Coleman v. Brown (952 F. Supp. 2d 901, 2013)

OPINION AND ORDER REQUIRING DEFENDANTS TO IMPLEMENT AMENDED PLAN

STEPHEN REINHARDT, Circuit Judge, LAWRENCE K. KARLTON, Senior District Judge, THELTON E. HENDERSON, Senior District Judge.

On April 11, 2013, this Court issued an opinion and order denying defendants’ motion to vacate or modify our population reduction order. Apr. 11, 2013 Op. & Order Denying Defs.’ Mot. to Vacate or Modify Population Reduction Order (ECF No. 2590/4541). In that opinion and order, defendants were required to take all steps necessary to comply with our population reduction order issued on June 30, 2011, in compliance with the Supreme Court’s decision of May 23, 2011, which (as amended) requires defendants to reduce the overall prison population to 137.5% design capacity by December 31, 2013 (sometimes referred to as “Order”). To ensure that they did so, this Court ordered defendants to submit a list of all prison population reduction measures identified in this litigation (“List”) and a plan for compliance with our Order (“Plan”). Apr. 11, 2013 Order Requiring List of Proposed Population Reduction Measures (ECF No. 2591/4542). On May 2, 2013, defendants submitted this List and their Plan, although their Plan does not comply with our Order. Defs.’ Resp. to Apr. 11, 2013 Order (ECF No. 2609/4572) (“Defs.’ Resp.”). On May 15, 2013, plaintiffs submitted a responsive filing, in which they requested this Court to issue an order to show cause why defendants should not be held in contempt. Pis.’ Resp. & Req. for Order to Show Cause Regarding Defs.’ Resp. to Apr. 11, 2013 Order (ECF No. 2626/4611). On May 29, defendants submitted a reply. Defs.’ Resp. to Pis.’ Resp. & Req. for Order to Show Cause Regarding Defs.’ Resp. to Apr. 11, 2013 Order (ECF No. 2640/4365). On June 17, defendants submitted their monthly status report. Defs.’ June 2013 Status Report (ECF No. 2651/4653).

Because defendants’ Plan does not comply with our Order, this Court hereby orders defendants to implement an additional measure along with its Plan that will bring defendants into compliance: the expansion of good time credits, as set forth in Item 4 of defendants’ List submitted on May 2, 2013. This measure, expanded good time credits, in conjunction with the measures included in the Plan submitted by defendants, will constitute an amended Plan (“Amended Plan”) — a plan that will, unlike defendants’ Plan, reduce the overall prison population to 137.5% design capacity by December 31, 2013. Defendants are ordered to take all steps necessary to implement all measures in the Amended Plan, commencing forthwith, notwithstanding any state or local laws or regulations to the contrary. 18 U.S.C. § 3626(a)(1)(B). All such state and local laws and regulations are hereby waived, effective immediately.

This Court desires to continue to afford a reasonable measure of flexibility to defendants, notwithstanding their continued failure to cooperate .with this Court. To this end, this Court offers defendants three ways in which they can amend the Amended Plan. First, defendants may, if they prefer, revise the expanded good time credit program, so long as defendants’ revision results in the release of at least the same number of.prisoners as does the expanded measure. This Court will not specify the changes defendants must make in order to meet this requirement. Defendants must inform this Court in a timely manner, however, of their decision to make such changes.

Second, defendants may at their discretion substitute for prisoners covered by any measure or measures in the Amended Plan an equivalent number of prisoners by using the “system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release” (the “Low Risk List”). Brown v. Plata, — U.S.-, -, 131 S.Ct. 1910, 1947, 179 L.Ed.2d 969 (2011). Although defendants need not obtain prior approval for this substitution, they must inform this Court that they intend to make such substitution.

Third, defendants may, with the prior approval of this Court, substitute any measure or measures on the List for any measure or measures in the Amended Plan, as long as the number of prisoners to be substituted equals or exceeds the number of prisoners to be substituted for and defendants provide this court with incontestable evidence that the substitution of prisoners to be released will be completed by December 31, 2013. The filing or pendency of any such request, or of any appeal from any order of this Court, shall not relieve defendants of their continuing obligation to take forthwith all steps ordered herein or necessary for the purpose of achieving compliance with this Order and the Amended Plan.

If for any reason the measures in the Amended Plan will not reach the 137.5% population ceiling by December 31, 2013, defendants shall release the necessary number of prisoners to reach that goal by using the aforementioned Low Risk List, a list that we have previously ordered them to develop, and that they have advised us they can develop in sufficient time to allow its use for purposes of compliance with the Order.

I. PROCEDURAL HISTORY

The history of this litigation is of defendants’ repeated failure to take the necessary steps to remedy the constitutional violations in its prison system. It is defendants’ unwillingness to comply with this Court’s orders that requires us to order additional relief today and to reiterate the lengthy history of this case, notwithstanding the fact that we set forth much of this history in our April 11, 2013 Opinion & Order.

A. The Plata and Coleman cases

We begin where the Supreme Court began in its June 2011 decision: “This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected.” Plata, 131 S.Ct. at 1922 (emphasis added). The constitutional violations at issue concern the Eighth Amendment’s ban on cruel and unusual punishment and are the subject of two separate class actions. The first, Coleman v. Brown, began in 1990 and concerns California’s failure to provide constitutionally adequate mental health care to its mentally ill prison population. The second, Plata v. Brown, began in 2001 and concerns California’s failure to provide constitutionally adequate medical health care to its prison population, in both cases, the district courts found constitutional violations and ordered injunctive relief. ' '

In Coleman, defendants proved unable to remedy the constitutional violations despite over a decade of remedial efforts. The case was initiated in 1990, and — following a trial overseen by Magistrate Judge John Moulds — the Coleman court found in 1995 that defendants were violating the Eighth Amendment rights of mentally ill prisoners. Coleman v. Wilson, 912 F.Supp. 1282 (E.D.Cal.1995). Defendants were ordered to remedy the constitutional violations under the supervision of a Special Master. Id. at 1323-24. One decade later in 2006, however, the Special Master’s reports stated that defendants had wholly failed to remedy the constitutional violations. Worse yet, there was a backward slide in progress, attributable largely to the growing overcrowding problem in the California prison system.

