Do Some Rich People Think Democracy is Beneath Them?

In case the horrific damage Trump and Trumpism have done to our democracy was not obvious from the horrendous crimes in plain view of the last few days (or the last four years, including human rights crimes masquerading as policies) today we have evidence on the local level of how deeply the notion that democracy can be purchased and toyed with has resonated with some Silicon Valley dolts. Not that these people needed Trump’s encouragement to think of San Francisco as window dressing for their lives, and of all of us as “local color” providing a picturesque setting for their VC deals. But today really takes the cake with an idiotic fundraiser, organized by this guy, who seems to think that his claim to virtue–being ridiculously and ostentatiously rich in a city where other members of the human race have to starve, defecate, and die in the streets–is a proper substitute for actual criminal justice expertise.

This initiative comes in the heels of a horrific tragedy–a fatal car accident that claimed the lives of two women. The man behind the wheel, Troy McAlister, was intoxicated and driving a car he had stolen from a date. Because Chesa Boudin ran on a progressive prosecutor platform, the focus is on prosecutorial missteps that led to McAlister being free: before this recent crime, he had been headed toward trial in late 2018 on two counts of second-degree robbery in connection with a 2015 holdup in a San Francisco store. Boudin’s office “referred these cases to parole because we believed there was a greater likelihood of him being held accountable and having the kind of intervention that would protect the public and break this cycle of recidivism.”

Since I know something about parole, I can explain that there are two ways in which people on parole end up back in prison: either they commit a new crime, for which they are prosecuted and tried (this can take months, if not years) or they commit a parole violation that lands them back in prison. Oftentimes, there’s an overlap. While some parole violations are technical and trivial, others amount to new crimes. It is not unreasonable to think that a parole violation route will be more efficient than a new prosecution, though things have somewhat changed in terms of the implications. Before the Schwarzenegger Administration’s parole reform, parole violators pretty much automatically ended back in prison, even for very minor violations–resulting in a prison population comprised of 50% of the people doing time not for new crimes, but for parole violations. The reform, aimed at alleviating the obscene 200% overcrowding in the system, aimed to give parole agents more discretion and a range of intermediary sanctions before throwing them back in the slammer, depending on discretion and on how severe the violation was and how risky the person was judged to be.

Like any situation involving risk prediction, when deciding whether to remand a person to CDCR or use an intermediary sanction, parole agents could be right or they could be making one of two types of mistakes. False negatives are situations when the person is assumed to not be much of a risk but then commits a new crime (such as McAlister). False positives are situations where a person is kept behind bars, mistakenly perceived as a release risk, when had they been released, they would not have committed a crime. Obviously, we only hear about false negatives, not false positives, because they appear to be penalty-free. But false positives also have a grave price. As of today, 133 people have died of COVID-19 behind bars. Most of those people were aging folks, who are largely assumed to have aged out of crime, and who would have posed no danger to the outside world had they been released (which would have saved their lives.) Their illnesses and death, in turn, resulted in infections, illnesses, and deaths in the communities surrounding the prison. It’s just that our society is not particularly inclined to value the harm and price paid by these people and their families as we value the lives on the outside. But any time we make a judgment call about risk, we might be making either mistake. And that means that some mistakes, which are horrible, and tragic, and senseless, and enraging, cannot be prevented. This is a horrible truth to live, but it doesn’t necessarily indicate that there’s something systemically wrong at the prosecutor’s office or at the parole agent’s office. It indicates that someone made a horrible mistake.

Moreover, our attention to particular instances of false negatives blur their overall context. Every fatal traffic accident that happens in San Francisco, of which there are dozens every year, leaves a deep wound of grief in its aftermath. Many of them are as preventable as this one. And the vast majority of them never make the news, because they don’t involve parolees, which is why we deal with them through initiatives such as Vision Zero, rather than through hatchet jobs against our elected officials.

So why are we making this horrific tragedy into a cause célèbre? Because there are political hatchets being forged, such as this “astroturf fundraiser” (as my friend Chris Johnson called it), about which there isn’t much to say that isn’t obvious. However, obscene wealth seems to make people impervious to the obvious, so here it is: It turns out that we have a magical and effective mechanism in the United States for holding prosecutors “accountable to the people.” It’s called voting. The people wanted a progressive prosecutor and, should they be displeased, they can elect someone else. Voting comes in pretty handy in procuring accountability, because it is available to people who have less money than Mr. Calacanis. The funny thing is that, throughout the last decades, because of aggressive fearmongering propaganda, voting regularly and reliably produced aggressive prosecutors who almost singlehandedly drove our mass incarceration crisis. Now, we’ve been through the 2008 financial crisis, and the Obama administration, and the horrors of Trump and a second recession, and the American public has apparently come to the conclusion that they are ill served by this sort of prosecutorial policy, and so they are choosing something else.

