SAN FRANCISCO (CN) --- San Francisco’s determination to avoid a Covid-19 outbreak in its local jails came under judicial scrutiny on Monday, as a civil rights attorney blasted the county's plan to keep inmates safe by sacrificing their right to fresh air and outdoor exercise.
The sheriff’s office says when the first cases of Covid-19 began popping up in California, it “took swift and insightful action to protect the inmates in their care from the risk of infection” — by keeping them locked in their cells for 23 to 50 hours at a stretch.
Fearing the risk of transmission through "heavy breathing and sweating,” recreation has been suspended at the county jail in San Bruno since March 15, 2020.
The sheriff’s office says inmates remain free to exercise in their cells, and groups of eight prisoners are allowed one hour out of their cells every day, mostly to line up for the phones.
The strategy has mitigated disease outbreaks at a jail with a current inmate population of 577, but the physical and mental toll is troubling to Yolanda Huang, a civil rights lawyer who represents a potential class of pretrial detainees being held in prolonged isolation.
“What I hear is that there has been no thought put into alternatives that could provide people with time out of cell. This is the easy way for them to do it — let’s just lock people up, let's just treat them like cargo, and I find it insulting and awful,” she told U.S. District Judge Sallie Kim at a virtual hearing Monday.
The case Huang brought two years ago originally focused on sunlight deprivation, prompting Kim to order the county jails to give inmates direct access to sunlight for at least one hour a week.
But the coronavirus pandemic added a new complication.
Deputy City Attorney Sabrina Berdux said even with the pods reduced to cohorts of eight, inmates are still exposed to Covid-19 when they make in-person court appearances and when interacting with sheriff’s deputies.
“When Covid first started, there was extensive deliberation with medical professionals about how we can avoid outbreaks in our jails,” she said. “The sheriff's office has worked so hard to make sure there isn't an outbreak. What I know is there have been outbreaks at other prisons, and that's not happened here. Certainly these are not pleasant conditions to live under, but they've kept our inmates alive.”
But even such extreme isolation measures have not prevented all exposures. The latest numbers posted by the sheriff’s office show 131 total recorded positive isolated cases of Covid-19 in its county jails as of Monday. There are currently three active cases in custody. There have also been 62 positive COVID-19 results from employees.
Kim asked Berdux why groups of eight inmates who are already allowed one hour a day outside their cells together cannot simply use the gym for just one hour a week.
Berdux replied that it couldn’t be done. If one group of eight uses the gym, the next group could potentially be exposed.
“The concern is that Covid lasts in the air,” she said.
Huang said the sheriff’s office has had plenty of time to develop workarounds, but cannot be bothered.
"There are ways that you can deal with droplets by venting it, or you could very easily simply go in and spray with some kind of sanitizer. These are all ways they could easily and inexpensively deal with the droplet situation. I think what we're talking about is human beings who are going to be locked up for year getting out one hour a day — or some days not getting out for 52 hours in a row,” she said. “I think that is clearly a violation of their constitutional rights, and it is definitely cruel and unusual punishment.
Huang seeks an order renewing the injunction Kim issued last year.
Kim said she wondered whether the goal of keeping Covid-19 out of the San Bruno jail wasn’t doing more harm to the inmates than good.
“I will tell you I am very worried about the lack of exercise for inmates and the amount of time that they spend out of cell,” she said. “There are some measures the county can take to mitigate the risk. I understand it's not going to eliminate the risk completely but given the balancing, the harm to the inmates and their inability to get any exercise in their cells because they are too small makes me very concerned. The people in San Francisco are working hard to minimize the risk to prisoners but there are also risks to them by keeping them locked in their cells for long periods of time.”
Huang said there are four outdoor courtyards adjacent to the jail that could be used for exercise, which should “satisfy a lot of the concerns.” That solution had been raised some time ago, she said, but so far the sheriff’s office hasn’t acted on it.
“The defendants have been at this for a year, and they were supposedly trying to configure a space for that,” she said. “So hopefully they've had some progress in making that space available.”
Kim took the matter under submission, saying she will need more information from the sheriff’s office on the measures Huang mentioned before issuing an order. In the meantime, she said, “I'm hoping that law enforcement is getting vaccinated as quickly as possible.”
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