Bob Egelko | April 13, 2020
While much of the nation shelters in place, hoping to stem the spread of the coronavirus, prison inmates find themselves in an especially vulnerable position, often living in overcrowded conditions that could put them at added risk of contracting and spreading the disease.
In response, state and local officials are releasing thousands of inmates classified as low risk, to protect their health and reduce the likelihood of a full-blown outbreak in prisons and county jails. Inmate advocates say they’re not doing nearly enough.
The life-or-death decisions — who gets out, what constitutes overcrowding, and what do the law and the U.S. Constitution require for conditions of confinement — are in the hands of federal judges. A key arbiter is a three-judge panel that has overseen medical care in California prisons for many years, and ordered a major reduction in the prison population more than a decade ago to address another health crisis.
In California, state prison officials have ordered the release of about 3,500 inmates with less than 60 days remaining on their sentences, and say the population will drop by another 3,000 because of Gov. Gavin Newsom’s 30-day freeze on transferring newly sentenced inmates from county jails to state prisons. As of Monday, the state prison system had reported 55 cases of coronavirus among its 110,570 inmates and 77 among prison staff.
The state and inmate advocates are facing off in Bay Area federal courts on the adequacy of those measures, and the crucial question of how much deference judges, and the public, should give to state officials.
California has taken “far more steps to address the COVID-19 pandemic than any other state,” said Attorney General Xavier Becerra’s office, representing the Department of Corrections and Rehabilitation, in its latest court filing. “The state should be given the opportunity to address these important issues without judicial interference.”
Lawyers for the prisoners countered that conditions in California’s 35 prisons were a disaster waiting to happen. More than one-third of the state’s inmates live in packed dormitories — one of them, in a men’s prison in Sacramento, with 129 bunks as close as 26 inches from each other, the lawyers said in court filings.
They also said more than 45,000 prisoners, 37% of the population, have been classified by a court-appointed overseer of prison health care as being “at risk” of such illnesses because of their age or medical frailty. And they said fewer than 0.4% of the state’s inmates, or 4 in every 1,000, have been tested for the virus.
The prison system’s “woeful response to the pandemic … has made conditions far worse,” attorneys from an inmate legal advocacy group, Prison Law Office, said in filings this week with federal judges in Sacramento and Oakland. “If the state does not significantly reduce the crowding, COVID-19 will rapidly spread through the California prisons, placing the people who live and work inside them at substantial risk of injury and death, in addition to endangering the community.”
But state lawyers said it was a judgment call for experienced prison officials and staff, not the courts.
“When officials respond reasonably to a risk of harm, there is no (constitutional) violation even if the harm is not completely averted,” Becerra’s attorneys said. They cited a 1994 Supreme Court ruling that held the government responsible for harm to inmates only if the evidence showed officials had been “deliberately indifferent” to the known danger.
“Six feet of physical distancing is not required under the Constitution,” the state lawyers said. They said the prisons were acting rationally by canceling group events and in-person classes; keeping inmates in their own “households,” or housing areas, rather than letting them contact inmates housed elsewhere; converting gymnasiums and other unused buildings into housing, and carefully reviewing categories of prisoners who can be released safely.
The judges are reviewing the cases after a three-judge panel, which has the sole authority to order prison releases, refused to do so on April 4 and said the inmates must first present their arguments to the individual judges presiding over the long-running suits on prison medical care. Inmates first filed the suits 30 years ago and won rulings from the three-judge panel in 2009, and the Supreme Court in 2011, requiring California to reduce its prison population by 30,000 to enable improvements in a woeful prison health care system.
Those releases did not lead to a noticeable rise in crime, Prison Law Office attorneys said in their latest filings, despite dire predictions by prison officials and law enforcement groups — the same warnings now issued by opponents of major reductions in prison population.
Meanwhile, lawmakers and inmate advocates are urging prison and immigration officials nationwide to avoid outbreaks by releasing prisoners. Sens. Dianne Feinstein, D-Calif., and Cory Booker, D-N.J., have introduced legislation that would provide $1 billion in each of the next two years for state and local efforts to release low-risk inmates and people held for technical probation or parole violations, and for medical testing and treatment of inmates.
“Correctional facilities have already started to become COVID-19 hot-spots,” Feinstein said in a statement. House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., has introduced a similar bill.
On Thursday, more than 100 health and civil rights advocacy groups sent a letter to the Centers for Disease Control and Prevention urging it to use its official guidance to prisons and jails nationwide to call for substantial reductions in inmate population, including prompt release of “elderly or medically vulnerable people” or anyone due to be freed within 18 months.
Federal judges in California have ordered U.S. Immigration and Customs Enforcement in the last week to release 10 inmates to in-home custody during their deportation cases because they suffer from medical conditions that could cause severe illness or death from the coronavirus.
With neither inmates nor staff wearing masks or other protective equipment, detainees “cannot meaningfully follow the advice the country’s health officials … have repeatedly given” to avoid infection while in ICE custody, U.S. District Judge Maxine Chesney said Wednesday in ordering the release of four men held in Yuba and Kern counties.
Locally, advocates are urging Alameda County officials to immediately reduce the population and halt new admissions to Santa Rita Jail in Dublin, where 12 inmates have tested positive for the virus and other results are pending.
The jail has reduced its population from 2,597 at the start of March to 1,979, but dozens of prisoner and civil rights groups said Thursday that Santa Rita remains overcrowded, the staff withholds cleaning supplies, and many more inmates should be tested. And county Public Defender Brendon Woods urged the Sheriff’s Office to release 115 Santa Rita inmates who have no more than six months remaining on their sentences.
Other Bay Area counties have also freed hundreds of inmates. In San Francisco, for example, the jail population has plunged from 1,109 on March 1 to 735 as of Friday, the Sheriff’s Office said. San Mateo County said its inmate population had dropped from 969 to 658, and it plans to release 100 more inmates in the next few days. Sonoma County jails, which usually hold between 1,050 and 1,100 inmates, now have 718, while Napa County’s jail population has fallen from 272 to 171. And in Marin County, the population has dropped by more than 50%, from 307 in early March to 144 on Friday.
Some former prisoners are calling for governors to use their powers of clemency to reduce the prison population during a time of crisis. One is Barbara Chavez, convicted in 1999 of taking part, at age 22, in the murder of a liquor store employee in Kern County by a robber whom she drove to the site. Sentenced to life without parole, under the state’s now-repealed felony-murder law, she was made eligible for parole in 2018 by Gov. Jerry Brown, who cited her rehabilitation and prison staff commendations. The parole board then approved her release.
“Women’s prisons are full of people like me … warehousing people who have so much to share,” Chavez, now an advocate for victims of domestic violence, said Wednesday during a telephonic town hall by prisoner advocates. “They are scared for their lives. … Please grant more clemency now.”Bob Egelko is a San Francisco Chronicle staff writer. Email: email@example.com Twitter: @BobEgelko