COVID-19 TRANSMISSION IN THE U.S. CRIMINAL Angelina Cayabyab JUSTICE SYSTEM

oversimplified, this increases the likelihood of confusion and controversy that, in turn, is likely to foster skepticism concerning the admissibility of neuroscientific evidence in the courtroom. There are clear, practical areas in which neuroscience can truly serve as a valuable informant to criminal law, areas in which neuroscience may increase justice where justice was previously absent. Namely, neuroscience grants us the unique capacity to “look inside” the brain of a criminal offender and attain a clearer understanding of how certain mental abnormalities might fit into the bigger picture of criminal behavior. It would be an indefensible disservice to justice if such opportunities for interdisciplinary collaboration were closed off due to miseducation and unwarranted mistrust.

The author would like to extend her gratitude to Chapman University Undergraduate Law Review editor Owen Lucas Agbayani for his considerable and generous support throughout the writing process. Additionally, the author would like to thank Dr. Uri Maoz and Dr. Michael Robinson for their assistance with the preparation of this manuscript.

COVID-19 Transmission in the U.S. Criminal Justice System

Angelina Cayabyab

Edited by Cynthia Le

Mass incarceration is known for increasing disease outbreaks and spreading diseases to surrounding communities. Mass incarceration is threatening the public health of inmates who belong in marginalized communities, all of whom are disproportionately affected the most by the COVID-19 pandemic. Policy interventions that are intended to lower the exacerbation of COVID-19 transmission and preserve public health in the U.S. criminal justice system are associated with the decarceration of inmates. Decarceration is the process where inmates are physically distanced and ensured with shorter sentences128. The orders issued by local and state governments had to be fast in reducing inmate sentences. In this article, I place myself in favor of the public health perspective and argue that decarceration is a necessary attribute in reducing COVID-19 rates in correctional facilities. Decarceration is the most effective method in ensuring the public health and safety of people inside of correctional facilities and its surrounding area. Using decarceration as a tool to reduce COVID-19 transmission in the U.S. criminal justice system has been proven to be effective for individuals inside of correctional facilities. Whereas, correctional facilities without decarceration have encountered inmates with adverse health outcomes, negative interactions with inmates’ families, and non-compliance issues.

128 Decarceration Law and Legal Definition, USLEGAL,INC. (Apr. 4, 2022, 5:52 PM), https://definitions.uslegal.com/d/decarceration/#:~:text=Decarceration%20is%20a%20government%20policy,is%20 the%20opposite%20of%20incarceration.

I. PUBLIC HEALTH PERSPECTIVE

“After considering medical records and expert testimony presented by Mr. Page, who fell ill from COVID-19 while his motion for compassionate release was pending, the Superior Court determined that “Mr. Page's medical conditions increase his risk of severe disease if he contracts the coronavirus again.” Even so, the court determined Mr. Page had not established an extraordinary and compelling reason to make himself eligible for a sentence reduction under D.C. Code § 24-403.04(a)(3) (2021 Supp.), because he had not shown that he was likely to be reinfected while in prison.”129 In Page v. United States (2020), the Superior Court of the District of Columbia announced that Mr. Page, a District of Columbia prisoner, did not fit the criteria for having an extraordinary and compelling reason to reduce his sentence since he did not appear to be reinfected in that circumstance. The Superior Court did not fully consider the health risks imposed on Mr. Page for being in an enclosed space, which would make it easier for viruses to spread. Mr. Page would have no choice but to be an inmate in a correctional facility, irrespective of his underlying medical conditions that would be exacerbated by COVID-19. On March 11, 2020, the World Health Organization declared that the world is experiencing a COVID-19 pandemic.130 Soon after, the District of Columbia Council enabled compassionate release authority of inmates by passing a permanent legislation. As depicted from Page v. United States (2020), it was not easily permissible to release a D.C. prisoner with underlying medical conditions until health authorities permitted on the grounds that we are in a COVID-19 pandemic.131 The United States’ Criminal Justice System has had numerous reports on inadequate COVID-19 testing and jail exposure. The criminal justice reports have shown that in comparison to the general U.S. population, incarcerated individuals have encountered higher COVID-19 rates. COVID-19 mortality rates are considered by sex, racial/ethnic, and age differences. What’s more, U.S. jails and prisons have been proven to be inadequate in the process of collecting COVID-19 data and maintaining a sustainable public health infrastructure, meaning that COVID-19 rates may be higher than the numbers being reported. Despite these facilities having higher rates of COVID-19 outbreaks, correctional facility workers and policymakers have not firmly vocalized this phenomenon. It is also necessary to consider the demographic makeup of these facilities. African American and Mexican American communities have been more impacted by COVID-19 outbreaks as both communities experience higher rates of incarceration and arrest.132 In addition, these groups have historically been more distrustful of the U.S. healthcare system due to medical racism and unethical public health practices from the past (i.e. Tuskegee Experiments, Forced Prison Sterilizations).133

129 Page v. United States, 254 A. Supp. 1133, 1134, 1135, 1137, 1138 (D.C. 2021). 130 Domenico Cucinotta & Maurizio Vanelli, WHO Declares COVID-19 a Pandemic, ACTA BIOMEDICA (Mar. 19, 2020), https://doi.org/10.23750/abm.v91i1.9397. 131 Id. at 1. 132 Eric Reinhart, MD & Daniel Chen, JD, PhD, Association of Jail Decarceration and Anticontagion Policies With COVID-19 Case Growth Rates in US Counties, JAMANETWORK (Sept. 2, 2021), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2783680. 133 Ayah Nuriddin et al., Reckoning with histories of medical racism and violence in the USA, (Oct. 3, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32032-8/fulltext.

