Tough task for Newsom: thinning out San Quentin
After state judges’ ruling last week that California acted with “deliberate indifference” in creating a COVID19 “disaster” at San Quentin State Prison, Gov. Gavin Newsom has a big decision to make: Does he fight the ruling, or does he own up to his administration’s mistakes and take the medicine?
According to the landmark court order — the first of its kind in the pandemic era — the state must reduce the population of San Quentin to 50% of what it was in June, to create proper space for social distancing and limit transmission of the coronavirus.
COVID19 has already killed 28 incarcerated people and one corrections officer at the Marin County prison. A 50% cut would mean removing about 1,100 men from the prison, leaving no more than 1,775 inside.
Justice J. Anthony Kline, who wrote the decision for a threejudge panel of the First District Court of Appeal, cited testimony from public health experts who pleaded with the state to
drastically and urgently reduce San Quentin’s population, saying it’s the only way to save lives in a 170yearold prison with close quarters and poor ventilation. And he urged the government to speed the removal of one group in particular: prisoners who are older and medically vulnerable to the virus.
Kline wrote that even if they were convicted of violent crimes decades ago, men in custody at San Quentin should be considered for release if they are 60 or older, have served at least 25 years of their sentences, and are eligible for parole. He pointed to research showing that older prisoners age out of crime and pose a very low risk to public safety.
But the ruling does not require the state to release anyone: It only sets a population target at San Quentin. How to reach the target is up to Newsom, whose team is in charge of the state prison system and wields great power over its shape.
Instead of releasing people from custody, the Newsom administration could satisfy the court order by transferring prisoners to other state prisons that have empty space.
The governor’s team could also fight the ruling in California Supreme Court, which may delay action for weeks or months.
For now, the administration is holding its cards close. A representative of the governor did not answer questions, referring the newspaper to the California Department of Corrections and Rehabilitation.
Dana Simas, a spokeswoman for the agency, told The Chronicle that the department is “still determining next steps.”
“We respectfully disagree with the court’s determination,” Simas said in a statement, “as CDCR has taken extensive actions to respond to the COVID19 pandemic.”
In recent court pleadings and public statements, the agency has described its San Quentin response as reasonable, saying it established an emergency command center there, set up a temporary field hospital, and passed out thousands of pieces of personal protective equipment. But medical experts have repeatedly said that none of these actions as sufficient, and the judges ordered the population thinning.
On Wednesday, state Assemblyman Marc Levine, DSan Rafael, whose district includes San Quentin, was scheduled to have a Zoom meeting with the new prisons chief, Kathleen Allison. But Allison, who was appointed by Newsom to lead the agency beginning Oct 1, canceled the meeting, Levine said. ( According to Simas, Allison had a scheduling conflict and the meeting will take place this week.)
“It’s not clear that public health rules the day within CDCR,” Levine said.
Attorney Richard Braucher filed the habeas corpus petition that led to last week’s court ruling. “This is a rolling pandemic, and there are just going to be outbreaks,” said Braucher, who argued in the petition for the release of his client, Ivan Von Staich, a 64yearold San Quentin prisoner. “So I am hopeful that the CDCR will take the court’s ruling to heart, because it really is for the protection of people.”
Braucher and other prisoner advocates want the Newsom administration to release the 1,100 men instead of shifting them to other prisons. Releases can be done safely, they say, through any number of channels that already exist, like parole. But the advocates fear that the state will try to satisfy the court order with a wave of mass transfers — a strategy they say would be dangerous and ineffective, akin to “playing ‘ Tetris’ with people,” said Hadar Aviram, professor of law at UC Hastings in San Francisco, who wrote a legal brief supporting the release of San Quentin prisoners.
Critics of transfers worry about repeating history: A transfer is what caused the deadly San Quentin outbreak in the first place. There were no infected prisoners at the facility until late May, when state and federal prison officials decided to ship 121 men from a virusridden prison in Southern California to San Quentin.
The men weren’t tested for weeks before the transfer, and some were sick, the Chronicle reported on June 8. Officials then mingled the infected men with healthy prisoners at San Quentin, and soon, the prison was the site of the single biggest outbreak in the United States, with more than 2,000 incarcerated men and hundreds of staff infected. Ultimately, threequarters of all prisoners caught the virus.
The Chronicle was the first news outlet to reveal the botched transfer, and the newspaper’s reporting was cited in Justice Kline’s ruling.
