Opinion
S263043
07-15-2020
MARSHALL (TAMERA) v. S.C. (PEOPLE)
Stay dissolved; petition denied
The petition for writ of habeas corpus, or in the alternative, petition for writ of mandate is denied without prejudice pending the Sacramento County Superior Court's resolution of the petition filed in that court on May 26, 2020 (Nos. 20HC00342/20FE002482; 0HC00339/14F01112; 20HC00344/19FE00649; 20HC00345/20MI004882; 20HC00343/19FE019454; 20HC00347/20FE001556; 20HC00341/18FE021194), and stayed by that court on July 2, 2020.
This court has treated this petition with urgency, as it has treated other petitions raising similar time-sensitive issues concerning the welfare of individuals held in detention and at risk of infection during the COVID-19 pandemic. The superior court is directed to immediately lift its July 2, 2020 stay of proceedings and expedite the proceedings to ensure prompt and effective resolution of these time-sensitive issues, including by allowing for expedited discovery and conducting expedited hearings, as appropriate.
Given the dynamic nature of the pandemic and the Sheriff's ongoing effort to combat spread of the virus, petitioners are encouraged to file an amendment to their pending petition informing the superior court of any changes in the conditions in the Sacramento County Jail subsequent to the operative dates of the inmate declarations and outlining any measures the Sheriff has taken to protect the inmates' health and safety.
In ruling on the petition, the superior court should be mindful of the previous guidance we issued in National Association of Criminal Defense Lawyers, et al. v. Newsom, et al., S261827, and use all the tools available to it to achieve prompt and effective resolution of the matter. Those tools include the authority to:
• join all parties necessary for full inquiry into the issues raised and for development and implementation of any appropriate relief (Code Civ. Proc., § 389, subd. (a));
• consolidate the action with any similar actions pending in the Sacramento County Superior Court, in the interest of efficiency and in light of public health concerns (Code Civ. Proc., § 1048, subd. (a));
• assign a single bench officer or appoint one or more referees or special masters to bring swift and focused attention to the issues raised (Cal. Rules of Court, rule 3.734; Code Civ. Proc., §§ 638, 639);
• facilitate discussion among all parties to achieve a negotiated resolution that is responsive to local conditions and avoids protracted litigation;
• order interim relief, as appropriate, during the pendency of the action; and
• give the matter expedited consideration for evidentiary hearings, briefing, and any joint discussions for resolution.
The denial of the petition is without prejudice to the filing of a new petition in this court raising similar claims if circumstances warrant. In addition to filing a new petition, petitioners may, by letter brief, provide this court with a case status update on July 31, 2020, or earlier, if the situation warrants. Petitioners may also provide this court with courtesy copies of any amendments to any pleadings filed in the superior court.
The petition is further denied without prejudice to any relief to which petitioners might be entitled after this court decides In re Humphrey, S247278.
Cantil-Sakauye, C.J.
(See concurring, and dissenting, statements.)
CONCURRING STATEMENT BY CUÉLLAR, J.
Though I join the court's order today, I agree with Justice Liu that “petitioners' factual showing in their May 26 petition” conveying disturbing allegations about the Sacramento County jails was “specific, voluminous, and up-to-date.” The trial court has not found this showing is insufficient to address the concerns it raised on April 8, and neither does today's order.
Like Justice Liu, I too am in accord with Justice Anthony Kennedy that the extent of “ ‘civilization in a society can be judged by entering its prisons.' ” (Davis v. Ayala (2015) 576 U.S. 257, 290 (conc. Opn. Of Kennedy, J.). While the court's order today dissolves the trial court stay and contemplates the expeditious resolution of this case in that court, I don't see it as a mere affirmation of the status quo. It's true that we restate some of what we wrote in our May 4 order in National Association of Criminal Defense Lawyers, et al. v. Newsom, et al., S261827, emphasizing the relevance of procedural tools “to achieve prompt and effective resolution of the matter,” because those tools remain relevant to the swift and effective resolution of this matter. (Supreme Court Mins., May 4, 2020, p. 592.) Just as important is the language in today's order that we didn't use on May 4 –– including the reference to a specific date. The challenges facing our jails and our trial courts are as enormous as they are consequential. But when lawyers and courts unduly delay resolution of credible claims about an unfolding disaster, they court disaster.
CUÉLLAR, J.
DISSENTING STATEMENT BY LIU, J.
