Brown v. Plata

In 2009 California had 171,275 people in prison—more than in any other US state. Only 8 of the 224 nations in the world had more people in prison (Carson and Sabol, 2012, Table 2; International Center for Prison Studies, 2014). Not only did California have an astronomical number of people in prison in 2009, but the state’s prisons were extremely overcrowded—functioning at or above 200 percent of design capacity (Plata/Coleman Order, 2010: 4).

On January 12, 2010, a special panel of three federal court judges in northern California issued an order requiring California prison officials to reduce the state’s prison population by almost one-third—to 137.5 percent of design capacity (Plata/Coleman Order, 2010: 4–5). Just under two years later, the US Supreme Court upheld this “prison population reduction order” in Brown v. Plata (131 S.Ct. 1910 [2011]). Justice Kennedy’s majority opinion noted “serious constitutional violations” in the California prison system, including the fact that “on average, an inmate in one of California’s prisons needlessly dies every six to seven days” (Brown v. Plata, 2011: 1922, 1927). But Justice Scalia’s dissent called the population reduction order “the most radical injunction issued by a court in our Nation’s history” (Brown v. Plata, 2011: 1950). He was not wrong. No court had previously grappled with how to force such an oversized, overcrowded prison system to provide constitutionally adequate conditions of confinement, not to mention basic health care (although scholars have noted that courts had previously issued comparable injunctions in smaller cases [Schlanger, 2013: 168]). Legal scholar and criminologist Jonathan Simon (2014: 15–16) said the case “put mass incarceration on trial” and “provides a legal basis for nationwide dismantling of mass incarceration.” Simon’s reading of Plata is, perhaps, overly optimistic.

This article presents another interpretation of the case, drawing on its entire history, from the initial filing of its predecessor, Coleman v. Wilson, in 1990 through the aftermath of the Supreme Court’s decision upholding the three-judge panel’s population reduction order. Coleman and Plata both began with allegations of constitutionally inadequate mental (Coleman) and physical (Plata) health care throughout California’s prisons. Over the course of twenty-plus years of litigation, federal court judges acknowledged that California’s prison health-care system was indeed unconstitutional and eventually concluded that the only solution to the increasingly unmanageable problem of providing health care to the state’s prisoners was to reduce overcrowding—by fiat, if necessary. The sheer duration of the litigation in Coleman and Plata suggests a contentious process: prisoners’ advocates and federal judges have struggled to constrain both political discretion over the scale of imprisonment and prison administrators’ discretion over the conditions of imprisonment. Simon’s argument that this litigation is facilitating the “dismantling of mass incarceration” is supported by one statistic: California has winnowed its state prison population down to 135,606 prisoners (as of December 2014), significantly reducing prison overcrowding. But county jail populations have skyrocketed. In the year following the Supreme Court decision in Plata, county jail populations increased by 17 percent, surpassing 80,000 detainees (Lofstrom and Martin, 2013). In other words, state and local politicians have maintained the large scale of incarceration in the state, albeit in a more localized form. Likewise, as California prison officials have negotiated the process—dubbed “realignment”—of decreasing the number of prisoners entering the state prison system and increasing the number entering county jails and community facilities, state prison officials have merely transferred control and discretion to county jail officials, diffusing and localizing but not reducing discretion. In sum, the history and implementation of Coleman and Plata reveal that this litigation has contributed as much to the retrenchment of administrative and political power as to the dismantling of mass incarceration.

This article proceeds in three sections. The first section discusses the initiation and trajectory of the Coleman and Plata litigation, highlighting both the unusual history of the two cases and the ways in which judges and lawyers grappled with controlling prison officials’ discretion and politicians’ resistance to reform. The second section discusses the research analyzing Plata and the subsequent state effort to realign state prisoners into county facilities and local communities. The third section examines recent litigation challenging conditions in the jails to which these state prisoners have been realigned. Plata must be understood not just as a symbolic critique of mass incarceration, as Jonathan Simon (2014) argues, but as an example of (a) the persistent power of both administrative discretion and political resistance to reform and (b) the challenges of devolving punitive power to increasingly local decision-makers. Rather than reducing California’s reliance on mass incarceration, Plata may have simply initiated fragmentation of mass incarceration into local jails, which are both less visible and more resistant to federal judicial control than state prison systems.