“Releases are the only safe and responsible way to protect people’s health in the midst of this pandemic,” said James King, state campaigner for the Ella Baker Center for Human Rights. “There is no safe way to do mass transfers.”
Yet there are signs that transfers may already be in progress. Sources at San Quentin said in interviews that men in North Block and West Block have been told they will soon be transferred to Valley State Prison in Chowchilla ( Madera County).
Juan Moreno Haines, a 63year old incarcerated man at San Quentin and a journalist who has published several articles on the outbreak, said he and his friends there don’t want to be transferred, fearing they would be stigmatized at a new prison.
“Imagine you’re serving a sentence at any one of California’s 35 prisons, and all of a sudden, a busload just comes from the deadliest prison on the planet,” Haines said. “How do you think that person is going to be received? Prisoners and staff are going to be afraid of that person.”
Haines, who tested positive for the virus on June 27, stressed that many San Quentin prisoners have been there for years or decades. To move is to start over in an unfamiliar place, often far from family.
“That’s part of prison — I don’t get a say in where I get to live,” he said. “But that doesn’t make the feeling of being uprooted any better.”
Advocates for the incarcerated acknowledge that some people leaving prison might struggle to find housing and jobs, especially during a pandemic. But they say that many families are waiting to take in their loved ones and argue that the Bay Area could safely absorb the men back into their communities, pointing out that it has happened before.
From 2011 to 2015, California slashed its statewide prison population by 45,000, responding to a onetwo punch of a federal court ruling and a ballot proposition that reclassified some drug and theft felonies as misdemeanors. Researchers noticed brief increases in property crimes after the releases, but there was no evidence of an increase in violent crime, which remains at historically low levels, said Magnus Lofstrom, policy director of criminal justice at the nonpartisan Public Policy Institute of California.
This year, the prison population fell sharply once again, dropping by 22,000 to its lowest level in three decades as the prison agency tried to relieve pressure on the system during the pandemic. ( Much of the drop was achieved by pausing intake from county jails; the rest came from a limited series of releases approved by the governor.) So far, Lofstrom said, crime rates are down from last year, in part because shelter-in-place orders are keeping people home.
“CDCR has already demonstrated that they can release a lot of people,” Braucher, the attorney, said, pointing to the thousands who have been freed since March. “They did it in a way that was safe and wasn’t a problem.”
Levine, the Marin assemblyman, said he thinks Kline “makes a very good case” that some older prisoners who have been at San Quentin for decades may not be a threat anymore and should be released, while others could be transferred.
But however the state decides to thin San Quentin, Levine said, they need to act soon, because the prison “is not a safe environment during the pandemic,” he said. “And the pandemic will be with us for a while.”
Although the number of “active” coronavirus cases at San Quentin dropped to zero at the end of September, the prison is not out of the woods. A quarter of incarcerated men still have not caught the virus, and it’s unclear whether those who were infected weeks or months ago can catch it again, said Marin County Public Health Officer Dr. Matt Willis, whose staff has been working in San Quentin.
While no prisoner has been confirmed to be reinfected — and no “naive” prisoners, who haven’t been infected before, have tested positive for weeks — a few prison guards have recently become sick with COVID19, according to Willis.
“We know the virus is flowing in communities outside San Quentin, so you would expect some level of risk there,” Willis said. “That’s where I think the primary concern is.”
Another reason for worry is coming from the sewage. A few months ago, near the tail end of San Quentin’s outbreak, health officials began testing the prison’s wastewater for the virus — an increasingly popular tool used to gauge the level of infections in a community.
The prison went for weeks without detecting the coronavirus. But about two weeks ago, officials began to see lowgrade signals of possible virus in the sewage, Willis said.
He said he isn’t sure what that means and stressed that there are a lot of unknowns. The lowgrade signals “may be noise, but they may also be real.”
Willis said he supports the court decision to cut the prison’s population in half and added that he would prefer releases to transfers.
“We already know transfers themselves are risky,” he said. “Release is probably a much safer strategy.”
George Beatty, a physician at San Quentin who has treated hundreds of COVID19 patients there, said that he and other doctors at the prison have struggled since the start of the outbreak to cope with crowded conditions. Cutting the population “is the obvious thing,” he said. “It will improve care.”
Among medical staff, reaction to the court decision was positive, Beatty said.
“I think everyone was quite pleased,” he said. “I know that listening to science is not what happens these days, but it’s what the judges did.”