Voices.Con News Page

If you would like to mail this to a prisoner, choose the following menu options..

Schwarzenegger Asks: Why Not Build Prisons in Mexico?

(our question is, how much further of a step is it to begin incarcerating american prisoners at cheaper private prisons outside of the united states)

About 1 in 10 American prisoners is serving a life sentence. Although most are technically eligible for parole at some point, many of those convicted of violent crimes will never see the outside of a prison. They are being judged not on their rehabilitation but on their original crime.

A California case before the federal Ninth Circuit questions the legality of refusing parole based solely on a person's crime. While a decision finding that states must consider rehabilitation could open doors nationwide to second chances, many fear that a negative ruling could be another nail in the lifer's coffin.

More than 140,000 people are serving life sentences in the U.S., according to a report this year from the Sentencing Project, up from 34,000 in 1984. California has between 27,000 and 34,000 lifers. Despite chronic overcrowding (and now court orders to reduce the prison population), prisoners with murder convictions are rarely granted parole in California. And if governors thought they were right before in denying parole despite evidence of rehabilitation, the Clemmons case in Washington will only strengthen that conviction. It's a shame that one horrific crime can have such power over thousands of lives.

The case before the Ninth Circuit involves prisoner Ronald Hayward's application for parole 27 years after he was convicted of stabbing to death a gang member who had allegedly attempted to rape Hayward's girlfriend. The question before the court is whether states must present evidence that a prisoner presents a current threat to society, beyond just showing that his original crime was heinous.

A three-judge panel of the Ninth Circuit overturned the state's decision rejecting Hayward's parole, saying he was denied his due process rights. On appeal, the full court agreed to hear the case, and one paralegal (and paroled murder convict) told the LA Times he's worried the full court will reverse the decision again and deal a setback to thousands of parole eligible California prisoners. Download the briefs from both sides of the case here.

Until a court offers further guidance on these cases, the possibility of parole will remain very remote for most Americans with murder convictions, even those who have become model citizens inside prison for three decades or more.

Judges issue order to cut California prison population

The Sacremento Bee dwalsh@sacbee.com

Published Wednesday, Jan. 13, 2010

The long-awaited final order to reduce California's prison population was issued Tuesday by three federal judges who signed off on a revised plan submitted in November by the Schwarzenegger administration.

But the judges postponed the effective date of their order pending U.S. Supreme Court consideration of it and another order in August requiring formulation of the plan.

The administration is waiting for the high court to act on its request for a review of the August order.

The three judges are a special panel appointed by the chief judge of the 9th U.S. Circuit Court of Appeals acting under authority granted by the Prison Litigation Reform Act of 1996. The act says an appeal goes directly to the Supreme Court.

It would be the first such case to be heard by the high court if it chooses to enter the bitterly fought struggle over crowded conditions and their impact on inmate health care in prisons.

Aaron McLear, spokesman for Gov. Arnold Schwarzenegger, said in an e-mail late Tuesday: "The order accepts our plan but rejects our request for the tools we would need to implement it."

His reference is apparently to the administration's lengthy list of state law waivers that would be required from the judges in order to implement the reduction. The list was part of the submitted plan.

Tuesday's order says the administration should let the court know if it "believes that the waiver of state law by this court is necessary." A statement should be filed explaining why the waivers are needed, whether all other available remedies have been rejected and why, and why each proposed waiver is permissible under the reform act and the U.S. Constitution.

"We expect that the U.S. Supreme Court will hear our appeal on whether federal judges have the authority to order the early release of prisoners in our state," McLear said. "We will fight any decision that orders early release and endangers public safety."

The judges – 9th Circuit Judge Stephen Reinhardt of Los Angeles and U.S. District Judges Lawrence K. Karlton of Sacramento and Thelton E. Henderson of San Francisco – insist that their mandated cut in population of the state's 33 adult prisons to 137.5 percent of design capacity within two years can be accomplished safely. That translates to a reduction of approximately 40,000 inmates.

After a 2008 trial, the judges found that crowding is the primary cause of the constitutionally inadequate delivery of medical and mental health care to inmates, and that nothing short of a "prison release order" will remedy the problems. The judges have repeatedly stressed there are any number of ways to reduce the prison population without outright release. "We emphasize here that we are not endorsing or ordering the implementation of any of the specific measures contained in the state's plan; only that the state reduce the prison population to the extent and (on the timeline) designated in this order," the judges said Tuesday. http://www.sacbee.com/budget/v-print/story/2457744.html

California's Secret Judges
Do the crime, do the time -- that's the way the law is supposed to work. But our governors and the parole board don't always see it that way.