The late 1970s marked the beginning of a dramatic increase in California’s prison population, driven by a complex and disputed mix of sociopolitical factors (Brewer et al., 1981; Campbell, 2014; Gilmore, 2007; Simon, 2014; Zimring and Hawkins, 1994). Criminologists initially argued that state legislative changes favoring longer sentences drove mass incarceration in California (Brewer et al., 1981; Tonry, 1987), but later analyses suggest more convoluted mechanisms driven by prosecutorial discretion (Zimring and Hawkins, 1994) and the politicization of crime (Campbell, 2014). While the causal factors driving mass incarceration in California continue to inspire scholarly debate, the outcomes of mass incarceration are incontrovertible. In 1977 California incarcerated fewer than 20,000 individuals in its prisons (Simon, 2014: 18). But the state’s prison population was on the verge of an upward spike. Between 1980 and 1991, California’s prison population quadrupled, topping 100,000 prisoners. In an attempt to keep pace with the growing prison population, California opened twenty-three new prisons between 1984 and 1996 (Gilmore, 2007), but even this massive prison-building project proved inadequate to house the state’s ever-growing prison population. The population peaked in 2007, when more than 173,000 prisoners were literally packed—three to a cell, sleeping on floors, stacked into triple-decker bunk beds in gymnasiums—into a system designed to hold 80,000 (Brown v. Plata, 2011; Schlanger, 2013). The eight-fold increase in incarceration in California between 1980 and 2007 not only produced acute overcrowding in the state’s thirty-three (as of 2007) prisons; it also severely impeded the ability of state prison officials to meet the basic health-care needs of state prisoners. In this sense, mass incarceration and overcrowding were the obvious, proximate causes of the Plata litigation.

The initial complaint in the Plata case in 2001 did not explicitly blame overcrowding for the health-care failures described, but it did identify a long list of inadequate resources, from staff and doctors to medical screenings to recordkeeping to insufficient emergency and chronic care services, and sought provision of more and better health-care services throughout the state prison system (Plata v. Davis Complaint, 2001: 21–23). The scale and severity of abuses documented in the 2001 complaint is shocking. The complaint focused in particular on the constitutionally inadequate medical treatment experienced by Marciano Plata and eight other prisoners in California prison facilities. Plata suffered with a severely injured knee for two years before he received surgery; on multiple occasions he fell and hit his head because he was required to work in spite of his injury. When Plata finally received surgery for his knee, he was promptly discharged from the hospital and required to walk, unaided, from the prison infirmary to his housing unit. Although Plata was not fluent in English, he was refused translators on multiple occasions (Plata v. Davis Complaint, 2001: 2–4). The initial complaint in Plata also detailed cases of a prisoner who received no postoperative wound care following placement of a dialysis stint; a patient with AIDS who received such sporadic doses of methadone (for pain) that he suffered eight bouts of severe withdrawal; and a paraplegic prisoner who experienced months of untreated urinary tract infections. The Plata complaint alleged that these and other instances of inadequate health care constituted violations of the Eighth Amendment guarantee against cruel and unusual punishment (Plata v. Davis Complaint, 2001). Ten years after the initial filing of Plata, Justice Kennedy, noting with shock that one prisoner was dying “needlessly” every week in California, would conclusively agree with the allegations in the Plata complaint.

With its massive prison population, overcrowded prisons, and weekly deaths, California sounded like an outlier among American states; however, the egregious abuses documented in Plata were not unique to California. Incarceration rates across the United States increased exponentially in the 1980s and 1990s, and many state prison systems experienced both overcrowding and an inability to meet the basic health-care needs of prisoners (Zimring, 2010; Schlanger, 2013). To provide just one example, throughout the 1990s and 2000s, the Alabama prison system faced ongoing scrutiny for health-care failures that rivaled California’s in scale and severity. Alabama prisons experienced a tuberculosis outbreak, implemented a policy of segregating HIV-positive prisoners into separate dorms without providing treatment, documented multiple instances of amputated limbs and testicles resulting from untreated staph infections and gangrene, and earned a federal judgment determining that Tutwiler women’s prison was a “ticking time bomb” in terms of its ability to safely house prisoners (Bennett, 2014; Fleury-Steiner and Crowder, 2008). In spite of these well-documented abuses in Alabama prisons, no three-judge court was ever convened and no statewide population reduction order ever issued. In sum, the severity of the overcrowding and abuses documented in Plata alone do not explain the fact that the case inspired a drastic population reduction order and attracted the attention of the US Supreme Court.

The unusual mix of expert lawyers and persistent politicians that coalesced in California in the early 2000s were as critical to Plata’s drastic outcome as the underlying constitutional violations revealed in the course of the litigation. First, some of the most experienced prisoners’ rights litigators in the United States initiated the Plata lawsuit. Second, some of the most vociferous supporters of mass incarceration in the United States intervened in the litigation, preventing the case from settling behind closed doors, thereby bringing public attention to and raising the stakes of the litigation. Increasingly contentious debates ensued, and California’s Attorney General appealed a district-level court decision in Plata to the US Supreme Court—twice.

The Plata litigation has now been going on for thirteen years, although other cases challenging more limited aspects of health care in the California prison system were initiated as early as 1990. This quarter-century of litigation reveals the challenges (and the potential benefits) of legal interventions that seek to constrain both prison officials’ discretion over how they treat prisoners and politicians’ discretion over how many people should be imprisoned. In California, one man has led these interventions for the past three decades: Donald Specter. Specter signed the initial complaint filed in the Plata case in April 2001. He was (and remained, as of 2015) the director of the nonprofit Prison Law Office, which specializes in class-action litigation on behalf of California state prisoners.

