TL;DR: The Court of Appeals has found CDCR "deliberately indifferent" to COVID risk at Quentin, ordered a 50% population reduction at the prison, and made recommendations on how it is to be achieved. Read on. https://www.hadaraviram.com/2020/10/20/breaking-news-california-court-of-appeal-orders-50-population-reduction-at-san-quentin/ 1/

Justice Kline begins by stating the magnitude of the San Quentin catastrophe. Even against the history of contagion in prisons–including 3 spikes of the Spanish Flu in 1918–the SQ COVID-19 outbreak is “the worst epidemiological disaster in California correctional history.” 2/

He then highlights @AmendatUCSF's urgent memo (published after they visited San Quentin, at the Receiver’s invitation) recommending a 50% reduction of the prison population. 3/

CDCR’s response fell far short: btwn March and Aug 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.” 4/

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. 5/

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. 6/

Third, state courts are not limited and bound by the PLRA, as federal courts are. And fourth, state courts have the duty and competence to vindicate rights under the CA Constitution--including the protection against cruel and unusual punishment. 7/

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. 8/

The AG’s declarations that the doctors were wrong and that a 50% reduction was unnecessary were “conclusions the Attorney General has failed to support with any factual allegations contradicting petitioner’s allegations”--not even testimony from their own physicians. 9/

So, “the issue before us is... 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.” 10/

How did CDCR respond to COVID at SQ? They established a central command; installed a tent structure; repurposed the chapel and a furniture factory to care for COVID-19 patients; provided PPE; and released 947 people. They claimed that these efforts helped. 11/

The Court disagreed. Relying on the analysis of experts, the Court found that the reduction in cases was not because, but despite, CDCR’s behavior. 12/

The Court quotes Dr. Beyrer: “Had San Quentin done nothing, the rates of infection there would have been roughly the same.” While the steps the prison took to alleviate the risk were commendable, they were insufficient w/o population reduction, which they refused to do. 13/

Now, this is interesting: The AG boasted that they managed to bring the prison population down to approx 100%. Except that, in a facility such as San Quentin, full occupancy cannot allow for the social distancing needed to fight the pandemic. 14/

Justice Kline 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. 15/

Note the extent to which CDCR has become habituated to the toxic perspective that 100% full prisons are a desirable end, rather than an unhealthy point of departure. We’ve had bloated prisons for so long that we seem to think that a full prison at “only” 100% is fine. 16/

The opinion then hits the nail on the head: the release plans exclude people serving time for “a violent crime as defined by law” when such people are approximately 30% of the prison population. 17/

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. 18/

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. 19/

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. 20/

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.” 21/

The opinion cites plenty of evidence to show the folly of excluding lifers and strikers from release programs--including the robust literature on life-course criminology, which constantly finds age a significant factor in desistance. @CommCrim 22/

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.” 23/

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. 24/

Housing ppl in in close proximity “is not merely negligent, it is reckless. . . 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.” 25/

The Court has ordered the immediate release of petitioner Von Staich from SQ. He was recommended for parole on October 16, but the Governor can weigh his case for 120 days, and in the meantime he must be released or transferred to a different facility. 26/

The Court agreed that the habeas process allows relief for similarly situated people. However, the Court opines that “it would be inappropriate to order the release of prisoners we considered vulnerable even if we thought we had the power to do so in this proceeding.” 27/

The Court worries that medical vulnerability is a question of “scientific facts, not law”; is unsure whether they can extend relief to people who did not file a habeas petition; and finds that appropriate social distancing can be achieved in many ways. 28/

“Nevertheless, we are not without means to expedite the release or transfer from San Quentin of more inmates than are now deemed eligible for release” via Section 1484 of the California Penal Code, which allows the Court such course of action. 29/

The Court orders CDCR to bring the CDCR population down to 50%–“no more than 1,775 inmates.” 30/

The Court leaves the manner of reduction to CDCR, but recommends “expanding eligibility for the two expedited release programs . . . to inmates. . . over age 60 and completed minimum terms of at least 25 years.” 31/

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. 32/

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. /fin