In Plata, defendants’ inability to make progress in remedying the constitutional violations resulted in the imposition of a drastic remedy: placing the prison medical care system in a receivership. The case was initiated in 2001, and defendants agreed to a stipulated injunction in 2002. Three years passed, however, during which defendants made virtually no progress in implementing the necessary injunctive relief to remedy the underlying constitutional violations. As the Plata court wrote in 2005:

The prison medical delivery system is in such a blatant state of crisis that in recent days defendants have publicly conceded their inability to find and implement on their own solutions that will meet constitutional standards. The State’s failure has created a vacuum of leadership, and utter disarray in- the management, supervision, and delivery of care in the Department of Corrections’ medical system.

May 10, 2005 OSC, 2005 WL 2932243, at *1-2. After an extensive fact-finding process, the Plata court established the Receivership, concluding that there was “nowhere else to turn.” Oct. 3, 2005 FF & CL, 2005 WL 2932253, at *31. The Receiver was able to implement substantial changes in the prison* healthcare system but, ultimately, was unable to remedy the constitutional errors in light of the severe overcrowding in the California prison system.

“After years of litigation, it became apparent that a remedy for the constitutional violations would not be effective absent a reduction in the prison system population.” Plata, 131 S.Ct. at 1922. Congress, however, had restricted the ability of federal courts to enter a population reduction order in the Prison Litigation Reform Act of 1996 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (codified in relevant parts at 18 U.S.C. § 3626); Aug. 4, 2009 Op. & Order at 50-51 (ECF No. 2197/3641) (explaining why a population reduction order is a “prisoner release order,” as defined by the PLRA, 18 U.S.C. § 3626(g)(4)). Under the PLRA, a population reduction order can be. issued only by a specially convened three-judge court which has made specific findings described in the statute. 18 U.S.C. § 3626(a).

In 2006, the plaintiffs in Coleman and Plata independently filed motions to convene a three-judge court capable of issuing a population reduction order. Both district courts granted plaintiffs’ motions and recommended that the cases be assigned to the same three-judge court “[f]or purposes of judicial economy and avoiding the risk of inconsistent judgments.” July 23, 2007 Order in Plata, 2007 WL 2122657, at *6; July 23, 2007 Order in Coleman, 2007 WL 2122636, at *8; see also Plata, 131 S.Ct. at 1922 (“Because the two cases are interrelated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement.”). The Chief Judge of the United States Court of Appeals for the Ninth Circuit agreed and, on July 26, 2007, convened the instant three-judge district court pursuant to 28 U.S.C. § 2284. The court was composed of the two district judges who had many years of experience with the Coleman and Plata cases and one circuit judge appointed by the Chief Judge of the Circuit, in accordance with the circuit’s regular procedure for the assignment of circuit court judges to special matters (the next judge on the list for such assignments who is available to serve).

B. This Court’s August 2009 Opinion

In August 2009, after a fourteen-day trial, this Court issued an Opinion & Order designed to remedy the ongoing constitutional violations with respect to both medical and mental health care in the California prison system. The order directed defendants, including the Governor, then Arnold Schwarzenegger, and the Secretary of the California Department of Rehabilitation and Corrections (“CDCR”), then Matthew Cate, to reduce the institutional prison population to 137.5% design capacity within two years. This Court made extensive findings, as set forth in our 184-page opinion. We repeat here only those findings that are necessary or relevant to the determination of the issues before us.

Because the PLRA makes the entry of a prisoner release order the “remedy of last resort,” H.R.Rep. No. 104-21, at 25 (1995) (report of the Hpuse Committee on the Judiciary on the Violent Criminal Incarceration Act of 1995), we were required to find that “no other relief will remedy the violation of the Federal right.” 18 U.S.C. § 3626(a)(3)(E)(ii). Defendants contended that a prisoner release order was unnecessary because defendants could construct new prisons, construct re-entry facilities at existing prisons, or expand medical facilities at existing prisons. Aug. 4, 2009 Op. & Order at 101-08 (ECF No. 2197/3641). We recognized the theoretical possibility of such measures but found them entirely unrealistic. California had thus far failed to fund prison expansion and, in light of its ongoing fiscal crisis, the prospect of any additional funding for prison expansion was “chimerical.” . Id. at 106. We further concluded on the basis of expert testimony that all other remedies- suggested by defendants or defendant-intervenors were either insufficient or required some level of prisoner release. Id. at 112-118. Accordingly, we concluded that “no - relief other than a prisoner release order is capable of remedying the constitutional deficiencies at the heart of these two cases.” Id. at 119. In short, we would not delay remedying the constitutional violations in the prison system simply because defendants made unrealistic and unfounded assertions regarding alternative remedies to the problem of overcrowding.

This Court gave “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(A). In fact, we devoted 10 days out of the 14-day trial to the issue of public safety; we also devoted approximately 25% of our Opinion & Order — 49 out of 184 pages — to it. We heard from the country’s leading experts in the field of incarceration and crime, who based their opinions on the experience of various jurisdictions that had successfully reduced prison population without adversely affecting public safety or the operation of the criminal justice system. On the basis of this testimony and many state-commissioned reports that proposed various measures for safely reducing the overcrowding in California’s prison system, we identified a variety of measures to reduce prison population without a significant adverse effect on public safety or the criminal justice system’s operation: (1) early release through the expansion of good time credits; (2) diversion, of technical parole violators; (3) diversion of low-risk offenders with short sentences; (4) expansion of evidence-based rehabilitative programming in prisons or communities; and (5) sentencing reform and other potential population reduction measures. Aug. 4, 2009 Op. & Order at 137-57 (ECF No. 2197/3641). We did not, however, select specific measures for defendants to implement. Instead, defendants were ordered to submit a plan for reducing California’s prison population tó 137.5% design capacity within two years, and we stated that “[a]ny or all of these measures may be included in the state’s plan. Whichever solutions it ultimately chooses,' the evidence is clear that the state can comply with our order in a manner that will not adversely affect public safety.” Id. at 132. Indeed, “[tjhere was overwhelming agreement among experts for plaintiffs, defendants, and defendant-intervenors that it is ‘absolutely’ possible to reduce the prison population in California safely and effectively.” Id. at 137. The question of how to do it was left to defendants.