On May 4, 2020, in response to a petition “rais[ing] urgent questions concerning the responsibility of state authorities to ensure the health and safety of individuals confined in county jails and juvenile facilities in light of the ongoing COVID-19 pandemic,” we issued the following order:
“The issues raised in the petition call for prompt attention in a manner that considers the diversity of local conditions throughout the state. In order to promote expeditious and tailored resolution of petitioners' claims, and cognizant of the important questions raised concerning the balance of local and state responsibility for addressing conditions in jails and juvenile facilities, the court hereby orders the following:
“The petition for writ of mandate is denied without prejudice to the institution of actions raising similar claims against these respondents or other officials or entities in the superior courts of appropriate counties. [¶] For any such filing, the superior court should be mindful of a range of procedural tools to achieve prompt and effective resolution of the matter. . . . [¶] . . . . [¶] Given the dynamic nature of the pandemic, the denial of the petition is without prejudice to the filing of a new petition in this court raising similar claims if circumstances warrant.” (National Association of Criminal Defense Lawyers v. Newsom, S261827, Supreme Ct. Mins., May 4, 2020, pp. 592–593) (NACDL).)
The NACDL order recognizes that superior courts are well positioned to conduct factfinding in the first instance, but in doing so, they must “proceed as expeditiously as possible.” (NACDL, supra, S261827, Supreme Ct. Mins., at p. 593.) Because of the evolving nature of the pandemic, we denied the petition without prejudice, signaling to litigants that these petitions might eventually warrant this court's intervention.
That time has come. On March 20, 2020, the Sacramento County Public Defender filed several habeas corpus petitions in the Sacramento County Superior Court that sought release of similarly situated pretrial detainees and convicted inmates. Petitioners attached various COVID-19 policy statements from law enforcement groups as well as letters in support of release from medical professionals. On April 8, the superior court denied the petitions without prejudice. The superior court gave petitioner Tamera Marshall and the other petitioning inmates leave to amend within 30 days to provide specific facts relating to their conditions of confinement in the county jails. On May 7, petitioners requested an extension of the 30-day deadline in order to further develop those facts through inmate interviews. The trial court granted the extension request and set a new deadline of June 4. On May 26, several weeks after this court issued its guidance in NACDL, petitioners filed an amended habeas corpus petition in the superior court. The amended petition and exhibits, spanning hundreds of pages, included declarations from 44 inmates and four medical professionals as well as community letters in support of release. This petition asked the trial court to use the procedural tools enumerated in the NACDL order, including joining all essential parties to determine conditions in the two facilities and holding a hearing with medical experts, prison officials, and other stakeholders. The superior court took no action, and on July 2, 2020, it stayed the proceedings in its court pending resolution of the matter now before us. In the meantime, petitioners have provided an additional 10 inmate declarations taken after they filed the May 26 petition.
It has now been seven weeks since petitioners filed their May 26 petition in superior court, and despite having done everything this court and the superior court directed, petitioners are still waiting for a hearing. The record does not indicate the reason for the superior court's inaction, though I recognize that our superior courts are deluged with emergency requests every day while struggling to conduct virtual hearings as well as arraignments, jury selection, trials, and other proceedings with appropriate safety measures. (Cal. Jud. Branch, Court Emergency Orders <https://newsroom.courts.ca.gov/news/court-emergency-orders-6794321> [as of July 15, 2020].) Even so, this petition is categorically different from other matters confronting our courts. It concerns the underlying condition at the root of many of the other problems: the spread of COVID-19 itself.
To the extent that the health risks involved in bringing inmates, witnesses, and jurors to court are a substantial part of the current challenges and delays facing trial courts, there are compelling reasons to prioritize the issues posed by this petition. Determining what must be done to protect inmates will also benefit correctional staff, sheriff's deputies, court staff, jurors, witnesses, and all other people who may come into the same space as inmates. Reducing the spread of COVID-19 will ameliorate the other challenges facing our courts. On the other hand, if COVID-19 spreads in the jails, the coming and going of correctional staff as well as the treatment of inmates in local hospitals will create new opportunities for transmission. This will put the broader community at risk, which in turn will make all the other problems worse. (See, e.g., Maxmen, California's San Quentin prison declined free coronavirus tests and urgent advice — now it has a massive outbreak, Nature (July 7, 2020) (hereafter Maxmen).) Indeed, there is some irony (an unfortunate one for petitioners) that the superior court's delay in acting on their petition may be due to implementation of appropriate health and safety measures to keep court personnel safe — the very measures that petitioners seek in the jails to keep themselves safe.
