Below are the most recent stats I have for a COVID-19 bail motion. Additionally, here is the website from FDAP that has sample motions and habeas petitions:
As of July 23, 2020, the US had 3,952,273 documented cases of COVID-19 and 142,755 documented deaths. (See CDC website statistics, available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html, accessed July 23, 2020.) At this point in time, there is no dispute that this is the worst global health crisis of any of our lifetimes, with the United States facing one of the world’s worst outbreaks.
After an attempt to slowly lift some of the shutdowns and stay-at-home orders led to a dramatic increase of cases, both in California and across the country, previous restrictions are back in place, with additional long-term massive restrictions and shutdowns across the United States in effect and planned. (See New York Times, As U.S. Coronavirus Cases Hit 3.5 Million, Officials Scramble to Add Restrictions, updated July 24, 2020, available at
And we know, that jails and prisons, like nursing homes, are among the most dangerous epicenters for the outbreaks. In fact, on May 13, 2020, the World Health Organization, along with committees of the United Nations issued a joint statement: “We, the leaders of global health, human rights and development institutions, come together to urgently draw the attention of political leaders to the heightened vulnerability of prisoners . . .” (available at https://www.who.int/news-room/detail/13-05-2020-unodc-who-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings, accessed July 24, 2020.) In that statement, they also urged leaders around the world to reduce overcrowding, and advised that “[t]hese efforts should encompass release mechanisms for people at particular risk of COVID-19, such as older people and people with pre-existing health conditions.” (Ibid.)
“By July 21, at least 70,717 people in prison had tested positive for the illness, a 10 percent increase from the week before.” (See the Marshall Project, tracking outbreaks in prisons, available at https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.) Only Texas and the Federal system exceed the number of cases among the incarcerated in California. (Ibid.)
“Currently, the nation’s top five Covid-19 hot spots are all correctional facilities, according to data collected by The Times. The number of infected inmates and workers has topped 70,000 — the count doubled between mid-May and mid-June — and there have been at least 627 virus-related deaths.” (The Coronavirus Crisis Inside Prisons Won’t Stay Behind Bars https://www.nytimes.com/2020/06/25/opinion/coronavirus-prisons-compassionate-release.html.) Even these numbers are expected to be an undercount given the lack of testing of the incarcerated. (Ibid.)
Accordingly, states and the Federal government are taking the unprecedent action of releasing inmates to curb the spread of the virus. As of July 10, 2020, California planned to release another 8,000 prisoners, on top of those already released early this spring. (See NPR, California Will Release Up To 8,000 Prisoners Due To Coronavirus https://www.npr.org/sections/coronavirus-live-updates/2020/07/10/889861014/california-will-release-up-to-8-000-prisoners-due-to-coronavirus.) This is after one third of staff and inmates at San Quentin tested positive for the virus. (Ibid.)
On March 26, with an eye toward easing the strain on the system, Attorney General Bill Barr directed the Federal Bureau of Prisons to move or release the most vulnerable and at-risk inmates, and to prioritize home confinement. (See Memorandum to Bureau of Prisons available at https://www.bop.gov/resources/news/pdfs/20200405_covid-19_home_confinement.pdf.)
Sadly, these efforts to protect the most vulnerable inmates, are often too late, and poorly executed. Back in May, when a federal prison delayed the release of two vulnerable inmates, ordered released by the court, one 60 and one 79, within a week of release one was dead from the virus. (See Freed From Prison, Dead from COVID-19, Not Even Counted Officials’ missteps at Butner made it the deadliest federal lockup, The Marshall Project, July 10, 2020, available at https://www.themarshallproject.org/2020/07/10/freed-from-prison-dead-from-covid-19-not-even-counted.)
And we already know what can happen when we fail to address the risks in prison. “A new analysis led by researchers at Johns Hopkins Bloomberg School of Public Health found that the number of U.S. prison residents who tested positive for COVID-19 was 5.5 times higher than the general U.S. population.” (available at https://www.sciencedaily.com/releases/2020/07/200708121423.htm.) The death rate is also substantially higher. (Ibid.)
As described in a heartbreaking report by Rachel Aviv, when investigating the conditions in a prison in Arkansas, the death rate in prison, and the spread to the community from prison is astonishingly grim, converting short sentences into death sentences. And those death sentences reach nearby communities, and families of prison workers. (See Punishment by Pandemic: In a penitentiary with one of the U.S.’s largest coronavirus outbreaks, prison terms become death sentences, Rachel Aviv, The New Yorker, June 22, 2020,available at https://www.newyorker.com/magazine/2020/06/22/punishment-by-pandemic) At the time of the reporting by Aviv, the failure to contain the virus in the prison led to that small town having the tenth largest outbreak in the country. (Ibid.) As Aviv explains:
[W]hen it comes to infectious disease, the harms of incarceration become visible . . . The boundaries of penitentiaries are porous: inmates come in and out, as do officers, medical staff, venders, lawyers, and relatives. Diseases come in and out, too. The risk of tuberculosis, for instance, is twenty-three times higher inside prison walls—poor ventilation, social density, and minimal sun exposure are fertile conditions for the spread of disease—but cannot be contained within them. A 2015 study in Emerging Infectious Diseases found that in Dourados, a city in Brazil, more than half the cases of tuberculosis among people who had never been incarcerated were linked to strains of the disease inside the nearby prison.