The most promising measure, it was generally agreed, was early release through the expansion of good time credits. This measure would in some cases reduce the prison population by allowing prisoners to shorten their lengths of stay in prison by a few months. Plaintiffs’ experts — Doctors Austin and-Krisberg; Secretaries Woodford, Lehman, and Beard— were unanimous in their agreement that “such moderate reductions in prison sentences do not- adversely affect either recidivism rates or the deterrence value of imprisonment.” Id. at 140. According to Dr. Austin (who continues to provide expert testimony on behalf of plaintiffs in the present proceedings), criminologists have known “for many, many, many years” that generally “there is no difference in recidivism rates by length of stay” in prison, so reducing the length of stay by a “very moderate period of time” — four to six months — would have no effect on recidivism rates. Tr. at 1387:1-11. We considered extensive testimony on the question of whether early release through good time credits increases the crime rate, concluding that it does not and that it “affects only the timing and circumstances of the crime, if any, committed by a released inmate.” Id. at 143. Defendants presented only one expert in opposition, Dr. Marquart, but his opposition (if it can be called that) was feeble. . Marquart testified that, while he criticized generic early release, he did not in fact oppose good time credit measures. Id. at 139-40. Further, he agreed that there was no statistically significant relationship between an individual’s length of stay in prison and his recidivism rate. Id. at 140-11. His only criticism — that good time credits expansion might reduce the opportunity for prisoners to complete rehabilitation programming— was, in our final determination, “a note about the factors that should be considered in designing an effective expanded good time credits system. It is entitled to little, if any, weight as an observation about the possible negative effect on public safety of such a system.” Id. at 141. Thus, there was essentially agreement among all experts — for plaintiffs and for defendants— that the expansion of good time credits was consistent with public safety. We concluded as follows: “We credit the opinions of the numerous correctional experts that the expansion of good time credits would not adversely affect but rather would benefit the public safety and the operation of the criminal justice system.” Id. at 145.

This conclusion was supported by the experience in many jurisdictions that had successfully and safely implemented early release through good time credits. California was one such jurisdiction. “Dr. Krisberg reviewed data provided by California and the FBI and concluded that such programs, which were instituted in twenty-one California counties between 1996 [and] 2006, resulted in approximately 1.7 million inmates released by court order but did not result in a higher crime rate.” Id. at 144. Washington expanded its good time credits program and Secretary Lehman, the former head of corrections for Washington, testified that “these measures did not have any ‘deleterious effect on crime’ or public safety.” Id. at 174. Dr. Austin — who has thirty years of experience in correctional planning and research and has personally worked with correctional systems in eight states to reduce their prisoner populations — testified that Illinois, Nevada, Maryland, Indiana, and New York all successfully implemented good time credits expansion without adversely affecting public safety. Id. at 175. In New York, in particular, “the prison population decreased due in part to the expansion of programs awarding good time credits, and not only did the crime rate not increase, it ‘declined substantially.’ ” Id. Dr. Marquart attempted to point to Texas as an example of a jurisdiction that unsuccessfully implemented good time credits expansion, but he ultimately presented such equivocal testimony that it was of little use to this Court. Id. at 176-77. We concluded that “the CDCR should implement population reduction measures mirroring those of the jurisdictions that have successfully and safely reduced their inmate populations.” Id. at 177.

Not only did this Court find the expansion of good time credits to be safe, but we found that it had the potential for significant reduction in the prison population. The state-sponsored CDCR Expert Panel on Adult Offender Recidivism Reduction Programming (“CDCR Expert Panel”), on which we relied heavily, recommended that expansion of good time credits could result in the release of 32,000 prisoners. Id. at 177-81. Such estimates, in conjunction with our findings regarding other safe and effective population reduction measures, led us to conclude that “the state has available methods by which it could readily reduce the prison population to 137.5% design capacity or less without an adverse impact on public safety or the operation of the criminal justice system.” Id. at 181.

Defendants were thus ordered to submit a plan for compliance within 45 days of our order. Id. at 183. They failed to do so, however; instead, they submitted a plan for achieving the 137.5% reduction within five years, not two. Defs.’ Population Reduction Plan (ECF No. 2237/3678). This Court ordered defendants to comply with the terms of the August 2009 Order by providing a plan for the reduction of the prison population to 137.5% capacity within two years. Oct. 21, 2009 Order Rejecting Defs.’ Proposed Population Plan (ECF No. 2269/3711). Defendants responded by submitting a plan for compliance within two years in which defendants would reduce the prison population to 167%, 155%, 147%, and 137.5% at six-month benchmarks. Defs.’ Response to Three-Judge Court’s Oct. 21, 2009 Order (ECF No. 2274/3726). On January 12, 2010, this Court issued an order accepting defendants’ two-year timeline for compliance. That is, rather than ordering defendants to implement any specific population reduction measures, we ordered defendants to reduce prison population to 167%, 155%, 147%, and 137.5% at six-month benchmarks. Jan. 12, 2010 Order to Reduce Prison Population at 4 (ECF No. 2287/3767). This Court stayed the effective date of our order while defendants appealed to the Supreme Court. Id. at 6.

C. The Supreme Court’s June 2011 Opinion

In June 2011, the Supreme Court affirmed this Court’s order in full. Again, we repeat here only those portions of the Supreme Court opinion that are relevant to the motions pending before us.

