Fault Lines
21 April 2017

Ed Whelan Gets Everything Wrong About Keith Boyer’s Killing (UPDATE)

February 20, 2017 (Fault Lines) – On Monday, Michael Mejia shot Officer Keith Boyer as Boyer responded to an accident report. On Thursday, Ed Whelan wrote an article blaming “liberal judicial activism” for Officer Boyer’s death. Every single point Ed Whelan made is wrong. Some of his points are objectively, provably, wrong. Others are wrong in the sense that only someone totally or willfully ignorant of the law and background of the case could come to his conclusions.

Whelan’s argument goes like this: Mejia was on parole at the time he shot officer Boyer. The only reason he was on the streets was because in a case called Brown v. Plata, the activist hippies of the Supreme Court twisted the law like a balloon animal to uphold a 9th Circuit injunction. The Supreme Court had to get activist because the injunction itself was an exercise in judicial overreach. The Supreme Court got it wrong and thus, by the transitive property, killed Officer Boyer. This is not an exaggeration of Whelan’s position:

Is it unfair of me to also lay blame for his death on Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan and Judges Reinhardt, Karlton, and Henderson? I certainly don’t think so.

Yes, it is unfair, because every link in Whelan’s chain of effect is wrong, starting with why the 9th Circuit was forced to order the release of prisoners.

California didn’t wake up one sunny, West Coast morning in 2009 to find that the 9th Circuit had thrown open the prison gates. Their troubles began all the way back in 1990 with a case called Coleman, which alleged that California was understaffing its prison mental healthcare facilities. That case ended with a federal court finding that California prisons lacked “basic, essentially common sense, components of a minimally adequate prison mental health care delivery system.”

So the court found a problem, fixed it and everyone went home? Not a chance. The 9th Circuit’s opinion explains that despite early progress, by 2006, the system remained broken and was actually getting worse. California, notably, did not contest findings.

Plata entered this toxic stew in 2001 with that allegation that it was not merely mental health but the whole prison healthcare system that was unconstitutional. Rather than fight the claim in court, California sued for peace and negotiated a settlement. Five years later, however, California proved “incapable or unwilling,” in the court’s words, of providing the necessary care, and it appointed a receiver to run California’s prison medical system. By 2007, the receiver made it clear that California’s prisons were so overcrowded, his job was likely to be impossible.

It wasn’t only those mean federal courts saying this. Two years before the 9th Circuit dropped the hammer, California’s independent oversight agency noted that “state prisons are packed beyond capacity” and further that “bare facts have earned California’s Department of Corrections and Rehabilitation an ignoble distinction for systemic failure.” The California prison system’s own expert panel agreed prisons were too overcrowded to deliver effective services. In short, everyone with a pen and a pulse had come to the same conclusion long before the 9th Circuit’s injunction arrived.

Everyone except the California legislature. California wanted to have its cake and eat it: all the popularity of “get tough on crime” without any of the taxes needed to adequately cage their 170,000 prisoners. The end result was that a prison system built for 100,000 housed almost twice that amount, and California had no plans to build more prisons to change that ratio.

All of this matters because it explains the 2009 9th Circuit ruling, which folded together Plata and Coleman. The case turned on federal statute 18 U.S.C. § 3626, which states that a court will not order a prisoner’s release unless they have given the defendant time to comply with previous orders, and less intrusive measures had failed.

California had close to eight years to remedy the issues identified in Plata, and two decades to fix Coleman. In that time, the courts tried everything from negotiated settlements to seizing the whole damn medical system. At a hearing, California proposed a few sadly inadequate workarounds, but even if they had created a miracle plan, why would anyone believe that an agency with years of failure and no money is going to pull it together now?

If Ed Whelan wants to blame anyone for the first failure, blame the California legislature, which cravenly sat by as the 9th Circuit and their own experts warned them again and again that the prisons were in crisis.

