The Cruelty Is the Point: Trump Administration, At Its Twilight, Tinkers with the Machinery of Death

This morning I spoke with Lisa Chan of KCBS about another last-minute death penalty stunt of the Trump/Barr injustice machine: the reintroduction of gas and firing squads as permissible execution methods. CNN reports:

The Justice Department has rushed to change the rules around federal death penalties as they expedite a slew of scheduled executions in the final days of the Trump administration, including expanding possible execution methods to include electrocution and death by firing squad.

The approved amendment to the “Manner of Federal Executions” rule gives federal prosecutors a wider variety of options for execution in order to avoid delays if the state in which the inmate was sentenced doesn’t provide other alternatives.

It’s hard to make sense of the motivation behind this move. The last slew of federal executions won’t require it, as per the Washington Post:

Five federal inmates are scheduled to be executed in the coming weeks before Joe Biden is sworn in as president, though a Justice Department official said four of those — Lisa Montgomery, Brandon Bernard, Alfred Bourgeois and Cory Johnson — will be killed by lethal injection. The official declined to address the fifth case, of Dustin John Higgs, citing pending litigation.

The official said the rule change, first proposed in August, was meant so that federal executions would be carried out in line with state law, adding “the federal government will never execute an inmate by firing squad or electrocution unless the relevant state has itself authorized that method of execution.”

A few weeks ago, when this incomprehensible appetite for blood in the face of so many COVID-19 deaths started, I wrote that it felt like the last, vicious whiplash of a dying mythical beast. As I explained there, 22 states have abolished the death penalty and three have moratoria on its use; even retentive states rarely use it. As opposed to everything else Trump has done in office, this is at least ideologically consistent: he’s been an enthusiastic supporter of the death penalties since the 1980s, when he was in the habit of taking out large ads and giving interviews supporting the death penalty for the Central Park Five (later exonerated.) In the early days of his presidency, he tried to make headlines supporting the death penalty for drug dealers. This last move to bring back archaic execution methods is more of the same, but feels especially pointless given that Biden opposes the death penalty and has promised to work for its abolition. It’s also pointless because any hypothetical effort to use this will immediately drown in Eighth Amendment litigation, which will surely raise the always-present risk of botched executions. We could dismiss it as one more of the many spiteful, meanspirited ways in which this administration is determined to incinerate itself for the sole purpose of creating more mess for Biden’s people to clean up, except for the fact that it will claim real lives.

Given how much loss we’re facing, some might wonder why make a big deal out of these planned executions. It’s also true that, within criminal justice, this all involves a negligible number of cases that disproportionately eat up attention and funds. But these cases are crystallized versions of the injustices and iniquities we see throughout the criminal justice system. Take, for example, the impending execution of Lisa Montgomery, who committed a heinous murder and, at the same time, has been horrifically victimized all her life. Montgomery’s case commands attention because the death penalty is irreversible, but how reversible, really, are the consequences of incarceration visited on hundreds of thousands of incarcerated women, 53 of whom have a lifetime prevalence of PTSD and the vast majority of whom have been victims of violence? The life continues, but the suffering that happens cannot be undone.

These last-minute moves, likely to be reversed as soon as the new administration begins, seem spiteful, exaggerated, and odd. But when you think of the real people in line to be executed and the painful debates this is sparking amidst a dying death penalty, and are tempted to ask yourself, “what is the point?” – The answer, as Adam Serwer so memorably put it, is: the cruelty is the point.

Putting the Unemployment Prison Fraud in Context

Bay Area newspapers are reporting a first-of-its kind unemployment fraud, in which unemployment claims were filed, and paid, on behalf of prisoners. The latest in the series is this article from the Sac Bee, which purports to explain “How inmates pulled off giant California unemployment scam.” But even having read it, I’m unclear on what exactly happened, and especially on what they mean by “a spider web.” Here’s what we know:

Court records show a handful of inmates contacted friends and relatives on the outside, supplied them with Social Security numbers and other information, and persuaded them to file for pandemic relief on behalf of 30 different inmates. The outsiders had the unemployment payments — in the form of Bank of America debit cards issued by EDD — mailed to them.

“The cards came pre-loaded with upwards of $20,000,” said Sean Riordan, deputy district attorney in San Mateo.

Riordan said the outside accomplices then went to ATM machines and withdrew their pre-arranged cut — usually $3,000 or $4,000 — and arranged for friends or family to deliver the cards to the inmates at the jail. In one case, an outsider was found to have used an ATM in Las Vegas to collect his cut.

“It was thousands of dollars,” Riordan said.

Accomplices arranged for the remaining funds to be delivered to the inmates’ jail accounts, which could be used to buy extra toiletries or other items.

That people commit fraud, behind bars and on the outside, is not difficult to understand, and I’m sure the COVID-related deprivations and difficulties produced the kind of conditions that act as a Petri dish for these kinds of schemes. What I don’t understand is this: to what extent were the people whose names were used in this fraud (the New York Times story names Scott Peterson, convicted murderer of his wife Laci Peterson) part of the fraud? When the article say that people’s “names were used,” was it with or without their consent?

Moreover, how does all of this map onto the bigger picture of COVID relief structures? We already know that CARES Act relief is available for prisoners, because it took a lawsuit to make it happen. I also know from family members of incarcerated people that several facilities are interfering with their population’s ability to complete the claim forms. In one case I heard of, when the family member called the San Joaquin County Jail, they were told the jail would not accept any check if the IRS mails it inside, and that “they [jail staff] don’t care what law was passed.” If this is a widespread problem, as the lawsuit suggests, unemployment fraud scams appear a lot less surprising. What I want to know, though, is whether there’s some connection between the two phenomena, and whether the financial scales of the CARES Act sabotage and the unemployment fraud are on par.

