Two judges hold key to prison reform

SACRAMENTO —  Both are past 70, with creaky limbs, gray beards and an eye on retirement after long careers in the black robe.

But like it or not, federal judges Thelton E. Henderson and Lawrence K. Karlton hold the power to help California fix a catastrophic failure: its broken prison system. It is a task neither man covets.

Karlton has had heart surgery and carries a full load of cases aside from his prison work. Henderson suffers an autoimmune disorder that is attacking his muscles. He says he’d be enjoying his golden years already if not for his desire to see inmate medical care improve.

“I want to retire and go fishing and hang out with my grandson,” Henderson said in a recent interview. “But Larry and I feel an obligation, a duty, here.”

Now the judges’ long-running role in California corrections is taking on new urgency. Each is poised to decide a potentially far-reaching question: whether crowding in the state’s floundering prisons has become so severe that a cap on the inmate population is warranted. Hearings are set for June.

Last week, Gov. Arnold Schwarzenegger and lawmakers reached agreement on a $7.4-billion program to relieve overcrowding. The package will add beds, permit the governor to transfer some inmates out of state and boost rehabilitation programs. But it is not clear whether this new effort, which includes few measures offering quick relief, will impress the judges. Both declined to comment on the legislation.

Admirers hope the jurists will step in. They describe the judges as heroic figures unafraid to act, even if it means authorizing the early release of prisoners.

Critics see the two as activists bent on seizing total control of one of government’s most essential functions, the incarceration of lawbreakers.

Either way, scholars say the politics of punishment have made the judges’ participation in prison reform all but inevitable. With politicians eternally fearful of appearing soft on crime, federal judges -- protected by lifetime tenure -- embody the best hope for curing the myriad ills of the $10-billion correctional system, they say.

“The truth is, these judges give politicians cover to stand up and do things they would otherwise be afraid to do,” said Malcolm Feeley, a professor at UC Berkeley’s Boalt Hall School of Law. “If someone complains, they can point at the court and say, ‘Sorry, but he made me do it.’ ”

Henderson agrees. Although he prefers to see elected officials lead the charge for improvements behind bars, he understands the political dynamics.

“Unlike the mistreatment of veterans, nobody is up in arms about prisoners,” the judge said during a lunch break in his chambers at the U.S. District Court in San Francisco.

He added that even Schwarzenegger -- the popular, twice-elected Terminator -- told him in a meeting that politics dictated caution on prisons. Though the governor seemed genuinely interested in reform, Henderson recalled, he feared being perceived as a law enforcement wimp, or someone prone to “hugging a thug.”

Rooted in a cause

More than any of their colleagues on the bench, Henderson and Karlton have long-standing ties to California’s struggling prison system.

For Henderson, who was raised in Los Angeles, the son of a janitor and a maid, the work began with a case on the treatment of inmates at Pelican Bay State Prison near the Oregon border.

In 1995, Henderson issued a landmark decision calling a pattern of beatings and brutality at the prison cruel and unusual punishment.

“The dry words on paper,” he wrote, “cannot adequately capture the senseless suffering and sometimes wretched misery that defendants’ unconstitutional practices leave in their wake.”

Henderson appointed a special master to oversee improvements.

More recently, he has led a wholesale restructuring of inmate medical care, and last year he appointed a federal receiver to run the $1.2-billion prison healthcare operation. He describes that move as “something I was reluctant to do.”

But independent experts told him one inmate was dying every six days because of medical incompetence or neglect, so he hired Robert Sillen as receiver and bestowed on him sweeping powers.

“It was a last resort, a huge step,” Henderson says. “But when you have life at stake, it tips the balance.”

Karlton’s cases

Karlton, who sits on the District Court in Sacramento, oversees the state’s lumbering 11-year-old effort to improve conditions for mentally ill convicts. The reforms were spurred by a class-action case over care, and the state’s sluggish progress has sorely tested the judge’s patience.

“More than 25% of the persons in prison have certifiable mental conditions, and huge numbers of them have been treated as recalcitrant prisoners, despite the fact that they were motivated by voices in their heads and the rest of it,” Karlton said in a recent interview. “I don’t think the Constitution permits that.”

In another case with huge and costly ramifications, Karlton ruled that the state was improperly jailing accused parole violators -- sometimes for months -- before granting them hearings.

And in a lawsuit testing the religious rights of inmates, Karlton said prison officials could not discipline Muslim convicts who chose to wear beards or attend services on Fridays.

Civil ties

Beyond sharing the theme of prisons in their caseloads, the judges have common roots in the fight for civil liberties.

Henderson became the first black lawyer in the civil rights division of the U.S. Justice Department and was assigned in 1962 to investigate voting rights abuses in Alabama. During that period, a white police officer stopped him for a traffic infraction, roughed him up and used a racial epithet before learning he was a government employee.

His work in the Deep South abruptly ended when, after a chance encounter, he lent his rented car to the Rev. Martin Luther King Jr., whose vehicle had become disabled. An uproar led by then-Gov. George Wallace prompted Henderson to resign.