The Prison Law Office has been operating since the 1970s; until 2008, the office was located just outside the gates of California’s oldest prison, San Quentin, in Marin County, California. In the office’s early years, lawyers filed claims on behalf of small numbers of prisoners in a few prisons scattered across the state, like San Quentin and Folsom. But as California’s prison system grew, so did the Prison Law Office’s litigation docket. The office even weathered the passage of the Prison Litigation Reform Act (PLRA; Pub. L. 104–134, 110 Stat. 132) in 1996. The PLRA severely limited the ability of prisoners to initiate litigation challenging their conditions of confinement, sharply curtailed the fees lawyers could earn litigating these cases, and ultimately led to substantial decreases in the filing of prison civil rights cases across the United States (Schlanger, in press). In spite of the challenges the PLRA presented, the Prison Law Office lawyers partnered with local plaintiffs’ side litigation firms and persisted in litigating unconstitutional conditions of confinement in California. Ultimately, the PLRA would even provide the legal basis for the population reduction order in the Plata case.

By 2001, when Specter filed the complaint in Plata, he had already won an impressive number of settlements, consent decrees, and injunctions requiring improvements in conditions of confinement throughout California prisons. Three of these cases were critical precursors to Plata. First, Specter was lead counsel in Armstrong v. Wilson (124 F.3d 1019, 1997), filed in 1994, which alleged that California prison officials systematically violated the Americans with Disabilities Act by discriminating against prisoners with disabilities. The federal court in Armstrong issued an injunction requiring improved facilities access for prisoners with disabilities, and Prison Law Office attorneys continue to regularly monitor California prisons to ensure that individual facilities accommodate prisoners with disabilities. Signs throughout California prisons notify prisoners that they should contact the Prison Law Office if they are being discriminated against based on a disability, and the prison system has a special grievance process, complete with independent forms, which Prison Law Office attorneys regularly review, for prisoners with disabilities. Armstrong was important as one of the Prison Law Office’s first statewide, class-action cases. Many of the Armstrong class members would ultimately become Plata class members too. The Armstrong case also gave the Prison Law Office a strong legal presence throughout the California prison system—undoubtedly improving Don Specter’s ability to identify other health-care-related violations occurring in the prison system.

Second, Specter was lead counsel in Madrid v. Gomez (889 F.Supp. 1146 [1995]), which challenged the conditions of confinement in Pelican Bay State Prison, California’s highest security, supermaximum prison. Just as in Plata, Specter and the Prison Law Office lawyers identified numerous instances of Eighth Amendment violations at Pelican Bay. In 1995 Judge Thelton Henderson of the Northern District Court of California agreed that there were a number of unconstitutional conditions of confinement: guards had engaged in a pattern and practice of using excessive force to subdue prisoners and had denied prisoners adequate medical and mental health care. Henderson ordered massive reforms and ongoing oversight at Pelican Bay. As a direct result of his oversight of the Madrid litigation, Judge Henderson would be the first judge to review the Plata complaint, and he has been outspoken among lawyers and in the public media about the egregious violations documented over the course of the Plata litigation.

The same year Judge Henderson issued his initial order in Madrid, Specter and his colleagues at the Prison Law Office joined a third lawsuit critical to the history of Plata: Coleman v. Wilson (912 F.Supp. 1282 [1995]). Coleman alleged constitutionally inadequate mental health care throughout the California state prison system. The case had been filed in 1990 in the US District Court for the Eastern District of California by a pro se prisoner and later taken up by the Prison Law Office (Schlanger, 2013). In Coleman, Judge Karlton found that the California Department of Corrections’ mental health care system was “deliberately indifferent” to the needs of mentally ill prisoners and therefore unconstitutional under the Eighth Amendment. Judge Karlton tasked a court-appointed special master with overseeing reform. The Coleman case would ultimately be merged with the Plata case in 2006, and Judge Karlton would serve with Judge Henderson as one of the three judges on the panel, which ultimately ordered California to drastically reduce its state prison population.

By the late 1990s, Don Specter and the Prison Law Office not only had a well-established reputation as a civil rights powerhouse; they also had developed a surprisingly collaborative relationship with the California Department of Corrections. Although Prison Law Office lawyers like Specter repeatedly sued California prison officials, a successful suit usually resulted in a court order or consent decree requiring Prison Law Office lawyers to work closely with prison officials to monitor court-ordered improvements and enforcement of new policies, as in Armstrong. So when Specter filed the complaint in the Plata case in 2001, the California Department of Corrections would have known that it was facing a formidable, but reasonable, opponent. The Prison Law Office had a track record of carefully establishing incriminating evidence against the California prison system. But each time it did this—in Armstrong, Madrid, and Coleman—federal judges forced new allocations of resources to the prison system, allowing prison officials to provide better care, ultimately making the state’s prisons easier to operate. For instance, Armstrong resulted in allocation of funds to provide translators for deaf prisoners and wheelchair-accessible facilities for paraplegics; Madrid resulted in better-trained guards and significant reductions in violent incidents at Pelican Bay. Of course, as the Plata litigation would later reveal, abuses and shortcomings in the provision of health care persisted in California prisons. The severity of the abuses documented in Plata are all the more surprising in the context of a state with an established and effective group of prisoners’ rights lawyers monitoring prison conditions and regularly initiating litigation to challenge unconstitutional conditions of confinement. Though Plata has been underway for just over a decade, it is part of a longer history of nearly three decades of litigation over related issues—suggesting that achieving adequate oversight of prison administrations and constitutionally adequate conditions of confinement is no simple task.

