and financing of the California prison

medical health care system.” Jd. at 4. On January 23,

2008, the Court appointed J. Clark Kelso to replace

Sillen as Receiver, and he has served in that capacity

to date.

The Receivers have implemented substantial

changes in the CDCR’s prison medical care system

and have issued regular reports documenting their

progress. For example, the Receiver has increased

recruitment and retention of clinical staff, imple-

mented a new pharmacy system, and instituted pilot

programs to improve medical screening at reception

centers and management of chronic care. Nonethe-

less, as we describe below, fundamental unconstitu-

tional deficiencies, caused primarily by overcrowding,

continue to exist and prevent the delivery of constitu-

tionally adequate medical care to California's

inmates.

B. Coleman (Mental Health Care)

While the Plata court has struggled to bring

the CDCR’s medical system into constitutional

compliance for more than seven years, the Coleman

gla

action has lasted even longer—almost two decades.

The first five years of litigation culminated in a

finding that the CDCR was violating the Eighth

Amendment by failing to provide constitutionally

adequate mental health care to inmates with serious

mental disorders. The past fourteen years have

involved continual efforts to remedy the constitu-

tional violations.

At the time of the Coleman trial, the Eighth

Amendment violations stemmed in large part from

the state’s complete failure to identify with any

accuracy the number of mentally ill inmates in the

prison population, despite several expert reports

addressing the issue. Early in Coleman’s remedial

phase, the state developed a screening mechanism to

identify mentally ill inmates and plans for a system

that could deliver mental health care to the thou-

sands of inmates suffering from serious mental

disorders. There are currently over 34,000 inmates

identified as seriously mentally ill in the state’s

prisons. Ex. P243 at 900124 (collection of monthly

CDCR mental health population placement reports,

dated between December 2006 and August 2008).

However, California remains unable to deliver consti-

tutionally adequate mental health care for these

inmates.

After fourteen years of remedial efforts under the

supervision of a special master and well over seventy

orders by the Coleman court, the California prison

system still cannot provide thousands of mentally ill

inmates with constitutionally adequate mental

health care, and “critically mentally ill inmates [are]

languishing in horrific conditions without access to

immediate necessary mental health care.” May 2,

32a

2006 Order at 2."° The relentless growth of the

inmate population has prevented the state from

meeting its obligations under the Eighth Amendment

and has led, inexorably, to the proceeding before this

court.

1. Findings of Eighth Amendment Violations

The Coleman action was filed on April 23, 1990.

On July 25, 1991, plaintiffs filed an amended

complaint, Ex. D1036, raising claims under the

Eighth and Fourteenth Amendments to the United

States Constitution and the Rehabilitation Act, 29

U.S.C. § 794. These claims were based on serious

inadequacies in the delivery of mental health care to

inmates in the California adult prison system. Jd.

The Coleman court subsequently certified a class

consisting of inmates with serious mental disorders."

© All references to court orders in this section of our opinion

and order are to orders filed in the district court in Coleman.

Coleman docket numbers are listed when multiple, untitled

orders were issued on the same day.

'! The class certified in 1991 consisted of “all inmates with

serious mental disorders who are now or who will in the future

be confined within the California Department of Corrections

(except the San Quentin State Prison, the Northern Reception

Center at Vacaville and the California Medical Facility-Main at

Vacaville).” Nov. 14, 1991 Order at 4-5. On July 12, 1995, the

Coleman class was decertified as to the Rehabilitation Act

claim, which was dismissed with prejudice. July 12, 1995 Order

at 2. The class definition was subsequently amended to include

“all inmates with serious mental disorders who are now, or who

will in the future, be confined within the California Department

of Corrections.” July 23, 1999 Order & Stip. & Order Amending

Plaintiff Class & Application of Remedy appended thereto at 2.

Inmates suffering from “serious mental disorders” include

those with “Organic Brain Syndrome-Severe, Schizophre-

nia, Major Depression [or] the Bipolar Disorders,” those

who “currently or within the last three years . . . [have]

33a

Nov. 14, 1991 Order at 4-5. The matter proceeded to

trial before a United States Magistrate Judge, and in

June 1994 the magistrate judge found that defen-

dants’ delivery of mental health care to class

members violated the Eighth Amendment. On

September 13, 1995, the district court adopted the

magistrate judge’s decision, with modifications.

Coleman v. Wilson, 912 F.Supp. 1282 (E.D. Cal.

1995).

In adopting the magistrate’s findings, the Coleman

court identified several significant deficiencies in the

delivery of mental health care to California’s

inmates. First, the court found delays in access to

necessary mental health care “at each level of the

mental health care delivery system as it exist[ed] in

the CDC,” which “result[ed] in exacerbation of illness

and patient suffering.” Jd. at 1308, 1309. Evidence

specifically noted by the Coleman court included

“backlogs of 300-400 inmates awaiting transfer to

enhanced outpatient programs at California Men’s

Colony [(CMC’)] or California Medical Facility

((“CMF”’))” and a defense exhibit describing “the

problem of the backlog of male inmates awaiting

transfer to CMF and CMC for mental health services”

had a significant disorder of thought or mood which

substantially impairs or substantially impaired reality

testing, judgment or behavior,” and those who “currently

do[ } not have the ability to meet the functional require-

ments of prison life without psychiatric intervention,

including psychotropic medication.” Coleman, 912 F.Supp.

at 1300 nn.15-16 (internal quotations and citations omit-

ted).

“ The district court’s order was issued following de novo

review by that court of the magistrate judge’s findings and

recommendations. Coleman, 912 F.Supp. at 1293, 1297.

34a

as “approaching the crisis level.” Jd. at 1309 (internal

quotations omitted).

In addition, defendants did not have “a systematic

program for screening and evaluating inmates for

mental illness.” Jd. at 1305. Instead, they relied on

mechanisms that were “either used haphazardly, or

depend([ed) for efficacy on incomplete or non-existent

medical records, self-reporting, or the observations of

custodial staff inadequately trained in the signs and

symptoms of mental illness.” Jd. at 1305-06. As a

result, “thousands of inmates suffering from mental

illness [were] either undetected, untreated, or both.”

Id. at 1306.

Furthermore, the Coleman court found that

“defendants’ supervision of the use of medication

[was] completely inadequate; prescriptions [were] not

timely refilled, there [was] no adequate system to

prevent hoarding of medication, . . . inmates on

psychotropic medication [were] not adequately moni-

tored, and it appearled] that some very useful

medications [were] not available because there [was]

not enough staff to do necessary post-medication

monitoring.” Jd. (internal quotations and citation

omitted); see also id. at 1310. The court also found

violations of a constitutional magnitude in the invo-

luntary medication of inmates. Jd. at 1313. In

addition, the court found significant deficiencies in

medical record keeping, “including disorganized,

untimely and incomplete filing of medical records,

insufficient charting, and incomplete or nonexistent

treatment plans” at most prisons. Jd. at 1314 (inter-

nal quotations and citation omitted); see also id. at

1315. The court found that “inmates [were] typically

transferred between prisons without even such medi-

35a

cal records as might exist.” Jd. at 1314 (internal

quotations and citation omitted); see also id. at 1315.

The Coleman court also found that “the California

Department of Corrections [was] significantly and

chronically understaffed in the area of mental health

care services.” Id. at 1307. Relying on the testimony

of a defense expert, the Coleman court further found

that “defendants [could not] provide adequate mental

health care without some form of quality assurance”

program to ensure the competence of their mental

health care staff, but that the CDCR lacked any such

program. Jd. at 1308.

These findings led the Coleman court to conclude

that defendants lacked all of the “basic, essentially

common sense, components of a minimally adequate

prison mental health care delivery system,” id. at

1298 (citing Balla v. Idaho State Bd. of Corr., 595

F.Supp. 1558, 1577 (D. Idaho 1984) (citing Ruiz v.

Estelle, 503 F.Supp. 1265, 1339 (S.D. Tex. 1980)),

including proper screening; timely access to appro-

priate levels of care; an adequate medical record

system; proper administration of psychotropic medi-

cation; competent staff in sufficient numbers; and a

basic suicide prevention program. Jd. at 1298 n.10.

The Coleman court found that the CDCR was

seriously deficient in each of the first five componenis

and that the CDCR’s suicide prevention program was

adequate in design but inadequately implemented

due to severe and chronic understaffing throughout

the CDCR. Jd. at 1305-15.**

In addition, the Coleman court found “inappropriate use of

disciplinary and behavioral control measures directed towards

the members of plaintiff class.” Jd. at 1319-20. Seriously

mentally ill inmates were “being treated with punitive measures

36a

On the basis of its findings, the Coleman court

entered an order for injunctive relief requiring defen-

dants to develop plans to remedy the constitutional

violations under the supervision of a special master.

Id. at 1323-24; see also Fact # 5, Nov. 17,-2008 Joint

Statement of Undisputed Facts.

2. Remedial Orders

On December 11, 1995, the Coleman court

appointed a special master to oversee the remedial

phase of the action. Dec. 11, 1995 Order Appointing a

Special Master at 2. The specific duties of the Special

Master included working with defendants to develop

a remedial plan to address the constitutional viola-

tions identified by the court, monitoring defendants’

implementation of and compliance with the remedial

plan, and submitting interim reports on the progress

of the remedial plan and defendants’ compliance.

Dec. 11, 1995 Order of Reference at 3-4.

Eighteen months later, the Special Master submit-

ted a report to the court accompanied by remedial

by the custody staff to control the inmates’ behavior without

regard to the cause of the behavior” because custody staff was

“inadequately trained in the signs and symptoms of serious

mental illness.” Jd. at 1320. Defendants’ placement of Coleman

class members in administrative segregation and segregated

housing units (“SHUs”) was found to violate the Eighth

Amendment because mentally ill inmates were placed in such

units “without any evaluation of their mental status, because

such placement [caused] further decompensation, and because

inmates [were] denied access to necessary mental health care

while they [were] housed in administrative segregation and/or

segregated housing.” 7d. at 1320 (internal quotations and

citation omitted). The court also found unconstitutional defen-

dants’ policy permitting the use of tasers and 37mm guns on

Coleman class members without consideration of the impact of

such measures on mental illness. Jd. at 1321-23.

37a

plans, policies, procedures, and forms collectively

identified as the Mental Health Services Delivery

System Program Guides (hereafter “Program

Guides”). June 6, 1997 Special Master’s Report on

Plans, at 1-2..* The court accepted the Special

Master’s report, ordered two specific modifications

recommended by the Special Master, gave provisional

approval to the Program Guides, and directed the

Special Master to “forthwith commence ‘monitoring

defendants’ implementation of and compliance with”

the delivery of mental health care services as set

forth in the Program Guides. June 27, 1997 Order at

2-3.

Following the court’s provisional approval of the

Program Guides, defendants continued to work with

the Special Master to implement and revise the

guides.’’ In early 2006, the Special Master submitted

a report and recommendations regarding a Revised

Program Guide that defendants concurrently submit-

ted for final approval. See Jan. 2006 Revised Program

4 A reformatted copy of the Program Guides was filed in

January 1998. Coleman docket # 913.

8 As the Coleman Special Master explained when defendants’

Revised Program Guide was submitted for final approval, at the

start of the remedial phase “the basic program guides were a

work in progress, hence their provisional adoption. Many of the

programmatic components of the defendant’s mental health

system were still embryonic and needed much nuriuring. .. . All

agreed that their implementation needed close scrutiny and

analysis over the next several years. During the subsequent

implementation process, many aspects of the provisionally

approved plans, policies, and protocols were revisited and

amended by the court, while some other provisions were

modified and upgraded by the defendants on their own initia-

tive.” Feb. 3, 2006 Special Master’s Report & Recommendations

on Defs.’ Revised Program Guide at 2.

38a

Guide (Coleman docket # 1753). On March 3, 200%

the Coleman court gave final approval to all

undisputed provisions of the Revised Program Guide

and ordered their immediate implementation. Mar. 3,

2006 Order at 1-2."

Operating under the framework established by the

Program Guides, the Coleman court has engaged in

extensive efforts to address the identified constitu-

tional violations through means other than a prisoner

release order. Since June 1997, the Coleman Special

Master has filed twenty monitoring reports and fifty-

six other reports. During the same period, the

Coleman court has issued well over seventy orders

‘6 The Revised Program Guide approved by the Coleman

court in March 2006 contains specific provisions for an annual

revision process. See Jan. 2006 Revised Program Guide

(Coleman docket # 1753-2) at 12-1-14; see also Dezember Trial

Aff. J 24 (“The Program Guide is now subject only to an annual

revision process.”). The Coleman court has specifically approved

at least one additional modification to the Revised Program

Guide. See Sept. 11, 2006 Stip. & Order at 3.