II. FINDINGS

Decarceration is effective in preserving the public health and safety of individuals within U.S. correctional facilities and its surrounding areas. There is ample evidence to suggest that decarceration would decrease the spread of COVID-19 based on 1605 U.S. counties examined by cohort studies from JAMA, a peer-reviewed medical journal.134 Decarceration would allow Inmates to live in environmental conditions with less exposure to COVID-19 if, at all possible, inmates are allowed to leave to isolated areas outside of correctional facilities or correctional workers enforce protocols of reducing inmates in facilities.135 However, correctional workers are not always required to implement decarceration as a means of reducing the spread of COVID-19 in correctional facilities. Other strategies outside of decarceration in facilities have not been proven to be as effective. Facilities with protocols that do not involve decarceration are less likely to reduce COVID-19 transmission. In fact, facilities that permitted people to separate from each other and revoke facility visits were effective in reducing people from getting COVID-19 in nursing homes (7.3%), prisons, (1.2%), and schools (4.3%). Decarceration has already been implemented in counties with an above-median population of Black residents. Overall, reducing the spread of COVID-19 in counties is possible through inmate isolation and shorter sentences in correctional facilities. Inmates and correctional workers have contributed to the increase of COVID-19 rates in numerous counties nationwide.136

III. MEANING

Anti-contagion policies would allow decarceration as a strategy to reduce outbreaks in correctional facilities and its surrounding areas. Sentencing individuals to 3-5 days in jail will increase their exposure to COVID-19 and impact their ability to pay for their property expenses, the potential to lose their job, and be turned away for seeking shelter. Prosecutors have the power to overestimate detention for individuals by permitting consent to release many individuals at initial court appearances and reduce their requests for detention at initial appearances, which can be achieved without affecting public safety. Based on empirical findings from pretrial risk assessments, a metric that Judges and prosecutors in DC frequently depend on to determine decisions for detainment, 92% of individuals who were most likely able to commit a violent offense were not rearrested for a violent crime upon release.137 The DC pretrial statute138 allows judges and prosecutors to detain individuals when it is not necessary. By allowing them to determine causal factors that lead to detention in the instance that individuals impose dangerous qualities in the community. People who have foreseeable circumstances of committing physical harm to someone else would, by no means, seek an alternative to detention. The DC pretrial statute raises two problems for the U.S. criminal justice

134 Id. at 5. 135 Guidance for reducing jail populations to mitigate the impact of COVID-19 in Washington, D.C., VERA INSTITUTE OF JUSTICE (July, 7, 2020), https://www.vera.org/downloads/publications/coronavirus-guidance-reducingjail-populations-washington-dc.pdf. https://www.vera.org/downloads/publications/coronavirus-guidance-reducingjail-populations-washington-dc.pdf. 136 Id. 137 Id. at 5. 138 Detention prior to trial § 23–1322(a), D.C. Code § 23-1322 (1981).

system. First, there is an unclear criterion for any accused behavior that can result from allegations of non-threatening acts that are not a danger to anyone’s physical safety. Second, there is the potential for judges and prosecutors to have the power to predict conduct in scenarios that have been too complex to predict by empirical information. These causal effects have a strong impact on the U.S. criminal justice system, as DC detains 56% of individuals charged with any felony, regardless of the low likelihood that an individual would be rearrested for a violent crime upon release. Judges and prosecutors can adopt detention when the case’s facts determine that the individual is a threat to someone else.139

IV. SANTA CLARA COUNTY JAILS

Reports of 127 Santa Clara County jail detainees who contracted COVID-19 were found in Jan. 2021. This happened 9 months after the Santa Clara County Dept. of Public Health made the first Health Order protocols to reduce outbreaks and mitigate contamination. Santa Clara County jail administrators did not have plans to mitigate the risks of COVID-19, which indirectly caused outbreaks and the lack of display interest in changing an outcome to manage the current crisis and prevent future outbreaks. Even prior to the pandemic, inmates had higher risks of getting viruses compared to the general public. Inmates are in an isolated setting that speeds up the spread of viruses and they endure the inhumane treatment of being captive by federal orders.140 Inmates have a higher likelihood of getting COVID-19 compared to the general U.S. population. Inmates’ family members had been concerned since the start of a COVID-19 outbreak in summer 2020. Santa Clara County policymakers had received numerous phone calls, letters, and documents from inmates’ family members. Inmates’ family members had common concerns, which include the neglect of inmates being treated for COVID-19, incompetent correctional workers who disregard public health measures, and the lack of cleaning supplies.