By Jean Arnold

My very first night teaching at San Quentin, Manny jokingly introduced himself as a hostage. He showed up almost every night after that, to study for his GED, and each time he would say, by way of reintroduction, ``I'm a political prisoner!''

I used to laugh. During prison training, they had taught me that inmates would work us, attempt to elicit our sympathy, suck us in. But after a few months, I noticed the consistency in the prisoners' stories. I stopped checking my brains at the gate and started to listen.

What I discovered is that for many years now politics has taken over and subverted a whole sector of the criminal justice system in California: the parole system for lifers -- prisoners with life sentences that include the possibility of parole. All over the state, thousands of prisoners who have served far more than their required time -- and met all criteria necessary to win a parole date -- have been denied their freedom and their right to due process in order to serve the political aspirations of a series of governors.

How the System Is Supposed to Work

California's penal system is like a house that has undergone repeated remodels and additions: It's hard to tell what it started out to be.

This is particularly true of the wing of the system inhabited by lifers. Under California's graduated system of punishment, the convicted are given sentences ranging from fixed terms -- a specific amount of time to be served -- to death. In between those extremes are life sentences, again graduated by severity of the crime committed. Some felons receive life sentences without the possibility of parole, but the majority who receive life sentences -- for kidnap/armed robbery, second- and first-degree murder (See box on Page 4) -- receive sentences that allow for that possibility. In effect, the law says some criminal acts render the perpetrators unsalvageable, while lesser crimes leave open the possibility of rehabilitation.

Although there are some lifers in the system who were sentenced under an older, much different law, most of the more than 22,000 lifers currently awaiting parole were sentenced after July 1, 1977, and are serving sentences of 15-to-life or 25-to-life.

I see ``life'' as the state's threat, and the number at the start of the sentence as the state's promise. The threat is that if a prisoner arriving in the system doesn't change, the state can keep him or her as long as it likes. The promise is that if prisoners distinguish themselves through rehabilitation, they shall be released.

Although California's purpose in imprisonment is punishment, not rehabilitation, most lifers work to make themselves suitable for parole by ``programming'': attending self-help and 12-step meetings, learning vocational trades, obtaining education, participating in faith-based groups, or teaching or mentoring other prisoners.

This self-improvement is duly noted when they appear before the Board of Prison Terms, commonly known as the parole board. There are nine full-commissioner slots on the board; each member is appointed by the governor and confirmed by the Senate. They are paid $95,859 a year, plus a per diem and travel expenses. According to the state's penal code, the board is supposed to ``reflect as nearly as possible a cross-section of the racial, sexual, economic and geographic features of the population of the state.''

The penal code also says that the board ``shall normally'' set a parole date one year before each lifer becomes eligible. To avoid disproportionate punishment for similar offenses, the commissioners are provided with a set of matrices -- grids that prescribe a range of years to be served for various crimes, taking into account how the crime was committed and the relationship of the perpetrator to the victim.

For instance, a lifer would serve more time for killing a random person than he would for killing someone who was an accomplice in the crime; someone who tormented his victim is supposed to serve more time than someone who didn't.

Each lifer appears before the board with a stack of progress reports from psychologists and counselors, as well as documentation of work and programming history.

Most lifers also bring evidence of outside support: job-offer letters, letters from member of the community offering various types of assistance, proof of offers of places to stay and support letters from family and friends.

The board also is given a list of circumstances that they are to consult when evaluating parole suitability, ranging from how old prisoners are and whether they had a juvenile record to their level of understanding of the impact of their actions and their signs of remorse.

The governor can reverse or modify the board's decision whenever prisoners convicted of murder receive parole dates.

This right, granted to the governor by voters in 1988 and incorporated into the state's Constitution, makes California's lifer parole system basically the same as Louisiana's, where a gubernatorial pardon is the only way out.

How the System Isn't Working

Since 1988, when ads featuring Willie Horton, a furloughed Massachusetts convict who wrought havoc on a young couple, sabotaged the presidential prospects of Michael Dukakis, California governors have feared that one wrongly paroled felon could wipe out a lifetime of strategic political planning. Ironically, former governors Deukmejian and Wilson, and now Gov. Gray Davis, have ignored the law in order to maintain their tough-on-crime credentials. They have capitalized on the fact that few Californians know or care what the laws are regarding lifers; most just want them kept behind bars. The overwhelming voter support for the three-strikes law in 1994 made taking a no-parole stance an easy call. Last year, Davis declared that no prisoner serving time for murder would receive a parole date on his watch.