When Specter filed the Plata Complaint in the Northern District Court of California in 2001, Judge Henderson opted to hear the case because of his established expertise in California prison conditions and prison health-care problems, developed over the course of the Madrid litigation. (A case filed in a district court would normally be randomly assigned to a judge.) The Department of Corrections quickly agreed to a preliminary compromise: an entry of injunctive relief and initiation of settlement negotiations. In short, California prison officials immediately conceded “liability for systemic violations of the Eighth Amendment’s ban on cruel and unusual punishments” (Schlanger, 2013: 174). As in Madrid, Judge Henderson oversaw remedial efforts, this time by appointing a federal receiver—an independent expert—who would guide and monitor reform.

As of 2005, the reform process was ongoing, with Judge Henderson, the Prison Law Office lawyers, and California Department of Corrections officials working together to remedy the constitutional violations detailed in the initial Plata complaint. But finding doctors to work in the massive (and still growing) prison system, and the funds to pay them, proved an ongoing challenge. The federal receiver sought significant salary increases for health-care staff but continued to face difficulties hiring enough medical specialists to provide adequate care (Miller, 2006). Acknowledging the relationship between these challenges and prison overcrowding, the California legislature considered legal reforms to reduce overcrowding, but it failed to agree on any of the proposed legislation. In April 2006 Judge Henderson agreed to coordinate with Judge Karlton, who was still overseeing the Coleman litigation over inadequate mental health care in California prisons, and the two cases were merged—reemphasizing the massive scale of the health-care challenges facing the state prison system. At this point, however, Plata still seemed like just another of the Prison Law Office’s class-action cases, which would be resolved over time through judicial oversight, legal monitoring, and incremental reform.

Then, in October 2006, California Governor Arnold Schwarzenegger declared that the California prison system was facing a “state of emergency” that endangered prisoners, corrections staff, and the public. The declaration was “a prerequisite to contracting with private or out-of-state facilities to house California prisoners” (Schlanger, 2014: 175). California historically had not used private prison facilities or out-of-state overflow facilities due to objections lobbied by the powerful prison guards union, the California Correctional Peace Officers Association (Page, 2011). The legal team representing the Coleman and Plata plaintiffs seized this moment and filed a motion seeking a population reduction order (Schlanger, 2013). At this point, the litigation became more contentious.

A population reduction order would require the convening of a three-judge panel. Defendant prison officials objected. But the three-judge panel was convened: District Judge Henderson and District Judge Karlton were automatic members, since they had overseen litigation in the two underlying cases; Ninth Circuit Judge Reinhardt, a notoriously liberal judge appointed to the circuit by Jimmy Carter in 1980, was randomly selected to be the third member of the panel. Over the next few years, this three-judge panel grappled not only with the problem of too many prisoners getting too little health care but with sustained political resistance to their authority from California governors and legislators.

First, in September 2007, a group of Republican legislators sought the right to intervene in the Plata case. After some back-and-forth litigation, the three-judge panel ultimately allowed the legislators to participate in settlement discussions, as prison officials and prisoners’ attorneys negotiated about how to reduce the state’s prison population. Then, in July 2008, Attorney General Jerry Brown sought permission from the three-judge panel to file a motion for summary judgment. Brown alleged that overcrowding was not the cause of the constitutionally inadequate medical care and a population reduction order should not be considered (Coleman/Plata Statement, 2008). This motion triggered a spate of litigation—and signaled the waning possibility that prisoners’ attorneys and state officials might reach a settlement agreement. This was the first of many stand-offs between the federal judiciary and tough-on-crime Jerry Brown, who was preparing to run a successful campaign for a third term as California governor in 2011. During his two prior terms, spanning 1975 to 1983, Governor Brown had signed off on legislation that steadily increased prison sentences and had overseen the state’s first substantial investments in prison building (Campbell, 2014).

