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
reiaiianiccencvasscesenssiscasinesenecs
Il. FACTUAL AND PROCEDURAL
I ios acide cectkctincsidoacsepnsanennie
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
ati ache iniarenivesapiadbsievicseeniananss
he) I Gicatceiiincesiucsemstcudaneorcians
a. Mental Health Care Beds and
FE Cos cncciicssccncccpinasncnsaceses
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
eI os cicauiccnialasenadmaversuanuculecian aaeseee
3. Defining the Capacity of California
III ids calcd chaka cucdhaninassadcouantapansumexesones
4. Crowding in Relation to Capacity ........
D. Governor Schwarzenegger’s Emergency
IN cai nasuocscaxicchinslgiatosseestaaabenincans
E. Motions To Convene Three-Judge Court
and Subsequent Prison Studies by the
I Oe eI ooiciiacensnescccdspncceesexcancnces
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
Cane try Cri vsciscscccsassasacissssnunns
Space Issues Affecting the Delivery of
COBY a cinaxacisntnscnisssine cnnssdoanbajenasGiecaneabiane ane
FecemnGiers CHO sisi vecicckacorsacnscgcenacees
Trenteent FOS ccsiissvisictsccceamctsonns
Inability to House Inmates by
CR nTIOIIO dsiscsicricicecconnaeeaean
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
4. ECPI ccscssiccnscsserssassssensenncenene
b. Mental Health Stakl.......cccccccccccccceceses
C. Coppell GORI cecsaccciccéccicasaesvacenna
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
gg cevdinkcssrrasatanasatcianekinnts
d. Construction as a Means of
oi sdcidarin snmynwuausadvaxduss
2. Inadequacy of Additional Hiring..........
3. Insufficiency of the Plata Receivership
and Coleman Special Mastership.........
ME CUMING... cassscccsessccccsonscoscvssesadses
SE COMUAMIOTNY ....cyscscccessicsssecnsessosesansses
C. Findings and Conclusions ....................06
VI. NARROWLY DRAWN, LEAST INTRU-
SIVE REMEDY THAT EXTENDS NO
FURTHER THAN NECESSARY.................
sawn tiigscnavananivuvauewaecavers
ih sca ccnapunancnbaindeiadanegs
C. The Required Population Reduction........
Vil. POTENTIAL POPULATION REDUC-
TION MEASURES AND THEIR
IMPACT ON PUBLIC SAFETY AND
THE OPERATION OF THE CRIMINAL
UME GP APE EGON oo. 6sccsiassncsissecssasacsracessoee
A. Criminogenic Nature of Overcrowded
101
102
102
102
103
105
108
109
109
112
114
a9
119
120
122
124
131
B.
C.
a ol
6a
Potential Population Reduction
PID Se dicicsacocedcxsa ca eaessomessancensio odonsacens
Early Release Through Expansion of
Ir oe II scea cet ceccinccsimtanuse vices,
Diversion of Technical Parole
|, RR Seep Nie rhereimel ree a ROR IN ON RAC
Diversion of Low-Risk Offenders with
me Ta aise oa se esc
Expansion of Evidence-Based Rehabi-
litative Programming in Prisons or
RAINEY si tncsosacecenisaisnsarszantesiasanvacne
Sentencing Reform and Other
Potential Population Reduction
Ss asthe didicchaccetatis ohana cathusetisueeess
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
IED epstadssecxeciuecherccsmicniatcaiiaees
Impact on Integrity of Criminal
PUBTICO SBC a isescinccccccsccccvccssscsassecesnces
Weight To Be Given Public Safety .......
Feasibility Notwithstanding the Present
Oe is iikceiirsnsaa Sara vc adgnienenceuenceeoniass
Inclusion of Mentally Ill Inmates in Any
Population Reduction Order.................00:.
139
152
Ta
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
73a
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).
74a
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.”
80a
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
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