The Supreme Court framed the central question before it as whether resolving the ongoing constitutional violations necessitated the entry of a prisoner release order. The Court fully recognized that the order was “of unprecedented sweep and extent” and that the possible release of 37,000 prisoners was a matter of “undoubted, grave concern.” Plata, 131 S.Ct. at 1923. The Court continued:

Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well-documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding.

Id. The Court thus recognized that, at some point when a state actor has proven unwilling or incapable of remedying a constitutional violation, the deprivation of constitutional liberties demands a more forceful solution. Here, as “overcrowding is the ‘primary cause of the violation of a Federal right,’ 18 U.S.C. § 3626(a)(3)(E)(i), specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care,” that solution was a population reduction order. Id. The Supreme Court affirmed our order in full, holding “that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights.” Id.

One of defendants’ principal arguments before the Supreme Court was that the Three-Judge Court was prematurely convened, as defendants had been afforded insufficient time to achieve a solution on their own to the problem of prison overcrowding. The Supreme Court rejected this argument, stating that defendants had been given “ample time to succeed” in resolving the constitutional violations. Id. at 1930. At the time .that the Three-Judge Court was convened, twelve years had passed since the appointment of the Special Master in Coleman, and five years had passed since the stipulated injunction in Plata. The Supreme Court stated that, given defendants’ continuing inability to remedy the overcrowding problem during that time, “the District Courts were not required to wait'to see whether their more recent efforts would yield equal disappointment.” Id. at 1931. In short, decades of failure by defendants justified the convening of this Three-Judge Court.

Defendants also repeated their challenge that a population reduction order was not required, as the overcrowding problem could be resolved through construction and other efforts. The Supreme Court flatly rejected each option presented by defendants, affirming our determination that these options were “chimerical,” ineffective, or demanded some level of prisoner release. Id. at 1938-39. When defendants attempted to assert, without evidence, that they could resolve the problem through some combination of these options, the Supreme Court explained why defendants’ troubled history in this litigation belied placing any trust in them:

The State claims that, even if each of these measures were unlikely to remedy the violation, they would succeed in doing so if combined together. Aside from asserting this proposition, the State offers no reason to believe it is so. Attempts to remedy the violations in Plata have been ongoing for 9 years. In Coleman, remedial efforts have been ongoing for 16. At one time, it may have been possible to hope that these violations would be cured without a reduction in overcrowding. A long history of failed remedial orders, together with substantial evidence of overcrowding’s deleterious effects on the provision of care, compels a different conclusion today.

Id. at 1939. Again, decades of failure justified rejecting defendants’ reassurances that, with more time, they could resolve the problem.

Defendants also insisted that achieving a prison population of 137.5% design capacity would adversely affect public safety. The Supreme Court recognized that defendants maintained this belief but found it unpersuasive in light of this Court’s explicit factual findings to the contrary:

This inquiry necessarily involves difficult predictive judgments regarding the likely effects of court orders. Although these judgments are normally made by state officials, they necessarily must be made by courts when those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings. It was proper for the three-judge court to rely on the testimony of prison officials from California and other States. Those experts testified on the basis of empirical evidence and extensive experience in the field of prison administration.

Id. at 1942. In other words, defendants’ beliefs about public safety are not to be credited over the contrary findings of this Court, which were supported by extensive expert testimony and which the Supreme Court affirmed. In so doing, the Supreme Court specifically endorsed the good time credits expansion measure:

The court found that various available methods of reducing overcrowding would have little or no impact on public safety. Expansion of good-time- credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending.

Id. at 1943. The Supreme Court also approvingly discussed the empirical and statistical evidence from other jurisdictions that had successfully implemented good time credits. Id. at 1942^3 (listing the experience in certain California counties, Washington, etc.). The Supreme Court was in clear agreement with this Court that defendants could reduce the prison population to 137.5% design capacity without adversely affecting public safety, specifically through the expansion of good time credits.

In its final section, the Supreme Court addressed the issue of timing. Defendants objected to the fact that our Order required them to achieve the prison population cap within two years. The Supreme Court held that there was nothing problematic about our two-year time frame, especially as defendants had not raised an objection to the two-year deadline at trial; nor had they formally requested an extension from the Supreme Court. Id. at 1946. The Court further observed that, because our Order was stayed during the pendency of the Supreme Court proceedings, defendants “will have already had over two years to begin complying with the order of the three-judge court.” Id. The Supreme Court stated that, to the extent that additional time was necessary, defendants could seek modification, a request which this Court “must remain open to.” Id. (We have, in fact, done so, granting defendants a six-month extension, the most that they even suggested might be necessary.) Just as the Supreme Court advised this Court to be open to accommodating defendants’ possible need for additional time, it also reminded us of the “the need for a timely and efficacious remedy for the ongoing violation of prisoners’ constitutional rights.” Id. at 1946-47. To the extent that this Court granted defendants an extension, it should be “provided that the State satisfies necessary and appropriate preconditions designed to ensure that measures are taken to implement the plan without undue delay,” including “the State’s ability to meet interim benchmarks for improvement in provision of medical and mental health care.” Id. at 1947. The Supreme Court then stated that, while it approved of the fact that our order “left the choice of how best to comply with its population limit to state prison officials,” id at 1943, circumstances may call for further relief:

The three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refíne and elaborate those systems.

Id. at 1947. The Supreme Court concluded its opinion by recognizing that, while modification was certainly permissible, the serious constitutional deprivations in the California prison system must be resolved in a timely fashion:

The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Con- , gress in the PLRA.

Id. The final words of the Supreme Court’s opinion leave no room for ambiguity: “The State shall implement the order without further delay.” Id.

D. Three-Judge Court Proceedings since June 2011

Having been affirmed, our Court issued an order setting the following schedule by which defendants were required to reduce the prison population to 137.5% design capacity within two years after the Supreme Court’s decision:

Defendants must reduce the population of California’s thirty-three adult prisons as follows:

a. To no more than 167% of design capacity by December 27, 2011.

b. To no more than 155% of design capacity by June 27, 2012.

c. To no more than 147% of design capacity by December 27, 2012.

d. To no more than 137.5% of design capacity by June 27, 2013.

