COURT REJECTS PRISON SOLUTION

Governor Can't Send Inmates Out Of State

SACRAMENTO - A major piece of Gov. Arnold Schwarzenegger's solution
to relieve prison overcrowding was rejected Tuesday by a judge who
ruled the governor's decision to ship inmates out of state exceeds
his authority.

Sacramento County Superior Court Judge Gail D. Ohanesian said
Schwarzenegger's Oct. 4 Prison Overcrowding State of Emergency
declaration was "unlawful," and said the state is not allowed to
contract for services usually performed by civil service employees
within California.

The ruling comes as the prison population surges to dangerously high
levels and Schwarzenegger and the Legislature scramble for solutions
before the federal court decides whether inmates should be released
before completing their sentences. The Schwarzenegger administration
has already sent some 400 inmates out of state who volunteered to go,
and wants 5,000 more to be sent against their will.

Schwarzenegger vowed to appeal the judge's decision.

"Our prison system is in desperate need of repair, and the
transferring of inmates out of state is a prudent alternative to the
risk of court-ordered early release of felons," Schwarzenegger said
in a statement. "Public safety and the interest of all Californians
should prevail, and this challenge to sound public policy must be defeated."

Schwarzenegger, who called Ohanesian's decision a "disappointing
ruling," maintained that his proclamation "complied fully" with the
state's Emergency Services Act.

But Ohanesian, who wrote that prison overcrowding was "a crisis
creating conditions of extreme peril," stated that the act, which is
most commonly used before and after a natural disaster, is intended
to allow a governor to quickly get involved in providing assistance
for a local emergency. The emergency in question, she wrote, is due
to circumstances ordinarily under the control of the state
government, "namely, the lack of sufficient prison facilities to keep
pace with the growing number of people sentenced to prison."

In other words, the act doesn't apply to prison overcrowding.

Unchecked Power

"Many, many states are leery of providing governors and executives
unchecked power to do things," said Bruce Bikle, an assistant
professor of criminal justice at California State
University-Sacramento, and a former jail administrator in Santa Clara
County. "The judge gave the governor a civics lesson today."

Some 174,000 inmates are jammed into California's 33 prisons, some of
which house inmates in gyms where bunks are triple stacked. The
contracts recently signed with out-of-state prisons also would have
saved the state an estimated $8 an inmate each day.

The legal challenge was initiated by the powerful prison guard's
union, known as the California Correctional Peace Officers
Association, and the Service Employees International Union, which
sued the Schwarzenegger administration to halt the transfer of inmates.

CCPOA Vice President Chuck Alexander was encouraged by the ruling,
but discouraged upon learning of the planned appeal.

"I would think that continuing on is a waste of taxpayer money, a
waste of state resources, both of which could be better utilized by
applying them to the problem and seeing if we can work on a
comprehensive change to the system."

Transferring inmates won't fix the problem, Alexander said, because
each bed space that becomes empty will be soon taken by another prisoner.

The unions also have an interest in prisoners remaining in
California. A loss of prisoners could mean a loss of lucrative
overtime pay or even jobs, but Alexander insisted that a high
population count "is in nobody's interest."

Sen. Gloria Romero, D-Los Angeles, who criticizes Schwarzenegger for
delving into the prison crisis too slowly, applauded the ruling,
saying that "exporting" inmates and even building more cells, as the
governor has proposed, won't end the population problem.

"The actual crowding is not the problem itself, it's a symptom of the
problem," said Romero, who prefers reforms in sentencing,
rehabilitation and parole to ease the system's 70 percent recidivism rate.

Assembly Republican Leader Mike Villines, R-Fresno, said the ruling
acts as a "warning" that the state can no longer delay solutions to
overcrowding, such as building more cells. "We now face the very real
prospect of serious and repeat criminals roaming loose in our
neighborhoods," Villines said, "unless we get the job done soon."

After Schwarzenegger declared the state of emergency, the California
Department of Corrections and Rehabilitation found only 400 inmates
who agreed to be transferred to Arizona and Tennessee. Another 100 to
200 are in the pipeline to be transferred, said corrections director
James E. Tilton.

Acknowledging the transfers were unsuccessful, Tilton earlier this
month announced plans to ship up to 5,000 inmates involuntarily,
beginning as early as April.

Schwarzenegger, corrections officials and legislators have been
scrambling to remedy the overcrowding since a federal court judge in
December gave the state until June 4 to reduce the inmate count.

Early Release

If the population continues to rise, U.S. District Judge Lawrence
Karlton can create a panel of judges to suggest options, including
the early release of inmates.

Tilton told reporters Tuesday he was "trying to use every option at
my disposal to address the overcrowding situation," but vowed the
state was not "releasing violent criminals."

The judgment is scheduled to take effect in 10 days, pending the
outcome of the appeal.

MediaNews Sacramento Bureau reporter Kate Folmar contributed to this report.