Category: California Justice Issues

State issues in the correctional system.

Are Nonprofits that Employ People with Criminal Records Good or Bad? It Depends on Your Perspective

You’re probably familiar with the image at the top. Created by Danish psychologist Edgar Rubin, the face/vase illusion tests the modularity of perception: you can see the vase, or you can see the two faces, but you can’t see both.

I thought about this when I read Jonathan Ireland’s hard-hitting critique of the nonprofit industry. I recommend that you read it in its entirety – it heavily features San Francisco, and exposes some deep ugliness in the management of nonprofits presumably designed to help the homeless, which actually do anything but. Ireland’s examples illuminate his key point, which is that the reliance of progressives and socialists on dysfunctional, corrupt nonprofits is the exact opposite of being “progressive” or “socialist”:

Contrary to the conservative assumption that high taxes are an inherent evil, people are often fine with higher taxes provided that the taxes are utilized to improve local living standards. What is taking place in America’s most performatively socialist urban areas is that taxes are constantly raised in order to fund public services, resulting in some of the most heavily taxed populations in the country. But this tax revenue is then squandered on private contracts to unaccountable nonprofit organizations whose activities do little to rectify the problems they are nominally being funded to address.

In other words: instead of increasing state capacity to improve quality of life (e.g., pick up trash), ensure public safety in downtown areas, and solve large-scale social problems–after all, we want government spending in these areas–progressive cities have been delegating these areas to nonprofits, which are plagued by financial malfeasance, cynical posturing that often goes against the interest of the populations they are supposed to benefit, and just plain old incompetence. Ireland’s leading example is TODCO, whose corruption is truly breathtaking. I’ve been around do-gooder organizations for the last 25 years, and some of the ones with the noblest goals and most sanctimonious agendas are the shittiest in terms of administration, financial management and responsibility, and actual accomplishments in the field (not to mention all the horrendous infighting that makes hardworking, solid people flee them in horror and swear they’ll never work for one again).

But I’m not sure I’m buying wholesale Ireland’s critique of nonprofits employing people with criminal histories. Titling this section of his review “Crime, Inc.,” he addresses several cities that employ formerly incarcerated folks as “violence interrupters” or mentors. Notably, he does not mention Urban Alchemy, but rather similar programs in Seattle and Chicago. Here is Ireland’s critique:

[N]one of these people could draw a government paycheck unless it was laundered through a nonprofit. A police department could never hire a convicted felon with long-term ties to street gangs, but a private nonprofit has looser standards regarding who is allowed access to public funds. This not only squanders money on people who are not capable of performing the roles they’re assigned, but is an active threat to public safety in circumstances where the state uses convict-staffed nonprofits for duties that ought to be reserved for the police.

I think Ireland confounds two issues that are best kept distinct. Insofar as his critique is that the municipality would not directly hire people who have served a long prison sentence, the obvious answer is, yes, that’s exactly the point! One of Ireland’s concerns is that nonprofits employ people lack the skills for doing the work they are hired to do, and I suspect he is seeing only one aspect of the face/vase illusion. The material question is, what are useful skills for crime prevention work? You see, the logic of programs like Urban Alchemy is that, living lives saturated with danger and violence, people acquire special skills that help them sniff trouble before it begins and prevent it through subtle, nonviolent means, such as positioning themselves between a young woman crossing the street and a man about to mug or assault her. If the state or municipality cannot bring themselves to value these skills in the job market, of course private providers have to step in and employ them. Whether or not the proof’s in the pudding is another matter, and this is where, again, we’re dealing with two incompatible views of reality. One view measures public safety in arrests and busts for things that have already happened. Another measures public safety in terms of the intangible sense of safety that people experience walking down the street and having nothing bad happen to them. I’m not a neutral commenter here; my sympathy for Urban Alchemy comes from my, ahem, <groan> lived experience </groan> working in the Tenderloin. I can’t quantify this, put a number on it, or twist it into a nice graphic that would fit in a quarterly performance review, but I can tell you that the entire energy around my workplace shifted when the practitioners started opening doors for us, cleaning areas that used to be repellent, and watching out for folks. The difference between street corners with and without practitioners is palpable. Maybe at some point we hit a saturation effect and the impact of seeing someone with a green vest in the corner will dissipate. I worry that the proliferation of these companies could get us there, but my subjective assessment is that we’re not there yet.

