San Quentin Evidentiary Hearing: Day 1 Recap

Please follow the thread above for a summary of today’s hearing, including some photos and links.

I have a few observations to add to the recap. First is that the picture, as it emerges from the hearing is strikingly damning–even to those of us who had front-row seats to this tragedy last year. The testimonies were extremely powerful, especially given the courage that it takes for someone currently incarcerated or for someone at CDCR’s employ to testify against CDCR.

If anything, the cross examination helped, rather than hurt, Petitioners’ case. CDCR’s goal at this hearing is to show that they took ameliorative steps that reduced the seriousness of their Chino transfer fiasco, and that the conditions at present are much better than they were–because their overall objection to the testimony revolves around the legal point that habeas relief cannot be awarded for past convictions, only for present convictions. The supreme irony of abandoning people to their fate through mismanagement and indifference, waiting for the virus to ail and kill them, and after it’s all over (because the virus won–not because they did!) claim that it’s over and no remedy is forthcoming, is extremely difficult to stomach.

But at the hearing itself, some of these questions backfired. When AG representative John Walters repeatedly asked the witnesses whether–and why–they declined testing, he opened the door to one of the main horrors of the pandemic, namely, to the fact that CDCR had lost credibility to such a degree that asking for help was putting oneself at a disadvantage. I hope the petitioners’ team hammers this home in coming days. The exchanges between Walters and incarcerated journalist Juan Haines were especially testy: Haines challenged Walters’ reliance on CDCR post-Plata definitions of design capacity, as well as reminded him, wryly, that he couldn’t comment on population reductions because he didn’t actually have access to the data. Similarly, when Walters asked John Mattox, one of the Chino transferees (who reported his symptoms before getting on the bus and was told he was lying!) “If I told you there were 500 less people, would it surprise you?” Mattox replied: “It would surprise me, because I haven’t seen any difference in how they treat us.”

The big question continues to be the efficacy of the remedy. I’m sure Judge Howard has a lot to chew on.

Evidentiary Hearing in Quentin Cases to Begin Thu 9am via Zoom

As regular followers of the blog probably recall, the CA Supreme Court ordered to remand Von Staich to the Marin Superior Court, where Judge Geoffrey Howard will be presiding over an evidentiary hearing. The hearing is scheduled to begin this coming Thursday at 9am, via Zoom.

The factual question the court must resolve is whether CDCR acted with deliberate indifference by failing to protect the health and safety of petitioners, who are several hundred members of the San Quentin prison population. The Petitioner’s lawyers–some of them from private law firms, some of them from the Public Defender’s Office, some of them from the First District Appellate Project–will lay out the evidence of the devastation at San Quentin, which ailed thousands of people (more than 75% of the prison population) and killed 28 prisoners and one staff member. An important focal point of the hearing will likely be the OIG’s scathing report from February 1, which details the gross mishandling of the CIM transfer into Quentin (including email screenshots.) There will also be evidence of the lived experience behind bars, which will come from currently and formerly incarcerated witnesses. Given the obvious magnitude of the disaster, it is likely that the Attorney General representatives, who are arguing for CDCR, will focus on the ameliorative steps they took in the aftermath (masks? posters?) and argue that the cumulative effect of their behavior in the crisis falls short of the deliberate indifference standard. They are also likely to argue that, when the contagion broke at Quentin, we knew a lot less than we know now about ventilation (compare to this much newer report by AMEND about conditions at SATF) and that it is unfair to judge their mishandling of the crisis in hindsight.

The last two days featured case management conferences, in which Judge Howard has tried to encourage the parties to cull their presentations so that the hearings can proceed in a timely manner. Part of me wishes that the whole thing were televised, so as to keep a record of what happened in the prison (we will provide such a record in Chapter 3 of #FESTER.) But the hearing is not purely ceremonial–it has real import to real lives in real time–and so, it has to be conducted efficiently.

The first difficulty is that some of petitioners’ witnesses are currently incarcerated. This raises logistical challenges because, apparently, it is complicated to set up functional Zoom rooms in prison, and because West Block is currently under lockdown. The Quentin COVID numbers for today (above) do not betray the cause of this, as there is only one active case, but our records reveal two more cases a couple of weeks ago, so it makes sense that a prison wing is quarantined. In addition, I’m sure petitioners are concerned about retaliation against the witnesses, which adds stress (but also gravitas) to the testimony of those who are going forward. There was some debate today about hesitancy to testify, and the AG representative reminded that witnesses must testify. I trust the judgment of the petitioners’ lawyers in this matter.

The second issue is time. The hearing begins on Thursday and the parties have to prep for that as well as continue negotiating factual stipulations and culling the list of witnesses.