The parties have offered three separate versions of the

Revised Program Guide into evidence. Defendants have

offered as Exhibit D 1147 a document they represent to be

the Revised Program Guide approved by the Coleman court

in March 2006. See Dezember Trial Aff. 4 16. Plaintiffs

have offered as Exhibit P9 a document identified as the

September 2006 Revised Program Guide. Defendants have

also offered as Exhibit D 1148 a version of the 2008

Revised Program Guide to which is appended a redline

document showing edits from a Draft August 2008

revision. Defendants represent that at the time of filing the

2008 Revised Program Guide had been through “the

annual revision process to enable [its] publication” and

that “distribution of the final 2008 Revised Program Guide

to the field [was] in the offing.” Dezember Trial Aff. J 24.

Unless otherwise noted, all citations in this opinion and

order are to the 2008 Revised Program Guide, Ex. D1148.

39a

concerning the matters at the core of the remedial

process. As discussed in detail below, the vast major-

ity of the orders by the Coleman court have been

directed at accurately projecting short-, medium-,

and long-range bed needs; creating a _ sufficient

number of beds at the higher levels of the mental

health care delivery system; reducing delays in trans-

fers to necessary levels of care; and ensuring

adequate staffing.’’ In addition, the court has issued

several orders addressing deficiencies at specific

institutions.*® Finally, the court has issued several

" At the earliest stages of the remedial phase, the Special

Master reported that defendants’ plan for screening inmates at

reception centers represented a “vast improvement” over the

screening procedures that existed at the time of trial, and that

defendants had chosen an effective screening instrument. Mar.

12, 1996 First Report of the Special Master on the Remedial

Plan at 6-7. Implementation of screening practices was slow at

the start of the remedial phase, but by mid-1997 defendants’

screening process had improved. Evidence offered at the

Coleman trial showed that, in July 1987, approximately 2,966

inmates had been identified with a psychiatric classification

and/or placement in psychiatric facilities used by the CDCR,

while, conservatively, over 4,000 inmates with serious mental

disorders were undetected. See Coleman, 912 F.Supp. at 1306 n.

29. By July 1997, 14,293 inmates with serious mental disorders

had been identified. See Feb. 3, 2006 Special Master’s Report &

Recommendations on Defs.’ Revised Program Guide at 2. The

Special Master’s second monitoring report, filed in October 1998,

reflected increasing institutionalization of, and compliance with,

the mental health screening system, see Ex. D1108 (compilation

of summaries and recommendations from the Coleman

Special Master’s twenty monitoring reports) at DEFS059840-

DEFS059849. By August 2008, there were 34,319 inmates with

serious mental disorders identified in California’s prison

system. Ex. P243 at 900124.

8 E.g., Nov. 19, 1998 Order at 1-2 (regarding California Reha-

bilitation Center (“CRC”), Mule Creek State Prison (“Mule

Creek”), Salinas Valley State Prison (“SVSP”), Wasco State

40a

orders concerning suicide prevention efforts, includ-

ing, in the last five years, orders addressing a rising

number of inmate suicides, particularly in

administrative segregation units.”

a. Mental Health Care Beds and Treatment

Space

As the remedial phase of Coleman began and

thousands of inmates with serious mental disorders

were identified, the need for additional treatment

space at every level of the mental health care

Prison (“Wasco”), Deuel Vocational Institution (“DVI”), Califor-

nia Institution for Men (“CIM”), California Institution for

Women (“CIW”), and California State Prison-Solano (“CSP

Solano”)); Oct. 26, 2001 Order at 1-2 (regarding California Sub-

stance Abuse Training Facility (“SATF”) and California State

Prison-Los Angeles County (“CSP-LAC”)); Apr. 25, 2002 Order

at 2-3 (regarding CSP-LAC); June 13, 2002 Order (Coleman

docket # 1384) at 1-2 (regarding CIM, SATF, California State

Prison-Corcoran (“CSP-Corcoran”), CSP-LAC, CSP-Solano, San

Quentin State Prison (“San Quentin”), and SVSP); Mar. 8, 2005

Order at 3-4 (regarding CSP-Corcoran, San Quentin, and

Richard J. Donovan Correctional Facility (“R.J.Donovan”)).

9 F.g., Dec. 22, 2000 Order at 4 (requiring Special Master to

report on whether defendants have adequate mechanisms for

disciplining staff whose conduct contributes to inmate suicide);

Oct. 1, 2001 Order at 2 (directing implementation of Suicide

Reporting and Review Policy); Jan. 12, 2004 Order at 2-3

(requiring several training and planning measures for suicide

prevention); June 10, 2005 Order at 1-2 (Coleman docket

# 1668) (requiring implementation of several suicide prevention

measures); June 8, 2006 Order at 2-3 (requiring defendants to

develop a plan to deal within [sic] rising percentage of suicides

in administrative segregation and a budget and implementation

schedule); Aug. 8, 2006 Stip. & Order at 1-2 (regarding use of

video-monitoring for suicide watch observation); Sept. 11, 2006

Stip. & Order at 3 (extending time to submit final plan regard-

ing suicides in adrninistrative segregation).

4la

delivery system became manifest. See Ex. D1292

(Special Master’s Response to Court’s May 17, 2007

Request for Information) at 5 (noting emergence in

mid-and late-1990s of a “need for much expanded

mental health care and the space needed to provide

7 No .

At the time of the Coleman trial, mental health

care delivery to inmates in California’s prison system

was “limited to a few institutions and involved some

3,200 designated mental health care beds,” Defs.’

Proposed Finding of Fact # 45 (citing Ex. D1273 at

43-44; Dezember Trial Aff. J 70), including beds for

inpatient hospital care provided by the Department

of Mental Health (“DMH”) at CMF and Atascadero

State Hospital. Dezember Trial Aff. J 70. After the

Coleman trial, defendants undertook to implement

plans

for the delivery of a continuum of mental health

services, including long-term inpatient care

(provided through the department’s contract

with the California Department of Mental

Health), short-term inpatient care (the depart-

ment’s Mental Health Crisis Bed program),

intensive outpatient care (the Enhanced Out-

patient Program) and routine outpatient care

(the Correctional Clinical Case Management

program).

” Plaintiffs also offered this document into evidence as Exhi-

bit P35. Because we discuss the reports of the Coleman Special

Master and the Plata Receiver throughout this opinion and

order, we note that, at trial, both plaintiffs and defendants

introduced various reports from the Receiver and the Special

Master without objection.

42a

Mar. 12, 1996 First Report of the Special Master

on the Remedial Plan at 2-3. Defendants planned

regional mental health care service areas, with

“(iJnitial entry to the service continuum . . . provided

primarily through a uniform screening process” at

each of the CDCR’s reception centers.”* Id. at 3.

Lefendants’ remedial plans were built around the

Mental Health Services Delivery System (“MHSDS”)

set forth in the original Program Guides and the

Revised Program Guide. The MHSDS is designed to

provide mental health care to all inmates with

current symptoms of any of the Axis I serious mental

disorders identified in the current Diagnostic and

Statistical Manual,” inmates who need mental

health treatment “to protect life and/or treat signifi-

cant disability/dysfunction” resulting from a diag-

nosed or suspected mental disorder, and inmates

with a diagnosis or recent episode of exhibitionism.

Ex. D1148 at 12-1-6. The MHSDS has the same basic

structure as the “embryonic”™ system first reported

by the Coleman Special Master in March 1996. The

system is designed around four levels of care: the

Correctional Clinical Case Management Services

21 We describe reception centers in more detail below when

we discuss whether crowding is the primary cause of the consti-

tutional violations at issue. See infra Section [V.B.1.

2 As listed in the Revised Program Guide, these are:

Schizophrenia (all subtypes); Delusional Disorder; Schizophreni-

form Disorder; Schizoaffective Disorder; Brief Psychotic

Disorder; Substance-Induced Psychotic Disorder (excluding

intoxication and withdrawal); Psychotic Disorder Due to a

General Medical Condition; Psychotic Disorder Not Otherwise

Specified; Major Depressive Disorders; and Bipolar Disorders I

and II. Ex. D1148 at 12-1-6.

= Feb. 3, 2006 Special Master’s Report & Recommendations

on Defs.’ Revised Program Guide at 2.

43a

program (“CCCMS” or “3CMS”), the Enhanced

Outpatient Program (“EOP”), Mental Health Crisis

Bed (“MHCB”) Placement, and DMH Inpatient

Hospital Care. Ex. D1148 at 12-1-7 to 12-1-9.*

A significant amount of remedial effort in Coleman

has been spent on the as yet unsuccessful endeavor to

develop a sufficient number of mental health care

beds at the EOP, MHCB, and inpatient levels of

care,” as weil as to provide adequate treatment space

for all inmates with serious mental health disord-

ers.*°. The Coleman court has issued numerous

* The CCCMS level of care is for inmates whose symptoms

are under control or in partial remission and can function in the

general prison population, administrative segregation, or segre-

gated housing units. Ex. D 1148 at 12-1-7. The EOP level of care

is for inmates who suffer “Acute Onset or Significant Decom-

pensation of a serious mental disorder characterized by

increased delusional thinking, hallucinatory experiences,

marked changes in affect, and vegetative signs with definitive

impairment of reality testing and/or judgment,” and who are

unable to function in the general prison population but do not

require twenty-four hour nursing care or inpatient hospitaliza-

tion. Jd. at 12-1-7 to 12-1-8. MHCBs are for inmates who are

markedly impaired and/or dangerous to others as a result of

mental illness, or who are suicidal, and who require 24-hour

nursing care. Jd. at 12-1-8 to 12-1-9. The MHCB level of care is

also for inmates “awaiting transfer to a hospital program” and

for inmates “being stabilized on medication prior to transfer” to

a lower level of care. Jd. Finally, DMH inpatient care is for

inmates who “cannot be successfully treated” at a lower level of

care; both intermediate and acute levels of inpatient care are to

be provided. Id. at 12-1-9.

*CCCMS inmates are housed in the gencral prison

population.

* At a relatively early stage in the remedial process, defen-

dants recognized the need to develop an adequate method of

forecasting the need for such beds. However, according to Robin

Dezember, Chief Deputy Secretary of CDCR’s Correctional

44a

orders addressing the need for mental health care

beds and treatment space, including orders directing

defendants to assess the need for beds and treatment

space throughout the mental health care delivery

system and to plan for and develop the necessary

number of beds as well as sufficient space at each

level of care.”’

When the state’s growing prison population

reached a record of more than 160,000 in 2006, the

shortage of beds and space reached a crisis level. In

March 2006, defendants were ordered to submit a

plan to meet both the immediate and long-term need

for mental health care beds. Mar. 3, 2006 Order at 3-

4. During a subsequent hearing on the adequacy of

defendants’ proposed plan, the CDCR’s then-Director

of Health Care Services reported a shortage of 75

Healthcare Services Division at the time of trial, there was a

period of several years prior to 2006 “where there seemed to be a

lack of continuous attention to this program.” Rep. Tr. at

862:12-14. In 2002, a health care consulting firm “designed a

mental health bed demand forecast methodology for the

CDCR. . .. This method projects future bed needs based on

several variables that drive bed usage, including total overall

prison population, length of stay and discharge rates of patients

in inpatient status, and growth in outpatient demand propor-

tional to the historical prevalence of outpatients in the total

prison population.” Defs.’ Statewide Mental Health Bed Plan,

April 2006, filed April 17, 2006, at 3. In 2006, defendants

acknowledged that the forecasting methodology developed in

2002 needed to be updated. May 2, 2006 Order at 2 n.1.

