Seeking Covid-19 Relief For California Inmates: An Update in the Wake of In Re Von Staich

December 14, 2020

What Happened in In re Von Staich?

In re Von Staich (Oct. 20, 2020) 56 Cal.App.5th 53 held that CDCR, in violation of state and federal prohibitions against cruel and unusual punishment, acted with deliberate indifference to the risk of substantial harm to inmates by failing to immediately reduce the population of San Quentin State Prison by releasing or transferring at least 50 percent of the population of the prison.  Prison officials had ignored the recommendation of public-health experts who had been asked to advise CDCR on measures to combat COVID-19 considered necessary to protect the health of prisoners. Beyond issuing orders specifically addressing Von Staichs welfare, the court ordered CDCR to expedite the removal from San Quentin—“by means of release on parole or transfer to another correctional facility administered or monitored by CDCR”—of 50 percent of the inmate population.

What Does Von Staich Mean to My Client? Should I File a Writ?

We are no longer recommending filing habeas petitions in the Courts of Appeal. In limited circumstances, we may recommend filing petitions in the superior court. The law and the facts involved are fast-changing and our advice will change just as quickly. Do not seek COVID-19 relief for a client without first conferring with the FDAP consulting attorney.

A consolidated habeas proceeding involving over 300 other San Quentin inmates challenging the conditions of their confinement in light of the COVID-19 outbreak is currently pending in Marin County Superior Court. If you have a client who is already part of that consolidated proceeding, it should not be necessary for you to take any further action because the superior court has been appointing counsel for those inmates. However, if you have a client at San Quentin who is not currently part of the consolidated Marin proceeding, you should consider whether there are any circumstances that render your client especially vulnerable to the disease – such as any pre-existing medical condition or his age (60 or older).  If so, you should consult FDAP on the possibility of preparing a form habeas petition on his behalf.  Also, if your client does not appear to have any conditions rendering him more vulnerable but specifically raises concerns about COVID-19 or the Von Staich opinion, you could send him a Judicial Council form petition and advise him on how to complete the form and file it in Marin County Superior Court. In any of these situations, please check with FDAP to discuss your client’s individual situation and the current status of the Marin consolidated habeas cases.

Von Staich is a record-driven decision, employing long-standing law.  This means that if you have a client at a facility other than San Quentin, any writ will require substantial factual development for allegations of deliberate indifference under the California and federal constitutions.  Boilerplate writs will not be sufficient. You will need to obtain specific information about:

  • Your client’s medical vulnerabilities: Is your client 60 or older?  Is your client at-risk for COVID-19 due to medical conditions (e.g., COPD, diabetes, etc.)?
  • The detention facility setting: Physical characteristics (open cell block/dormitory)? Current outbreak? Precautions taken by the authorities?

You will need a declaration from an infectious disease expert with knowledge about the particular facility.  As you can see, a writ will involve a lot of time and effort.  So, be sure to speak with your consulting attorney. 

Work on a COVID-19 habeas petition conducted during the appellate appointment should be claimed on the compensation form and will be reviewed, like all work, for reasonableness and necessity under the compensation guidelines. To avoid the potential for uncompensated work, consult FDAP before commencing any such work.

Is FDAP Providing a Sample Superior Court Petition?

We do not currently have a form or template for a superior court COVID-19 petition because the situation throughout CDCR and within individual institutions is changing on a day-by-day basis.  Additionally, as noted earlier, any petition will need to be formulated in light of (1) the conditions at that specific institution, and (2) the client’s age, specific medical conditions, or other considerations relevant to the client’s vulnerability and suitability for release or transfer. As noted throughout this alert, be sure to discuss the matter with the FDAP consulting attorney before commencing work on a petition.

How Do I Stay Informed?

Monitor the CDCR’s Population COVID-19 Tracking tool for the presence and severity of cases in state prisons. Counsel will want to pay attention to youth committed to the Division of Juvenile Justice.   According to the Center on Juvenile and Criminal Justice (CJCJ), 109 youth have tested positive at DJJ, including nearly 40 new cases in just the last few weeks. All told, about 15% of youth at DJJ are known to have contracted COVID-19.  Here is a CJCJ factsheet from November on COVID-19 on conditions at DJJ.  Contact Policy Analyst Maureen Washburn at CJCJ for the most recent information about COVID-19 at DJJ.

As for the Von Staich case, the California Supreme Court, on its own motion, has extended time for ordering review to February 17, 2021.  On November 16, the Attorney General filed a petition for review, which, as of this date, is still pending (S265173).  Here is a link to the docket, so you can stay on top of any developments.