By Crescenzo Vellucci
Vanguard Sacramento Bureau Chief
SACRAMENTO – THE VANGUARD has learned that Friday – nearly a week after a federal court panel rejected an emergency plea to release potentially tens of thousands of inmates from the COVID-19-threatened and overcrowded state prison system – the same inmate advocates and the state of California filed a joint report in federal court here analyzing the state’s plan to socially distance prisoners.
Lawyers for the inmates said the state’s plan to protect prisoners “amounts to shuffling deck chairs on the Titanic.”
The state of California argued what it was going was good enough.
Filed in the courtroom of Federal Judge Kimberly J. Mueller, Michael W. Bien, representing the plaintiff inmates, noted that the state has to do more and fast.
“The state has to release or transfer thousands more incarcerated people as soon as possible in order to mitigate a COVID-19 catastrophe that threatens to decimate not only (California Dept. of Corrections and Rehabilitation) CDCR’s prisons but the surrounding communities,” he said, citing an emergency motion filed late in the week “regarding the inadequacy of Defendants’ efforts to date and the need for immediate action.”
Last weekend the U.S. District Court for the Eastern and Northern Districts three-person panel turned down Bien and the plaintiffs in their appeal to protect tens of thousands of state prison 
incarcerated.
“We take no satisfaction in turning away Plaintiffs’ motion without reaching the important question of whether Defendants have implemented constitutionally adequate measures to protect the inmates of California’s prisons from the serious threat posed by this unparalleled pandemic. But we are bound by (federal law) to reach this conclusion,” wrote two judges in the response.
The panel said that they didn’t have jurisdiction, in effect, and invited a follow-up filing to Mueller’s court.
“While we must deny their motion as currently procedurally improper, we do so without prejudice to their bringing their request for relief in an appropriate forum…Plaintiffs may go before a single judge to press their claim that Defendants’ response to the COVID-19 pandemic is constitutionally inadequate,” the panel said.
“We are living in unprecedented times. The spread of COVID-19 is a global crisis, a crisis that is heightened in the most vulnerable groups among us. One such group is before us today,” acknowledged the federal judges, who almost sounded despondent when they said the brief filed was beyond the court’s jurisdiction.
The pleading identified two classes of inmates in the state prisons who asked the court to “order the state to release an unspecified, but significant, number of prisoners so that the prison population can be reduced to a level sufficient to allow physical distancing to prevent the spread of COVID-19—which, in Plaintiffs’ view, requires that prisoners who live in dorm-style environments be housed six feet apart from one another,” observed the court.
Responding to the “Emergency Motion to Modify Population Reduction Order,” the federal court panel said plaintiffs sought to release “to parole or post-release community supervision certain categories of inmates, including those who are scheduled to parole within a year and are either (a) low risk, as determined by the California Department of Corrections and Rehabilitation’s (CDCR) risk assessment tool or (b) serving time for a non-violent offense. Plaintiffs also ask us to require Defendants to release or relocate inmates who, because of their age or other medical conditions, are at a high risk of developing a severe form of COVID-19.”
Although no specific number of inmates was listed in the pleading, there are about 114,000 state prison inmates, and as many as 5,600 are over 60 years of age – a prime age for COVID-19 – and thousands more may be at risk because of underlying health conditions.
The court confirmed this, noting the “Plaintiffs argued…Defendants must release as many inmates as would be required to allow all remaining inmates to practice physical distancing, especially those who reside in crowded dorm housing.”
The court wrote that although COVID-19 has not yet “surged” in the prisons, “given the undisputed risk of further contagion in a carceral environment, Plaintiffs’ desire to maximize the reduction in the state’s prison population is understandable.”
In the new filing Friday, Bien argued, “In the time since the Court’s order the number of people incarcerated in CDCR who have tested positive has ballooned from 17 to 33 people spread across five prisons, including 22 Coleman class members, and the number of staff who have self-reported positive tests has increased from 53 to 62 employees at 15 prisons and four other worksites.”
He criticized the state’s plan, pointing out, “Defendants will move around a few hundred of the 46,000 people, including more than 11,000 class members, currently living in CDCR’s dorms, and their actions will be limited to just a few of those dorms. This amounts to shuffling deck chairs on the Titanic.