27 F.g., May 21, 1998 Stip. & Order at 4; Sept. 14, 2000 Order

at 2; Apr. 4, 2001 Order at 4; June 27, 2001 Order at 2; Dec. 20,

2001 Order at 1-2; Mar. 4, 2002 Order at 1; May 7, 2002 Order

at 1-2; Oct. 8, 2002 Order at 2; Jan. 12, 2004 Order at 2; Apr. 5,

2004 Order at 3; July 9, 2004 Order at 3-4; Oct. 5, 2004 Order at

2; Jan. 27, 2005 Order at 2; Mar. 3, 2006 Order (Coleman docket

#1772) at 3-4.

45a

MHCBs and 125 intermediate inpatient beds and

“repeatedly referred to the shortage as a ‘crisis.” May

2, 2006 Order at 2. The Coleman court found that

defendants’ plan entirely failed to address the

CDCR’s immediate bed needs:

The special master reports, the record reflects,

and defendants admit, that the plan presented to

the court in no way adequately responds to the

severe shortage of intermediate care facility beds

and mental health crisis beds that currently

exists in the CDCR. It is undisputed that the

shortage is leaving critically mentally ill inmates

languishing in horrific conditions without access

to immediately necessary mental health care.

Id. The court further found that defendants’ long-

range plan for the provision of acute and interme-

diate care beds and mental health crisis beds

appeared “sound in principle,” but required revision

because it was based on population figures that were

“already out of date.” Id. Defendants’ plan for EOP

beds was not approved because it “describe[d] a

shortfall of over 1000 such beds in the year 2011.” Zd.

at 4. Following the hearing, the court ordered defen-

dants to file an amended long-term plan and to

include with that plan a list of any projects that could

be accelerated; to file a plan for the interim provision

of intermediate inpatient beds and mental health

crisis beds; and to maintain, open, or create interme-

diate inpatient and mental health crisis beds at

specific prison locations. Jd. at 4-6. The Coleman

court has subsequently issued several orders

concerning the provision of EOP, MHCB, and

inpatient beds, all of which are in critically short

supply, including an extensive order concerning

defendants’ long-range and interim plans for the

46a

provision of these beds.” However, providing the

beds is obviously infeasible without the necessary

space in which to locate them, especially in light of

the constantly increasing need for such beds as a

result of the substantial, if unanticipated, growth in

the prison population.

b. Transfers to Appropriate Level of Care

Throughout Coleman’s remedial phase, the state’s

delivery of mental health care to its inmates has been

plagued by delays in the transfer of inmates to higher

levels of care. Both the original Program Guides and

the Revised Program Guide include timelines for

post-referral transfers to EOP programs, mental

health care crisis beds, and DMH inpatient beds. See

Coleman docket # 913 at 1-4, 4-13, 5-13, 6-4; Ex.

D1148 at 12-1-16.*° Unfortunately, the state remains

% Oct. 20, 2006 Order; see also July 20, 2006 Order (Coleman ©

docket # 1904) at 1; Aug. 23 2006 Order.

” The timelines in the Revised Program Guide are as follows:

Reception Centers: EOP transfers should occur within 60

days, or 30 days if clinically indicated. CCCMS transfers

should occur within 90 days, or 60 days if clinically

indicated.

MHCB: MHCB transfers should occur within 24 hours of

referral.

DMH: Transfers to DMH acute placements should occur

within 10 days of referral, if accepted to DMH. Referral

must be completed within 2 working days of identification.

Transfers to DMH intermediate care placements should

occur within 30 days of referral, if accepted to DMH.

Referral must be completed within 5-10 working days.

EOP: Transfers to general population (“GP”) EOP pro-

grams should occur within 60 days, or 30 days if clinically

indicated.

47a

unable to transfer inmates to required care in a

timely fashion, and the Coleman court has issued

numerous orders directed at expediting transfers and

reducing delays.*°

ec. Staffing

A final focus of the remedial effort in Coleman over

the last decade has been the development and reten-

tion of sufficient numbers of competent mental health

care clinicians. In June 1998, the Coleman court

issuei the first of numerous orders aimed at

remedying the substantial understaffing of the

CDCR’s mental health care system, directing defen-

dants to show improvement in the “quality and quan-

tity. of contracted psychiatric services and/or” the

implementation of a “recruitment program sufficient| |

to fill vacancies in presently authorized positions.”

June 16, 1998 Order at 1. In the same order, the

court directed the Coleman Special Master to recom-

mend the staffing ratios necessary to a constitution-

ally adequate mental health care delivery system. Id.

EOP Administrative Segregation Unit (“ASU”) Hub: EOP

inmates housed in the regular ASU should transfer to an

EOP ASU Hub within 30 days of placement in the regular

ASU or within 30 days of referral to EOP level of care.

PSU: EOP inmates housed in the ASU who are endorsed

for the PSU must be transferred within 60 days of

endorsement.

Stewart Expert Report J 153; see Ex. D 1148 at 12-1-16.

© E.g., July 26, 1999 Order at 5-6; Jan. 13, 2000 Order

(Coleman docket # 1111) at 4; Apr. 27, 2000 Order at 5; July 3,

2000 Order at 6; Sept. 14, 2000 Order at 2; Apr. 4, 2001 Order

at 3-4; Jan. 12, 2004 Order at 2; Mar. 25, 2004 Order at 2-3;

Mar. 8, 2005 Order at 2; Oct. 20, 2006 Order at 3.

48a

at 2.°' Since then, the court has repeatedly ordered

defendants to create the necessary positions and to

hire staff to fill those positions.** In addition, the

court has issued orders designed to assure the compe-

tence of staff, primarily by requiring the state to

develop and implement a quality assurance and peer

review process.**

After two years of compliance monitoring, it

became apparent that orders setting staffing ratios

and requiring defendants to fill clinical positions

would not be sufficient to remedy the constitutional

violations. Accordingly, the Coleman court ordered

defendants to develop a plan to retain CDCR

psychiatrists. July 26, 1999 Order at 4. Over the next

eight years, as part of its ongoing effort to ensure

that California hires and retains sufficient clinical

staff, the court issued several orders concerning

recruitment and retention bonuses, as well as salary

increases for mental health clinicians.”

31 In July 1999, the court approved several mental health

staffing ratios and required defendants to adopt and implement

specific mental health care staffing ratios for administrative

segregation units. July 26, 1999 Order at 4-5.

% F.g., Aug. 25, 1998 Order at 1; Jan. 19, 1999 Order at 2;

July 26, 1999 Order at 4; Jan. 13, 2000 Order (Coleman docket

#1111) at 4; Apr. 27, 2000 Order at 5; July 3, 2000 Order; Aug.

28, 2000 Order (Coleman docket # 1198) at 3; Apr. 4, 2001 Order

at 4; Oct. 26, 2001 Order at 1; June 13, 2002 Order (Coleman

docket # 1383) at 4; June 13, 2002 Order (Coleman docket

# 1384) at 2; Mar. 3, 2006 Order (Coleman docket # 1772) at 3;

Mar. 9, 2006 Order (Coleman docket # 1774) at 1-2.

3 Fg., June 16, 1998 Order at 2; Aug. 12, 1998 Order at 1-2;

June 13, 2002 Order (Coleman docket # 1384) at 2.

* E.g., Jan. 13, 2000 Order (Coleman docket # 1111) at 4-5;

July 25, 2003 Order at 6; Mar. 8, 2005 Order at 1-2; June 10,

2005 Order (Coleman docket # 1667) at 1-2; Mar. 9, 2006 Order

49a

3. Special Master’s 2006 Monitoring Reports

By the end of the first decade of remedial work in

Coleman, the state had made some progress but still

had not met its constitutional obligation to provide

Coleman class members with adequate mental health

care. July 23, 2007 Order, 2007 WL 2122636, at *3.

Worse, two monitoring reports filed by the Coleman

Special Master in 2006 reflected a troubling reversal

in the progress of the remedial efforts of the preced-

- ing decade and demonstrated the profound impact of

population growth on the state’s ability to meet its

constitutional obligations to seriously mentally ill

inmates.

On January 23, 2006, the Coleman Special Master

filed his Fifteenth Monitoring Report, which included

findings made at monitoring visits to all CDCR insti-

tutions between early August 2004 and late May

2005. Jan. 23, 2006 Fifteenth Monitoring Report at

2-3. The report was grim. The Special Master

reported rising vacancy rates in staffing, as well as a

“growing crisis in accessibility to a MHCB level of

care and the continuing inadequacy of access to DMH

programs highlighted by the unmet needs assess-

ment that was conducted and concluded during the

period.” Ex. D 1108 (compilation of summaries and

recommendations from the Coleman Special Master’s

twenty monitoring reports) at DEFS060221-

DEFS060222. The Special Master also reported that

“suicides in CDCR escalated significantly during the

monitoring period for reasons that are just beginning

to be subjected to analysis.” Jd. at DEFS060222.

(Coleman docket # 1774) at 1-2; Dec. 15, 2006 Order at 1-2; Feb.

7, 2007 Order at 2; May 23, 2007 Order (Coleman docket # 2236)

at 5; June 28, 2007 Order (Coleman docket # 2301) at 3.

50a

The Special Master further reported that “transfers

to more intensive levels of mental health program-

ming and treatment” had “deteriorated sharply and

widely.” Id. at DEFS060252. The availability of

MHCBs, “the department’s sole internal resource for

providing short-term crisis care for unstable and

suicidal inmates,” had declined to the point that it

“became by mid-2005 a critical issue with severe

imupact on CDCR’s_ most seriously mentally

disordered inmates.” Jd. In addition, “the waiting list

for the admission to Psychiatric Service Units (PSUs)

for EOPs with a SHU [Segregated Housing Unit]

term, imposed on inmates who are viewed as a

danger to themselves or others, expanded steadily,

and mental health caseload inmates continued to

spend long periods in reception awaiting transfer to

EOP and 3CMS general population programs.” Jd. at

DEFS060252-DEFS060253.

Taken together, the expanding wait lists, critical

shortage of beds, and identification of hundreds of

inmates in need of clinical referrals “meant that a

growing number of the most seriously mentally ill

inmates in the CDCR were not receiving in a timely

fashion the levels of care they needed.” Jd. at

DEFS060253. To explain this backward slide in the

progress made under the Coleman court’s supervi-

sion, the Special Master pointed to the prison

system’s expanding population. For example, “none of

the [CDCR’s] planning documents . . . addressed the

department’s need to expand its capacity to provide

acute inpatient DMH care to meet the expanding

need being pushed, among other causes, by an

inexorably rising MHSDS population commensurate

with CDCR’s growing overall population.” Jd. at

DEFS060258. Likewise, progress in the timely trans-

fer of mentally ill inmates from reception centers into

Sla

general population programs had “been largely

cancelled by the recently escalating growth in the

overall CDCR population and the concomitantly

increasing number of MHSDS inmates in reception.”

Id. at DEFS060272-DEFS060273.

Defendants did not object to the Special Master’s

Fifteenth Monitoring Report or the recommendations

contained therein, including the Special Master’s

finding as to the role played by the rapidly growing

prison population and the ‘resulting lack of space

necessary to provide the requisite care to mentally ill

inmates. Mar. 3, 2006 Order (Coleman docket # 1772)

atl.

As compliance work continued in 2006, the popula-

tion pressures identified by the Special Master in

his Fifteenth Monitoring Report were evident:

Compliance became more difficult and the gains

made by defendants in the first decade receded. On

December 14, 2006, the Coleman Special Master filed

his Sixteenth Monitoring Report. That report, which

covered a monitoring period from the summer of 2005

until March 2006, Ex. D 1108 at DEFS060302,

revealed that serious shortages in staffing and bed

space, as well as substantial delays in transfers to

necessary levels of care, continued unabated.

Among other findings, the Special Master reported

that “the inexorably expanding demand for services

resulting from the bulging population” had caused a

“continuing deterioration of mental health staffing.”

Id. at DEFS060303. According to the Special Master,

“[tlwelve years after the determination that mental

health treatment in CDCR was unconstitutional, the

defendants still lacked clinical resources to meet the

needs of some 25 to 30 percent of inmates identified

52a

as seriously mentally disordered.” Td. at

DEFS060304.

Furthermore, the Special Master reported that

[tlhe general breakdown in transfers was

another transcendent issue in the 16th round of

review. As the overall caseload population

continued to increase, so too did the percentage

of the caseload in need of program beds with

intensive care and high security, including spe-

cifically DMH inpatient beds, MHCBs, PSU beds

and EOP administrative segregation placements.

