All but nine of California’s 35 prisons house more people than the facility was designed to hold.
The following article by Juan Haines, Senior Editor of the San Quentin News and Elizabeth Weill-Greenberg is reprinted by the permission of The Appeal, which produces original journalism on how policy, politics, and the legal system impact America’s most vulnerable people.
The conditions for the novel coronavirus to spread rapidly have long been in place at San Quentin State Prison. Like much of California’s prison system, it has been dangerously overcrowded.
As of May 30, no prisoners at San Quentin had tested positive for COVID-19. That day, 121 people were transferred there from a facility with a deadly outbreak. On May 31, California’s department of corrections reported the first confirmed case of a prisoner with COVID-19 at the prison—and within weeks, hundreds were infected.
As of July 20, there have been 2,089 confirmed cases of COVID-19 among prisoners at San Quentin, according to the California Department of Corrections and Rehabilitation (CDCR). About 1,100 people have recovered.
Thirteen people incarcerated at the prison have died from complications arising from COVID-19, according to the CDCR; six were serving a death sentence. Last year, Governor Gavin Newsom imposed a moratorium on executions and ordered the execution chamber closed. California has not carried out an execution since 2006.
So far this year, 11 death row prisoners have died, compared with nine for the entirety of 2019. Two died in February of natural causes, according to the CDCR.
The cause of death for the remaining nine is pending, according to CDCR’s website. Of those nine, three people were found unresponsive in their single cells—on March 28, June 24, and July 1. The remaining six died between July 3 and July 20 of apparent complications from COVID-19, according to the CDCR; all six were hospitalized at the time of their death.
Some who test positive for COVID-19 or have been exposed to someone who tests positive are isolated in administrative segregation housing units, according to the CDCR. Administrative segregation is generally considered to be a euphemism for solitary confinement.
“Those being placed into segregated housing due to COVID-19 are not being moved for punitive reasons, they are moved in order to prevent further spread of the COVID-19 virus in the affected unit,” reads the CDCR website. “Patients on isolation are screened twice a day by health care staff.”
When asked for the number of people in administrative segregation because of COVID-19, CDCR spokesperson Jeffrey Callison, emailed The Appeal, “We don’t share numbers in quarantine or isolation.”
As early as March, public health experts warned of an impending crisis facing the state’s overcrowded prisons. (The Justice Collaborative organized a letter by public health experts to urge the governor to release individuals who are over 60 or medically vulnerable, and identified as low-risk or have five years or less left on their sentences. The Appeal is an editorially independent project of The Justice Collaborative.)
“The crowded conditions make it difficult, if not impossible, for the prison system to spread people out,” said Don Specter, executive director of the Prison Law Office. “They’re living in a place which makes contagion very probable.”
The Prison Law Office, along with other attorneys, filed an emergency motion in March, asking the federal district court to order the CDCR to release to parole or post-release community supervision prisoners within a year of their parole date who were either serving time for a nonviolent offense or identified as low risk by the CDCR’s risk assessment tool. Even before the pandemic, some prisons had too few on-site medical beds to meet patients’ needs, the attorneys wrote. A pandemic, they cautioned, would be catastrophic. The court denied their motion.
Throughout the pandemic, the prisons have remained overcrowded even though the department of corrections has reduced the state prison population by about 10,000 people since March. All but nine of California’s 35 prisons house more people than they were designed to hold. For the prisons to operate at about 100 percent capacity, the population would have to be reduced by more than 16,000 people. Without mass releases, few options remain to keep prisoners safe.
To stem transmissions, San Quentin’s population must be reduced by 50 percent, according to a report released in June by the University of California, Berkeley School of Public Health and Amend, a prison reform organization. As of July 15, the prison housed 3,362 people, at about 109 percent of its capacity. At the beginning of this month, David Sears, an infectious disease specialist and professor at the University of California-San Francisco, spoke to state legislators as a representative of Amend.
“California prisons are already over 100 percent capacity,” he testified. “We must depopulate all of our prisons immediately if we are to have any hope of avoiding what has happened at San Quentin at California’s other facilities.”
