Category: Prison Conditions

Today, the First District Appellate Court team representing Von Staich filed a response to the Attorney General’s petition to the California Supreme Court to review the case. Here is the brief in its entirety; my summary follows.

S265173 Von Staich PFR Answer by hadaraviram on Scribd

In essence, the argument is this: The importance of this case does not lie in some complicated, novel legal question that requires judicial review (such as in the case of contradictory decisions from lower courts): it lies in the fact that it provided a much-needed, urgent remedy for a horrific unfolding situation. The Court of Appeal’s decision was not extreme; rather, it was a measured, mild order, which leaves CDCR vast freedom to achieve population reductions at San Quentin in whatever way they see fit. The AG’s request to review the case does not offer any legal grounds to do so: they continue to argue that they did their best (without providing any expert opinion/authority supporting this claim) and that they are not bound by the findings of the AMEND team (without providing any alternative findings.)

If anything, this assertion is rather generous on the part of Von Staich’s legal team: we now know from two Inspector General reports (1, 2) that even the “commendable” measures that CDCR claimed to have taken (and was given credit for taking in the Court of Appeal decision) were not, in fact, taken in a satisfactory way.

Most importantly, the response highlights what is important about proceeding with the Court of Appeal’s remedy: the upcoming winter, which threatens a serious pandemic wave that could decimate what’s left of San Quentin unless CDCR comply with the order. More on this below.

Von Staich’s attorneys also filed a brief pertaining to the Attorney General’s request to deep-freeze the 311 San Quentin cases hanging before the Marin Superior Court. Here’s the request in its entirety; my summary follows.

Von Staich’s team argues that staying the proceedings in cases of people who are facing illness and death from a second wave is “precisely the wrong response at this time of crisis.” That the AG’s office’s reaction to the order–rather than hustling to save lives–was not only to appeal in Von Staich, but to ask for a stay in all the other cases, is emblematic of their breathtakingly obtuse approach to the crisis itself. At every juncture in these cases, the government has done the wrong thing: caused the outbreaks in the first place, failed miserably at taking any remedial steps, adopted the wrong administrative response, prioritized the wrong people to be released, went for short-term measures that cause outbreaks in jails and other facilities, and–which was notable in both cases–explicitly and repeatedly said that “there is no need to act hastily.” At the oral argument in Von Staich, Justice Kline responded to this with, “yes, there is. Yes, there is. There is a need to act hastily.” The measures he ordered CDCR to adopt are mild, flexible, and give them just enough rope to continue doing the wrong things (more on that in a future post.) I very much hope that the Supreme Court agrees with these response briefs that, in the face of a winter wave of COVID-19 and dire warnings for California as a whole, acting promptly (though, to our collective tragedy, far from preemptively) is exactly what we should do.

In the off-chance that anyone reading this still does not comprehend why, going into the winter holidays, urgent population reductions should be top priority not only at San Quentin, but in all CDCR facilities, here are some sobering facts. As of today, there are huge outbreaks in seven CDCR facilities:

CAL (171 new cases)
CEN (50 new cases)
CTF (303 new cases)
HDSP (649 new cases)
PVSP (319 new cases)
SATF (523 new cases + the prison’s first COVID-19 death)
VSP (155 new cases)

There are also new outbreaks in ten other facilities:
CCC (12 new cases)
COR (32 new cases)
LAC (6 new cases)
SOL (12 new cases)
CHCF (9 new cases)
DVI (3 new cases)
KVSP (16 new cases)
MCSP (3 new cases)
NKSP (7 new cases)
PBSP (6 new cases)

CDCR now “boasts” 2436 new cases per 100,000–ten times worse than the CA rate of 345 per 100,000 that has all of us hurtling toward the purple tier. The spikes in prison infections correlate with spikes in surrounding counties. We are all (sensibly) being asked to mask up, put our holiday travel plans on hold, and cook mini-feasts for our nuclear families. All of this effort and sacrifices are worthless if we continue to incubate this virus in prison. You and yours are far more at risk from aging, infirm people sitting in one of CDCR’s COVID-19 Petri dishes than you are at risk from them in the community (people age out of crime in their late 20s, and the folks most at risk from COVID are less at risk of reoffending than people on the outside.)

CDCR’s hemming and hawing about doing the right thing is not just callous disregard for the lives of people behind bars, but also for your life and mine.

On the heels of the AG’s petition to the Supreme Court to review Von Staich comes this brief, submitted to the Superior Court that is handling the consolidated habeas corpus petitions of more than 300 people from San Quentin. In the brief, the AG is asking the court to halt all proceedings and stay all orders until the Court of Appeal decision in Von Staich becomes final. Here’s the full thing for you (13 pages of reading); my comments follow.