(Also, there’s the underlying assumption that the scrutiny of the public sector helps prevent scandalous mismanagement of the kind that nonprofits are notorious for. But if the private-versus-public-prisons debate is anything to go by, the private sector has not cornered the market on scandalous mismanagement. The entire COVID-19 disaster in CA prisons was 100% brought to you courtesy of the public sector, and funded by $10 billion of your tax money per annum. And the few people who tried to do something were federal employees working for the Receivership and upstanding citizens volunteering or working in nonprofits, not state employees running the prisons.)

The second issue Ireland brings up is considerably thornier: the not-at-all-unreasonable concern that putting folks with criminal ties in charge of other people (crowd handling) and funds is a risk. He does provide some hair-raising examples of folks who continued their criminal activity, be it financial malfeasance or actual gang violence, under the sheltering umbrella of the nonprofit where they worked. Because I am well read on criminological literature (including quant stuff, not just jargon-heavy political propaganda), and because I live in the real world, I know that recidivism is always a risk, particularly in the first few months after one gets out of prison (with all the usual caveats about the concept of recidivism). A BJS study looking at state prisoners released in 2005 and following up on their records until 2014 found the following:

The 401,288 state prisoners released in 2005 had 1,994,000 arrests during the 9-year period, an average of 5 arrests per released prisoner. Sixty percent of these arrests occurred during years 4 through 9.
An estimated 68% of released prisoners were arrested within 3 years, 79% within 6 years, and 83% within 9 years.
Eighty-two percent of prisoners arrested during the 9-year period were arrested within the first 3 years.
Almost half (47%) of prisoners who did not have an arrest within 3 years of release were arrested during years 4 through 9.
Forty-four percent of released prisoners were arrested during the first year following release, while 24% were arrested during year-9.

There is plenty that we don’t know and can argue about, of course, such as whether the arrests reflect actual renewed criminal activity or bogus outcomes of escalated stop-and-frisk stuff that ended up being nothing, and whether the arrests reflect the lives of people who were housed and employed after they came out, or people who drifted back to crime out of necessity. But I think you’d be pretty silly, misguided, or deceptive, to argue that there are no risks of reoffending when employing people straight out of the joint. My argument, in both Yesterday’s Monsters and Fester, is that you can considerably mitigate this risk by providing early releases and employment opportunities to aging and infirm people who have already spent a long time behind bars. At least initially, this was Urban Alchemy’s employment strategy, and I would not be surprised if nonprofits employing people with an incarceration history find that they have significantly more reoffending challenges with young people. As I explained in both books (in different contexts), hooking up aging former lifers with opportunities requires a stomach for bad optics, because doing so tends to produce headlines about murderers-at-large, even though from a well-researched, robust criminological standpoint, the recidivism rate among people in their fifties who served decades in prison is remarkably low, and they constitute a very low employment risk. It’s also fair to say, I think, that any organization employing people who face temptations to reoffend on their daily beat must provide them hands-on support–decent pay, decent benefits, access to therapy, reasonable colleagues to talk to–otherwise, it’s not doing its due diligence.

Once the population of employees with criminal records increases and includes younger people with recidivism risks, the question becomes: at what point do we have enough information to argue that the nonprofit is dysfuctional, or even countereffective? I submit that Ireland falls into a trap that many of us fall into: failing to acknowledge that the world is full of both Type I and Type II errors. Briefly, a type I error, also known as a false positive, is the rejection of the null hypothesis when it is actually true. A type II error, or a false negative, is the failure to reject a null hypothesis that is actually false.

The errors that Ireland flags in his article–admittedly, horrible ones–happen when you employ a formerly incarcerated person in some crime prevention capacity, making the assumption that the person will not reoffend. The person then reoffends, garnering terrible headlines and raising the expected critique: Why are you employing criminals in your organization? The error no one observes is the one we (perhaps) make time and time again: we assume people will reoffend, and therefore do not release them or employ them or offer them opportunities, when they would actually be competent and helpful and not pose a recidivism risk. Because errors of the second type are invisible (you can’t guess whether someone would have reoffended on the job if you didn’t give them the job) you’re left with just the errors from the first kind.