This same dynamic played out in the Supreme Court in 2011. 18 U.S.C. § 3626 is essentially a judicial fact-finding fight: can the plaintiff marshal evidence to prove a rights violation that lesser measures have not fixed? California gave its advocates nothing to work with.

Alito was reduced to question-begging about whether this or that policy might work, which is a woefully inadequate strategy when your opponent has compiled a two-decade factual record about what does and does not work. Scalia got huffy about counting that same record as a “factual finding.” Neither, however, could muster a cogent argument that California was not systemically screwing its prisoners.

The best they could say was that the order would harm public safety. This might be true, but since close to one inmate a week was committing suicide in California’s prisons at one point, the majority might well be able to make the case that these prisons were killing more Californians than they were saving.

So again, if Whelan wants to blame someone, blame the California legislature. If they had been less stingy and incompetent in the two decades from Coleman to the Supreme Court, the dissenters might have had the evidence to peel off a vote. Instead, they got a factual record tailor-made to flunk the §3626 test.

The kicker is that none of this actually matters, because it now appears Mejia wasn’t released due to the injunction or the laws California passed in response. So even if all nine justices had reversed the injunction and Alito had dropkicked Plata’s lawyer in a fit of righteous rage, Mejia would have been out at the exact same time.

Whelan noted this in the most tentative manner possible. About an hour after the initial post, he modified the article so that rather than stating that judicial activism killed Officer Boyer, he merely asked if judicial activism killed Officer Boyer. He’s just asking questions (and using rhetorical strategy so transparently vapid that it got its own South Park episode.)

Even cursory research would have revealed how weak Whelan’s theory was. California’s first response to the injunction, AB 109 or “realignment,” shifted people from state prisons and parole to county prisons and parole. California had full state prisons and empty country prisons so they moved bodies around. What AB 109 did not do was shorten sentences.

Whelan only mentions AB 109 as the culprit, but someone generously inclined might suggest that he meant Propositions 47 or 57, two other culprits law enforcement is blaming for this murder. Prop 47 shortens sentences for certain crimes, none of which are the grand theft auto charge Mejia was on probation for. Prop 57 was passed in November 2016, so it wasn’t in effect when Mejia was released in April. Twenty minutes of Googling is all it would have taken to figure that out.

Officer Boyer’s death is heartbreaking, but to lay his death at the foot of the courts is grotesque. Michael Mejia shot Officer Boyer. None of the reforms California put into place due to the Plata injunction had the slightest thing to do with this. Even if it had, the fault would still lie with Mejia – and, at one step removed, with the California legislature which forced the courts’ hands after nearly two decades of cowardly mismanagement and incompetence.

As a lawyer, Ed Whelan owes his readers an accurate accounting of the law, not ghoulish misrepresentation at a time of tragedy.

UPDATE: Following this post, in an act of integrity and responsibility that’s become increasingly rare in today’s media, Ed Whelan retracted his piece. While this post took a dim view of Whelan’s original argument, it stands to his credit that he was willing to reassess his views when presented with contrary evidence.

3 Comments on this post.

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  • Russ Davis
    28 February 2017 at 7:58 am - Reply

    Whelan was generally right overall and Bieler’s notions are devious, lawless, nitpicking clearly failing to make a case except to other devious, lawless nitpickers. Some of us still believe in the rule of law of the Constitution of limited government of one nation under God, not the rule of jokes like the lawless notions of courts legislatures & Bieler.

    • Chris Seaton
      28 February 2017 at 8:28 am - Reply

      Whelan was so “generally right” that when Sam pointed out his “nitpicking” he was generous and responsible enough of a journalist to retract his NRO post.

      And the law is about “nitpicking.” “Devious” and “lawlessness” doesn’t come into the equation.

      Your asinine run-on sentence will be ignored. Have a nice day!

  • Debate: Playing the Hand You’re Dealt in Prison Reform
    2 March 2017 at 10:48 am - Reply

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