Read on Twitter
Happening now: arguments in motion b/f 3 judge panel for immediate need for population reduction and accelerated release for the elderly and vulnerable
Don Specter at Prison Law Office opens with argument of "pattern of deliberate indifference" by CDCR -- they have not moved rapidly to address this.
This time the risk to people is greater and risk to public safety is less.
This time the risk to people is greater and risk to public safety is less.
"The level of overcrowding in our prisons is literally a matter of life and death."
Judge Mueller asks, "should there be a new population % target based on physical distancing target?"
Yes.
Yes.
Judge Wardlow: Isn't in a fact that CDCR is in compliance from original order from 3 judge panel and affirmed by USSC?
Yes, but it could be changed based on changed circumstances. Specter says COVID 19 are changed circumstances
Yes, but it could be changed based on changed circumstances. Specter says COVID 19 are changed circumstances
Tigar: if case is not a modification of original order, is there any way we could conclude that this we can act under PRLA? -- shouldn't we have to give defendants a chance to comply?
If this is not a modification, can we do anything?
If this is not a modification, can we do anything?
Sara Norman from PLO: "It is our position that it is this court's order that has failed to bring CDCR into compliance with minimally-constitutional standards."
This 3 judge court determined that it was "best to wait and re-assess" when D's reduce to 137%
This 3 judge court determined that it was "best to wait and re-assess" when D's reduce to 137%
Norman: the original order is presently insufficient.
Tigar: but if for some reason we can't categorize this as a modification, can we grant relief?
Tigar: but if for some reason we can't categorize this as a modification, can we grant relief?
Tigar: given that the Plaintiffs have conceded that they don't know how many to release to achieve 6ft distancing how can we do this?
Norman: there is not a definite # b/c of exigencies, but we do know how defendants can get there -- go and measure in the dorms
Norman: there is not a definite # b/c of exigencies, but we do know how defendants can get there -- go and measure in the dorms
Norman: they can come up with that # very quickly if they measure in the dorms and assure 6ft between everyone.
It's very difficult to determine what the number is, but defendants can do it quickly.
It's very difficult to determine what the number is, but defendants can do it quickly.
Norman: as to public safety question -- look at Declaration of Mr. Austin and Mr. Hoffman. They demonstrate that there are very large groups of population that can be safely released.
Over 5000 over 65 yrs. They are high risk for COVID-19 and VERY low risk for recidivism
Over 5000 over 65 yrs. They are high risk for COVID-19 and VERY low risk for recidivism
Judge Mueller: is the focus, Ms. Norman, not a focus statewide but institution by institution?
Norman: 1/3 of the prisons are impacted. It's systemic and based on a few hundred tests, so no real knowledge of extent.
Norman: 1/3 of the prisons are impacted. It's systemic and based on a few hundred tests, so no real knowledge of extent.
Tigar: does the 8th Amendment require 6 ft. distancing in the US prison system?
Norman: The 8th Amendment requires "medically adequate" measures. In the present circumstances, it does require such distancing, in line with what every public health expert is saying.
Norman: The 8th Amendment requires "medically adequate" measures. In the present circumstances, it does require such distancing, in line with what every public health expert is saying.
Norman: Every health care expert presented by both sides say that the population MUST come down for 2 reasons.
1) for social distancing for individuals
2) for the benefit of California's health care system -- for all of us
1) for social distancing for individuals
2) for the benefit of California's health care system -- for all of us
Norman goes through with a list of experts who are in agreement -- including doctors, dept. of corrections heads, even defendants themselves.
State of CA guidelines doesn't say "social distancing except for people incarcerated"
State of CA guidelines doesn't say "social distancing except for people incarcerated"
Norman talks about stats on dorms -- over-capacity. Two person cells. "It's a portrait of drastic overcrowding."
