Sign-On Letter: Calling for Releases after 1 Year of COVID in CA Prisons

The #StopSanQuentinOutbreak Coalition drafted a sign-on letter calling on Governor Newsom to deepen his commitment to prioritizing the health and safety of incarcerated people during the pandemic by granting large scale releases across California prisons. We argue that despite the importance of prioritized vaccines for incarcerated people, significant decarceration remains the only meaningful public health solution to COVID-19 in overcrowded prisons and carceral facilities across CA. This sign-on letter also proposes community-generated recommendations for granting large-scale releases and highlights a list of proposed legislation that, if passed, would significantly reduce California’s prison population.

The deadline to sign this form is March 23, and we plan to release this letter shortly after as March 22 is exactly 1 year since the first confirmed COVID case in a CA prison. Please join us in calling on Governor Newsom to grant large-scale releases, which remain urgent even after one year of COVID-19 behind bars.

Read the full letter below.

March 17, 2021 
Honorable Gavin Newsom
Governor of the State of California
1303 10th Street, Suite 1173
Sacramento, CA 95814
VIA Electronic Mail

RE: Urgent Releases Due to COVID-19 

Dear Governor Newsom:
March 22nd marks exactly one year since the confirmation of the first positive COVID-19 case in the California state prison system. More broadly, this month marks the one-year anniversary of California’s ongoing and devastating battle with the COVID-19 pandemic. For those of us on the outside of prison walls, March 2020 inaugurated novel shelter-in-place ordinances that drastically changed our lives as we knew them. For our loved ones inside California jails, ICE detention centers, and prisons, March 2020 ushered in ongoing lockdowns, shutdowns in programming and visiting, as well as some of the deadliest, largest, and most concentrated coronavirus clusters in the entire nation. 

In response to this crisis, dozens of justice advocacy organizations wrote to you last year requesting that you grant large-scale releases to protect the lives of those incarcerated in our state’s prisons. While we understood then that lives were at stake, nothing could have fully prepared us for the tragedy that lay ahead. As of today, almost exactly one year after that letter was delivered to you, all of California’s 35 prisons have experienced a COVID-19 outbreak. Within the CDCR population, 49,178 incarcerated people have tested positive for COVID-19, and 219 incarcerated people lost their lives due to the virus, as of today’s date. For those who survived thus far, much of the last year was spent under excruciating 23-hour a day lockdowns, all without access to family visits, in-person legal proceedings, programming, regular showers or recreational yard time. Beyond the numbers, our community behind bars endured mental health crises, grief and trauma that cannot possibly be conveyed by an albeit heart-breaking death toll. 

A year after the onset of the pandemic, we are relieved that our prison population has decreased by roughly 24,000 individuals. This reduction is in part due to the temporary halting of intake from county jails across the state, the fact that prisons release on average roughly 3,000 people per month as standard operating procedure, and the introduction of an early release program by your administration last year. This plan authorized early releases of up to 8,000 incarcerated people, including those considered medically vulnerable to COVID-19. Despite the far-reaching potential of this plan, data shows that the majority of people released early were relatively young, within 180 days of their scheduled out date, and serving sentences for non-violent offenses. A year later, we still regret that these early release efforts left behind and compromise a large population of elderly, vulnerable individuals serving lengthy sentences, despite overwhelming data indicating that these individuals do not pose a threat to public safety and can safely rejoin their communities. 

We know that in order to meaningfully reduce the prison population and protect public health, we need increasingly bold action to grant releases for individuals across categories and without broad exclusions. Governor Newsom, we have seen you demonstrate an understanding that individuals serving long sentences for even serious and violent crimes are ready to safely re-enter the community. You have clearly modeled this in your grants of clemency throughout the pandemic, including 56 commutations, 49 pardons which prevented many people from being taken into ICE custody, and a record-setting 14 medical reprieves. We have also seen you demonstrate an understanding that decarceration is essential for the future of California. In fact, you courageously identified prison closures and reinvestment in education as a core value for your administration, announcing visionary plans to close two prisons in two years.  