Parole board members, dependent upon Davis for reappointment, heard him loud and clear. While the number of lifers eligible for parole has skyrocketed, along with the rest of the prison population, the rate at which they receive parole has taken a free fall.

In 1989, 54 first- and second-degree-murder lifers were paroled. In 1999, of 1,942 lifers' board hearings, 16 received parole dates. Davis rescinded 10 prisoners' dates and returned the rest to the full panel for reconsideration. The board rescinded parole in four of those cases. One case was left on hold. Only one lifer, who had served his time for kidnapping/armed robbery, won a parole date in 1999.

(Past parole statistics for kidnap/armed robbery cases cannot be compared with current ones because the methodology has changed, but murder-case statistics are comparable.)

Although governors Deukmejian and Wilson started the politicization of the lifer parole process, Davis has finished it: The process is now dead. The law requires that each lifer be considered individually, but Davis has taken all prisoners sentenced to life with the possibility of parole and thrown them into the ``life without'' category.

It doesn't matter what the trial judge and jury found. The prisoners' efforts at self-improvement? Never enough. The psychologists' and counselors' reports? Discounted. Other prison staff members' input? Doesn't count (unless it's negative). The sentencing matrices and suitability guidelines? Ignored. An unbiased parole board? I don't think so. The rare board decision of suitability for parole? Overruled.

The board bears no resemblance to the ``cross-section of the racial, sexual, economic and geographic features of the population of the state'' the penal code requires. There are two Latinos; the others are white. There are no African Americans, and only one woman. All are from Southern California. Four are former police officers, another is a former executive director of the Los Angeles Peace Officers Association, one is a former state senator. A similarly composed jury in a criminal court would be grounds for a mistrial.

Furthermore, Davis has failed to appoint commissioners to fill long-standing vacancies. Currently, there are only six members on a board that should have nine. This has caused further delays in the prisoners' parole hearings.

Growing Dissent

The situation has been worsening quietly for years. In general, the people who knew about this growing injustice were those for whom speaking out would have huge and adverse consequences. Lifers and their family members fear the loss of even the minuscule chance of a parole date; prison staff and even members of the parole board fear for their jobs.

But support for reform is gathering, sometimes from unexpected quarters.

Albert M. Leddy, a former district attorney and judge who served on the parole board from 1983 to 1992, described the practices and political pressures he observed in a deposition in a lawsuit. ``I wrote a nine-page brief about how we were not complying with the laws,'' he wrote. ``I gave a copy to each board member, pointing out that we could be sued. I asked that this brief be a topic on the parole board's agenda. Ted Rich (then executive officer), said, `That's not going to be on the agenda. You can't have it on the agenda.' '' In April, the Office of Administrative Law -- the state agency that reviews regulations to ensure they comply with state law -- ruled that the board has been issuing ``quasi-legislative enactments'' that are not in accordance with the Administrative Procedures Act. In essence, it found, the parole board has illegally been making its own rules.

The case of Robert Rosenkrantz, a lifer convicted of second-degree murder who was found suitable for parole in 1996 and has yet to be released, has drawn a lot of attention. His lawyer, Rowan Klein of Los Angeles, took his case to the state Court of Appeal, which affirmed a lower court decision that in effect forced the board into granting Rosenkrantz a parole date. Attorney General Bill Lockyer filed a petition for review with the state Supreme Court to try to overturn the lower courts' decisions. It was denied.

Rosenkrantz awaits Davis' final say.

Practical Costs

Last year, it cost $100 million to incarcerate the approximately 4,000 lifers who were beyond their minimum parole eligibility dates. An additional 500 join those ranks every year.

There are other costs as well. In its 2000-2001 budget bill analysis, the Legislative Analyst's Office, a bipartisan commission charged with tracking the state's money, noted that ``the no-parole policy is likely to result in further litigation between the state and inmates seeking parole.'' Monica Knox, a federal deputy public defender in Los Angeles, says she's aware of a dozen such prisoners whose lawyers have filed suits on their behalf.