But the most serious issue, which was left unspoken at today’s hearing, is the remedy. As you’ll recall, the original Von Staich decision ordered San Quentin to reduce its population to 50% capacity, but it did not specify how to do so, which led CDCR to opt for transfers rather than releases. Even at that point in the pandemic story, this was akin to playing Tetris with human lives. The outbreak in Quentin was quelling while case numbers at the facilities targeted for transfers were climbing (remember the horrible numbers at Avenal, SATF, CMC, and elsewhere in November/December?) Not only would it be an enormous risk to transfer people to facilities that were in worse shape, but this would also awaken all kinds of inter-facility animosities; I received numerous letters from prison in which people told me that they feared retaliation from people in other institutions for all kinds of historical conflicts and beefs.

These factors are still significant today, but there are a few additional ones. The population at Quentin tends to be older and serve longer sentences, which means a lot of the people who end up at Quentin are in the process of preparing for parole and resentencing hearings, and to do so, they must rack up rehabilitative programs and chronos (laudatory write-ups) for their dossier. Quentin has a wealth of programming that is unavailable in other facilities (no thanks to CDCR; thanks to the many Bay Area do-gooders who volunteer in prisons.) Shifting people between prisons when there is no medical reason to do so–and there hasn’t been in months–is going to sabotage these releases and ultimately cost more, in terms of health risk and money, than no remedy at all. The only worthwhile remedy to consider would be releases, which has been an uphill battle all along, but which are essential to prevent not only a recurrence of COVID (note that there’s a steady stream of transfers from jails, to the tune of hundreds of people every week,, and that the vaccine uptake rate in jails is abysmal) but also future pandemics.

In short, this is in some important ways not unlike the financial considerations I discussed in Cheap on Crime: We simply cannot afford to lock that many people up, because it is impossible to provide them minimal guarantees of health and safety under these conditions.

I will cover the evidentiary hearing with great interest and concern in my next posts. Tune in tomorrow for new information on vaccination in jails, complete with a review of the lousy, low-quality data obtained from sheriffs, courtesy of the excellent Aparna Komarla of the Davis Vanguard‘s superb project COVID-19 in California Jails and Prisons.

New Policy re Good Time Credits toward Release at CDCR: Truth, Misrepresentation, and Panic

On Friday afternoon, CDCR announced an amendment to its regulations regarding the earning of good time credits. It’s always important to pay attention to such regulations, because as Kevin Reitz, Ed Rhine, and their colleagues at the Robina Institute remind us, whether a sentence is determinate or indeterminate is a question with many moving parts and many institutional actors, including prison administrators.

The new regulations are good news, albeit modestly so. For people doing time for nonviolent felonies, the good time credits will increase from 33% to 50% credit earned. For people doing time for violent felonies, the increase will be from 20% to 33.33%. In addition, the new regulations establish a new credit, called “minimum camp credit”: those who make it to conservation camps, earn a day for each day at the camp.

Reading these plain facts doesn’t suggest much cause for alarm, does it? But someone at the Associated Press decided that injecting some inflammatory, dehumanizing language was de rigueur, so they published this article, which was originally titled “76k California violent, career felons get earlier releases.”

The article is not only inflammatory, but deeply misleading. The number of people eligible for credits is far fewer than 76,000. First, the people presumably doing time for the most serious offenses–lifers without parole and people on death row–are ineligible for the credits. Second, for all those serving life sentences with the possibility of parole, release is not automatic, but rather conditioned upon success before the parole board which, if you’ve read Yesterday’s Monsters, you know is exceedingly rare (less than 20% of applicants receive parole.) Third, anyone who is already in the parole pipeline–including people with youth offender parole dates (who have aged out of crime) and people with elderly parole dates (who have also aged out of crime)–is not eligible. Fourth, the credits will be fairly modest because the regulations are not retroactive: the new percentage will only apply to the remaining portion of the person’s sentence, effective May 1, 2021. And finally, the choice of headline highlighting “violent, career felons” produced (as far as I could see) the predictable fatuous shrieks on Twitter, I’m sure will play a role in the similarly fatuous recall campaign, and is not the sort of thing that is conducive to reasonable conversations about criminal justice reform.

The regulations are a small step in the right direction. In the last few weeks, Chad and I are noticing increases of approximately 150-200 people at CDCR, presumably intake from jails. To curb new outbreaks and prevent the next pandemic, we must keep prison population lower to offset these transfers.

