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California Attorney General Jerry Brown on a runaway receivership trying to grab $8 billion dollars for prison health care facilities.

Thursday, January 29, 2009
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HH: Whether you’re in Florida or up in Alaska, all the way out in New York or out in Hawaii, listen very closely. This is a story that matters to you. In California, there is an out of control receiver appointed by an unelected federal judge, spending billions of dollars that don’t exist on new hospital construction for prison inmates that is barred by the expressed terms of the Prison Litigation Reform Act he purports to be acting under. It is a scandal coming to your state soon unless it is stopped here. And it is one of those rare times where I get to agree with Attorney General of California, Jerry Brown. Mr. Brown, welcome back to the program, great to have you on tonight.

JB: Well, great, Hugh.

HH: Now I cannot believe what this federal receiver is up to. You made a petition to the court today to get him knocked off the case. Any indication whether this is going to work?

JB: Well, I think it’ll work eventually. We’ll get to a court of appeals, or maybe even the U.S. Supreme Court. The Federal Litigation Reform Act clearly limits a federal judge from ordering a state to build prisons. The issue at hand is a proposed $8 billion dollar construction plan for seven state of the art medical prison facilities for 10,000 people. The average cost for the prisoner patients in those seven facilities would be about $230,000 per year. That’s the top, maybe as low as $170,000-$180,000 per prisoner. The operating costs to run these things would be about as much as $2 billion a year, and the size, the extent of all this is the equivalent of 70 Wal-Marts – tall ceilings, yoga rooms, landscaping to hide the fences, a treatment mall, whatever that means. And in general, this is a way over the top, gold plated kind of utopian idea of what might be very nice. But we want to know what is the constitutional standard, no more, no less. I mean, we’re a state with a $42 billion dollar deficit here, and we want to take care of prisoners’ health needs, but in this case, already, I’m not talking about building bricks and mortar new prisons, already the receiver is spending almost $14,000 dollars per inmate on health care today. The average Californian doesn’t get much more than maybe $4,400 dollars a year if he or she is privileged enough to have health care. Now we’re talking about a universal health care system that will cost almost $14,000 dollars a year, and will be supplemented with these new seven hospitals on another huge expenditure of funds. We think it’s too far, we think it’s illegal, and we’re asking the court to terminate both the plan and the receivership which operates in secret as an autonomous government without the accountability that every other agency and department of state government is subjected to.

HH: Amen from a conservative, Attorney General Brown. Let me add, I actually know the specifics of the Ventura proposed hospital, which is the size of eight Wal-Marts. He wants to build it on a rather small California youth authority. I went and looked up the statute, and the statute says the judge, the receiver, cannot order new hospital construction. How can he even purport to begin to do this?

JB: Well, I’ll tell you how, because unfortunately, our governors have consented to some of this stuff. So instead of fighting it because they were so frustrated I guess with the legislature or the pace of progress, they said well, okay, let’s let this receiver do it. So then they agreed, I don’t think they understood fully what was really going to happen. So now, when the reality comes and the receiver, because he didn’t get the $8 billion, or even the $250 million dollar down payment, he files a motion a few months ago, and he says I want the governor and the state controller held in contempt if I don’t get an immediate $250 million dollar down payment as part of my $8 billion dollar plan, of which I want at least $2 billion over the next couple of years. At that point, it became very clear to me, and to the governor as well, that we’re on the wrong path here. Then we look into the Prison Litigation Reform Act, and it says wait a minute, anything a federal judge orders regarding prisons has to be necessary, and least intrusive. That’s the word…

HH: Right.

JB: The least intrustive…

HH: Right.

JB: Here we have a secret prison czar separate from the director of corrections with his own payroll systems, with a chief of staff making, at least the last records we have from a year ago, over $600,000 dollars a year, one man, and be able to order all this stuff without being, going to the legislature, without telling the press, and even us. I said wait a minute, who are these people dying in the prison that you say is caused by unconstitutional care? Well, first they were saying one a week, then they reduced it last year to three preventable deaths. And my office said well tell us, give us the records. Who died? What was the circumstances? And they won’t tell us. So this is a very unusual departure from the republican form of government that depends on the people, a free press, and the checks and balances that come out of a bicameral legislature, a department of finance, and the separation of the executive from the legislative to the judicial. And all three of these powers, contrary to our founding fathers, have been collapse into one hand, and that’s the hand of Mr. Kelso.

