Tag Archives: Communist

Abolish all Family Courts!

The American Freedom Party today (September 15, 2018) agreed to endorse an original understanding of the First Amendment Establishment Clause:

The American Freedom Party agreed to my proposal to adopt and endorse, as a key plank of the party platform, the gradual abolition of the family courts and family codes at both the state and federal level, and to return all control over family and child rearing decisions to the people and only such non-governmental institutions as those to which individuals, in the exercise and delegation of their freedoms of religion and association, may wish to adopt as their own by contract.

The American Founding Fathers opposed Monarchy and sought to establish a Republic. The Family Courts (in America and elsewhere) have de facto reestablished absolutely tyrannical monarchical control over the fundamental freedoms of every individual involved in any sort of “family” (divorce or child or elder-related) dispute.

These courts, on an ad hoc basis, routinely violate every fundamental freedom. establishing arbitrary and capricious rules that defy all reason, logic, and rationality. These courts intrude and infringe upon our rights to freedom of speech and association. They intrude upon every aspect of our lives.

Original Intent: In 1787-1791, the American Colonists were only 200-250 years away from historical memory of the first Protestant “Acts of Uniformity” by which the Church of England was established, and all its sacraments (including the licensing and solemnization of marriage) adopted by Parliament.

Thus, it can be inferred that the American Founding Fathers sought forever to prevent the Federal Government from licensing or otherwise regulating marriage (or its dissolution, or child-rearing). The abuses of the Family Courts were and are so great that we must now “disestablish” all family courts, and all regulation of the “businesses of family organization and reproduction.”

14th Amendment: The American Freedom Party recognizes that certain clauses of the 14th Amendment have been interpreted in such a way as to have disastrous consequences for the American people (especially the “automatic citizenship by birth” clause, which should almost certainly be repealed).

However, the American Freedom Party wholeheartedly endorses the “doctrine of incorporation” which has developed under 14th Amendment jurisprudence, which requires that the several states apply the First Amendment and other portions of the Bill of Rights as federally guaranteed rights within the borders of each state.

Thus, just as the First Amendment prohibits all Federal Regulation of Marriage, the First Amendment, incorporated to the States, should prohibit all State regulation of marriage or its dissolution and consequences, including child custody disputes. There is simply no way of saving the Family Courts in their present form. They have become dens of corruption and iniquity, which impoverish the people, confuse and disorient both parents and children, destroy all meaning value to family life, and render the people dependent upon the arbitrary and capricious whims of government for every iota of common, everyday, happiness.

As membership campaign manager and coordinator for the AFP, I solicit your suggestions about how this can be accomplished.

I suggest a seven year transitional plan starting with the immediate abolition of all state issued marriage licenses.

To facilitate this transition, the states will institute educational programs in both the schools and for the communities.

Every individual who comes to any state agency, from the adoption of such a law forward, to apply for a marriage license will be advised to go to counseling and arrange a marital contract regarding the nature of the relationship and the expectations of the individuals to be married, including their expectations regarding child rearing and child custody upon divorce.

For the initial stages of implementation, the courts, will continue to resolve divorce petitions filed under current law, but with a mandate to respect all constitutional rights, an expedited review process for all judicial infringements on constitutional rights, and a mandate to accommodate jury demands for all issues involving money or custody.

The next stage will begin between one and three after the adoption of the reform program, and after this date, the state divorce courts will only hear cases where a couple bring forward a marital or pre-marital agreement, or two comprehensive proposals, and the court will resolve those differences.

The goal will be the final abolition of the family courts within seven years…..and after that stage, the civil courts will only be involved to the extent required to interpret, apply, enforce, modify, or (only if illegal or unconscionable) abrogate the agreements between “partners”.

Is “the Master” a Metaphor for all modern Politics? It is modern art in its purest form: no plot, no purpose, no meaning, no message, no class, no character development, no clue why they made it at all….

Happy Election Day!  May the People of the United States one Day, Finally, AWAKE and “throw the bastards out.”  We need an imaginative leader, not just a “Master” or….Master….”baiter”….