The invisibility of the second type of errors stands in our way when we try to figure out whether a program like Urban Alchemy or Ceasefire or Community Passageways is effective or not. The temptation is to point at the situations in which the employees commit crime–say, assault people in the street, embezzle funds, pimp sex workers in their violence-prevention areas, etc.–and say, this program gives people a license to commit crime. Of course we should not ignore these critiques. But alongside them, we should see other things: Has the overall crime rate for the area supervised by the practitioners decreased? Do before-and-after surveys of the people who live and work in those areas show an improvement in their sense of safety walking the streets? Can we compare crime and safety in the streets when (1) neglected, (2) traditionally policed, (3) patrolled by nonprofit employees, or (4) combination of policing and nonprofit practitioners? That is the sort of essential literature that can actually answer the question whether the solutions offset the problems or vice-versa. We would all be better off if more people did this careful evaluation work, instead of writing alarmist “criminals on the loose” pieces or ignorant “dismantle the carceral whatever” pieces.

I don’t think Ireland’s piece falls neatly into one category or another, and I do think that his willingness to shine a light on the pervasive dysfunction of do-gooder organizations is important. I remember following, with some interest, the ugly feud between Shaun King and DeRay Mckesson, just to see how much rubbish, dysfunction, and malfeasance was at the heart of all the mudslinging. This is not the exception; it’s not uncommon. But I think that malfeasance and incompetence do not perfectly overlap with criminal history, and that’s where we should be more careful.

Damages Lawsuits for Prison COVID-19 Neglect Proceed

If you’ve followed this blog during COVID-19, when we were litigating Eighth Amendment cases at Quentin and beyond, or read FESTER (you should!), then you know an unpleasant truth about prison impact litigation: the house always wins. Judges feel bound by Turner v. Safley or by the PLRA or whatnot, and even in the rare occasion that cruel and unusual punishment is found, the remedies seem meaningless. And yet, when Judge Howard told us all that the Eighth Amendment was violated and yet we get bupkis in terms of remedies, I thought to myself, “boy, I really hope that someone’s family runs with this and sues them for all they’ve got and cleans them out.”

That is exactly what seems to be happening now: several lawsuits for wrongful death have been filed against San Quentin and CDCR by families of people who died in the horrific outbreak, and despite the state’s best efforts to dismiss these lawsuits using the sort of bad-faith, cynical arguments we’ve come to expect in this matter, the Ninth Circuit has just decided that the lawsuit on behalf of the bereaved family of Sgt. Gilbert Polanco can go forward.

To make a long story short, here’s the legal framework: Generally speaking, state actors are not liable under the Due Process Clause for omissions (as opposed to affirmative acts), but this rule has exceptions, as the Ninth Circuit explains:

Under the state-created danger doctrine, state actors may be liable “for their roles in creating or exposing individuals to danger they otherwise would not have faced”. . . In the context of public employment, although state employers have no constitutional duty to provide their employees with a safe working environment, the state-created-danger doctrine holds them liable when they affirmatively, and with deliberate indifference, create or expose their employees to a dangerous working environment.

To prove state-created danger, plaintiffs need to show three things: (1) “affirmative conduct” on the part of the state, (2) “particularized danger” to the plaintiff, and (3) “deliberate indifference” on the part of the state. The Ninth Circuit seemed appalled, and with good reason, with the state’s argument that Sgt. Polanco could’ve just quit his job if he thought it was too dangerous. And remember, we already have a finding of deliberate indifference from the Marin Superior Court and from the CA Court of Appeal. I’ll keep you posted.

In some ways, this development goes hand in hand with an excellent suggestion made in a paper by Aaron Littman called Free-World Law Behind Bars. We talk about this idea quite a bit in the last chapter of FESTER: the idea is to move away from litigating constitutional standards toward regulatory frameworks of health and safety. You know, like in any other environment where humans experience risky conditions not of their making. There were already some interesting examples of these, such as the CAL/OSHA action brought by prison employees about their horrifically cavalier work conditions that yielded a whooping $421,888 fine. The Polanco family lawsuit does use constitutional arguments, but is looking to obtain damages. I hope the lawsuits brought by families of incarcerated people–who didn’t even have the choices that the staff had–go forward. And I also hope that the CCPOA sits up and takes notice of what happens when a union does not advance the rational interests of its members.

