Over a dissent, Supreme Court kicks another pandemic/prisoner case to a lower court

The writ petition in Marshall v. Superior Court asked the Supreme Court to order measures protecting inmates at Sacramento County’s two jails from the COVID-19 virus, saying high court intervention was necessary because the superior court had refused to act.  The Supreme Court today denies the petition without prejudice to the superior court acting on a similar petition pending there since May 26 or to “the filing of a new petition in this court raising similar claims if circumstances warrant.”  The court directs the trial court to “expedite the proceedings to ensure prompt and effective resolution of these time-sensitive issues.”

The denial is also without prejudice “to any relief to which petitioners might be entitled after this court decides In re Humphrey,” a case involving the constitutionality of the current cash bail system, but which almost certainly won’t be decided for at least two more months.  (See here and here.)

This is the way the court has consistently been handling pleas to address health risks to incarcerated persons during the pandemic — recognizing the urgency of the situation but leaving matters to lower courts.  (See here, here, here, and here.)

Justice Goodwin Liu finds the court’s approach unsatisfactory, at least as of now.  He says the “time has come” for the court’s intervention and it is a “reasonable expectation that the buck stops with us.”  (He also dissented from one of the court’s earlier without-prejudice denials.)

Claiming “we do not lack the capacity,” Justice Liu asserts that, “in light of the trial court’s inaction, we should issue an order to show cause, appoint a special master, and resolve this matter ourselves on an expedited basis.”  This is especially so because, Liu says, “petitioners have made a prima facie case that the Sacramento County Sheriff is acting with deliberate indifference to the health and safety of the inmates in violation of the Eighth Amendment to the federal Constitution.”

Justice Mariano-Florentino Cuéllar writes a separate concurring statement to reject the thought that the petition’s disposition is “a mere affirmation of the status quo.”  He points to language in today’s order that didn’t appear in the early May denial of another jail-pandemic petition, including, he says, “the reference to a specific date.”  Today’s order allows the petitioners to provide the court “with a case status update on July 31, 2020, or earlier, if the situation warrants.”

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