Mr. Calacanis knows this, of course. He and his ilk have been more than happy with this system as long as the hoi polloi reliably voted for the kind of prosecutors they like, but democracy doesn’t suit them quite to the same degree when the plebeians want social services, relief from cash bail, a wrongful convictions unit, and humane jails. So when he claims to speak for “the people,” he is not championing you and me–he’s championing his rich buddies, whose favorite pastime is to abuse and exploit California’s delicate democracy and treat it as a playground for their contemptible ideologies and ridiculous experimentation. This is not a particularly original move. Calacanis is merely following in the footsteps of several folks just like him, like the wealthy guy who gave us Marsy’s Law (which we have to blame for having so many old and sick people behind bars, denied parole in the face of COVID-19 for no logical reason) or the clown who wanted to split California into six states. It should also come as no surprise that these folks believe that investigative journalism, just like democracy, is something you simply buy with Silicon Valley money–even though we have excellent investigative journalists at the San Francisco Chronicle who are all over this story and are not for sale.

Look, I’m not an idiot. I know that politics-for-sale is festering throughout this great nation, and I cling to my youth in Israel, where that was not the case to this depraved degree, mostly for sentimental reasons. I know that the social democracy in the Old Country breathes no more, but its memory and ethos live on, and I have daily proof that even that faint memory works better than than the corrupt, unbridled capitalism of the U.S., in the form of people from my age cohort in Israel posting pictures of having received the vaccine I can only dream about. I remember being physically nauseated when I read the Mueller report, partly because it gave me a window into the lives of oligarchs who think nothing of buying caviar for $30,000. Mr. Calacanis and his buddies are obviously not as rich as their Russian counterparts (that must sting,) but they’re trying to play the same game. And it is universally loathsome, regardless of whether the perpetrators wear ostrich jackets or Patagonia fleece vests.

Herd Immunity at CDCR, and the Worst of All Worlds

Remember this headline? You might have missed it, what with the onslaught of news and scandals. In mid-December, emails made public by the House committee overseeing the government’s pandemic response show that Paul Alexander—who was installed by President Trump in April to lead the HHS’ communications efforts—wrote to his higher-ups multiple times throughout June and July arguing that there is “no other way” to tackle Covid-19 except establishing “herd immunity” by allowing non-risk groups to expose themselves to the virus.

“Infants, kids, teens, young people, young adults, middle aged with no conditions etc. have zero to little risk,” wrote Alexander in a July 4 message to his boss, Assistant Secretary for Public Affairs Michael Caputo, saying “we want them infected” to help “develop herd.”

Similarly, on July 24, Alexander wrote to the Food and Drug Administration’s Commissioner Stephen Hahn, Associated Commissioner for External Affairs John Wagner and numerous top HHS officials arguing that it “may be best to open up the flood zone and let the kids and young folk get infected.”

In the emails, Alexander also acknowledged that the Trump administration was aware its policies would increase the spread of Covid-19, urged HHS staff to release more “positive statements” in support of the administration’s pandemic response and cast blame on scientists like Dr. Anthony Fauci for offering less rosy assessments of the situation, accusing them of trying to “make the president look bad.”

The published emails don’t include the replies from Alexander’s supervisors to his guidance aside from a skeptical—“How can this be researched and proven true or false?”—written by Caputo in response to a claim made by Alexander about herd immunity on a cruise ship.

The HHS has previously disavowed herd immunity, with Secretary Alex Azar in October insisting it was “not the strategy of the U.S. government with regard to the coronavirus,” although the House watchdog pointed out that high-profile members of the administration on multiple occasions echoed the messaging promoted by Alexander soon after his emails were sent.

The agency drew a thick line between itself and Alexander in a Wednesday statement to Forbes, saying “his emails absolutely did not shape department strategy” and emphasizing that he was a “temporary Senior Policy Advisor to the Assistant Secretary for Public Affairs and is no longer employed at the Department.”

