Here is the order's text, placed on a free hosting service for your convenience. The bottom-line message from the panel: We were not fooled by all the chatter and alternative proposals going on. We read the newspapers. Deliver a plan that complies with our requirements within 21 days.
The panel starts by expressing extreme displeasure with the state's non-compliance:
Rather than reducing the population of the CDCR’s adult institutions to 137.5% of their combined design capacity within two years, it provides for a reduction of the population of those institutions to 166% of their combined design capacity in that period. Additionally, defendants’ plan fails to set forth effective dates for the various actions proposed and fails to provide estimates of the reduction in population they expect to achieve after six, twelve, eighteen, and twenty-four 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. In light of these inadequacies, defendants’ September 18, 2009 Population Reduction Plan is REJECTED.
The panel then responds to the petition for contempt:
Plaintiffs’ response urges this court to initiate contempt proceedings against defendants on the basis of their failure to comply with our August 4, 2009 order. Action on this request is STAYED pending further proceedings detailed below.
The order requires defendants to submit a compliant plan, including explanations of their calculations and projections of reduction. It also addresses a few additional interesting matters:
1) On Sep. 17, CDCR issued a press release regarding rehabilitative program cuts, some of which were mentioned in their plan as essential for the reduction. The panel is referring to this press release, issued only one day before the submission of the reduction plan. What is up with that? asks the panel. Please let us know how this impacts any reduction measures you propose that rely on rehabilitation programs.
2) The panel wants to hear more about the use of rehabilitation and reentry in the community as a population reduction measure that might actually improve public safety.
And most importantly, in my opinion, (3): The panel is well aware of Governor Schwarzenegger's reduction plan, which, as avid followers of this issue may recall, was submitted to legislators, approved in the CA Senate, and then gutted in the CA Assembly. How does that plan match up to the one the state submitted? Would it really lead to a population reduction? Secretary Cate's involvement in the plan was widely reported in the press, says the panel. We read the papers. If this plan has promise, tell us how you'll try to fold it into compliance with our order.
I like the panel's reasoning quite a bit. It's a well-informed, no-nonsense order, which is keenly aware of the political and legislative realities that occurred since the original August 4 order was issued. Number (3) above is a masterpiece of political maneuvering. First, recognizing that the original Schwarzenegger plan had some promise before it was gutted by the Assembly, and that it was supported by Cate, the panel gives CDCR an honorable path of retreat. If, indeed, this plan is folded into the new submission ordered by the panel, it will be a plan that the state has already stood publicly behind. Second, it is a brilliant hint on which direction to go, subverting the failed legislative process: Governor Schwarzenegger gets exactly what he wanted, except he gets it through compliance with judicial authorities rather than through the Senate and Assembly. And third, with the state backing the new plan, the order is more secure against appellate review from the Supreme Court.
Now we wait for 21 days, and we'll report further.