Will the Protean Quality of Profiling Overcome Pretext Stop Reform?

In 2014, Chuck Epp, Steve Maynard-Moody and Don Haider-Markel published their wonderful book Pulled Over. The book is based on a survey of, and follow-up interviews with, more than 2,000 drivers in the tri-state Kansas City metropolitan area, about their experiences being stopped on the road. They learned important things about how the police use routine stops for trifling traffic offenses as fishing expeditions for other possible crimes.

The legal background is as follows: in order to search someone’s car, the police need probable cause that evidence of crime is in the car. The scope of the search has to follow the probable cause (e.g., if there is probable cause that the driver stole a baby elephant from the zoo, there is no permission to search the glove compartment.) Traffic offenses, with the notable exception of a DWI, do not usually encompass the possibility that there is something inside the car related to the offense. Therefore, suspicion of a traffic offense–even when the officer sees it happen–does not manufacture enough justification to search the inside of the car beyond a cursory inspection for weapons. It certainly does not permit the police to open containers within the car, where drugs might be found.

But a traffic offense does manufacture enough justification to conduct a quick stop of the car, and things can develop from there. While interacting with the driver, the officer might give the car a cursory look, to see if anything stands out; the officer might walk a narcotics dog around the vehicle; the officer might ask some questions (“where do you live?” “where are you going?”) to see if any further suspicion develops; and, most importantly, the officer might ask the driver for consent to search the car, which will grant permission for the search even if individualized suspicion is not present.

This, of course, creates a tempting incentive for police officers to stop vehicles for trifling traffic offenses, especially when they have a hunch (and no more than a hunch) that the driver is mixed up in something more serious. At worst, they haven’t broken the law; no harm, no foul. At best, the interaction during the stop could mushroom into justification to search the car, which might yield something. You might think that courts should inquire into whether the traffic violation was no more than a pretext for the stop, but courts do their very best to stop short of such inquiry. In Whren v. U.S. (1996), the Supreme Court held that inquiries into the subjective state of mind of police officers are out of bounds, and that the Fourth Amendment’s requirements are satisfied once there is an objective justification for the stop, no matter how trifling the offense is. Courts in some states, like Washington, have held such stops unlawful based on their state constitution–but even if you’re fortunate to live in such a state, you have to have solid proof that the stop was pretextual.

The problem is likely obvious to readers: without concrete evidence of, say, racial profiling based on how a driver looks or what kind of car they drive, which will be present only in rare cases, cops routinely lie on the stand that they have genuine and pressing concerns and a passion for traffic enforcement, and courts routinely maintain the pretense that these stops are earnest and genuine, which presumably holds up the legitimacy of the system. Pulled Over confirms that this indeed happens on a systematic level. Epp, Maynard-Moody and Haider-Markel found that drivers experience two different kinds of stops: traffic stops for legitimate offenses (“do you know why I stopped you?”) that end in a citation or a warning, and investigative stops (for things as minor as a broken taillight) that then lead to inquiries and fishing expeditions and end, at best, with a bitter, cynical, humiliated driver and at worst, if things escalate, in an arrest.

California is now trying a solution to this problem. Following reforms approved by police commissions in San Francisco and Los Angeles, the California legislature has enacted Senate Bill 50, which you can read verbatim here. The idea is this:

This bill would prohibit a peace officer from stopping or detaining the operator of a motor vehicle or bicycle for a low-level infraction, as defined, unless a separate, independent basis for a stop exists or more than one low-level infraction is observed. The bill would state that a violation of these provisions is not grounds for a defendant to move for return of property or to suppress evidence. The bill would authorize a peace officer who does not have grounds to stop a vehicle or bicycle, but can determine the identity of the owner, to send a citation or warning letter to the owner.

The bill would authorize local authorities to enforce a nonmoving or equipment violation of the Vehicle Code through government employees who are not peace officers.

I remember the jeremiads on Nextdoor when this was first proposed in San Francisco. The concern was that the city would completely give up on traffic enforcement, resulting in accidents and victims. As a two-wheeled vehicle rider (first a motorcycle and now a cargo e-bike) I’m very sensitive to traffic enforcement concerns. But it looks like the worries are overblown, because the low level offense list in the bill is as follows:

(A) A violation related to the registration of a vehicle or vehicle equipment in Sections 4000 and 5352.