The three-judge panel dismissed then-Attorney General Brown’s attempt to close the Plata and Coleman cases (through that Summary Judgment motion) and instead ordered the state to build seven new prison medical facilities. Then-Governor Schwarzenegger and the comptroller refused to provide a $250 million cash down payment to initiate the construction, and the three-judge panel threatened to hold the two in contempt (Zimring, 2008). Once the prison-building orders were thwarted, the three-judge panel punted the overcrowding problem back to state officials, ordering them to find a way to reduce the prison population to within 137.5 percent of the system’s design capacity (Coleman/Plata Order, 2010). Importantly, this could have ended the litigation. Frank Zimring (2008), a leading criminologist in the state, argued hopefully in an op-ed in the Los Angeles Times:

[P]erhaps there is less of an angry struggle between the governor and the judges than seems apparent. When governmental actions are necessary but unpopular, external pressure like a court order can provide political cover to do the right thing by giving politicians a federal court to blame for it. And that is one reason why I suspect a settlement may be closer than the current posturing suggests.

In other words, Zimring thought that prison officials, legislators, and the governor would ultimately submit to the federal court orders and blame the court for forcing them to allocate billions of dollars to remedying the health-care crisis in the state’s prisons. He underestimated the stubbornness of California’s politicians, however.

Attorney General Brown appealed the population reduction order, arguing that an ordered population cap did not comport with the PLRA requirement that any relief granted by a three-judge court to remedy a violation of federal rights must be narrowly drawn, extend no further than necessary, and utilize the least intrusive means necessary (Brown v. Plata, 2011). Appeal from the three-judge panel, as authorized by the PLRA, was direct to the Supreme Court. The Supreme Court would address one central question, already a political hot potato in California: Was the three-judge panel’s population reduction cap an appropriate remedy to the longstanding constitutional deficits in California’s prison mental health and medical care systems?

The Supreme Court said: yes. Justice Kennedy’s majority opinion in Brown v. Plata (2011) described in graphic detail the California Department of Corrections’ systematic failures to provide adequate and timely medical and mental health care and the drastic and sometimes deadly consequences for inmates. Justice Kennedy rendered California’s unconstitutional conditions vivid through descriptions of suicidal inmates waiting for mental health care in cages the size of telephone booths (Plata, 2011: 1924). The court even attached three photos depicting California’s extreme prison conditions—one picture of holding cells for prisoners awaiting mental health treatment and two pictures of prison housing units filled with the “sheer density of human bodies” (Simon, 2014: 249). These unconstitutional conditions were “incompatible” with the Eighth Amendment’s “concept of human dignity” (Plata, 2011: 1928) and ultimately attributable to the prison system’s chronic overcrowding, which had evaded remedy for years. So Justice Kennedy, on behalf of the majority, upheld the population reduction order. Upholding the population cap was, as Justice Kennedy’s opinion admits (Brown v. Plata, 2011: 1923) and Justice Scalia’s chides (Brown v. Plata, 2011: 1950), both unprecedented and especially surprising in the light of the PLRA’s intended restriction of the precise type of prison reform litigation at Plata’s core (Bower, 2012; Feeley and Rubin, 2000; Schlanger, 2006; Simon, 2014).

The decision’s content, like its result, has also been heralded as unprecedented. California politicians in particular continued to bridle under the court’s order. The Supreme Court decision forced the governor, legislators, and prison officials to confront the interrelated problems of prison overcrowding and constitutionally inadequate health care. This time, the governor and legislators seriously engaged with the question of how to reduce California’s prison population and quickly drafted and passed legislation responsive to the three-judge court’s population reduction order: A.B. 109: The Criminal Justice Realignment Act of 2011. The implementation of this Act is the subject of the next section.

Meanwhile, however, the Plata litigation continued. In 2013 the three-judge court ordered California to release 9,600 more prisoners by the end of the year to comply with the previously established (and Supreme Court-approved) population reduction requirements. Governor Brown again resisted federal judicial authority, proclaiming he would not follow the order and filing an emergency appeal with the US Supreme Court. The appeal was rejected (Savage, 2013; Tabo, 2013), but the political point was made. Governor Brown had no interest in seeking “cover” from the federal court to “do the right thing” as Frank Zimring had suggested in 2008. Instead, Brown asserted his executive authority to determine exactly how many prisoners the state of California would incarcerate and how. In spite of more than ten years of litigation in Plata and more than twenty years of litigation in the related Armstrong, Madrid, and Coleman cases, California politicians continue to resist reducing the state’s prison population, and prison officials continue to face challenges providing constitutionally adequate conditions of confinement. This is not to say that the litigation has been unsuccessful but rather to point out both the challenges of achieving and sustaining reform through litigation and the persistence of political and administrative discretion in resisting these reforms.

The Supreme Court’s ruling in Plata finally mobilized politicians in California to collaborate and agree on a solution to prison overcrowding. Within months of the decision, legislators passed, and Governor Brown signed, California Assembly Bill No. 109 (2011–2012 Regular Session, Ch. 15 [Cal. 2011]), or the Criminal Justice Realignment Act of 2011, often referred to simply as “Realignment” (Schlanger, 2013). There are two straightforward solutions to prison overcrowding: either release prisoners—the solution Justice Scalia assumed in his Plata dissent—or build new prisons—the solution California had sought in the past (Gilmore, 2007) and other states have settled on in response to prison conditions litigation (Schoenfeld, 2010). California politicians could agree on neither of these solutions; instead, they concocted the compromise of Realignment: transfer significant portions of post-conviction criminal justice responsibility from the state to each of California’s fifty-eight counties.