Id. at DEFS060306. “[A]ccess to appropriate levels of

care for seriously mentally ill inmates remained a

problem in almost every CDCR institution.” Id. at

DEFS060307.

Although Defendants filed a response to two

recommendations contained in the Sixteenth Moni-

toring Report, they did not object to any of the above

findings, once more including the Special Master's

determination that the “escalating growth in the

overall CDCR population” was a major cause of the

CDCR’s reversal of progress. Id. at DEFS060273; see

Defs.’ Dec. 7, 2006 Response to Special Master’s

Sixteenth Report.

C. Crowding in California’s Prison System

1. The Increasing California Prison Population

Since the mid-1970s, California’s prison population

has increased by over 750 percent, rising from

approximately 20,000 inmates to an “all-time high” in

October 2006 of over 170,000 inmates, with more

than 160,000 housed in the state’s adult prison insti-

tutions. Ex. Pl at 1 (Governor Schwarzenegger’s Oct.

4, 2006 Prison Overcrowding State of Emergency

53a

Declaration); Ex. P5 at 62 (May 2006 California

Policy Research Center Report, “Understanding

California Corrections”); Fact # 9, Nov. 17, 2008 Joint

Statement of Undisputed Facts; Ex. D1259-1. Much

of this population expansion occurred during the time

in which the Plata and Coleman courts have moni-

tored the medical and mental health care in Califor-

nia’s prisons. In 1991, when the Coleman plaintiffs

filed their amended complaint, the state’s prison

system housed approximately 100,000 inmates. Ex.

P410 at 2 (CDCR Offender Information Services

Branch Data Analysis Unit, Institution and Camp

Design Bed Capacity and Population, June 30, 1987-

June 30, 2007). As of August 27, 2008, 156,352

inmates were housed in in-state prison institutions.

Fact # 10, Nov. 17, 2008 Joint Statement of Undis-

puted Facts.*

The expansive growth of the prison population in

California is due, in part, to the state’s adoption of

determinate sentencing in the 1970s, Ex. P5 at 61-62,

and the “countless increases in criminal sentences”

enacted by the legislature or in initiative measures in

succeeding years, Ex. P3 at 68 (Jan. 2007 Little

Hoover Commission Report, “Solving California’s

Corrections Crisis: Time Is Running Out”) (detailing

increases in California sentencing since the Determi-

*% In this opinion and order, we will hereafter consider only

figures and percentages relating to the CDCR’s thirty-three in-

state adult prison institutions. We do not consider camps,

community correction centers, or Department of Mental Health

state hospitals, ali of which also house CDCR inmates. It is the

thirty-three in-state adult prison institutions that are the

subject of the Governor’s Prison Overcrowding State of Emer-

gency Proclamation and were the focus of the evidence at trial

before this court. All references to “system” and “systemwide”

encompass only those thirty-three adult institutions.

54a

nate Sentencing Act became effective in 1977). In

addition, California’s prison population has increased

because of its post-sentencing practices. “The state

has [ ] been widely criticized for not doing a better job

of preparing inmates to return to society.” Ex. P4 at

121 (June 2004 Corrections Independent Review

Panel Report, “Reforming Corrections”).

Approximately 90 percent of state prison inmates

are eventually released on parole, and at present,

more than half return to prison. A 2003 study by

the Little Hoover Commission concluded that

inmates are not prepared for their release from

prison. Department of Corrections reports show

that 43 percent of inmates released from prison

in 1999 were sent back to prison within a year

and that 56 percent returned within two years.

Many of those returned to prison are parolees

who are sent back for violating the conditions of

parole, rather than for committing new crimes,

and many of those go back for relatively short

periods of time—an average of 5 1/2 months.

Id. The consequences of the state’s failure to prepare

inmates for re-entry are significant: “The vast

numbers of parolees returning to prison help drive

both the size of the prison population and the cost of

the system. In 2001 more than 74,000 (47 percent) of

the average daily prison inmate population of

157,000 was made up of parole violators.” Jd. Finally,

also significant are the actions of the parole board

and the Governor in declining to release prisoners

serving terms of 15 or 25 years to life who have

served their minimum sentence or more with

unblemished records and are determined by prison

officials not to constitute a risk to society.

55a

2. Studies Commissioned by the State of

California To Examine Prison Crowding

The California legislature has recognized prison

crowding as a serious problem since at least 1987,

when it convened a Blue Ribbon Commission on

Inmate Population Management. See Ex. P2 at 78.

The commission issued its final report in 1990, with

thirty-eight recommendations, including ‘alternative

sanctions, and more programming [and] reentry

programs.” Jd. Between 1990 and 2006, more than a

dozen commissions and other groups issued reports

with proposals to solve the overcrowding problem in

California’s prison system. Jd. at 3, 10, 78-79. As

Joan Petersilia, co-chair of the expert panel convened

by the CDCR in 2007, noted, “all of the reports

recommended essentially the same ten things,”

including diverting non-violent, non-serious offenders

and technical parole violators from prison; using a

risk and needs assessment tool to match inmates

with resources and programming; expanding rehabi-

litative programs; reforming California’s determinate

sentencing system; transferring low-risk prisoners in

the later part of their sentences to community-based

reintegration facilities; establishing a sentencing

commission; reforming parole; creating partnerships

between state and local corrections agencies; requir-

ing that all programs be based on solid research

evidence; and promoting public awareness regarding

California’s prison system. Id. at 77.

One of the most exhaustive reports completed

during this period was the June 2004 report of the

Corrections Independent Review Panel, which was

appointed by Governor Schwarzenegger; chaired by

former California Governor and Attorney General

George Deukmejian, who had a reputation as tough

56a

on crime; and composed of forty independent correc-

tional consultants and representatives from state

agencies. Ex. P4 at i. The Panel noted that Califor-

nia’s “correctional system has grown to become the

largest in the nation, rivaling in size and numbers

even those of most other countries,” and that “[n]Jot

surprisingly, this massive system shows the strains

of both its age and its decades-long growth.” Jd. at

199. The Panel found that “[aJdult prisons are

severely overcrowded, imperiling the safety of both

correctional employees and inmates.” Id. Conse-

quently, a number of the Panel’s 237 recommenda-

tions, including the enhancement of earned credits,

the expansion of rehabilitative programming, the

identification of older inmates for early release, and

the diversion of certain parole violators, were aimed

at inmate population reduction. See id. at 122-61.

3. Defining the Capacity of California Prisons

In its report, the Corrections Independent Review

Panel discussed three distinct measures of prison

capacity: “design capacity,” “operable capacity,” and

“maximum safe and reasonable capacity.” Ex. P4 at

123-124. First:

“Design capacity” is the term used for the past 50

years to designate the number of inmates a

prison is designed to accommodate according to

standards developed by the Commission on

Accreditation and the American Correctional

Association. [Footnote omitted.) The number can

be based on any combination of single-occupancy

cells, double-occupancy cells, single-or double-

bunked multiple occupancy rooms, or dormito-

ries. The standards take into account the need

for humane conditions, as well as the need to

prevent violence and move inmates to and from

57a

programs, such as mental health care, education

classes, and drug abuse treatment.

Id. at 123. “In California, design capacity is based on

one inmate per cell, single bunks in dormitories, and

no beds in space not designed for housing.” Jd.

California has never limited its prison population

to 100% design capacity, id. at 123 n.1, and has in

some respects planned for inmate population levels

that exceed 100% design capacity. The “staffing

packages” for California’s prison facilities have two

parts: the “initial staffing package,” which is based on

population at 100% design capacity, or one inmate

per cell, and the “overcrowding package which,

depending on the level of the facility being built,

could be 150 percent, 175 percent, 190 percent or 200

percent.” Rep. Tr. at 540:24-541:4 (Raymond). The

“overcrowding package” is “a staff enhancement of

the design bed package.” Jd. at 548:4-7. The combined

staffing package shows the size of the staff necessary

for a facility at 100% design capacity and the

additional staff required as the facility becomes more

crowded. Id. at 545:10-13.

Similarly, prisons built between 1985 and 1998,

when the design capacity of the CDCR’s adult

institutions and camps increased from 29,042 to near

its present level of approximately 80,000 inmates, Ex.

P212 at Table 10, “were designed and built to

accommodate population growth” with respect to

some infrastructure components—specifically the

“water, wastewater, electrical and mechanical

components, needed to meet anticipated overcrowd-

ing of as much as 190 percent in cells and 140

percent in dormitories.” Dezember Trial Aff. 7 72

(quoting Ex. D 1292, Coleman Special Master’s May

31, 2007 Response to Court’s May 17, 2007 Request

58a

for Information, at 5). However, “these same prisons

were not designed and made ‘no provision’ for aly

expansion of medical care space beyond the initial

100% of [design] capacity.” Jd. (quoting Ex. D 1292 at

4-5). “Even worse, ‘none of the 19 CDCR institutions

planned and built in the boom of the 80s and 90s

gave any thought to the space that might be needed

for mental health purposes.” Jd. (quoting Ex. D1292

at 5).°° “A similar failure in design vision occurred

with the Department of Mental Health,” the sole

provider of inpatient mental health care for CDCR

inmates, “which discovered in 1998 that it had ‘no

facilities of its own in which to provide the level of

inpatient care needed by CDCR for high custody

inmates with a history of violence or escape.” /d.

(quoting Ex. D1292 at 8). Thus, even though the

infrastructure of California’s newer prisons was built

to accommodate inmate populations greater than

100% design capacity, no similar accommodation was

made for the provision of medical and mental health

care in California’s prisons.

% But see Sept. 3, 2008 Tilton Dep. at 60:10-61:17 (testifying

that in the 1980s and 1990s, the CDCR would “make sure [it]

provided programs based on the population,” and that this

testimony referred to prisons at somewhere between 100% and

140% design capacity). We do not credit Tilton’s testimony on

this point because he also testified that the CDCR operated

“fully-programmed facilities at that time.” Jd. at 61:16-17. As

is clear from our discussion of the history of the Plata and

Coleman cases, the CDCR was not operating fully-programmed

facilities with regard to medical and mental health care. Moreo-

ver, even if Tilton’s testimony were to be credited, he acknowl-

edged that “certain facilities lost the ability, in terms of space, to

deliver adequate programs to the inmates” when populations

exceeded 140% design capacity. Jd. at 62:14-19. As we note

below, the California prison population well exceeds 140%

design capacity, and indeed is approaching 200%.

59a

The second measure of prison capacity, “operable

capacity,” refers to “the maximum capacity of the

prisons to house inmates safely and securely while

providing effective education, training, and

treatment.” Ex. P4 at 122. “Operable capacity .. .

takes into account space needed for effective

programming in addition to safety and security.” Jd.

at 124. Based on input from a “group of experienced

California prison wardens,” the Corrections Indepen-

dent Review Panel determined that the operable

capacity of California’s prison system is 145% design

capacity. Id. Notably, however, operable capacity

does not take into account the space required to

provide medical and mental health care. See id. at

161 n.3; Nov. 9, 2007 Scott Report 7 46.

The third measure, “maximum ‘safe and reasona-

ble’ capacity,” refers to “the maximum number of

inmates who can safely and reasonably be housed in

the prison system.” Ex. P4 at 124. This definition

takes into account only “the ‘safe and reasonable’

capacity of individual housing units according to

inmate custody levels, staffing levels, and the physi-

cal structure of the units.” Jd. Units for inmates at

higher custody levels have a lower maximum safe

and reasonable capacity than units for inmates who

present a lower security risk. Jd. at 124.

The Department of Corrections has determined

the maximum safe and reasonable capacity of the

general population and reception center housing

to be 190 percent of design capacity, while other

housing can be filled only to between 100 and

160 percent of design capacity. Overall, the

Department has determined that the maximum

safe and reasonable capacity of the state’s male

prisons is .. . 179 percent of design capacity.

60a

Id. “Maximum ‘safe and reasonable’ capacity” does

not take into account “the need for humane condi-

tions” incorporated into design capacity, or the need

for programming space incorporated into both design

and operable capacity. See id. at 123-124. More

important for present purposes, that classification

does not take into account the space or facilities

required to provide medical or mental health care.

