A Marin County judge could begin ordering the release or transfer of hundreds of men incarcerated at San Quentin State Prison as early as Monday.
More than 400 elderly and medically vulnerable incarcerated people petitioned the superior court for release during and after a massive outbreak at the prison this summer that infected 2,200 people and resulted in the deaths of 28 men.
Many of the men who’ve asked the court for relief are age 60 and over, or have chronic medical conditions that the Centers for Disease Control and Prevention has determined put them at greater risk of becoming seriously ill or dying from COVID-19.
The incarcerated men allege in court filings that prison officials violated their Eighth Amendment right against cruel and unusual punishment by exposing them to the virus.
The Marin County public defender’s office represents 249 of the men who’ve petitioned for release. Deputy Public Defender Christine O’Hanlon says some of them were locked up with cellmates who had the virus.
“We had numerous pairs where one person was negative, one was positive and [the California Department of Corrections and Rehabilitation] did nothing to separate them, and then they end up getting sick,” O’Hanlon said. “They were rolling the dice with those people’s lives.”
Marin County Superior Court Judge Geoffrey Howard plans to soon start ruling on cases — according to a Dec. 9 court order — beginning with older and sicker incarcerated people.
But Howard made clear he won’t order release from prison as the only remedy for the risk and suffering to incarcerated people. Prison officials may also transfer at-risk people to prisons with safer housing, the judge ruled.
That came as a blow to the men's attorneys, who’ve warned that any transfer of medically vulnerable incarcerated people heightens the risk of transmission, especially with COVID-19 infections surging again in prisons across the state.
COVID-19 cases were in the low hundreds across the prison system in October, but they’ve since exploded. Nearly 9,000 people incarcerated in California state prisons have tested positive for the virus within the last two weeks, according to state data released Sunday, with triple-digit new coronavirus cases identified in 22 of the state’s 35 adult institutions.
Pleasant Valley State Prison in the Central Valley saw the biggest increase in infections over the last two weeks. Over 700 men incarcerated there have the virus.
Despite the rising number of infections, prison officials abruptly transferred 26 medically vulnerable people from San Quentin to another prison a week ago Monday.
Liz Gransee, a spokeswoman for California Correctional Health Care Services, wrote in a Dec. 15 email that the men were moved to “safer housing” at California State Prison in Corcoran.
“It’s important to note that every safety precaution is taken on any patient movement,” Gransee wrote, “including testing before and after any moves, quarantining upon arrival at the new housing location, the use of N95 masks by all, and sanitation of all housing spaces prior to any movement.”
The public defender filed an emergency motion Wednesday to temporarily stop the transfers until Judge Howard can “fully consider” whether it’s safe.
California’s Department of Corrections and Rehabilitation suspended further COVID-19 related transfers last week.
“My clients are terrified of transferring,” Deputy Public Defender O’Hanlon said. “They know the transfer process involves being confined in small spaces with several people for several hours and then getting to a new place where they don't know what's there.”
The 26 men transferred from San Quentin last week went from a prison with four active cases at the time to one with 50.
Noting that most state prisons are at or over capacity, O’Hanlon doubted any institution could safely absorb transfers of medically vulnerable incarcerated people.
“You can't just pack them in like sardines somewhere else,” she said. “You have to put them in a place where they can be safely housed, practice social distancing and avoid dorm settings.”
San Quentin’s summer outbreak resulted from the botched May 31 transfer of 121 people from the California Institution for Men in Southern California. Ironically, the men — all at high risk for COVID-19 — were moved to San Quentin from Chino to protect them from getting infected as the virus raged at the Southern California facility.
At a state Senate hearing in June, Clark Kelso, the federal receiver in charge of prison medical care, took full responsibility for approving the transfer. Kelso said the transfer was conducted “too quickly” and was “a big mistake.”
At the time, people incarcerated in state prisons could only be transferred if they had tested negative for the virus beforehand, but as Kelso said he later learned, some men received those tests up to two weeks before their departure.
Kelso issued new protocols for transfers in August, including same-day testing for COVID-19, retesting and isolation upon arrival at the new prison.
Those new protocols were cited in a recent appellate ruling as the reason that transfers can be considered a safe alternative to releasing medically vulnerable people.
Ivan Von Staich, a 64-year-old at San Quentin with respiratory issues, petitioned for release before there was an outbreak of COVID-19. Von Staich argued in a successful appeal that the prison would not be able to protect people like him if the population became infected because there would be no way to be physically distant from others.
His attorneys disclosed that prison officials ignored a key recommendation by a group of university doctors and epidemiologists who toured San Quentin State Prison in June. The team of health experts from UCSF and UC Berkeley urged prison officials to reduce the incarcerated population at the prison by half to allow for social distancing and quarantine of those infected.
A three-judge state appeals court found on Oct. 20 that San Quentin officials acted with “deliberate indifference” to the health of all people held at the prison and ordered them to immediately cut the population by half.
“By all accounts, the COVID-19 outbreak at San Quentin has been the worst epidemiological disaster in California correctional history,” Presiding Judge Anthony Kline wrote in the decision. “And there is no assurance San Quentin will not experience a second or even third spike.”
California Attorney General Xavier Becerra has appealed that ruling to the California Supreme Court, which has asked for expedited briefing and will decide whether to review the case by Jan. 25.
“It cannot be that prison officials are deliberately indifferent to the risks COVID-19 poses to inmate health when there is no dispute CDCR has diligently worked to implement various significant mitigation efforts,” the attorney general argued in his Nov. 16 petition to the state Supreme Court.
Until then, Marin County Superior Court Judge Howard has said he’ll follow the appellate ruling in any order he issues on petitions from men at San Quentin.
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