June 30, 2011 Order Requiring Interim Reports at 1-2 (ECF No. 2374/4032). Defendants informed this Court that they would accomplish the population reduction primarily through Assembly Bill 109, often referred to as “Realignment.” Defs.’ Resp. to Jan. 12, 2010 Court Order (ECF No. 2365/4016). Realignment would shift responsibility for criminals who commit “non-serious, non-violent, and non-registerable sex crimes” from the state prison system to county jails. This would apply both to incarceration and parole supervision and revocation, and to current and future prisoners convicted of those crimes. Defs.’ Resp. to June 30, 2011 Court Order (ECF No. 2387/4043). Realignment became effective in October 2011, and its immediate effects were highly beneficial, as thousands of prisoners either serving prison terms or parole revocation terms for “non-serious, non-violent, and non-registerable sex crimes” were shifted to county jails. Defendants were thus able to comply with the first benchmark, albeit shortly after the deadline. Defs.’ Jan. 6, 2012 Status Report (ECF No. 2411/4141). It also appeared that Defendants would easily meet the second benchmark and would likely meet the third. Id.

It soon became apparent, however, that Realignment was not sufficient in itself to achieve the 137.5% benchmark by June 2013 or to meet the ultimate population cap at any time thereafter, in the absence of additional actions. In February 2012, plaintiffs filed a motion requesting this Court to order defendants to demonstrate how they intended to meet the 137.5% figure by June 2013. Pis.’ Mot. for an Order Requiring Defs. to Demonstrate How They Will Achieve the Required Population Reduction by June 2013 (ECF No. 2420/4152). Plaintiffs argued that, based on CDCR’s own population projections (as of Fall 2011), it was evident that defendants would not achieve a prison population of 137.5% by June 2013. Id. at 2-3. Defendants responded that, because their Fall 2011 projections predated the implementation of Realignment, they were not reliable. Defs.’ Opp’n to Pis.’ Mot. for Increased Reporting in Excess of the Court’s June 30, 2011 Order at 2-3 (ECF No. 2423/4162). They stated that the forthcoming Spring 2012 population projections would give a more accurate indication of whether defendants would meet the 137.5% figure by June 2013. Id. at 4. This Court accepted defendants’ representations and denied plaintiffs’ motion without prejudice to the filing of a new motion after CDCR published the Spring 2012 population projections. Mar. 22, 2012 Order Denying Pis.’ Feb. 7, 2012 Mot. (ECF No. 2428/4169).

In May 2012, plaintiffs renewed their motion. Pis.’ Renewed Mot. for an Order Requiring Defs. to Demonstrate How They Will Achieve the Required Population Reduction by June 2013 (ECF No. 2435/4180). Plaintiffs correctly observed that, despite defendants’ assurances that the Fall 2011 projections were outdated and unreliable, the Spring 2012 population projections were not significantly different. Id. at 3^1. Plaintiffs also pointed to a new public report issued in the intervening months, titled “The Future of California Corrections” (known as “The Blueprint”), in which defendants stated that they would not meet the 137.5% figure by June 2013 and announced their intention to seek modification of this Court’s Order. See CDCR, The Future of California Corrections: A Blueprint to Save Billions of Dollars, End Federal Court Oversight, and Improve the Prison System, Apr. 2012 (“CDCR Blueprint”). In fact, the Blueprint called for a substantial increase in the California prison population. Based on this evidence, plaintiffs repeated their request that this Court order defendants to demonstrate how they would comply with this Court’s June 30, 2011 Order. Pis.’ Renewed Mot. for an Order Requiring Defs. to Demonstrate How They Will Achieve the Required Population Reduction by June 2013 at 5-6 (ECF No. 2435/4180). They further contended that defendants’ delaying tactics and “failure to take reasonable steps to avert a violation of this Court’s Order would amount to contempt of court.” Id. at 6. Defendants’ responsive filing, dated May 2012, confirmed their intent not to comply with the Order but instead to seek its modification from 137.5% design capacity to 145% design capacity. Defs.’ Opp’n to Pis.’ Renewed Mot. for an Order Requiring Defs. to Demonstrate How They Will Achieve the Required Population Reduction by June 2013 at 2 (ECF No. 2442/4191).

This Court, being of the opinion that it could not grant plaintiffs’ request to order defendants to demonstrate how they would meet the 137.5% goal if defendants actually had a legitimate basis for seeking modification, ordered two rounds of supplemental briefing regarding the basis for defendants’ anticipated (but unfiled) motion to modify. June 7, 2012 Order Requiring Further Briefing (ECF No. 2445/4193); Aug. 3, 2012 2d Order Requiring Further Briefing (ECF No. 2460/4220). Additionally, because defendants had suggested that they were not currently on track to reduce prison population to 137.5% design capacity, this Court asked the following:

[I]f the Court ordered defendants “to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release,” Plata, 131 S.Ct. at 1947, by what date would they be able to do so and, if implemented, how long would it take before the prison population could be reduced to 137.5%? By what other means could the prison population be reduced to 137.5% by June 27, 2013? Alternatively, what is the earliest time after that date that defendants contend they could comply with that deadline?

Id. at 4. This Court further stated that, until such time as we declare otherwise, “defendants shall take all steps necessary to comply with the Court’s June 30, 2011 order, including the requirement that the prison population be reduced to 137.5% by June 27, 2013.” Id.

In their response, defendants stated that they would seek to prove that Eighth Amendment compliance could be achieved with a prison population higher than 137.5% design capacity. Defs.’ Resp. to Aug. 3, 2012 2d Order Requiring Further Briefing at 6 (ECF No. 2463/4226). Defendants defiantly refused, however, to answer the set of questions quoted above. Defendants stated, somewhat astonishingly, that our suggestion that we might order defendants to develop a system to identify low-risk prisoners, a system that the Supreme Court had suggested we might consider ordering defendants to develop “without delay,” “is a prisoner release order that vastly exceeds the scope of any of the Court’s prior orders.” Id. at 11. In tortured logic, defendants suggested that the Supreme Court’s statement (“The three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release.”) “did not authorize the early release of prisoners,” or even the consideration of that question. Id. More to the point, our questions were about the timing of the development of such a system, not the actual imposition of it. Defendants, nevertheless, refused to answer our questions.