If you, or a family member, are having difficulties with prisons or jails undermining your CARES Act stimulus claim, email me and tell me your story, or post it in the comments.

Fixing Policing Is More Complicated than Cutting Budgets

One of the defining features of the last election was the passage of a slew of propositions diverting funds away from the police department. Inspired by the vocabulary of movements (defund! abolish! dismantle!) but not always referencing this vocabulary explicitly, these propositions aimed at shifting the approach toward addressing social problems toward social services, mental health, and harm reduction approaches to narcotics.

But it turns out that things are more complicated than expected. The Chronicle’s Bob Egelko reports today:

As homicides rise throughout the Bay Area during the coronavirus outbreak, San Francisco police have reported 45 killings this year, compared with 41 for all of 2019. Black people, who make up less than 6% of the city’s population, accounted for nearly half the victims.

The 41 slayings reported in 2019 were San Francisco’s lowest total in 56 years. Police reported four homicides in January and February this year, but the numbers began to rise as the pandemic set in, even as most other crimes were declining. As residents grow more fearful, gun sales are also increasing and have reached record levels nationwide.

Homicides in the Bay Area’s 15 largest cities increased by 14% in the first six months of 2020 compared with 2019, The Chronicle has reported. In Oakland, with a population of 435,000 compared with San Francisco’s 896,000, killings totaled 79 as of mid-October, a 36% increase over 2019.

The homicide totals do not include any fatal shootings by police.

In San Francisco, police said, the victims of the year’s first 43 homicides included 20 Blacks, seven Latinos or Latinas, seven Asian Americans and six non-Hispanic whites, with the rest from other groups. The two most recent killings, a double homicide Nov. 18, are still under investigation, police said.

Indeed, the trend is the same in Oakland, and the political implications are too important to ignore. Earlier this month, Rachel Swan reported:

Heeding the urgency of the Black Lives Matter movement, Oakland leaders committed over the summer to ultimately slash the Police Department’s budget in half, by about $150 million. The City Council created the 17-member Reimagining Public Safety Task Force to figure out how to meet this lofty goal to “defund the police.” They would write a draft proposal by December and present it to the council in March.

Then a wave of gun violence engulfed the flatlands in East Oakland, home to the city’s most impoverished neighborhoods. Homicides spiked. Policymakers — and even the most devoted reformers — had to confront a paradox: that the Black and Latino neighborhoods most threatened by police violence are also the ones demanding better and more consistent law enforcement.

Task force members agreed that police brutality against Black and brown people is too common, that gun violence needs to end and that the city needs more services to address the underlying causes of crime. But while advocates wanted swift, dramatic change, others felt conflicted. In neighborhoods with high crime and slow police response times, Black residents winced at what sometimes felt like preaching from outsiders.

A poll released last week by the Chamber of Commerce showed that, citywide, 58% of residents want to either maintain or increase the size of the police force. That figure climbs to 75% in District 7, an area of East Oakland where gunfire exploded this summer.

The reason I get a rash every time I hear the defund/abolish/dismantle refrain is that, years ago, I realized the fundamental problem with American policing: it’s not about too much or too little policing, it’s about the wrong kind of policing. I got there in three parts. First, I read Alexandra Natapoff’s fantastic article Underenforcement, which theorized the problem of too little policing and why it affects especially the neighborhoods where people assume there’s too much policing going on. Then, I read an interview with the wonderful David Simon, who spent the earlier part of his career as a crime reporter following the Baltimore homicide detectives (and writing this marvelous book.) He explained why the reward system for police officers incentivized stop-and-frisk policing and disincentivized crime solving:

How do you reward cops? Two ways: promotion and cash. That’s what rewards a cop. If you want to pay overtime pay for having police fill the jails with loitering arrests or simple drug possession or failure to yield, if you want to spend your municipal treasure rewarding that, well the cop who’s going to court 7 or 8 days a month — and court is always overtime pay — you’re going to damn near double your salary every month. On the other hand, the guy who actually goes to his post and investigates who’s burglarizing the homes, at the end of the month maybe he’s made one arrest. It may be the right arrest and one that makes his post safer, but he’s going to court one day and he’s out in two hours. So you fail to reward the cop who actually does police work. But worse, it’s time to make new sergeants or lieutenants, and so you look at the computer and say: Who’s doing the most work? And they say, man, this guy had 80 arrests last month, and this other guy’s only got one. Who do you think gets made sergeant? And then who trains the next generation of cops in how not to do police work?

Then, I read Jill Loevy’s heartbreaking Ghettoside. Loevy shows how the LAPD homicide detectives are unable to solve murders because witnesses won’t cooperate with them. What she says at the outset of the book (pp. 8-9) is so powerful, and so easy to obfuscate, that it calls for a long quote.

This is a book about a very simple idea: where the criminal justice system fails to respond vigorously to violent injury and death, homicide becomes endemic.