V. DISREGARD FOR HEALTH AND SAFETY IN CORRECTIONAL FACILITIES

Correctional facilities have shown every measure that has been found to be viable in effectively making jail administrators implement organizational protocols. These protocols have administered health and safety measures through people’s grievances, strikes, and medical requests. Families and supporting community advocacy groups have hosted public demonstrations with local and national media attention, held meetings with the Sheriff’s Dep’t., and found their way to county leaders who are the head of the Santa Clara County Dep’t. of Public Health. Such efforts, ultimately, have not resulted in needed change within the jails, as is evidenced through the repeated COVID-19 outbreaks. After initial reports of conditions inside the jail were

139 Id. at 5. 140 Caged in COVID — 2021 Report: Health Crisis in the Santa Clara County Jails, SAN JOSE STATE UNIVERSITY (Jan. 11, 2021), https://www.sjsu.edu/hri/docs/Caged%20In%20Covid%20__%202021%20Report_%20Health%20Crisis%20in%20 Santa%20Clara%20County%20Jails.pdf.

communicated to the County’s Dept. of Public Health, there were incidents of the detainees being denied the right to shower and correctional officers mocking inmates for flagging violations of safety protocols.141 Inmates’ families have called physicians specializing in public health to perform a jail inspection on Apr. 2020. There was no consideration for correctional workers to change their attitudes towards adhering to public health measures. Prior to Dec. 2020, a Mercury News article exposed the behaviors of correctional workers. The specified correctional workers have posted photos of themselves willfully behaving in a way that would spread the infection by means of partying, being in close contact with others, and swapping drinks. Concerned families would email jail administration about the stuff they were hearing from loved ones inside of the facility. Administrators would reassure the family that all actions had been taken to alleviate the inmates’ health. The administrative efforts were allegedly not enough to confront the lack of accountability for staff nor the increased COVID-19 infectious rates at correctional facilities. Communicating with administrators did not resolve the concerns.142 In response to the lack of regard for inmates’ health, families and advocates decided to gather information within correctional facilities to advocate for the Santa Clara County inmates’ health. Families and advocates compiled survey responses and testimonials from inmates and their families to amplify their statements inside of correctional facilities. The qualitative data collected from inmates and their families pushed for better public health mandates in favor of inmates. The mandate urged for more structural and significant interventions by people outside of the Sheriff’s Administration to meet public health standards for inmates, illustrate medical necessities, and display fundamental need for more inmate releases and a plan to prevent more people from going to jail and prison. There must be a holistic and strict intervention that requires action from numerous County workers to use their respective authority.

The following has been recommended to Santa Clara County:

1. The Santa Clara Cty. Dep’t. of Public Health and Custody Health must distribute and make health and medical treatments standards for inmates. 2. The Santa Clara Cty. Presiding Judge must plan for the court to facilitate immediate releases and promote decarceration processes. 3. The Santa Clara Cty. DA Office must work with the Public Defender’s Office to speed up the releases for inmates. 4. Police agencies in Santa Clara County must use cite and release options, rather than force people into confinement in the jail pre-trial. 5. The Santa Clara County Re-Entry Center must prepare to support people out of jail.143

The Santa Clara County Sheriff’s Dep’t. must respond to the needs and demands of inmates,their supporting communities, and County officials who are working to prevent the spread of COVID-19 and save lives. The survey question urged a comprehensive look at the ways the County Jails were responding to or ignoring the safety guidelines necessary for protecting everyone inside from COVID-19.

141 Id. 142 Id. at 13. 143 Id. at 13.

The most recent dataset that San Jose State University gathered presents the following information: Santa Clara County’s incarceration rate during COVID-19 has shown that 97% of people aren’t able to stay 6 feet apart in correctional facilities, and 85% of people said jail staff do not consistently wear masks. “Out of 8-12 officers about 3 or 4 would wear their masks constantly. The rest would just wear them around their neck. They would only put a mask on if there was an incident.” 100% said jail staff rotate between units. 55% of people either sought for their own COVID-19 results or did not receive results from a COVID-19 test.144 Based on San Jose State University’s findings, not all correctional workers have followed COVID-19 protocols. If COVID19 regulations are publicly enforced in correctional facilities, why should correctional workers be treated any differently from inmates? Neglecting COVID-19 protocols comes with the dangerous cost of harming inmates’ health and safety.

VI. THE BAY AREA’S CRIMINAL JUSTICE SYSTEM

Due to the Omicron COVID-19 variant, infectious rates have increased in the Bay Area’s two largest jails. Santa Clara County has the Bay Area’s largest jail population with approximately 2,400 people in custody. Santa Clara County has been persistently fluctuating from higher proportions to mid-level proportions as of Mar. 20, 2022.145 In Alameda County, Santa Rita Jail has a jail population of 2,230 people and there have been 220 reported infections. Within the Santa Rita Jail, there were 89% of asymptomatic cases in Dec. 25, 2021. Contra Costa County reported 108 in-custody infections at its jails through Monday, which is four times larger than the figure recorded a week before. The sheriff’s office reported that the most in-custody jail infections were in San Francisco. The Omicron variant has forced officials to pause jail visitation and other in-person events in San Mateo County. The sheriff’s office did not immediately respond to data requests of inmates on COVID-19 jail cases. Through Jan. 6, there were at least 122 active COVID-19 cases among sheriff’s office employees, which includes correctional deputies and staff in Santa Clara County. That number is three times higher than how it has been recorded on Jan. 15, 2021. The county did not provide a breakdown of exactly how many infected employees work in the jails. The sheriff’s office said correctional staff are subject to daily testing. Kelly said the Alameda County Sheriff’s Office has reported more than 100 of the agency’s employees as being actively infected with COVID-19, with 40 of those cases resurfacing. A Contra Costa County official claimed that approximately 36 correctional staff employees have been infected with COVID-19.146

VII. LOS ANGELES COUNTY’S CRIMINAL JUSTICE SYSTEM

144 Id. at 13. 145 Robert Salonga, More Big COVID-19 surges at Bay Area Jails, Hitting Inmates and Correctional Staff, THE MERCURY NEWS (Jan. 12, 2022), https://www.mercurynews.com/2022/01/11/more-big-covid-19-surges-at-bay-areajails-hitting-inmates-and-correctional-staff/. 146 Id.