4. Crowding in Relation to Capacity

California’s inmate population has far exceeded the

design capacity of the state’s prison system for over

twenty-five years. See, e.g., Ex. P268 at 2 (Institution

and Camp Design Bed Capacity and Population, June

30, 1983-June 30, 2003); Ex. P410 at 2; Ex. D1259-1.

By October 2006, the state’s adult prisons, excluding

camps, were operating at 200.2% design capacity

with 162,792 inmates.*”” Ex. D1149 at 1 (CDCR

weekly population report as of October 25, 2006). As

of August 27, 2008, the population of these institu-

tions was reduced to 195.9% design capacity with

156,352 inmates, largely as a result of shipping

several thousand prisoners to Mississippi and other

contract states. Ex. P135 at 1 (CDCR weekly popula-

tion report as of August 27, 2008). The current level

of crowding far exceeds even the maximum safe and

reasonable capacity of the California prison system,

which, by CDCR’s own determination, is 179% design

capacity for prisons holding male prisoners. Ex. P4 at

124.

37 The state also operates several prison camps, housing just

over 4000 inmates. These camps are less crowded than the adult

institutions and operate at between 100% and 110% design

capacity. Ex. P20 at 1; Ex. P21 at 1.

6la

D. Governor Schwarzenegger’s Emergency

Proclamation

In response to the severity of the prison crowding

problem, Governor Arnold Schwarzenegger, a

primary defendant in both Plata and Coleman,

declared a state of emergency on October 4, 2006. Ex.

P1. In his Prison Overcrowding State of Emergency

Proclamation, the Governor declared that “all 33 of

CDCR’s prisons are now at or above maximum opera-

tional capacity, and 29 of the prisons are so

overcrowded that the CDCR is required to house

more than 15,000 inmates in conditions that pose

substantial safety risks”; that “the severe

overcrowding in 29 CDCR prisons has caused

substantial risk to the health and safety of the men

and women who work inside these prisons and the

inmates housed in them”; that “the overcrowding

crisis gets worse with each passing day, creating an

emergency in the California prison system”; and that

“immediate action is necessary to prevent death and

harm caused by California’s severe _ prison

overcrowding.” Id. at 1, 6, 8.

The risks enumerated by the Governor in his

Proclamation include “increased, substantial risk for

transmission of infectious illness”; security risks

caused by line-of-sight problems for correctional offic-

ers, particularly in areas where inmates are triple-

bunked and in “tight quarters”; and “thousands of

gallons of sewage spills and environmental contami-

nation” from overloading the prisons’ sewage and

wastewater systems. Jd. at 2. Governor Schwarze-

negger also declared that the suicide rate in the 29

severely overcrowded prisons “[was] approaching an

average of one per week.” Id. at 6.

62a

In addition, the Proclamation described three

separate proposals by the Governor to address the

overcrowding crisis, including a proposal for “two new

prisons and space for 83,000 prisoners to address

California’s current and future incarceration needs.”

Id. at 7. The California Legislature rejected all of

these proposals. Jd. As a result, the Governor invoked

his powers under the California Emergency Services

Act to call for immediate efforts to transfer inmates

to out-of-state correctional facilities, as well as the

suspension of state contracting laws so that the

CDCR could contract for all goods and services

“needed to immediately mitigate the severe

overcrowding and the resulting impacts within

California.” Jd. at 8-9.

The California Correctional Peace Officers’

Association (*“CCPOA”), a plaintiff-intervenor in this

case, challenged the validity of the Proclamation in

state court. On June 4, 2008, the California Court of

Appeal upheld the Proclamation, finding that the

Governor acted within his authority, in part because

the declaration of emergency was based on conditions

that presented extreme peril to the safety of persons

and property. CCPOA v. Schwarzenegger, 163 Cal.

App. 4th 802 (2008). The Proclamation declaring a

state of emergency remains in effect. Fact # 12, Nov.

17, 2008 Joint Statement of Undisputed Facts.

E. Motions To Convene Three-Judge Court and

Subsequent Prison Studies by the State of

California

1. Motions To Convene and Initial Proceedings

Following the Governor’s issuance of the State of

Emergency Proclamation, the plaintiffs in Plata and

Coleman filed motions to convene a three-judge court

63a

to limit the prison population. The Plata court

continued the hearing on its motion to provide defen-

dants with an opportunity to outline’ specific

measures they were taking or planned to take to

alleviate crowding, as well as to allow the Plata

Receiver to analyze the effects of crowding on his

remedial efforts. Feb. 15, 2007 Order in Plata at 4-5.

Similarly, the Coleman court, after oral argument,

continued the hearing for six months to permit

defendants to demonstrate sufficient progress in

their remedial efforts and in relieving prison

overcrowding such that convening a three-judge court

would not be necessary. Dec. 11, 2006 Rep. Tr. in

Coleman, passim; Dec. 12, 2006 Order in Coleman at

i.

2. Intervening Reports on Prison Crowding

During the period in which the motions to convene

a three-judge court were pending, two more reports

concerning prison overcrowding were presented to

the California Legislature. First, in January 2007,

the Little Hoover Commission, a bipartisan and

independent state body charged with conducting

research and preparing recommendations to improve

the economy, efficiency, and service of California

state government, Cal. Gov’t.Code §§ 8501, 8521-

8522, echoed the concerns in the Governor’s State of

Emergency Proclamation, stating that “California’s

prisons are out of space and running out of time.” Ex.

P3 at 1. In its report, entitled “Solving California’s

Corrections Crisis: Time Is Running Out,” the Com-

* The Prison Litigation Reform Act of 1996 (“PLRA”) provides

that a prisoner release order may be issued only by a three-

judge court. 18 U.S.C. § 3626(aX3)(B). We discuss in more detail

below, infra Section II], the meaning of the term “prisoner

release order” and other relevant provisions of the PLRA.

64a

mission, which had previously issued a series of

reports on California’s prisons, id. at 13, again

offered “comprehensive recommendations” to reduce

the prison population, improve public safety, and

manage public dollars, id. at 1. Second, in June 2007,

the Expert Panel on Adult Offender Recidivism

Reduction Programming—a panel convened by the

CDCR and consisting of the CDCR’s Chief Deputy

Secretary for Adult Programs and a number of aca-

demic experts, consultants, and former and current

secretaries of corrections in Pennsylvania, Arizona,

Washington, Ohio, and Maine,*®” Ex. P2 at ii—issued

a report recommending a course of action to reduce

the prison population while at the same time

reducing recidivism and generating savings. Ex. P2.

The first recommendation of both the Little Hoover

Commission and the CDCR Expert Panel was to

reduce prison overcrowding. Ex. P3 at iv; Ex. P2 at

10. Both panels noted that the state had received

numerous reports over the past two decades

containing recommendations for reducing the state’s

prison population. Ex. P3 at iv; Ex. P2 at 10 & App.

A. Aithough the Expert Panel was convened to make

recommendations for reducing California’s high

recidivism rate and “improving the programming in

California’s prison and parole system,” Ex. P2 at vii,

and not for “solving the overcrowding problem,” id. at

10, the panel nonetheless found that California’s

3° Several members of the Expert Panel appointed by defen-

dants, including James Austin, Ph.D., Jeffrey Beard, Ph.D.,

Joseph Lehman, and Barry Krisberg, Ph.D., testified for plain-

tiffs at the trial of this matter. Another member of the Expert

Panel, James Gomez, was the Director of the California

Department of Corrections from 1991 to 1996, during the merits

phase of the Coleman action.

65a

prisons were “dangerously overcrowded” and that

reducing overcrowding was a “pre-condition’ to [the]

success” of its mission, id. at viii.

3. Final Hearing and Rulings

On June 27, 2007, the Plata and Coleman courts

jointly heard oral argument on plaintiffs’ motions to

convene a three-judge court. Persuaded that the state

had not adequately addressed its prison overcrowd-

ing crisis so as to make possible the remedying of the

constitutional violations, and that consideration of a

population reduction order was necessary in order to

achieve that objective in both cases, both courts

granted plaintiffs’ motions. July 23, 2007 Order in

Plata, 2007 WL 2122657; July 23, 2007 Order in

Coleman, 2007 WL 2122636.

The Plata court found that although “the Receiver

has made much progress since his appointment,” the

establishment of the Plata Receivership did not

require the court “to wait more time, potentially

years, to see whether the Receiver’s plans will

succeed or fail.” July 23, 2007 Order in Plata, 2007

WL 2122657, at *3. It found that the unconstitutional

conditions that led to the Receiver’s appointment

continued to exist. The Plata court explained:

Had the Receiver reported to the Court that he

did not view overcrowding to be a substantial

impediment to implementing the reforms

required in this case, the Court may well have

reached a different conclusion regarding the

appropriateness of convening a three-judge court

to consider a prisoner release order. However,

quite to the contrary, the Receiver’s reports

indicate that overcrowding is a serious problem

that impacts, for example, his ability to develop

66a

adequate reception centers and health facilities

because of the high numbers of inmate transfers

and the inadequate amount of available health

care beds and other physical space. Receiver’s

Report Re: Overcrowding [Ex. D1092] at 26-28.

Overcrowding also negatively impacts. the

Receiver’s ability to hire and retain competent

medical and managerial staff. Id. at 24-26.

Beyond that, the Receiver reports that:

Every element of the Plan of Action faces

crowding related obstacles. Furthermore,

overcrowding does not only adversely impact

the Receiver’s substantive plans, it also

adversely impacts on the very process of

implementing remedies because overcrowding,

and the resulting day to day operational chaos

of the CDCR, creates regular “crisis” situations

which call for action on the part of the

Receivership and take time, energy, and

person power away from important remedial

programs.

Id. at 28-29. ...

Tellingly, the Receiver’s concerns about the

impacts of overcrowding on his ability to reform

the medical health care delivery system became

even stronger in the weeks following his initial

report. In his supplemental report, filed just four

weeks after his initial report, the Receiver

concluded that: “Mission changes, yard flips, and

prison-to-prison transfers, aggravated by the

limited alternatives imposed by overcrowding,

are now assuming a size, scope and frequency

that will clearly extend the timeframes and costs

of the receivership and may render adequate

medical care impossible, especially for patients

67a

who require longer term chronic care.” Receiver’s

Sup |. Report Re: Overcrowding [Ex. D1094] at

10 (emphases added). While the Court appre-

ciates Defendants’ statements that greater coor-

dination between the State and the Receiver

will alleviate some of the Receiver’s concerns,

such sentiments only underscore the Receiver’s

expressed concerns that overcrowding presents

serious problems not only because of the subs-

tantive ways in which it interferes with delivery

of medical care, but also because of the amount of

time and attention the Receiver must devote to

dealing with crowding-related issues. Jt is clear

to the Court that the crowded conditions of Cali-

fornia’s prisons, which are now packed well

beyond their intended capacity, are having—and

in the absence of any intervening remedial action,

will continue to have—a serious impact on the

Receiver’s ability to complete the job for which he

was appointed: namely, to eliminate the unconsti-

tutional conditions surrounding delivery of

inmate medical health care.

Id. at *4 (last emphasis added).

The Coleman court found that between 1997 and

2005, defendants had made “slow but evident

progress toward constitutional compliance,” but that,

“[iJn spite of the commendable progress ... , defen-

' dants’ mental health care delivery system has not

come into compliance with the Eighth Amendment at

any point since this action began.” July 23, 2007

Order in Coleman, 2007 WL 2122636, at *3. The

Coleman court further found that:

Several prisons remain notable exceptions to the

progress made at others, and delays in access to

care at the highest level of need—mental health

68a

crisis beds, acute inpatient care, and interme-

diate inpatient care—have plagued the CDCR

throughout the course of this litigation. Moreo-

ver, defendants’ efforts at long-range planning

for the delivery of mental health care continues

to be hampered by inadequacies in the capture

and collection of data and the use of outdated

methodologies to interpret that data.

.. . [O)n May 31, 2007, the Special Master

reported that programming space, beds for

mentally ill inmates, and staffing levels have all

been “impacted seriously by overcrowding.”