We had asked other factual questions, which defendants did answer. In response to this Court’s question whether modification proceedings could commence before the prison population reached 145%, defendants replied that they believed it would be premature to begin modification proceedings before the prison population reached 145%. Defs.’ Resp. to Aug. 3, 2012 2d Order Requiring Further Briefing at 9-10 (ECF No. 2463/4226). In response to the question whether their population projections were flawed, defendants conceded that point and stated that they believed the prison population would reach 145% design capacity by February or March 2013, at which point they would seek modification. Id. at 10-11. As of the date of this order, the prison population is at 149.8% design capacity. CDCR, Weekly Rpt. of Population, June 12, 2013, available at http://www.cdcr.ca.gov/reports_ research/offender_mformation_services_ branch/WeeklyW ed/TPOPl A/TPOP1 Ad 130612.pdf. Plaintiffs again asked this Court to find defendants in contempt, asserting that “[djefendants have all but stated that they have no intention of complying with this part of the Court’s Orders.” Pis.’ Request for Disc. & Order to Show Cause Re: Contempt at 1 (ECF No. 2467/4230).

In September 2012, this Court ruled on plaintiffs’ pending motions, including their request that defendants be held in contempt, which we denied without prejudice. Sept. 7, 2012 Order Granting in Part & Denying in Part Pis.’ May 9 and Aug. 22, 2012 Mots. (ECF No. 2473/4235). In the course of ruling on those motions, we commented that the question whether constitutional compliance could be achieved with a prison population higher than 137.5% design capacity “has already been litigated and decided by this Court and affirmed by the Supreme Court, and this Court is not inclined to permit relitigation of the proper population cap at this time.” Id. at 2-3. Accordingly, this Court stated that we were “not inclined to entertain a motion to modify the 137.5% population cap based on the factual circumstances identified by defendants.” Id. at 2. This Court further stated that it would, “however, entertain a motion to extend the deadline for compliance with the June 30, 2011 order.” Id. at 3. We also ordered defendants to answer the questions to which they had failed to respond. Id.

Defendants filed a response in which they answered our questions. Specifically, they stated that they would need six months to develop a system for identifying low-risk offenders for early release. Defs.’ Resp. to Sept. 7, 2012 Order at 5 (ECF No. 2479/4243). Furthermore, defendants advised us that they could comply with our Order with a six-month extension, largely by maintaining the out-of-state program. Id. ■ at 6. It appeared, from the parties’ filings, that resolution was not far off: Even defendants acknowledged that they could comply by December 2013. The parties disagreed, but perhaps not irreconcilably, over whether defendants could comply by the original date for compliance, June 2013. Accordingly, in October 2012, this Court ordered both parties to meet and confer, to develop, and to submit (preferably jointly) “plans to achieve the required population reduction to 137.5% design capacity by (a) June 27, 2013, and (b) December 27, 2013.” Oct. 11, 2012 Order to Develop Plans to Achieve Required Prison Population Reduction at 1 (ECF No. 2485/4251). The plans'were due on January 7, 2013.

On January 7, 2013, both parties filed plans to meet the 137.5% population cap. Defendants suggested in their plan that, although compliance by June 2013 would require the outright release of thousands of prisoners “without a structured program,” compliance by December 2013 would require virtually no such release of prisoners. Defs.’ Resp. to Oct. 11, 2012 Order (ECF No. 2511/4284). Three other more significant events occurred, however, on • or around that date, all indicating a troubling change in position on the part of defendants. First, in their monthly status report, defendants stated that despite not being in compliance .with this Court’s order, they would take no further action to comply with it. Defs.’ Jan. 2013 Status Report at 1 (ECF No. 2518/4292) (“Based on the evidence submitted in support of the State’s motions, further population reductions are not needed.... ”). Second, defendants filed a motion to vacate or modify this Court’s Order. Defs.’ Mot. to Vacate or Modify Population Reduction Order (ECF No. 2506/4280) (“Three-Judge Motion”). This motion did not await the defendants’ reaching a 145% population cap, as they had said they would, see supra at n. 9, or renew defendants’ request to extend the deadline by six months. Rather, defendants requested complete vacatur of this Court’s Order. Id. at 3'. On the same day, defendants filed, in the Coleman court, a motion to terminate all injunctive relief in that case. Mot. to Terminate & to Vacate J. & Orders {Coleman ECF No. 4275). Notably, defendants did not file a similar motion in the Plata court. The Coleman court denied defendants” motion to terminate. Apr. 5, 2013 Order Denying Defs.’ Mot. to Terminate {Coleman ECF No. 4539). Third, the Governor terminated his emergency powers, while arrogating unto himself the authority to declare, notwithstanding the orders of this Court, that the crisis in the prisons was resolved. Gov. Edmund G. Brown Jr., A Proclamation by the Governor of the State of California, Jan. 8, 2013 (“[Pjrison crowding no longer poses safety risks to prison staff or inmates, nor does it inhibit the delivery of timely and effective health care services to inmates.”). This termination eliminated the legal authorization that permitted defendants to form contracts to house approximately 9,500 California prisoners in out-of-state prisons. As the existing contracts expire, they will not be reauthorized. Consequently, the state prison population will increase by approximately .9,500 prisoners over the next several years. The Governor’s declaration that the constitutional crisis in the prisons had ended and that overcrowding no longer posed health risks to prisoners or safety risks to prisoners or staff was contrary to fact and served no legal purpose other than, by terminating his own authority with regard to out-of-state prisoner housing, to make it more difficult for defendants to comply with this Court’s orders while publicly proclaiming “Victory,” or “Mission Accomplished.”