COVID-19 cases have increased due to the Omicron variant in mid-Jan. 2022, though these case numbers may be fluctuating in an upwards and downwards trend.147 Gov. Gavin Newsom lifted indoor mask mandates in California in Mar. 2022. However, preventive measures like separating individuals and containing viruses is not always feasible within the framework of a criminal justice system. In particular, LA County is known for having the largest police force and high incarceration rates; by nature, arrests entail individuals being handcuffed and held in tight spaces with other people. Not everyone is able to cover their faces to prevent the spread of germs. The decision for jail and prison sentencing in court could expose anyone inside the courtroom to COVID-19. The conditions of arrest for sentencing would include a monetary fine, probation, and/or federal prison incarceration.148 Sentencing in courtrooms can increase the spread of COVID-19 when there is an ongoing exposure to COVID-19 in the general U.S. population, there are community outbreaks within the surrounding area of courtrooms, and there are individuals inside of the courtroom who may be infectious and asymptomatic.149 The likelihood for inmates to get COVID-19 is higher than the rest of the population given that thousands of people are in proximity to each other. In addition, there are hundreds of workers who enter and leave the correctional facilities on a daily basis. Community-based service workers have lacked the resources and personal protective equipment (PPE) to safely help formerly incarcerated individuals with readmission into our society. Los Angeles already forgoes some critical steps to restrict arrests and incarcerated individuals. Although, it is imperative for correctional workers to act quickly with enforcing decarceration to reduce COVID-19 rates. Acting passively on decarceration would undermine public health protocols, which could worsen the health outcomes for people inside of correctional facilities and its surrounding areas.

VIII. FEDERAL RECOMMENDATIONS FOR LOS ANGELES’ CRIMINAL JUSTICE SYSTEM

In light of the data that has emerged during the pandemic, I argue for the following recommendations. First, arresting individuals should be reduced to minimize COVID-19 exposure rates and COVID-19 case rates. Additionally, it is necessary to limit the flow of people entering and exiting Los Angeles County jails, police cars, and local lockups, while directives to officers should be clear, expansive, and public. For example, any individual charged with a non-threatening crime must have shorter sentences based on the severity of the crime. This could be presented as someone who screamed to deceive people into being in a dangerous situation. Another example would be sentencing less jail and prison terms. Arrests increase the likelihood of contracting COVID-19 transmission due to prolonged exposure, especially in the instance of transporting inmates and handcuffing individuals.

147 Tracking Coronavirus in California: Latest Map and Case Count,NEW YORK TIMES (Mar. 25, 2022), https://www.google.com/search?q=los+angeles+covid+march+2022&oq=los+angeles+covid+march+2022&aqs=ch rome..69i57j33i160j33i299.3531j0j7&sourceid=chrome&ie=UTF-8. 148 Criminal Procedures, U.S.DEP’T OF JUST. (Apr. 26, 2021), https://www.justice.gov/usao-mn/criminalprocedures. 149 Epidemics and the California Courts, NATIONAL CENTER FOR STATE CTS. (Mar. 26, 2020), https://www.ncsc.org/__data/assets/pdf_file/0028/19387/redacted_epidemics_and_the_california_courts_handbook. pdf.

Each arrest causes an enhanced risk of transmission of COVID-19 because of the close and prolonged physical contact during handcuffing and transport. Booking increases the likelihood of exposure among not only detained people, but also officers. By implementing these changes, law enforcement officers have the power to minimize interactions with people and reserve resources for the most serious cases. Placing a restriction on arrests for offenses that do not involve physical harm or direct threats to a person. There is a continuous notion for people to be booked into jail for low-level charges that include the possession of a controlled substance and the revocation of a driver’s license. Suspending enforcement of low-risk incidents (Ex: failure to appear and traffic stops) can help the police maintain its control to respond to critical incidents and community health needs. For every other offense, it is important to create a policy of presumptive release as early as possible, unless the person poses an immediate risk to another person’s personal safety. The Los Angeles’ Sheriff’s Dept. (LASD) and the Los Angeles Police Dept. (LAPD) have already taken some steps to decrease arrest rates in response to coronavirus. Both departments are encouraging increased use of cite and release, and LASD has reported reducing the jail population by 1,700 people. However, clear diversion directives are key to precipitously decreasing the volume of arrests and bookings. This will ultimately promote public health and avoid the dangerous practice of officers working with symptoms of illness, engaging in long shifts interacting with the community, and adding to the risks of exposure. Identifying groups of people in jail should be released as soon as possible, especially the inmates who are most vulnerable from underlying medical conditions. Jails and courts are vulnerable to the spread of COVID-19. Prosecutors, defenders,and judges hold immense power to prioritize cases to place on court calendars, reduce the jail population, and protect people in the community and courts from unnecessary exposure to coronavirus. Given the urgency of this crisis, it is imperative for each entity to create broad directives with minimal exceptions to support release and limit case-by-case decision making to only the most serious cases involving immediate and identifiable risks of physical harm to another person. Finally, making a protocol to promote inmates’ release from jail is imperative for encouraging public health. Community-based systems of care must be amplified through the provision of protective gear and increased funding. People reentering the community from jail should know how to protect themselves and others from COVID-19, along with having adequate information about government restrictions on reentering public life.150

