Normally, it's uncomfortable to hear a federal judge  –let alone a panel of three such jurists – thunder criticism at one from the bench.
 
But as usual, Gov. Brown is different. Beyond doubt, prison realignment has drawn more criticism than any other single thing he has done in his second incarnation, even more than his devotion to high speed rail. But the judges' tirade now provides Brown a convenient scapegoat, one on which he can pin blame for the entire prisoner-release program, and with complete accuracy.
 
That, of course, was not the way the three-man judicial panel intended things to go when making bald threats against the governor if he doesn’t release even more convicts.

Penalty for Disobedience
 
 “At no point over the past several months have defendants indicated any willingness to comply, or made any attempt to comply, with the orders of this court,” said the panel, referring to Brown and his administration. “In fact, they have blatantly defied (court orders).”
 
The three jurists – district judges Lawrence Karlton and Thelton Henderson and Ninth Circuit Court of Appeals Judge Steven Reinhardt – gave Brown 21 days to submit a plan for meeting their prison population target by the end of this year. If Brown doesn’t simultaneously begin complying with the court order, the judges said, he risks being cited for contempt. The governor said he would ready a plan to release 10,000 more prisoners in case his appeals fail.
 
Imagine a California governor sitting in the basement lockup of a federal courthouse, eating cheese sandwiches. Theoretically, at least, it could happen, if the judges aren’t satisfied with Brown’s response.
 
The court’s latest order stems from the fact that even after Brown’s controversial realignment program reduced convict numbers by about 20,000 over the last 18 months, state prisons remain filled to 149 percent of their designed capacity. The judges say this overcrowding constitutes cruel and unusual punishment. Prior similar rulings have been upheld by the U.S. Supreme Court.

Look What They Are Doing
 
Meanwhile, Brown looks around the state and sees cities cutting police forces to balance budgets, well-to-do neighborhoods hiring private security to compensate, a 65 percent rise in warrants issued for paroled sex offenders supposedly tracked by GPS devices who have gone missing and a few felons turning violent after being convicted of non-violent offenses and then paroled under realignment.
 
Possibly the most significant of the latter type of case was the early April fatal stabbing of a woman in a Fontana park-and-ride lot. California Highway Patrol officers later shot and killed the alleged murderer, David Mulder, a 43-year-old transient with a history of drug offenses released from state prison a few months earlier under realignment.
 
Mulder, like many others, had been transferred to the supervision of county probation officers.
 
“Dangerous prisoners that belong in state prison continue to be released early,” Fontana Police Chief Rod Jones complained to reporters after that incident and another where a felon released to county supervision alleged raped a woman in a hotel room.
 
These and other cases caused Brown’s conservative critics to rip him, even suggesting he be indicted for assisting those crimes.
 
But the entire realignment program was a response to federal court orders – upheld by the U.S. Supreme Court – to reduce prison crowding and improve prison medical care. Brown’s first two budgets in his current term provided money for local agencies to supervise the supposedly low-level, non-violent criminals involved.
 
The problem, of course, is that there’s always a risk of a previously non-violent offender turning to more serious crime. Car thieves occasionally become arsonists, burning vehicles and whatever is near where they’re parked. Some drug addicts become armed robbers, rapists or killers. This happens even without realignment, but draws much more focus when prisoners are being released early and some go missing either because local parole officers are overloaded or tracking devices fail or are removed.
 
Brown said little about those cases, except that they’ve been rare exceptions under his program, which is correct.
 
Now he won’t have to be very defensive any more. For by resisting the latest court order, even to the point of approaching a constitutional crisis, he can argue that whatever he’s done has not been of his own volition and was designed to minimize risk.
 
In a state with a long tradition of voting for tough-sounding law-and-order candidates and ballot propositions, the judges’ threatening language has inoculated Brown against most soft-on-crime charges that might be leveled against him during his anticipated 2014 reelection campaign.
 
Mr. Elias may be contacted at tdelias@aol.com. His book, “The Burzynski Breakthrough, The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It,” is now available in a soft cover fourth edition. For more Elias columns, visit www.californiafocus.net