Aside from the title of this post, I can think of very little to say about “the Master” except that I wanted to walk out of it during most of the movie, but I stuck it out, out of a combination of curiosity and stubbornness.   On the way home it occurred to me that “the Master” was a story about a person with no real personality, no real knowledge, ability, or skills of any kind, who appealed to a lot of people either in spite of or because of his complete vacuity.  In other words, “the Master” (Philip Seymour Hoffman as the fictitious “Lancaster Dodd”) could have run for President as the candidate of a major party in 2012 and had an excellent chance of winning. 

As for Joaquin Phoenix’ part—well, his story was at least kind of a story about a World War II Veteran who drank a lot and was anti-social, stupid, and boorish.  The moral of his story, I think, if you can call it a “moral” is simply this: even if you are completely anti-social, stupid, and boorish, if you look like Joaquin Phoenix attractive women will still be attracted to you and you will eventually get laid at least once in your life by some woman other than your Aunt Bertha….. and even if you have previously had to make do with sand silhouettes of women as your primary sex-partners (this may inspire a new drink, possibly modeled on the  paint-thinner poisons served in the movie, called “Sex WITH the Beach” instead of “Sex ON the Beach.”

Dear GOD this was a horrible movie.  Aside from the story about Joaquin’s character Freddie Quell’s Aunt Bertha, another moral low point of the movie is when “the Master” is inexplicably surrounded at a party by a bunch of relatively attractive naked women and fully dressed men.  This all took place in a nice Victorian House with colonnaded southern style porch in suburban Philadelphia.   IF this was supposed to be a dream sequence, it was not obvious.  IF this was supposed to be real, it was simply inexplicable.  

In another notable scene, removed from that same nice Victorian House in Philadelphia, Joaquin Phoenix and “the Master” share adjoining cells when he and the “Master” are arrested for fraud and misappropriation of a completely unsympathetic but wealthy woman’s money, and Freddie kicks the prison toilet to smithereens and they tell each other to go fuck themselves….. and they don’t say “Argo fuck yourself” either….

“Rotten Tomatoes” incomprehensibly gives this (to my mind, total turkey of a cinematic production) a 4 1/2 out of 5, and writes:

“A striking portrait of drifters and seekers in post World War II America, Paul Thomas Anderson’s The Master unfolds the journey of a Naval veteran (Joaquin Phoenix) who arrives home from war unsettled and uncertain of his future – until he is tantalized by The Cause and its charismatic leader…”

I disagree with this review only to the extent that I did not find the movie “striking” except to the degree that it was neither “a portrait” of anything or anybody at all, and that I did not see any coherent “journey” unfolded at all.  I suppose it is fair to say that Freddie Quell was “unsettled and uncertain of his future”—in exactly the same way that I am “unsettled and uncertain” of why Rotten Tomatoes would give this movie a 4 1/2.

All I can say is: it’s a perfect movie for a society that neither impeached nor then immediately hanged either Barack Hussein Obama OR his predecessor George W. Bush and today will vote either Obama back into the White House or replace him with the miserable dud Mitt Romney.  

If early 21st century American society had any collective intelligence or personality, none of these things would be possible.

It is such a sad day for America.  Such a sad day for the world.  Barack Hussein Obama is a Communist and he is now our “Master” and President, but the Republican alternative, Mitt Romney, is a Socialist whose election would amend or alter very little, if any, of the “change” Obama has advanced in this country—precisely because most of “Obama’s” policies are just extensions of George W. Bush’s policies.   We desperately need a new revolution in this country—I wish it could be peaceful, but whether peaceful or not, we need a new revolution in this country.   We the people, the founders and framers, the heirs and carriers of Western Civilization, need to take our country back, take our position in the world back.  We cannot afford another defeat.  It’s time to call for a new Ragnarok, a new Gotterdaemerung for the Brave New World.  If Jesus Christ cannot appear now and take back this earth for God-the-Father, it is time for a return of King Arthur, or the rise of a new Confederacy, or perhaps the rebirth of Thor or Odin, Donner or Wotan…..  I pray that Americans will have the strength to rise up and peacefully retake this country, but whether peaceful or not, we just have to rise up and wipe out all traces of this horrible status quo…..