A. Non-institutional Settings

As of Feb. 15, 2022, the California Department of Corrections and Rehabilitation (CDCR) and California Correctional Health Care Services (CCHCS) non-institutional work locations have updated facial covering requirements. Non-institutional leadership must continue to control compliant staff with facial covering measures. Supervisors and managers must utilize a disciplinary process described in the California Code of Regulations, Title 15; Causes for Corrective Action, and Causes for Adverse Action. This attempts to address staff who fail to comply with these directives.151

150 Id. 151 The most significant criminal justice policy changes from the COVID-19 pandemic, PRISON POLICY INITIATIVE (Feb. 14, 2022), https://www.prisonpolicy.org/virus/virusresponse.html.

B. State and Federal Orders

California state courts reviewed approximately 3,500 people who had been identified for early release from prisons in response to COVID-19 in Jun. 2020. California state courts found that the prison failed to release some of the most vulnerable people, including those serving long sentences and those who had been in prison for decades in Oct. 2020. Prison officials decided who would leave San Quentin and whether they would be transferred or released. A California Superior Court judge ordered that the Orange County jail population must be cut in half, after ruling that the sheriff had failed to reduce the population enough to allow appropriate social distancing in Dec. 2020.

C. Court Orders

As of Apr. 6, 2020, California set a statewide emergency bail schedule that reduced bail to $0 for most misdemeanors and some low-level felony offenses, causing California jail populations to drop. California state prisons have decreased in its prison population by 18% in comparison to the national prison population decrease of 14%.152 Jail populations in Los Angeles County and Sacramento County had decreased at less than one half of its population and Orange County’s jail population decreased by almost 45% within the same time by the end of May 2020. The judicial council voted to end this statewide emergency bail schedule in Jun. 2020, but 31 counties decided to keep the emergency bail schedule in place. Inmate case studies from the COVID-19 pandemic will be evaluated in the following passages.153 The first case illustrated is from USA v. Rufus. 154 Mr. Williams is an African American inmate at Coyote Ridge with underlying medical conditions that include Type 2 Diabetes and Hypertension. Williams would be more likely to face harsher effects of COVID-19 if he tests positive for the virus. Robert Rufus Williams was denied a shorter release date because of his charges of burglary, robbery, and life-threatening assault in Washington. Mr. Williams was found guilty of aggravated identity theft under 18 U.S.C. § 1028A A1 and bank fraud effective under 18 U.S.C. § 1344 on May 1, 2019. The Court declared Mr. Williams with 54 months of imprisonment, 3 years of supervised release, restitution, and a special evaluation. The Court’s judgment was amended twice effective on July 16, 2019. Mr. Williams’ alternative sentence was not considered, and the state did not object to any motion of release for Mr. Williams. The Court established an order for Mr. Williams to pay reparations worth $27,311.35 and stay as an inmate at the Federal Correctional Institution at Fort Dix in Fort Dix, New Jersey. “Extraordinary and compelling reasons” for release are methods to encourage decarceration.155 What makes it permissible to order shorter release dates for inmates with pre-existing medical conditions and notorious criminal backgrounds in correctional facilities?

152 Wendy Sawyer, New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic, PRISON POLICY INITIATIVE (Jan. 11, 2022), https://www.prisonpolicy.org/blog/2022/01/11/bjs_update/. 153 Id. at 22. 154 USA v. Rufus, 15. Wash App. 2d 647 (Ct. App. 2020) 155 U.S.S.C. amend. DCCXCIX §1B1.13.