At this juncture, in light of the trial court's inaction, we should issue an order to show cause, appoint a special master, and resolve this matter ourselves on an expedited basis. We have not hesitated to expedite other urgent matters (see, e.g., Patterson v. Padilla (2019) 8 Cal.5th 220, 225; Vandermost v. Bowen (2012) 53 Cal.4th 421, 438; California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 242; In re E.J. (2010) 47 Cal.4th 1258, 1264), and the issues raised by this petition are no less urgent. Moreover, unlike our trial courts that are having to triage an array of time-sensitive matters, we do not lack the capacity to quickly resolve this case.
Based on the allegations contained in the 54 inmate declarations before us, petitioners have made a prima facie case that the Sacramento County Sheriff is acting with deliberate indifference to the health and safety of the inmates in violation of the Eighth Amendment to the federal Constitution. (Lemire v. Cal. Dept. of Corrections and Rehabilitation (9th Cir. 2013) 726 F.3d 1062, 1075; see Farmer v. Brennan (1994) 511 U.S. 825, 843.) The declarations paint a grim picture of the inmates' conditions of confinement. Feverish and coughing inmates linger in the communal dormitories, where inmates sleep, eat, and congregate with no distancing protocols in place. Requests for hand sanitizer, masks, soap, and medical care go unheeded. When symptomatic inmates are medically isolated, they are forced to remain in the same clothes and denied shower and telephone access for up to a week. Tellingly, respondent Sacramento County Sheriff Scott Jones — the official who is the best positioned to know current conditions — has provided no indication that these conditions have changed.
In issuing an order to show cause returnable in this court, we should appoint a special master to determine the current conditions in the jails and any efforts that the Sheriff has made to slow or stop the spread of COVID-19. Backed by the authority of this court, the special master, consistent with proper procedure, can cut through unnecessary obstacles, quickly ascertain the facts, and examine what safety measures are practically available. Unlike the allegations involving multiple counties that we considered in NACDL, the allegations here concern one county and are amenable to a single centralized factfinding process. Once the special master has made findings, we would then solicit expedited briefing from the parties, argue the case, and render a decision. Here, as in another recent matter related to inmate safety, “in light of current public health conditions and the urgency of petitioners' claims, I am doubtful that the superior courts, which have been heavily impacted and burdened by the pandemic, are better positioned than this court to resolve the matter now before us.” (California Attorneys for Criminal Justice v. Newsom (May 13, 2020, S261829) 2020 Cal. Lexis 3220, p. *23 (dis. stmt. of Liu, J.).)
The Attorney General warns that if we decide to resolve this case, we risk becoming entangled in overseeing the jails in all 58 counties in California. This concern is overstated. For one thing, the pandemic has not affected all 58 counties in California evenly; there are many counties with sparse populations that have not reported serious COVID-19 problems. As to other counties, it is speculative to say that this court will receive similar petitions from all of them. Advocates have limited time and resources; they focus their energies on the most serious problems, appropriately so. And if the most serious problems come to this court, I do not see why that would be inappropriate. Further, a major reason for issuing an order to show cause in the present matter is the superior court's lengthy period of inaction, a circumstance that I would not expect to arise in courts in every county. In short, this court has ample ways of controlling its docket and managing litigants' expectations.
I recognize it is unusual for this court to exercise its original jurisdiction. But we are living in unusual times, and this is an unusual case. Just consider what has happened in the 10 weeks since our NACDL order. On May 4, 2020, we observed that “there were 53,616 confirmed cases and 2,138 deaths in California associated with COVID-19. . . . County-level data indicate several hundred confirmed cases of COVID-19 infection among inmates and staff in jails and juvenile detention facilities.” (NACDL, supra, S261827, Supreme Ct. Mins., at p. 591.) As of today, July 15, 2020, according to the State Department of Public Health, there have been 336,508 confirmed cases and 7,087 deaths in California associated with COVID-19. (Cal. Dept. of Public Health, COVID-19 Updates <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx> [as of July 15, 2020].) In Sacramento County, confirmed cases and deaths from COVID-19 are increasing. As of May 4, there were 1,156 confirmed cases and 47 deaths in the county; today, the county has 5,938 confirmed cases and 91 deaths. (Sac. County Pub. Health, COVID-19 Dashboards <https://sac-epidemiology.maps.arcgis.com/apps/MapSeries/index.html?appid=e11bc926165742ab99f834079f618dad> [as of July 15, 2020].) In 10 weeks, we have seen a six-fold increase in confirmed COVID-19 cases statewide and a five-fold increase in Sacramento County.
