SAN FRANCISCO – Three judges overseeing a long-running legal battle overcrowded and unsanitary conditions in state prisons will not allow the mass release of California inmates to mitigate the threat of a large-scale COVID-19 outbreak.

In a ruling released over the weekend, the panel of judges denied the inmates’ emergency motion to reduce the state prison population, saying the decision was not theirs to make.

The panel was originally convened in 2007 in response to two inmate lawsuits brought in 1990 and 2001 against the state for constitutionally inadequate medical care.

The panel determined at the time that the only way that California could live up to its constitutional obligations was to reduce the state prison population significantly, which it ordered the state to do by 137.5% of its design capacity.

The U.S. Supreme Court affirmed the population reduction order in a 2011 ruling that found overcrowding to be the main cause of the state’s failure to provide prisoners with adequate medical and mental health care.

In 2015, the California Department of Corrections and Rehabilitation met the 137.5% population cap for the first time.

But the case took a new turn as the COVID-19 epidemic became ever more of a threat to the health and safety of inmates and prison staff.

On March 25, attorneys with the Prison Law Office filed an emergency motion to modify the population reduction order, requesting release of low-risk, non-violent prisoners.

At a telephonic hearing last week, attorneys Sara Norman and Donald Specter asked the panel to order the state to release as many inmates as necessary to allow remaining prisoners to stay six-feet away from each other.

“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, calling the persistent overcrowding “literally a matter of life and death.”

The panel, comprising U.S. District Judge Jon Tigar, U.S. District Judge Kimberly Mueller in Sacramento, and Ninth Circuit Court of Appeals Judge Kim Wardlaw, said its original population reduction order cannot apply to an unprecedented viral pandemic.

“That order was never intended to prepare defendants to confront this unprecedented pandemic. Nor could it have, given that the entire world was unprepared for the onslaught of the COVID-19 virus,” they wrote.

At last week’s hearing, an attorney representing the state said the CDCR has stopped admitting new inmates, and 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.

The CDCR touted those steps and others in a statement sent to Courthouse News Sunday.

“The order speaks for itself. CDCR has taken significant steps to address the safety and well-being of inmates and staff during the COVID-19 pandemic; including, temporarily suspending all intake from county jails, which, absent any other measures, would result in a net population reduction of about 3,000 inmates in 30 days due to normal attrition; the expedited paroles of approximately 3,500 non-violent male and female inmates who are within 60 days of their release date within the next several weeks; and approximately 480-530 inmates living in dorms will be transferred to other prisons with unoccupied buildings or space available to increase physical distancing space,” said spokeswoman Dana Simas.

“This is in addition to the other proactive steps we’ve taken to prevent the spread of COVID-19; including temperature and verbal screening of all staff entering CDCR and CCHCS locations, the development of comprehensive healthcare guidelines based on CDC and CDPH recommendations for correctional settings, and limited inmate movement to essential transfers only.”

The judges seem to trust the prison system’s current mitigation approach, at least for now.

“While we cannot know with certainty due to the pathogenesis of the virus, it appears that COVID-19 has not yet surged in California’s prisons,” they wrote. “Thus far, only thirteen inmates have confirmed cases of the disease. And, to their credit, defendants have already taken steps to combat the virus, including taking measures to reduce the prison population. But given the undisputed risk of further contagion in a carceral environment, plaintiffs’ desire to maximize the reduction in the state’s prison population is understandable.”

But the determining factor for the panel was the Prison Reform Litigation Act, which restricts a federal court’s ability to remedy a constitutional violation by releasing prisoners.

While the civil procedure rule empowers courts to change prior orders, the judges said it does not give them boundless authority.

“Rule 60(b)(5) does not provide us with free-standing authority to remedy any harm defendants may inflict upon plaintiffs, regardless of whether it is tethered to the previous findings of structural constitutional shortcomings in the delivery of medical and mental health care,” their order says.

They said the prisoners’ emergency motion doesn’t stem from unconstitutionally inadequate medical and mental healthcare, but a completely different constitutional injury—the system’s failure to protect inmates from a widespread contagion.

That there’s currently no vaccine for Covid-19 only furthers the premise that it could ravage the inmate population whether or not the prisons provide adequate medical care.

“We therefore conclude that to the extent plaintiffs can establish a constitutional violation based on the threat posed by COVID-19, it must be based on shortcomings in defendants’ response to the virus, not on the longstanding systemic constitutional deficiencies in California’s prison health care delivery system,” the judges wrote.

Mueller joined in the opinion but said she disagreed that the constitutional violation isn’t related to inadequate medical care.

“The current circumstances appear to expose, in stark terms, the potential need to revisit the current population cap. Even as I do not believe plaintiffs’ motion grounded in Rule 60(b)(5) can be granted, I am inclined to think this court retains broad equitable powers that might permit some reconsideration of the current cap in light of the unprecedented exigent circumstances here,” Mueller wrote.

She added, “Those circumstances, as is undisputed, present potentially grave risks to members of the Plaintiff classes, as well as to correctional staff and the communities in which they reside, as a result of the COVID-19 pandemic and its impact on the delivery of medical and mental health care in the state prisons. It is undisputed that the delivery of care, to date, remains below constitutional minima.”

Attorney Michael Bien with Rosen, Bien, Galvan & Grunfeld represents a prisoner class led by inmate Ralph Coleman. He said by phone on Sunday that if the state refuses to release the elderly and most medically vulnerable prisoners, the corrections department needs to start taking bolder measures to keep them separated.

He pointed to Mueller’s concurrence, which recommends that inmates be relocated to places where they can maintain a six-foot distance.

“The message is you need to do more and it would be much better to do it on your own without a court order. They’re doing a lot of good things— they just need to do more about the population in prisons,” Bien said.

But the corrections department cannot start releasing prisoners without prior authorization from Governor Gavin Newsom.

“The staff, both clinical and custody, are doing an amazing job but they have an impossible job,” Bien said. “And they need help from the governor’s office.”

Bien said Newsom has the right to commandeer empty state buildings and state hospitals to house prisoners. The national guard could also supply tents.

“We want to suggest that the state come up with a plan that’s not just limited to things inside the existing prisons, but again achieving some of the spacing we need and getting the most vulnerable out of those situations even if you don’t release them,” Bien said. “This is an emergency, and it’s not going to last forever. We need to start taking bolder steps.”

Though reported infection numbers remain low, Bien said he fears the possibility of massive outbreaks at prisons in New York, Georgia and Louisiana. As of Sunday, 13 prisoners and 45 staff have the virus.

“We all know the real numbers because of lack of testing is much, much higher,” he said.

The inmates can still plead their case before a single judge from either of the district courts that handled the original overcrowding lawsuits from 1990 and 2001. A federal judge could order the CDCR to take additional steps short of release, and if that proves insufficient, the inmates may request to reconvene the panel.

— By Maria Dinzeo, CNS