Pursuant to the authority of the federal Prison Litigation Reform Act (PLRA), 18 USC 3626, a three judge federal court will shortly decide whether or not to release, potentially, up to 40,000 state prison inmates and/or impose a population cap on state prisons thereby preventing the transfer of sentenced prisoners from county jails to the state prison system. After twelve years of ongoing litigation, two federal district judges, the Honorable Felton Henderson of San Francisco , and the Honorable

Lawrence K. Karlton of Sacramento , ruled that situations exist in the California prison system justifying the creation of a special three court judge to assume virtual control over the state prison system.

On August 1, 2007, the Chief Judge of the Ninth Circuit U.S. Court of Appeals appointed a three judge panel consisting of Judges Henderson and Karlton, as well as the Honorable Stephen Reinhardt, United States Circuit Judge for the Ninth Circuit, to consider whether or not to issue a prisoner release order, as a result of concluding that the over crowded conditions in the California prison system violated the federal constitutional rights of those inmates.

In fact, there are approximately 175,000 inmates in the state's system, which was designed to only hold approximately 100,000 inmates. Judges Henderson and

Karlton have also concluded, based upon prior hearings, that the system is woefully inadequate in providing appropriate medical and mental health care for as many as 33,000 inmates who qualify for such treatment.

Recognizing these problems, Governor Arnold Schwarzenegger and the California State Legislature passed AB 900 which set aside over seven billion dollars to create 53,000 new prison beds; increase the quality of medical care in the system; develop, in conjunction with local communities, re-entry facilities for inmates being released back to the communities; and increase support services for those individuals. Unfortunately, Judges Henderson and Karlton have stated that those efforts are inadequate and will not remedy the constitutional violations currently in existence.

COLLABORATIVE EFFORT

As a result of the creation of this three judge court, and the likelihood of the immediate and potentially horrific actions of the court, a variety of stake holders have joined together in a collaborative effort to try and stave off such pending disaster. The California State Sheriffs' Association (CSSA), the California Police Chief's Association (CPCA), and the Chief Probation Officer's of California (CPOC) have joined together to intervene in the federal action to bring direct evidence and testimony to the three judges in an effort to educate them on the significant impact such actions would have upon local communities and the criminal justice system at large.

The firm of Jones & Mayer has been retained by the three associations to represent them in this undertaking. As such, we filed a Motion to Intervene on Wednesday, August 15, 2007 on behalf of twenty-three sheriffs throughout the state of California and one Chief Probation Officer. We also filed a request for a continuance to allow municipal chiefs of police, who operate Type 1 jails, as well as additional chief probation officers to secure authorization from their respective governing bodies to join in the litigation as well. (Since police chiefs and chief probation officers are not elected officials they cannot engage in litigation without the authorization of their governing bodies. Sheriffs and District Attorneys as constitutionally elected officials, may proceed independently.)

In addition to the action taken by the sheriffs, approximately fourteen elected district attorneys and thirty-one members of the State Assembly also filed motions to intervene in the litigation. Federal law states that certain state and local officials, including sheriffs, chief probation officers, prosecutors and legislators, have an unconditional right to intervene in such an action due to their direct involvement in funding and/or maintaining custodial facilities, as well as prosecuting those who are then sentenced to state facilities.

FUNDING FOR THE LITIGATION

Recognizing the potential impact upon public safety, and the need to act expeditiously, a variety of organizations have "stepped up to the plate" committing funds to enable the voices of

sheriffs, chief probation officers and municipal police chiefs to be heard by the federal court.

The CSSA, CPCA, and CPOC boards of directors all voted to provide the funds to allow their individual members to take the action set forth above. In addition, and even though they may or may not be individual interveners, other public sector associations took similar action. The California State Association of Counties (CSAC) and the California Peace Officers' Association (CPOA) took the highly commendable step of voting to join in the coalition and share in the cost of the litigation. This is an unprecedented joining together of diverse public sector organizations in an effort to prevent, what could conceivably be, a public safety disaster. This is a classic example of good government taking swift and immediate action in an effort to protect it's constituents and the community at large.

HOW THIS EFFECTS YOUR AGENCY

Obviously, if this federal court panel orders the immediate release of up to 40,000 inmates they will, by law, return to the communities from which they came. As such, small, medium and large cities and counties will be inundated with an untold number of individuals who are released before the completion of designated sentences for the commissions and convictions of crimes which are felonies.

Additionally, the court has the authority to impose a cap on the number of inmates housed in the state system which, as indicated above, means that local jurisdictions will be unable to transfer sentenced prisoners to the state system. County sheriffs will, therefore, be required to house those individuals in county jails and may be forced, as a result thereof, to release current inmates being held pretrial or serving sentences of a year or less.

Additionally, local law enforcement agencies which continue to protect our streets and communities and arrest violators of law might as well release them right then and there. Since the sheriffs will be unable to transfer state committed prisoners, eventually there will be "no room at the inn." The effect on local law enforcement, and on the communities they serve, is impossible to truly anticipate or appreciate.

The litigation in which we have embarked on behalf of CSSA, CPCA and CPOC is complicated and not of their making. It is our hope, on behalf of these associations and their respective members, to convince the three judge court that the legitimate efforts undertaken by the state of California through the passage of AB 900 are, in fact, meaningful, substantive and will have a positive effect on the problems identified by the court. We will keep all of you apprised of the progress of this matter as we proceed through the federal court process.

As always, if you wish to discuss this in greater detail, please feel free to contact me at 714- 446-1400 or by email at mjm@jones-mayer.com .