California urged to release older prisoners amid coronavirus, including violent offenders

As the coronavirus rages through prisons and jails across the United States, attorneys, advocates and family members of California inmates are urging the state to release older prisoners and inmates with underlying health conditions for whom contracting the virus could have devastating consequences.

In response to the coronavirus threat, California has already fast tracked the release of almost 3,500 people serving sentences for nonviolent offenses who were due to be paroled in the next 60 days. The California Department for Corrections and Rehabilitation (CDCR) has also taken coronavirus mitigation efforts like barring visitors, increasing facility cleaning and producing hand sanitizer.

Related: Coronavirus spread at Rikers is a 'public health disaster', says jail's top doctor

But cohorts of prosecutors, doctors and criminal justice reformers are calling on state officials to step up their relief efforts for older and vulnerable prisoners, including those serving time for violent offenses.

Alicia Rhoden’s husband, Bruce Wayne Rhoden, who is serving the final year of a four-year sentence in Wasco state prison for assault with a deadly weapon, also has several violent and drug felony charges dating back to the early 1990s. In addition to his age, Bruce has a bevy of pre-existing conditions, including diabetes and HIV, that make him vulnerable to severe illness and death if infected with the coronavirus. Alicia, who’s 60 and has epilepsy, says she’s frightened that her husband will become ill while in prison and she won’t know until it’s too late.

“My husband is 61 and his health isn’t good at all,” Alicia Rhoden, a Los Angeles resident, said. “My fear is that he can die in prison because of his medical conditions.”

“He needs a lot of care,” she added. “He takes six insulin shots a day and needs his antivirals.”

Hoping to force the state to focus relief efforts on sick incarcerated people and those over 50, attorneys with the Prison Law Office and Rosen, Bien, Galvan & Grunfeld sought to modify an existing court order that mandates California to reduce its prison population.

“Excluding lifers who have served long periods of time and people with violent offenses is a waste of human life,” said Michael Bien, one of attorneys who filed the emergency motion. “People make horrible mistakes but how many years must someone stay in a dangerous situation to make up for the horrible mistake?”

Over the weekend, a three-judge panel denied the emergency motion. According to the written decision, the judges agreed that the state must act swiftly, but that the original prison reduction order “was never intended to prepare Defendants to confront this unprecedented pandemic” and could therefore not be modified in light of the coronavirus.

Now, Bien says his office and the Prison Law Office will take the motion to a single judge and seek an order to transfer high-risk people out of prisons and into empty state facilities or home confinement in lieu of full releases.

“The best outcome isn’t a victory in court but a victory in reducing density. We’re hoping this message to the governors’ office is taken seriously,” said Bien.

As of 5 April, 16 inmates and 53 staff members at the CDCR have tested positive for Covid-19. While that number is small compared to the 48 cases and one death in a single Illinois prison and the nearly 200 cases at Rikers Island in New York, advocates worry that it’s just a matter of time before prisons in California see dozens of confirmed cases.

The CDCR houses around 116,000 inmates in prisons and camps, according to their most recent population report. Almost 5,600 are 65 or older and 37% of the total prison population have at least one of the risk factors that the US Centers for Disease Control and Prevention (CDC) says put them at risk of severe illness from Covid-19.

Age and underlying conditions combined with the lack of space in prisons are a “perfect storm of why this population should be released early”, said David Muhammad, the executive director of the National Institute for Criminal Justice Reform, of older prisoners.

“They’re most at risk, they cost the most to incarcerate and care for, and have the lowest risk of recidivating,” Muhammad continued. (Federal inmates who were released after the age of 60 had a less than 10% reincarceration rate compared to over 30% for people under 30, according to a 2017 United States Sentencing Commission report.)

In a 31 March response to Bien’s motion, attorneys for the state say CDCR officials have “already taken immediate, bold and appropriate steps in response to this rapidly evolving crisis”. The measures include moving around 500 people from dormitories, which are open spaces with bunk beds that hold dozens of inmates, to prisons with available space. They’ve also suspended intake from county jails, a process that usually brings 3,000 new people into the CDCR’s 35 adult institutions per month.

A spokesperson for the CDCR told the Guardian in an email that these steps along with the recent releases will, “help create physical distancing for all inmates, thereby reducing the risk of spread of Covid-19 among the entire population”.

But many worry that the state’s exclusion of people who have committed violent crimes – almost half of the CDCR population according to a 2018 department report – won’t reduce the elderly population enough to avoid an outbreak.

“It’s a risk to public safety if you don’t reduce the population, not the other way around,” said Adnan Khan, who after spending 16 years in San Quentin state prison became the executive director of justice reform not-for-profit Re:Store Justice.

Khan, who was released in January 2019, says he stays in daily contact with friends that are still incarcerated, including his 68-year-old mentor. Khan recalls a recent conversation where his mentor matter of factly told Khan that he and other prisoners are, “Just waiting to get the coronavirus. Those who survive do, and those who don’t, don’t.”

State officials say that releasing people from incarceration is a complicated process that begins more than six months before someone is allowed to walk out the prison’s gates. This process includes assessing post-release needs and getting people set up with state-funded benefits as needed. They argue that these pre-release plans are necessary to ensure that people can thrive post-incarceration and that this process should remain in the hands of corrections officials, not state courts.

Still, people like Khan and Rhoden worry that as the legal battle wears on, their loved ones will become more at risk while behind bars.

“My mom’s not young, and I’m worried about her getting sick there,” said Tamisha Torres, a re-entry service provider in California’s Contra Costa county.

Torres’ mother is 55 years old and incarcerated in Folsom state prison, about 30 miles from Sacramento, after hitting a California Highway Patrol officer while he was helping with a collision. She was accepted into one of the CDCR’s 3 Alternative Custody Programs, which are private residences or CDCR facilities with rehabilitative programs, to serve the rest of her sentence. But the rapid spread of coronavirus has prompted CDCR officials to stop the transfer of the people from prisons to these facilities. So Torres’ mother is continuing to work in the prison while she awaits her transfer.

This is a harsh lesson for all of us on how dangerous our systems are

Attorney Michael Bien

“It’s devastating when you get a notice that you’re gonna be released and then it’s like ‘Oops sorry, the bus isn’t coming’,” said Torres.

“Now my mom has to decide: ‘Am I going to go to work and risk getting sick in this place or am I not gonna have what I need to be comfortable here?’ If you’re in prison and don’t have someone taking care of you then going to work and getting that 35 cents an hour is everything,” Torres continued.

“One of my concerns is my husband getting sick and no one telling me. I just find out that he’s dead, it gives me fear – that I might not know,” said Rhoden.

“And Bruce gets frightened because he doesn’t know if something happened to me. I’m epileptic and have 10 seizures a week. If I get too sick there will be no one to advocate for him,” continued Rhoden.

“We’re paying the price for mass incarceration in the United States,” echoed Bien. “This is a harsh lesson for all of us on how dangerous our systems are. It’s terrible for the people incarcerated, it’s terrible for the staff.”

Clarification: this story has been updated with more detailed information about Torres’ and Rhoden’s convictions.