Respondent's Brief Regarding Effects of Von Staich Decision (1) by hadaraviram on Scribd

In case words like “abeyance” and “remittitur” set your teeth on edge, what this means is that the AG wants the 311 pending cases to go into hibernation until the Supreme Court (1) denies review in Von Staich or (2) reviews Von Staich, issues a ruling (upholding or overturning Von Staich) and that ruling becomes final. In practical terms, we are talking about a possible delay of several months.

What will happen in the meantime? According to the AG’s brief, they are going to spend this time working with the Receiver on the COVID response strategy. This strategy will be based on transfers, not releases, and apparently the AG’s office becomes upset when reminded that their transfers are what caused this mess in the first place: “Obviously, CDCR does not intend to conduct mass transfers of the same kind that were previously unsuccessful.” Thousands of infections and 28 deaths? “Unsuccessful” would perhaps not be the word I’d pick from my thesaurus, but okay. It goes on: “[P]etitioners’ attempts to suggest prisoner transfers of any kind are not safe or effective is not well taken.” Thousands of people sick, dozens dead from a preventable outbreak on your watch that started with a transfer, but heaven forbid your fee-fees might get hurt by mentioning that CDCR doesn’t have quite the flawless track record on transferring people without infecting or killing them.

The rest of the brief is, essentially, a game of Tetris: they argue that they could easily shift people around and move them to other prisons “even (!!!!!) omitting the prisons that are currently at more than 100 percent capacity.” As in, adding people to institutions that are already overcrowded is a viable option (remember the track record?), but we’ll go the extra mile and show the court that we can achieve the desired population reduction by transferring people to facilities that are only at or near 100%.

If you don’t feel like you’re quite disgusted yet, in the last page we are told:

Arguing that [people incarcerated at San Quentin] should not be transferred because it is stressful, their family will be unable to visit, and they will be unable to participate in programs that may support their bid for parole necessarily implies that petitioners view the foregoing factors as mutually exclusive and more important than their need to be free from San Quentin’s alleged unsafe environment. Neither can be true.

Seriously, who writes this stuff? The cynicism drips from “it is stressful.” Implied is the comparison between the “stress” associated with being moved around by the people who brought you the outbreak, and consequently facing possible targeting and violence from strangers in the new facility, and whatever the author of this magnum opus considers “stressful”, like, I dunno, deciding whether to go with vinaigrette or ranch on their side salad. Same thing for families being unable to visit–a serious mental health issue not only for the prisoners, but also for their young children–which is not the same as the family “stress” involved in the government lawyer’s need to balance the time it took them to author this masterpiece with the need to help their kids with their Zoom homework.

But most importantly, the dichotomy the authors are setting up is false, because the AG only presents people with two options: stay in a dilapidated, decrepit facility and face death, or face health risks and other negative outcomes by being transferred. That the Court of Appeal didn’t order them to transfer people doesn’t mean the Court didn’t prefer this strategy. It did, and it said so explicitly at least thrice in the decision, specifying the population of aging and infirm people doing time for violent crime as the key to a successful release strategy. That the authors of this brief don’t see it is emblematic of their inability to truly “see” this population: that’s why, when they reviewed 6,000 cases for release, they only found 44 (!!!!). That to the AG representatives, through their biases and blinders, release is not a viable option, does not mean that it is not the obvious, sane solution to everyone else.

This is infuriating, beyond offensive, and breathtakingly vicious, and I’m at the edge of my seat waiting to see how the Superior Court will respond.

Today was the last day for the Attorney General’s office to petition the Supreme Court for review, and unsurprisingly, they went for it. If you want to read the entire thing, here it is, in its 30-page glory–just be sure you’re sitting first:

VON STAICH Petition for Review w Exhibit – Final by hadaraviram on Scribd

Here are some of the highlights. The petition frames the legal question as follows:

May a court hold that prison officials, facing the challenges of the emerging novel coronavirus pandemic, were deliberately indifferent to an elderly inmate’s medical needs where the evidence showed officials operated under the authority and supervision of a federal Receiver with responsibility over the prison medical system, and consistent with the Receiver’s directives and guidance, undertook a suite of reasonable measures to arrest the spread of the virus, including reducing the inmate population, but had not at the time of hearing reduced the prison’s total inmate population by 50 percent? And may a court on that basis order officials to reduce the total prison population by 50 percent?

In other words, there are two things going on here: (1) they argue that the presumably “reasonable steps” they took were sufficient, and (2) they’re dumping the blame for this on the Receiver.

