An Orange County Superior Court judge publicly criticized Sheriff Don Barnes for saying residents would be in danger from a court order to transfer inmates out of group living areas to protect them from coronavirus outbreaks.
“The position taken by [the sheriff] at various times has been that he cannot or won’t do these reductions, that he has released all those he can safely release,” Judge Peter Wilson told Barnes’ attorneys at an Orange County Superior Court hearing last Friday.
“Inconsistent with that, he has nevertheless found additional inmates to release. I think in your argument you pointed out that 472 people had been released since December 11, when the [sheriff’s] position in providing to the court was, ‘There’s nobody else I can let go without [risking] public safety,’ ” the judge continued.
“Obviously he has found additional inmates that he was satisfied to release under his own discretion without risk of public safety.”
In response, Barnes’ spokesman says the sheriff has been releasing inmates who met the sheriff’s safety standards.
“The court ordered us to come up with a plan, part of which was the release of inmates. Our inmate population changes daily and the inmates released since December were inmates who met the criteria set by the Sheriff,” Sgt. Dennis Breckner said in a statement to Voice of OC responding to the judge’s criticism.
Barnes drew national headlines in mid-December when he said Judge Wilson was ordering him to release 1,800 dangerous criminals into the community, in order to create space for social distancing in the jails to prevent coronavirus outbreaks.
“I have no intention of doing that, of releasing those individuals back into the community. I think they pose a serious threat,” Barnes told Fox News.
“If the order stands, it will result in the release of more than 1,800 inmates,” he added in another statement.
“The public should be in a panic and they should be concerned about this release,” Barnes told a TV station.
District Attorney Todd Spitzer joined in the criticism, saying the court’s order “will release dangerous and violent criminals back into our neighborhoods to commit more crimes and victimize people.”
But Wilson’s order did not say inmates must be released back into the community. The judge said they could be transferred to other lockups. And he noted some of the at-risk inmates are in for minor crimes like presenting a false ID and have already been deemed by the sheriff to not be a safety risk.
“The Court uses the term ‘release’ or ‘released’ to mean the discharge of detained individuals from the physical confines of the Orange County Jail [group living areas], not necessarily release from all forms of custody,” Wilson wrote in his Dec. 11 order.
“Release options and conditions remain in the discretion of [the sheriff],” he continued.
At a hearing last week, the sheriff’s lawyers said they can comply with the judge’s population reduction orders without releasing any inmates – including by transferring many to state prison.
Wilson expressed frustration with the sheriff for not exploring his options sooner for how to transfer inmates to comply with the order. He gave Barnes another two weeks to comply.
“I am frustrated, as you would fully expect, by the lack of – what I would call – creative planning or thinking by respondent,” Wilson said at Friday’s hearing.
“None of the issues discussed, the plans prepared, have given the court any assistance in understanding how the sheriff can or has taken advantage of being able, for example, to aggregate those who are covid-recovered, being able to aggregate those who have now had the vaccine in order to create the opportunities for social distancing in the at-risk population,” he added.
Sheriff officials told the judge last week they will essentially be able to comply with his order by rearranging inmates within the jail and transferring some to state prisons.
By the end of next week, the Sheriff’s Department will be “basically achieving the court’s objective from its original directive to the Orange County Sheriff’s Department regarding this plan to achieve 50 percent” occupancy in group living areas, said Kevin Dunn, the county attorney representing Barnes at last week’s court hearing.
That will allow for social distancing for the 200 or so inmates who have not had Covid – about half of whom can be transferred to state prisons, he added.
There are a total of about 1,600 inmates in the group living areas of OC jails, the vast majority of whom were infected with coronavirus in the recent outbreak and are presumed to have immunity for the next few months.
No inmates have been released because of the court orders, aside from two specific plaintiffs the court ordered released, Barnes’ spokeswoman Carrie Braun said this week. And the sheriff’s lawyers are now telling the court they can comply with the orders now that an outbreak has left a much smaller number of inmates who have not yet had Covid.
The sheriff appealed Wilson’s order twice, with the state appeals court rejecting the appeal both times.
At last week’s hearing, the judge gave Barnes two more weeks to comply with the order, with a warning.
“If what is being proposed does not come to fruition, [the sheriff] should not be under any illusion about the court’s determination to then make such further orders as may be necessary to achieve what has not been self-achieved.”
Asked if Barnes believes he can accomplish the court’s orders without releasing inmates who risk public safety, his spokesman said the sheriff has succeeded in controlling Covid’s spread in the jails.
