Category: Covid -19

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.

On August 17, the Office of the Inspector General issued a report severely criticizing CDCR for its lax gatekeeping and symptom-checking practices. Today sees the publication of a new report, which addresses CDCR’s astonishingly lax PPE protocols.

Here’s a longish excerpt from the executive summary. I wanted to abbreviate, but decided it was best to let it speak for itself:

Beginning in March 2020, in an attempt to mitigate the spread of COVID-19 among its staff and incarcerated population, the department issued multiple statewide memoranda establishing its expectations and requirements regarding PPE, face coverings, and physical distancing. In April, to ensure its staff and incarcerated population had access to face coverings, the department purchased and distributed cloth face coverings manufactured by the California Prison Industry Authority and required that staff and incarcerated persons wear them in the prisons at almost all times. Although the department has since revised some of its directives, requirements governing the use of PPE, face coverings, and physical distancing remain in force as of October 2020

Despite nationwide shortages early in the COVID-19 pandemic, we found that the department was generally able to maintain supplies of PPE for its staff. Early in the pandemic, the department activated an operations center, which the department tasked with coordinating its efforts to respond to the COVID-19 pandemic. The operations center played a key role in evaluating and redirecting prisons’ PPE inventory as necessary. Our observations and interviews with staff at five sampled prisons suggest the department’s efforts in obtaining and distributing adequate supplies of PPE to its prisons were mostly successful. During our visits to those five prisons, we reviewed the prisons’ PPE inventories and spoke to various staff throughout the prisons, including those in the prisons’ health care clinics. During our visits, we generally observed staff in health care areas wearing appropriate PPE, and staff members we interviewed consistently stated that they had access to appropriate PPE, with just a few exceptions during the pandemic.

In addition, since April 2, the department has purchased more than 752,000 cloth face coverings produced by the California Prison Industry Authority, and by April 9 had delivered more than half of those face coverings to prisons for use by staff and incarcerated persons. The department generally appeared to be successful in distributing the face coverings to staff and incarcerated persons. During multiple routine monitoring visits, our staff rarely observed departmental staff or incarcerated persons who did not clearly possess face coverings.

However, although the department distributed face coverings to its staff and incarcerated population, and the department issued memoranda communicating face covering and physical distancing requirements, we found that staff and incarcerated persons frequently failed to follow those requirements. As part of our customary monitoring activities that occurred between May 19, 2020, and July 29, 2020, our staff frequently reported observing departmental staff failing to comply with face covering guidelines during our staff’s multiple visits to 23 of the department’s 35 prisons. For example, during a visit to one prison, the Inspector General and Chief Deputy Inspector General observed multiple prison executives improperly wearing face coverings during a meeting that also included the prison’s warden, who did not attempt to correct the noncompliance.

Our observations were also supported by the departmental staff we surveyed at several prisons. To obtain prison employees’ perspectives, we surveyed all staff at seven prisons—more than 12,000 staff members. Of the departmental staff who responded to our survey, 31 percent reported they had observed staff or incarcerated persons failing to properly wear face coverings. Regarding physical distancing, 38 percent of the staff who responded to the survey stated they had observed staff or incarcerated persons not complying with physical distancing requirements.

The frequent noncompliance by staff and incarcerated persons was likely caused at least in part by the department’s supervisors’ and managers’ lax enforcement of the requirements. Despite the department’s then-Secretary’s statements during a legislative hearing on July 1, 2020, asserting that the department was enforcing its face covering requirements, and despite a memorandum the department issued on the same day, stating that it was vital for staff to adhere to face covering directives, we found that the department’s enforcement efforts have been very limited. In fact, based on records provided to us by five sampled prisons, prison supervisors and managers had taken just 29 actions—over a period spanning seven months—for noncompliance with the department’s face covering or physical distancing requirements.

One of the five prisons, California Institution for Men, provided no documentation of any disciplinary actions, and another of the five prisons, San Quentin State Prison, provided documentation of just one action. We found that almost all the actions that supervisors and managers took were instances of verbal counseling or written counseling, the lowest levels of the progressive discipline process. We also found that supervisors’ and managers’ failure to enforce COVID-19 requirements was not limited to the five prisons. Our staff reviewed every formal request for investigation and punitive action for the entire department since February 1, 2020, and we found that hiring authorities statewide only requested formal investigations or punitive actions for misconduct related to face covering or physical distancing requirements for seven of the department’s more than 63,000 staff members. We find that number surprisingly low, given the prevalence of noncompliance observed by our staff and by the departmental staff we surveyed.

