Tough task for New­som: thin­ning out San Quentin

San Francisco Chronicle - - FRONT PAGE - By Ja­son Fagone and Me­gan Cassidy

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 virus-rid­den 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.”

Scott Straz­zante / The Chron­i­cle

Pro­test­ers rally in July for the re­lease of pris­on­ers from San Quentin State Prison be­cause of the coro­n­avirus pan­demic. The gov­er­nor has been or­dered to halve the in­mate pop­u­la­tion.

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