More than a decade ago you showed courage, initiative, and deep commitment to human rights and dignity when, as Mayor of San Francisco, you opened the door to same-sex marriages. As Governor, you showed the same courage and commitment in deciding to place a moratorium on the death penalty in California.
As criminal justice and corrections scholars, we are writing to urge you to once again do the right thing. Throughout California, COVID-19 infections, hospitalizations, and deaths are ravaging state prisons. As of July 6, 5,343 people in California prisons have tested positive for COVID-19, 25 people have died, and hundreds are struggling with active symptoms and hospitalizations. At San Quentin Prison, a botched transfer from the California Institute of Men allowed the virus to spread like wildfire, with 1,421 people who have tested positive.
A recent report on San Quentin Prison from a team of UCSF physicians revealed flawed, negligent protocols for isolation and treatment, lack of consistent and updated testing, unconscionable delay in providing testing results, inappropriate grouping of staff members, and physical locations for isolations that are terrifying and alienating to the population. These inadequate practices are happening against the backdrop of prisons already bursting at the seams, with many of them overcrowded not only well beyond their design capacity, but over the 137.5% limitation set for the entire correctional system by federal courts more than a decade ago.
The men and women in California prisons are serving sentences meted out by law. The California Penal Code did not sentence them to neglect, abuse, illness at overcrowded institutions with the potential to become mass graveyards. As to those falling ill and dying on death row, surely your moratorium on the death penalty, and the decades and billions of dollars spent litigating capital punishment protocols, should not end with deaths by COVID-19.
Moreover, COVID-19 infection is not a zero-sum game, and prioritizing the prison crisis does not come at the expense of the state overall — rather, it protects all of us. In both Marin and Lassen counties, spikes in community infections followed closely after spikes in infection within state prisons; all correctional institutions are permeable to the outside through staff mobility. Protecting people in prison protects people outside prison, too. By contrast, incubating the virus at our state prisons puts the entire state at risk, potentially rendering all your important prevention work, all the efforts at public education about masks and social distancing, and the immense sacrifices of all Californians futile.
We urge you to exercise all the powers at your disposal and release people from prisons to their communities — not just at San Quentin, but systemwide. Given the overcrowding and contagion spread, the release of a few thousands is but a drop in the bucket. A robust body of research in our field confirms that such releases, via executive orders, clemency, and parole (hundreds who have been found eligible for parole are still behind bars), will not endanger public safety. A quarter of the California prison population is aged 50 years and older; this population consists largely of people whose crimes of commitment were committed decades ago, and who do not pose any public risk, violent or otherwise. Previous declines in the California prison population, through the Criminal Justice Realignment and through Prop. 47, did not put the public at risk. We urge you to follow solid findings in criminology, public policy, criminal justice, and public health, rather than misleading and fear-mongering media reports.
We appreciate and admire your willingness to courageously do the right thing in previous pivotal moments; your initiative on same-sex marriage and on the death penalty moratorium have shown your prescience and will be remembered kindly by history. This is precisely such a moment. We urge you to lead us in the right direction.
Hadar Aviram, Thomas E. Miller ’73 Professor of Law, UC Hastings College of the Law
The letter was signed by hundreds of faculty and scholars, for the full list see here.
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