African Americans have suffered from just such a lack of effective criminal justice, and this, more than anything, is the reason for the nation’s long-standing plague of black homicides. Specifically, black America has not benefited from what Max Weber called a state monopoly on violence the government’s exclusive right to exercise legitimate force. A monopoly provides citizens with legal autonomy, the liberating knowledge that the government will pursue anyone who violates their personal safety. But slavery, Jim Crow, and conditions across much of black America for generations after worked against the formation of such a monopoly where blacks were concerned. Since personal violence inevitably flares where the state’s monopoly is absent, this situation results in the deaths of thousands of Americans each year.

The failure of the law to stand up for black people when they are hurt or killed by others has been masked by a whole universe of ruthless, relatively cheap and easy “preventive” strategies. Our fragmented and underfunded police forces have historically preoccupied themselves with control, prevention, and nuisance abatement rather than responding to victims of violence. This left ample room for vigilantism—especially in the South, to which most black Americans trace their origins. Hortense Powdermaker was among a handful of Jim Crow–era anthropologists who noted that the Southern legal system of the 1930s hammered black men for such petty crimes as stealing and vagrancy, yet was often lenient toward those who murdered other blacks. In Jim Crow Mississippi, killers of black people were convicted at a rate that was only a little lower than the rate that prevailed half a century later in L.A.—30 percent then versus about 36 percent in Los Angeles County in the early 1990s. “The mildness of the courts where offenses of Negroes against Negroes are concerned,” Powdermaker concluded, “is only part of the whole situation which places the Negro outside the law.” Generations later, far from the cotton fields where she made her observations, black people in poor sections of Los Angeles still endured a share of that old misery.

This is not an easy argument to make in these times. Many critics today complain that the criminal justice system is heavy-handed and unfair to minorities. We hear a great deal about capital punishment, excessively punitive drug laws, supposed misuse of eyewitness evidence, troublingly high levels of black male incarceration, and so forth. So to assert that black Americans suffer from too little application of the law, not too much, seems at odds with common perception. But the perceived harshness of American criminal justice and its fundamental weakness are in reality two sides of a coin, the former a kind of poor compensation for the latter. Like the schoolyard bully, our criminal justice system harasses people on small pretexts but is exposed as a coward before murder. It hauls masses of black men through its machinery but fails to protect them from bodily injury and death. It is at once oppressive and inadequate.

The crux of the matter is something that has been tragically true for decades, but “my side” of the criminal justice debate is always too reticent to mention: African American people–the people whom “defund” initiatives are purporting to protect–are vastly overrepresented as both homicide perpetrators and victims. Time after time I see mental and linguistic gymnastics in academic and journalistic circles pretzeling around this simple, true statistic (note the quotes above from solid, responsible journalists, focusing only on victimization.) I know there are good intentions behind this–the fear to stereotype–and I also know there are performative reasons: in the era of Kendi and DiAngelo reeducation camps in our campuses, no one wants to appear racist. We are repeatedly admonished that asking the right question (“what about black-on-black crime?”) is in itself racist, so how are we ever going to get any answers? The thing is, there is an obvious explanation for this, and it’s not racist at all: When one lives in poverty and is consistently treated as a second class citizen, and when legitimate opportunities to thrive are not available, a larger proportion of the population will recur to illegitimate ones.

This is so obvious that everyone I speak to behind bars, when reflecting about their own lives and how they ended up in prison, say the same thing: recurring to violence as part of the drug trade is situational and comes from a very diminished repertoire of opportunities and choice. As James Forman explains here, is much easier for “my side” of the debate to focus on drug offenses, where we know that white and black people use and sell at about the same rates, and explain the disparities by overactive stop-and-frisk policing. But what do we do about explaining disparities in violence? Overpoliced poor neighborhoods do not explain disparities in bodies on the ground. It was therefore eye opening to read Scott Jacques and Richard Wright’s Code of the Suburb. In a shorter article, Jacques and Wright explain why it is that suburban, middle-class, white drug dealers don’t get mixed up in homicides: not only were they raised in the conflict-avoiding “code of the suburb”, but they knew that they had bright futures ahead of them and the stakes were too high:

Compared to their urban counterparts, it was easier for the suburban dealers to give up dealing because they didn’t really need the money. Their parents were able to provide for them, so for these teens, dealing was never meant to be a career. It was just another phase on their way to becoming successful adults, which they had no intention of jeopardizing.

In the 1950s, studying juvenile crime was all the rage among criminologists. One promising avenue was the opportunity theory developed by Cloward and Ohlin. They argued that the kind of crime one recurs to–not only whether or not one starts engaging in criminal activity–depends on what kind of opportunities are available in one’s neighborhood in terms of resources, know-how, role models, etc. Some of my colleagues have made a name for themselves trashing Cloward and Ohlin and retroactively branding their theories as racist (again, following the principle that any focus on crime committed by people of color that does not explain it away as discriminatory policing is racist.) The effort to take what was a solid step forward and rebrand it as reactionary and outside the realm of the sayable reminds me of Mark Twain’s saying, “the radical of one century is the conservative of the next. The radical invents the views. When he has worn them out, the conservative adopts them.” But if you read Jacques and Wright, you have to conclude that, in basics, what Cloward and Ohlin said was so spot-on that it still stands: the same systemic racism that produces discriminatory policing also produces differences in violent crime perpetration rates. And the tragedy is that, no matter how you look at it, it’s poor people of color who lose. They are hounded and humiliated by paint-by-numbers policing that doesn’t solve crimes, they are themselves victimized by violent crime at higher rates, and because their uphill battles are not solved from the root in this uncaring, hypercapitalist society, they also recur to crime at higher rates. All these things come from the same roots, but somehow saying the first two is fine, while saying the third out loud runs the risk that your colleagues will treat you as if you have cooties.