On January 29, 2013, this Court stayed its consideration of the Three-Judge Motion. Jan. 29, 2013 Order at 2 (ECF No. 2527/4317). However, we granted defendants a six-month extension, even though no formal request had been made to this Court. Id. at 2-3. Finally, we once again ordered defendants to comply with our Order. Id. at 2 (ECF No. 2527/4317) (“Neither defendants’ filings of the papers filed thus far nor any motions, deelarations, affidavits, or other papers filed subsequently shall serve as a justification for their failure to file and report or take any other actions required .by this Court’s Order.”).

E. This Court’s April 11, 2013 Opinion & Order Denying Defendants’ Three-Judge Motion and April 11, 2013 Order Requiring List of Population Reduction Measures

On April 11, 2013, this Court- denied defendants’ Three-Judge Motion and ordered them to “immediately take all steps necessary” to comply with our Order. Apr. 11, 2013 Op. & Order at 2 (ECF No. 2590/4541). This Court explained its rationale for rejecting defendants’ modification request in a lengthy 71-page opinion. We briefly repeat our rationale here, noting one instance in which evidence available subsequent to the filing of our April 11, 2013 Opinion & Order confirms our conclusions.

We denied the Three-Judge Motion (as modified) for three reasons. First, it was barred by res judicata principles as an improper attempt to relitigate the 137.5% figure, a predictive judgment that this Court had made and that the Supreme Court had specifically affirmed. Second, defendants presented insufficient evidence to meet their burden under a Rule 60(b)(5) motion, which is to prove a “significant and unanticipated change in factual conditions warranting modification.” United States v. Asarco Inc., 430 F.3d 972, 979 (9th Cir.2005) (summarizing Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384-86, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)). The Receiver’s 23rd Report, which was filed on May 23, 2013, subsequent to our April 11, 2013 Opinion & Order, further supports our conclusion that defendants failed to demonstrate that their various renovation projects, although adding some treatment space, have added adequate treatment space to conclude that the overcrowding was no longer the primary cause of the ongoing constitutional violations:

Sufficient additional space for healthcare has been added by the Receiver only at San Quentin and Avenal, and some additional space and beds for mental healthcare have been added pursuant to court orders in Coleman. As reported below, ; however, the State has not completed promised improvements and upgrades to healthcare space at the remainder of the prisons, and even though a plan to complete such construction was completed and agreed to four years ago, not a single upgrade project has broken ground and not even a single contract for design services has been entered into. The completion dates for these projects stretch into 2016 and 2017, far enough into the future that there is no reliable guarantee the projects will ever be undertaken.

Simply put, we do not have appropriate and adequate healthcare space- at the current population levels. We need population levels to reduce to 137.5% of design capacity as ordered by the Three Judge Panel, and we need the State to complete its promised construction.

Receiver’s 23rd Report at 31 (ECF No. 2636/4628). Third, in light of defendants’ stated intention to increase the state prison population by 9,500 prisoners by eliminating the out-of-state prison program, defendants failed to demonstrate a “durable” solution that would justify this Court exercising its equity power to vacate a prior order. We denied the Three-Judge Motion and ordered defendants to comply with our Order and reduce the overall prison population to 137.5% design capacity by December 31, 2013.

To ensure that defendants complied, this Court entered a separate order consisting of five parts. Apr. 11, 2013 Order (ECF No. 2591/4542). First, we ordered defendants to “submit a list (‘List’) of all prison population reduction measures identified or discussed as possible remedies in this Court’s August 2009 Opinion & Order, in the concurrently filed Opinion & Order, or by plaintiffs or defendants in the course of these proceedings (except for out-of-state prisoner housing ...). Defendants shall also include on the List any additional measures that they may presently be considering.” Id. at 1-2. Defendants were to list these measures “in the order that defendants would prefer to implement them, without regard to whether in defendants’ view they possess the requisite authority to do so,” and to provide various additional information for each measure on the List. Id. at 2. For example, we asked for “[d]efendants’ best estimate as to the extent to which the measure would, in itself, assist defendants in reducing the prison population to 137.5% design capacity by December 31, 2013, including defendants’ best estimate as to the number of prisoners who would be ‘released,’ see 18 U.S.C. § 8626(g)(4), as a result of the measure.” Id. These estimates were to include both prospective and retroactive implementation of the measure, where applicable. Id.

Second, we ordered defendants to submit “a plan (“Plan”) for compliance with the Order: The Plan was to identify measures from the List that defendants propose to implement, without regard to whether in defendants’ view they possess the requisite authority to do so.” Id. at 3. Defendants were specifically ordered to explain:

For the measures included in the List but not in the Plan: defendants’ reasons, excluding lack of authority, why they do not propose to implement these measures. Other reasons that shall be excluded are all reasons that were previously offered at the trial leading to this Court’s August 2009 Opinion & Order and rejected in that Opinion & Order.

Id. at 3. If defendants included a measure to slow the return of out-of-state prisoners, they were required to “include an estimate regarding the extent to which this measure would assist defendants in reducing the prison population to 137.5% design capacity by December 31, 2013” and to explain whether any such measure would provide a durable solution. Id. at 4.

Third, we ordered defendants to “use their best efforts to implement the Plan.” Id. at 4. For measures for which they possessed the requisite authority, this meant “[djefendants shall immediately commence taking the steps necessary to implement the measure.” Id. For measures for which they lacked such authority, this meant “[djefendants shall forthwith attempt in good faith to obtain the necessary authorization, approval, or waivers from the Legislature or any relevant administrative body or agency.” Id.

Fourth, we ordered defendants to update us on their progress towards implementing the Plan in their monthly reports. Id. For measures for which they possess the requisite authority, defendants were to commence taking all necessary steps immediately and, if they failed to do so, explain who is responsible and why. For measures for which they lacked such authority, we asked for information regarding their progress in acquiring legislative and administrative authorization.