Colonialism and Race as Transformational Issues in Barack Obama’s life and policy? Dinesh D’Souza’s movie: 2016, Obama’s America

Well, OK, I just saw Dinesh D’Souza’s “2016 Obama’s America“.   It’s an absolute “must see” before the election because it imparts vital evidence concerning our 44th President and an interpretation of his policies which everyone should consider.  

Now Dinesh D’Souza is a young man (one year younger than I am in fact, so he’s really young, just like Obama….) so he may not suffer from this problem but he kind of reminds me of some of the legendary professors I’ve heard of (but never experienced in person) who actually fall asleep during their OWN lectures…

So far as story telling goes, for narrative quality and dramatic effect, it is really fairly dismal, especially when compared with “The Big Fix“—last year’s astounding movie about the BP Oil Spill and it’s impact on New Orleans and Louisiana generally.  Dinesh is an Ivy League academic from India and he SHOULD have hired Josh & Rebecca Tickell or someone to bring life to what, honestly, SHOULD have been a very compelling story and COULD have been presented better.   

His Rebus Dictis  (these things having been said)—I highly recommend the movie for its informational content (just don’t expect to be entertained or to enjoy the experience even a little bit—if you’re tired, have a coffee or two before hand—because you NEED TO HEAR THIS STORY).

To make a long story short—Dinesh D’Souza presents Obama as the ultimate con-man and traitor, the last person ON EARTH who ever should have been President of the United States (though the narrative never actually says this in so many, or so few, words).    To use one of my old Tulane University college archaeology advisor’s favorite phrases, this movie clearly portrays Barack Hussein Obama as a Classic “Nigger in the Woodpile” The_Nigger_in_the_Woodpile.jpg 760×524 pixels.  The phrase means (according to Wikipedia, and Will*), “some fact of considerable importance that is not disclosed – something suspicious or wrong: Especially a stowaway or “sleeper agent” type spy — in short, a bunch of Greek Soldiers hidden inside, say, a wooden Horse mistaken by the apparently “Born Yesterday” Trojans as a Gift from the Gods (I have always wondered how the Trojans could possibly have been this dumb?  Had ten years of siege weakened their intelligence through malnutrition and lack of exercise?  Why didn’t anyone (besides Cassandra) ask: WHY would the Gods make such a strange gift?  The Gods gave the people sun and water and grain and cattle, which are all very useful, but what can you DO with a wooden horse that big, exactly, I wonder, that would make it an appropriate gift from the Gods as opposed to a trick by the “Wily Odysseus”).  

Anyhow, Obama entered the Presidency as a Communist Nigger in the Woodpile  OR as a Communist Trojan Horse—take your pick, but Obama became President, according to D’Souza, and I have to agree, for the SOLE purpose of destroying America’s (1) economic, (2) military, (3) political, (4) intellectual, and (5) moral strength.  This is no modest undertaking, not an inconsiderable set of goals, but look how well Obama has done in just his first term!!!!   That is the long and short of Dinesh D’Souza’s movie.  Except to point out: Obama has done so much to destroy America in ONE term, he’ll probably transform us into a lower-ranking Third World Country somewhere beneath Belize and Burkina Fasso but above Bangladesh and Haiti if elected to a second term. 

According to D’Souza, Obama WANTS to do this because he is fulfilling his father’s dream of destroying the most successful product of the White Anglo-Saxon Race and Nation of England (that most successful product being the USA) because England had intentionally (in the Obamas’ opinions, both junior and senior) conquered, colonized and underdeveloped Kenya in particular and 1/4 of the African continent in general.