Jails and prisons are notorious amplifiers of infectious diseases, such that commentators see the reductions in these numbers as critical to curbing the pandemic on US soil. (See The Appeal, Why Jails are Key to “Flattening the Curve” of Coronavirus, available at
Prisons are a tinderbox for the wildfire that is COVID-19 for many reasons. For example, prisons and jails notoriously provide inmates with limited access to soap (See The Guardian, “’Historic health screw-up’: what you need to know about the Covid-19 crisis in California prisons,” [“inmates, correctional officers, and prison medical personnel have all complained about the lack of protective and hygiene supplies such as masks, gloves, hand sanitizer and soap.”], available at https://www.theguardian.com/us-news/2020/jul/03/california-prisons-coronavirus-covid-19-health as of July 24, 2020), and antibacterial gel is often banned because it is made with alcohol (see, e.g. Antonia Farzan, The New York Times, “Inmates are manufacturing hand sanitizer to help fight coronavirus. But will they be allowed to use it?”, (March 10, 2020), available at https://www.washingtonpost.com/nation/2020/03/10/hand-sanitizer-prison-labor/, as of July 24, 2020.)
Coronavirus also spreads through close contact between people, and prisoners are necessarily in close contact with one another especially considering that more than one inmate often share cells. In fact, CDCR is so overcrowded that some inmates are double-bunked in cells built for one. (Paige St. John, “Coronavirus Plan for California Prisons Raises Inmate and Advocate Concerns”, Los Angeles Times, (March 5, 2020), available at https://www.latimes.com/california/story/2020-03-05/coronavirus-california-prison-plan, as of July 24, 2020.)
There are almost 3,000 inmates in appellant’s prison, and around 1,200 employees (at least as of 2017.) (See CDCR, “Weekly Report of Population As of Midnight July 22, 2020”, at p. 2 available at https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/07/Tpop1d200722.pdf, as of July 22, 2020; Jess Sullivan, “Two State Prison Facilities in Vacaville”, Daily Republic, available at https://www.dailyrepublic.com/projects/solano-life-2017/hold-prisons-intro-list/, accessed March 23, 2020.) Each of those employees potentially contracts the disease when going home and coming back to prison, where they would necessarily interact with their families.
In other countries, the virus has similarly spread rapidly and exponential within prisons, and panic from contraction has caused riots, which, in turn, have caused death. (See, e.g. Kate Mayberry, et al, “Threat of Coronavirus Pandemic ‘Very Real’”, (March 9, 2020), available at https://www.aljazeera.com/news/2020/03/italy-coronavirus-toll-soars-north-sealed-live-updates-200308235426110.html , as of March 13, 2020 [Iran released 70,000 inmates because of Coronavirus as the death toll rose from 43 fatalities to 237]; BBC News, “Coronavirus: Death Toll Jumps Again in Italy’s ‘Darkest Hour’”, (March 9, 2020), available at https://www.bbc.com/news/world-europe-51805727, as of March 13, 2020.)
The risk to life for inmates in CDCR is especially apparent because overcrowding has led to abysmal medical care for inmates. Indeed “[s]o many preventable inmate deaths occurred in [California’s prison system] was put under control of a court-appointed receiver in 2006.” (Paige St. John, supra, “Coronavirus Plan for California Prisons Raises Inmate and Advocate Concerns”.) This is especially troubling in the wake of Coronavirus because, at least at the facility where appellant is housed (California Medical Facility), there are some 2,500 sick inmates, but, at least as of April 27, 2017, there were only 121 medical professionals, with three of CDCR’s seven spots for primary care providers vacant. (Adam Ashton, “Unprecedented Doctor Shortage at California Prison Hurting Inmate Care, Audit Says”, The Sacramento Bee, (April 27, 2017), available at https://www.sacbee.com/news/politics-government/the-state-worker/article147241644.html, as of March 13, 2020.)