Fifth, we ordered defendants “to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release, to the extent that they have not already done so.” Id. at 5. “If defendants fail to reduce the prison population to 137.5% design capacity in a timely manner, this system will permit defendants to nevertheless comply with the Order through the release of low-risk prisoners.” Id. Defendants were ordered to submit the List and Plan within 21 days of our April 11, 2013 order.

II. DISCUSSION

Defendants timely submitted the List and a Plan, although — as will be explained in detail infra — defendants’ Plan does not comply with our Order. This Court therefore orders defendants to implement the Plan plus an additional population reduction measure as well. This additional measure, in conjunction with the measures included in the Plan submitted by defendants, will constitute the Amended Plan — a plan that will, unlike defendants’, reduce the overall prison population to 137.5% design capacity by December 31, 2013.

A. Defendants’Plan for Non-Compliance

Defendants again directly defied this Court’s orders, this time our April 11, 2013 order. By the terms of our April 11, 2013 order, defendants were required to submit a Plan for compliance with our Population Reduction Order as amended, i.e., to reduce the prison population to 137.5% design capacity by December 31, 2013. Apr. 11, 2013 Order at 3 (ECF No. 2591/4542). Under Realignment and the Blueprint (which was defendants’ earlier “effort” to comply with the Order), the prison system is projected, on December 31, 2013, to contain 9,636 prisoners more than permitted by the Population Reduction Order. This includes several thousand prisoners who, under the Blueprint, are due to be returned to the state prison system sometime this year. Id.; see also CDCR Blueprint at 6-7 & App. G. Consequently, on December 31, 2013, the prison population was projected to be 149.3% design capacity rather than 137.5%. Accordingly, we directed defendants in our April 11, 2013 order to propose a new Plan that would reduce the state prison population by 9,636 more prisoners by December 31, 2013.

It is clear that defendants failed to comply with our April 11, 2013 order, and they have now conceded as much. Defs.’ Resp. to April 11, 2013 Order at 5 n. 3, 37 (ECF No. 2609/4572) (acknowledging that its latest Plan will not achieve the 137.5% figure by December 31, 2013). Defendants, however, understate the extent of their own non-compliance. Defendants assert that their Plan would achieve a prison population of 140.7% design capacity by December 31, 2013. In fact, however, at best defendants’ latest Plan would result in a prison population of 142.6% design capacity by December 31, 2013, assuming that the out-of-state prisoners are actually not to be returned (despite the Governor’s termination of his authority to order them housed outside of California). In other words, Defendants submitted a Plan that at best would achieve essentially only half of the prisoner reduction required by our April 11, 2013 order. Demonstrating the discrepancy between defendants’ assertions and the reality of their proposed Plan requires some explanation.

Defendants’ Plan has five components: (1) expanding the use of fire camps; (2) leasing jail capacity from Los Angeles and Alameda county; (3) expanding good time credits for non-violent offenders prospectively (despite the agreement of all experts that the full expansion of good time credits, retroactively and for all prisoners, was the most promising population reduction measure); (4) expanding some parole categories; and (5) slowing the return of out-of-state prisoners. Defendants estimate the' prisoner reduction from each of these measures as follows:

Component Reduction by December 31, 2013

1) Fire camps 1,250

2) Leasing .jail space 1,600

3) Good time credits (limited) 247

4) Expanding parole 400

5) Out-of-state prisoners not to be returned 3,569

Total achieved by Plan 7,066

Shortfall relative to 9,636 reduction required by _population reduction order 2,570

Thus, if defendants were able to implement all the measures included in its Plan and if these estimates accurately reflected the prisoner population reduction that would be achieved under those measures, defendants would fail to comply with our April 11, 2013 order by a total of 2,570 prisoners — i.e., it would fall 27% short of the 9,636 reduction required by that order. Put another way, it would result in a prison population of 140.7% design capacity on December 31, 2013.

Defendants’ estimates, however, include reductions that would not be attainable by December 31, 2013. Specifically, the second item on defendants’ Plan is not attainable by that date because defendants concede that, even with complete authorization, they will need nine months to negotiate the necessary contracts and thus cannot “fully implement this measure” by the end of the year. Defs.’ Resp. to April 11, 2013 Order at 7 (ECF No. 2609/4572). In fact, defendants do not assert that by December 31, 2013 their Plan would achieve any specific reduction in the prison population as a result of the reassignment of prisoners to leased jail space. Consequently, we cannot credit the Plan with the 1,600 prisoner reduction as a result of leasing jail capacity by December 31, 2013. With this adjustment, defendants’ Plan is as follows:

Component Reduction by December 31, 2013

1) Fire camps 1,250

2) Leasing jail space (1,600)

3) Good time credits (limited) 247

4) Expanding parole 400

5) Out-of-state prisoners not to be returned 3,569

Total achieved by Plan 5,466

Shortfall relative to 9,636 reduction required by _population reduction order :,170

Eliminating the effect of the proposed jail leasing measure, defendants’ Plan fails to comply with our April 11, 2013 order by a total of 4,170 prisoners — i.e., it falls 43% short of the 9,636 reduction required by that order. Put another way, defendants’ Plan would actually result in a prison population of 142.6% design capacity on December 31, 2013. In short, defendants’ Plan clearly fails to meet the design capacity limit ordered by this Court — and affirmed by the Supreme Court — by a significant amount.

Although defendants’ Plan does not come close to meeting the population reduction required by our order, defendants also advise us that this deficient Plan cannot be immediately implemented because all but one of the measures included therein are contrary to state law. This includes the measure to slow the return of out-of-state prisoners, even though the legal authorization to house these prisoners out of state in the first place was provided by Governor Schwarzenegger’s Emergency Proclamation, which Governor Brown terminated earlier this year on the erroneous legal ground that no constitutional violation existed any longer in the California prison system. In other words, defendants must now seek authorization (from the Legislature, or from this Court in the form of a waiver of state law) for a new measure that is required only because of the Governor’s own prior action in ter