(B) A violation related to the positioning or number of license plates when the rear license plate is clearly displayed, in Sections 5200, 5201, and 5204.

(C) A violation related to vehicle lighting equipment not illuminating, if the violation is limited to a single brake light, headlight, rear license plate, or running light, or a single bulb in a larger light of the same, in Sections 24252, 24400, 24600, 24601, and 24603.

(D) A violation related to vehicle bumper equipment in Section 28071.

(E) A violation related to bicycle equipment or operation in Sections 21201 and 21212.

Since the police can capture these minor violations through filming equipment and send citations to people, the bill strikes a good balance between traffic safety and civil rights preservation. It also reflects a clear-eyed perspective on the protean quality of race stops. Efforts to legislate against pretexts, as such, are bound to fail, as police departments will respond by getting cops to testify better on the stand about the reasons for the stops. Efforts to dig up evidence of pretexts via departmental emails will do no more than push these policies underground, into Snapchat and the like. But this effort curtails the use of minor traffic offenses at the root, by preventing these stops in the first place.

I’ve been trying to think how police officers might subvert the bill’s purpose, and the only loophole I can find is this: the bill does allow the stop if “there is a separate, independent basis to initiate the stop or more than one low-level infraction is observed.” We will have reduced the number of fishing expeditions originating with, say, a broken taillight, but such stops will still happen if, say, two of these minor traffic offenses are observed. I

I really hope that someone is doing evaluative research on this. If so, and if someone’s testing this using a survey instrument similar to the one in Pulled Over, the questions I’d be interested in are:

Has the overall number of traffic stops declined?
Has the racial composition of stopped drivers changed?
Has the make and appearance of stopped cars changed?
How many stops now begin with the cop asking the driver, “Do you know why I stopped you?”
How many stops now result in car searches?
How many stops now result in the arrest of the driver? In any violent incident between the cop and the driver?

If any readers are aware of a study currently being conducted, please let me know in the comments.

Prison Systems Still Making COVID19-Era Mistakes

The last chapter of our book FESTER, which is already out from University of California Press, is called “The Next Plague.” We wrote it to warn everyone in prison administration, prison litigation, and politics, that if considerable reforms are not sought–chief among which is an aggressive 50% reduction in prison population, which we believe is feasible without a corresponding rise in crime rates–the next plague will provoke calamities in the same way this one has.

Two new pieces of information suggest that things are going the same way they had pre- and during COVID19. The first has to do with prison overcrowding and comes to me from the ever-attentive prison conditions activist Allison Villegas (thanks, Allison!) who diligently follows up the periodic population counts. Take a look at the latest:

Not only is the total number back up to 109,000–more than before COVID–but some prisons are so overcrowded that it looks as if Plata (which required population reductions to 137.5% capacity) never happened. Norco is at 171% capacity; Avenal is at 162% capacity. If Plata applied per individual prison, rather than system-wide (which would make more sense, as we explain in ch1 of FESTER), six prisons would currently be in violation of that standard. The entire system is at 117% capacity (design capacity is fewer than 79,000 people), Plata-compliant but not by much. This should never be the case if we are to maintain minimal healthcare standards and in many ways is the root of much of the evil we saw in Spring 2020.

The second piece of information comes from my colleague Dorit Rubinstein-Reiss. It is a Ninth Circuit decision regarding government accountability for the COVID vaccination fiasco in Oregon prisons, which you can read verbatim here. The lawsuit was brought by people incarcerated in Oregon, and claims that, during COVID-19, they were categorically assigned to a lower priority vaccination tier than correctional officers. In FESTER, we document a similar struggle in California, where the California Department of Public Health initially scheduled incarcerated people to receive the vaccine in tier A2, and then scratched that, to everyone’s amazement. At work, as we explain in the book, and as I explained in this op-ed, was a misguided zero-sum mentality that vaccines in prison somehow come at the expense of vaccines to other people–when, in fact, prisons and other congregated facility acted as incubators and loci of superspreader events. But here in California, the struggle was that, though prison guards were prioritized for the vaccine, they refused to take it, and their union was willing to go all the way to the Supreme Court to fight against it, with Gov. Newsom and AG Bonta’s support. We lost that fight, which is shameful, and this Oregon case is yet more proof of how and why the house always wins these kinds of lawsuits, no matter how meritorious they are: in this case, it turns out that Governor Allen and other state officials have immunity against the lawsuit that stems from the Public Readiness and Emergency Preparedness (“PREP”) Act.

