May 8, 2020

COVID-19

State Corrections: Response to COVID-19

The emergence of the coronavirus disease 2019 (COVID-19) represents a serious challenge for the California Department of Corrections and Rehabilitation (CDCR). This is because the department’s staff and the populations they oversee—which include adult inmates and parolees and certain youth offenders—are often in close proximity to one another. As of May 7 2020 there was 1 COVID-19 related inmate death and 447 confirmed cases of COVID-19 among inmates, including 23 inmates who have since recovered. In addition, self-reported data indicate that 169 staff members tested positive for COVID-19 (166 prison staff members and 3 staff members at juvenile facilities). (Regularly updated data can be found on CDCR’s website.) In this post, we discuss actions the administration and federal courts have taken in response to COVID-19 within CDCR.

Administration’s Response to COVID-19

In order to mitigate the spread of COVID-19 among CDCR staff and the populations they supervise, the department has made various changes to its operations. Below, we describe the changes implemented for prisons, parole, and the Division of Juvenile Justice (DJJ).

Prisons

Inmate Medical Care. Currently, CDCR’s inmate medical system is under the direct management of a Receiver appointed by a federal court in a case now known as Plata v. Newsom. Under the direction of the Receiver, CDCR has taken a number of steps in response to the COVID-19 outbreak. For example, the department suspended nonurgent health care services and is providing information to inmates on how they can minimize their risk of infection. In addition, the Receiver has issued guidance on how to respond to potential and confirmed cases of COVID-19. Under this guidance, inmates with influenza-like symptoms are to be tested to determine if they have influenza or COVID-19—with priority given to symptomatic inmates who are 60 years old or older, have chronic medical conditions, or are immunocompromised. Symptomatic inmates are moved to isolation and housed alone until it is determined if it is influenza or COVID-19—at which point patients may be housed together with similar cases. Inmates who have had contact with an individual with COVID-19 are quarantined and could be housed with other individuals who have had the same exposure.

Population Management. CDCR has taken various actions to increase physical distancing in prisons by reducing the size of the inmate population, as well as reconfiguring and relocating inmate housing. Some of the major actions include:

  • Suspension of Intake. On March 24, 2020, the Governor issued Executive Order N-36‑20, which directed the Secretary of CDCR to temporarily suspend intake to state prison—meaning inmates sentenced to state prison will instead remain in county jail until the suspension is lifted. Intake is currently suspended until May 22, 2020, though the Secretary may continue to suspend intake in 30-day increments as needed. The administration estimates that the currently authorized 60-day suspension of intake will reduce the population by 5,000 to 6,000 inmates. (As of April 22, 2020, the state inmate population was about 118,200 inmates.) A total of $5.7 million from the General Fund has been provided to reimburse counties for housing inmates in jail for the first 30 days of the intake suspension.

  • Expedited Releases. CDCR has the statutory authority to move or release inmates from an institution if there is an emergency threatening their lives. CDCR used this authority to expedite the release of about 3,500 inmates who were due to be released within 60 days of March 31, 2020 and were (1) not serving sentences for violent crimes or domestic violence and (2) not required to register as sex offenders. A total of $3 million from the General Fund has been provided to reimburse counties responsible for supervising many of these individuals in the community.

  • Relocation of Inmate Beds. CDCR has taken various actions to reduce the density of dormitories, including relocating over 1,000 inmates to vacant space within prisons, such as gymnasiums, visiting rooms, and outdoor tents. In addition, the department is reconfiguring beds in dormitories into clusters of eight beds with six feet between each cluster.

Other Operational Changes. In addition, CDCR has made various other operational changes to reduce the risk of contagion within the prisons. Some of the changes include:

  • Restrictions on Individuals Entering Prisons. Non-incarcerated individuals—unless they are staff—are generally restricted from entering the prisons. Accordingly, in-person visitation has generally been suspended. However, CDCR has taken steps to reduce costs and expand access to other forms of external communication for inmates such as phone calls and e-mails.

  • Screening of Individuals Authorized to Enter Prisons. Individuals who are authorized to enter the prisons must first be screened. This consists of taking their temperatures and a verbal screening to determine if they are experiencing symptoms of COVID-19. Individuals who have a temperature above 100 degrees Fahrenheit or respond that they are symptomatic are not allowed to enter the prison. A secondary screening by a licensed health care staff member is required in certain circumstances, such as if an individual appears to be symptomatic but reports that they are not.

  • Suspension of Rehabilitation Programs. Most inmate rehabilitation programs—which typically involve contractors meeting with groups of inmates—have been suspended. However, CDCR is providing in-cell assignments and resources where possible to allow inmates to continue their studies and earn time off their prison term through sentencing credits for participating in these programs.

