(CN) – California’s overcrowded state prisons are ripe for a devastating coronavirus outbreak, lawyers for inmates told a panel of three judges considering a motion for the emergency release of thousands of medically high-risk prisoners.
“The conditions in the prisons are a tinderbox and will remain a tinderbox unless this court acts,” said attorney Donald Specter with the Prison Law Office on Thursday. “The overcrowding in our prisons is literally a matter of life and death.”
The long-running court battle to reduce overcrowding stems from a federal lawsuit brought by inmate Ralph Coleman in 1990, followed ten years later by a companion case featuring lead plaintiff Marciano Plata.
In 2009, a panel of three federal judges ordered the California Department of Corrections and Rehabilitation to create a plan to cut its prison population to 137.5% of capacity, an order upheld in a landmark U.S. Supreme Court ruling in 2011 that found extreme overcrowding led to unsanitary conditions that were “breeding grounds for disease.”
So far, the CDCR has followed that order, but the inmates’ attorneys say the current population cap isn’t enough to allow prisoners to stay safely separated.
A six-foot distance between prisoners is impossible to keep, Specter argued, as they are housed in dorms with bunkbeds spaced about 30-40 inches apart.
Figures uncontested by either side show that 46,265 people currently live in prison dorms, and 29,401 live in dorms that are at or over 137.5% of capacity. Of that number, 13,458 prisoners live in dorms at or over 175% of capacity.
The emergency motion seeking to mitigate conditions that could spread the coronavirus was filed on March 25.
At that time, there was one recorded case of an inmate who had contracted the virus. There were seven infected staff. By Thursday’s afternoon hearing, lawyers said there were eight cases among inmates and 25 among prison staff.
“Everyone agrees population reduction is necessary in the current pandemic. Both parties. That would seem to make this court’s job’s easier,” said Prison Law Office attorney Sara Norman. “But there’s a significant gap between what defendants say needs to happen and what they need to do to get there. The state’s remedies fall far short of accomplishing the ends that we all know is necessary.”
The hearing was conducted telephonically, and hosted by U.S. District Judge Jon Tigar. He was joined by U.S. District Judge Kimberly Mueller in Sacramento and Ninth Circuit Court of Appeals Judge Kim Wardlaw.
“Does the Eighth Amendment require six-foot physical distancing in every jail in the U.S. and do we need to hold that it does in order to grant your motion?” Tigar asked Norman.
The Eighth Amendment prohibits cruel and unusual punishment and excessive bail, and courts have held that prisons are also obligated to provide medical care.
“Minimally adequate care cannot be provided under the current circumstances without social distancing,” Norman said.
Tigar asked the same question of attorney Paul Mello with Hanson Bridgett, who argued for the state.
“I don’t believe that the state did agree that six-foot social distancing is constitutionally required in a correctional setting,” Mello said.
He added that the inmates had not shown that the prisons have been deliberately indifferent to the pandemic threat.
Mueller said the state hadn’t represented to the court whether it can achieve the recommended six-foot distance between inmates in the dorms.
“We are trying to increase social distancing and we should be afforded the opportunity to attempt to increase social distancing,’ Mello said, noting that prisons have already reduced their intake of new inmates.
The CDCR also plans to release 3,496 non-violent offenders whose crimes do not involve sex offenses or domestic violence and who are within 30-60 days of their parole dates.
Mello said the CDCR is moving “at breakneck speed” to mitigate an outbreak in the prison system, and is looking into relocating prisoners to gyms and other vacant buildings.
“We should be afforded the opportunity to do those things without the intervention of this court,” he said. “No system in the country has taken the steps CDCR has taken to address this pandemic. No system has gone as far as we have.”
The court should also consider the extraordinary amount of hours it takes to prepare an inmate for early release, at least six hours per prisoner, Mello said. Some need to arrange for housing, and those with chronic health conditions might end up in hospital emergency rooms.
Mello also said the court should consider that the CDCR has complied with the previous population reduction order for five years. Under the Prison Litigation Reform Act, the court cannot order it to act more quickly in response to an unforeseeable pubic health crisis, he added.
“Isn’t it a fact that defendants are in compliance with the original injunction issued by the three-judge panel and affirmed by the Supreme Court?” Wardlaw asked the plaintiffs’ lawyers.
Specter answered that when the court imposed the population cap ten years ago, “it recognized that number may be subject to change based on changed circumstances.”
Norman argued that the court should at least order the state to immediately assess how many prisoners it can safely house six feet apart in a dorm.
She also asked the court to order the state to present by Monday a plan to relocate prisoners to alternative housing, noting its ability to quarantine cruise ship passengers at military bases.
“It is within the court’s power to close the gap between what defendants have already started to do and what everyone agrees must happen,” she said.
The panel took the arguments under submission.