I think we’re seeing a refreshing change, though, and more folks–like Simon, Loevy, Forman, Pfaff, Jacques and Wright, and Natapoff are willing to point out that the problems caused by poverty and deprivation cannot be brushed away just because it’s inconvenient to discuss them. Recently, they have been joined by David Garland, whom no one can suspect of being some sort of right-wing reactionary nut. Lisa Kerr summarized the main points in the following tweet thread:

As always, fascinating keynote from David Garland at @CCR_UofA Prisons and Punishment conference this morning. He started by making clear that we should not avoid fact of racial difference in homicide / violent crime rates in the US (in both commission and victimization).

Conservatives repeat and liberals avoid this data – but that’s a mistake. These real differences have nothing to do with intrinsic characteristics. Must ask: how does this fact pattern emerge? Segregation, economic exclusion, absence of social services, deep poverty.

Garland is also clear that policing operates in a more dangerous environment in the US than in other countries, due to guns. Police at work are killed at a higher rate, as are civilians by police.

Central claim was that the relaxation of Democratic commitment to economic politics, after New Deal, in favour of identity politics, has had bad effects. Plus: we should spend more time calling for economic justice, less time calling for defunding police / abolishing prisons.

Garland says that “Defund Police” is “a slogan that can’t mean what it says.” No modern nation has abolished police, would mean (1) private security for rich (2) poor communities exposed and vulnerable.

We should be saying “Defund the Rich.” Tax more to fund police, fund social services and safety net, and transform the police: abolish militarization and improve accountability mechanisms.

Notably, someone asked, can’t we do ‘all of the above’? Garland is firm that “Defund Police” is very ill-conceived and has benefited Republicans, even as Democrats worked hard to distance themselves from it.

These tweets don’t do the talk justice. Be sure to watch. (I was transported back to graduate school when I had the ridiculous good fortune to learn from Garland for several years. I have craved his perspective even more in these difficult months.)

Watch the whole thing:

What we need is not more policing or less policing. We certainly don’t need slogans. What we need is to rethink the very nature of policing and rebuild policing from the ground up. How we promote and reward police officers must change to disincentivize stop-and-frisk abuses and incentivize crime solving–for everyone’s sake.

BREAKING NEWS: Von Staich Legal Team’s Response to CDCR’s Petition for Review

Today, the First District Appellate Court team representing Von Staich filed a response to the Attorney General’s petition to the California Supreme Court to review the case. Here is the brief in its entirety; my summary follows.

S265173 Von Staich PFR Answer by hadaraviram on Scribd

In essence, the argument is this: The importance of this case does not lie in some complicated, novel legal question that requires judicial review (such as in the case of contradictory decisions from lower courts): it lies in the fact that it provided a much-needed, urgent remedy for a horrific unfolding situation. The Court of Appeal’s decision was not extreme; rather, it was a measured, mild order, which leaves CDCR vast freedom to achieve population reductions at San Quentin in whatever way they see fit. The AG’s request to review the case does not offer any legal grounds to do so: they continue to argue that they did their best (without providing any expert opinion/authority supporting this claim) and that they are not bound by the findings of the AMEND team (without providing any alternative findings.)

If anything, this assertion is rather generous on the part of Von Staich’s legal team: we now know from two Inspector General reports (1, 2) that even the “commendable” measures that CDCR claimed to have taken (and was given credit for taking in the Court of Appeal decision) were not, in fact, taken in a satisfactory way.

Most importantly, the response highlights what is important about proceeding with the Court of Appeal’s remedy: the upcoming winter, which threatens a serious pandemic wave that could decimate what’s left of San Quentin unless CDCR comply with the order. More on this below.

Von Staich’s attorneys also filed a brief pertaining to the Attorney General’s request to deep-freeze the 311 San Quentin cases hanging before the Marin Superior Court. Here’s the request in its entirety; my summary follows.

Von Staich’s team argues that staying the proceedings in cases of people who are facing illness and death from a second wave is “precisely the wrong response at this time of crisis.” That the AG’s office’s reaction to the order–rather than hustling to save lives–was not only to appeal in Von Staich, but to ask for a stay in all the other cases, is emblematic of their breathtakingly obtuse approach to the crisis itself. At every juncture in these cases, the government has done the wrong thing: caused the outbreaks in the first place, failed miserably at taking any remedial steps, adopted the wrong administrative response, prioritized the wrong people to be released, went for short-term measures that cause outbreaks in jails and other facilities, and–which was notable in both cases–explicitly and repeatedly said that “there is no need to act hastily.” At the oral argument in Von Staich, Justice Kline responded to this with, “yes, there is. Yes, there is. There is a need to act hastily.” The measures he ordered CDCR to adopt are mild, flexible, and give them just enough rope to continue doing the wrong things (more on that in a future post.) I very much hope that the Supreme Court agrees with these response briefs that, in the face of a winter wave of COVID-19 and dire warnings for California as a whole, acting promptly (though, to our collective tragedy, far from preemptively) is exactly what we should do.