The report's authors also appeared to raise their eyebrows over the fact that the parole board is still getting paid, despite the fact that it's not fulfilling its mission. ``The board,'' the report noted dryly, ``continues to receive full funding for its parole review process despite the current release policy.''

Redemption

The parole board commissioners are supposed to look each lifer in the eye, just as the judge and jury did, and make a determination, not of guilt or innocence -- which has been established --

but of worthiness to rejoin free society.

The system used to work that way. A prisoner who pulled a kidnap/armed robbery spent less time in prison than someone who planned and committed the murders of a couple of people. Lifers who wanted to change had an incentive to do so, and those who didn't change were kept off the streets. The system was designed to distinguish between the two, which was the whole idea behind giving open-ended sentences instead of fixed terms or sentences without the possibility of parole.

Most of the 50 lifers I got to know at San Quentin feel deep remorse. Making themselves into people who would never consider doing what they once did is not only a way of asking forgiveness and showing worthiness, but in a very deep way, it pays homage to their victims. It is to say, ``I learned from this. I changed because of this. I can't bring you back or make you whole, but however meaningless your loss seemed at the time, I have spent years giving it as much meaning as I could. I have given it my life.''

Before the embargo on parole dates, four San Quentin lifers I knew paroled. After I left, I sought them out. All are working, supporting themselves and their families, living normal lives, contributing to society. Lifers are not people to be feared. Most of them are people who should be back in their communities working, talking to young people about staying on the right track, setting an example, taking care of their families.

Of the all lifers I got to know, there are only 10 I'd rather not see free. But as far as Davis is concerned, all lifers are equal under the law, equally irredeemable.

Restoring Justice

Fifteen years ago, the system was working. We should go back and correct our missteps. First, the governor should be relieved of his constitutional power to rescind parole board decisions. Without that change, other reforms will have no impact.

Once that is accomplished, fair and just application of current laws would go a long way. Unless a lifer's institutional behavior indicates that he's not getting the idea yet, the board should set a future parole date one year prior to his minimum eligible parole date, as the law requires.

Current parole board vacancies should be filled so that a broader spectrum of the state's demographics is represented, instead of continuing to appoint members of the predominantly white retired law enforcement community. Board members' terms should be lengthened so that commissioners aren't dependent upon pleasing every fearful or aspiring governor.

With these relatively simple reforms, we would have a system that would be flawed but workable. What we have right now is justice by gubernatorial fiat, which is no justice at all. One thing is for sure: Without intense protest from large numbers of citizens, nothing will change.

Part One of our Special Report, we look at one of the hidden legacies of the tough-on-crime policies of previous decades: a growing population of aging and ill offenders behind bars.

Frank Soffen, now 70 years old, has lived more than half his life in prison, and will likely die there.

Sentenced to life for second-degree murder, Soffen has suffered four heart attacks and is confined to a wheelchair. He has lately been held in the assisted living wing of Massachusetts’ Norfolk prison. Because of his failing health and his exemplary record over his 37 years behind bars—which includes rescuing a guard being threatened by other inmates—Soffen has been held up as a candidate for release on medical and compassionate grounds.

He is physically incapable of committing a violent crime, has already participated in pre-release and furlough programs, and has a supportive family and a place to live with his son. One of the members of the Massachusetts state parole board spoke in favor of his release. But in

2006 the board voted to deny Soffen parole. He will not be eligible for review for another five years.

The “tough on crime” posturing and policymaking that have dominated American politics for more than three decades have left behind a grim legacy. Longer sentences and harsher parole standards have led to overcrowded prisons, overtaxed state budgets, and devastated families and communities. Now, yet another consequence is becoming visible in the nation’s prisons and jails: a huge and ever-growing numbers of geriatric inmates.

Increasingly, the cells and dormitories of the United States are filled with old, often sick men and women. They hobble around the tiers with walkers or roll in wheelchairs fill prison infirmaries. They fill prison infirmaries, assisted living wings, and hospices faster than the state and federal governments can build them—and since many are dying behind bars, they are filling the mortuaries and graveyards as well.

The care these aging prisoners receive, while often grossly inadequate, is nonetheless cripplingly expensive—so much so that some recession-strapped states are for the first time seriously considering releasing older terminally ill and mentally ill prisoners rather than pay the heavy price for their warehousing. It remains to be seen what will happen when such fiscalconcerns run head on into America’s taste for punitive justice. A recent report by the Vera Institute made this clear.

