By Crescenzo Vellucci
Vanguard Sacramento Bureau Chief
SACRAMENTO – Just as a Sacramento Public Defender Office motion, in an attempt to stop a COVID-19 surge by releasing incarcerated from county jails, was rejected by a Sacramento County Superior Court, a federal court panel late Saturday tossed out an emergency plea to release potentially tens of thousands inmates from the virus-threatened and overcrowded state prison system.
The Sacramento PD has appealed to a higher court, and lawyers for state prison incarcerated will appeal to other courts in continuing efforts to prevent a COVID-19 foothold in state jails and prisons.
“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.
Read ruling here: Federal Court Rejects COVID-19 Pleading
The special U.S. District Court for the Eastern and Northern Districts includes Judge Kim Mueller in Sacramento, 9th Court of Appeals Judge Kim McLane Wardlaw and Jon Tigar in Oakland. The panel has jurisdiction over a decade-old mandate to make sure California keeps its prison population below a certain stage to preserve constitutional care for those incarcerated.
The judges seemed to take no pleasure in turning down the COVID-19 plea.
“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 added: “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 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.
The judges said they couldn’t do that because an earlier order did not give them that authority. They encouraged the Plaintiffs to refile with other courts, and even back in a court that deals with class actions suits about incarcerated welfare.
“That order was never intended to prepare Defendants to confront this unprecedented pandemic…Nor could it have, given that the entire world was unprepared for the onslaught of the COVID-19 virus,” the judges opined in their answer Saturday.
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.”
Only 13 prisoners have tested positive for the virus, along with about three dozen prison personnel. But as with testing generally across the nation, the number of people tested is unknown, although health experts said it is very, very low because of the shortage of working test kits.
The state opposed the motion – it has already released about 3,500 inmates early and is expected to release another 6,500 or so in the coming weeks, it argued.
The governor issued an executive order March 24 to suspend admission of inmates to state custody for at least 30 days, and maybe much longer. And the state promised it will “accelerate” the release of inmates who have less than 60 days remaining on their sentence if they are not serving a term for a violent felony or domestic violence offense, or required to register as a sex offender.
The state has said it can move people around in prison to accommodate social distancing, including moving people into gyms, dorm rooms and vacant facilities, without the need for a court to intervene.
Lawyers representing inmates said they were not ending their attempts to protect prisoners, claiming they would be filing for relief in other courts this coming week.
“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,” Plaintiffs’ attorneys argued.
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“Plaintiffs may go before a single judge to press their claim that Defendants’ response to the COVID-19 pandemic is constitutionally inadequate.”
Since I have some direct ongoing knowledge of the housing of CA prison inmates, I can state with some certainty that the current steps being taken are inadequate to allow for appropriate social distancing to prevent coronavirus transmission. Saying that something will be being worked out over the next few weeks is a clear example of too little, too late as the time of risk is now…not several weeks from now. Prevention is always, repeat always, more medically and cost-effective than subsequent treatment.
This is clearly not the fault of these judges and I applaud their suggestions to the plaintiffs of more legally effective routes to take to resolve a dangerous situation which they seemingly wished they were able to address.