State has constitutional duty to reduce jail populations during pandemic, ACLU attorneys say

Attorneys who filed a writ petition in the California Supreme Court last week say the state has mandatory duties under the Emergency Services Act to fix what they allege are unconstitutional conditions in correctional facilities.

The American Civil Liberties Union's argument, filed Thursday, contested the state's response on Tuesday that mandating mass releases of inmates would violate local control of jails. Gov. Gavin Newsom and Attorney General Xavier Becerra are "turning a blind eye to jails and juvenile facilities" during an unprecedented statewide emergency, the ACLU claims.

"While local officials have operational control of correctional institutions, responsibility for the state's emergency response ultimately falls on the governor," the filing states. "By virtue of his emergency declaration, Governor Newsom has assumed both a statutory duty to coordinate, and the power to direct, the activities of local officials as necessary to meet the COVID-19 pandemic."

The state did not dispute that confinement conditions make it impossible to follow Center for Disease Control and local government health guidelines and did not identify one facility where these measures could be followed, stated the filing, signed by Sara A. McDermott of Munger, Tolles & Olson LLP, working with the ACLU.

While the state argued the ACLU presented no statewide evidence of constitutional violations in correctional facilities, petitioners argue that they revealed a "clear pattern of inadequate protections against COVID-19," including 63 declarations from correctional and health care experts, inmates and others familiar with jail conditions.

Inmates must sleep in close proximity, share common utensils and are incapable of staying 6 feet apart from each other, the attorneys argue. Indifference to that during the pandemic, the attorneys said, violates inmates' Eighth and 14th Amendment rights.

The filing also contests the state's recommendation that individual lawsuits in lower courts would be an adequate solution to the issue. "Piecemeal litigation would be inefficient and time consuming, delaying relief and exposing incarcerated people to unjustifiable safety risks," it says.

Citing recent rulings from courts across the nation that held when inmates are confined in conditions that violate federal C and local health guidelines, their constitutional rights are infringed, the attorneys argued the only way to ensure that doesn't happen is for the state to dramatically reduce inmate populations further than the thousands already released.

The high court was requested to act on this case by Monday.

The case is National Association of Criminal Defense Lawyers v. Newsom, S261827 (Cal. Filed April 24, 2020).