Politicians no doubt did not imagine this Dickensian landscape of the elderly incarcerated when they voted to lengthen sentences and impose mandatory minimums three or four decades ago. But their actions are yielding an inevitable outcome. While the graying of the prison population to some extent reflects the changing demographics of the populace at large, it owes considerably more to changes in law and policy. And this is likely to continue into the foreseeable future.

According to the Sentencing Project, the United States imprisons five times as many people as it did 30 years ago and more than seven times as many as it did 40 years ago. Our criminal justice system now keeps 2.3 million people behind bars—about half of them for drug offenses and other nonviolent crimes. Twenty-five years ago, there were 34,000 prisoners serving life sentences; today the number is more than 140,000.

The fact that each person is spending a longer stretch behind bars means that the falling crime rates of the 1990s do not translate into fewer inmates. It also means that more and more people who committed offenses in their 20s or even their teens are growing old and dying in prison.

The situation is particularly stark in California, Texas and Florida, which have large prison populations with cells crammed to overflowing because of harsh sentencing laws. In California, the population of prisoners over 55 doubled in the ten years from 1997 to 2006. About 20 percent of California prisoners are serving life sentences, and over 10 percent are serving life without the possibility of parole. Louisiana’s prison system now holds more than 5,000 people over the age of 50—a three-fold increase in the last 12 years.

While 50 or 55 may not be old by conventional standards, people age faster behind bars than they do on the outside: Studies have shown that prisoners in their 50s are on average physiologically 10 to 15 years older than their chronological age. Older prisoners require substantial medical care, because of harsh life conditions as well as age. Inmates begin to have trouble climbing to upper bunks, walking, standing on line, and handling other parts of the prison routine. They suffer from early losses of hearing and eyesight, have high rates of high blood pressure and diabetes, and are susceptible to falls.

A recent study by Brie Williams and Rita Albraldes, published as a chapter in the book Growing Older: Challenges of Prison and Reentry for the Aging Population, found that in addition to the chronic diseases that increase with age, older offenders have problems such as paraplegia because of the legacy of gunshot wounds. Many have advanced liver disease, renal disease, or hepatitis. Still others suffer from HIV-AIDS, and many more from drug and alcohol abuse. Living under prison conditions, they are more likely to get pneumonia and flu.

Many prisons are notorious for not taking their inmates’ health complaints seriously, and there is anecdotal evidence this problem may be compounded when prisoners are elderly. A doctor under contract in one southern prison told me in a recent interview how a diabetic man’s illness was misdiagnosed, resulting in months of excruciating pain and the amputation of toes and part of one foot. Back in prison, the man asked for prosthetic shoes so he could get around by walking; his request was denied.

Another elderly prisoner complained of an earache which went untreated for months. When it became unbearably painful, the prisoner was shipped to a local hospital emergency room, under contract to the prison. There the doctors found the earache was brain cancer—and by then, too advanced to treat.

The exploding prison population has further undermined the already questionable quality of inmate medical care. In California, which has the nation’s largest number of state prisoners, a panel of federal judges earlier this year found that the state of medical care was so poor that it violated the constitution’s ban on cruel and unusual punishment, and in danger of routinely costing prisoners their lives.

The only solution, the judges said, was to reduce prison overcrowding caused by the states draconian mandatory sentences; it recommended shortening sentences and reforming parole, which they believed would have no impact on public safety; it has given California three years to comply.

Federal judges reject plan to cut California prison crowding

The Sacremento Bee dwalsh@sacbee.com

Published Thursday, Oct. 22, 2009

Three federal judges on Wednesday rejected the prison population reduction plan submitted to them by the state and gave the Schwarzenegger administration three more weeks to produce a plan that complies with their wishes.

If the court doesn't get one by Nov. 12, the judges said they will order attorneys who represent sick inmates to submit a plan by the end of November, and the judges would order that plan be implemented.

In their seven-page order, the judges noted that, after the administration submitted its plan in September, inmates' attorneys asked that contempt proceedings be initiated against Gov. Arnold Schwarzenegger and Corrections Secretary Matthew Cate.

The three-judge panel said it will stay sanctions, including contempt citations, pending the state's response to Wednesday's order.

"We have afforded the state every opportunity to (comply), even at the cost of delaying the reduction of the overcrowding of California's prisons – a reduction that is necessary to the elimination of the unconstitutional medical and mental health conditions that lie at the heart of these proceedings, and that will, in addition, significantly reduce the prison system's criminogenic effects so detrimental to public safety and welfare," the panel said.

