DELIBERATE INDIFFERENCE: CA Appeals Court Orders 50 Percent Reduction of San Quentin’s Population, While COVID Numbers Creep Up Again at Other State Prisons With Little Notice

As of this week, at San Quentin State Prison, California’s oldest and one of its most notorious prison facilities, there have been 2,211 confirmed cases of COVID-19.

Of those cases, 28 men who were residents of San Quentin have died of the virus.

Among those who have had the virus, from what has been reported to WitnessLA anecdotally, an unspecified number of people in the prison, or those who have been already been released from SQ, are struggling with some kind of post-COVID damage, much of it serious in nature.

They are the “long haul” patients, as medical professionals on the outside are starting to call them.

In addition, there have 298 confirmed cases of COVID-19 among San Quentin staff members, and one of those staff members died.

In the state prison system as a whole, 71 incarcerated people have died of COVID-19, as of October 22, 2020.

One of the men at San Quentin who has already been infected with COVID-19, and is still locked-up in the prison, is a 64-year-old named Ivan Von Staich.

Von Staich is serving a sentence of 17 years to life for a 1986 conviction of second degree murder that involved a gun. and a second 13 year sentence for attempted murder. He killed the husband of his former girlfriend, and also assaulted her badly. His total sentence is 30-to-life.

In any case, Mr. Von Staich has been in residence in some California prison facility or other since 1989, 31 years.

In May of this year, before COVID-19 had arrived at San Quentin, Von Staich (who is reportedly something of a jailhouse lawyer) and his attorney filed a petition for writ of habeas corpus claiming that the California Department of Corrections and Rehabilitation (CDCR), was not adequately prepared to respond to a possible outbreak of COVID-19 should one materialize at the Marin County facility.

Von Staich’s concerns turned out to be prescient.

Due to a staggeringly irresponsible set of actions — and lack of actions — on the part of the state’s prison system in general, and officials at two different facilities in particular, during the first week of June, 2020, COVID-19 was imported to San Quentin from the California Institution for Men (CIM) located in Chino, California, in the form of more than 100 people, a large percentage of them of already infected, who were transferred from CIM that, at the time, had the state’s worst COVID outbreak.

(More on the virus importing debacle in a minute.)

Shortly thereafter, San Quentin suffered an outbreak of COVID-19 that, over a period of weeks, would eventually infect approximately 75 percent of the residents of SQ, and dozens of prison staff.

After watching his client’s prediction come true, Von Staich’s court-appointed counsel filed a supplemental petition on July 23, 2020.

Three months, and multiple deaths later, on October 20, 2020, a three judge panel of a California Appeals Court issued a 43–page ruling that did not have a cheerful tone.

First of all, according to the ruling, Von Staich was ordered removed from San Quentin State Prison. Prison officials could either transfer him to another CDCR facility “that is able to provide the necessary physical distancing and other measures to protect against COVID-19,” or to another placement that met those same criteria.

Then, the panel ruled that the CDCR could not stop with addressing Mr. Von Staich’s safety, but must reduce San Quentin’s population by approximately 50 percent, by either by releasing residents on parole or transferring them to “another correctional facility administered or monitored by CDCR,” whatever it took lower the SQ population to “no more than 1,775 inmates,” in order to reduce the population enough that it would be possible to “allow sufficient physical distancing” among those people who remained.

The COVID-19 outbreak at San Quentin was “the worst epidemiological disaster in California correctional history,” wrote the three judge panel, in case anyone missed the point.

Furthermore, they wrote, there was no assurance that San Quentin wouldn’t experience a second or even third spike, wrote the judges, “as it did during the Spanish flu pandemic in 1918.”

Deadly transfers

As the judges said, the catalyst of the outbreak of COVID-19 infections and deaths was the transfer by CDCR of 121 inmates from the California Institution for Men (CIM) to San Quentin.

Here’s essentially what happened.

CIM, which is also known as “Chino,” due to its location in the town of Chino, was the first of California’s prisons to have a big outbreak of COVID-19.

By May 1, when few CDCR facilities had anyone testing positive at all (presuming they were testing people), CIM had 91 residents who had the virus.

It is unclear how accurate those numbers were since the CDCR generally, and CIM specifically, still hadn’t done all that much testing, in part because state didn’t have enough tests, according to a CDCR spokesperson at the time. Even so, CIM’s numbers continued to climb.

On May 27, 2020, Xavier Becerra, the Attorney General of California, along with attorneys from the Prison Law Office, filed a joint statement saying that, due to the highly contagious nature of the virus, prison cells rather than dormitories should be used to house patients who are at medically high risk, even in prisons where there is not yet an outbreak.”

At Chino, most of its residents were stuffed into overcrowded dorms, where the notion of social distancing was laughable. So it was hardly surprising that, once the virus got loose, it spread quickly.

