On the heels of the AG’s petition to the Supreme Court to review Von Staich comes this brief, submitted to the Superior Court that is handling the consolidated habeas corpus petitions of more than 300 people from San Quentin. In the brief, the AG is asking the court to halt all proceedings and stay all orders until the Court of Appeal decision in Von Staich becomes final. Here’s the full thing for you (13 pages of reading); my comments follow.

Respondent's Brief Regarding Effects of Von Staich Decision (1) by hadaraviram on Scribd

In case words like “abeyance” and “remittitur” set your teeth on edge, what this means is that the AG wants the 311 pending cases to go into hibernation until the Supreme Court (1) denies review in Von Staich or (2) reviews Von Staich, issues a ruling (upholding or overturning Von Staich) and that ruling becomes final. In practical terms, we are talking about a possible delay of several months.

What will happen in the meantime? According to the AG’s brief, they are going to spend this time working with the Receiver on the COVID response strategy. This strategy will be based on transfers, not releases, and apparently the AG’s office becomes upset when reminded that their transfers are what caused this mess in the first place: “Obviously, CDCR does not intend to conduct mass transfers of the same kind that were previously unsuccessful.” Thousands of infections and 28 deaths? “Unsuccessful” would perhaps not be the word I’d pick from my thesaurus, but okay. It goes on: “[P]etitioners’ attempts to suggest prisoner transfers of any kind are not safe or effective is not well taken.” Thousands of people sick, dozens dead from a preventable outbreak on your watch that started with a transfer, but heaven forbid your fee-fees might get hurt by mentioning that CDCR doesn’t have quite the flawless track record on transferring people without infecting or killing them.

The rest of the brief is, essentially, a game of Tetris: they argue that they could easily shift people around and move them to other prisons “even (!!!!!) omitting the prisons that are currently at more than 100 percent capacity.” As in, adding people to institutions that are already overcrowded is a viable option (remember the track record?), but we’ll go the extra mile and show the court that we can achieve the desired population reduction by transferring people to facilities that are only at or near 100%.

If you don’t feel like you’re quite disgusted yet, in the last page we are told:

Arguing that [people incarcerated at San Quentin] should not be transferred because it is stressful, their family will be unable to visit, and they will be unable to participate in programs that may support their bid for parole necessarily implies that petitioners view the foregoing factors as mutually exclusive and more important than their need to be free from San Quentin’s alleged unsafe environment. Neither can be true.

Seriously, who writes this stuff? The cynicism drips from “it is stressful.” Implied is the comparison between the “stress” associated with being moved around by the people who brought you the outbreak, and consequently facing possible targeting and violence from strangers in the new facility, and whatever the author of this magnum opus considers “stressful”, like, I dunno, deciding whether to go with vinaigrette or ranch on their side salad. Same thing for families being unable to visit–a serious mental health issue not only for the prisoners, but also for their young children–which is not the same as the family “stress” involved in the government lawyer’s need to balance the time it took them to author this masterpiece with the need to help their kids with their Zoom homework.

But most importantly, the dichotomy the authors are setting up is false, because the AG only presents people with two options: stay in a dilapidated, decrepit facility and face death, or face health risks and other negative outcomes by being transferred. That the Court of Appeal didn’t order them to transfer people doesn’t mean the Court didn’t prefer this strategy. It did, and it said so explicitly at least thrice in the decision, specifying the population of aging and infirm people doing time for violent crime as the key to a successful release strategy. That the authors of this brief don’t see it is emblematic of their inability to truly “see” this population: that’s why, when they reviewed 6,000 cases for release, they only found 44 (!!!!). That to the AG representatives, through their biases and blinders, release is not a viable option, does not mean that it is not the obvious, sane solution to everyone else.

This is infuriating, beyond offensive, and breathtakingly vicious, and I’m at the edge of my seat waiting to see how the Superior Court will respond.

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