[Pnews] California Court of Appeal Orders 50% Population Reduction at San Quentin

Prisoner News ppnews at freedomarchives.org
Tue Oct 20 18:59:57 EDT 2020



Hadar Aviram - October 20, 2020

I am thrilled to provide this update: We won _In re Von Staich_, the 
_habeas corpus_ case challenging CDCR's mishandling of the COVID-19 
crisis at San Quentin. Justice Kline wrote: "We agree that 
respondents-the Warden and CDCR-have acted with deliberate indifference 
and relief is warranted." Here is an analysis of the opinion.

Justice Kline begins by stating the magnitude of the San Quentin 
catastrophe. Even against the horrific history of disease and contagion 
in prisons-including three separate spikes of the Spanish Flu in 
1918-the San Quentin COVID-19 outbreak is "the worst epidemiological 
disaster in California correctional history." He then highlights the 
physicians' urgent memo [2] (published after they visited San Quentin, 
at the Receiver's invitation) recommending a 50% reduction of the prison 
population. CDCR's response fell far short of this: between March and 
August 2020 they achieved a mere 23% reduction, "accomplished, in part, 
by suspending intake at San Quentin from county jails, which has 
increased the presence of COVID-19 in those local facilities, and is not 
likely sustainable."

Justice Kline then rejects the evasive maneuvers employed by the AG's 
office, who tried to play jurisdictional hide-and-seek by claiming that 
the San Quentin litigation effort was somehow "duplicative" of the 
federal case _Plata v. Newsom [3]_. First, the court wrote, San Quentin 
is a particular, antiquated prison with specific problems, which are not 
the focus of the federal litigation. Second, these habeas cases are 
designed to ask for temporary relief, rather than the more systematic 
remedies sought in Plata. Third, state courts are not limited and bound 
by the PLRA, as federal courts are. And fourth, which I found inspiring, 
state courts have the duty and competence to vindicate rights under the 
California Constitution (which, just like the U.S. Constitution, forbids 
cruel and unusual punishment-albeit worded slightly differently.)

The court also rejected the AG's office's delay tactics, asking that the 
case be moved back to the Superior Court and/or that an evidentiary 
hearing be held. As Justice Kline explains, the AG's declarations that 
the doctors have it wrong and that a 50% reduction is unnecessary were 
"conclusions the Attorney General has failed to support with any factual 
allegations contradicting petitioner's allegations," which were based on 
scientists' and physicians' declarations-even with testimony from their 
own prison physicians. Under these circumstances, "the issue before us 
is simply whether respondents' disregard of the experts' conclusion that 
a 50 percent population reduction is essential constitutes the 
'deliberate indifference' necessary to sustain petitioner's 
constitutional claim. The issue is one of law, not fact."

Was CDCR's response to the risk of infection-of which they concede they 
were subjectively aware-adequate? They established a central command; 
installed a tent structure; repurposed the chapel and a furniture 
factory to care for COVID-19 patients; provided PPE to the population 
and staff; and released 947 people. At the hearing, the AG 
representatives claimed that the reduction in case numbers at San 
Quentin was thanks to these efforts.

The Court of Appeal vehemently disagreed. Relying on the analysis of 
experts, the Court agreed with us that the reduction in cases was not 
because, but despite, CDCR's behavior. The decision quotes Dr. Beyrer: 
"Had San Quentin done nothing, the rates of infection there would have 
been roughly the same." And, while the steps the prison took to 
alleviate the risk were commendable, they were insufficient without the 
population reduction, which they refused to do.

The next bit is especially interesting. The AG boasted that they managed 
to bring the prison population down to a bit more than 100%. Of course, 
as Justice Kline writes, in a facility such as San Quentin, full 
occupancy cannot allow for the social distancing needed to fight the 
pandemic. He quotes extensively from AMEND's urgent memo, which detailed 
conditions in specific areas of the prison, notably North Block and West 
Block, showing that the combination of crowding and high-risk people was 
unsustainable. What interests me most about this is the extent to which 
the AG's office and CDCR have become habituated to the toxic perspective 
according to which having their prisons 100% is a desirable end, rather 
than an unhealthy point of departure. We've had bloated prisons bursting 
at the seams for so long that we seem to think that a full prison at 
"only" 100% is fine.