The law accomplished this transfer of responsibility by requiring counties to supervise three main categories of offenders previously supervised by the state: convicted “non-non-nons,” paroled “non-non-nons,” and parole violators. First, Realignment requires counties, rather than the state, to supervise a new category of individuals convicted of nonserious, nonviolent, non-sex offender registry–eligible offenses (so-called “non-non-nons”) (CA Pen. Code §1170[h]). As long as their criminal histories are free of any serious or violent crimes, non-non-nons now serve their sentences in county jail rather than in state prison. In addition, these individuals are, at the sentencing judge’s discretion, eligible for “split sentences.” Split sentences do not affect sentence length but rather how and where a sentenced is served. Judges may choose to sentence a non-non-non to any combination of county jail time and mandatory supervision in the community. Mandatory community supervision is similar to probation but can also include additional monitoring conditions. Second, Realignment introduced changes to parole. The law requires non-non-nons to be released on “Post Release Community Supervision,” administered by the counties, instead of by the state parole agency (CA Pen. Code §3450). Third, the law provides that parole violators will not be returned to state prison, as they were previously, but will instead remain under county supervision (CA Pen. Code §3451). This shift of control and responsibility from the state government to local municipalities represents one of Realignment’s most significant changes (Owen and Mobley, 2012; Schlanger, 2013; Silbert, 2012).

Yet much of Realignment’s effect depends on how each of California’s fifty-eight counties operationalizes the law. With Realignment’s delegation of criminal justice responsibilities comes a considerable grant of discretion to local actors. Each county was, for example, directed to establish working groups comprised of several key local criminal justice actors responsible for detailing the county’s plans for implementing Realignment’s mandate, including how state-allocated Realignment funds are to be spent (Verma, 2014). California has, through 2013–2014, allocated $2 billion to the counties for Realignment purposes and plans to, by 2016–2017, distribute $4.4 billion (Lin and Petersilia, 2013; Petersilia and Snyder, 2013). Lin and Petersilia’s analysis of how initial funding allocations are being spent indicate that counties are exercising their discretion differently.

Some counties have elected to invest more heavily in alternative, community-based sanctions while others are expanding their enforcement capacity by increasing jail capacities and adding sheriff’s deputies. For instance, Santa Clara has implemented Realignment through alternative sentencing programs. Santa Clara County’s Correctional Alternative Supervision Unity places eligible prisoners on house arrest or sends them to live in a temporary housing unit or a sober living environment, subjects them to regular drug testing, and allows them to participate in job trainings, classes or work (Petersilia, 2014). Other counties have increasingly relied on pretrial home detention programs; Riverside County recently reported that it increased its pretrial ankle-bracelet program from 500 to 2,000 individuals (Petersilia, 2014). Santa Clara and Riverside County aside, preliminary research suggests that the majority of Realignment funds are being used not for alternative sentencing programs but to expand county enforcement capacity through increasing available jail beds and adding sheriff’s deputies (Lin and Petersilia, 2013). Nearly every county in California has elected to expand their jail system. By June 2013, twenty-one counties had already received funding for construction to add a total 10,811 jail beds across the state (Petersilia, 2014).

A few counties have invested in expanding jail programming instead of jail beds. In San Francisco County, for example, two key Realignment initiatives are rooted in alternative and community-based programs—the Reentry Pod and the Community Assessment and Services Center, both implemented in 2012 (Still et al., 2014). These programs emphasize individualized treatments and services delivered through a multiagency partnership. The Pod aims to prepare prisoners for reentry into the community by placing them in classes such as job readiness training, anger management, family dynamics, restorative justice, and yoga. Jeffrey Beard, the secretary of the state prison system, has characterized San Francisco’s Reentry Pod as a model program (Lamb, 2014), and the Santa Barbara County sheriff is considering a Reentry Pod as part of the design for the county’s new $80 million state-funded jail (Petersilia, 2014).

In sum, Realignment’s implementation has been varied, and the unique political and institutional environments within which counties operate influence the choices individual counties reach about how to allocate Realignment funds and populations (Lin and Petersilia, 2013). A growing body of scholarship is focusing on these individual, county-level contexts. Some scholars have analyzed the differences between pre-Plata rates at which counties sent individuals to state prison and their implications for implementing Realignment (Ball, 2012; Lofstrom and Raphael, 2013; Males and Goldstein, 2014). Others have focused on the content of the proposals the legislature required each county to draft detailing Realignment implementation plans (Hopper et al., 2012; Verma, 2014); post-Realignment decisions and preferences of local criminal justice stakeholders (Ball and Weisberg, 2014; Petersilia, 2014; Spencer and Petersilia, 2013; Weisberg and Quan, 2013); and variations in county spending (California Department of Corrections and Rehabilitation, 2013, 2014; Lin and Petersilia, 2013). The local, this literature suggests, is an important consideration in examining Realignment’s nuances. This renewed attention to the local echoes a growing trend in punishment scholarship writ large focused on the importance of local-level innovation (Campbell, 2014; Lynch, 2009; 2011; Lynch and Omori, 2014; Reiter, 2013; Schoenfeld, 2010).