Here’s how the parallel fight went down in Oregon:

The Oregon Health Authority then published guidance recommending phased allocation of the vaccines. In Phase 1A, healthcare personnel, residents in long-term care facilities, and corrections officers were eligible for vaccines. In Phase 1B, teachers, childcare workers, and persons age 65 or older were eligible. Neither phase categorically covered adults in custody (“AICs”), but AICs who met the eligibility criteria were prioritized for vaccination on the same terms as the general population. For example, all AICs who were 65 or older were eligible for vaccination in Phase 1B. The Governor’s initial rollout of the vaccines was consistent with OHA’s guidance.

In response, Plaintiffs amended their complaint to add class claims for injunctive relief and damages, alleging that the vaccine prioritization of corrections officers, but not all AICs, violated the Eighth Amendment’s prohibition against cruel and unusual punishment. On February 2, 2021, the district court certified a provisional class of all AICs who had not yet been offered a vaccine and granted Plaintiffs
preliminary injunctive relief, ordering the immediate prioritization of approximately 11,000 AICs for vaccination. Defendants complied with the court’s order.

In September 2021, when vaccines were no longer scarce, the district court dismissed as moot Plaintiffs’ claim for injunctive relief because all Oregonians (ages twelve and over) were eligible to receive a COVID-19 vaccine and vaccine supply in Oregon exceeded demand. Plaintiffs’ damages claims, however, remained.

Get it? After everyone got sick and died, then the vaccine was available, but by then, of course, the claim was moot. But even the revival of the case is of no avail, because the Ninth Circuit “conclude[s] that the vaccine
prioritization claim falls within the scope of covered claims because, under the PREP Act, “administration” of a covered countermeasure includes prioritization of that countermeasure when its supply is limited.”

This is exactly the point we make in FESTER. What with prevarications, immunities, and continuances, courts adjudicating prison health matters as such are the worst place to seek justice in a timely manner. And since politicians know that protecting incarcerated people, particularly those who are old and infirm, is never an electorally wise move, and that shortchanging and sandbagging the prison population can happen with immunity, how is there ever going to be motivation to vaccinate and decarcerate, the two things that must happen the next time a big one comes along?

Carrying and Using Narcan

There’s very little I can do about the horrors happening in the Old Country. But there are other, more mundane, horrors happening every day in the Tenderloin, where I work and my students study, that we can do something about: Fentanyl overdose deaths. Today, I was very happy and grateful to host Rob Hoffman from the San Francisco Department of Public Health and distribute Naloxone, commercially known as Narcan, to all my students, along with training on how to use it.

Here’s what Rob told us: Fentanyl accounts for 70% of the overdose deaths in the city. About half of these deaths happen in the few blocks surrounding UC Law San Francisco. The overdose death among African Americans is five times the city average. And, 70% of the people who die are housed. The risk of overdosing is higher for people who use alone, mix opioids with Benzos or alcohol, start using again after losing tolerance for the drugs (for example, after a period of incarceration) or use a dose of especially high potency.

Here are photos I snapped of the slides Rob showed us. Remember, you can obtain a free Narcan kit at the Community Behavioral Health Services Pharmacy on Howard and 10th. If you live or work in the Tenderloin, please carry a kit with you. You can save a life.

News! FESTER Available for Preorder

We’re live! FESTER, my book with Chad Goerzen about the COVID-19 catastrophe in California prisons and jails, is available for preorder on the UC Press website and on Amazon. The official publication date is March 2024.

From the back jacket:

The mismanagement of the COVID-19 pandemic in California’s prisons stands out as the state’s worst-ever medical catastrophe in a carceral setting. In Fester, socio-legal scholar Hadar Aviram and data scientist Chad Goerzen offer a cultural history of the COVID-19 correctional disaster through hundreds of first-person accounts, months of courtroom observations, years of carefully collected quantitative data, and a wealth of policy documents. Bearing witness to the immense suffering wrought on people behind bars through dehumanization, fear, and ignorance, Fester explains how the carceral system’s cruelty threatens the health and well-being not only of those caught in its grasp, but all Californians—and stands as a monument to the brave coalition of incarcerated and formerly incarcerated people, family members and loved ones, advocates and activists, doctors, journalists, and lawyers who fought to shed light on one of the Golden State’s correctional system’s darkest times.