After public outcry about the rising infection and death rates, the state’s department of corrections announced on July 10 that up to an estimated 8,000 prisoners could be eligible for release by the end of August. As part of this effort, the CDCR will grant a positive programming credit to prisoners, which would reduce a sentence by 12 weeks. Those who committed a “serious rules violation” between March 1 and July 5 of this year are not eligible for the credit. Serious rules violations include murder, rape, and assault, as well as possession of a cellphone and “gang activity,” according to the CDCR’s announcement.
The department also plans to release prisoners based on a number of criteria, such as type of offense, medical vulnerabilities, and time left to serve.
For those incarcerated at prisons with “large populations of high-risk patients,” people will be considered for release if they have a year or less to serve, are not serving time for a violent crime, have no current or prior sentence that requires them to register as a sex offender, and are not at a high risk of violence, according to the department.
Prisoners who are 30 and over and meet these criteria are “immediately eligible for release,” according to the CDCR. Those who are 29 and younger, will be reviewed case by case. These groups will be screened on a rolling basis until the department “determines such releases are no longer necessary.”
People who are identified as “high-risk medical,” such as those who are over 65 and have chronic conditions, are eligible for release, as long as they are not serving a life without the possibility of parole or death sentence, and are not identified as “high-risk sex offenders,” according to the CDCR.
The department is also “reviewing potential release protocols for incarcerated persons who are in hospice or pregnant,” according to the department’s announcement. “Everybody will be reviewed based on both their current health risk and risk to public safety.” CDCR spokesperson Dana Simas confirmed to The Appeal that the review will include those sentenced to death or life without the possibility of parole.
The department will be “expediting the release” of those who are still incarcerated despite being approved for parole by the Board of Parole Hearings and the governor. As of July 15, there were 436 people who were incarcerated after having received a grant of parole, according to the CDCR.
The department of corrections’ announcement featured a number of statements from local advocacy groups, praising the release plan. “We applaud the Governor for working on two crucial fronts: getting the most vulnerable people out of harm’s way and stemming the spread of COVID-19 inside prisons and neighboring communities,” said Anne Irwin, director of Smart Justice California.
But other experts condemned it as dangerously inadequate.
The type of crime should not disqualify people for release, as there is no correlation between offense and risk to public safety, said Hadar Aviram, a professor at the University of California Hastings College of the Law. “It’s too little, it’s too late, it’s too reactive, and it’s too restrictive,” she said of the CDCR’s plan.
Those who are over 50 should be prioritized for release, as research shows people typically age out of committing crime, she said. More than 30,000 people age 50 and older were incarcerated as of December 31, 2017, the most recently available CDCR data. According to the same report, almost half of the state’s prisoners—over 60,000—were identified as low-risk to reoffend.
“I’m seeing the pattern of trying to carve out of the prison population,” Aviram said, “these slivers of people that they think are going to be non-controversial and hoping that if they have this sliver and this sliver and this sliver, overall the numbers are going to add up. The numbers are not going to add up. The number is 8,000. It’s not enough.”
Adnan Khan, executive director of Restore Justice, agrees that the plan fails to protect the people incarcerated inside the state’s prisons. The day before the plan was announced, he stood outside San Quentin at a press conference with the Stop San Quentin Outbreak coalition.
“This is not a COVID response. COVID responses are urgent and they’re much more drastic,” he said. “This is more of a political response to the pressure versus a COVID response for health.”
In 2003, Khan, then 18 years old and homeless, committed a robbery with an accomplice. He had agreed to grab the victim’s marijuana, believing that no weapons were going to be used. But during the crime the getaway driver stabbed the victim, killing him.
Under the felony murder rule, Khan was held responsible for the murder, and sentenced to 25 years to life. Last year, he went before Judge Laurel Brady who resentenced Khan, then 34, to three years, thanks to a change in California’s felony murder statute.
“In a matter of three minutes I went from being a violent, crazy criminal offender, whatever those derogatory terms are,” said Khan. “Three minutes later, I’m not even on parole or probation. I’m safe for society.”
Khan was incarcerated at San Quentin for four years. At least two people he served time with their died from COVID-19, he said.
“I’m doing this interview with a heavy heart and really frustrated,” he said. “It’s like, who’s next? Which one of our friends is next?”
