by David M. Reutter

On October 20, 2020, after finding the California Department of Corrections and Rehabilitation (CDCR) was deliberately indifferent to a prisoner’s COVID-19 risk, the state’s First Appellate District Court ordered the transfer or release from San Quentin State Prison and a reduction in its population to no more than 1,775 prisoners from a current total of more than 3,500.

The ruling, authored by Judge J. Anthony Kline, came in response to a habeas corpus petition filed in May 2020 by prisoner Ivan Von Staich. Through his appointed counsel, the 64-year-old alleged his continued incarceration at San Quentin—the state’s oldest prison—subjected him to conditions that so increased his risk of contracting COVID-19 that they violated prohibitions against cruel and unusual punishment in both the California and U. S. constitutions.

His prediction came true. Shortly after Von Staich filed his petition, San Quentin suffered “the worst epidemiological disaster in California correctional history,” the court found, a “devastating outbreak of COVID-19 that infected approximately 75 percent of the inmate population and dozens of staff in just weeks.” As a result, it noted, “infection and mortality rates at San Quentin are higher than the rate for prisons statewide, and considerably higher than the rates for California’s general population.”

A September 2020 report by the National Commission on COVID-19 and Criminal Justice found that the infection rate for the novel coronavirus that causes the disease was four-and-a-half times greater among California prisoners than the rate in the state’s general population, and its death rate was twice as great.

As of October 16, 2020, a total of 2,211 San Quentin prisoners had tested positive for COVID-19, resulting in 28 deaths. There were also 298 confirmed staff cases and one death. Systemwide, CDCR reported that 15,274 of its nearly 98,000 prisoners had tested positive, along with 3,969 staff members, resulting in 70 prisoner deaths and 10 staff deaths.

Von Staich, who is serving sentences for 1986 convictions of second-degree murder with use of a firearm and attempted murder, said he tested positive for COVID-19—yet remained asymptomatic—after he was held in a cell with a 65-year-old who tested positive for the disease. The cell they shared, which had an open barred door or “grille” facing a common corridor, like many at San Quentin, was “so small that you can touch the walls with your hands,” he complained, making protecting himself from infection “impossible.”

After the outbreak of COVID-19 at San Quentin, the receiver in two class action lawsuits now overseeing CDCR’s medical and mental health care requested that Dr. Brie Williams, Dr. Stefano Bertozzi, and colleagues visit San Quentin’s facilities and provide guidance on how CDCR could contain COVID-19 at the prison.

Those experts issued an “Urgent Memo” on June 15, 2020. They found that among San Quentin’s 3,547 prisoners, at least 1,400 had one or more factors that put them at risk of serious illness or death from COVID-19. It was also observed that about 800 prisoners were held in cells with open “grills”— on the North Block and the West Block —and at least 300 of them had four or more COVID-19 risk factors. An outbreak on those blocks “could easily flood—and overwhelm—San Quentin” as well as Bay Area hospitals.

“San Quentin is an extremely dangerous place for an outbreak,” the memo said, adding that “everything should be done to decrease the number of people exposed to this environment as quickly as possible.” It was recommended that CDCR transfer or release “as many prisoners as possible (50% or more) from San Quentin.”

CDCR refused to implement that recommendation, arguing that it had already taken steps to combat COVID-19. By following its own expedited release plans, the agency eventually oversaw a reduction in San Quentin’s population of 942 prisoners between March and August 21, 2020. Prison officials also provided personal protective equipment and set up a command center to respond to the prison’s outbreak, using an alternative site within the prison to treat infected prisoners away from treatment areas for other medical issues. As a result, the number of cases at the prison decreased.

The court, however, was not impressed with the “commendable steps” for which CDCR congratulated itself, and the judges were particularly enraged that the “Urgent Memo” had gone ignored. In its final ruling, the court said CDCR had failed to present evidence that its success didn’t result from letting the virus run its course— “the natural consequence of three quarters of the prison population being infected” —rather than any “precautionary measures.”

It also noted a declaration by Dr. Chris Beyrer, professor of epidemiology, international health, and medicine at the Johns Hopkins Bloomberg School of Public Health, that “this disaster is not over yet” at a time when the infection rate was so high — 75 percent — that “a substantial portion of the prisoner population could still become seriously ill or die.”

Von Staich and his experts contended that none of what CDCR called its “commendable steps” to contain COVID-19 would be effective unless considerable room was made for prisoners to practice social distancing until a vaccine is available. The court agreed, saying that CDCR’s failure to drastically reduce San Quentin’s population is not reasonable and shows a deliberate indifference to the risk of substantial harm to Von Staich, whose preexisting health conditions include respiratory problems due to bullet fragments lodged in his left lung.

Meanwhile none of the prisoner releases CDCR was expediting included “lifers” at San Quentin because they are violent offenders. The court’s opinion pointed to studies and previous court opinions that showed most lifers who are parole-eligible have “aged out” of criminal behavior, so their recidivism rate is “miniscule.” Additionally, California’s Elderly Release Program requires the parole board to make a strong correlation between age and crime when considering for release prisoners who have served 25 or more years and who are 60 or older.

The court concluded CDCR acted with deliberate indifference to Von Staich’s medical needs and ordered him immediately removed from San Quentin, whether by release or by transfer to another prison where social distancing is possible.

Staich was recommended for release by the parole board panel on October 16, 2020, but that recommendation was subject to review by the parole board and governor. The court ordered that review to be expedited.

It also ordered San Quentin’s population reduced to 1,775 prisoners so that social distancing could be safely practiced. To achieve that, CDCR was ordered to expedite release programs for prisoners who are over 60 and who have served 25 or more years and are parole-eligible. See: In re Von Staich, 56 Cal. App. 5th 53 (2020). 

Additional source: WitnessLA, ktvu.com

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