Thread: 9th Circuit: Judge named to prison panel; draws criticism

Judge named to prison panel
Choice of Reinhardt, a liberal, draws criticism as governor fights a cap on inmate population.

By Kevin Yamamura - Bee Capitol Bureau

Published 12:00 am PDT Saturday, July 28, 2007

U.S. Circuit Judge Stephen Reinhardt, an outspoken liberal who once backed a ban on recitation of the Pledge of Allegiance in public schools, has been named to a three-judge panel that will consider whether to cap the state's prison population.

The naming of Reinhardt could pose further problems for Gov. Arnold Schwarzenegger, who is appealing the three-judge panel's formation and has vowed to fight a population cap opposed by conservatives.

A cap could lead to the early release of thousands of inmates to relieve pressure from the state's cramped prisons. Federal courts have determined that California's poor prison conditions violate its constitutional obligations to provide adequate medical and mental health care.

Reinhardt, of Los Angeles, joins U.S. District Judges Thelton Henderson, of San Francisco, and Lawrence Karlton, of Sacramento, on the three-judge panel. They were named Thursday by U.S. 9th Circuit Chief Judge Mary M. Schroeder.

Henderson and Karlton, who have ordered improvements to mental and medical health care in state prisons, issued twin decisions Monday calling for creation of the rare judicial panel, the next legal step toward a population cap. They rejected assertions by state attorneys that Schwarzenegger and lawmakers have done enough to resolve the state's overcrowding crisis.

In an attempt to avoid Monday's empaneling of judges, Schwarzenegger and state lawmakers from both parties approved a $7.9 billion bond in April for 53,000 new prison and jail beds. Henderson and Karlton wrote that the proposal, Assembly Bill 900, would not bring prisons into constitutional compliance and may even aggravate the situation.

Schwarzenegger filed appeals Friday challenging the decisions of Henderson and Karlton creating the three-judge panel, said Bill Maile, a Schwarzenegger spokesman. The Republican governor also filed stays asking that the panel not go forward.

"While those appeals are pending, we will work with the panel selected by Chief Judge Schroeder," Maile said. "We will show the panel the aggressive efforts being made by the administration to address prison overcrowding, explaining why a prison release order is not necessary."

Reinhardt was appointed by President Carter in 1980 to the 9th U.S. Circuit Court of Appeals, which covers Western states. He concurred in the 9th Circuit's 2002 decision that the Pledge of Allegiance was an unconstitutional endorsement of religion. It was later overturned by the U.S. Supreme Court.

In 2000, Reinhardt led a panel in ruling that the Immigration and Naturalization Service must release hundreds of foreign-born former convicts kept in jails because their home countries wouldn't take them back. The detainees had past convictions that made them eligible for deportation, but their homelands lacked repatriation agreements with the United States.

"You might say he's probably the judge that Gov. Schwarzenegger would least like to see on the panel," said Stephen Barnett, a University of California, Berkeley law professor emeritus, who described Reinhardt as liberal but independent-minded.

Assemblyman Todd Spitzer of Orange, the Assembly GOP's point man on prisons, assailed the selection of Reinhardt. He suggested the three appointees all but assure a panel that will conclude a population cap is necessary.

"I'm horrified that the 9th Circuit presiding judge didn't make any attempt to provide balance to the three-judge panel," Spitzer said. "A three-judge panel has been named, but it's difficult to think that they are going to deliberate and haven't already formed a conclusion."

But Michael Bien, an attorney representing the plaintiffs, disagreed with Spitzer's characterization of Reinhardt and the three-judge panel.

"He's a distinguished judge, and he will deal with the issues fairly and carefully," Bien said. "I'm not sure this is a liberal-conservative issue. It deals with a problem California is having, and I would hope that any judge appointed to the panel would do his best to apply the United States Constitution to these important issues."

Spitzer also took issue with Schroeder's naming of both Karlton and Henderson to the panel. Because the two judges offered similar arguments in their decisions that suggested the necessity of a population cap, the panel will not be as objective as it would be with a second judge uninvolved in the cases, he said.

By law, one member must be a judge who called for the creation of the panel and one more must come from the same circuit. But Karlton issued a unique request "for purposes of judicial economy and avoiding the risk of inconsistent judgment" that the same three-judge panel handle both cases.

"It's somewhat surprising that Judge Schroeder didn't appoint a more centrist judge to the panel," Barnett said. "You would think that she would look for someone who gives the panel more balance than Judge Reinhardt would appear to."

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It's really sick. These radical Socialists in power in CA won't fund more prisons and so they want a cap on the prison population. Let the criminals free?