Prison Takeover Threat Called Real

SAN FRANCISCO —  U.S. District Judge Thelton E. Henderson, who warned Gov. Arnold Schwarzenegger earlier this week that he might put the Department of Corrections under a receiver, does not make empty threats, lawyers who know him said Wednesday.

“If I were the state, I would take his warning very seriously,” said Mark Rosenbaum, a lawyer with the American Civil Liberties Union of Southern California. “He doesn’t cry wolf.”

Schwarzenegger will discover he has “met his match” in Henderson, said UC Berkeley law professor emeritus Stephen Barnett.

“The governor will find that Judge Henderson cannot be terminated,” Barnett said. “He is cast in the traditional mold of the fearless federal judge.”

Henderson also has been accused of taking his judicial authority too far. Shortly after voters approved Proposition 209 in 1996, which outlawed affirmative action in government, Henderson struck it down as unconstitutional.

At the time, legal scholars predicted, correctly, that higher courts would uphold the measure.

Then-Gov. Pete Wilson called Henderson’s action “an affront” to voters, and an assemblyman labeled the judge a “wacko.” Some legal experts believe the decision to overturn the ballot measure cost Henderson a promotion to the U.S. 9th Circuit Court of Appeals.

UC Berkeley law professor John Yoo described Henderson as being on the left side of the ideological division in the law.

“I don’t agree with him on everything, but I think he is a very smart judge,” Yoo said. “He certainly has deeply held views and is a judge who follows through to make sure that his decisions are executed.”

The suggestion that he might appoint a receiver to take over day-to-day administration of the prison system “is quite extreme,” Yoo said. “I don’t know if [it] is justified or not.”

The threat of a possible judicial takeover of the $6-billion prison system came in a letter Henderson sent to the governor complaining of what he called the administration’s “noncompliance” with court orders intended to reform the prisons. He also asked for a meeting with Schwarzenegger.

University of Santa Clara law professor Gerald Uelmen said it was unusual for a federal judge to be “dickering directly” with a governor, and added that the letter may invite accusations that Henderson is an activist judge.

Henderson, 70, was born in Louisiana, but grew up in South Los Angeles, the only child of a maid and a maintenance worker.

He went to UC Berkeley on a football scholarship, but a knee injury forced him to scrap his dreams of becoming a professional athlete.

After serving two years in the Army, Henderson attended Berkeley’s Boalt Hall School of Law. In 1962, he became the first black lawyer hired by the U.S. Justice Department’s civil rights division to work in the Deep South.

During that period, a white police officer in Alabama stopped him for a traffic infraction, roughed him up and called him a racial epithet before learning that he was a government employee.

After leaving the government, Henderson ran a legal aid office for the poor and later served as an assistant dean at Stanford University Law School. He also was a board member of the ACLU.

In 1980, President Carter appointed him to the federal bench in San Francisco, where prosecutors and criminal defense lawyers rate him highly.

As a federal judge, Henderson has lifetime tenure. He is now a senior judge, partially retired but available to hear new cases and to continue to preside over past cases.

“There are three things you need to know about Henderson,” said Cristina Arguedas, a criminal defense lawyer who frequently represents clients in federal court.

“He will be immune to the governor’s legendary Hollywood celebrity charm. He cares a lot about the state of the prison system -- he has been working on it for more than a decade. And he is an expert on the subject.”

Prison oversight by federal judges is not uncommon, but experts said it was rare, possibly unprecedented, for a federal judge to appoint a receiver to run a statewide system. Henderson, however, probably would be willing to do it, lawyers said.

“He is a very careful judge,” said Rosenbaum, who argued against Proposition 209 before Henderson. “He wouldn’t do it on a whim. I think he would make certain that the factual record supported it.”

Rosenbaum called Henderson “a judge for the disenfranchised, in terms of ensuring their rights are respected.”

California Supreme Court Justice Kathryn Mickle Werdegar, who attended Boalt with Henderson, agreed with the assessment that he would never make a threat he wasn’t prepared to carry out.

Although as a judge she cannot comment on the prison case, she said Henderson “does his job as he sees It.”

“He is a very warm, affable, conscientious person,” Werdegar said.

Henderson was thrust into the controversy over the prison system when he presided over a civil rights lawsuit against Pelican Bay State Prison. Henderson ruled in 1995 that the prison had violated the rights of inmates because of brutality by guards and poor healthcare.

He appointed a special master to make sure reforms were made, but that master has issued reports complaining that the powerful prison guards union has prevented wrongdoers from being punished.

Berkeley law professor Franklin Zimring questioned whether Henderson was on solid legal ground extending his authority over the Pelican Bay case to the entire state correctional system.

“One gets the feeling that Judge Henderson is miffed,” Zimring said.

*

Times staff writer Jenifer Warren contributed to this report.