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In Custody During the COVID-19 Pandemic

COVID-19 is a respiratory illness caused by a novel coronavirus. There is no vaccine and no current human immunity. COVID-19 is a global pandemic that has infected and killed thousands of people worldwide.

Everyone is at risk, especially inmates incarcerated in California’s jails and prisons. Cells in California’s custodial institutions are not closed, sterile environments. Most institutions operate by confining two or more inmates into single cells. These conditions make COVID-19 infection more likely. Indeed, the containment of COVID-19 is virtually impossible in these conditions.

Once COVID-19 breaches the walls of California’s jails and prisons, which is inevitable, the infectious nature of COVID-19 will quickly overwhelm inmates. Inmates – especially those at higher risk because of COPD, asthma, or other underlying medical conditions – will be at risk of suffering serious adverse medical events, including death.

Can California hold inmates in conditions that subject them to COVID-19 infection?

Inmates have a right to constitutionally adequate conditions of confinement. The Due Process Clause of the United States Constitution imposes obligations on California to meet the basic needs of the people it incarcerates. These basic needs include necessary medical care and protection against unreasonable risk to future health. (See Helling v. McKinney, 509 U.S. 25 (1993); see also Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).)

With respect to COVID-19, public health guidance provides that protecting against infection requires “social distancing.” By holding inmates in congregate settings – especially inmates with COPD, asthma, or other underlying medical conditions that place them at higher risk – California’s jails and prisons are intentionally disregarding unanimous public health guidance on COVID-19 and falling short of their obligations under the Constitution.

Courts around the country, including California, are therefore starting to entertain petitions for writs of habeas corpus challenging custodial conditions in light of COVID-19. Habeas corpus is a Latin phrase meaning “custody of the body.” The petition for a writ of habeas corpus, referred to as the “Great Writ,” is the vehicle through which unconstitutional custodial conditions have traditionally been challenged.

In addition to petitions for writs of habeas corpus, with respect to pretrial detainees, courts are also entertaining motions for release based on “changed circumstances.” Courts are beginning to realize that in light of the extraordinarily dangerous threat COVID-19 is to inmates, COVID-19 is a “changed circumstance” to the conditions of confinement that warrants release on bail or the inmate’s own recognizance. (See, e.g., United States v. Stephens, S.D.N.Y. No. 15-CR-95 (AJN); 2020 WL 1295155 (Mar. 19, 2020).)

What can you do if you or a loved one is currently incarcerated?

Motions and petitions for a writ are complicated legal matters. Contact one of our experienced attorneys. We will guide you through your options to seek your (or your loved one’s) release – options including, but not limited to, a petition for a writ of habeas corpus.