Empires are majestic and romantic, but they are inevitably built on conquest and cruelty, whether we’re talking about Xerxes (“Ahasueras”), Alexander the Great, Julius Caesar and all the Roman Emperors (“Caesars”) who followed him, at least up through Marcus Aurelius but probably straight through to 1453 and the Fall of Constantinople, the Sassanian Empire, Mongol Empire, Charlemagne’s Empire, the Caliphates of Baghdad and Cordova, the Ottoman Empire, the Aztec Empire, the Inca Empire, the Spanish Empire, or the British Empire.   Charlemagne’s Empire and the British empire were possibly the “Kindest and Gentlest” of this list, but it is simply not in human nature for local groups and societies to give up their freedom and autonomy voluntarily, and so “to make an Imperial omelette, you have to break quite a few local small-to-medium size eggs, and a few really big eggs” sometimes, like the Aztec and Inca Empires being incorporated into the Spanish Empire, or the Mogul Empire being incorporated into the British.

I grew up with a very mixed up perspective on Empire.  On the one hand, everyone in my family agreed that the British Empire and the Pax Britannica were great things, but also that the British were almost congenitally stupid in their handling of their imperial possessions, starting with the USA.   It would have been so easy, and so completely reasonable, to give three million American “colonists” direct representation “across the water” in the Parliament of the United Kingdom in London.  Why, oh, WHY did the British Parliament and crown not extend ALL the rights of Englishmen to ALL the King’s subjects in North America?   And by the time they got to India, South Africa, Australia, and New Zealand, the British had (apparently) learned almost nothing from their experience in America.  TO THIS DAY I look at Canada, the most loyal of all the British Dominions, and think that Britain and Canada should share a single parliament—especially in this day and age of jet travel, telephones, faxes, and e-mail.  

The ROMAN Empire was always extending full citizenship to the conquered peoples—as was Napoleon’s “New” (if short lived) Franco-Roman Empire of 1803-1814.   Now, admittedly, the Romans did not go around extending citizenship owing to any romantic precursor philosophy ancestral or antecedent to the French “Liberté, Egalité, Fraternité“, but because, face it, mere conquest is NEVER enough for the conqueror; a real conqueror wants to keep gouging the conquered people for taxes so long as his empire endures…. and you can ONLY Tax Citizens (or in Rome, you could only tax citizens).

But Britain never learned from its mistakes and never extended any sort of rights to the colonial peoples except to self-government UNTIL THEY ABOLISHED THE EMPIRE—and then, by the British Nationality Act of 1948 they basically admitted that all their former and soon-to-be former “Colonials” were going to be British—and thus they set up the uncontrolled colonization of Britain by former colonials.  Truly, there must be a defect in our Anglo-Saxon genes when it comes to conquest and colonialism, because the British, really and truly, honestly and sincerely, never got ANYTHING right at the right time, not even once.

But anyhow, Dinesh D’Souza basically presents the hypothesis that the British conquest and colonization of Kenya was something that Barack Hussein Obama, Sr., really resented, and Barack Hussein Obama, Jr., has sought to use the Presidency of the United States to wreak vengeance on the Anglo-Saxon peoples of the world for his father’s sake.  This is kind of a “reverse Oedipus-syndrome”, I guess, where Obama is symbolically killing his mother (by killing and impoverishing “her race, her people”) for his dead and always absent Father’s sake.  Except of course, that Obama’s mother was one of those early 1950s and 1960s communist traitors herself, from a family and long line of communist traitors, who already WANTED to wipe out her own culture and civilization (and apparently divorced her second husband Lolo Soetoro because he DIDN’T).

I have no idea how real American conservatives can look at the history of Stanley Ann Dunham and the Obama family and NOT be totally in favor of abortion.  Not just wishy-washy “abortion on demand” but mandatory, Chinese-style forced abortion for any father who already has at least two children…..as Obama’s father did back home with an (unfortunately undisclosed) first wife.   In every sense Obama is the product of the Brave New World and the more I learn about h Barack’s mother the more I think Montana Judge Richard Cebull of the United States District Court for the District of Montana (born 1944) has been the victim of a real “politically correct” hatchet job….**

In any event, one of the most interesting moment’s in D’Souza’s movie is when Barack Obama’s brother, who lives in a slum dwelling in Nairobi, comments that Barack and his (own) father were both wrong: the British were GOOD for Kenya and should have stayed until Kenya was actually ready for Independence.