The court has considered altering imprisonment terms on compassionate releases within the two given circumstances: (a) "upon motion of the Director of the Bureau of Prisons;" or (b) "upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, ..."156 The court would only make it permissible to changes in scenarios where there must be changes to the record of “extraordinary and compelling reasons” or that the individual is at least 70 years of age with a minimum of 30 years in prison and an assurance that the Dir. of the Bureau of Prisons decides that an individual does not impose a threat to the community.157 The Court had decided to be pursuant in an applicable policy statement for passionate release in accordance with the U.S Sentencing Guidelines (U.S.S.G).158 Mr. Williams had presented “extraordinary and compelling reasons” that the Court deemed as acceptable for having a sentence reduction due to his underlying conditions of asthma, diabetes, hypertension, and other outcomes that would put him at a heightened risk of getting COVID-19. Mr. Williams would not have the opportunity to protect his physical health in a confined space, nor properly protect himself against an infectious respiratory disease while being an inmate. This, in itself, is a reasonable stance for decision makers to give Mr. Williams a shorter sentence. The state government did not agree that this reason was not enough to satisfy the requirements from the U.S.S.G.159 However, the court argued that this was pursuant on the finding that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."160 Regulations have accounted for all of these foreseeable factors and the Court to conclude on the decision for immediate release161 as the motion has met the criteria for passionate release.162 The court still put the judgment in effect for Mr. Williams to have a supervised release. Mr. Williams must put himself in isolation for approximately 14 days upon the arrival of his house and contact his physician to determine eligibility for COVID-19 testing. Mr. Williams possesses a notorious criminal record, and his underlying medical conditions were not easily acceptable for release, but this was not the case for Mr. Rodriguez. In USA v. Rodriguez,163 Jeremy Rodriguez requested the court to reduce his sentence. Rodriguez is a Mexican American inmate at a federal detention facility in Ohio that got charged with drug-related offenses. Mr. Rodriguez's criminal history consists of multiple convictions for drug dealing and firearm offenses. Rodriguez was located in a low-security correctional facility and he has made a plan for returning back to the public. He desires to isolate in his area of residency and was determined to not be a threat to anyone else. Mr. Rodriguez’s firearm offenses were disclosed to the police when they performed a search warrant at his house. Despite Rodriguez being guilty of firearm offenses and drug-related offenses, there has been no evidence to suggest that he used any gun to impose a threat onto anyone during his drug transactions. His criminal history does not describe him as having bad conduct at his federal

156 18 U.S.C. 157 18 U.S.C. § 3559(c) 158 U.S.S.G § 1B1.13 159 Id. at 21. 160 Id. 161 18 U.S.C. § 3553(a) 162 18 U.S.C. § 3582(c)(1)(A) 163 USA v. Rodriguez, 451 F. Supp. 3d 392 (Ct. App. 2020)

detention facility.164 Since Mr. Rodriguez has committed victimless crimes and presented himself with good conduct, will the court grant inmates to have shorter sentences based on their conduct in correctional facilities? In accordance with the U.S.C., it was resourceful for the court to determine a sentence reduction only if "[t]he defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)."165 The court decided that Rodriguez has shown compelling evidence and extraordinary reasons to reduce his prison sentence. He suffers from underlying health conditions that consider him as a vulnerable individual to COVID-19. These conditions include Diabetes, High Blood Pressure, and Liver Issues. The higher risk of staying in an isolated space with many individuals would put Rodriguez in a bad position to protect his personal health. Since Rodriguez would not be able to seek medical care, he would struggle with receiving treatment for his medical conditions. In addition, Rodriguez’ release date from prison is long, so risking his life for getting the virus would not be worth the cost for him to make up for his time committing victimless crimes. Since Mr. Rodriguez has served for most of his minimum sentence, and is close to being released in the following year and a half, it would be reasonable to grant his motion to reduce his sentence and lessen disparities within inmates. Mr. Rodriguez has a long sentence of 17 years, which would make him reflect on his misconduct from his crimes and strive to respect the law. The likelihood of Mr. Rodriguez committing a crime is minimal as his own health is at risk. Therefore, Rodriguez has been qualified as a good candidate for release during the COVID-19 pandemic due to his underlying medical conditions and the length of his release.166 Mr. Rodriguez was able to be released based on his lesser likelihood of committing a crime, but is this condition the same for an inmate with a higher risk of getting COVID-19 and a potential likelihood to commit crimes upon readmission to society? In USA v. Ryan,167 Nolan Ryan has been charged with accounts of aggravated identity theft and bank fraud. In Feb. 2020, the court ordered that Nolan Ryan, the Defendant, would have a detained pending trial due to the uncertainty of his circumstances upon public safety and court appearances. The United States declared that the pretrial release would be in parallel with a regulation that has already considered the "weigh in favor of release" due to the "COVID-19 pandemic and [Defendant's] particular vulnerability to it."168 The extent of the parties' analysis to support their request for Defendant's release is not highly probable in determining his release. As this certainly does practice the release of compassion, is this enough for Ryan’s case to overcome the initial reasons why the court ordered his detainment under the Bail Reform Act? The detainees pending trial should be able to be released due to public health reasons that arise from the COVID-19 pandemic.169 Ryan has presented himself with asthma, a respiratory disease, and the court has determined his diagnosis as unnecessary and insufficient for pretrial release during the COVID-19 pandemic. The court denied Ryan’s request for pretrial release without the consideration of his conviction or sentencing. As the COVID-19 pandemic continued to infectiously spread since Mar. 2020, there have been complaints from Ryan about being at a higher risk of getting COVID-19 due to his asthma. The pandemic had started to stir legitimate

164 Id. at 36. 165 U.S.S.G. § 1B1.13(2). 166 Id. at 30. 167 USA v. Ryan, 445 F. Supp. 3d 707 (Ct. App. 2020) 168 18 U.S.C. § 3142(g) 169 18 U.S.C. § 3142