In the off-chance that anyone reading this still does not comprehend why, going into the winter holidays, urgent population reductions should be top priority not only at San Quentin, but in all CDCR facilities, here are some sobering facts. As of today, there are huge outbreaks in seven CDCR facilities:

CAL (171 new cases)
CEN (50 new cases)
CTF (303 new cases)
HDSP (649 new cases)
PVSP (319 new cases)
SATF (523 new cases + the prison’s first COVID-19 death)
VSP (155 new cases)

There are also new outbreaks in ten other facilities:
CCC (12 new cases)
COR (32 new cases)
LAC (6 new cases)
SOL (12 new cases)
CHCF (9 new cases)
DVI (3 new cases)
KVSP (16 new cases)
MCSP (3 new cases)
NKSP (7 new cases)
PBSP (6 new cases)

CDCR now “boasts” 2436 new cases per 100,000–ten times worse than the CA rate of 345 per 100,000 that has all of us hurtling toward the purple tier. The spikes in prison infections correlate with spikes in surrounding counties. We are all (sensibly) being asked to mask up, put our holiday travel plans on hold, and cook mini-feasts for our nuclear families. All of this effort and sacrifices are worthless if we continue to incubate this virus in prison. You and yours are far more at risk from aging, infirm people sitting in one of CDCR’s COVID-19 Petri dishes than you are at risk from them in the community (people age out of crime in their late 20s, and the folks most at risk from COVID are less at risk of reoffending than people on the outside.)

CDCR’s hemming and hawing about doing the right thing is not just callous disregard for the lives of people behind bars, but also for your life and mine.

Essential Readings for CCC3: COVID-19 Meets Mass Incarceration

In anticipation of our upcoming symposium about COVID-19 and mass incarceration, here are a few sources that our attendees might like to read. It’s not an exhaustive list; rather, it focuses on some of the themes we will be covering throughout the symposium.

Prisons, Disease, Medicine

Ashley Rubin, Prisons and jails are coronavirus epicenters – but they were once designed to prevent disease outbreaks, The Conversation, April 15, 2020

Misha Lepetic, Foucault’s Plague, 3 Quarks Daily, March 4, 2013

Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, Harvard Civil Rights–Civil Liberties Law Review 48(1) 2013: 165-215.

Osagie Obasogie, Prisoners as Human Subjects: A Closer Look at the Institute of Medicine’s Recommendations to Loosen Current Restrictions on Using Prisoners in Scientific Research, Stanford Journal of Civil Rights & Civil Liberties 6(1) 2010: 41.

COVID-19 In Prisons

Brendan Saloner, Kalind Parish, Julie A. Ward, Grace DiLaura, Sharon Dolovich, COVID-19 Cases and Deaths in Federal and State Prisons, JAMA, July 8, 2020

Hadar Aviram, Triggers and Vulnerabilities: Why California Prisons Are So Vulnerable to COVID-19, and What to Do About It, Tropics of Meta, July 3, 2020

Hadar Aviram, California’s COVID-19 Prison Disaster and the Trap of Palatable Reform, BOOM California, August 10, 2020

Sharon Dolovich, Mass Incarceration, Meet COVID-19, University of Chicago Law Review Online, Nov. 2020

Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, The New England Journal of Medicine, May 2020

Oluwadamilola T. Oladeru, Nguyen-Toan Tran, Tala Al-Rousan, Brie Williams & Nickolas Zaller, A Call to Protect Patients, Correctional Staff and Healthcare Professionals in Jails and Prisons during the COVID-19 Pandemic, Health and Justice, July 2, 2020

The San Quentin Catastrophe

Megan Cassidy and Jason Fagone, 200 Chino inmates transferred to San Quentin, Corcoran. Why weren’t they tested first? San Francisco Chronicle, June 8, 2020

AMEND SF and UC Berkeley, Urgent Memo – COVID-19 Outbreak: San Quentin Prison, June 15, 2020

Megan Cassidy, San Quentin officials ignored coronavirus guidance from top Marin County health officer, letter says, San Francisco Chronicle, August 11, 2020

Al Jazeera Front Lines, Pandemic in Prison: The San Quentin Outbreak, October 28, 2020

In re Von Staich on Habeas Corpus, A160122, California Court of Appeal for the First District, October 20, 2020

Solutions and Policies

Hadar Aviram, Gov. Newsom’s Release Plan Is Not Enough, San Francisco Chronicle, July 10, 2020

James King and Danica Rodarmel, Gov. Newsom must release more people from prisons to protect Californians and save lives, The Sacramento Bee, July 11, 2020

Jason Fagone, California could cut its prison population in half and free 50,000 people. Amid pandemic, will the state act? San Francisco Chronicle, August 16, 2020

Ruth Wilson Gilmore in conversation with Naomi Murakawa, Haymarket Books, April 17, 2020

Reproductive Justice, Women, and Gender in CA Prisons

Sulipa Jindia, Belly of the Beast: California’s dark history of forced sterilizations, The Guardian, June 30, 2020

Jason Fagone, Women’s prison journal: State inmate’s daily diary during pandemic, San Francisco Chronicle, June 14, 2020

Valerie Jenness, Transgender Prisoners in America, September 5, 2016

AJ Rio-Glick, COVID-19 Adds to Challenges for Trans People in California’s Prisons, Vera Institute of Justice Blog, July 7, 2020

COVID-19 in Immigration Detention Facilities

COVID-19 in Jails, Prisons, and Immigration Detention Centers: A Q&A with Chris Beyrer, Johns Hopkins School of Public Health, September 15, 2020

American Bar Foundation, Impact of COVID-19 on the Immigration System

Carmen Molina Acosta, Psychological Torture: ICE Responds to COVID-19 with Solitary Confinement, The Intercept, August 24, 2020

SAVE THE DATE: California Correctional Crisis: Mass Incarceration, Healthcare, and the COVID-19 Outbreak

Dear Friends,

Three UC Hastings journals are coming together to organize an important symposium on incarceration and healthcare, focusing on the COVID-19 prison crisis. We are excited to invite you–details will follow. For now, please SAVE THE DATES!