Collectively, the changes to California’s corrections management policies contained in Realignment’s nearly 1,000 legislative pages have been characterized as “the biggest penal experiment in modern history” (Petersilia and Snyder, 2013: 266). Unsurprisingly, California prison officials predict significant effects. For example, they estimated that preempting individuals like the non-non-nons and post-release non-felony parole violators from serving time in state prison would dramatically reduce the state’s prison population—affecting approximately 117,000 inmates and parolees (California Legislative Analyst’s Office, 2010).

Though Realignment is in its initial stages of implementation, a burgeoning literature is already examining its possible effects on public safety (Lawrence, 2013; Lofstrom et al., 2013) by analyzing both recidivism rates (Bird and Grattet, 2014) and crime rates (Misczynski, 2012). In addition to predicting local and state-level effects of Realignment, scholars are also predicting national-level effects. California’s criminal justice policies have historically tended to proliferate throughout the United States (Casper et al., 1983; Cassou and Taugher, 1978; Simon, 2014), so scholars are anticipating that Realignment-style policies—and consequences—may also spread nationally (Petersilia and Snyder, 2013).

For now, the consequences of Realignment are especially relevant to local jails across California. As noted previously, expanding jail capacity (and in some cases programming) has been a central focus for counties implementing realignment. Next we examine the jail-related policy changes in more detail.

Consistent with Realignment’s transfer of authority from the state to the local, the law tasks county jail officials with responding to and managing local jail systems that have absorbed a realigned criminal justice population. Realignment has already had a significant impact on jail populations. Loftsrom and Raphael (2013: 2) estimate that, between June 2011 and June 2012, the daily average California jail population grew by about 8,600 inmates, or 12 percent. In addition to housing more prisoners, jails are also housing prisoners serving longer sentences. For example, one prisoner is serving an eighteen-year sentence in the Fresno jail system, and the Los Angeles jail system is housing a prisoner serving nearly fifty years (Shafer, 2014). Because jails are usually designed to detain people serving shorter sentences, detaining prisoners with such long sentences puts pressure on jail operations and staffing and, of course, strains health-care systems. This shift of bodies has, some criminal justice stakeholders argue, also shifted the state prison system’s problems to the jails. Monterey County Sheriff Scott Miller, for example, described Realignment as “a masterful stroke by Governor Brown to shift all the state’s prison problems to county jails” (Thompson, 2013b). As the jails house more prisoners for longer sentences, the very problems targeted by Plata seem to be sprouting up (and, worse, taking root) in the jail system.

In November 2013 the Associated Press reported post-Realignment increases in violence in ten of the state’s biggest jails. In the first year after Realignment’s implementation, these ten jails, which account for 70 percent of the state’s jail population, reported 2,000 more assaults on inmates and 165 more attacks on jail employees as compared to the previous year (Thompson, 2013a). The risein violence corresponded with a 14 percent increase in the populations of the ten jails, which rose to 58,000 inmates—about 7,600 inmates above their rated capacity. Fresno County’s assistant sheriff Tom Gattie blamed Realignment for the uptick in violence: “The violence is just being transferred to the local facilities from the state system” (Petrella and Friedmann, 2014).

With the jails trending toward overcrowding and conditions reminiscent of California’s prisons pre-Plata, Margo Schlanger’s (2013: 210) warning that, by “chopping off the head of unconstitutional prison conditions,” Realignment risked a “hydra threat” of jail litigation, seems to be materializing. Just seven months after the Supreme Court decided Plata, the Prison Law Office again filed suit alleging unconstitutional conditions of confinement, this time in the Fresno County jail system (Hall v. Mims Complaint 2011). The complaint described systematic failures in the jail’s operation and medical and mental health services that echoed the conditions described in the initial Plata complaint and in Justice Kennedy’s Plata opinion. One Fresno jail plaintiff described being slashed in the face by a fellow prisoner suffering from untreated mental illnesses and being hospitalized after the jail failed to provide him with proper medical or mental health care (Id.). Fresno jail officials have since stipulated to liability, and settlement negotiations appear to be ongoing. In March 2013 the Prison Law Office filed another jail suit against Riverside County, alleging constitutional deficits in medical and mental health care so severe that prisoners had gone months without seeing a doctor (Gray v. County of Riverside Complaint). A few months later, in fall 2014, the Prison Law Office met with officials in neighboring San Bernardino County to discuss jail conditions, seeking to reach an agreement that would preempt the litigation that is spreading throughout the state’s jail system (Nelson, 2014). The Prison Law Office has interviewed more than 700 inmates in San Bernardino County, and over 100 have complained that deputies use excessive force—allegations that are also being investigated by the FBI.