concerns of an infectious COVID-19 outbreak in the federal prison system. There must be other factors to justify that Ryan’s severity from his condition will be impacted under confinement.170 In accordance with 18 U.S.C.,171 the United States has laid forth Ryan’s pretrial release because “[t]he COVID-19 pandemic cannot be the sole basis for releasing a defendant from custody pending trial; the Court must still consider the Section 3142(g) factors."172 The court had ruled that being dependent solely "on the issue whether there are conditions of release that will reasonably assure the appearance of [Defendant] as required and the safety of any other person and the community."173 The Bail Reform Act has authorized for a "temporary release" pending trial into "the custody of a United States marshal or another appropriate person" for "compelling reasons" only.174 Based on this interpretation of the court, Nolan Ryan had been authorized for a temporary release on the basis of The Bail Reform Act. Prolonging the stay of inmates who possess underlying medical conditions in enclosed spaces is a risky circumstance that can be hazardous for their health outcomes. As for correctional facilities, there is still potential for COVID-19 outbreaks as our society is still in an ongoing pandemic. In fact, California has the biggest population in the nation and there have been numerous cases of COVID-19 outbreaks in correctional facilities. California’s correctional facilities continue to have massive COVID-19 outbreaks. There have been numerous urges for better air ventilation systems in correctional facilities and reinforcement for physical distancing. Inmates have been neglected in their needs for providing a better healthcare infrastructure.175 For example, San Diego County detainees are currently dying and suffering in San Diego County’s jails because of the incredibly deadly and hazardous practices, conditions, and policies that have been continuously permissible for several years. While the death rate in San Diego County’s jails have exponentially increased at higher rates nationally at every year, it has expanded in the midst of the COVID-19 pandemic. 458 inmates per 100,00 people have been found dead from the harsh conditions of living in jails. San Diego County’s 2021 death rate tripled in comparison to the national rate in jails.176 Furthermore, the custody staff are the only ones that make the final decisions for health care services that are provided to inmates. The decisions are not dependent on any health professional whatsoever. Individuals at San Diego County’s jails do not receive convenient treatments and they are not sufficiently screened for medical needs. For instance, contractors and jail staff did not guarantee that Michael Wilson would get his life-saving heart medication in 2019, irrespective of what a judge specifically ordered for them to do. Michael Wilson died in jail as a result of the careless act to not provide him his life-saving heart medication. When inmates do not receive their appropriate treatment upon their visit to a jail, they experience a higher likelihood of suffering, death, exacerbated health conditions, and prolonged pain.177

170 Id. at 39. 171 Id. at 34. 172 Id. at 35. 173 Id. at 23. 174 Id. at 34. 175 U.S. Dist. Ct., Joint Case Management Statement, (2022-02-14). https://rbgg.com/wp-content/uploads/2022-0214-Case-Management-Statement.pdf. 176 Dunsmore v. San Diego Cnty., S.D. Cal. Ct. App. (2021) 177 Id.

Through practice and policy measures, the Sheriff’s Dep’t. failed to prevent and address the custody staff’s misconduct against inmates. The Sheriff’s Dep’t. does not adequately train custody staff on how to vocalize and avoid misconduct caused by correctional facility workers. Custody staff frequently commit misconduct that directly harms inmates. This misconduct can take the form of lockdowns or other tactics that deprive incarcerated people of programs and privileges. For example, custody staff are able to punish people to the fullest extent, which would include individuals with mental health disabilities. The custody staff would not align with any formal discipline system, which would allow them to refuse mentally disabled inmates access to showers, meals, professional visits, and court visits. This act is often performed pursuant to a widely enforced, yet unofficial, “bypass” by which an individual is denied access to leaving their cell and being placed on a self-lockdown. The “bypass” system is not established nor written in any policy. However, the “bypass” system is a prolonged practice controlled by a few custody staff where someone could be placed as a “bypass” for as many months that are dependent on the staff. Being a “bypass” would mean that an inmate would not have a cellmate and their door is not permissible to be open for a dayroom and programs within the facility.178

Arrests

LAPD encountered a decrease in arrests by issuing claims, delaying arrests, and using releases. Within Los Angeles County, there have been reduced arrests from an average of 300 per day to approximately 60 per day from Mar. 2020 to Mar. 2021.179 Sentence statuses have been as low as 22% to 44% as of Mar. 2022.180

Reducing in-person check-ins

The California Department of Adult Parole Operations has reduced the number of required checkins to protect workers and people in the surrounding area by suspending office visits for people with chronic medical conditions and anyone above the age of 65.

Eliminating probation and parole fees

California revoked 23 criminal legal system fees spent on mandatory supervision, electronic monitoring programs, and probation.181

IX. THE U.S. FEDERAL GOVERNMENT

The Vera Institute of Justice has suggested the Biden-Harris Administration to incentivize authorities that manage state and local detention centers, jails, and prisons to adopt policies on decarceration. The COVID-19 in Corrections Data Transparency Act will hold state and local systems accountable for testing and infection numbers, spread, and outcomes. Additionally, the federal government can issue guidance and give assistance through the Office of Justice Programs to states and localities looking to effectively combat COVID-19 for inmates.

178 Id. at 41. 179 Id. at 19. 180 See Correctional Services Daily Briefing, 032322 Briefing, Los Angeles County Sheriff’s Dept. (Mar. 23, 2022), https://lasd.org/wp-content/uploads/2022/03/Transparency_Custody_Division_Daily_Briefing_032322.pdf. 181 Id. at 19.