Any way you look at it, whether it’s a good movie or not, and as movies go, it’s really not, Dinesh D’Souza makes some really interesting points.  I’m not at all sure that his pseudo-Freudian psychoanalysis of Obama is correct, because, basically, Obama was raised by his white mother and SHE was a communist, Obama’s white GRANDPARENTS were communists, and they (the Dunham family) apparently associated primarily with black communists.  

It is beyond incredible that anyone like Barack Hussein Obama ever became President of the United States.  It is a tragedy of almost unparalleled proportions.   I personally wish we had been conquered by the Soviet Russians during the Cold War instead of betrayed by our own mind-dead, media manipulated electorate into electing this Trojan Horse for President—it would have been a MUCH more honest and sincere way to introduce communism to North America.  

*AKA E. Wyllys Andrews V, Ph.D. Tulane, born October 10, 1943, retired in 2009, son of Harvard & Carnegie Institution of Washington archaeologist E. Wyllys Andrews IV, 1916-1971)

** Cebull “reported himself for judicial misconduct” to the Ninth Circuit under extreme pressure to resign after he circulated an e-mail about Obama’s birth: “A little boy said to his mother; ‘Mommy, how come I’m black and you’re white?’ His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!‘”  I rarely endorse a vulgar joke, but I would tend to nominate Cebull to the next vacancy on the Supreme Court, myself….  I would simply add to the joke, after the word “bark”, the words “in Russian or Chinese”, because all evidence is that Obama’s mother and all of what Dinesh D’Souza calls Obama’s “founding fathers” were all the reddest of the red in the USA…. candidates for the firing squad after trial and conviction for treason, every one of them.

Forget the Imperial Presidency and refocus attention on the Subservient Congress: Did Congress Work for Five Years to Prepare the Way for Barack Obama to become President? Was it part of “W’s” Plan as well?


My thanks to a dear old friend Barbara Anne K-H for sending this over to me from Alabama in the Heart of Dixie….  I had not seen or even heard of this legislative history before.  As of Friday, February 3, 2011, Judge Malihi’s decision in Georgia came down in favor of Obama as a natural born citizen.  Well, what a shock?   I had rather hoped he would knock Obama down but I am not the least bit surprised or overly disturbed that he didn’t, because Obama’s birthplace is not the problem: Obama’s philosophy and political agenda are the problems, and should be the primary focus of defining his status as a traitor.  I and many others “on the right” waste much too much ink, toil, time, and talent on the eligibility issue, but at least I gave up and moved on rather than doggedly chasing the dead dog around the tree one more time.  I hope that other versions of Judge Malihi’s decision will soon be available, but for the moment it’s good enough to read it in this slightly fuzzy PDF by scribd: 


Focusing on birthplace eligibility is too narrow and almost silly to justify concluding that Obama is “evil” because he lied about his birthplace.  

Sidebar: I certainly wish I could lie about where I was born sometime—there’s nothing particularly glorious about having been born in Commerce, Texas (I’d have rather been born in someplace special with a really romantic name like “Waco” or “Lubbock” or “Groesbeck”, or even, just imagine it…..gasp “Fort Worth”; likewise my grandmother Helen always regretted having been born in Nachitoches out in the hinterland of French Louisiana which made her less than a full member of New Orleans society, but we all are what we are; even my grandfather, born in the beautiful Victorian city of Galveston, with its amazing beaches and incomparable sea breezes, resented not having been born in his grandfather’s homeland back in England; parents can be so inconsiderate—I often have occasion to ridicule my assistant Peyton’s birthplace being in Memphis….along with his two “triplet” brothers).  

So I stick to my guns: the whole “eligibility” debate is a major distraction and a terrible waste of patriot energies.  We who believe in the Constitution should be focusing strictly on Obama’s crimes against the people (and these are mostly economic and political crimes which his predecessors initiated, which the most extreme and staunch constitutionalists are largely ignoring because they are focusing on Obama’s status or lack thereof as a Natural Born Citizen).  The legal argument most often invoked by the Courts against eligibility cases is that “the people” have suffered no individualized or discrete injuries from any violation of the Natural Born Citizen clause occasioned by Obama’s election.  