We applaud these steps to reduce the prison population, and yet, California’s prison population levels remain wholly unsafe for occupancy, with 20 prisons operating at above 100% design capacity. In the current context, meeting a 100% capacity target no longer suffices – public health experts are calling for drastic decarceration to the tune of 50 – 85% (depending upon the facility’s design)[cite here?] to successfully minimize the harmful effects of COVID-19 transmission. People have been dying at alarming rates due to preventable, common illnesses in California prisons for decades due to severe overcrowding – this has been the subject of the landmark Plata v. Brown class action that has been ongoing for over a decade. COVID-19 revealed for a larger audience just how deadly the effects of prison overcrowding can be when coupled with infectious disease. The long-term effects of COVID-19 along with new strains means that the threat of overcrowding must be urgently addressed through decarceration. 

Your administration has employed common-sense logic informed by data and public health expertise when mandating that public spaces operate at between 10-50% capacity to protect public safety, even as wide-scale vaccination progresses. Furthermore you have led among the Governors in centering health equity and evidence-based decision-making when prioritizing vaccine access. Despite broad progress towards wide-scale vaccination, research shows that even high-efficacy vaccines will be significantly less effective in high-spread, congregate settings like prisons, due to factors like overcrowding, inadequate healthcare, and high rates of vaccine hesitancy. It is clear that vaccination coupled with significant decarceration is the only solution to the public health crisis which persists across California prisons, as well as jails, ICE detention facilities, and juvenile facilities. We urge you to follow the evidence and embrace decarceration as the leading strategy to reduce the spread of COVID-19 in carceral facilities, which research shows will directly lower COVID rates in surrounding communities. In doing so, you would be standing with countless advocates who have long called for the twin strategy of decarceration and reinvestment in our communities for a healthier, safer California.  

We ask that you use your authority as the Governor of the state of California to reduce our state prison population to safer occupancy levels, following the community-generated recommendations below: 

Stop ICE Transfers 

1. Stop all ICE transfers from prisons and jails, and begin to decarcerate detention centers in California. California is under no legal obligation to assist the federal government with deportations, but CDCR and many local jails voluntarily transfer community members to ICE for detention and deportation. Recent ICE raids are focusing on people who have recently been released from prison. As COVID-19 cases continue to spike in CA prisons, jails, and ICE detentions, transfers to ICE exacerbate the public health crisis. We ask you to intervene to protect people who have completed their sentence or obtained parole and who should be allowed to return to the care of their families and communities. You can do this by ordering CDCR not to notify or coordinate with ICE when people with ICE holds are being released, and to grant pardons to recently released people whose past convictions pose a grave threat to ICE targeting them for detention and deportation. Number of people impacted: As of May 2020, there were 9,512 individuals in CDCR (about 8%) with an ICE hold on them. In 2018-2019, 3,723 individuals were transferred from a California county jail to ICE.

Grant Commutations

2. Review for commutation everyone serving Death Penalty and Life Without Parole (LWOP) sentences to parole-eligible sentences and expedite parole hearings. You can strengthen the Death Penalty moratorium by ending LWOP – a living death sentence – and commuting all LWOP and Death Penalty sentences to life sentences with immediate eligibility for parole review. We urge you to commute the sentences of people facing the Death Penalty and Life Without Parole to parole-eligible sentences. People with LWOP and death sentences are unjustly excluded from Compassionate Release and CDCR’s Penal Code section 1170(d)(1) program. Number of people impacted: There are 706 people facing the Death Penalty in California and there are 5,200 people in California with LWOP sentences. 

3. Review for commutation criminalized Survivors of Intimate Partner Violence. We are heartened to see your recent commutation of Teresa Paulinkonis, and we request that you continue this important work and thoroughly review and consider any commutation petitions for survivors of domestic and sexual violence.

Expedite Releases and Parole Hearings Without Categorical Exclusions

4. Expedite release for people already found suitable for parole by the Board of Parole Hearings, or referred for PC section 1170(d)(1) resentencing. We request that you direct BPH to continue to conduct expedited review of parole grant decisions, and to refer people who are medically vulnerable and “low risk” to En Banc for a potential reversal in favor of release. We also ask you to use your parole review authority towards public safety and justice and to not refer people who have been granted parole back to En Banc and to not reverse parole grants at a time when urgent decarceration remains the most important public health concern. We request that you begin to review all parole denials and to refer people back to En Banc for reconsideration and release on parole. We also ask that you direct CDCR to release all people who have been referred for PC section 1170(d)(1) resentencing. Number of People Impacted: There are roughly 1,000 people inside CA state prisons who have already been granted parole but are still in custody for months of potentially deadly delays. You reversed 95 (2019) and 33 (2020) people’s parole grants and referred 85 (2019)  and 95 (2020) people back for En Banc review. As of February 2021, 1,605 people have been referred by CDCR since 2018 but are still in custody.