HH: It is absolutely outrageous. But I’ve also got to go back to this consent decree. I don’t care if he had fifty governors sign a consent decree. If the consent decree says we’re going to do something illegal, it’s an illegal consent decree. Is that the heart of your argument, that he just cannot order…

JB: Well, we don’t like to talk about an illegal consent decree, but we will say, let me frame it just a little differently. The judge when he denied my objection to the $250 million dollar down payment, said that the state had waived its right to object.

HH: Oh!

JB: It waived its right, so the people basically are prevented from pursuing the truth in an open judicial forum.

HH: Now Mr. Attorney General, if he signed a consent decree, just a hypothetical…

JB: Yeah.

HH: …that said we’re going to shut down some newspapers, obviously it would be an illegal consent decree, correct?

JB: You can’t do that.

HH: You can’t do that. He can’t do this. I’m just curious…

JB: And I’ll tell you why, I want to say it just a little differently. He can’t do this because the Prison Litigation Reform Act gives the state the right to challenge any order to make sure it complies with that law. And we assert whatever was said six months ago or two years ago, that the present receivership and the money that its spending, and the plans that it envisions, violate the law and they cannot make the state do it. And we have a right to have this heard, and no waiver defense is permissible. And we think we’re going to prevail on that, if not in a district court, probably in the higher courts, even going to the U.S. Supreme Court.

HH: Well, you’ve got the 9th Circuit. Now you love the 9th Circuit in some cases, Mr. Attorney General. I never like to argue anything there.

JB: Well, not in all cases, because I’ve authorized several appeals as attorney general from cases that the sate lost.

HH: Do you think you have a fighting shot with the panel that is sitting with Judge Henderson on this case?

JB: Well, there’s not only Judge Henderson is on the prison health case. There is another judge for mental health. There’s about nineteen consent decrees…

HH: Yup.

JB: …that the state has agreed to, on handicap access, on dental, on prison discipline, and so many things it’s hard to even keep them all straight. But for this case, one judge, Judge Henderson. There’s another case that’s going to come out very quickly, and that’s on the prison release.

HH: That’s where I was going.

JB: Okay, not that’s a three judge panel, and so that will be decided, I think, very soon.

HH: In February, right?

JB: Now that’s a separate on whether or not the overcrowding has caused unconstitutional health care conditions. And we fought that, too, but I think that’s going to be an uphill battle.

HH: They’re looking at ordering the release of what, 50,000 prisoners, again federal judges?

JB: That’s what they’re talking about.

HH: Now when is…I hope you have bipartisan support. Obviously, Arnold’s a Republican, you’re a Democrat, I’m a conservative, you’re a liberal, but I hope there’s bipartisan support. We haven’t got $8 billion dollars for this.

JB: No, we’re minus $42 billion.

HH: So are you getting Republican support in Sacramento?

JB: I think we’ll get bipartisan support on this.

HH: And in terms of the money, has he been, has Receiver Kelso been given the $250 million bucks yet?

JB: Nope. He hasn’t been given it.

HH: That’s remarkable.

JB: He said that he’s going to hold the, that was the contempt motion, to hold Schwarzenegger and John Chung the controller in contempt if they didn’t pay by 5 O’clock on a certain day in November. We went to the federal court of appeals, and got an unprecedented stay of that order. So we’re in the court of appeals in February on the down payment.

HH: Great. Dozens of…

JB: Not only are we going to be in front of Judge Henderson for the termination of the whole plan and the receivership, and we’ll see what happens to that.

HH: Last question, Attorney General Brown. Dozens of Republican legislators have intervened in this lawsuit to try and get this plan stopped. Do you welcome their participation?

JB: Do I welcome it? Yeah, sure I welcome it. To tell you the truth, that one, that’s a little more complicated, and I’m much more prepared on this medical issue, because I’ve put a lot of my time into it. But that, I’ll tell you what’s probably going to happen. We’re going to get an order to come up with a plan to do something. And at that point, we ought to talk about it and then we’re not going to be able to do something without the Republicans, the Democrats, district attorneys, and a wide range of citizens supporting something common sense, protective of public safety.

HH: We will be here to work with you every step of the way, Attorney General Jerry Brown.

End of interview.

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