In addition to inadequately enforcing its face covering requirements, the department perplexingly loosened those requirements at the same time it reported increasing numbers of cases of COVID-19 among both its staff and incarcerated population. Despite the increasing cases of COVID-19 in its prisons, the department sent memoranda on June 11 and June 24 relaxing face covering requirements for staff and incarcerated persons, respectively. The updated requirements allowed staff and incarcerated persons to remove their face coverings when they were outside and were at least six feet away from other individuals. Considering the volatile nature of a prison environment, the potential increased difficulty in enforcing the updated requirements, and the possibility that the virus could be spread even when people maintained a distance of six feet from others, the department’s relaxed requirements appeared to unnecessarily increase the risk of COVID-19’s spread among the staff and incarcerated population.

As of October 7, 2020, the department has reported the deaths of 69 incarcerated persons and 10 staff members due to COVID-19. Considering the risk that individuals without symptoms can spread COVID-19, and considering increasing evidence from the scientific community that face coverings are effective in slowing the spread of COVID-19, it is essential that the department’s staff and incarcerated population consistently wear face coverings whenever there is a chance they may come into close contact with other individuals. However, unless departmental management clearly communicates consistent face covering guidelines that are enforceable, and effectively ensures that its managers and supervisors consistently take disciplinary action when they observe noncompliance, the department will continue to undermine its ability to enforce basic safety protocols such as wearing face coverings and practicing physical distancing, thereby increasing the risk of additional, preventable infections of COVID-19 among its staff and incarcerated population.

After last week’s demonstrations of bad faith, I thought nothing could astonish me further. But what’s amazing about all this is that, throughout our litigation efforts in Marin County and in Von Staich, CDCR argued with a straight face that population reduction was unnecessary because they did such a good job distributing PPE and keeping protocols–and were then praised in the decision for doing so! Justice Kline wrote:

Respondents’ contention that the measures they have taken constitute a reasonable response to the risk posed by COVID-19 misconstrues the petition. Petitioner and the scientists he relies upon do not say the measures respondents took to combat the outbreak of COVID-19 at San Quentin are unreasonable in and of themselves, but only because they are unaccompanied by a dramatic reduction of the prison population, which is a sine qua non of any reasonable remedial effort. The target of the petition is not what respondents have done but what they refuse to do. None of the commendable steps respondents have taken to contain the spread of COVID-19 will be effectual, petitioner and his experts maintain, unless considerable room is made for inmates to physically distance themselves from one another effectively because, in the absence of a vaccine, physical distancing is now by far the most effective way of limiting transmission of COVID-19.

Except, as we now find out, the steps they boasted about taking, which the Court was misled into thinking were actually taken, were far from commendable! And in fact, could be “unreasonable in and of themselves.” You could bring a brand new deliberate indifferent lawsuit just on the basis of the OIG findings, without even getting into their resistance to reduce the population.

Just as one example of the rampant bad faith, here’s an image I screencaptured from the OIG report. It depicts a staff meeting at CSP-LAC which took place on June 3, a few days after catastrophe struck at San Quentin–and a whole month after CSP-LAC itself saw a serious outbreak.

Unsurprisingly, after the infection was already thought to have abated at CSP-LAC, there was a second outbreak.

It is especially unconscionable for me to read about the reluctance of prison administration to enforce mask wearing via punitive means–not because I think punitive means actually help (I’ve written plenty about why they are counterproductive) but because they have such a voracious appetite for handing out complaints, 115s, and 128s, at every occasion. When I worked on Yesterday’s Monsters, and when I read Kitty Calavita and Valerie Jenness’ book Appealing to Justice, I was dumbfounded by some of the silly minutiae that people got write-ups for (and then had to explain away, decades later, at their parole hearings.) It is astounding that a system that has an appetite for writing people up for having a quarter (yes, $0.25) in their pockets on a plastic spoon (miswritten as a knife) is so shy about penalizing its own staff (and the prison population itself) for not wearing masks.

All this is making me realize how right Peter Chin-Hong was when he said, at our June 9 press conference, that “prisons are incompatible with public health.” He’s now in good company: the American Public Health Association has issued a declaration that indicts the entire system for its contribution to social ills. As regular readers know, I’m not a great fan of sweeping slogans, but strip the declaration of all the tiresome jargon and you get to the bottom of the issue: it is outrageous to subject people to a system that makes all of us worse off, even at the lowest rungs of Maslow’s Hierarchy of Needs.

***

I also have a loosely-related coda: Twitter is awash with festivities over Governor Newsom’s amicus brief in McDaniel, in which he argues that ““California’s capital punishment scheme is now, and always has been, infected by racism.” If that is so, I call on Governor Newsom to account for the fact that more than twice as many people have died of COVID-19 at San Quentin during his moratorium than were executed in the entire state of California since the reinstatement of the death penalty in 1978. The number of death row COVID casualties equaled the number of pre-moratorium executions as early as June 29. If the death penalty is such a disgrace to the Governor–and I agree, it is indeed–why are people still dying on death row, in larger numbers, and why are we still paying for it? The key to this problem is obvious, it’s in the Governor’s hands, and it has nothing to do with amicus briefs. All of these sentences, as well as LWOP sentences, could be commuted today.

