Limits on time, money impact virus mitigation, prisons say

SAN FRANCISCO -- The state prisons department failed to follow through on a program to move medically vulnerable inmates from overcrowded dorms to less congested cells, an agency attorney told a federal judge Thursday.

Paul Mello, an attorney for the California Department of Corrections and Rehabilitation, said implementation of the pilot program was halted because the person spearheading it was too busy working on another project determining whether there's adequate bed availability to allow for isolation and quarantine.

U.S. District Judge Jon Tigar replied that he's relieved the issue was a shortage of time rather than another complication with COVID-19's spread through the state prison system.

"It's actually good to hear that's the only problem, and it's not an infectious disease reason why we can't do both at once," he said.

Tigar oversees a two-decade-old class action over prison overcrowding that was revived in light of concerns that California's prisons could be overrun by the virus. He's scheduled regular court hearings to assess the state's efforts to protect the safety of its prisoners. Plata v. Newsom, 01-CV-01351 (N.D. Cal., filed April 5, 2001).

Since March, the state has cut its prisoner population by more than 10,000. It's outlined a plan to release another 8,000 by the end of August under four categories of people, those with fewer than 180 days remaining on their sentences, those with less than one year remaining on their sentences who are at some of the most crowded facilities and those who are at high risk of dying from the virus if they catch it.

The agency also intends to give 12 weeks worth of positive programming credits to nearly 108,000 convicts, which it estimates will lead to the release of 2,100 of them.

During the Thursday Zoom video hearing, Tigar gauged the prisons department's progress in its various programs to contain COVID-19 in its 33 facilities, which are were at 125% capacity, according to a June estimate.

While the agency still intends to start moving medically high-risk people, Clark Kelso, the court receiver for medical care in the prison system, said there was simply not enough time. The person assigned to implement the program, he continued, had a higher priority project related to state-mandated isolation and quarantine measures.

"I directed him to focus on the bed project, which turned out to be a more complex undertaking than anticipated," Kelso said.

There is no timeline on when it's expected to be completed but Kelso said work on it would immediately resume.

Tigar responded that there are consequences to resource mismanagement.

"There's such a high opportunity cost to everything we're doing," he said. "If you spend money on one thing, you can't spend it on the other thing. The same is true of time."

Identifying a problem across a bulk of the state's court filings, Tigar was frustrated over how the agency presented its data. He criticized its attorneys for giving raw data without percentages to put it into context.

For example, the state indicated Folsom prison tested 1,183 staff members for the virus but did not state the total number of its staff.

As a result of ambiguity over whether the agency is following through on actions it said it would take, plaintiffs' attorneys argued it's impossible to determine how many inmates will be released pursuant to its plans. While the state's attorneys said thousands of convicts are eligible for release, they said none of its programs actually require it to do so.

"Because the state failed to do anything other than to say it will consider release for some when it chooses to do so, at this point it can only be said that it is not known if these programs will result in enough releases to substantially reduce sickness, death and crowding in the prisons," wrote Prison Law Office attorney Steven Fama in a court filing.

Fama urged Tigar to order that the agency provide all of its data on "who's being released and why and whether programs are reaching the people and creating the pace to minimize harm."

Mello replied that some data was not included because he did not want to confuse or mislead the court.

"There's no effort to hide anything," he said. "We're always hesitant to provide incomplete and not verified information to the court. That's our struggle."

Plaintiffs' attorney Sophie Hart also told the judge that the prisons department did not submit a revised plan on staff testing protocols, which currently requires baseline testing on all staff be completed by July 16. She said a court order would help to force its hand.

Mello maintained an order is unnecessary, noting the scale of the effort. "I don't want it to be lost on how many tests have been done," he said. "We're undertaking a massive endeavor right now."

Tigar commented, "Doing nothing is not an option. Just telling the parties to keep talking about deadlines is not the order I'm likely to make."