# Appendix — Schwarzenegger v. Plata (Nos. 09-416, 09-553) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1664%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2009 ## Text 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 Count [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1664%3A2. 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