The crisis facing California prisoners has been years in the making. Between 1980 and 2006, the state’s prison population increased by 514 percent, according to the Brennan Center for Justice, in part because of harsh sentencing laws. In 1994, California enacted the three strikes law, which mandated at least a 25 to life sentence for any third felony.
As the prison population increased, conditions inside deteriorated.
In 1990, a class action lawsuit, Coleman v. Brown, alleged that prisoners with severe mental illness were denied adequate mental healthcare. The federal court agreed and appointed a special master to monitor reforms. In 2007, he reported that the declining quality of care was due to overcrowding.
Then in 2001, the Prison Law Office filed a class action suit, Plata v. Brown, alleging that prisoners with serious medical issues were also denied adequate care. About four years later, the court appointed a receiver to oversee changes to the medical system. In 2008, he reported that overcrowding was contributing to dangerously inadequate medical care and the spread of infectious diseases.
The cases were consolidated before a three-judge panel and, in 2009, the panel ordered the state to reduce its prison population to 137.5 percent of design capacity within two years. Individual prisons could go beyond that, as long as other prisons balanced them out.
“Until the problem of overcrowding is overcome it will be impossible to provide constitutionally compliant care to California’s prison population,” the judges wrote.
The state appealed and, in 2011, the U.S. Supreme Court agreed that overcrowding in California’s prison system violated the Eighth Amendment’s prohibition on cruel and unusual punishment. “Prisoners are crammed into spaces neither designed nor intended to house inmates,” wrote Justice Anthony Kennedy for the majority. “As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers.”
Prisoners at San Quentin have had to struggle with the ominous threat of infection in an increasingly distressing environment. They can only shower every three days, unless they’ve been identified as critical workers who are permitted to shower after their shift, according to a page on the CDCR website that details actions the department is taking to address the outbreak at San Quentin.
On July 14, the CDCR suspended phone calls in shared spaces, according to CDCR spokesperson Callison. When asked if there is any phone access that is not in communal spaces, Callison emailed The Appeal that there is not. “If it is a legal call, requested by the attorney or the court, it is facilitated in a counselor’s office on a non-recorded phone,” he wrote.
The CDCR has also attempted to stem transmission by increasing social distancing among prisoners. As the outbreak at San Quentin became one of the largest in the country, tents to house prisoners went up on the baseball field outside.
In the spring, the gym was turned into housing, according to the CDCR. In Amend’s report, the authors warned that “there is little to no ventilation” inside the San Quentin gym. The conditions, they wrote, were creating a “high-risk for a catastrophic super spreader event.”
On April 11, North Block had just finished serving breakfast to the more than 750 prisoners there. “I need seven volunteers to work in the gym,” a correctional officer asked over the block’s public address system.
The day before, a flatbed truck drove up to the gym. The truck’s sideboards were topped with battleship-gray 3-inch twin-size mattresses that most California prisoners sleep on.
Six prisoners went to the gym to set up 112 cots, in two rows of four with 30 inches between beds on the sides, and 12 inches head to head. Six feet separated 14 pods of eight beds, each. Several men continued the work over the next two days. For their labor, the set-up crew earned extra lunches and cleaning supplies.
Before the pandemic, the gym’s morning hours were filled with prisoners taking rehabilitative classes. At night, they watched TV, and played basketball, table tennis, card games, role-playing games, and chess. There were guitars and keyboards, haircuts being given, and guys sitting at stainless steel tables studying parole plans—what to do on the other side of the wall.
Those sleeping in the gym said they did not feel they could keep an adequate distance from one another. De’Jon Tamani Joy said when he and other prisoners got to the gym, they were promised there would be partitions between the beds.
“No partitions have been made available, nor seem to be coming,” Joy said. “The environment I’ve been housed in has created stress and anxiety.”
Curtis Thiessen agreed there should be partitions. “I don’t feel safe here because of the living conditions,” he said. “I believe we’re too close together.”
Fearing he would contract the virus, Ronald Shanko said he didn’t want to move to the gym but feared a disciplinary report if he refused. “We’re jammed in like sardines in a can,” he said.