Thelton’s Orders

On the eve of his retirement, the federal judge who reshaped the state’s prison system and the Oakland Police Department speaks on his role in the civil rights movement and the future of justice in the Trump era.


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CC Simon Carrasco

The Oakland Police Department had been making reform progress until last year’s sex abuse scandal.

In 1990, Henderson was assigned a case that alleged that conditions at Pelican Bay State Prison—a super-maximum security facility that had opened a year prior—were inhumane. Henderson personally toured Pelican Bay for two days before a 10-week trial in 1993 that featured testimony from 57 witnesses, including prisoners and correctional officers as well as experts in medicine, psychology, and prison management.

In his 1995 opinion on the case, Henderson wrote, “dry words on paper can not adequately capture the senseless suffering and sometimes wretched misery that defendants’ unconstitutional practices leave in their wake.”

He found there was a “conspicuous pattern of excessive force,” citing numerous examples: Guards had gassed, Tased, and beaten a man unconscious after he refused to return his food tray; they bathed a mentally ill inmate in scalding water; and they caged prisoners in phone-booth-sized outdoor cells in cold rainy weather or punished them further by hog-tying them.

While Henderson was reluctant at the time to make the federal courts an instrument of prison reform, he found the conditions intolerable and ordered reforms that would continue for the next 16 years.

A far larger case challenging the adequacy of medical care in the state’s entire prison system reached his courtroom in 2001. While the state conceded there were deficiencies in medical care, as the years went by, Henderson saw little progress.

When he placed the state’s prison system under court receivership in 2005, his 53-page order meticulously documented the deficiencies. He wrote that care was so poor it “often sinks below gross negligence to outright cruelty.”

One prisoner went two to three weeks with fever and chills and requested care, was eventually diagnosed with endocarditis (an inflammation of the heart lining), but didn’t receive appropriate medication and died. Another patient complaining of shortness of breath was swollen all over, had high blood pressure, and an elevated heart rate, but a medical provider sent him back to his housing unit saying he “just needed sleep” shortly before he collapsed and died. Between August 2003 and August 2004, court-appointed experts reviewed 193 prisoner deaths and found 32 of them were probably preventable.

In the course of his research, Henderson visited nearly all of the 33 prisons in the state, finding the inmates to be mostly minorities crowded into deplorable conditions. Incarceration in California exploded in the 1980s and ’90s during the height of tough-on-crime laws. When Henderson took the bench in 1980, there were only 30,000 prisoners. Twenty years later, the population had swelled to 185,000. “That’s an astonishing increase,” he said.

Eventually, he, along with federal Judges Stephen Reinhardt and Lawrence Karlton, formed a special three-judge court to examine the California prison issue, consolidating Henderson’s case with another case involving mental health care. They found that substantial overcrowding was responsible for the continued deficiencies. When their order to reduce the prison population to 137.5 percent of its design capacity was heard by the U.S. Supreme Court in 2011, California’s prison population was nearly double its capacity of just under 80,000 and had been for at least 11 years.

Donald Specter, executive director of the Prison Law Office, which originally brought the two cases, credited Henderson’s passion for research and fact-finding for why few of the judge’s decisions have been appealed over the years, including his order placing the entire prison system into receivership.

“These orders ran to hundreds of pages long sometimes, they were exhaustive, they were detailed, the explanations and the factual basis for the orders were extremely compelling, and I think that’s one of the reasons the state never appealed,” Specter said. “He’s an incredibly thoughtful, careful jurist, but at the same time, he has the ability to issue bold and sometimes unprecedented rulings when the factual circumstances present themselves.”

After a whistleblower exposed a group of Oakland police officers called the “Riders” who were routinely beating minority residents and planting drugs on them as a pretext for arrest, OPD fired four of the officers, and prosecutors filed criminal charges against them in 2000. A federal lawsuit brought by 119 West Oakland residents against the city and the police department landed on Henderson’s desk the next year.

The case led to Henderson approving a settlement in 2003 awarding the plaintiffs $10.5 million and requiring extensive reforms. The reforms were only supposed to take a few years, but they have dragged on. Henderson nearly put the department under receivership in 2012, when progress had not only stopped but the department had regressed in some areas.

In 2013, a few months after Henderson gave the court compliance director the power to fire the police chief, Chief Howard Jordan suddenly stepped down citing health issues. After some initial confusion over who would step in, Sean Whent was named interim chief.

But Whent was ousted last year as news of the sexual exploitation scandal became public. Court-appointed investigators found that he “sent an unmistakable signal that this case was not a priority,” reportedly at one point calling the investigation “bullshit.”

Henderson was a supporter of Whent’s, saying he was sorry to see him go. “I liked Sean Whent; he had that job because he was brave enough as the head of internal affairs to insist on accountability. They were making great progress and then the wheels fell off with the sex scandal. That set them way, way back,” he said.

Chanin, who originally brought the case along with Oakland attorney John Burris, said, “I really wish that we could’ve resolved this case during [Henderson’s] tenure. I certainly think that a lot of the progress we did make can be attributed to his guiding hand, his perseverance through many years, and his strong leadership in his judicial capacity.”

Henderson said that when reforming institutions like the Oakland Police Department or the prison system, enforcement is a constant challenge. “Institutions don’t like a federal judge to come in and tell them what to do. They resist it. And that’s why these things go slowly. They do it grudgingly,” he said. Lacking the ability to hold individual police officers in contempt, Henderson’s approach is changing the system slowly through new training.

“We now have a police force that the vast majority of the policemen now have only known the rules set up after the Riders case,” he said. “We’re trying to change the culture and sometimes that’s the only way you can do it is slow progress."

Photo by D. Ross Cameron

As Henderson enters retirement, civil rights are in a precarious position. Donald Trump ran on a platform stoking fear about immigrants and criminals, making wildly false claims about the state of public safety in the nation’s cities. While the fight to maintain civil rights under this president has already begun, Henderson sees it as a strictly temporary one.

“I won’t let myself believe that Trump is going to be in office beyond four years, and the way it’s going, it well may not even be four years,” Henderson said. “And it will be a fight to hold onto what we have during that time and then return to what I think is normalcy. I think by no means is this a normal president.”

Since Trump’s election, cases have started rolling into the courts challenging some of Trump’s more extreme policies, with civil rights advocates already winning some important victories. But other judges will have to hear those cases. Henderson will be taking long car trips to see the views along the California coast with his wife and his little white dog, Missy. 


This report appears in the August edition of our sister publication, The East Bay Monthly.

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