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'Matter of life and death': Judges implored to order California inmate releases

Sacramento Bee - 4/3/2020

Apr. 2--Calling the coronavirus crisis inside California prisons "literally a matter of life and death," attorneys for state inmates called on federal judges Thursday to order a reduction in overcrowding prisons so that prisoners can be afforded the same 6-foot social distancing officials have mandated for the public.

"Overcrowding makes physical distancing impossible, and physical distancing is necessary to avoid overcrowding and death," Sara Norman, an attorney for the Prison Law Office in Berkeley, told a panel of three federal judges in an emergency hearing. "We have a window of opportunity to flatten the curve, but it's closing.

"Rikers Island (jail complex in New York City) went from one case to hundreds in the space of two weeks."

Attorneys for the inmates are seeking an emergency order reducing the state's prison population, but say they are not recommending a specific number. Instead, they say they want enough low-risk inmates released -- such as the 5,600 who are 65 and older -- to help provide enough space in prison dormitories to provide a 6-foot social distancing buffer.

"Many sleep in double bunks, and many sleep in bunks that are less than 3 feet from each other...," Norman said. "These are a portrait of drastic overcrowding.

"Physical distance is necessary because we don't know who carries the virus."

California says no other state has done as much

Lawyers for the California Department of Corrections and Rehabilitation say the state already has taken "bold and urgent" action by agreeing to release nearly 3,500 inmates in the coming weeks.

"No system in the country has gone as far as we have gone," attorney Paul Mello argued, adding that there is no evidence before the court that the state is in violation of existing court mandates.

Instead, he said, the state is able to take action without court intervention to ensure inmates are housed safely.

"In real time with our experts and our infectious disease experts, we are trying to increase social distancing and we should be afforded the opportunity granted to us to attempt social distancing...," he said. "We are able to activate other places for them.

"We can move people into gyms. We can move people into dorm rooms, we move people into vacant facilities. We should be afforded the opportunity to do those things with our experts and without intervention of this court."

The court -- comprised of U.S. District Judges Kimberly J. Mueller in Sacramento and Jon Tigar in Oakland, and U.S. Circuit Judge Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals -- oversees an 11-year-old federal court mandate requiring California to keep its prison population below 137.5 percent of capacity to ensure constitutional levels of medical and mental health care for inmates.

The judges, holding the hearing by telephone, gave no indication of when they might make a decision on the issue.

Coronavirus cases inside prisons increasing

The hearing comes as coronavirus cases inside the state's 35 prisons continue to increase. As of Wednesday morning, the state reported that eight inmates have tested positive, six of them in Lancaster at California State Prison, Los Angeles County, and one each at North Kern State Prison in Delano and at the California Institution for Men at Chino.

Another 27 staffers at 12 different prisons also have tested positive.

The state contends no court intervention is necessary because prison officials already are moving to parole nearly 3,500 inmates, an average of 100 per prison, who are within 60 days of their scheduled release dates. Lawyers for the state also argue that Gov. Gavin Newsom's order halting transfer of inmates from county jails to prisons for 30 days will halt the intake of another 3,000 people.

But attorneys for the inmates say a widespread outbreak of coronavirus inside the overcrowded prisons would be "catastrophic."

"The real risk here is that COVID-19 will quickly run rampant in CDCR, causing many thousands of people to become critically ill, and those people will then require intensive, resource-consuming health care in community hospitals that already are on the verge of being overwhelmed," they argued in a reply to the state's planned steps. "Only by reducing the prison population to the point where effective preventative measures can actually be employed to slow transmission can this catastrophic outcome be mitigated.

"Anything less will result in a public health nightmare."

Inmate attorneys say rapid releases needed

They also argue that the speed of the disease's progression inside the prisons calls for immediate action.

"This is not the time for half-measures or incremental steps," they wrote. "In the seven days since Plaintiffs filed this motion, the number of confirmed infections of staff more than tripled, the number of confirmed infections of (inmates) increased eightfold, and the number of affected institutions more than doubled."

The prisons currently hold more than 114,000 inmates, about 134 percent of capacity. Inmate attorneys and staffers at the prisons have told The Sacramento Bee the concept of "social distancing" at the prisons is a virtual impossibility, given the overcrowding.

"The State does not dispute that more than 46,000 people in CDCR live in dorms where people sleep well under six feet apart," they wrote, adding that 45,110 inmates -- 37 percent of the state total -- "are at risk of 'adverse COVID-19 outcomes' due to age or preexisting health conditions.

The state has argued against widespread releases, saying officials do not want to contribute to further homelessness by inmates with no place to go and do not want to see a spike in crime from turning offenders loose.

Will crime rates increase with inmate releases?

Inmate attorneys say there is no evidence to support the notion that crime rates will increase, citing the fact that crime dropped after California began releasing inmates through reforms that began in 2007.

"In summary, California has reduced its entire correctional system and at the same time has lowered its prisoner recidivism rates and crime rates," James Austin, a senior policy analyst for the criminal justice research group JFA Institute, wrote in a court filing. "And, the current CDCR population now poses less of a threat to public safety as compared to the prisoner population that existed in 2009.

"Significant reductions in the current prison population can be quickly achieved without increasing recidivism or crime rates."

County jails already have released thousands

In addition to the planned prison releases, county jails statewide have already released thousands of inmates convicted of non-violent, non-serious crimes. Many releases involve inmates with less than 60 days to serve, and are designed to reduce crowded conditions inside jails in the event of an outbreak.

In Sacramento, where the Sheriff's Office says no inmates have tested positive, more than 540 inmates have been released in recent days. Fresno County has released 207 inmates and Los Angeles has turned 1,700 loose with an eye toward releasing hundreds more.

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