California’s First Court of Appeals has ordered San Quentin State Prison to transfer or release about 1,700 inmates. That’s 50% of the prison population there, an edict based on the theory that San Quentin officials have not done enough to protect inmates from the pandemic. “We agree that respondents — the Warden and CDCR — have acted with deliberate indifference and relief is warranted,” the court said in its opinion last week.
50% was the figure recommended by a team of experts after they investigated the viral spread that has killed dozens and sickened hundreds at San Quentin’s maximum security facillity. The inmate reduction could be achieved through a combination of transfers and early releases, the court said.
The California Department of Corrections opposes the order. “Since March, the department has released more than 21,000 persons, resulting in the lowest prison population in decades. Additionally, we have implemented response and mitigation efforts across the system,” it argued in a statement. “As of today, CDCR’s COVID-19 cases are the lowest they have been since May (493 cases reported today, and over 14,000 resolved), with San Quentin recording only one new case among the incarcerated population in nearly a month.”
The Wuhan virus has infected more than 200,000 prison and jail inmates. Nearly 1,300 have died as a result, according to a New York Times database. Civil rights organizations have argued for the release of inmates across the country, using the 8th Amendment prohibition against cruel and unusual punishment as their justification. San Quentin presents a particularly tough ethical trade-off. In its opinion, the court ruled that the state prison system had shown “deliberate indifference” to the safety and health of San Quentin’s inmates by not taking sufficient measures to protect them. This, the court wrote, was “morally indefensible and constitutionally untenable.”
If the order stands, many of the roughly 3,400 inmates incarcerated at San Quentin will need to be transferred or released, essentially making the safety of convicted criminals a higher priority than the safety of law abiding citizens and the rule of law. The prison confines many convicted of violent crimes, with about 30% serving life sentences. One way to reduce the prison’s overcrowding would be to execute those in the largest death row population in the nation, but the state’s social justice warrior governor, Gavin Newsom, signed an executive order halting the death penalty. In July, he ordered officials to expedite the release of up to 8,000 lower-level offenders nearing the end of their sentences.
The crisis at San Quentin was triggered after state prison officials transferred inmates there from another infected facility. Now, the court announced, “The Eighth Amendment violation currently existing due to insufficient space for the necessary physical distancing will continue unless and until the population at San Quentin can be reduced to the 50 percent level.” The court’s list of acceptable options includes releasing older inmates currently ineligible for an early exit because they were convicted of violent crimes. The opinion calls that policy unjustified because “such inmates’ heightened vulnerability to the virus and reduced risk of dangerousness to the public.”
My reaction to that is, “Easy for them to say.” This is an excellent example of the importance of having more conservative judges and courts.
It is appropriate for the courts to oversee prison management to ensure that all reasonable steps are being taken to make convicted criminals’ stay in prisons as safe as possible. However, when the trade-offs come down to the health and safety of the prison population versus that of the rest of the nation, the prison population’s welfare must take the inferior position. Releasing prisoners, especially those convicted of serious crimes, before their sentences have been served is not an ethical option.
That it is viewed as one by any judges shows the corrupting influence of the increasing opposition to punishment as part of society’s response to law-breaking generally. This opposition is largely fueled by the sly reframing of the issue as a matter of racial discrimination: since a disproportional number of prison inmates are African-Americans (as they commit a disproportional number of crimes), the size of the prison population must be a racist phenomenon. It is circular reasoning at best, but gaining traction with the public and receiving undeserved and irresponsible support from the news media and prominent Democrats and progressives.
It is not “cruel and unusual punishment” for those who have been convicted of crimes to face the inevitable increased risks to their health and safety naturally resulting from being incarcerated, including the enhanced dangers posed by a pandemic. It is, however, unjust to force the law-abiding public to face the enhanced perils of having criminals, many of them prone to violent crimes, released into the general population before they have served the statutory punishment meted out by the justice system as the penalty of their defiance of the law.
The increased risks of infection caused by being incarcerated during a pandemic are not a “cruel and unusual punishment.” They are the predictable results of being found guilty of committing serious crimes, and the path to avoiding the threat is, or should be, easy. It is also completely within the control of the individual: obey the law. Not a single law-abiding citizen should be placed at increased risk of damage to his or her life or property to protect convicted criminals from their increased risk of infection. They chose to become human viruses in our society.
This is an easy utilitarian calculation, again nicely summarized by the completely ethical motto of “Baretta,” the popular 70’s TV show: “Don’t do the crime if you can’t do the time.”