  • Feb. 5, 12-4pm: California Correctional Crisis, Meet COVID-19
  • Feb. 12, 12-4pm: Focus on reproductive justice, trans incarcerated people, and special populations
  • Feb. 19, 12-4pm: Focus on immigration detention and healthcare

Where? Online (registration details to follow)

The conference will feature amazing speakers: advocates, activists, academics, officials, formerly incarcerated people. Among our confirmed speakers are renown prison historian Prof. Ashley Rubin; prison law expert Prof. Sharon Dolovich, Director of the UCLA COVID-19 Behind Bars Data Project; Adnan Khan, Executive Director of Re:Store Justice; Richard Braucher of the First District Appellate Project, counsel for Ivan Von Staich in the landmark case that resulted in a San Quentin population reduction order.

MCLE Credits for lawyers pending. Please plan on joining us!

Your hosts:

Book Review: Karen Morin, Carceral Spaces, Prisoners and Animals

My two biggest research interests–criminal justice and animal rights–come together in Karen Morin’s new book Carceral Spaces, Prisoners and Animals (New York: Routledge, 2018.) Morin, a geographer by discipline, applies insights from carceral geography to both human and nonhuman confinement contexts.

Carceral geography is a growing area of scholarship that examines prisons through a lens of spatiality. Building on work by Michel Foucault and Giorgio Agamben, carceral geographers problematize the overly simplistic notion of prisons as carceral spaces, arguing that prison boundaries are porous and that carceral ideologies of domination through confinement permeate spaces beyond the prison–beyond the formal dichotomy between “inside” and “outside.” Some themes studied by carceral geographers include spaces within prison and how they affect the experience of incarceration (“public” and “private” spaces within the prison; the impact of prison on the body); the interface between prisons and surrounding communities (prison towns, family members, transportation); mobility within and between prisons; and prison architecture and design. Carceral geography is directly relevant to my current research project, which is a book in progress about the COVID-19 catastrophe in California prisons; I rely a lot on the idea of prison permeability, which brings together notions of carceral boundaries, logics of opportunity (for people and for the virus,) insights from situational crime prevention, and miasma theory. In addition to this, I’m deeply interested in animal rights, and am working on a project involving the criminal prosecutions of animal rights activists who break into factory farms to release suffering animals.

In many ways, my interest in liberating nonhuman animals is an obvious extension of my interest in alleviating suffering in prisons. But the comparison is socially fraught from many directions. I often hear prison reform activists and abolitionists criticize prisons for treating people “like animals,” as if treating animals this way is fine; I’ve also heard animal rights activists criticize experimentation on animals, proposing to experiment on prisoners instead (Justin Marceau criticizes the myopic assumptions of the latter phenomenon in Beyond Cages.) I’ve also had to contend with people who find the comparison deeply offensive. Morin is well aware of these emotional and political landmines and writes:

I recognize though that the politics and ethics of making comparisons between racialized and classed human lives and that of nonhuman animals in respective carceral spaces can be problematic and fraught. It is challenging for humans who are embedded in violent, racialized, and criminalized human histories and spaces to not be offended by posthumanist comparisons to animal suffering. As noted above, the category of ‘human’ is contested in any case, and it is important to not move too quickly ‘beyond the human’ without acknowledging the continued exclusion of many human lives from full incorporation within it. And yet thinking particularly about race and animals together is important, precisely because of the way that racialized people have been and continue to be animalized in carceral spaces (Chapter 3). Moreover, the carceral logics of domination are intertwined across human and nonhuman groups. To take one more example, as Deckha (2013b) has shown, animal anti-cruelty legislation has the double effect of selecting certain animals for protection while targeting the behaviors of certain minoritized populations of people as deviant and transgressive. Meanwhile, industrial practices involving the dominant culture – as well as the abuse and killing of most animals – remain immune from critique.

Morin, Karen M.. Carceral Space, Prisoners and Animals (Routledge Human-Animal Studies Series) (p. 15). Taylor and Francis. Kindle Edition.

This avenue is deeply productive, not only because the analogies and similarities are analytically interesting, but because solidarity across movements is essential for success. Morin’s analysis ties together the prison-, agricultural-, and medical industrial complexes, showing the intricate connections between them and the profit logics that underpin them.

Morin’s book proceeds to analyze a series of contexts in which she sees parallel developments between human and nonhuman carceral spaces. She compares execution chambers and slaughterhouses, discussing the notions of “humane” slaughter and of death sentences that are supposedly not “cruel and unusual.” She discusses the intersection of the medical and carceral spaces in the context of medical experimentation. She even asks difficult questions about prison boundaries when discussing zoos and supermax facilities. The book also makes an important contribution to two seemingly unrelated growing literatures: the one about forced labor in prisons and the one about the possibility and structure of labor rights for nonhuman animals. Throughout these topics, Morin shows deep sensitivity to the broader social structures that allow cruelty to persist.

My favorite part is Morin’s comparative analysis of prison towns and cattle towns. She shows how the introduction of an exploitative industry into a “company town” shapes the economy and the tenor of the entire town, without granting much in the way of economic benefit to the town itself (by contrast to the industry that exploits the town.) Morin doesn’t explicitly say this, but a big thing here seems the creation of a municipality that is collectively impermeable to compassion, which I think is a serious issue even when the industry is profitable.