Yesterday’s Court of Appeal order in In re Von Staich has reverberated in the media: SF Chronicle, more SF Chronicle, ABC7, KTVU, CBS5.

Today, the ramifications of Von Staich started seeping into other legal proceedings on behalf of incarcerated people. Evidentiary hearings were scheduled for this coming Friday in the Marin Superior Court consolidated cases pending before Judge Howard. But the Von Staich opinion upended this, because the Court of Appeal found that the question of deliberate indifference was a matter of law and could be determined on the basis of the evidence submitted by the Von Staich team.

At today’s case management conference, Judge Howard vacated the evidentiary hearing, now rendered moot by the appellate decision, and scheduled expedited briefing for the habeas petitioners and for CDCR. Unsurprisingly, the Attorney General representative said that they were not going to know (read: reveal) what their strategy is until they run out of days to appeal Von Staich, so the judge took that into account when scheduling the briefs, saying, “”we would all like to know what CDCR wants to do, but we can’t come to a screeching halt until you make your decision.”

Other issues emerged that revealed the underlying tensions between the Von Staich decision and where petitioners and respondents, respectively, ultimately want to be. For one thing, some (but not all) of the petitioners in the Marin cases belong to the group that the Court of Appeal singled out in its decision–60-year-olds who have been incarcerated for 25 years or more. For another, the last thing petitioners want (and the last thing any of us needs) is for CDCR to transfer people. In light of this, Petitioners’ lawyers asked that their clients not be transferred; CDCR, predictably, objected, and Judge Howard explained that he could not order such a thing without knowing the particulars of each person, nor would such an order be in the spirit of Von Staich, which explicitly gave CDCR the option to transfer people to solve the problem.

This is not merely a procedural issue: Petitioners’ lawyers are worried about the tragedies that could result from CDCR opting to solve the problem they have by playing Tetris with human lives. There are at least three reasons why this would be a horrible idea. First, which should be obvious by now, the San Quentin catastrophe is itself the result of a botched transfer, so CDCR can hardly marvel at being mistrusted with transfers given their track record. Second, moving people between facilities might be an immediate solution for CDCR as they face judicial wrath about their indifference and ineptitude, but it merely postpones (and likely hinders) a solution for the statewide COVID problem pending in the federal case. Keep in mind that, in addition to the Quentin mess, Plata v. Newsom addresses numerous serious outbreaks in other facilities, including reinfections, hospitalizations, and deaths. And third, the careful balance CDCR has been trying to strike (falling far short of a 50% reduction mark) has been achieved largely through a temporary halt on transfers from jails, but the jails are now bursting at the seams and experiencing their own serious outbreaks. In other words, something’s gotta give if this pattern of obfuscation and cosmetics continues.

Another astounding moment came toward the end of the conference, when the lawyers asked the judge to allow them to continue speaking with their clients on the phone. Even after everything we’ve seen from the AG and CDCR in the last few months, I was still stunned to hear the AG representative demanding that the judge limit the phone hours to ten (the judge settled on 15.) Whenever I wonder what’s driving this behavior, which so often crosses the line from obfuscation and petulance into bad faith territory, I remind myself that we haven’t even begun seeing the litigation consequences of the San Quentin disaster, and that inevitably, CDCR will be facing an enormous civil suit, which they will likely lose. This could mean considerable monetary damages in addition to the injunctions we’re seeing now and could explain a lot.

As I think about the next steps, I realize how similar this situation is (on a particular institutional scale) to what we saw on a statewide scale in Plata between 2009 and 2011. Jerry Brown, then the Attorney General, fought the decision tooth and nail all the way to the Supreme Court. But as Governor (elected in 2010), he addressed it in a more sensible manner, coming up with a release strategy. This is the time for Governor Newsom to step in, be the responsible adult that he is, and expand his expedited release plan to include the category of people that the Court of Appeal singled out: people aged 60 and older, incarcerated for 25 years or longer. Swift executive action along sane, reasonable lines could reduce the temperature of this whole thing far below the boiling point and save lives that might be lost or irreparably harmed if we wait for briefs, oral arguments, and bickering about transfers. Governor Newsom is the one who stepped into the fray in 2004 when our friends and neighbors needed to get married, and is also the one who moved forward to dismantle the death chamber. He needs to put on his battle gear and do the right thing for all of us once more.