The Good, the Fast and the Cheap in Plant-Based Nutrition

I’m halfway through my certification in plant-based nutrition through the T. Colin Campbell Center for Nutrition Studies and eCornell. Even though I knew a lot about nutrition, the certification has provided in-depth information about issues I was fairly muddy about, such as insulin resistance, the connection between nutrition and heart disease, and nutrition-related factors in cancer growth and remission. Our instructors, including T. Colin Campbell himself, his son Thomas Campbell, cardiologist Caldwell Esselstyn, doctors David Jenkins (developer of the glycemic index concept) and Michael Greger (of, and some environmental and legal figures, all tout–and with good reason–a whole-foods, plant-based (WFPB) diet. They strongly recommend eschewing animal products, added oils, and processed food, and constructing one’s meals of vegetables, fruit, tubers (starchy vegetables), whole grains, and beans. They marshal considerable evidence to undermine the protein craze and counter the carbohydrate-maligning trend. It is interesting and eye opening, not least in the personal sense: as some of you know from Twitter, the pandemic stresses, exacerbated by the many hours I’ve spent (and continue to spend) on the COVID prison crisis, produced a dangerous dip in my health. Knowing what I know now about susceptibility to heart disease, I’m realizing that the amount of stress I was in, plus the pattern of stress eating I developed during the pandemic, put me at serious risk of a heart attack out of the blue, even with no apparent history of heart issues. For the last month and a half, I’ve been working on dramatic improvements to my lifestyle, including a longer and more varied daily meditation practice, a WFPB diet, and daily exercise (mostly in the form of walking.) I’m already seeing astonishing results and my scary health outcomes have dramatically reversed themselves.

Which is why, I think, it is important to direct the WFPB message to vegans as well as animal product consumers. I’ve noticed that most of the advocacy and success stories focus on people who, prior to their conversion to a WFPB diet, ate what they refer to as SAD (the standard American diet), full of fats and animal products. A far less examined issue is the fact that one can eat very poorly on a vegan plan. The messaging is that a vegan diet is “good for you, the animals, and the planet”, but no meaningful distinctions are made between these goals. There are, of course, guidelines on how to choose among plant foods, but the message isn’t making it to the environmental and animal rights communities. In my years in animal activism I’ve encountered an enormous amount of disdain toward health food and almost a reverence for vegan convenience foods. Once, a friend and I brainstormed how to support a group of committed activists who were starting a new sanctuary farm. I suggested getting them a membership in a CSA that would deliver fresh produce to the farm every week. My friend replied with scorn, “they’re activists, not health freaks” and countered with a proposal to get them a subscription for a vegan snack box. Not a week goes by that I’m not invited to some vegan pop-up or other featuring almost exclusively vegan convenience foods.

The appeal of vegan convenience food has many commonalities with the appeal of animal-based convenience food. We now know a lot about hyperpalatability, namely, the appeal of foods rich in fat, sugar, and salt. To that, we should add some factors unique to the animal protection community: the drive to counter claims of nutritional deprivation made by animal consumers (e.g., “vegan food is no less tasty!”), to celebrate the emergence of more and more realistic animal food substitutes (e.g., “this is a game changer–there’s no reason not to be vegan now!”), the need to support vegan businesses by purchasing and consuming things like vegan snacks, donuts, and fake meats, and the potential to attract people who were daunted by the prospect of a big dietary change to the vegan cause. I know these are all very real thought processes among animal rights advocates because I’ve felt strongly pulled in this direction myself. I feel compelled to patronize small businesses producing delectable, if unhealthy, vegan treats because I want them to replace nonvegan treats–even though it would be far better for me not to consume them at all even in their vegan version. The temptation to listen to the moral voice within–that one is making a morally correct choice by eating vegan, regardless of the healthfulness of the vegan food actually consumed–can silence the important voice of the body communicating distress.

Alas, not all vegan foods are equally healthful, and in order to live longer and healthier lives (which, incidentally, would help us be more effective advocates for animal protection), we should care about our health beyond merely “eating vegan.” After this year, I am living proof that someone can indeed suffer considerable health consequences–an alarmingly high resting heart rate, low blood oxygenation, grogginess, exhaustion, irritability, bloating–on a wholly vegan diet when it is based in large part on convenience foods. And after the last month and a half, I am living proof that these outcomes–resting heart rate, blood pressure, digestive issues, energy, etc.–can be completely reversed by eating a WFPB diet, coupled with a mindfulness practice and exercise.

There is no doubt in my mind that the WFPB diet is crucial in fostering optimal health. The problem is time/money. Those of you who have heard me talk about a variety of subjects, ranging from bail reform to the death penalty, know how much I like to use the classic “contractor triangle”: good, fast, and cheap. When renovating or fixing up a home, a contractor will draw a triangle, put those three words in the corners, and tell the client, “pick two.” You can have fast and cheap, but it won’t be good; you can have good and cheap, but it won’t be fast; you can have good and fast, but it won’t be cheap.