5. Expedite release for people who are medically vulnerable to COVID-19 and eligible for medical and/or elderly parole. We request that you review commutation applications and release people with a compromised immune system or high-risk medical condition, paying special attention to people over the age of 50 who have served 20 or more years of their sentence. We ask you to grant releases for people with terminal conditions and have twelve months to live or less, and to release those who are eligible for expanded medical and elderly parole. Number of People Impacted: CDCR’s Staff have already identified 50,000 people who have at least one risk factor for severe complications and death from the COVID-19 virus. 25% of people in prison are age 50 years or older. In 2019, nearly 1,400 people were eligible for Medical and/or Elderly Parole, and policy reforms in 2020 expanded that number significantly.

6. Expedite release and parole review for people eligible for Proposition 57 and Youth Offender parole hearings. We are heartened to see CDCR Secretary Kathleen Allison recently discuss a new 50% credit-earning program for people eligible for Proposition 57. We ask you to further this important work and review for expedited release those people who are eligible for Proposition 57 early parole. We also ask you to direct CDCR and BPH to expedite the parole review of and release people who are eligible for youth parole consideration, who have aged out of crime, rehabilitated, and have families waiting to welcome them home. Number of People Impacted: Roughly 10,000 people were eligible for Proposition 57 parole review, but only 2,000 have been released since 2016. Roughly 6,000 people are eligible for Youth Offender hearings, in 2019 alone, the parole board held over 3,300 youth parole hearings.

7. Expedite release for people with homecoming dates within the next year, and who are serving “enhancement time.”. We ask you to direct CDCR to recommit to ongoing releases for those who are within one year of their scheduled release date, expanding eligibility to include all categories of conviction across all CA state prisons without exclusions. We ask you to direct CDCR to expedite the release of people who have served their base term and are now serving enhancements that have been repealed or made discretionary, like gun enhancements, prior prison term and prior felony enhancements, drug enhancements, historically racist gang enhancements, enhancements now ruled illegal by California courts, and other enhancements currently up for repeal in the 2021 bill cycle. Number of People Impacted: Roughly 30,000 people are within 12 months of their release date. Upwards of 25,000 people have served their base term and are now serving enhancement time.

8. Expedite release for people who CDCR rates as “low risk” to recidivate. We urge you to grant commutations and direct CDCR to expedite release to all people currently deemed “low-risk” on either their Comprehensive Risk Assessment or their California Static Risk Assessment. Number of People Impacted: As of 2020, 52% of the people inside California state prisons, roughly 60,000 people, have been deemed a “low risk” to recidivate by CDCR’s forensic psychologists and tests. This would include roughly 10,000 people serving life sentences who are aging, at-risk to COVID-19, and pose the lowest risk to recidivate upon release. 

9. Expedite release for people serving time for technical probation/parole violations. We urge you to direct CDCR and BPH to release everyone in custody serving time for parole violations. Number of People Impacted: 8% of people inside or ~10,000 people.

In addition to these immediate strategies for release, we urge you to support bills this legislative year that will have a long-term impact on significantly reducing California’s prison populations including, but not limited to, those listed below. We’re proud that in California, our legislature has partnered with various community-based organizations to propose criminal justice reforms that would lead us on this continued path toward decarceration, including:

  1. AB 124 (Assm. Kamlager) Second Look 1170(d) Resentencing Act requires the court to consider intimate partner violence and other traumatic experiences as contributing factors in sentencing and resentencing decisions. If the trauma of those experiences was a contributing factor to the defendant’s crime of conviction, it would require the court to sentence them to the lowest possible sentence. Lastly, this legislation expands Resentencing under 1170(d), by allowing currently incarcerated people to refer themselves for resentencing.
  2. AB 256 (Assm. Kalra) The California Racial Justice Act for All extends the protections provided in last year’s bill AB 2542, a first-of-its-kind law in the state prohibiting the use of race, ethnicity, or national origin in sentencing and convictions. This bill will make the Racial Justice Act (which passed last year) retroactive, allowing people who experienced racism in the court to challenge bias in their case.
  3. AB 292 (Assm. Stone) Access to Programming Act seeks to make Proposition 57 more effective by limiting barriers to rehabilitative programming and directs the CDCR to create equitable credit earning incentives.
  4. AB 329 (Assm. Bonta) The Pretrial Justice Reform Act creates a more fair pretrial system by 1) setting bail at $0 for most misdemeanors and low-level felonies; 2) ensuring people accused do not remain in custody simply because they cannot afford bail; and 3) requiring bail companies to refund the premiums they receive from defendants who aren’t charged or make all of their required court appearances. See also SB 262 (Sen. Hertzberg)
  5. AB 333 (Assm. Kamlager) Limit Gang Enhancement will limit the use of gang enhancements by narrowing the scope of what is considered a “criminal gang” and what are defined as “criminal gang activities.” Namely, it would remove burglary, looting, felony vandalism, and specified personal identity fraud violations from the crimes that define a pattern of criminal gang activity. The bill would also prohibit the use of the currently charged crime to prove the pattern of criminal gang activity.
  6. AB 503 (Assm. Stone) End “Endless Probation” for CA Youth will create statutory guidelines to tailor the length of time youth spend on wardship probation and ensure that the conditions of probation are reasonable and developmentally appropriate. This will in turn limit the likelihood that youth will be charged with probation violations, which can at times result in incarceration for minor violations.
  7. AB 518 (Assm. Wicks) will end the requirement that a person be punished under the law with the longest possible term of imprisonment possible for a specific violation.
  8. AB 624 (Assm. Bauer-Kahan) Youth Fair Process Act strengthens the existing mechanism for review of a juvenile court’s order transferring a youth from juvenile to adult court. This legislation requires the appellate courts to review on appeal such a decision if the youth’s lawyer files a writ seeking review or if the writ is summarily denied by the Court of Appeals without a decision on merits.
  9. AB 679 (Assm. Friedman) Testimony of In-Custody Informants will make testimony or information obtained by an in-custody informant inadmissible in a felony prosecution if the informant’s testimony or the information was obtained in exchange for a grant or promise by an attorney representing the state. The bill would also expand the definition of “in-custody information” to include when the informant and the suspect/defendant are in custody of law enforcement, in any custodial setting.
  10. AB 937 (Assm. Carrillo) VISION Act will prohibit any state or local agency from arresting or facilitating the arrest or transfer to ICE detention centers. It would also end the Department of Corrections’ mandate to implement procedures to identify all undocumented, incarcerated people in their custody.
  11. AB 960 (Assm. Bonta) Expanded Medical Parole and Compassionate Release will require a designated medical representative from the State Department of Public Health to participate in the evaluation of prisoners for compassionate release or medical parole. In the event of a pandemic, it would require that the State Department of Public Health provide medical representatives to assist the Department of Corrections and Rehabilitation in identifying candidates for compassionate release. This bill would further require the department to annually report to the Legislature, beginning January 1, 2023, the number of prisoners released on medical parole and the number of those prisoners returned to the department’s custody under this provision.
  12. AB 1224 (Assm. Levine) Restore power to dismiss special circumstances will restore the power of judges to dismiss special circumstances after a jury verdict and goes further by requiring dismissal in many circumstances, including if it has been more than 20 years since the conviction and the individual has not committed any violent acts since. This would affect many people sentenced to life without parole (LWOP) or the death penalty.
  13. AB 1509 (Assm. Lee) Anti-Racism Sentencing Reform Act will eliminate most gun enhancements and reduce all others to 1/2/3 years while allowing for retroactive relief. If passed, this bill could impact an estimated 40,000 currently incarcerated people.