He returned to the Golden State, where he ran a legal aid office for the poor and was assistant dean of Stanford Law School. In 1980, President Carter made him the first African American on the Northern District federal court.

With his soft voice and gentlemanly manner, Henderson, 73, is widely respected as a precise, contemplative judge. He takes his aging dog, a white bichon frise named Sara, to work and enjoys fishing and attending his grandson’s Little League games.

Aside from his prison work, Henderson is known for his decision in 1996 striking down Proposition 209, California’s anti-affirmative action measure. Conservatives called for his impeachment. One state assemblyman labeled him a “wacko.” The measure was later upheld by higher courts.

Karlton, 71, also has experienced controversy. In 1999, he threw out a voter-approved ballot initiative limiting campaign contributions, saying the donation ceiling was too low.

And in 2005, he ruled that it was unconstitutional to require public school children to recite the words “under God” in the Pledge of Allegiance, inflaming culture wars over religion’s place in government.

“You’d have to be from another planet not to think that whatever I did in that case would be controversial,” Karlton said in the interview. The ensuing hubbub was “not my concern,” he said. “My concern, as always, was to do the law.”

A native of Brooklyn, N.Y., Karlton was named to the Eastern District bench by Carter in 1979. Previously, he worked as a lawyer affiliated with the American Civil Liberties Union, championing constitutional causes and often representing the powerless.

Lawyers describe the judge as volatile and intimidating, with a brilliant legal mind. Often emotional on the bench, Karlton -- the son of Eastern European immigrants -- has been known to grow misty-eyed when presiding over naturalization ceremonies.

He also is quick to act when he suspects foot-dragging. In 2002, he threatened to hold then-Gov. Gray Davis in contempt of court if the government did not produce a plan to rectify the state’s treatment of parolees by a deadline he had set.

“Sometimes,” the judge said with a little smile, “you have to get their attention.”

In his off hours, Karlton enjoys a friendly game of poker and, like Henderson, spending time with his dog, a wire-haired pointer. Until his knees gave out, the judge’s true passion was horseback riding. He still keeps his saddle in chambers.

Stepping boldly

Lawyers who have tried prison cases say the two men share a fearlessness to act however the law demands. Henderson keeps a paper with a handwritten message, lifted from “Star Trek,” near his desk.

“To boldly go where no man has gone before,” it reads.

Whether those words will apply when the judges answer the question facing them now is unclear. Both are hesitant; Karlton says capping the prison population would be “a radical step.”

The issue flows from the two lawsuits over medical and mental healthcare. A smaller case involving disabled prisoners is before a third judge, but Karlton and Henderson are expected to lead the way.

Lawyers in all three cases have asked for a cap on the grounds that overcrowding has made it impossible for prison officials to carry out improvements they have promised.

The governor expressed confidence Thursday that the judicial hammer won’t be needed. “I think the judge will see that ... there is the will here in the Capitol to fix the problem,” Schwarzenegger told reporters.

In court in December, Karlton said that prison improvements have been so slow he sometimes feels he is “spitting in the wind.”

Allowing the federal judiciary to tell officials “how many people they can put in their prisons,” he said later in the interview, “is not a good thing.”

But “if I am put to it,” he vowed, “I will do it.”

If he or Henderson decides a cap is warranted, a three-judge panel will be formed to decide whether to impose one.

Michael Bien, a lawyer on the case, says it’s clear that “these judges are begging the state to take responsibility for this mess.”

“It seems to me they shudder a bit every time they are asked to take a more intrusive role,” Bien said.

But the judges’ records suggest they are not men inclined to fold.

“Unfortunately, improving this system is like turning one of those big ocean liners,” Henderson said. “Eventually, it happens. You just have to keep pushing and wait.”

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(BEGIN TEXT OF INFOBOX)

Judging California corrections

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U.S. District Judges Thelton E. Henderson of San Francisco and Lawrence K. Karlton of Sacramento have long-standing connections to the state penal system.

Thelton E. Henderson

Age: 73

Born: Shreveport, La.

Education: UC Berkeley, Boalt Hall School of Law

Title: Senior judge, Northern District of California

Appointed: 1980, by President Carter

Major prison-related decisions:

1995: Found that conditions at Pelican Bay State Prison amounted to cruel and unusual punishment. Deplored “grossly excessive” force used by guards.

2005: Appointed a federal receiver to run the state’s $1.2-billion prison healthcare operation. Experts had found that one prisoner was dying every six days because of medical incompetence or neglect.

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Lawrence K. Karlton

Age: 71

Born: Brooklyn, N.Y.

Education: New York University, Columbia University Law School

Title: Senior judge, Eastern District of California

Appointed: 1979, by President Carter

Major prison-related decisions:

1995: Rebuked then-Gov. Pete Wilson and other officials for “recalcitrant refusal” to provide proper treatment to mentally ill inmates.

2002: Found that the state acted unconstitutionally in revoking paroles, because parolees were jailed for months awaiting hearings, a violation of due process rights.

2004: Ruled that prison officials could not discipline or deny sentence-reducing credits to Muslim inmates who wear beards or attend religious services on Fridays.

Source: Times reporting