Special Master’s Response to Court’s May 17,

2007 Request for Information, filed May 31,

2007, at 4-14 (“Special Master’s May 31, 2007

Response”). The staffing shortages alone mean

that the CDCR only has enough staff “to provide

full mental health services to roughly two-thirds

of its mental health caseload, or two-thirds of

required services to its full caseload, or, probably

more realistically, some combination of reduced

services to some segments of the caseload that

can be covered with a third less clinicians than

required.” Jd. at 11-12. While acknowledging the

difficulties in quantifying precisely the scope of

the unmet mental health needs, the Special

Master reports that,

defendants cannot meet at least a substantial

portion, amounting in some loose amalgam to

about 33 percent, of acknowledged mental

health needs with current staffing resources.

Insufficient intensive mental health treatment

beds and a chronic lack of programming space

for mental health treatment contribute further

to defendants’ inability to meet required men-

69a

tal health services. All three deficiencies are

unquestionably exacerbated by overcrowding.

Id. at 14. With a mental health caseload of

almost 33,000 inmates, id. at 2, this level of

unmet needs is unconscionable.

Id. at *3-*4 (footnote omitted).

In their orders granting plaintiffs’ motions, the

Plata and Coleman courts recommended that the

cases be assigned to the same three-judge court “[flor

purposes of judicial economy and avoiding the risk of

inconsistent judgments.” July 23, 2007 Order in

Plata, 2007 WL 2122657, at *6; see also July 23, 2007

Order in Coleman, 2007 WL 2122636, at *8. The

Chief Judge of the United States Court of Appeals for

the Ninth Circuit agreed and, on July 26, 2007,

convened the instant three-judge district court

pursuant to 28 U.S.C. § 2284.

F. Proceedings Before this Three-Judge Court

In August and September 2007, this court granted

motions to intervene on behalf of defendants filed by

groups of district attorneys; sheriffs, police chiefs,

and probation officers (collectively “law enforcement

intervenors”); counties; and Republican state Sena-

tors and Republican Assembly Members. We note

that the Republican state Senators and Republican

Assembly Members constitute just over a third of the

membership of each respective body. We also granted

the CCPOA’s motion to intervene on behalf of plain-

tiffs.

On November 1, 2007, we appointed a settlement

referee, former state Court of Appeal Justice Elwood

Lui, and a settlement consultant, current state Court

of Appeal Justice and former Legal Affairs Secretary

70a

to Governor Schwarzenegger, Peter Siggins, to aid

the parties and intervenors in settlement discussions.

Nov. 1, 2007 Order at )-2. However, the settlement

efforts ultimately proved unsuccessful, as Justices

Lui and Siggins reported to the three-judge court on

June 25, 2008.

On September 15, 2008, defendants filed a motion

for summary judgment, which we denied by written

order on November 3, 2008. Trial commenced on

November 18, 2008, and concluded on December 19,

2008, after fourteen court days in which we heard

testimony from nearly fifty witnesses, received

written testimony from several additional witnesses,

and received hundreds of exhibits into evidence.

Following the close of evidence, we received proposed

findings of fact and conclusions of law from the

parties and intervenors and heard final argument on

February 3 and 4, 2009.

To assist the parties in planning their further

actions, we issued a tentative ruling on February 9,

2009, explaining that plaintiffs had met their burden

of proof and that a population reduction order was

necessary to remedy the constitutional violations

concerning the provision of medical and mental

health care in California’s prisons. We even gave the

state an indication of the range within which the

population cap would fall. In our tentative ruling, we

once again asked whether a_ court-appointed

settlement referee would be of assistance. Plaintiffs

and intervenors expressed a willingness to engage in

further settlement discussions, but the state defen-

dants responded that they did not believe such efforts

would be fruitful.

After carefully reviewing all of the evidence and

oral and written arguments presented in this

71a

proceeding, we make the following findings of fact

and conclusions of law and issue the following order.

This opinion and order supersedes the tentative

ruling in its entirety.

Ill. LEGAL FRAMEWORK

Federal courts have long recognized that popula-

tion reduction orders may sometimes be necessary to

ensure constitutional prison conditions. For example,

in Duran v. Elrod, 713 F.2d 292 (7th Cir.1983), the

Seventh Circuit upheld a district court’s order

requiring a reduction in the population of the Cook

County Department of Corrections, finding that the

order was “sensitive to [] .. . the principles of

federalism,” id. at 297, and that the district court

“acted fairly and reasonably to ease a critical

problem” of overcrowding in the face of “substantial

noncompliance” by Cook County, id. at 298. Likewise,

in Newman v. Alabama, 683 F.2d 1312 (11th

Cir.1982), the Eleventh Circuit found that, where

Alabama’s county jails were unconstitutionally

overcrowded, a cap on the state inmate population in

the county jails “representled] the proper balance

between the duty of the district court to remedy

constitutional violations and the right of the State to

administer its prison and parole systems,” id. at

1321. There are other examples as well, including a

continuing cap on Los Angeles County’s jail

population stipulated to by the parties in Rutherford

v. Pitchess, No. CV 75-4111 (C.D.Cal.).

Until 1996, federal courts relied upon general

principles of equitable relief and federalism in

deciding whether to enter a population reduction

order to remedy constitutional violations. However,

in 1996 Congress enacted the Prison Litigation

Reform Act (“PLRA”), Pub.L. No. 104-134, 110 Stat.

72a

1321 (codified in relevant part at 18 U.S.C. § 3626).

The PLRA established “a comprehensive set of [statu-

tory] standards to govern prospective relief in prison

conditions cases.” Gilmore v. California, 220 F.3d

987, 998 (9th Cir.2000). Because there is no dispute

that both the Plata and Coleman lawsuits are “civil

action(s] with respect to prison conditions,” the

matter before us is governed by the statutory re-

quirements of the PLRA. 18 U.S.C. § 3626(a)(1).

The PLRA contains two sets of requirements that

are relevant here: one applicable to all forms of

“prospective relief’ in federal prison conditions

lawsuits, see id., and another applicable only to

“prisoner release orders,” see id. § 3626(a)(3). The

PLRA defines a “prisoner release order” as “any

order .. . that has the purpose or effect of reducing or

limiting the prison population, or that directs the

release from or nonadmission of prisoners to a

prison.” Id. § 3626(g)(4). Under this definition, a

“prisoner release order” includes not only an order

requiring the release of presently incarcerated

inmates, but also an order requiring the diversion of

convicted persons from prison, changing the

treatment of parole violators in order to prevent their

return to overcrowded prisons, or imposing a cap on

the prison population or any part of it. See, e.g., Tyler

v. Murphy, 135 F.3d 594, 595-96 (8th Cir. 1998)

(finding a cap on the number of technical probation

violators who could be admitted to a particular facil-

ity to be a “prisoner release order”). There is no

dispute that the population reduction order requested

by the plaintiffs falls within the PLRA’s definition of

“prisoner release order” because the order would have

the “purpose” of “limiting the prison population.” 18

U.S.C. § 3626(g)(4). Accordingly, this court can grant

the plaintiffs’ request for a population reduction

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order only if the proposed order meets both the

PLRA’s specific standard for prisoner release orders

and its general standard for prospective relief in

prison conditions cases.

A. The PLRA Standard for Prisoner Release

Orders: Primary Cause and No Other Relief

The PLRA does not prohibit courts from entering

an order requiring a reduction in the population of a

prison or prison system. To the contrary, in enacting

the PLRA, Congress was clear to state that “a court

still retains the power to order [a population

reduction order]” when such an order “is truly neces-

sary to prevent an actual violation of a prisoner's

federal rights.” H.R. Rep. No. 104-21, at 25 (1995); cf.

141 Cong. Rec. S14419 (daily ed. Sept. 27, 1995)

(statement of Sen. Abraham) (noting that the PLRA

permits “narrowly tailored order(s] to correct” consti-

tutional violations and that the PLRA “allows the

courts to step in where they are needed”).*® Rather

than barring “prisoner release orders” altogether, the

PLRA simply makes such orders, including popula-

tion caps and other population reduction orders, “the

remedy of last resort.” H.R. Rep. No. 104-21, at 25.

It does so by imposing a number of restrictions on

the entry of prisoner release orders. First, a court

considering such an order must find that “a court has

previously entered an order for less intrusive relief

4° In fact, a number of courts have entered consent decrees for

prisoner release since the enactment of the PLRA—decrees that

must mect the same set of requirements as any order entered by

acourt. See 18 U.S.C. § 3626(c)(1); Roberts v. Mahoning County,

495 F Supp.2d 719 (N.D. Ohio 2007); John Boston, The Prison

Litigation Reform Act, 67 Brook. L.Rev. 429, 446 n.67 (2001)

(collecting orders for overcrowding relief entered by consent

decree after the enactment of the PLRA).

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that has failed to remedy the deprivation of the

Federal right sought to be remedied through the

prisoner release order,” and that “the defendant has

had a reasonable amount of time to comply with the

previous court orders.” 18 U.S.C. § 3626(a)(3)(A). If

both of these requirements are met, the court must

request that a three-judge district court be convened

to consider the propriety of the proposed order. Jd.

§ 3626(a)(3)(B). Finally, the three-judge court must

find by clear and convincing evidence (1) that

“crowding is the primary cause of the violation of

the Federal right,” and (2) that “no other relief

will remedy the violation of the Federal right.” Jd.

§ 3626(a)(3)(E).

Before convening the present three-judge court, the

Plata and Coleman courts found that their prior

orders for less intrusive relief had failed to remedy

the unconstitutional denial of adequate medical and

mental health care to prisoners in California’s

prisons, and that the defendants have had a more

than reasonable amount of time to comply with those

prior orders. See July 23, 2007 Order in Plata, 2007

WL 2122657, at *3; July 23, 2007 Order in Coleman,

2007 WL 2122636, at *2. Accordingly, the findings

required by § 3626(aX3)(A) have been made. The

procedural history described above clearly establishes

that the Plata and Coleman courts have previously

entered orders for less intrusive relief that have

failed to remedy the constitutional deprivations at

issue in each case despite the reasonable time given

to defendants to comply with those orders. In this

opinion and order, we primarily consider the

requirements of § 3626(a)(3)(E)—whether crowding is

the “primary cause” of the unconstitutional denial of

adequate medical and mental health care to Califor-

nia’s prisoners, see infra Section [V, and whether any

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other form of relief could remedy those constitutional

violations, see infra Section V.

B. The PLRA Standard for All Prospective Relief:

Need-Narrowness-Intrusiveness and Consid-

eration of Public Safety

In addition to these specific limitations on the

entrance of prisoner release orders, the PLRA estab-

lishes a standard applicable to all forms ‘of prospec-

tive relief in prison conditions lawsuits. First, the

PLRA requires that such relief “[be] narrowly drawn,

extend[ ] no further than necessary to correct the

violation of the Federal right, and [be] the least

intrusive means necessary to correct the violation of

the Federal right.” 18 U.S.C. § 3626(a)(1)(A). Rather

than imposing any new limitations on _ federal

authority, this provision codifies the common-law

standard for injunctive relief, generally referred to as

the “need-narrowness-intrusiveness” standard. See

H.R. Rep. 104-21, at 24 n.2 (1995) (explaining that

the “dictates of [18 U.S.C. § 3626(a)(1)] are not a

departure from current jurisprudence concerning

injunctive relief”); see also Armstrong v. Davis, 275

F.3d 849, 872 (9th Cir.2001); Smith v. Ark. Dep’t of

Corr., 103 F.3d 637, 647 (8th Cir.1996); Williams v.

Edwards, 87 F.3d 126, 133 n. 21 (5th Cir.1996).*

Likewise, the PLRA requires that any prospective

relief “extend no further than necessary to correct the

*' In lieu of changing the general standard for prospective

relief in prison conditions cases, the PLRA limits federal court

authority in matters relating to prison conditions primarily by

applying the “need-narrowness-intrusiveness” standard to

consent decrees as well as court orders, 18 U.S.C. § 3626(c)(1);

by making it easier to terminate existing court orders or consent

decrees, 18 U.S.C. § 3626(b); and by imposing distinct limita-

Lions on prisoner release orders, 18 U.S.C. § 3626(a)(3).

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violation of the Federal right of a particular plaintiff

or plaintiffs.” 18 U.S.C. § 3626(a)(1)(A); cf Lewis v.