In that same timeframe, our prisons have seen a sixteen-fold increase in confirmed COVID-19 cases. As of May 4, 2020, there were 396 confirmed cases among prison inmates; as of today, there have been 6,565 confirmed cases and 35 deaths associated with COVID-19. (California Department of Corrections and Rehabilitation (CDCR), Population COVID-19 Tracking <https://www.cdcr.ca.gov/covid19/population-status-tracking/> [as of July 15, 2020].) The CDCR has confirmed an additional 1,291 cases of COVID-19 among state prison employees and three confirmed COVID-19-related deaths. (CDCR, CDCR/CCHS COVID-19 Employee Status <https://www.cdcr.ca.gov/covid19/cdcr-cchcs-covid-19-status/> [as of July 15, 2020].) Researchers at Johns Hopkins and the University of California at Los Angeles have found that prisoners are 5.5 times more likely to get COVID-19 and three times more likely to die from it. (Saloner et al., COVID-19 Cases and Deaths in Federal and State Prisons, JAMA (July 8, 2020).) Last week, the World Health Organization issued new COVID-19 guidance on “aerosol transmission, particularly in . . . indoor locations where there are crowded and inadequately ventilated spaces where infected persons spend long periods of time with others.” (World Health Organization, Q&A: How is COVID-19 transmitted? <https://www.who.int/news-room/q-a- detail/q-a-how-is-covid-19-transmitted> [as of July 15, 2020].) The virus has already spread in several California prisons and jails. As of today, more than one-third of the inmates at San Quentin State Prison have tested positive for COVID-19, and the outbreak now threatens the surrounding community. (Maxmen, supra.) Other outbreaks have been reported at county jails in Monterey, Fresno, and, Los Angeles. (Duan, Covid-19 sweeps through Monterey County Jail, wide scale testing of prisoners and staff to start, Monterey County Now (July 10, 2020); Guy, 507 inmates test positive for COVID-19 in Fresno Jail, 25 officers as well, Fresno Bee (June 29, 2020); Tchekmedyian, As officials ramp up testing in L.A. County jails, first inmate with COVID-19 dies, L.A. Times (June 2, 2020).)
As to the Sacramento County jails, we do not have much information beyond the disturbing allegations contained in declarations from 54 inmates of these facilities. The state is not tracking COVID-19 data in county jails (see Pohl, ‘A moral failure': California not tracking jail inmates and staff infected with coronavirus, Sacramento Bee (June 23, 2020)), and Sacramento County does not make data on rates of COVID-19-positive inmates in its jails publicly available.
It has been said that “[t]he degree of civilization in a society can be judged by entering its prisons” and jails. (Davis v. Ayala (2015) 576 U.S. 257, 290 (conc. opn. of Kennedy, J.).) I imagine none of us would even consider entering a prison or jail right now for fear of endangering our own health and safety — and that is very point of the petition before us. Some have suggested that inmates have themselves to blame for the conditions they face. (See, e.g., Damien, Coronavirus stokes fears in crowded Riverside County jails, Palm Springs Desert Sun (Apr. 6, 2020) [quoting Riverside County Sheriff as saying, “If you don't want to contract this virus while you are in custody, don't break the law.”].) But that cannot be the answer in a society that guarantees constitutional rights, including the right to be free from cruel and unusual punishment. With respect to this petition, it must be noted that many (though not all) jail inmates are being detained pre-trial, without any adjudication of guilt. A substantial share of these inmates will never be prosecuted or convicted of the charges that are the basis of their detention. (See People v. Buza (2018) 4 Cal.5th 658, 695 (dis. opn. of Liu, J.) [citing California Department of Justice statewide “data show[ing] that from 2009 to 2016, nearly one in five felony arrests did not result in prosecution, and almost one in three . . . did not result in a conviction”].)
Today's order essentially sends petitioners back to square one. While expressing no view on whether petitioners' May 26 filing in the superior court establishes a prima facie case for relief, this court “encourages” petitioners to amend that petition to include any updated information on conditions in the Sacramento County Jail — even though petitioners' factual showing in their May 26 petition was specific, voluminous, and up-to-date. Today's order restates the language in our May 4 order in NACDL advising the superior court to use a range of procedural tools “to achieve prompt and effective resolution of the matter” — even though petitioners have already asked the superior court (to no avail) to use those very tools. And today's order says, “The denial of the petition is without prejudice to the filing of a new petition in this court raising similar claims if circumstances warrant” — even though this language appeared verbatim in our May 4 order and, in light of the superior court's inaction, presumably led petitioners to file the petition now before us. Litigants may reasonably wonder what we mean by such language if following this court's directions simply results in a circular loop.
The lawful treatment of inmates during this pandemic is not an issue that any court would relish taking on. But petitioners have come to this court on the reasonable expectation that the buck stops with us. Because petitioners have made a prima facie case for relief, this court should issue an order to show cause, appoint a special master, and set this matter for expedited resolution.
LIU, J.