If you’d like us to come to your campus or bookstore in Spring 2024 and beyond, please contact us and we’ll make it happen.

Film Review: 26.2 to Life

I still remember the incredible emotions that choked me as I took the last steps of the Oakland Marathon and realized that, yes, I was going to finish. Even with lots of experience racing endurance events, including some very long marathon swim, there was nothing quite like it. And the faces of everyone around me reflected that we had all undergone a very special experience, stretching body, mind and spirit to their limits, and that we would forever share that experience.

It is this direct appeal to common humanity that drives Christine Yoo’s fantastic documentary 26.2 to Life, which is now playing in select theaters and winning all sorts of incredible awards at film festival. With unparalleled access to the inside of San Quentin–the yard, of course, 105 laps of which add up to 26.2 miles, but also other areas of the prison, including the cells–this documentary has the potential to go where no work of advocacy has gone before.

Lots of tired, jargony academic pieces about carceral geography and mass incarceration blather about “bodies” and “embodiment”, but nowhere is the somatic experience of an incarcerated body more visceral than in this film. We see people living under the horrid conditions that are only too familiar to regular readers of this blog and using endurance running–their own bodies, pushed to their limit–to sublimate and divert anger, to release stress, to find liberation, to imagine commonalities and brotherhood with people running on the outside. In one memorable scene, runner Jonathan Levin talks of running as a physical form of doing penance for his crime, reminding me vividly of the incredible ending scene of the Buddhist film Spring, Summer, Fall, Winter… and Spring.

Other runners feature more prominently, and we get to learn their personal stories. Markelle “The Gazelle” Taylor, the fastest runner of the club, dreams of qualifying for the Boston Marathon and running it if he makes parole. Rahsaan “New York” Thomas finds his voice as a journalist and leader in prison (his work for the San Quentin News and for Ear Hustle is also featured in Adamu Chan’s recent documentary What These Walls Cannot Hold. Tommy Wickerd works hard to redeem himself from a life of violence and be as much of a good husband to Marin and father to Tommy II as he can from behind bars. These folks, and many others featured in the film, are people I know. Some of them I met in person, though most of them I did not; I did spend many many hours with their loved ones, and hearing from them, in the weekly #StopSanQuentinOutbreak coalition meetings that we document in FESTER. There was something heartbreaking in watching these very familiar people in footage from before the calamity would strike and terrorize them and require them to develop new forms of courage and work new psychological muscles.

What stands out in the movie is how it lends itself to bridges of empathy and perspective taking. Not pity–though the men’s stories are contextualized in a way that does not absolve them from accountability and yet evinces profound understanding of their circumstances–but the same sense that every one of us has felt upon embarking on a huge athletic undertaking. The same sense of exhilaration and terror that is evident in the first steps of the protagonist of Brittany Runs a Marathon; the same trepidation and enormous effort of the swimmers in Driven; the sense of dread, then relief, accompanying Alex Honnold’s heroic climb of El Capitan in Free Solo. Christine Yoo has elevated Taylor, Thomas, Wickerd and the other runners to their rightful place along these cinematic athletic heroes by bringing her viewers into communion with the most basic things we all share: our bodies and our striving to make something of our lives within them.

You must see this movie. And you also must consider financially helping some of the film’s heroes. As pioneering research by Alessandro de Giorgi shows, the first and foremost challenges for anyone on the outside involve their basic survival: finding a place to live and a job. Even phenomenal athletes are not exempt from this. Markelle sells amazing athletic gear you can wear in pride for your training and racing, and Rahsaan is doing wonderful journalistic work that requires support.. Too often we expect formerly incarcerated folks to hit the ground running with activism for their friends still on the inside, discounting the importance of getting their own lives in order. Let’s lend our fellow athletes a helping hand.

