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Health Care & Hospital Law,
Criminal

Mar. 20, 2020

Release prisoners to address the COVID-19 crisis

Governor Newsom should address the COVID-19 crisis by addressing the prison overcrowding crisis. Our prisons are so badly overcrowded that the resulting conditions were deemed inherently cruel and unusual, leading the federal courts to order prisoners released.

Mills john web

John Mills

Principal, Phillips Black, Inc.

John specializes in habeas corpus representation of persons facing the death penalty or lifetime in prison. He is also an adjunct professor at UC Hastings College of the Law where he teaches courses on capital punishment and habeas corpus. The views contained herein are his own.

Governor Gavin Newsom should address the COVID-19 crisis by addressing the prison overcrowding crisis. Our prisons are so badly overcrowded that the resulting conditions were deemed inherently cruel and unusual, leading the federal courts to order prisoners released.

As COVID-19 sweeps our state, our prisoners are among our most vulnerable to the infection. That it is almost exclusively prisons and cruise ships where outbreaks of certain infections viruses occur should give us all pause as we face the worst pandemic in at least a century. Even as COVID-19 was making its way into our port, San Quentin was dealing with a flu epidemic.

When a person is diagnosed with COVID-19 or even exposed to someone with such a diagnosis, quarantine is the sane, recommended response. That's the response the California Department of Corrections and Rehabilitation says they are preparing to implement. But given the close quarters in which prisoners live and the devastatingly high infection and rates, taking these measures will become increasingly difficult. After all, prisoners live in tiny cells and most of them have a cellmate. Even where single-celled, they are in close quarters and share critical infrastructure, including showers, cafeterias, and small exercise yards.

Moreover, prisoners are often at great health risks. Beyond the mental health crisis that was the product of overcrowding, prisoners suffer from chronic health conditions. Some of these conditions are simply because many of our prisoners are older. Our state has enacted many progressive reforms aimed at undoing the draconian sentencing practices of a prior generation. But even those reforms have left huge populations of aging prisoners in custody.

Prisoners also have conditions that make them especially vulnerable to COVID-19. They have high rates of diabetes, heart disease, and asthma.

What to do? First, the governor needs to act quickly. We are currently on a steep curve in terms of increases in infections, and once there are infections inside prisons, they will undoubtedly spread quickly.

More concretely, the governor could commute sentences for the elderly and those very close to completing their sentences. The governor should order CDCR to identify which prisoners over 65 are at the least risk to public safety and release them. Removing this group from the prison population is something we should do anyways. But doing so now may save their lives and will free up critical space for quarantining the soon to be swelling population of those incarcerated and infected.

Governor Newsom should do the same thing for those near to end of their prison term. If someone has served 19 years on a 20-year sentence, unless they have a poor disciplinary record, they should be released. For those with a decade or more of a record of good discipline, requiring them to serve an additional few years serves little public good while simultaneously placing them at substantial risk infection. It also requires filling up space that could otherwise be used for isolation and quarantine.

As Tolstoy observed, "The degree of civilization in a society can be judged by entering its prisons." There are many improvements to be made in the way our state administers justice, and as COVID-19 enters our prisons, we should act with urgency and humanity to protect those most vulnerable to it. 

#356850

Ilan Isaacs

Associate Legal Editor
ilan_isaacs@dailyjournal.com

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