Of course, the absurdity of this is twofold. First, by their own admission, the Receiver is not the only responsible party here (the petition argues that they share the responsibility with the Receiver.) I suppose they’ve finally found an opportunity to try and throw Kelso under the bus; I assume the Receivership will claim that the prison was deliberately indifferent, the prison will argue that the Receivership was deliberately indifferent–and they will both be right.

But then things get truly. bizarre when the petition moves on to describe the “reasonable actions” CDCR took:

These actions included suspending intake from county jail, canceling visitation statewide, canceling large events and prison tours, distributing fact sheets, posters, and information to the inmate population, mandatory verbal and temperature screening for all persons entering prisons, and limiting movement between prisons, among others.

This is really rich. Wow–they hung posters? Such prescience! Such diligence! Such care for human life! As to “limiting movement between prisons,” we all know that the movement they failed to limit was the actual reason for this catastrophe, so forgive me for not bursting into a standing ovation. The cancelation of visitation is nothing to brag about–they would not have had to punish people in prison and their families if they did what they were supposed to. And as to the “verbal and temperature screening,” they have some nerve continuing the web of deception they pulled before the Court of Appeal, but of course now we know this is all fiction, because of the Inspector General’s first report. Note that they at least had the sense to refrain from lying about their flawed PPE practices, for which they were skewered by the legislature just a few days ago. They also list the release programs, which were insufficient at the time and also turned out to be largely fictional–out of 6,000 cases they reviewed for suitability, they found only 44 (!!!!!).

Again, we are treated to arguments that 50% is too much without the factual evidence that they didn’t bother to provide in the Court of Appeal, including the new information that they “acted under the advice of different experts” of which they said not a peep in the previous proceedings.

The rest of this is essentially a sob story about how unexpected, surprising, and overwhelming this crisis was, which apparently means the standard for deliberate indifference drops–as if we haven’t had evidence since 1918 of how outbreaks can ravage prisons or decades-long experience examining the connection between prison population density and health outcomes in every possible court.

This would be funny, but there’s absolutely nothing to laugh about. As the AG’s office spends its time and money congratulating CDCR for their “reasonable measures”, COVID-19 is ravaging our prison system again. In the last 14 days, the system has seen a whooping 1,474 new cases. There are huge outbreaks at CVSP (222 cases), CTF (269 cases), HDSP (283 cases), and SATF (433 cases.) There are new outbreaks in SOL (9 cases), CAL (49 cases), and CEN (28 cases.) Whatever they claim they’ve done with “limiting movement” is a blatant falsehood: the total prison population is up to what it was 7 weeks ago. The new Covid cases just in the past 2 weeks make up 1.48% of the entire prison population. This is over 6 times the per-capita rate statewide. The dissonance and immorality are breathtaking.

The Supreme Court has 90 days to decide whether to take this up, so now we wait.

This afternoon, the California State Assembly held a hearing about CDCR’s management of the COVID-19 pandemic at its institutions. The tone of the hearing was largely set by the recent Inspector General report, which found serious fault with CDCR’s enforcement of proper PPE attire by staff and incarcerated people.

Assemblymember Phil Ting was polite but firm, and consistently held CDCR Secretary Kathleen Allison to answer for the problems at the various facilities. Allison was defensive throuhgout, arguing that the Department has been doing a good job overall monitoring COVID-19 prevention protocols. Ting did not seem to buy this at all, and pointed out numerous ways in which Allison could monitor compliance. He drew the obvious comparison to nursing homes, explaining that the homes were audited through surprise visits. “When I show up for inspection,” he explained, “everyone’s on their best behavior.”

When Allison insisted that there was no systemic problem at CDCR, Ting responded:

The reason we’re having the hearing is. . . far and away, institutionally, these two types of institutions [prisons and nursing homes] created a disproportionate number of COVID cases. Obviously, there’s a lot going against all the prison facilities, because of how people are housed, the crowding, etc etc., but that’s why we are so concerned. There are things out of your control, such as the physical plant, but there are things that are in your control and that’s what we’re concerned about. There were things that could have mitigated, could have reduced the situation, it was not done, and was not done in a systemic fashion. The fact that there’s enough data to show significant inconsistency between institutions shows some systematic failure, in my opinion. I asked the same of the IG, but is this under your purview or under the Receiver’s? You both signed the memorandum.

Ting got a little–but not a lot–more from a doctor working under Receiver Clark Kelso. He asked, “You have people dying in facilities in pretty high numbers. Why do you think they wouldn’t have taken that as a cue to take this seriously?” The doctor replied: “I think what we see in our system mirrors what we see in our country, people in doubt, people in confusion whether masks are helpful or harmful. As you know, this has been a topic of conversation in our political system for some time. What we’re seeing in our institutions is a reflection of the political conversation.”