In response to the Becerra/Prison Law Office’s legal red flags, the CDCR agreed to transfer approximately 700 “high vulnerability” residents out of CIM’s petri dish dorms 15 other prisons where theoretically the transferred men were to be housed in single-man cells.

The plan was fine on the surface, and CIM officials assured all concerned that the vulnerable people who were on the list to be transferred had been tested and they didn’t have the virus.

There was one fact the CIM officials left out. Instead of testing the men the day they were to be transferred in early June, most of the men had been, inexplicably, tested weeks before the transfer took place. And no one evidently thought it wise to test them again.

Matters were not help that many, if not most, of the transfer-slated people had been housed in the zero distancing dorms, which were often located next to other dorms known to contain people who had tested positive, which meant, in addition to the petri dish environment in each dorm, there was a certain amount of intermingling — although no one outside knew of these conditions if one was not talking to people on the inside, and some of their family members. (For the past five months, WitnessLA has been talking to sources inside multiple facilities, CIM included.)

And so it was that first a few and then more of the transferees said they felt ill after landing at San Quentin, and then began testing positive shortly after arrival. Meanwhile, according to the judicial panel’s ruling, for days, the transferred inmates used the same showers and ate in the same dining hall as other San Quentin inmates.

When the positive tests began appearing, the rest of the transfers were abruptly halted due to the rapidly expanding catastrophe.

But, by that time, the COVID-19 toothpaste, was well out of the tube.

Public pressure

While there was little public notice when the numbers began to climb at CIM, when COVID-19 exploded at famous and Marin County-located San Quentin, it quickly became national news, and the CDCR realized they needed to do something.

Due to several class action lawsuits having to do with inadequate medical care due to severe overcrowding in the California correctional system, the delivery of medical care in California prisons is overseen by a federal receiver appointed by a fed district court pursuant to the long-running civil actions.

When the gravity of the issue at San Quentin became clear, the federal receiver asked Dr. Brie Williams, director of the University of California San Francisco (UCSF) Criminal Justice and Health Program and Dr. Stefano Bertozzi, dean emeritus of the University of California Berkeley School of Public Health, to pick a crew of experts then get over to SQ to see what needed to be done.

The Wiiliams and Bertozzi crew came back to the receiver with a report entitled Urgent Memo.

After outlining the vulnerabilities of inmates, staff, and others in the community, the Urgent Memo emphasized the immediate need to drastically reduce the inmate population.

“There are currently 3547 people in total incarcerated at San Quentin,” said the memo writers, “approximately 1400 of whom have at least one COVID-19 risk factor (as do many, unknown, staff members). This means these individuals are at heightened risk of requiring ICU treatment and/or mortality if infected.”

It is important to note, the team continued, ” that we spoke to a number of incarcerated people who were over the age of 60 and had a matter of weeks left on their sentences. It is inconceivable that they are still in this dangerous environment.”

Deliberate indifference

Yet despite the reputations of Williams and Bertozzi, and despite the urgent situation that the memo reported, it was roundly disregarded, a fact that seemed to particularly enrage the appellate judges, who pointed in their ruling to the U.S. Constitution, and the California Constitution.

“The Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution both require correctional officials to provide inmates adequate medical care,” they wrote.

And the CDCR and the San Quentin warden, the judges continued, were violating the Eighth Amendment with the worst of consequences.

In their ruling, three judges did not order the state to release the plaintiff in the legal filing, Mr. Von Staich who, while he was granted parole in 2011, had his parole decision was reversed by then Governor Jerry Brown who found that Von Staich “would pose a current danger to the public if released.” (Soon he will be up for parole again.)

Yet, Von Staich’s sentence, wrote the appellate panel, does not change the fact that the CDCR and the San Quentin warden have “shown deliberate indifference to the risk of substantial harm to petitioner, a life prisoner whose age makes him vulnerable to COVID-19 even aside from preexisting health conditions, and who also suffers from respiratory problems due to bullet fragments lodged in his left lung.”

That same deliberate indifference was risking the lives of the rest of the prison’s inmates, concluded the judges.

Meanwhile back at CIM

While the appellate court focused rightly on San Quentin, where at the moment, COVID numbers have slowed for the moment to only one active case, back at CIM, which has had a total of 1382 residents testing positive since the pandemic began, as of the last fourteen days there are 42 new active cases.

There are also three more deaths in the system as a whole, one of which was at CIM, although the man who died reportedly died at an outside hospital.

This brings CIM’s list of COVID dead up to 25.

The other two COVID deaths were at Ironwood State Prison and the California Health Care Facility.

Weirdly, although the notifications were just emailed Thursday, Oct 22, the new deaths occurred on August 22, August 25, and September 2.

The nearly two month delay makes one wonder what else we don’t know.

Postscript

In the days since this story was originally published three more incarcerated people have died in California prisons, one of them at CIM bringing the total dead to 26.