Now that we’ve had a couple of hours to digest the good news about the population reduction order from In re Von Staich, it’s time to start thinking about next steps. What happens now at San Quentin, in other prisons and jails, and in the courts? Here are some of my initial thoughts on the topic–feel free to share yours.

How can CDCR and Quentin comply with the order? The order is not dissimilar from the Brown v. Plata order: it requires a population reduction, but doesn’t bind the prison to a particular way of achieving it. They could do any number of things. The best case scenario is one in which they heed the Court of Appeal’s strong recommendation to expedite the release of everyone who is over 60 and has done 25 years or more, but I’m not holding my breath. They could also transfer people into other prisons, keeping the aging old-timers inside, in which case they’ll still be in compliance with Von Staich – they’ll be giving the folks inside more room for social distancing. How they can accomplish this without touching the very people they needed to release first but won’t (folks who are sick and have aged out of crime) is largely a numbers game. These folks are about 30% of the prison population, and without even touching this category, it’s dubious that they’ll be in compliance with the order.

Is CDCR going to appeal? What will they argue? Of course they’re going to appeal. Is there any doubt? This process has been saturated in bad faith and obstinacy, and that animus is likely to continue. On appeal, they will likely argue that the decision not to hold evidentiary hearings (as they are holding in the Marin cases and in Plata) was hasty and unfounded, and that their mishandling of the crisis does not rise to “deliberate indifference.” It’s going to be pretty difficult for them to argue that the remedy is excessively burdensome given how much latitude they were given. They only have 15 days to pull together an appeal, so we’ll find out pretty soon. Whether or not CDCR will get a stay from the Supreme Court is another interesting question. If they don’t, they’ll have to work simultaneously on their appeal and on their population reduction strategy. This scenario closely resembles what happened in the late 2000s, when Plata was making its way from the federal panel to the Supreme Court: The Attorney General (then Jerry Brown) fought tooth and nail against the order, while at the same time considering the legislative “fix” that became the Public Safety Realignment (AB 109.)

What does this mean for jail transfers into San Quentin? The opinion itself says that, so far, much of the population reduction that CDCR boasts was achieved via a temporary halt of transfers. This has had the unfortunate effect of exacerbating COVID-19 in overcrowded jails; the horrific outbreaks, isolations, quarantining, and misleading information about Santa Rita is a case in point. This is not a good long-term solution, obviously, but whether or not they will use this as their population reduction mechanism depends on how pressured they are to find a more general solution to COVID in the entire system.

What does this mean for other prisons? I have similar thoughts on this. The decision explicitly says that, if CDCR officials feel that they can’t appropriately guarantee public safety via releases (they can, but okay) they can resort to transfers. The problem–which the decision also flags–is that this whole catastrophe started with a transfer in the first place. Can CDCR be trusted to transfer people out to prisons with no or low COVID numbers in a safe manner–that is, by testing and isolating them? And can they be trusted to cooperate with health officials in the surrounding/bordering counties to guarantee that there’s no corresponding spike in the new country? Their record has been abysmal, but that’s not to say they won’t try.

How is this going to impact Plata v. Newsom? The short answer: it’s not. The litigation in Plata addresses the entire system and is all-encompassing. The long answer is that it’s complicated. The factual findings in Plata might change based on whatever transpires in the aftermath of Von Staich. If CDCR chooses to respond to Von Staich with transfers, and these cause further outbreaks, the scope of litigation in Plata, and the remedy, will change accordingly.

How is this going to impact the Marin Consolidated Cases? This is a far more interesting question, because the Marin cases are scheduled for an evidentiary hearing on October 26. One of the fierce battles in Von Staich was over the need for an evidentiary hearing: the AG representative implored the court to “not act hastily” and to find out facts; Justice Kline replied, “yes we do, yes we do, we do need to act hastily.” In the opinion, he wrote that CDCR denied all the allegations made by petitioners, but made no effort to counter them with evidence of their own. One possibility, based on this opinion, is that the attorneys for the Marin petitioners will argue that Von Staich, decided by a higher court, now governs the case, and that instead there needs to be a focus on how CDCR implements the remedy. If the AG representatives argue that they want the hearing nonetheless, that puts them in conflict with Von Staich, even though there’s no formal estoppel (different petitioners.) It’s going to be interesting, for sure.

What should we do next? Well, we need to sit tight and watch what CDCR/the AG’s office does. In the meantime, it is imperative to do the following:

1. Reach out to CDCR with concrete, sane, practical proposals for a 50% population reduction, such as the ones that Jason Fagone lists in this Chron article.
2. Put enormous pressure on Gov. Newsom to modify his inadequate release plan in line with Justice Kline’s recommendations.
3. Embark on a huge education campaign about the catastrophic risks of transfers, such as the ones that brought about the calamity at Quentin in the first place.