Ting was having none of it: “You don’t run a hospital, you run a department where freedom was taken away. You characterized as “unclear”. I see it as crystal clear. These are all state employees – why were state employees allowed to ignore what the Governor and the Secretary ordered everyone to do?”

Emphasizing that he did not want to be misunderstood as doubting the efficacy of masks, the doctor explained that noncompliance could be attributed to the fact that they were “thick, hot, hard to breathe.” He explains that we should “extrapolate” what it was like for people on the outside to wear them for part of the day to people who “are expected to wear them 24/7, 365, because they cannot get away by themselves in a closed room with no one else. It’s a heavy lift. The overwhelming majority of patients and staff are doing a good job – they are not being perfect, they are fallible. Our physical plant is not conducive to people complying.”

Finally, the doctor admitted that the missing piece was the “disciplinary component of what we’ll do with folks who are just not willing to comply. That component is being strengthened and it will improve even more.” Ting wondered why this had not been done previously: “You work for Mr. Kelso, and he has fairly broad authority in this realm. why didn’t you use your authority to ensure everyone was wearing a mask?” The doctor insisted that wearing a mask was “not a choice” and that there was a “firm consistent message from secretary and receiver about our expectations about face coverings. I’ve personally been to 14 facilities since July and reminded staff and patients. There’s been a really clear expectation. The part that was not there was a progressive disciplinary process. I guess we hoped that people would do the right thing.”

This reply, unsurprisingly, led to a scolding by Assemblymember Cooper: “Everyone has been indoctrinated on how we do it, not just for ourselves but for other people. It’s a leadership issue, it starts at the top. Progressive discipline starts at the lower level. That should’ve been going on at the . It’s sad but it’s a failed leadership.”

The hearing then shifted to the testimony of Kim Siebel, Deputy Director of Facility Operations at CDCR, who was charged with explaining the ban on visitations and the paucity of programming. Siebel explained that they defined four opening phases, ranging from the most to the least restrictive, and that sometimes different units or yards within the same prison could be in different phases. At this point, she explained, 46% of the prison system was phase 1 and 54% phase 2, which means there’s only limited out-of-cell programming. She acknowledged that “visiting is an important part, conection with families,” and said that they were “moving onward with developing protocols.” Nevertheless, in their discussions with the California Department of Public Health, they “determined that in-person visiting is not the best solution” and they are “working on a video visiting program” as well as a dedicated email address and free phone calls through their contractors.

The paucity of programming is a big problem, because participation in programming offers incarcerated people good credits, which can hasten their release. And because of the remote location of many California prisons, only some institutions can benefit from the participation of volunteers (this is what made Quentin, despite its dilapidated condition, an attractive place for people seeking rehabilitative programming–it is widely available there, through the effort of Bay Area do-gooders and no thanks to CDCR.) Because CDCR relies so much on volunteer work, the Legislative Analyst’s Office representative pointed out that, in reintroducing programming, CDCR failed to take into account COVID rates and compliance levels in the prisons’ surrounding community. Siebel initially implied that they had taken this into account, then recanted and said that “this is something we’ll want to add.”

Ting lost patience with Siebel’s comments about “looking to expanding” programming. “I’ve been hearing this since I’ve been budget chair,” he said, “and have yet. . . When the department says they are “looking into something” it means they’re not doing it.” Siebel promised: “We can provide a list of what we’re currently doing,” which Ting noted that he appreciated. “What I’m concerned about,” he added, “is what is the Department doing to bring back the programing it already had.” Siebel promised an update “soon”, which did not satisfy Ting: “Soon is not a timeframe for me. I don’t know waht ‘soon’ means to you, so maybe we can set a date.” Unsurprisingly, what followed was an evasion dance:

“We can get you a timeline of what we’ll be looking at, but I need to check with my department and provide a timeline.”

“When can you provide me a timeline?”

“How is a week?”

“A week sounds wonderful.”

The hearing then shifted to public comments. Most of the commentators–Ivana from LSPC, Dolores Canales, Ashley, and others–commented on the havoc that the visitation ban has wreaked on the families’ mental health, particularly around the holidays. Ivana explained, “Families are used to abiding by COVID protocols at school, church, restaurants, work, court, when visiting with extended families, Why couldn’t we follow these going into CDCR?” Ashley characterized CDCR’s response to the hearing as a “livestream of lies and obfuscations. . . Why haven’t people with high risk been released? Why have they been denied parole? Why is CDCR lying about programming? Why innocent people? People in prisons and tier families know how to keep themselves safe.” Dolores Canales mentioned information she received from incarcerated women, whose cleaning supplies are being confiscated. Ashley mentioned a friend with terminal lung cancer who is, astonishingly, still incarcerated amidst all this, and who recently applied for clemency. The last commentator, whose name I didn’t catch, mentioned that prisons in both Florida and New York are now open for visits.