FESTER Blurb from UCI’s Keramet Reiter

Another great endorsement for FESTER comes from Prof. Keramet Reiter of UC Irvine, one of the nation’s most respected and productive scholars of extreme punishment and incarceration and the author of 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement. Keramet is the director of UCI LIFTED, a phenomenal higher education program granting incarcerated people access to, and degrees from, UC Irvine, and also spearheaded the Prison Pandemic project, which collected first-hand accounts of COVID-19 in prisons and was one of our best primary sources.

Here is Keramet’s endorsement for FESTER:

Aviram, with Goerzen, has produced another tour de force unpacking a new legitimation crisis in California’s punishment infrastructure. Marshalling evidence from litigation, first-person narratives, administrative data compilations, and their own advocacy work, Aviram and Goerzen meticulously analyze how COVID-19 outbreaks in California prisons and jails cruelly terrorized incarcerated people and also exacerbated health risks in the surrounding communities. Impressively, the book reads like a true crime thriller – about the horrors wrought not by the people inside prisons but by the people running and overseeing those prisons. Poignant details of everyday life in prisons in crisis make vivid the book’s pointed policy critiques: information gaps about criminal legal system practices, in combination with dangerously inaccurate assumptions about the impermeability of prisons and jails, produce dangerous incarceration conditions. And dangerous incarceration conditions put us all at risk.

FESTER Blurb from the Chronicle’s Jason Fagone

I’m very pleased to share the first book blurb for FESTER, from star journalist and author Jason Fagone. As a reminder, Jason was part of the San Francisco Chronicle team that broke the story of the San Quentin outbreak. He is also the author of a terrific nonfiction book, The Woman Who Smashed Codes: A True Story of Love, Spies, and the Unlikely Heroine Who Outwitted America’s Enemies.

Here is what Jason has to say about FESTER:

Myths can kill, and FESTER dissects a vicious one: the idea that prisons are worlds apart, isolated from their surrounding communities. With passion, rigor, and a flair for storytelling, Aviram and Goerzen show how California’s fealty to this myth placed whole cities at risk during the coronavirus pandemic, transforming the state’s overcrowded prisons into virus bombs that exploded outward. An indictment of a failed system and the politicians and judges who prop it up, this stunning book is also a call to action, laying out reforms that could save lives the next time a deadly virus proves that we’re all connected.

First Peek at the Cover Art for FESTER

Last night we were ecstatic to receive the cover art for FESTER. UC Press has always done right by me–we had a back-and-forth about Yesterday’s Monsters that was very productive, and to this day people remember Cheap on Crime as “the one with the stripes”–but I think this is the best cover they’ve designed for me so far. I like it for three main reasons:

(1) The color. THE COLOR! I love it! Sickness green. You can’t avoid it. You can’t ignore it. It’s so sick. It’s so sickening. It’s the color of miasma and nausea. It evokes with such visceral precision the story we tell in the book. And, people will remember “that green one.”

(2) The map. This was my proposal to the press, and I’m really glad they took me up on it; the execution, of course, is much nicer and cleaner than anything I could’ve possibly produced. You’ll notice it is a map of California, with coronaviruses indicating the locations of CDCR prisons. Inside the book, in Chapter 5, you’ll see another version of this map, which overlays the prison locations on the entire state’s COVID-19 map, which we think drives home the point we make there, and throughout the book: when and where people get sick behind bars, everything around them is sick, because prison is not isolated from its surroundings, but rather along a continuum. I love that this spatial idea, according to which we are not safer when our fellow Californians age and ail behind bars, made it to the cover in such a neat, communicative way.

(3) The font and the way the word breaks down the middle. They could’ve written it on the diagonal, or in smaller print, but they wanted it to be HUGE.And it *should* be huge. We’ve been spelling FESTER in all-caps for a reason, and I’m so glad they kept it that way for the cover. It is only now, presented with the cover art, that friends of mine are finally “getting” the title: it’s not just the disease that is festering. It’s the massive neglect and dehumanization that festered there for decades. The outbreak is nothing more than a trigger that activated existing vulnerabilities. And don’t forget how the coronavirus permeates not only the state map, but also the letters. Everything about this cover is overlaid and permeable.

We are told that FESTER copies will be at the warehouse in January and available in bookstores, brick-and-mortar and online, in March. I will keep you all posted as to developments and as to the book party and tour.