The difference in Georgia and other states that are considering the eligibility issue right now is that PROSPECTIVE AND INJUNCTIVE RELIEF are ALWAYS available against Governmental Officials, even when actions for damages or other punitive or corrective actions are barred by doctrines of “official” or “sovereign” immunity.  If Obama has perfected anything, it’s his own self-image as a sovereign (Kind of Reminds me of the King in the big palace portrayed in the movie version of the Jungle Book, but that’s another story…)

This above-referenced you-tube video makes some excellent points of which I was not aware about legislative history and purpose, and I highly recommend it: for five years before Barack Hussein Obama’s election, various members of Congress made repeated attempts to amend the Constitution of the United States to modify the Article II eligibility requirements.

The producer’s “blurb” goes as follows:

– MINI Documentary Illegal Obama “Propped Up” By Congress! If you never watch another video, watch this one, this proves the Democrats (and some Republicans) know Obama is not an American and is serving illegally and unconstitutionally and the efforts they made are recorded in the Congressional Record, attempting to change the Constitution so he could serve legally. EVERYONE that cares about and loves this Constitutional Republic absolutely MUST watch and forward this video!!!!!! This one must go viral. I won’t be surprised when the people of this country begin calling for an Impeachment. This guy and his croonies have been intentionally deceiving the American public and his friends in Congress have been propping him up.. Where are our elected representatives all been hiding?


I strongly suggest that we forget about Article II eligibility and hereby propose that we amend the Constitution to define “Natural Born Citizenship” for all three Branches of Government (Article I Legislative, Article II Executive, and Article III Judicial—as they do in Mexico, for instance) and actually to extend the requirements for Natural born citizenship as follows: 

“Only persons born within the territory of any of the United States of America, or any of its dependent territories, whose father and mother were both born in the United States, or to two parents also born in the United States who are temporarily living abroad, may serve in any office or capacity created by or under this Constitution, whether legislative, executive, or judicial, except for officers with no law-making, enforcement, or interpretive functions whatsoever.   No person shall be qualified to serve in any capacity whatsoever created by or under this Constitution who does not affirm by oath the primacy of individual rights to life, liberty, and property, above all other human rights.”

Disqualifying all but third generation citizens from Federal Office would have eliminated Barack Hussein Obama from the Senate, which would have prevented his elevation into the Presidency.  It would eliminate both Orly Taitz and Arnold Schwartzenegger from national politics, and would have, not so tragically, prevented early International Socialists (“New Dealers”) like Felix Frankfurter from sitting on the Supreme Court.  (Felix Frankfurter not only supported the New Deal and global integration, but also opposed the expansion of civil rights by incorporation of the Bill of Rights through the Fourteenth Amendment to the States).

It is Barack Hussein Obama’s belief in other rights and powers which makes him dangerous.  There is no more certain definition of a communist than one who does not or cannot affirm that the rights of each individual to life, liberty, and property are supreme and superior to all other human rights.  This maxim must be construed to include that the rights of life, liberty, and property of the individual are superior to the rights of the society to security, the rights of any individual to any particular AMOUNT of property or wealth or income or security, the right to free assistance of any kind from the government, the right to employment, or even the rights to food and medicine.  

I suppose it sounds harsh to say that the government should not be in the business of guaranteeing the right to food and medicine to any individual, but the cost in freedom of an increased augmentation of life or property by and through submission is, or ought to be, intolerable.