The same applies to diets. You can eat fast and cheap vegan food, and there’s plenty of advice out there on how to do it, but you’ll end up eating a lot more tacos and french fries and much fewer salads than is good for you. You can eat good and fast vegan food, which can happen through the myriad food delivery and meal preparation services on the market such as Thistle and Purple Carrot, but it won’t be cheap. You can eat good and cheap vegan food, by buying produce and cooking your own meals; as blog readers know, that’s mostly what I do, but even when the meal itself is not elaborate or time consuming to prepare, it does require weekly planning of the family grocery trip and, often, batch cooking, and in that sense is not something you can spontaneously pull out of your sleeve on a regular basis. It is also precisely the sort of extra labor that will go out the window when one is stressed out and pressed for time, which is what happened, far too often, in the last year or so in my case.

The way I see it, there are two interrelated, but distinguishable, challenges in making a WFPB diet accessible to a wider swath of people: the economic battle to make good, healthy food accessible and banish food deserts, and the educational battle to persuade people that plant-based eating is good for them and teach them how to cook and eat vegetables. Both of these concerns apply to vegans as much as to meat eaters, and perhaps even more so, because vegans who are weary of making their own food are celebrating a bounty of new substitutes. I think the health benefits are worth it, but I’m also well aware that folks facing real financial hardship, balancing jobs and families, and taking into account different dietary preferences at home on top of everything else are having a rough time and might not have the bandwidth to prioritize their health the way they would if, say, a private WFPB chef were cooking for them.

This is why I think that the problem of nutrition deficiencies will not fully resolve itself until we make big strides toward more economic equity and less servitude to workplaces. More life-work balance is crucial to give people the space to care for their family’s nutrition the way they should. Education about the benefits of the WFPB diet must come coupled with easy and convenient access to reasonably priced produce. Since moving to the U.S., it has always driven me nuts to see that packaged foods here are often less expensive than fresh produce–the pyramid is inverted in Israel, and it shows. At my certification course, experienced food lawyer Michele Simon (a UC Hastings grad!) explained the political pressures from the meat and dairy lobbies and talked about the need to lobby harder for vegan foods (she’s walking her talk with the Plant Based Food Association). I wish there was more lobbying on behalf of fruit and vegetables, which are truly the cornerstone of health. If I sound a bit evangelical about this, it is because the transformation in my health has been magical, and all there was to it was vegetables, fruit, and walking. If you can move yourself in that direction, I can’t recommend a better investment in yourself; and we should continue to collectively move society in that direction, so that it is easier for individuals to make better choices.

Exhibition Review: I Look for the Sky and Memento at the Asian Art Museum

Yesterday I had a lovely time visiting an old haunt of mine, the Asian Art Museum, and taking in two new exhibitions: Jayashree Chakravarty and Lam Tung Pang’s Memento and Zheng Chongbin’s I Look for the Sky.

Both exhibits are wonderful, each in its own way. Chongbin’s exhibit makes use of the space not only via abstract canvasses on grayscale on huge sheets of calligraphy paper, but also via an impressive light installation. The outside oscillates and strobes, and the inside has a visceral quality that communicated with Buddhist theme of impermanence and the concept of Maransati. Flashes of a skeleton, internal organs, tissues, muscles, bones, appear on the lower screens, while on the upper screens everyday objects flash: a banana, a wicker basket, shoes, a hammer… as Yesterday’s Monsters readers know, I’ve been very interested in the Tibetan Book of the Dead and in the concept of the bardo, and the parade of mundane objects against the viscerality and aesthetic of the perishable body put me in a place of unmediated trance about my own temporality. This is exactly the quality I (misguidedly) looked for in the New Orleans Museum of Death, and it was overpowering here.

Memento was a milder, but no less exciting, artistic experience. Jayashree Chakravarty put on a map (perhaps a heart-guided map, more than an accurate geographic description) of her hometown on a huge composite paper and built a round shelter out of it. It felt exciting to be inside and look around. And Lam Tung Pang did an ingenious installation, which consisted of a big canvas with drawings, illuminated by projectors. In front of the projectors were miniature objects: a little bird on a branch, a man climbing a hill, palm trees. The little objects cast shadows on the canvas at exactly the right places to fit in their right place in the installation. It was beautiful and a reminder that all objects we see are, really, a light reflection of themselves.

I caught a little bit of Videos of Resistance, but not enough to review it. Frankly, what I’ve seen of pandemic-inspired art at SFMOMA and elsewhere was of mixed quality, which is to be expected given the circumstances. But I was delighted to see these wonderful installations. One downside of the amazing new work on the ground floor is that I seldom have time to go upstairs and take in the Asian Art Museum’s excellent permanent collection; however, with Hastings moving toward in-person opening next year, I’ll have an opportunity to go whenever I have a free moment.