Recommendation 1: Release people from BOP, ICE, and ORR custody. Safely releasing people to ease overcrowding and allow for social distancing will mitigate COVID-19 exposure risk. The administration must have a goal to reduce the amount of people in custody by a minimum of 25% within 100 days. Local jails have done this from Mar. and Jun. 2 upon releasing enough people to lower the national jail population by a quarter in that time. The following has been accounted for:

“1. Release people from BOP custody who are within one year of the end of their sentences. 2. Use compassionate release for people aged 55 and older and those who are especially vulnerable to COVID-19. 3. Release people held in immigration detention, prioritizing those with vulnerabilities. 4. Prioritize swift reunification of children in ORR custody with family members and, at a minimum, ensure they are placed in smaller and transitional foster care settings. 5. Issue more clemencies and commutations. 6. Direct federal prosecutors and U.S. Department of Homeland Security attorneys do not seek pretrial or immigration detention unless there is a credible public safety risk that justifies it.” 182

Recommendation 2: Maintain better preventive measures, containment, and testing. Public health officials agree that the most effective strategy in combating COVID-19’s spread is the use of PPE, testing, and contact tracing.

At least $200 million must be allocated responsibly and should comply with these following procedures based on the Consistent with the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act:

“1. Provide all people who work and are incarcerated in federal correctional settings with PPE in accordance with Centers for Disease Control and Prevention guidance. 2. End transfers of incarcerated people between BOP facilities and within the ICE system. 3. Mandate mass testing at key intervals including, at a minimum, on admission to the facility and before release, as well as immediately when any case of COVID-19 is suspected. 4. Institute a contact tracing policy behind bars. 5. Align facility design to meet public health recommendations by using single cells when possible and maintaining at least 150 square feet of personal space per person.”183

Recommendation 3: Reorganize the correctional operations that encourage the social distancing preventive measures to COVID-19 based on lockdown measures that include the prohibition of inperson visits with family members and loved ones, requiring people to stay in their cells, and limiting the mobility of people inside of correctional facilities. The correctional workers can give free tablets and calls to replace in-person visits, change the strategies and schedules of programs, and enforce the limitation of being near people.

182 Recommendations to the Biden-Harris Coronavirus Task Force on Immediate Steps to Combat COVID-19 Behind Bars, VERA INSTITUTE OF JUSTICE (Dec. 2, 2020), https://www.vera.org/downloads/publications/recommendations-to-biden-harris-coronavirus-task-force-covid-19behind-bars.pdf. 183 Id.

The Biden-Harris Administration can facilitate and encourage authorities that control the state and local detention centers, jails, and prisons to adopt the following recommendations:

“1. Urge Congress to pass the HEROES Act, including an allocation of $300 million in Byrne Justice Assistance and another $600 million in Pandemic Justice Response Act grants. 2. Urge Congress to pass the COVID-19 in Corrections Data Transparency Act to hold state and local systems accountable for testing and infection numbers, spread, and outcomes. 3. Issue guidance and provide assistance and oversight through the Office of Justice Programs to states and localities looking to effectively combat COVID-19 behind bars. Resistance to these reforms is often couched in public safety and budgetary concerns. However, a September 2020 study of jail and prison early release policies during COVID-19 demonstrates that we can maintain public safety while prioritizing public health. 10 We urge the COVID-19 Task Force to consider these recommendations and the administration to take action immediately. The costs—human, social, and fiscal—of inaction are too great to ignore.”184

X. CONCLUSION

Correctional facilities must consider that inmates, correctional facility workers, and the surrounding community are large contributors to the nationwide spread of COVID-19. Decarceration is a necessary attribute in reducing COVID-19 rates in correctional facilities and one factor in stopping the spread of COVID-19 nationwide. Facilities that decrease their inmate capacity have been found to have lower rates of COVID-19. Based on California state and federal orders enforced by the court and the government, there must be attempts to decrease the spread of COVID-19 in correctional facilities to preserve the public health and safety of individuals in correctional facilities. The examples illustrated through Santa Clara County, the Bay Area’s Criminal Justice System, Los Angeles County, the District of Columbia, and San Diego County have shown that correctional facilities have the potential to reduce jail sentences during the COVID-19 pandemic. Santa Clara County took precautionary measures and became aware of potential outbreaks within correctional facilities. The Bay Area’s Criminal Justice System had released inmates with pre-existing medical conditions and attempted to stop the spread of COVID-19 inside of correctional facilities. Los Angeles County has the highest number of incarcerated people nationwide, yet the county has enacted effective measures to reduce the spread of COVID-19 in correctional facilities, and staff members have been regulated to reinforce the measures in place. The District of Columbia allowed inmates with notorious criminal convictions to be released upon the motion that inmates’ medical conditions would be exacerbated by COVID-19. San Diego County has notoriously tripled in its cases for inmates with COVID-19 compared to the general U.S. population. San Diego County jail detainees, and the surrounding community, criticize the county jails for having careless correctional facility workers. Choosing not to decarcerate would result in worse health outcomes for jail, detention center, and prison populations. African Americans and Mexican Americans are disproportionately arrested and incarcerated at higher rates than the general U.S. population. They are also at higher risks of getting COVID-19 in our society at large, which would lead to more health disparities and continued distrust in the public

184 Id.

health system. The neglect of public health infrastructure within correctional facilities would amount to a higher public distrust in the U.S. Criminal Justice System. Decarceration has been proven to be the most effective approach in entailing better health outcomes and safety measures for inmates, correctional workers, and surrounding communities. Therefore, the U.S. Criminal Justice System can maintain its integrity and gain more public trust by prioritizing the needs of inmates’ health and safety through decarceration.