There is to my mind very little doubt that George W. Bush had the appointment of an African-American successor at the top of his agenda.  Why else did he have Colin Powell and Condoleezza Rice as his successive Secretaries of State?  The Secretary of State is the most visible officer of the Executive Branch after the President.  So it is only reasonable to expect that Congress, during the entire term of George W. Bush, would likewise have been paving the road for the first African-American President who would only be elected because he totally supported and underwrote EVERYTHING that his predecessors were doing.  It is all just too much of a ritual and stage play.  The Republican parties commitment to affirmative action of “right thinking” African-Americans was clear at the very latest from the fiasco surrounding the appointment of Clarence Thomas to replace Thurgood Marshall in what can now only be called the “African American” seat on the U.S. Supreme Court.  Thomas himself paved the way for the acceptance of Obama in the sense that Thomas’ own marriage was interracial and therefore especially “Brave New Worldy” in that special “destroy real diversity by promoting homogenization” and “shake n’ bake” demographics.  

California Prisons (Brown v. Plata): Will this Result in Legal Reform or More Prison Building?

Overflowing Prison Populations Result from a Disgracefully Excessive and Oppressive “Justice” System (not a real crime wave)—the laws of the United States, but especially the People’s Republic of California, make every member of society either a real or potential criminal—releasing even 90% of these prisoners would not make society any more dangerous, while putting about 50% of the Judges and Prosecutors behind bars might be a major improvement in the quality of life generally….and restore at least part of the American Dream of Freedom to California

BROWN v PLATA:  2011 WL 1936074
Only the Westlaw citation is currently available.
Supreme Court of the United States
Edmund G. BROWN, Jr., Governor of California, et al., Appellants,
Marciano PLATA et al.

(Full Text of Monday’s Decision is attached here in adobe.pdf: Brown v Plata May 23 2011 and microsoft word:Brown v Plata May 23 2011 )