From the date appellate counsel filed the motion for OR in this case, to today—a period of just five months—the number of COVID-19 cases in CDCR have increased from 1 case, to over 7,000, with no deaths, to 47. (The Marshall Project, supra, available at https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons, as of August 2, 2020.) Although CMF has not exploded with COVID-19 cases, like San Quentin, it is only a matter of time. Within the last 14 days, there have been two cases. (CDCR, COVID-19 Tracking,available at, https://www.cdcr.ca.gov/covid19/population-status-tracking/, as of August 2, 2020.) 21 correctional officers at CMF tested positive for COVID-19. (CDCR ,CDCR /CCHCS COVID-19 Employee Status, available at https://www.cdcr.ca.gov/covid19/cdcr-cchcs-covid-19-status/, as of August 2, 2020.) For every one person infected, it is estimated that 2.3 or 5.7 more persons will contract COVID-19 (Cemal Bulut, et al., Epidemiology of COVID-19, 2020 Turk J. Med. Sci., abstract available at https://pubmed.ncbi.nlm.nih.gov/32299206/, as of August 2, 2020), a figure applicable to the general community, not taking into account the nuances of the increased rate of transmission in prison. San Quentin had no COVID-19 cases in May, and now, in just a matter of two months, has jumped to 2,184 cases (CDCR, CDCR Patients: Confirmed COVID-19 and Outcomes, available at https://www.cdcr.ca.gov/covid19/population-status-tracking/, as of August 2, 2020.) The total population of San Quentin is 3,178, meaning more than half of those incarcerated at San Quentin have, or have had, COVID-19.
- Risks of Death to Compromised Individuals
In addition to the specific risks of the prison environment, complications and death rates from Coronavirus are exponential higher among persons over the age of 60 years, and persons with heart conditions. (Centers for Disease Control and Prevention, “People at Risk for Serious Illness from COVID-19”, (2019), available at https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html, as of June 25, 2020.) According to the Center for Disease Control, as of June 25, 8 out of 10 deaths related to Corona virus are 65 years or older https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.) This is not even accounting for underlying conditions. Also, according to the Center for Disease Control, heart disease is the first such condition listed as having the strongest most consistent evidence of increased risk of death due to Coronavirus. (available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html.
The California Supreme Court has been clear for more than a century: where, as here, a defendant can show that his life is in jeopardy by incarceration, a court should release him pending the disposition of his appeal. (See In re Ward (1900) 127 Cal. 489, 490-491; see also In re Pantages (1930) 209 Cal. 535.) For example, in In re Ward, supra, at pages 490-491, the California Supreme Court held that circumstances of extraordinary character appeared, justifying the release of a prisoner pending appeal, under circumstances nearly identical to those here. In In re Ward, the defendant suffered from asthma, which implicated the health of his lungs, and which, if his incarceration continued, caused a chance of death. (Id. at p. 490.)
In In re Pantages, supra, 209 Cal. at p. 538 the California Supreme Court reached the same conclusion under similar circumstances, even though the defendant was convicted of the serious and violent crime of rape. In Pantages, the defendant suffered from a heart condition which suggested that serious injury or death was imminent. The Court held that the condition justified release because the defendant’s condition was so serious, and “his surroundings are such that not only his health but his life is in danger”. (Id. at p. 538.)
This Court should also consider the threat to public health if appellant is not released. Perhaps, instinctively, it might seem as if releasing one person from prison until COVID-19 subsides will not have a massive effect. But, that would overlook how contagious this disease truly is. For example, recently, 260 of 344 of those who had attended a summer camp tested positive for COVID-19 after just one staffer discovered he had tested positive after he had attended the camp for two days. (E.J. Mundell, “How COVID-19 Raced Through a Georgia Summer Camp, July 31, 2020, available at https://www.webmd.com/lung/news/20200731/kids-efficient-transmitters-as-covid-19-raced-through-a-georgia-summer-camp#1, as of August 2, 2020.) The photographs attached to the emergency bail motion in the federal action of CMF (SCT 57), show that appellant’s current housing situation is even worse than the camp because, at least, those persons were in separate cabins of only 15 persons to a cabin. (Mundell, supra.)
CMF employs over 1000 people who, of course, interact with inmates and leave prison and return to our community. (Wikipedia, “California Medical Facility”, available at https://en.wikipedia.org/wiki/California_Medical_Facility, as of August 2, 2020.) Correctional officers have died. (See, e.g. Julia Sulek, “‘Catastrophe’”: How California’s Worst Coronavirus Outbreak Burst from San Quentin Into Their Home in San Jose”, The Mercury News, August 1, 2020, available at https://www.mercurynews.com/2020/08/01/from-san-quentin-to-san-jose-how-californias-worst-coronavirus-outbreak-burst-from-death-row-to-the-south-bay/, as of August 2, 2020.) They have transmitted to their families. (Ibid.) Releasing appellant, just one disabled, medically compromised, over 60-year old man, will protect other inmates, staff, their families, and, ultimately, our community.