Casey, 518 U.S. 343, 357-360 (1996) (holding that the

remedy in a prison conditions case must remedy

actual injuries that have been identified by the court

and suffered by the plaintiffs). In class action

lawsuits such as Plata and Coleman, the PLRA

requires that the remedy be tailored to the actual

injuries suffered by class members. See Armstrong,

275 F.3d at 870-73.

Second, the PLRA requires that any court consi-

dering the entry of prospective relief give “substantial

weight” to any adverse impact the order might have

on public safety or the operation of the criminal

justice system. 18 U.S.C. § 3626(a)(1)(A); see also

H.R. Rep. No. 104-21, at 24 (1995) (stating that

courts must give “appropriate consideration” to “any

potential impact on public safety or the criminal

justice system”). This requirement codifies the

longstanding common law requirement that federal

courts “pay particular regard for [ ] public conse-

quences in employing the extraordinary remedy of

injunction.” Weinberger v. Romero-Barcelo, 456 U.S.

305, 312 (1982); see also Yakus v. United States, 321

U.S. 414, 440 (1944).

We address the “need-narrowness-intrusiveness”

standard in Section VI and consider the impact of the

order we adopt on public safety and the operation of

the criminal justice system in Section VII.

C. The Remedial Nature of the Three-Judge Court

Proceeding

The question before this three-judge court is

whether the remedy requested by the plaintiffs is

proper as a matter of federal law. The Plata and

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Coleman courts years ago identified the constitu-

tional deficiencies underlying this proceeding. Since

that time, both cases have been in their remedial

phase. After prior remedial efforts failed, the Plata

and Coleman courts both faced the question whether

an order requiring a reduction in the population of

California’s prisons was necessary to remedy the

previously identified constitutional violations, and

both concluded that such an order should be consi-

dered by a three-judge court.

We need not yet again evaluate the state’s contin-

uing constitutional violations. In requesting that this

three-judge court be convened, the Plata and

Coleman courts both found, without objection from

defendants, that the constitutional violations were

ongoing. See July 23, 2007 Order in Plata, 2007 WL

2122657, at *3; July 23, 2007 Order in Coleman, 2007

WL 2122636, at *4. That is sufficient under the

PLRA. In addition, defendants have never filed a

motion to terminate under § 3626(b), the proper

means for any challenge to the existence of “current

and ongoing” constitutional violations relating to the

provision of medical and mental health care in the

California prisons. Moreover, even if we were

required to find independently that the requirements

of § 3626(a)(3)(A)—including its requirement that

prior orders have “failed to remedy the deprivation of

the Federal right’—have been met, we did so in

denying defendants’ motion for summary judgment,

Nov. 3, 2008 Order at 6-7. Accordingly, the question

we must answer in this opinion and order is entirely

remedial, t.e., whether the plaintiffs’ proposed

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remedy mects the imposing standards established by

the PLRA.*

IV. CROWDING AS PRIMARY CAUSE

The extent of overcro ‘ing in the California prison

system, approximatel, 90% of systemwide design

capacity, is “extraordinary” and “almost unheard of.”

Rep. Tr. at 297:1-17, 298:19-20 (Haney). The problem

is “widespread” and “not restricted to just a few insti-

tutions. It’s occurred throughout the system.” Jd. at

297:23-25. There would seem to be no dispute about

the egregious nature of the overcrowding in this Gase.

Under the PLRA, however, the question is whether

clear and convincing evidence establishes that the

overcrowding is the primary cause of the un-

constitutional denial of adequate medical and mental

health care to California’s prisoners. 18 U.S.C.

§ 3626(a)(3)(E)G). Only if it is may the court—a

three-judge court—enter a population reduction

order. Defendants do not contest that prison

crowding impedes the delivery of constitutionally

adequate medical and mental health care in the

California prison system. They claim only that

crowding is not the primary cause of the violations of

plaintiffs’ constitutional rights. E.g., Rep. Tr. at

2953:6-11 (closing argument by defendants’ counsel).

We accept defendants’ proposed definition of

“primary cause” as the cause that is “first or highest

in rank or importance; chief; principal.” Random

House Webster’s Unabridged Dictionary 1537 (2d

*2 Because this proceeding deals only with the plaintiffs’

requested remedy, we did not permit the introduction of

evidence relevant only to determining whether the constitu-

tional violations found by the Plata and Coleman courts were

“current and ongoing.”

79a

ed.1998) (defining “primary”).*® We note, however,

that the PLRA does not require that crowding be the

only cause of the constitutional violations at issue.

“Probably it cannot be said of any event that it has a

single causal antecedent; usually there are many.” 4

Harper, James and Gray on Torts § 20.2 (3d ed.2007).

The PLRA’s “primary cause” standard incorporates

this basic aspect of causation. By requiring only that

crowding be the primary cause of the constitutional

violations at issue, the PLRA’s language explicitly

contemplates that secondary causes may exist. Had

Congress intended to require that crowding be the

only cause, it would have used language to that

effect—for example, “exclusive” or “only” instead of

“primary.”

As all of the parties to this proceeding have recog-

nized, in the context of prison conditions litigation

“crowding” refers to the presence in a facility or

prison system of a prisoner population exceeding that

facility or system’s capacity. See, e.g., Doty v. County

of Lassen, 37 F.3d 540, 543 (9th Cir.1994) (finding

overcrowding where a jail’s actual population ex-

ceeded its design capacity by an average of

approximately fifty percent); Hoptowit v. Ray, 682

F.2d 1237, 1248-49 (9th Cir.1982) (finding a peniten-

tiary overcrowded where its population exceeded its

design capacity); see also Lareau v. Manson, 651 F.2d

96, 99-100 (2d Cir.1981); cf; Random House Webster's

Unabridged Dictionary 482 (2d ed.1998) (defining

“crowded” as “filled to excess”). In other contexts, the

term “overcrowding” would ordinarily be used. Here,

*’ Unfortunately, the legislative history of the PLRA is sparse

and provides no meaningful insight into the meaning of

“primary cause” or “crowding.”

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the words crowding and overcrowding have the same

meaning, and we use them interchangeably.

A prison system’s capacity is not defined by square

footage alone; it is also determined by the system’s

resources and its ability to provide inmates with

essential services such as food, air, and temperature

and noise control. Following the parties’ lead, we will

discuss the capacity of the California prison system

primarily in terms of design capacity. As the Correc-

tions Independent Review Panel explained, design

capacity “designate[s] the number of inmates a prison

is designed to accommodate according to standards

developed by the Commission on Accreditation and

the American Correctional Association.” Ex. P4 at

123. These standards “take into account the need for

humane conditions, as well as the need to prevent

violence and move inmates to and from programs,

such as mental health care, education classes, and

drug abuse treatment.” Jd.

Taking into account the meaning of “primary

cause” and the criteria governing “crowding,” we

must determine whether the presence in California’s

prison system of a prison population almost double

the system’s design capacity is the principal cause of

the failure to provide constitutionally adequate medi-

cal and mental health care to the members of the

Plata and Coleman classes.

As we discuss below, the evidence presented at

trial, including testimony from defendants’ experts,

admissions by defendants and their agents, and data

maintained by defendants, overwhelmingly estab-

lishes not only that crowding adversely affects every

aspect of prison administration, forcing a constant

state of crisis management, but also that crowding

creates numerous barriers to the provision of medical

8la

and mental health care that result in the constitu-

tional violations we consider here. These barriers

include severe space and other shortages that

prevent inmates from receiving the care they require.

Crowding also renders the state incapable of

maintaining an adequate staff and an adequate

medical records system. In addition, crowding causes

prisons to rely on lockdowns, which further restrict

inmates’ access to care, and it forces prisons to house

inmates in non-traditional settings, such as triple-

bunks in gyms and dayrooms not designed for

housing, that contribute to the lack of care and the

spread of infectious disease and that increase the

incidence and severity of mental illmess among

prisoners.

Multiple experts testified that crowding is the

primary cause of the constitutional violations at issue

in Plata and Coleman. Most impressive, four current

or former prison administrators so testified. These

four correctional experts had, collectively, adminis-

tered the correctional systems of five different states,

including California.** Three had never before

testified on behalf of a prisoner, and two were not

paid for their time as experts. A number of medical

and mental health experts also testified that

crowding is the primary cause of the constitutional

violations, and even defendants’ own mental health

expert testified that crowding is the primary cause of

“ The experts included Jeanne Woodford, former warden at

San Quentin and former acting Secretary of the CDCR; Doyle

Wayne Scott, former Executive Director of the Texas Depart-

ment of Criminal Justice; Joseph Lehman, former head of cor-

rections in Pennsylvania, Washington, and Maine; and Jeffrey

Beard, current Secretary of the Pennsylvania Department of

Corrections.

82a

defendants’ inability to provide adequate care to the

Coleman class at reception centers. Dec. 10, 2007

Packer Report at 20. As the Secretary of the Pennsyl-

vania Department of Corrections testified, “the

biggest inhibiting factor right now in California being

able to deliver appropriate mental health and

medical care is the severe overcrowding of [the]

system.” Rep. Tr. at 219:7-10 (Beard). We agree. For

the reasons we discuss below, we conclude that clear

and convincing evidence establishes that crowding is

the primary cause of the unconstitutional denial of

medical and mental health care to California’s

prisoners.

A. General Problems in the Delivery of Medical

and Mental Health Care Caused by Crowding

Correctional experts agree that crowding “affects

virtually every aspect of a prison’s operation.” Aug.

15, 2008 Lehman Report 4 10 (expert report from

former head of corrections in Pennsylvania, Washing-

ton, and Maine). Jeanne Woodford, the former head

of corrections in California, testified that, under

crowded conditions, there “are simply too many

issues that arise from such a large number of prison-

ers and staff. One result of this is that management

spends virtually all of its time fighting fires instead

of engaging in thoughtful decision-making and

planning. This results in short-sighted decisions that

create even more crises.” Nov. 9, 2007 Woodford

Report {| 12. Doyle Wayne Scott, a_ thirty-year

employee of the Texas Department of Criminal

Justice who served as its Executive Director for five

years, explained:

Overcrowding has burdened CDCR’s inadequate

management systems that underlie health care

delivery. The excessive population leads to

83a

management failures in two ways. First,

overcrowding engenders a state of perpetual

crisis that causes management failures. Admin-

istrators spend their time doing damage control,

rather than making sure the prison is operating

properly and prisoners are getting the services

that they need ....A population of 7,000 or

more, as is found in some California prisons, is

not manageable at all. The sheer size and

complexities of .managing a prison that size

would be overwhelming for one manager espe-

cially with the limited resources in the areas of

staffing and inadequate space for services to the

offenders that I observed at all of the prisons I

toured in California. One warden simply cannot

know what he/she needs to know on a daily basis

to make good informed management decisions.

Second, overcrowding overwhelms manage-

ment infrastructure. As I have read in numerous

reports of the Receiver, the CDCR lacks the

management information systems needed to

adequately organize and track prisoner transfers

for specialized medical and mental health care

and public health related needs (for example,

people with compromised immune systems not

going to Valley Fever risk areas) in the severely

overcrowded conditions.

Nov. 9, 2007 Scott Report {J 1, 76-77. Secretary

Woodford concluded that crowding makes it

“virtually impossible for the organization to develop,

much less implement, a plan to provide prisoners

with adequate care”; “[iJn [her] opinion, it is all but

impossible to safely and humanely incarcerate this

many prisoners within the existing facilities.” Nov. 9,

2007 Woodford Report {7 10, 12.

84a

As put in the most simple terms by Secretary

Woodford, who recently administered the California

prison system and who shortly before that was the

warden at San Quentin, “[o]vercrowding in the CDCR

is extreme, its effects are pervasive and it is

preventing the Department from providing adequate

mental and medical health care to prisoners.” Aug.