We often talk about dehumanizing conditions in prisons. But perhaps the question is not whether or not we’re all human; the question that should matter is whether we are sentient and whether we suffer. A few years ago I read Michael Dorf and Sherry Colb’s Beating Hearts, which compares the logics of sentience underpinning the pro-life and animal rights movements and finds a way to reconcile them into a cohesive pro-choice and pro-animal perspective. I think there’s a way for advocates and activists to find peace with Morin’s comparison in a way that allows them to support both movements.

Morin admits that she has not analyzed all the scenarios that her comparison speaks to, and I found at least two that I would like to read future works on. The first has to do with the concept of overcrowding. Morin discusses issues of caging in depth, but the book does not delve into the movement toward humane farming and “cage-free” chicken facilities. Now a major selling point for eggs and for pig meats, the notion of no-cage or no-crate is deeply misleading, and some states, such as California, use various parameters to try and measure overcrowding. I’ve seen parallel developments in the context of prison population reduction orders. It’s no big secret that I think the measuring yard used in Brown v. Plata–percentage of design capacity systemwide–was deeply shortsighted, and a more careful calculation of minimal per-person area, as in other countries, would have helped us mitigate the COVID-19 catastrophe we’re experiencing right now.

The second issue I would want to read more about has to do with movement strategy, and with the reform-versus-revolution debate in the prison advocacy community. There is a parallel debate–quite a heated one–in the animal ethics community, between animal welfarism and animal liberation. Movement strategy and tactics, attention to incremental reform, and the use of the criminal justice process to challenge cruelty and obtuseness are relevant to both movements, and I think there’s more room to write about this.

These two issues notwithstanding, the book makes a fascinating read. Unfortunately, Routledge has priced it quite prohibitively, but prospective readers should know that you can rent it from Amazon for a reasonable price.

COVID-19 Prevention in Prisons and the Problem of Buy-In

Throughout the last few months, there’s something that’s been constantly gnawing at me and I haven’t had a moment to process in an organized way. I started thinking about this a lot when the AMEND report came out in June, reporting that people at San Quentin were afraid to get tested or report symptoms, lest they be placed in isolation in a death row or solitary confinement cell. And it came up again when I listened to the Assembly hearing on the PPE wearing failure and the commentary about the “physical plant” being “not conducive to compliance.” Then, I thought about it again when I read the AG’s briefs yesterday, detailing all the “reasonable” COVID-19 prevention steps they took. And finally, I felt a sense of despair and futility when I read this well-intended missive from Brendon Woods:

My immediate, gut reaction to the idea of vaccination priority was this: If I were incarcerated in one of the places that experienced horrific outbreaks–or anywhere else in CA, really–why would I believe anyone from CDCR or CCHCS offering me a vaccine, treatment, PPE, quarantine space, transfers, or anything else, except a ticket out of the system? And why on earth would I want to cooperate with anything short of being released? The sense of futility comes from a strong core realization that the trust between the state and incarcerated people is so deeply broken that, even when reasonable steps are being proposed, they’ll be understandably doubted. The long history of being swindled and harmed, especially in the context of healthcare, is so embedded in the system’s DNA, that any prevention or treatment initiative must take into account poor buy-in.

I’m not a doctor or a public health expert, but it seems obvious to me that, when designing a public health response, one important consideration is public buy-in. As this paper explains, effective COVID-19 prevention measures depend, in big part, on an enormous amount of groundwork to foster compliance, including virtual community building, fostering solidarity between high-risk and low-risk groups, and trust building between decision-makers, healthcare workers, and the public. What we’ve seen in the U.S. on the national level is instructive of what happens when the government not only fails to make this effort, but actively stokes the opposite sentiments. I suspect that even a reasonable administration would have had trouble containing the virus in such a big country with deep pockets of ignorance and misinformation, but given the Trumpian legacy of actively creating misinformation and division, this is going to be a huge challenge for whoever runs the COVID-19 response for the Biden administration.

What we’re seeing in CDCR facilities is a crystallized example of this problem. Efforts to implement pandemic prevention methods have to contend with deep mistrust of prison authorities in general, and prison healthcare in particular, which have profoundly painful historical roots. Osagie Obasogie reminds us of the horrific history of harm and deception in prison healthcare in this piece:

As early as 1906, Dr. Richard P. Strong—director of the Biological Laboratory of the Philippine Bureau of Science who later became a professor of tropical medicine at Harvard—gave a cholera vaccine to twenty-four Filipino inmates without their consent in order to learn about the disease; thirteen died. Though this provides an early modern example of using prisoners as human subjects, it certainly was not the last. Twelve inmates from Mississippi’s Rankin Farm prison became test subjects in 1915 to study pellagra—a disfiguring and deadly disease characterized by skin rashes and diarrhea. Though common wisdom at the time suggested that pellagra was a disease caused by germs, Dr. Joseph Goldberger—a physician in the federal government’s Hygienic Laboratory, predecessor to the National Institutes of Health—thought it was linked to malnutrition characteristic of Southern rural poverty. After Mississippi Governor Earl Brewer promised pardons to all participants—an inducement to participate in research that would be intolerable today–Goldberger tried to prove his theory that poor diet caused pellagra by subjecting inmates to what many called a “hellish experiment”: eating exclusively high-starch foods such as “corn bread, mush, collards, sweet potatoes, grits and rice” that caused considerable pain, lethargy, and dizziness. Despite their pleadings to end the study, prisoners were not allowed to withdraw. And, in an early 1920s experiment that was as bizarre as it was gratuitous, 500 inmates at California’s San Quentin prison had testicular glands from rams, boars, and goats implanted into their scrotums to see if their lost sexual potency could be rejuvenated.