I found the hearing reassuring. It seemed that Assemblymembers Ting and Cooper were nobody’s fools, and they refused to be satisfied with “we’re looking into this.” We need more pressure, continuous pressure, if we want to see releases of people with chronic conditions. We cannot let In re Von Staich go to waste and people’s lives being more at risk via unnecessary transfers than they already are. To wit: There are currently four major outbreaks. CVSP has 290 new cases, CTF has 157, HDSP has 29 new cases, and SATF has a whooping 386. There are new outbreaks–small so far, but they need to be monitored: CAL (7 new cases), CEN (17 new cases), and PBSP (3 new cases).

Disturbingly, if you were hoping that some of these unsavory trends would be reversed via releases, it looks like CDCR is doing exactly the opposite. WSP has increased its population from 1869 on Oct. 4 to 2409 today (and has seen 15 new cases). The total CDCR population is up almost 100 since last week. In short: WE MUST PRESS ON.

As you see in the image above, the California Supreme Court has extended the 15-day review window for In re Von Staich to 90 days–until Feb. 17, 2021. This gives CDCR more breathing room to decide what they want to do with this decision, and has important implication as to lives inside and additional COVID-19-related legal challenges.

One of the vague aspects of Von Staich was that the Court of Appeal did not give CDCR a deadline for the 50% population reduction. These kinds of orders, especially (but not exclusively) when they are consent decrees, typically come with a period of judicial supervision and a list of benchmarks to reach. In Von Staich, the Court of Appeal left the authority to resolve disputes about the order to the Marin Superior Court, and it seems that Judge Howard is taking up that mantle in the habeas cases pending in his courtroom. Judge Howard originally set the time for a response brief to November 16, under the assumption that by then the Attorney General representative, Denise Yates, would be able to inform the court as to CDCR’s plans. This may or may not happen, though I very much doubt Judge Howard will extend the deadline for the briefs by three entire months.

There is plenty of legal uncertainty, so I don’t have clear answers to some of the obvious questions:

What happens with the Marin Superior Court Cases? As far as we know at this point, the next steps in those cases involve briefs from the lawyers representing incarcerated folks and from the Attorney General’s office. The dates for those briefs were set with the original Von Staich time in mind, and this delay might or might not alter them (though probably not by three whole months.)

What happens with Von Staich? Are they actually going to petition for review? We don’t know. It is possible that this extended timeline gives CDCR time to align forces to release people (the good scenario) or to transfer them (the bad scenario.) But even if they formally comply with the order (see more on this below) they might have another motivation to petition for review. Before long, CDCR will likely be facing multiple civil lawsuits, including for wrongful death, and the lynchpin for those would be the Eighth Amendment violation: deliberate indifference to the health and safety of people inside. The monetary risk alone (having to pay damages to incarcerated people and to family members) is likely to prompt them to try and challenge the Eighth Amendment finding, even if they comply with the remedy.

While we wait to see if CDCR petitions for review, are they still under obligation to comply with the order? This is a good question, and I’ve spoken to lawyers involved in the different lawsuits to figure out an answer. I was under the impression that CDCR has to ask the Supreme Court for a stay pending review, without which they’d have to work on the petition and on the remedy simultaneously. But people who know more about this stuff are telling me that the Von Staich opinion is not binding until the petition for review is denied or until the timeline for review expires.

Finally, here are a few things to watch out for. Given yesterday’s OIG review, it looks like CDCR deceived the Court of Appeal into thinking that, except for population reduction, they did take “commendable” steps to prevent contagion. It turns out that is not the case: CDCR was astonishingly lax in enforcing proper use of PPE inside its facilities. For more on this, see here. In addition, it’s worth pointing out that there are new outbreaks, including several serious ones, in other facilities (SATF comes to mind – close to 200 cases overnight with only 25% of the population tested) and it is therefore crucial to pay attention not only to where people are being transferred from, but also to where they are being transferred to.

A third thing to watch out for is CDCR activity in San Quentin that could put them formally in the court’s good graces but in fact exacerbates the health risks–for example, erecting more tents outside and keeping people in them in close proximity, while the inside of the facility itself appears to be in compliance with social distancing protocols. These are things to document carefully, as they will have bearing on any further litigation on this issue, whether before the Marin Superior Court or before the California Supreme Court.