“Since December, we have done exactly what we said we would do, which is mitigate the spread of Covid 19 in the jails,” Breckner said in a written response to Voice of OC.
“The success of our robust plan is evident as Covid positive cases dropped from over 1,200 in December to where they are at today, 23 (10 of which are from new bookings). We will continue to practice guidelines set by the CDC and we feel our efforts to operate a safe jail facility, coupled with a well thought out population management strategy has all been in the best interest of public safety.”
ACLU lawyers, who brought the lawsuit against Barnes, say he’s waited weeks – through a major outbreak – to comply with the judge’s order and that his plans to ensure social distancing are vague.
“I would just like to note for the record that it’s been almost 50 days since your honor issued an order directing the county to issue a plan” to reduce group living areas to 50 percent of capacity, said Corene Kendrick, an attorney for the ACLU, during the court hearing last Friday.
“It’s now been 30 days since they were supposed to issue a plan on December 31st. And now today we’re hearing about something that Mr. Dunn [the sheriff’s attorney] refers to as a reshuffling plan. He kept representing that there’s a reshuffling plan. We have not seen what this reshuffling plan is. It hasn’t been provided to the court,” she added.
The court’s 50 percent capacity goal is based on a March recommendation to the sheriff from Dr. Chun Chiang, the county Health Care Agency official responsible for inmates’ medical care.
Chiang “testified to the court that his 50 percent was indeed based on needing to skip every second bed because otherwise, the social distancing was simply not achievable,” Wilson said last week.
Kendrick asked the court again to appoint an expert to ensure the sheriff is actually implementing the court’s order.
“At this point we have had thousands of [incarcerated people] become infected with this disease. We’ve had two people die. And two weeks does not mean that everything will be perfect and fixed and cleared out, as he is representing,” Kendrick said.
“As was seen in December, two weeks was plenty of time for the jail to go from only having seven infections, at which point [the sheriff’s attorney] was saying that it was safer than New Zealand to be in the Orange County jail, and two weeks later more than 1,200 people were infected with Covid.”
The sheriff’s attorneys said they’re nearly finished in meeting the court’s goals.
“What if we can provide the court with a solution in two weeks? It seems tantalizingly close,” Dunn said.
“We’re proposing to give this court a solution that is in line with its directives in two weeks.”
As of last week, only 213 inmates had not yet gotten Covid – out of about 1,600 inmates in group living, Barnes’ attorneys told the court at last week’s hearing.
They asked for – and received – an additional two weeks from the judge to be able meet the court’s goal of limiting the number of inmates who have never had Covid to no more than 50 percent of the bed capacity in their group living unit.
State prison officials have agreed to receive 100 inmates out of the 213 who haven’t yet had Covid, one of Barnes’ attorneys told a court last week.
“That by itself on paper – just from a mathematical standpoint – allows us to provide social distancing to the 213 individuals that remain in congregate housing and [have not had Covid],” said Dunn.
“Because that would open 100 units available for individuals, and we can spread those individuals out to a capacity of approximately 50 percent,” he added.
“The reason we’re going to ask for [two weeks] is because the Orange County jail currently knows what the issues are, has the plans to address them, and has the capacity to do so,” said Dunn.
As of late January, about 87 percent of the jail population have either gotten Covid and recovered or are currently infected, Barnes’ attorneys told the court.
Officials call the other 13 percent of inmates “Covid naïve” – meaning they are at risk of getting Covid because they have not been infected with coronavirus.
Sheriff officials have told the court they do not house infected inmates with those who have not had Covid. Inmates who have recovered from coronavirus infections are housed with those who have not yet gotten Covid, sheriff officials said.
People are generally believed to have at least three months of immunity after recovering from a coronavirus infection, according to the U.S. Centers for Disease Control and Prevention.
The goal of the court’s Dec. 11 order is “to achieve inmate populations by all means reasonably possible so as to permit social distancing for those in aggregate housing in the jail. In particular, of course, those that remain at risk,” Wilson said last week.
Barnes’ attorney told the court last week that vaccines are not available for inmates under age 65.
The next court hearing in the case is set for 10 a.m. on Tuesday, Feb. 16.
The judge is pressing the sheriff to move quickly or face a possible court-appointed monitor.
“There is no let-up in the danger posed by Covid,” Wilson said.
Nick Gerda covers county government for Voice of OC. You can contact him at [email protected].