“Thousands of Coleman class members who have at least one COVID risk factor live in dorms. But even after finally identifying those individuals in response to this Court’s order, Defendants still are not prioritizing them for release or transfer to safety,” he said.
But the state hardily defended its plan, noting “there is no one-size-fits-all answer to this pandemic.
“Defendants’ plan—limiting unnecessary physical contact between inmates in separate housing units, creating specialized mental health plans for class members according to their case factors, and decreasing the inmate population by nearly 4,000 inmates—is reasonable and represents a strong, decisive first step at managing COVID-19 while still striving to provide constitutionally mandated care,” said the state.
CDCR said that while “it is not possible to create separations that mirror in correctional settings the separate households that exist in the free world, CDCR has taken various steps to separate inmates in housing units from inmates in other housing units, akin to a household or similar community environment,” adding they are “rearranging scheduled movements to minimize mixing of people from different housing areas and adjusting dining schedules where possible to allow for physical distancing.
“Also, no rehabilitative programs, group events, or in-person educational classes are taking place until further notice. Institutions have also begun placing markings on the floor in facility communal areas to indicate six-feet between each space, including in housing units near kiosks and telephones, as well as on the yard for medication pass. These collective measures allow inmates to carry on activities and cohabitate in an environment that provides greater physical distancing necessarily constrained by correctional realities,” the state said.
The defendants revealed that this week that CDCR “implemented a mandatory 14-day statewide modified program at all CDCR prisons” to “direct how movement will occur within the institution to maximize physical distancing, preventing inmates in different housing units from mixing, reducing yard and dayroom capacity to facilitate further social distancing, and detailing what phone calls, canteen, education, and other programs will be provided to inmates and how.
“While these restrictive measures are mandatory,” the state explained, “the incarcerated population will still have access to medication, mental and medical care services, yard time, packages, and cell-front religious programming while allowing for physical distancing and proper cleaning/disinfecting of common areas and appliances. Implementation of this temporary modified program will reduce staff and inmate exposure to COVID-19.”
The governor, on March 24, temporarily suspended all CDCR intake from California county jails for 30 days, which, absent any other measures, will result in a net population reduction of approximately 3,000 inmates, and on March 31, the CDCR released about 3,500 nonviolent inmates within 60 days of their release date.
California Prison Industry Authority (CALPIA) claims it has begun producing hand sanitizer “for use by both staff and the incarcerated population, both alcohol and alcohol-free, and producing reusable cloth barrier masks to meet some of the supply needs of staff and inmates.”
In fact, CALPIA said it has produced about 17,000 barrier masks, finishing about 10,000 per day that are being distributed for staff and inmate use: “Defendants are taking reasoned actions to operate California’s prisons during a global pandemic by continually assessing steps needed to protect the health and safety of inmates, staff, and the public.”
But, inmate lawyers said it was “too little, too late,” countering in the pleading that “cohorts of eight people are not really a true quarantined cohort if staff move from cohort to cohort and to their own households in the free world without adequate personal protective equipment.”
Additionally, Bien said the state could temporarily transfer “medically vulnerable class members to safe locations where the risk of contracting COVID-19 is substantially reduced. “
He cited a government code which provides that during an “emergency endangering the lives of inmates of a state, county, or city penal or correctional institution…the person in charge of the institution may remove the inmates from the institution (to) a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.”
He also said the governor’s March 12 Executive Order invoked emergency powers to “commandeer property-hotels and other places of temporary residence, medical facilities as necessary for quarantining, isolating or treating individuals who test positive for COVID-19 or who have had a high-risk exposure and are thought to be in the incubation period.”
The plaintiffs argued that at least 10,000 people now imprisoned need to be moved out of shared dorms.
The governor, maintain the plaintiffs in the filing, can accomplish that by mobilizing the national guard, if needed, and transfer inmates “immediately” to other facilities, including closed prisons, hospital and skilled nursing facilities, closed juvenile justice centers, closed military bases and former developmental centers that “meet very strict CDC sheltering criteria.”
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