The comments came during a trial focused on overcrowding in the state's 33 adult prisons, which inmates' attorneys say is so severe that it leads to medical neglect and malfeasance.
A special three-judge panel clearly signaled its willingness to restrict the number of inmates in California prisons. But the judges abruptly decided not to make a formal ruling this week that crowding is so severe that it leads to unconstitutional conditions.
Instead, the judges said they will continue hearing testimony and issue a single ruling later that could include ordering the state to free tens of thousands of inmates.
U.S. District Judge Lawrence Karlton said releasing thousands of inmates before their sentences are up may be the only option unless lawmakers change their minds and approve a construction program.
"Something's better than nothing if you're desperate," he said.
Witnesses representing county district attorneys and probation officers testified that freeing tens of thousands of inmates early would overwhelm county probation and rehabilitation services.
State lawmakers have refused to support the $8 billion plan to build new medical facilities, which was proposed by the court-appointed receiver who oversees inmate medical care. It calls for improving medical and mental health treatment by building space for 10,000 inmates.
Lawmakers say the state can't afford it and already has made money available for prison construction.
Karlton said releasing inmates may be the only choice at a time when there is "enormous uncertainty" about whether the medical centers will ever be built. He noted that space is so limited that some mentally ill inmates receive counseling inside prison bathrooms.
"You could take the office space out of the toilet," Karlton said during Tuesday's hearing in U.S. District Court. "This is so serious - there's nothing funny about it - but it's bizarre."
A second judge on the panel, Appellate Judge Stephen Reinhardt of Los Angeles, also said he thinks trial testimony so far has shown that California's prison system lacks adequate treatment space for its 156,300 inmates. The system was designed to hold fewer than 100,000.
The hearing consolidates several court cases filed on behalf of inmates. Overcrowding is just one symptom of dysfunction within the state's correctional system, which has had many of its operations placed under the authority of federal courts in recent years.
Karlton said the three judges are trying to strike a balance - not seeking to interfere with the state's sovereignty while correcting conditions so poor they violate inmates' constitutional rights.
Reinhardt said the judges could set a limit for the prison population without directly ordering that inmates be released.
"The purposes of a cap would give the state the choice on how to get there," Reinhardt said.
Witnesses testifying for the Schwarzenegger administration and for local law enforcement officials opposed the idea of a limit or an early release order.
While prisons are "terribly overcrowded," the state is making improvements, said Robin Dezember, the state Department of Corrections and Rehabilitation's chief deputy secretary for health care.
He said easing crowding alone would not improve treatment for seriously mentally ill inmates.