But one needn’t go that far back. Nonconsensual sterilization of incarcerated women was still going on as of 2013, when the practice was exposed and excoriated. The Guardian’s Shilpa Jindia explains:

Despite federal and state law prohibiting the use of federal funds for sterilization as a means of birth control in prisons, California used state funds to pay doctors a total of almost $150,000 to sterilize women. That amount paled in comparison to “what you save in welfare”, one doctor told the news outlet.

Against this backdrop, you would expect public health experts at CDCR to bend over backwards to build trust, so as to engender cooperation. Instead, they’ve done exactly the opposite. The most obvious problem, of course, has been the botched transfer from CIM. I can finally put my finger on what seemed so disingenuous in the AG’s brief from yesterday: “[P]etitioners’ attempts to suggest prisoner transfers of any kind are not safe or effective is not well taken.” The irony of taking offense at people’s understandable mistrust after this colossal fiasco is completely lost on them, which I find breathtakingly obtuse.

But the transfer issue is just one of many. Why would prisoners comply with PPE-wearing requirements when they see guards, frequently and openly, flouting these requirements with no consequences? Why would people rush to report symptoms and get tested when the consequence is that they’ll be put in places which they’ve associated, for decades, with punishment and deprivation? Most importantly, given the history of using prisoners as experiment subjects, how could CDCR and CCHCS possibly lay some trust groundwork when rolling out a vaccine, so that people don’t suspect them, understandably, of subjecting them to untested, unreliable treatments?

This is the real crux of the problem. It’s not that “the physical plant is not conducive to compliance.” It’s that the atmosphere of neglect, indifference, and cruelty, and the resulting deep mistrust, does not engender compliance, and at every turn in this situation, prison authorities have moved the compliance needle further out of whack. This problem is a big part of why the only way out is to release people. Whatever other preventative steps the authorities are taking, regardless of their objective usefulness, need to actually be adopted by people on the ground to succeed. Hanging informational posters and handing out masks might work with some fantasy environment in mind, but it doesn’t work with the institutions and people we actually have. And it doesn’t seem like the AG’s office, or CDCR officials, have even begun to comprehend the depth of this problem.

Noir City Online: A Woman’s Face (1938)

In an effort to set aside the horrors of the present, I am returning to the online Noir City International festival to enjoy this dark Swedish musing into criminality and its causes, A Woman’s Face (1938.) It stars one of my favorite actresses of all time, Ingrid Bergman, in one of her last Swedish roles before being catapulted to Hollywood stardom.

Bergman plays a woman with a disfigured face who leads a criminal extortion gang. When she tries to steal money, she sustains an injury and is caught by the homeowner, a plastic surgeon; he learns more about her and decides to fix her face. His kindness gives her a chance at redemption and at overcoming the trauma of her disfigurement. But the gang has already set in motion a plan that requires her to insert herself as a governess in the home of a dignitary and play a role in the murder of his little grandson so as to affect inheritance plans.

I was engrossed in this movie, which is notable because, as mother to a small child, films with plots endangering children are often too much for me. It didn’t help my blood pressure that the child in question, Lars-Erik, looks and talks a lot like my own son! But the film was captivating because of the origin story of Anna’s criminality. This is not the only noir to suggest that the trauma of physical disfigurement can push people into criminal careers; consider Peter Lorre’s The Face Behind the Mask (1941.) But there are a few notable things here.

Deviance–to the extent that we can even agree on its definition–is complicated. From the 1920s to the 1950s, lots of theories for explaining it emerged, many of them looking at juvenile delinquents’ backgrounds. Some theories attributed it to lack of legitimate opportunities and others to the presence of role models in crime. There’s a wonderful book by James Bennett, Oral History and Delinquency, which goes into how criminologists of the early 20th century dug into people’s narratives about their backgrounds to seek an understanding of how they drifted into criminal behavior. The idea that a person’s experiences, the twists and turns of life, are important milestones in a path toward or away from crime, is again important in criminological theory: life-course criminologists look for milestones in encouraging criminality and desistance.

The thing about narratives, though, is that it’s dangerous to overgeneralize from anecdotes. One needs to systematically analyze life stories of many people to find generalities; not all people who go to college or marry desist from crime, and certainly most of the people who grow up in poverty and trauma don’t go into crime. Which is why the constant reliance on psychological trauma as an explainer of villainry, a-la origin stories of comic book villains, is fascinating and at the same time discomfiting. This is part of what I struggled with when viewing A Woman’s Face: the narrative suggests that Anna’s entry into a criminal life is a direct consequence of her disfigurement, whereas the external remedying of this disfigurement holds the key to her own redemption. It’s a powerful story, and I don’t want to reject its power outright–I know what a difference changes in appearance and external circumstances can make. But I also know some very conventionally beautiful and fortunate people who engage in quite a lot of villainy, so I would enjoy the narrative for its own sake and hesitate to generalize too much from it.

Either way, this is a fantastic flick–far superior, in my view, to the later American remake with Joan Crawford. I hope you enjoy it!

AG Asks Marin Court to Halt Proceedings in San Quentin Population COVID-19 Cases

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.