Ruling on another case on its pandemic docket, the Supreme Court this afternoon denied a writ petition that sought to stop California from facilitating the transfer of persons from its prisons and jails to federal immigration detention facilities.  The petition — in California Attorneys for Criminal Justice v. Newsom — claimed relief was necessary because the state knows that federal officials are guilty of an “abject failure to protect the lives of people in its custody from the deadly COVID-19.”

Although the court refuses to step in itself, it specifically allows the filing of superior court actions “against responsible authorities with respect to conduct that may unnecessarily expose inmates in their custody to significant risks to their health and safety” and it directs the trial courts “to proceed as expeditiously as possible.”  The denial order also leaves open the possibility of a new Supreme Court petition “raising similar claims if circumstances warrant.”

Referring the matter to the trial courts is consistent with how the court handled two other petitions seeking protection for incarcerated persons.  (See here and here.)

Unlike with the other two petitions, however, the court’s action today draws a dissent, from Justice Goodwin Liu.  Noting that one person recently died of COVID-19 complications in federal immigration custody and that “more deaths will surely follow,” he says the Supreme Court should resolve the matter now instead of sending it to the lower courts.  “We should act with an urgency that befits the current crisis,” Justice Liu asserts, adding, “I fear that today’s order will unnecessarily delay resolution of issues with potentially dire consequences for inmates, correctional staff, the health care system, and our state as a whole.”

Why didn’t Justice Liu dissent when the court deferred a similar COVID-19 petition to the superior courts?  His explanation:  the earlier petition “involved conditions at scores of jails and juvenile facilities in 15 or more counties, [while] the factual inquiry in this case principally concerns the conditions at the five ICE facilities in California, which seems a manageable task.”

The court denies the petition because it “establishes no clear and mandatory duty on the part of the Governor and the Attorney General [the named respondents] to take the requested action.”  But Justice Liu says relief can be afforded even in the absence of a clear and mandatory duty, including if “the Governor and Attorney General have abused their discretionary authority over California prisons and jails by demonstrating deliberate indifference to the health and safety of inmates in allowing their continued transfer to ICE detention centers.”  He acknowledges, however, that a COVID-19 risk “could be outweighed” when “public safety considerations support transfer of dangerous individuals.”

[Update:  Here is the court’s order.  It’s easier to read than the court’s docket entry.]