  14. AB 1540 (Assm. Ting) Ensuring Due Process & Equity in CA Resentencing Laws seeks to address implementation issues of Penal Code § 1170(d)(1) to allow this resentencing law to be fairly applied. It would ensure that incarcerated people who are recommended receive notice of their referral; require the court to set an initial conference within 60 days of receiving the referral and to appoint counsel; clarify that a judge can reduce a charge to a lesser-included offense; grant the Attorney General’s office the power to recommend a person for resentencing when they prosecuted the case; and make PC § 1170(d)(1) its own Penal Code section to clarify the law.
  15. SB 73 (Sen. Wiener) Repealing Mandatory Jail Sentences for Nonviolent Drug Offenses will repeal mandatory minimum sentences for persons convicted of specified nonviolent drug offenses and provides judges with the discretion to grant probation.
  16. SB 81 (Sen. Skinner) Make the Crime Match the Time. aims to provide clear guidance on how and when judges may apply sentence enhancements by clarifying the parameters a judge must follow to improve fairness in sentencing and help ensure that penalties more closely reflect the circumstances of the crime. SB 81 establishes a presumption that judges should not apply sentence enhancements unless there is clear and convincing evidence that not using the enhancement would endanger the public.
  17. SB 243 (Sen. Wiener) End Wrongful Convictions Act will expand the definition for false forensic science in habeas law to give convicted persons a more just shot at relief when the court finds that the forensic science was never based on evidence-based support or if there has been the emergence of a dispute in the relevant scientific community such that the evidence is no longer reliable. The bill will also strengthen the Court’s gatekeeping function to evaluate and exclude when appropriate expert opinion testimony that is not based on sound logic, methodologies, literature or evidence.
  18. SB 300 (Sen. Cortese) The Sentencing Reform Act would end the injustice of people being sentenced to death or LWOP even if they did not kill anyone nor intend for anyone to die. It will allow resentencing for those now sentenced to death or LWOP as felony murder accomplices. It restores judicial power to dismiss special circumstances.
  19. SB 317 (Sen. Stern) Credit for Placement in Mental Hospital will permit application of conduct credits for persons confined in a state hospital or other mental health treatment facility pending their return of mental competency.
  20. SB 383 (Sen. Cortese) The Juvenile Justice Diversion Act seeks to expand the rehabilitation opportunities for youth who commit nonviolent felonies by increasing access to diversion programs.
  21. SB 446 (Sen. Glazer) Victims Compensation for Factual Innocence will shift the burden to the state in compensation proceedings so that the burden is no longer on the wrongfully convicted person to affirmatively establish innocence decades after their wrongful conviction. The bill will breathe life back into the presumption of innocence.
  22. SB 481 (Sen. Durazo) Criminal Procedure Sentencing will allow people serving a sentence of life without the possibility of parole for an offense that was committed when they were under 26 years of age petition the court to recall and resentence to a lesser sentence. This would include people with a conviction that includes torture or in which the victim was a public safety official, including a firefighter or peace officer.
  23. SB 483 (Sen. Allen) Repeal Ineffective Sentence Enhancements will modestly reduce prison and jail populations, and improve the fairness of the criminal legal system by retroactively applying the elimination of the three-year and one-year sentence enhancements enacted by the State Legislature in 2017 and 2019, as recommended by the Committee on Revision of the Penal Code, numerous experts, reform advocates and the families of incarcerated people.
  24. SB 731 (Sen. Durazo) Sunset of Criminal Convictions will create a comprehensive process to automatically seal conviction and arrest records in the state of California once a person has fully completed their sentence and successfully gone two years without further contact with the justice system. Records of arrests that didn’t result in a conviction would also be automatically sealed.
  25. SB 775 (Sen. Becker) Expansion of SB 1437 Limit on Felony Murder will expand SB 1437 to include attempted murder. It also would permit people convicted of voluntary manslaughter to petition for resentencing if they were prosecuted for murder. 

We respectfully request that you consider these community-generated strategies to achieve urgently needed decarceration, not only to protect the lives of those incarcerated but to promote public health and safety for all Californians.  

#StopSanQuentinOutbreak Coalition Ella Baker Center for Human Rights 
Re:Store Justice 
Transgender, Gender-Variant, & Intersex Justice Project 

Sign-On Letter: Calling for Releases after 1 Year of COVID in CA Prisons
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