The opinion then hits the nail on the head: as I explained elsewhere 
[4], the release plans are specifically designed to exclude people 
serving time for "a violent crime as defined by law" when such people 
are approximately 30% of the prison population. The AG argued that this 
is reasonable policy, because they, as opposed to the physicians who 
authored the memo, have to take into account public safety. To that, the 
Court has two replies. First, the prison authorities may resolve the 
Quentin problem not just through releases, but through transfers (though 
the court does mention that a botched transfer is what started this 
catastrophe in the first place. Second, and more importantly, even from 
a public safety perspective, lifers are the most obvious target 
population for release: they don't pose public safety risks because 
they've aged out of crime, and they themselves face a heightened risk 
for COVID-19. Justice Kline writes: "Exclusion of lifers and other older 
prisoners who have committed violent offenses and served lengthy prison 
terms is also difficult to defend, given their low risk for future 
violence and high risk of infection and serious illness from the virus."

Justice Kline spends several pages citing robust legal, sociological, 
and medical materials to show the folly of excluding lifers and strikers 
from release programs. He refers not only to steps taken by the CA 
legislature, but to the robust literature on life-course criminology, 
which constantly finds age a significant factor in desistance. Despite 
their authority to order the release of aging people who committed 
violent crimes, and statistics about prison demographics that they 
themselves provide, the AG's insistence on mostly ignoring this category 
of obvious release candidates "render[s] it doubtful whether a 50 
percent reduction in San Quentin's population could soon take place."

This behavior by prison authorities satisfies the "deliberate 
indifference" standard; they conceded they knew the risk, and they are 
recklessly failing to take the necessary steps physicians recommended, 
while not providing any factual justification. The continued use of 
spaces in which people sleep in close proximity "is not merely 
negligent, it is reckless"-and "the recklessness is aggravated by 
respondents' refusal to consider the expedited release, or transfer, of 
prisoners who are serving time for violent offenses but who have aged 
out of a propensity for violence."

As to petitioner, Ivan Von Staich, the Court has ordered his immediate 
release from San Quentin. Von Staich was recommended for parole on 
October 16, but the Governor can weigh his case for four months, and in 
the meantime he must be released or transferred to a different facility. 
In addition, the Court agreed that the habeas corpus process allows them 
to extend relief to similarly situated people. However, the Court opines 
that "it would be inappropriate to order the release of prisoners we 
considerd vulnerable even if we thought we had the power to do so in 
this proceeding." The Court raises three concerns in this respect: one, 
that medical vulnerability is a question of "scientific facts, not law"; 
two, that they are unsure whether they can extend relief to people who 
did not file a habeas petition; and three, that the appropriate social 
distancing via releases/transfers can be created not only by 
transferring vulnerable prisoners out of San Quentin, but also by 
releasing other people in sufficient numbers to allow for social 
distancing or the remaining prisoners.

"Nevertheless," writes Justice Kline, "we are not without means to 
expedite the release or transfer from San Quentin of more inmates than 
are now deemed eligible for release." These means are provided by 
Section 1484 of the California Penal Code, which allows the Court such 
course of action. The Court cites numerous California cases that 
involved injunctive relief through Habeas. By this authority, the Court 
orders CDCR to bring the CDCR population down to 50%-"no more than 1,775 
inmates." The Court leaves the manner of doing so in the hands of CDCR, 
though Justice Kline does offer, as possibilities, "expanding 
eligibility for the two expedited release programs currently limited to 
inmates not serving sentences for violent offenses to inmates like 
Petitioner, who are over age 60 and completed minimum terms of at least 
25 years." Note that, despite the Court's conciliatory words that CDCR 
is free to achieve the population reduction in whichever way they like, 
the decision discusses at length the fact that ignoring aging people 
serving long sentences for violent crimes is what stands in the way of 
achieving the desired reduction. The order specifically mentions the 
criteria above (over the age of 60 with 25 years incarceration) and also 
makes reference to the need to speed up the Elderly Parole Program.

Because of the need to act rapidly to save lives, the decision becomes 
final in 15 days, and the Court refers the parties to the Marin Superior 
Court for future disputes.

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