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SACRAMENTO � Two federal judges appeared reluctantly poised on Wednesday to trigger a process that could ultimately release thousands of inmates from California’s prisons. U.S. District Judges Thelton Henderson of San Francisco and Lawrence Karlton of Sacramento � both court veterans in the twilight of their careers � said frequently during a two-hour hearing that they took no pleasure in contemplating whether a three-judge panel should be convened to consider capping the state’s prison population. But both judges also said that, after spending years overseeing class actions charging inhumane conditions in California’s overcrowded prisons, they’ve lost faith in state leaders’ ability to fix the system. (See Plata v. Schwarzenegger, CV 01-01351, and Coleman v. Schwarzenegger, CV 90-0520.) “The problem is at some point even people as patient as Judge Henderson � say, ‘Something has got to change,’” Karlton said. The rare, two-judge hearing in a courtroom packed with reporters and inmates’ families recessed when Karlton said he and Henderson would take the matter under submission. They provided no hints on when they might issue a decision. The case is being watched by corrections officials, politicians and legal scholars around the country. It puts the two respected jurists in the position of making what could be a publicly unpopular decision with profound implications for prison care standards � and potentially, for public safety � as one of their final acts from the bench. “Judge Karlton is a realist,” said Rory Little, a Hastings College of the Law professor. “The question is not just the Ninth Circuit’s reaction, but the public’s. Can the system handle the mass release of prisoners, particularly those with mental health issues? That’s a realistic concern.” Lawyers for prisoner advocacy groups have asked the federal courts to create a three-judge panel because, they say, the state has failed to improve basic care for sick and mentally ill inmates despite dozens of orders to do so by the judges and their appointments of receivers and special masters. The problem, the lawyers contend, is directly caused by severe overcrowding in state prisons. That contention is key. Under federal law, courts can only order early prison releases if they find that authorities failed to address unconstitutional conditions in a reasonable amount of time, and only if those conditions are linked specifically to overcrowding. Karlton called the lawyers’ proposed solution “radical,” noting that a mass release could mean thousands of prisoners, some potentially violent or mentally ill, hitting the streets. “Just the idea that a federal court would impose a cap on state prisoners is radical, so radical that everyone on your side ought to take a deep breath and think about what you’re doing,” Karlton told Donald Specter, director of the nonprofit Prison Law Office. But Specter and plaintiff attorney Michael Bien of Rosen, Bien & Galvan in San Francisco said the state prison system is already producing thousands of inmates who’ve served their sentences without receiving treatment or training to discourage recidivism. “The state’s actors are not going to meet the demands of the state’s prison population without further judicial intervention,” Specter said. Attorneys for the state argued that lawmakers and corrections officials are addressing the overcrowding problem, noting that Gov. Arnold Schwarzenegger has ordered some inmates shipped out of state � an order a superior court judge recently ruled illegal � and that hundreds of jobs have been filled in key medical positions. They also noted the recent passage of AB 900, a $7.9 billion prison construction and parole reform measure. “What you see is a governor taking every action possible,” said Deputy Attorney General Lisa Tillman. But Henderson pointed out that lawmakers have balked at other reforms, such as the creation of a sentencing commission to rewrite laws that dictate prison terms. “The governor and the Legislature are free tomorrow to adopt a plan that will make both of us go away,” said Karlton. If that happened, “I wouldn’t even consider” authorizing a three-judge panel, he added. “But there isn’t any evidence that that is going to happen.” It isn’t clear what criteria might be used to decide who is released should the three-judge panel impose a population cap. State Sen. Gloria Romero, D-Los Angeles, a major proponent of a sentencing reform commission, called the judges’ comments “a wake-up call” to legislators. But she also said she doubted a commission would be approved this year. The proposed budget allocates no money for a sentencing commission, and lawmakers are too afraid of approving one for fear of being “called soft on crime,” Romero said. “I do think at this point it’s going to be up to the courts to find a solution,” she said.

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