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A pair of federal judges in California may be about to employ an untested law to create a special three-judge court overseeing the politically sensitive early release of prison inmates to ease the state’s overcrowded system. Despite life tenure for federal judges, U.S. district judges Thelton Henderson and Lawrence Karlton could be looking into the political equivalent of the abyss at a joint June 27 hearing in Sacramento, Calif. They must decide whether health care for 173,000 inmates crammed into 33 prisons designed for half that many has been so constitutionally impaired � and the state so intransigent � that only an independent panel of judges can fix it by capping the prison population. Only one other special three-judge court, created in Ohio under the terms of the federal Prison Litigation Reform Act of 1995 (PLRA), was assigned in a challenge to county jail conditions. But the dispute was resolved without the judges resorting to population caps, and the panel dissolved on June 4 in Roberts v. County of Mahoning, Ohio, No. 4:03-cv-2329. “It is exceedingly rare . . . but California may be as close as any state has come to reaching the standard of a showing [that deteriorating prison health care] would endanger public safety,” said Barry Krisberg, president of the National Council on Crime and Delinquency, who specializes in criminal justice research. “This could end up as a Supreme Court test of the law,” he said. Other states have faced overcrowding � including Colorado, Florida, Montana, Texas, and Washington � and have capped inmate populations without needing a three-judge court, said Cassie Pierson, a nationally recognized prison expert who wrote an amicus brief on behalf of a coalition of 20 prisoner, education and faith-based groups in the California case. In addition, litigation challenging poor prison conditions, exacerbated by overcrowding, has been initiated in Michigan, Mississippi and Wisconsin. Raising bar on releases More than a decade ago, judges regularly ordered releases of inmates to ease unconstitutional overcrowding, but Congress stepped in with the PLRA, forbidding the practice unless prior corrective orders were ignored. Even then, judges were required to establish three-judge courts to agree on the need for population caps. This came at a time when states were on a prison construction binge and setting longer sentences. Under the PLRA, the three-judge court is chosen by the chief judge in the circuit, and composed of two district judges and one circuit judge. It is more commonly seen in political reapportionment cases. Stephen Hanlon of Holland & Knight’s Washington office, who successfully challenged prison conditions on Mississippi’s death row, called it “mystifying” that in the PLRA, Congress focused more on the federal judiciary than on the states’ “complete abdication of legislative responsibility” to fund resources for new prisons. California’s prisons, which were built for 100,000 inmates, house 173,000, with many sleeping in hallways, cafeterias, gyms and classrooms. Private doctors cut off medical services in some areas where bills went unpaid for long periods. One facility had trouble getting tuberculosis tests for staff despite the high potential for contracting the disease from inmates. Governor Arnold Schwarzenegger declared a state of emergency in the prisons last October. In April, with little debate, he won approval of $7.9 billion for construction of 53,000 new prison beds, including a plan to ship up to 8,000 inmates out of state by 2009. The state faces three major lawsuits over conditions, one covering the health care system, one involving mental health services and a third covering treatment of disabled inmates.

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