US judge won’t halt county to state prison transfers

The federal judge overseeing the state prisons department's efforts to contain the spread of COVID-19 agreed with the agency Wednesday that it cannot suspend intake of sentenced convicts from county jails as it did at the outset of the pandemic.

U.S. District Judge Jon Tigar allowed the California Department of Corrections and Rehabilitations to continue to admit inmates who were held in the jails during the pandemic as jails start to become overcrowded.

"I understand that the CDCR has certain obligations to the counties as a matter of law and as a matter of political reality," he said.

Intake has been a recurring issue at monthly status conferences held by Tigar to monitor the virus at state prisons.

The department began readmitting inmates from jails Aug. 24, taking in 100 people the first week and 200 the next week. By slowly reopening intake, the department said it could test processes, mitigate risk and ensure safety.

Plaintiffs' attorneys at the Prison Law Office argued that defendants have abandoned their measured approach to the issue. The state, for example, accepted 537 sentenced prisoners from the Stanislaus, San Diego and Orange County jails in the first two weeks of October.

The department authorized this week 610 inmates to be admitted, mostly from overburdened Southern California counties. It has maintained that it thoroughly discusses with the county jails whether it has to permit intake, and if so, how much space is available such that social distancing of newly arriving inmates can safely be accomplished during the initial quarantine period.

Prisons department attorney Paul Mello said the state ensures that counties are complying with safety protocols, including testing inmates and transportation staff. He cited in a court filing an incident in which a county sending inmates for intake failed to provide an Orange County prison with test results, resulting in a bus with the new detainees being refused entry.

During the Wednesday video hearing, plaintiffs' attorney Alison Hardy argued it's reckless to continue admitting new convicts into state prisons before a measure is finalized to ensure that the space allocated for quarantine and isolation at each prison is adequate to respond to a virus outbreak.

"There are issues that need to be worked out before people start coming in," she said. Plata v. Newsom, 01-cv-01351 (N.D. Cal., filed April 5, 2001).

Donald Specter of the Prison Law Office also cited a report by court receiver J. Clark Kelso urging defendants to offer celled housing to medically vulnerable people who reside in dorms. He said moving forward with intake before transferring the detainees could put pressure on an already stressed quarantine space and result in further spread of the virus.

But Mello didn't budge. He replied the state has an "obligation to those that need to be housed in its institutions. CDCR doesn't have the luxury of bifurcating on this issue."

Tigar responded there's no ethical solution to the issue since the department has a duty to accept prisoners into its facilities if possible as county jails are likely becoming more crowded as the state begins to open back up.

"In the philosophy of ethics, there's something called the train problem, which this reminds me of," he said. "The choices in front of the court are not good, and the choices that the CDCR faces are not good."

Tigar also endorsed his support for Kelso as court receiver after calls by state legislators for his removal. Although he did not directly address the issue, he said he has "a lot of confidence in Kelso and his leadership."

"Best in class might be a little strong of a phrase, but it comes to mind," he added.

Kelso was appointed to his role in 2008 in the long-running case over prison health care. In April, he allowed the state to transfer hundreds of inmates from Chino State Prison, which had an outbreak of the virus at the time, to San Quentin, which was virus free, resulting in 2,300 cases and 23 deaths.

Six members of the California Assembly stated in a letter to Tigar, "Mr. Kelso acknowledged that his decision to transfer inmates from Chino to San Quentin was done "too quickly," was a "self-inflicted wound" and a "big mistake."