No. 09–1233.
Argued Nov. 30, 2010.Decided May 23, 2011.
*1 California’s prisons are designed to house a population just under 80,000, but at the time of the decision under review thepopulation was almost double that. The resulting conditions are the subject of two federal class actions. In Coleman v. Brown,filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to oversee remedial efforts reported 12 years later that the state of mental health care in California’s prisonswas deteriorating due to increased overcrowding. In Plata v. Brown, filed in 2001, the State conceded that deficiencies in prisonmedical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by overcrowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prisonpopulation. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. After hearing testimony and making extensive findings of fact, the court ordered California to reduce its prison population to 137.5% of design capacity within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval.
1. The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA. Pp. –––– – ––––.
(a) If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U.S. 678, 687, n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522. They must consider a range of options, including the appointment of special masters or receivers, the possibility of consent decrees, and orders limiting a prison’s population. Under the PLRA, only a three-judge court may limit a prison population. 18 U.S.C. § 3626(a)(3). Before convening such a court, a district court must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. § 3626(a)(3)(A). Once convened, the three-judge court must find by clear and convincing evidence that “crowding is the primary cause of the violation” and “no other relief will remedy [the] violation,” § 3626(a)(3)(E); and that the relief is “narrowly drawn, extends no further than necessary …, and is the least intrusive means necessary to correct the violation,” § 3626(a)(1)(A). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Ibid. Its legal determinations are reviewed de novo, but its factual findings are reviewed for clear error. Pp. –––– – ––––.
(b) The Coleman and Plata courts acted reasonably in convening a three-judge court. Pp. –––– – ––––.
*2 (1) The merits of the decision to convene are properly before this Court, which has exercised its 28 U.S.C. § 1253 jurisdiction to determine the authority of a court below, including whether a three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95, n. 12, 95 S.Ct. 289, 42 L.Ed.2d 249. Pp. –––– – ––––.
(2) Section 3626(a)(3)(A)(i)‘s previous order requirement was satisfied in Coleman by the Special Master’s 1995 appointment and in Plata by the 2002 approval of a consent decree and stipulated injunction. Both orders were intended to remedy constitutional violations and were given ample time to succeed—12 years in Coleman, and 5 years in Plata. Contrary to the State’s claim, § 3626(a)(3)(A)(ii)‘s reasonable time requirement did not require the District Courts to give more time for subsequent remedial efforts to succeed. Such a reading would in effect require courts to impose a moratorium on new remedial orders before issuing apopulation limit, which would delay an eventual remedy, prolong the courts’ involvement, and serve neither the State nor the prisoners. The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy, given the ongoing deficiencies recently reported by both the Special Master and the Receiver. Pp. –––– – ––––.
(c) The three-judge court did not err in finding that “crowding [was] the primary cause of the violation,” § 3626(a)(3)(E)(i). Pp. –––– – ––––.
(1) The trial record documents the severe impact of burgeoning demand on the provision of care. The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsanitary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. Overcrowding’s effects are particularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period. Numerous experts testified that crowding is the primary cause of the constitutional violations. Pp. –––– – ––––.
(2) Contrary to the State’s claim, the three-judge court properly admitted, cited, and considered evidence of current prisonconditions as relevant to the issues before it. Expert witnesses based their conclusions on recent observations of prisonconditions; the court admitted recent reports on prison conditions by the Receiver and Special Master; and both parties presented testimony related to current conditions. The court’s orders cutting off discovery a few months before trial and excluding evidence not pertinent to the issue whether a population limit is appropriate under the PLRA were within the court’s sound discretion. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State points to no significant evidence that it was unable to present and that would have changed the outcome here. Pp. –––– – ––––.
*3 (3) It was permissible for the three-judge court to conclude that overcrowding was the “primary,” but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require that crowding be the only cause, the PLRA would have said so. Pp. –––– – ––––.
(d) The evidence supports the three-judge court’s finding that “no other relief [would] remedy the violation,” § 3626(a)(3)(E)(ii). The State’s claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State’s ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained. The court also did not err when it concluded that, absent a populationreduction, the Receiver’s and Special Master’s continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but 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 here. Pp. –––– – ––––.
(e) The prospective relief ordered here was narrowly drawn, extended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation. Pp. –––– – ––––.
(1) The population limit does not fail narrow tailoring simply because prisoners beyond the plaintiff class will have to be released through parole or sentencing reform in order to meet the required reduction. While narrow tailoring requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends,’ ” Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388, a narrow and otherwise proper remedy for a constitutional violation is not invalid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to determine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing each institution’s need for apopulation limit. The Coleman court found a systemwide violation, and the State stipulated to systemwide relief in Plata. Assuming no constitutional violation results, some facilities may retain populations in excess of the 137.5% limit provided others fall sufficiently below it so the system as a whole remains in compliance with the order. This will afford the State flexibility to accommodate differences between institutions. The order may shape or control the State’s authority in the realm of prisonadministration, but it leaves much to the State’s discretion. The order’s limited scope is necessary to remedy a constitutional violation. The State may move the three-judge court to modify its order, but it has proposed no realistic alternative remedy at this time. Pp. –––– – ––––.
(2) The three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The PLRA’s “substantial weight” requirement does not require the court to certify that its order has no possible adverse impact on the public. Here, statistical evidence showed that prison populations had been lowered without adversely affecting public safety in someCalifornia counties, several States, and Canada. The court found that various available methods of reducing overcrowding—good time credits and diverting low-risk offenders to community programs—would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State’s population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety. Pp. –––– – ––––.
*4 2. The three-judge court’s order, subject to the State’s right to seek its modification in appropriate circumstances, must be affirmed. Pp. 41–48.
(a) To comply with the PLRA, a court must set a population limit at the highest level consistent with an efficacious remedy, and it must order the population reduction to be achieved in the shortest period of time reasonably consistent with public safety. Pp. –––– – ––––.
(b) The three-judge court’s conclusion that the prison population should be capped at 137.5% of design capacity was not clearly erroneous. The court concluded that the evidence supported a limit between the 130% limit supported by expert testimony and the Federal Bureau of Prisons and the 145% limit recommended by the State Corrections Independent Review Panel. The PLRA’s narrow tailoring requirement is satisfied so long as such equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. Pp. –––– – ––––.
(c) The three-judge court did not err in providing a 2–year deadline for relief, especially in light of the State’s failure to contest the issue at trial. The State has not asked this Court to extend the deadline, but the three-judge court has the authority, and responsibility, to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes require that court to exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not intended to cast doubt on the validity of the order’s basic premise. Pp. –––– – ––––.