Physical distancing is necessary b/c we don't know who has the virus. Almost 6000 people in CA prisons are over 65 and also uncontested, have a very low recidivism
45,000 people in CA prisons have at least one significant risk factor for death from COVID 19
45,000 people in CA prisons have at least one significant risk factor for death from COVID 19
Norman: also, this virus will spread out into surrounding communities.
Overcrowding is the cause.
Overcrowding is the cause.
Norman: goes through defendant's 3500 release and transfers. Welcome steps but hardly make a dent in the problem. No relief for the elderly. Leading to despair inside.
Norman: Defendants never say that it would increase crime if they released people; never say that it's beyond their capability to provide release plans for everyone. Never say they can't do this, or that it would harm CA. Just that it's hard
Norman: Means are available. But Defendants won't act without this court forcing them to.
Tigar: quotes from Justice Kennedy in Brown v. Plata. Question to Norman: I understand that Plaintiffs haven't had time. Are you saying that it's a defendants burden to demonstrate that there's a risk to public safety individually?
Norman: Defendants can get a number based on social distancing in the dorms.
Re public safety -- the court has before it that it would be safe to reduce
Re public safety -- the court has before it that it would be safe to reduce
Tigar: can this judge order Defendants to release everyone 65 and over?
Norman: yes. If the court ordered Defendants to release everyone over 65 who has a place to go, they could go.
Norman: yes. If the court ordered Defendants to release everyone over 65 who has a place to go, they could go.
Mueller: are you suggesting a multi-step process for this court?
Norman: I'm proposing exactly such a process. The court is required by brown and PRLA
Defendants should come up w/ a number of people in dorm who can be safely housed.
Norman: I'm proposing exactly such a process. The court is required by brown and PRLA
Defendants should come up w/ a number of people in dorm who can be safely housed.
Norman: then receiver come up with a list of medically vulnerable and the elderly and their corresponding rank on risk assessment.
Mueller: what's the time frame? What is your current request as to release of people over 65 and plan.
Mueller: what's the time frame? What is your current request as to release of people over 65 and plan.
Norman: Defendants should release this plan by Monday.
Wardlow: one thing I have is Judge Henderson's ruling in Valley Fever case.
Wardlow: one thing I have is Judge Henderson's ruling in Valley Fever case.
Shouldn't you have gone to Judge Tigar and asking for less intrusive measures first?
Norman: we believe that some releases are necessary and in fact the state believes it's necessary as Mr. Diaz testified. We just know it's not enough.
Norman: we believe that some releases are necessary and in fact the state believes it's necessary as Mr. Diaz testified. We just know it's not enough.
Norman: given the exigencies, we believed that there was no need to go first b/f Judge Tigar.
We believe that defendants have in their power under governor's EO.
If the state of CA can find housing for people coming off of cruise ships, they can do this here.
We believe that defendants have in their power under governor's EO.
If the state of CA can find housing for people coming off of cruise ships, they can do this here.
Norman: summary. It's w/in the court's power to close the gap between what Defendants have shown they are willing to do and what they must do.
Now for Defendants.
Mello: we appreciate the emergency of this. It's unprecedented.
Mello: we appreciate the emergency of this. It's unprecedented.
Mello: leaders need to be allowed to address "in real time" this dangerous moving target.
(Ugh, this "in real time" -- did @GavinNewsom's press person write this)
(Ugh, this "in real time" -- did @GavinNewsom's press person write this)
Mello: defendants care deeply in people in prison, staff, and person in community.
March 2nd Governor got activated -- (one month ago)
March 2nd Governor got activated -- (one month ago)
Mello: to be clear, we care. We have acted with "bold and urgent" but "in a considered manner"
We don't believe that Plaintiffs have satisfied PLRA.
This court can't issue order unless they prove that defendants are acting "with deliberate indifference"
We don't believe that Plaintiffs have satisfied PLRA.
This court can't issue order unless they prove that defendants are acting "with deliberate indifference"
Mello: another "in real time" statement to say how defendants are acting.
paroling people w/ less than 60 days as long as non-violent.
paroling people w/ less than 60 days as long as non-violent.