In the August order, the judges directed the administration to come up with a plan "that will in no more than two years reduce the population of (the Department of Corrections and Rehabilitation's 33) adult institutions to 137.5 percent of their combined design capacity."

The design capacity is approximately 80,000 and the population is just under 150,000. The order requires a reduction of roughly 40,000 inmates, to a population of 110,000.

The state's plan calls for a cut to 166 percent of design capacity within two years, the judges noted.

Also, they said, the plan "fails to set forth effective dates for the various actions proposed and fails to provide estimates of the reduction … they expect to achieve after 6, 12, 18, and 24 months; instead it provides estimates of the fiscal year in which actions may take effect and estimated population reductions for each fiscal year through 2014/15."

Among other plan components required by the court, the state must detail steps it will take "to ensure public safety through re-entry and diversionary programs" for individuals in custody, released from custody and diverted from custody.

Further, the judges want to be informed whether, as "widely reported in the press," Schwarzenegger submitted a plan to the Legislature to reduce the population by 37,000 over two years, and what happened to that plan.

The Assembly rejected the governor's package and sent to the Senate a pared-to-the-bone version of prison cuts that shifts parole agents to the most serious offenders and increases dollar thresholds for property crimes. The Senate sent it on to Schwarzenegger, who signed the bill but was "disappointed," according to a spokeswoman.

The judges' Wednesday order said, even if administration officials believe waivers of state laws are not permissible, the plan they submit in November "must identify those waivers of state law that would be required to implement their proposals to reduce the prison population in compliance with our order."

Governor blames budget woes on judges 'going absolutely crazy'

The Sacremento Bee kyamamura@sacbee.com

Published Thursday, Oct. 22, 2009

After railing against labor unions, waste and fraud in the past, Gov. Arnold Schwarzenegger on Wednesday found a new target to blame for California's budget woes: judges who "are going absolutely crazy."

As pieces of the July state budget solution begin to unravel, the Republican governor said judges – especially on the federal level – are preventing California from solving its problems.

He complained in particular about judicial actions that have struck down some state worker furloughs, required reductions in the prison population, imposed restrictions on water delivery in the Sacramento-San Joaquin Delta and this week blocked cuts to in-home care services.

"They are going absolutely crazy," Schwarzenegger said of judges. "So we have to have a very serious conversation with the federal government, because they have to let us run the state."

"Whenever they agree with me, they're right, very simple," Schwarzenegger said wryly when told they sometimes rule in his favor. "When they don't agree with me, they're wrong and they're interfering with our governing of the state."

State fiscal reports through September show the state has collected $1.1 billion less in tax revenue than was anticipated. Previous internal estimates also assumed the state would enter 2010-11 with a $7.4 billion deficit, on top of the $1.1 billion just reported.

The state is also at risk of losing money as courts invalidate other cuts. Federal judge Claudia Wilken on Monday imposed a preliminary injunction against the elimination of caregiver services for elderly and disabled residents that would save $82.1 million.

Redevelopment agencies sued this week to block the state's plan to take $2 billion from them. State Insurance Commissioner Steve Poizner has sued to block the sale of California's quasi-public worker's compensation insurer for $1 billion.

When tackling a two-year deficit of $60 billion in the past year, state leaders pursued solutions that experts warned were legally risky. But without enacting them, leaders risked further damage to California's credit rating as it paid bills with IOUs.

By passing such solutions, the state could borrow billions from Wall Street to keep the state running.

"The budget is about trying to push off fiscal problems into the future, and one way to do that is to do things that may be legally dubious because you know it's going to take the courts time to strike them down," said Vikram Amar, a constitutional law professor at the University of California, Davis. "Doing things that are arguably illegal is a form of borrowing because no court has told you yet that you can't."

In his defense, Schwarzenegger said, "Every decision that we make we run by the legal department and the experts, and their opinion is that those things are legal."

The governor blamed judges for not considering the state's fiscal straits when issuing their opinions.

Amar said judges have some flexibility in their decisions – and have exercised it, as when a federal three-judge panel gave the state time to develop a plan to reduce its prison population.

"From his point of view, they're not taking into enough account the state's fiscal constraints," Amar said. "But maybe from the judges' point of view, they're saying that he's being too inflexible, that 'You're not getting enough of your Republican buddies to support tax increases.' "