  • Changes to Parole Hearings. The Governor’s Executive Order N-36‑20 directed the Board of Parole Hearings (BPH) to suspend in-person parole hearings for 60 days. The Secretary of CDCR may extend this suspension for additional 30-day increments as needed. In addition, the order directed BPH to begin conducting parole hearings via videoconference no later than April 13, 2020.

  • Cleaning and Personal Protective Equipment. To further reduce the risk of contagion, CDCR reports it is conducting additional cleaning and issuing personal protective equipment. Common areas (such as dayrooms, showers, restrooms, and offices) are cleaned at least every three hours and touch points (such as telephones and doorknobs) are disinfected regularly. In addition, the California Prison Industry Authority is producing hand sanitizer and cloth masks for use by both inmates and staff members.

Parole

Restrictions to Minimize Travel. CDCR has suspended all transfers and travel into or out of the state for parolees. In addition, work-related travel by staff members that involves commercial transportation is limited only to essential travel.

Changes to Promote Physical Distancing. To promote physical distancing, CDCR has also modified the rules parolees are required to follow in the community. For example, the department suspended most in-person parole office visits and modified how parolees must contact their parole office after being released from custody to allow for these initial contacts to be done remotely for many inmates.

Steps to Secure Housing for Parolees. CDCR is working with the Office of Emergency Services and a community service provider to provide hotel rooms for parolees who need to complete a period of quarantine or isolation.

DJJ

Delay of Reorganization. As part of the 2019‑20 budget package, the Legislature authorized the removal of DJJ from CDCR and making it a separate department under the Health and Human Services (HHS) Agency beginning July 2020. However, the Governor issued Executive Order N-40‑20 on March 30, 2020, which delayed the reorganization by a year in order to allow existing resources within DJJ and the HHS Agency to be utilized to respond to COVID-19 rather than support the reorganization. As a result, DJJ will remain in CDCR until July 2021.

Suspension of Intake. Similar to the intake of inmates in prisons, Executive Order N-36‑20 also suspended intake into DJJ. Any statutory or other provisions that would typically require DJJ to accept youth offenders have been temporarily waived or suspended.

Restrictions on Entering Facilities. DJJ has suspended visitations and instead has begun to provide youth with an ability to make video calls and additional free phone calls. Individuals who are allowed to enter the facility, such as DJJ staff, undergo the same screening process utilized by the prisons.

Other Operational Changes. The Board of Juvenile Hearings—which conducts annual reviews of youth and discharge consideration hearings—is now conducting proceedings remotely by video conference rather than in person. Youth will continue to have access to educational services through distance learning but all volunteer-led programs have been suspended. DJJ has also increased the frequency with which common areas and touch points are cleaned and disinfected.

Court Oversight of State’s Response to COVID-19

Ongoing Federal Court Oversight of CDCR Health Care. In 1995, after finding the state failed to provide constitutional mental health care to inmates, a federal court in the case—now referred to as Coleman v. Newsom—appointed a Special Master to monitor and report on CDCR’s progress towards providing an adequate level of mental health care. In 2006, after finding the state failed to provide a constitutional level of medical care to inmates, a federal court in Plata v. Newsom appointed a Receiver to take control over the direct management of the state’s prison medical care delivery system from CDCR. In 2009, a federal three-judge panel—convened at the request of the plaintiffs in Coleman v. Newsom and Plata v. Newsom—declared that overcrowding was the primary reason that CDCR was unable to provide adequate health care and ordered the state to reduce the population of its prisons.

Plaintiffs’ Actions Regarding COVID-19. Plaintiffs in the above lawsuits have requested that the courts require CDCR to further reduce population density and make additional modifications to operations in response to COVID-19. For example, plaintiffs have requested that the courts order CDCR to increase physical distancing and further protect particularly vulnerable inmates through additional reductions to the inmate population and modification of living arrangements. In addition, plaintiffs have requested that CDCR make further operational modifications including (1) expanding the use of telehealth; (2) providing inmates with greater access to communication and entertainment devices; and (3) providing additional resources upon reentry, including 90 days of medication.

Court Actions. On April 4, 2020, the three-judge panel denied the plaintiffs’ requests on the procedural grounds that they must first pursue relief in a single-judge court, such as the Plata or Coleman courts. The plaintiffs subsequently filed requests in both the Plata and Coleman courts. On April 17, 2020, the Plata court denied plaintiffs’ requests because it did not identify constitutional violations in CDCR’s current response to COVID-19. The Coleman court has issued orders directing CDCR to provide continued access to inpatient mental health care during the pandemic and requiring CDCR to provide a strategic plan to protect inmates who receive mental health services and are vulnerable to the virus due to their age or medical conditions. At the time this post was prepared, the Coleman court had yet to rule on the constitutionality of the state’s response to COVID-19. Both the Plata and Coleman courts continue to monitor CDCR’s response and could require the state to take certain actions in the future.