Prison Law Office lawyers have traveled this road before, as detailed in the first section of this article. On the one hand, the lawyers have developed an expertise that allows them to quickly identify constitutional violations in Fresno, Riverside, and San Bernardino Counties and collaborate with jail officials to design and implement solutions. On the other hand, reform will continue to be thwarted if politicians do not act to reduce incarcerated populations and if prison and jail officials continue to shift institutional populations among various facilities. Moreover, unlike California’s thirty-four state prisons, which have been sued as one entity in federal court, California’s fifty-eight county jail systems cannot readily be joined into one comparable entity, so Prison Law Office lawyers must work county by county to achieve the reforms they have already spent more than thirty years seeking to achieve in the state prison system.

Other organizations are also joining the litigation fray, bringing individual suits against local jails. In November 2012 Legal Services for Prisoners with Children, a national nonprofit organization, sued the Alameda County sheriff over the county jail’s treatment of prisoners with disabilities (Legal Services for Prisoners with Children v. Ahern). Lawyers from the Disability Rights Legal Center in Los Angeles and the Disability Rights Advocates in Berkeley have joined the litigation team. Monterey also joined the list of counties with ongoing jail litigation over conditions in May 2013 (Hernandez v. County of Monterey). The Monterey County Pubic Defender’s Office filed this suit, and the litigation team now includes the same private San Francisco law firm—Rosen, Bien, Galvan & Grunfeld—that partnered with the Prison Law Office in the Coleman and Plata litigation, the American Civil Liberties Union of Northern California, and the American Civil Liberties Union National Prison Project. The suit came as no surprise to Monterey Sheriff Scott Miller, who described overcrowding in his jail as so severe that prisoners had to be triple-bunked. The surplus beds, he said, were donated from a nearby state prison, an irony underscoring that Realignment has shifted rather than eliminated overcrowding and its associated problems from California’s prisons to its jails (Thompson, 2013b). Since the suit was filed, four inmates have died while in the jail’s custody, spurring parallel civil, wrongful death litigation (Gatlin, 2014).

Donald Specter and the Prison Law Office are no longer the only legal players taking on unconstitutional conditions of confinement. Just as the litigation has proliferated from California’s prison to its jails, so too have the litigation teams diversified. On the one hand, this diversity of litigators suggests that the Prison Law Office’s litigation tactics are replicable and might serve as a model for litigation across California, and the United States, to dismantle mass incarceration, as Simon (2014) has predicted. On the other hand, the need for such a vast array of piece-meal litigation, following on the Supreme Court’s decisive order in 2011 and decades of litigation seeking to eliminate these very same problems suggests that dismantling mass incarceration in this manner will be haltingly slow at best.

Plata’s prison reduction order has reverberated among scholars and practitioners alike. Justice Kennedy’s emphasis on the human dignity of prisoners has inspired both punishment scholars and lawyers to think that the nation may be moving away from the policies and practices of mass incarceration that contributed to California’s bursting prison population (Simon, 2014). The Plata v. Brown litigation has raised awareness of Eighth Amendment violations of prisoners’ rights across the United States, initiated a national conversation about these violations, and forced reforms that have improved the everyday lives of tens of thousands of prisoners in California’s state prisons. In addition, Plata has galvanized a new wave of litigation challenging conditions of confinement—both in California’s jails and in prison systems across the United States (Schlanger, 2013).

This article has sought to explain the success—in terms of a favorable Supreme Court decision—of the Plata litigation but also to demonstrate its limitations—in terms of both the painstaking and ongoing nature of the litigation and the challenges of implementation. The long history of prisoners’ rights litigation in the state of California, stretching back to the 1970s and peaking with the initiation of Armstrong, Madrid, and Coleman in the 1990s and then the filing of the Plata case in 2001, provides some context for the apparent success of the litigation. But success is relative.

The Supreme Court upheld the radical order issued by three of the most liberal judges in the Ninth Circuit, but California continues to be embroiled in litigation over provision of health care—in both the state prison system and in a growing number of county jail facilities. The state-level Plata litigation has produced an ongoing political standoff between prisoners’ lawyers and federal judges on the one hand and the governor and state legislators on the other. The resistance of Governor Schwarzenegger to the three-judge court’s initial orders, and the subsequent resistance of Governor Brown to later orders, has called the court’s authority into question and dashed Frank Zimring’s (2008) hope, expressed in a Los Angeles Times op-ed that the litigation would lead to a politically advantageous solution.

In sum, this long history of litigation also reveals the intransigent challenges of using litigation to control unconstitutional prison conditions. Indeed, while California’s state prisons are less overcrowded in 2015 than they were in 2011, or 2007, many of the problems seem to have simply been shifted to county jails, which seem likely to be even more resistant to systemic federal judicial oversight than state prisons. This all raises the question of whether mass incarceration is simply being reborn in California in a more dispersed and localized but less visible and manageable form.