During the past several months, the California Department of Corrections and Rehabilitation ("CDCR") has received a great deal of media attention because of overcrowding. The department has implemented triple bunking, filled gymnasiums and day rooms with beds, and all of this was done with much publicity, initiated by the CDCR's public relations staff, under the guise of an "emergency" situation.

In 2000, the Department of Mental Health ("DMH"), also operating with overcrowded facilities, announced plans to construct a new facility at Coalinga, California, to house 1500 "patients" who they expected to become civilly committed under the Sexually Violent Predator Act ("SVPA").

In 2001, a general fund expenditure of $350,000,000 was authorized by the Legislature and approved by then Governor Gray Davis, even though the state was in the midst of a huge budget deficit fiasco. This was for construction only, and did not include start-up or ancillary services funding.

In order to gain construction approval for the new Coalinga "Hospital," both the CDCR and DMH entered into an agreement with the City of Coalinga to fund many local infrastructure improvements, promise local citizens an opportunity for employment at the new facility, and most importantly, agreed to have the perimeter patrolled by armed CDCR guards, and surrounded by gun towers manned by armed CDCR guards.

In late 2004, the new "Hospital" was approximately 80% completed. However, the DMH experienced great difficulty hiring professional staff to work at the new facility, this largely due to the remoteness of the location and their inability to pay sufficient salary to lure professionals to the Coalinga area, particularly when those same professionals could earn more money in the more desirable areas to live in the state.

A great many problems at that time, but largely the state budget crunch, caused the legislature to hesitate in providing the DMH with the necessary funding required for start-up costs and ancillary services costs, along with an annual operating budget.

For some time the CDCR had also been lobbying the Legislature, continually, for new prison construction funding, but was been largely unsuccessful in gaining the approval of major new construction funding, again mainly due, at first, to the ongoing state fiscal crunch, then later due to the negative public reaction to additional prison construction.

With the defeat of the November, 2004, state ballot initiative that attempted to change California's Three Strike Laws, a measure that the prison guards union spent a great deal of money in opposing, the hoped for by many release of nonviolent third strike offenders did not occur, much the same as the parole system reforms promised following the scathing Little Hoover Commission Report of 2003 largely did not occur. These and other factors contributed to the recent acute overcrowding problem.

There then appeared to be a serious move by the CDCR to carry out what in corporate jargon would be labeled a "hostile takeover" of the new DMH facility at Coalinga.

Both Departments were experiencing major overcrowding problems. The CDCR came under federal court receivership, and orders, to provide adequate mental health services to mentally disturbed inmates, and the Department believed it could make better use of the new Coalinga facility than the DMH, and provide the required services at a taxpayer expense of far less than the $150,000 plus per patient per year spent by the DMH.

Today the CDCR desires to take over the Coalinga facility and move 1500 prisoners there to relieve overcrowding, and, at the same time, to also meet the federal court demands for provision of treatment to mentally disordered offender prisoners. The CDCR believes they can house these mentally disordered individuals, who are presently being housed in prisons or at ASH under penal statutes, without violating their rights, and also fulfill the agreement with the City of Coalinga.

It appears the CDCR was, at one time, arguing that the perimeter gun coverage agreement with the City of Coalinga would preclude the DMH from housing the non penal civilly committed patients in that facility without infringing upon their civil rights, and that to do so would invite numerous lawsuits at great expense to the taxpayers. The problem being, to have the gun coverage required by the local agreement would essentially turn the facility into a penal colony, and the U.S. Supreme Court has held numerous times that those civilly committed may not be housed under penal conditions of confinement, and that they may not be punished at all.

To complicate matters for both Departments, evidently, sometime in 2004, the three wings of the Vacaville State Prison, which were being operated as a joint venture licensed psychiatric facility failed the accreditation inspection, thus losing its license. The prisoners needing mental health treatment who were house at Vacaville were then moved elsewhere, with many being sent to ASH.

In the mean time, the DMH was not giving up its new Coalinga facility without a fight. The ASH facility was being packed with "patients," many of whom were simply prisoners with a new label, and this was done in order to create what appeared as an emergency overcrowding situation of its own. The DMH then applied to the Department of Health Services ("DHS"), Licensing and Certification, for an exemption from the normal licensing requirements concerning things such as the amount of space required per bed, the number of sinks, toilets, etc., and other requirements such as staffing levels and services.

The DHS Licensing Inspectors began inspecting the ASH facility in late November or early December of 2004, and apparently, the aging facility did not impress the inspectors. Although the DMH was allowed an exemption to expand and further overcrowd ASH, this situation also showed an overwhelming need for the DMH to occupy the new Coalinga facility. This greatly improved the DMH's position to prevent a hostile takeover by the CDCR.

During all of this the aging ASH facility came into the radar of the United States Department of Justice ("DOJ"), Civil Rights Division, following numerous complaints lodged by patients, their families, and civil rights watchdog groups. For some time, and with much ado in the press, the DMH denied the federal inspectors access to the ASH facility. Then, just prior to the actual arrival of inspectors by a couple of months, in September of 2005, the DMH was able to begin moving patients from ASH to the new Coalinga facility. The occupation was implemented very slowly as the DMH scoured the country for staff willing to relocate to Coalinga.

During the summer of 2006, the first CDC prisoners were moved to the Coalinga Hospital. One Unit was opened with housing approximately 49 CDC prisoners, however it is being operated by the DMH. The CDCR did not take over at this time. Instead, these prisoners are being housed at Coalinga as a result of a contract between the DMH and the CDCR, a contract entered into prior to when the DMH discovered it could not adequately staff the Coalinga facility due to its undesirable location. A contract the DMH only honored following a court order obtained by the CDCR.

In August or September of 2006, the DOJ issued a scathing report on ASH. The Report had nothing nice to say about ASH, and essentially put the DMH on notice. The DOJ and the DMH are presently negotiating a consent agreement regarding changes to be made by the DMH.

During September of 2006, several Legislators and Legislative Aids toured the Coalinga facility. The alleged purpose of their visit was to decide how to best utilize the unoccupied area of the hospital. Most of this legislative investigation was oriented toward figuring out how to move CDCR prisoners into the empty beds at the Coalinga Hospital. There are many infrastructure problems with placing prisoners in a hospital that need to be addressed.

What will happen next is unknown at this time. A question does jump out: How will the CDCR find the needed professional staff when the DMH was unable to attract them to the Coalinga area?