15, 2008 Woodford Supp. Report ¢ 31. While defen-

dants dispute that crowding is the primary cause of

the ongoing constitutional violations in Plata and

Coleman, they do not dispute that crowding makes

the delivery of adequate medical and mental health

care in the California prison system extremely

difficult. Matthew Cate, the current head of the

CDCR and a defendant in this proceeding, stated

that “overpopulation makes everything we do more

difficult,” Rep. Tr. at 1683:19-20, and further agreed

that crowding continues to “severely hamper| ]” the

Department’s ability “to provide inmates with

adequate medical care in a fiscally sound manner,”

id. at 1683:3-19 (testimony that statements in the

Office of the Inspector General’s 2006 audit of the

CDCR, issued when Cate was the Inspector General,

continue to be true today); Ex. P46 at ES-1 (April

2006 Office of the Inspector General Accountability

Audit, Review of Audits of the California Department

of Corrections and Rehabilitation Adult Operations

and Adult Programs, 2000-2004). James Tilton,

Cate’s predecessor as Secretary of the CDCR,

likewise explained that it “was clear” to him that

crowding, and the resulting lack of space, adversely

affected the delivery of medical and mental health

care. Sept. 3, 2008 Tilton Dep. at 80:5-25. Similarly,

John Dovey, a former CDCR official, testified before a

state Senate committee in August 2006 that “the risk

of catastrophic failure in a system strained from

85a

severe overcrowding is a constant threat. As the

Director of the Division of Adult Institutions [for the

CDCR], it is my professional opinion this level of

overcrowding is unsafe and we are operating on

borrowed time.” Ex. P72 at 15 (Aug. 15, 2006 CDCR

Presentation to Senate Select Committee on Prison

Population Management and Capacity). Before this

court, Robin Dezember, then the Chief Deputy Secre-

tary of the Correctional Healthcare Services Division

of the CDC, stated his “belief that we are terribly

overcrowded in our prison system,” and that crowd-

ing adversely affects the delivery of mental health

care services. Rep. Tr. at 853:13-15, 21-24. Even

defendants’ expert Dr. Ira Packer opined that “the

overcrowding in CDCR significantly contributes to

the difficulties in providing adequate mental health

services.” Dec. 10, 2007 Packer Report at 8.

B. Space Issues Affecting the Delivery of Care

The evidence before us demonstrates that crowding

causes a number of specific problems central to the

ongoing violation of California inmates’ constitutional

right to adequate medical and mental health care.

One of the clearest effects of crowding is that the

current prison system lacks the physical space

necessary to deliver minimally adequate care to

inmates. This manifests itself in a variety of areas,

each of which we discuss below.

1. Reception Centers

The medical and mental-health related problems

caused by crowding are immediately apparent at the

state’s reception centers. Each year, California

admits approximately 140,000 inmates into the state

prison system. Rep. Tr. at 224:17-18 (Beard); see also

Aug. 15, 2008 Austin Report {J 45-46 & Table 3; Ex.

86a

P18 at 3; Ex. P19 at 2; Ex. P75 at 3. The CDCR’s

reception centers are the locus of the intake and

classification functions for all of these inmates. See

Nov. 9, 2007 Austin Report {J 27-28; Aug. 15, 2008

Austin Report J 97. The CDCR has reception centers

at twelve prisons, nine at male institutions and one

at each of the state’s three female prison institutions.

Ex. P135 at 3-4. As of August 2008, all but one of

these reception centers were near or over 200%

design capacity, and two were over 300% design

capacity. Id. This severe crowding at the reception

centers makes it impossible to provide adequate

medical and mental health services to inmates

entering the California prison system. In addition,

severe crowding throughout the system forces prisons

to house inmates in these reception centers without

adequate care for extended periods of time.

As the Plata Receiver explained, reception centers

“must be staffed and have the appropriate clinical

space to provide a level of medical care and clinical

evaluations above that of the general population

institutions.” Ex. D1092 at 19 (Plata Receiver’s May

15, 2007 Report Re: Overcrowding).*® Each time an

individual is admitted to the CDCR, whether for the

first time, by re-offending, or on a parole violation:

* As Dr. Austin explained, “[t]here are two major types of

prison admissions for the CDCR—new court commitments and

parole violators.” Aug. 15, 2008 Austin Report 7 45. At the cited

pages, Exhibits P18, P19, and P75 set forth data on new

admissions, felon parole violators returned with a new term,

and felon parole violators returned to custody during periods

specified in each exhibit. The aggregation of these three

numbers in each of the exhibits ranges from 141,288 (Ex. P18)

to 139,399 (Ex. P19) to 140,560 (Ex. P75).

6 Plaintiffs also offered this document into evidence as

Exhibit P26.

87a

he or she returns to the CDCR through a recep-

tion center where a medical/mental health/dental

health care appraisal must be performed. Once

that appraisal is completed the newly received

prisoner is transferred to an open bed at a prison

which has been designated for his or her classifi-

cation. However, none of the CDCR’s designated

reception centers were designed or constructed

with adequate clinical space [to perform these

functions].

Id.; see also, e.g., Aug. 15, 2008 Haney Report {{j 246-

247 (describing space shortages at the California

Correctional Institution reception center, including a

holding room containing three holding cells that

“were originally intended to hold disciplinary cases

but now have been converted to mental health use”).

“To make matters worse, as the original prisons

designated for reception became overwhelmed by the

influx of parole violators, the CDCR was forced to

‘convert’ general population prisons into reception

centers. These ‘conversions, however, were not

accompanied by adequate additions to clinical staff or

clinical space.” Ex. D1092 at 19; see also, e.g., Nov. 9,

2007 Stewart Report 7 48 (because reception center

at DVI “was not designed as a reception center, it has

been difficult to find space for various reception

center functions”).

Without sufficient space, reception centers are

unable to screen or treat inmates adequately. For

instance, as plaintiffs’ medical expert Dr. Ronald

Shansky explained, the number of prisoners who

must be processed at the reception center at CIM

“exceeds the number of patients that can be

adequately treated,” thereby forcing the prison to

“squeeze[ ] too many prisoners and too many provid-

88a

ers into the available treatment area.” Nov. 9, 2007

Shansky Report 7 12. Exams are conducted in areas

separated only by “a thin white fabric folding screen

that is approximately five to six feet tall” and conver-

sations between physicians and inmates can be

overheard on the other side of the screen. Jd. Simi-

larly, at North Kern State Prison, inmate health

interviews are conducted in a small office, “with

prisoners sitting back to back, separated only by a

shoulder-high divider.” Sept. 10, 2008 Shansky 2d

Supp. Report J 23. Such conditions do not allow for

appropriate confidentiality, causing prisoners to be

“less likely to provide accurate information about

sensitive medical and psychiatric conditions.” Id.

{1 24; see also Aug. 15, 2008 Haney Report 7 280

(psychiatrist and psychologist who work in the North

Kern reception center “must share a converted cell

that serves as their office”); Nov. 9, 2007 Stewart

Report 7 48 (describing observations of small class-

room at DVI reception center “where at any time

six psychologists simultaneously conduct reception

center mental health assessments for new arrivals”);

id. J 82 (noting that the “[llack of adequate and ap-

propriate space for reception center psychological

screening was also apparent at DVI”).

Moreover, at North Kern, follow-up physical

examinations are conducted in rooms that “are so

small that it would be very difficult if not impossible

to perform an actual physical examination in them,”

so that the ““exams’ that take place are in fact simply

medical interviews, primarily for the purpose of

determining what type of housing is appropriate for

the prisoner.” Sept. 10, 2008 Shansky 2d Supp.

Report { 25. This violates the “basic principle that

incoming prisoners must undergo a comprehensive

exam upon arrival so that an adequate treatment

89a

plan may be developed and implemented. A physical

exam, aS opposed to a medical interview, is necessary

because some conditions can be identified and

confirmed only through physical examination of the

patient.” Id. | 26; see also Rep. Tr. at 224:10-225:15

(Beard) (testifying that the number of people coming

in through reception centers may cause prisons to

“miss people who have certain needs and certain care

needs that aren’t being dealt with”). The medical

facilities at North Kern are also so “inadequate” that

defendants cannot comply with the Plata policies and

procedures they agreed to implement, which provide

for a complete history and physical examination of

inmates within fourteen days of arrival at a reception

center. Sept. 10, 2008 Shansky 2d Supp. Report J 22.

The consequences of the state’s inability to screen

inmates properly at the reception centers are obvious:

If an inmate’s health needs are not identified, they

cannot be treated. In addition, inmates whose needs

are not identified may be placed in a setting that will

exacerbate existing but unidentified health problems.

Likewise, if the lack of confidentiality in the

screening centers prevents inmates from reporting

infectious diseases, the failure to diagnose them at

the reception center may result in their being spread

throughout the prison population.

In addition to preventing the reception centers

from properly screening newly admitted inmates,

crowding at the reception centers prevents the provi-

sion of adequate care to the inmates housed there. As

numerous experts, including defendants’ own mental

health expert, testified, the number and types of

inmates in the centers overwhelms their capacity to

provide adequate medical or mental health care

services. Rep. Tr. at 1121:16-19 (Packer); Rep. Tr. at

90a

368:12-369:4 (Woodford) (mentally ill inmates did not

receive “really any treatment” at San Quentin recep-

tion center beyond identification as CCCMS or EOP

and certainly not anything “to prevent further deteri-

oration of people’s mental illness”); Aug. 15, 2008

Stewart Supp. Report J 136 (“CDCR’s Reception

Centers are dangerously overcrowded and do not and

cannot provide appropriate mental health care for

anyone”); Sept. 10, 2008 Shansky 2d Supp. Report

{ 79 (“acute staffing shortage, coupled with the lack

of clinical exam space” prevents North Kern State

Prison from providing incoming inmates with

comprehensive physical examination or follow-up

appointments with primary care providers); Rep Tr.

at 368:12-22 (Woodford) (at San Quentin reception

center, due to vacancies and “just the sheer numbers

and lack of space,” medical staff “were unable to keep

up with physicals or providing any kind of chronic

care follow-up”).

If California’s inmates spent only a brief time at

the reception centers before being placed in other

facilities, the centers’ inability to provide adequate

medical and mental health care to the inmates

housed there would constitute a less substantial

aspect of the constitutional violations at issue in this

proceeding. However, inmates in California are

“tend[ing] to spend significantly longer periods of

time in reception centers.” Nov. 9, 2007 Stewart

Report J 24; see also Nov. 9, 2007 Austin Report { 27

(reporting that the CDCR routinely fails to meet its

mandate to transfer inmates from reception centers

to mainline institutions within sixty days). As one of

plaintiffs’ experts Dr. James Gilligan explained, “The

dramatic levels of prison overcrowding through the

state mean that individuals coming into prison are

housed in ‘Reception Centers’ for extended periods of

9la

time, far longer than intended.” Aug. 15, 2008

Gilligan Report 7 26 (footnotes omitted).

The consequences of the increased lengths of stay

at the reception centers along with the lack of space

in those centers are particularly grave for Coleman

class members. Dr. Packer, defendants’ mental

health expert, reported that mentally ill individuals

“often enter[ |] the prison system with a more acute

mental health presentation, not having received

adequate treatment in the community and/or having

abused substances there.” Dec. 10, 2007 Packer

Report at 20. These inmates are “disproportionately

represented” among the parole violators returning to

custody for short sentences, id., and are thus likely to

spend their entire sentence at the reception center.

Id. Because their sentences are so short, they are

frequently discharged before receiving treatment and

fall into “a vicious cycle, as they decompensate in the

community and quickly return... .” Id.; see also Aug.

15, 2008 Haney Report {7 358-59. (“[MlJentally ill

parolees often do not receive meaningful mental

health treatment when they are on parole... .

Frequently as a result of their decompensation, many

are returned to prison, often for technical or minor

violations. Thus, many of the parole violations that

return them to prison are directly related to their

unmet mental health needs. When they return to

prison, these vulnerable prisoners are then packed

into overcrowded reception centers.”).

The absence of adequate mental health care at

reception centers also has significant adverse conse-

quences for mentally ill inmates admitted to serve

longer sentences in state prison. The shortage of

mental health care beds throughout the prison

system—which we discuss in more detail below—

92a

means that these inmates often spend months in a

reception center with little or no access to necessary

mental health care while waiting for a bed to open

up. See, e.g., Nov. 9, 2007 Stewart Report q 166

(discussing impact of delays in transfer of mentally ill

inmates from reception centers to necessary level of

care); Aug. 15, 2008 Haney Report 7 105 (discussing

delays in transfer of EOP inmates out of CIM

reception center); id. 4 129 (discussing prolonged

reception center stays and minimal treatment

provided for EOP and CCCMS inmates at CIM

reported by Coleman Special Master). For example,

the number of inmates in reception centers needing

an EOP level of care*’ continues to grow, see Ex. P243

at 900004-06, 900121-23, but the EOP program

provided to these inmates falls far below the care

mandated by the P

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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