Removing Robert Sillen is first step to solving prison problems

The removal of Robert Sillen as the federal court-ordered prison health care receiver bodes well for negotiations with the three-judge panel currently considering releasing thousands of inmates. His removal will only benefit all stakeholders who are working together to keep inmates off the street while creating a constitutional level of health care.

The prison health care receiver and the three-judge panel are separate, but intertwined, legal actions. U.S. District Judge Thelton Henderson, who created the receivership, also sits on the three-judge panel.

By leaving Sillen as the receiver, Judge Henderson left a bad taste in Republicans’ mouths and made it difficult to work with the three-judge panel. Sillen, with his argumentative approach, was a destructive force as receiver. He continually argued that the state had failed to address the issue of health care in California’s corrections system. While this assertion may have been correct, he refused to recognize that there is a new team of legislative leaders on corrections issues, and we understand the legal issues surrounding the problem and have shown we have the clout and willingness necessary to address and fund health care. Sillen’s problem: He would never define “constitutional health care” or how much government funding is necessary to achieve it.

Last year, the Legislature passed bipartisan prison reform in AB900, authorizing 53,000 new beds spread across existing prisons, local jails and re-entry facilities. In addition to passing prison reform, legislators have had success in stopping Sillen from expanding his power. We also beat back Senator Michael Machado’s attempt to authorize more than $146 million in new spending that would have expanded the receiver’s purview to items not included in the court order, sending Sillen a message that he needed to work within the system and recognize our role in fixing our prisons.

With Sillen’s dismissal, the court acknowledged the Legislature’s importance to the process. In his order removing Sillen, Judge Henderson said the receiver’s office “demands a substantially different set of administrative skills and style of collaborative research.” He said the receiver “must work more closely at this stage with all stakeholders, including state officials.” In other words, it is imperative for the receiver to work with the Legislature and the administration in an effort to meet his goals. Sillen was unable to do this.

This move sends a signal of cooperation that extends beyond the prison health care debate. The pending lawsuits with the three-judge panel could last years without solving the crisis. Phase I of the trial will determine whether or not a cap on California’s prison population is a necessary step to relieving the prisons’ health care problems. Phase II, if necessary, will decide how best to institute a cap.

The Prison Litigation Reform Act grants legislators the right to intervene as parties to federal proceedings that may result in the release of inmates. Despite the fact that Congress expressly recognizes state legislators, the three-judge panel unfairly restricted our right as interveners to Phase II, barring legislators from taking depositions or presenting evidence during Phase I. This effectively gives California’s elected lawmakers no say in whether or not early release is necessary, even though they justly extended those rights to the California Correctional Peace Officers Association.

At their request, I met with the three-judge panel’s appointed mediators in December. I reiterated to Justice Peter Siggins, who is emerging behind the scenes as lead negotiator, and to Justice Elwood Lui, also an effective ambassador, that the PLRA grants us essential rights as interveners and does not specifically allow limiting those rights to only one phase of a trial. I also explicitly stated that we are prepared to argue that point before the U.S. Supreme Court if necessary.

After the meeting, the trial was indefinitely postponed to allow more time to negotiate with interveners a plan that will include Republican legislators in Phase I. This was an important step in fighting to protect Californians. Our attorneys, Steven Kaufhold and Chad Stegeman of Akin, Gump, Strauss, Hauer & Feld LLP, deserve credit for their roles in attempting to ensure legislators’ proper place in Phase I, as does the California Republican Lawyers Association represented by Steve Baric. Justice Siggins is helping work toward a positive settlement and deserves credit as well.

We are still negotiating with the three judge-panel to regain our statutory right as interveners. As the mediators understand, legislator interveners will not cooperate with the three-judge panel if they create another Sillens.