I’m quoting this because the idea of herd immunity by infection offers a useful, if grim, lens to look at the status of CDCR infections. Right now, CDCR has 6406 new confirmed cases in the past 14 days, and the overall infection number has risen to 41,449 cases–more than 40% of the entire prison population. All prisons have outbreaks, and 29 out of 36 prisons have serious outbreaks (more than 50 cases.) But in some prisons, the rate of infection is staggering. According to today’s data, eight prisons have had more than 60% of their population infected:

CVSP    96%
ASP     92%
CRC     91%
SQ      81%
PVSP    71%
CIM     70%
SATF    68%
FSP     62%

We chose 60% and above because estimates of the rate of infection necessary for herd immunity is estimated by experts to hover between 60% and 80%.

In case you are inclined to see this as good news, don’t. Here’s a primer from Johns Hopkins about herd immunity, which was written in April, when the current infection rates in the U.S. seemed horrendously farfetched. “As with any other infection,” they explain, “there are two ways to achieve herd immunity: A large proportion of the population either gets infected or gets a protective vaccine.” They go on to explain why the former option is not a good idea:

With some other diseases, such as chickenpox before the varicella vaccine was developed, people sometimes exposed themselves intentionally as a way of achieving immunity. For less severe diseases, this approach might be reasonable. But the situation for SARS-CoV-2 is very different: COVID-19 carries a much higher risk of severe disease and even death.

The death rate for COVID-19 is unknown, but current data suggest it is 10 times higher than for the flu. It’s higher still among vulnerable groups like the elderly and people with weakened immune systems. Even if the same number of people ultimately get infected with SARS-CoV-2, it’s best to space those infections over time to avoid overwhelming our doctors and hospitals. Quicker is not always better, as we have seen in previous epidemics with high mortality rates, such as the 1918 Flu pandemic.

 It would be tempting to juxtapose the Paul Alexander emails and the CDCR numbers and suggest that CDCR’s COVID-19 policy team have lifted their prevention strategy straight out of Trump’s playbook, but I think that assumes a much higher degree of premeditated planning than what is actually going on, which is chaos. Systemwide, the percentage of infections (more than 40%!) is staggering, but not at a high enough level to provide herd immunity for a minority of non-infected people; institution-wide, this means that CDCR’s explicit party line–transfers, rather than releases as its modus operandi–is likely to backfire spectacularly. Shifting people from places with fewer infections to places with more infections puts their lives in danger and risks transferring the new strain of COVID-19 before the vaccination plan is completed (I will post about how that’s going tomorrow, but for now just know that vaccinations are not underway in the worst outbreak sites and that the priority process raises serious concerns.) Shifting people from places with lots of infections to places with fewer infections, as the so-called “remedy” CDCR has fashioned for the San Quentin disaster, dilutes herd immunity and generates horrific outbreaks like the ones we’ve seen at Avenal, Folsom, SATF, CVSP and other facilities.

These problems are going to persist as long as CDCR willfully ignores the obvious solution: release aging, infirm people to the community, where they are safer for all of us.

BREAKING NEWS: Important Legal Developments in Quentin, Plata Cases

The last few days have seen key developments in all three major COVID-19 lawsuits against CDCR. On the San Quentin front, the California Supreme Court granted CDCR’s petition for review… but this is not necessarily bad news, just complicated. I’ll start by providing the decision in Von Staich and the order in the Marin cases, and follow up with commentary. Here’s the grant of petition for review:

The Attorney General seeks review of the judgment of the Court of Appeal, First Appellate District, Division Two, which found that prison officials have been deliberately indifferent to the health and safety of prisoners at San Quentin State Prison during the COVID-19 pandemic. The court ordered officials to remedy the constitutional violation by designing a plan to reduce the population of the prison to 50 percent of its June 2020 population, through either additional releases from custody or transfers to other institutions.

The questions raised by the petition are undoubtedly substantial. The health and welfare of individuals in the state’s custody during the pandemic, and the appropriate measures for their protection, are matters of clear statewide importance. As the Court of Appeal explained, “[t]he Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution both require correctional officials to provide inmates adequate medical care” and prohibit prison officials from being ” ‘deliberately indifferent to the exposure of inmates to a serious communicable disease’ [citation].” (In re Von Staich, filed opn. at p. 18.) 

The Court of Appeal ruled on the basis of the documents submitted and oral argument, without holding an evidentiary hearing. As the case now comes to this court, it appears that there are significant disputes about the efficacy of the measures officials have already taken to abate the risk of serious harm to petitioner and other prisoners, as well as the appropriate health and safety measures they should take in light of present conditions. For this reason, we return the case to the Court of Appeal with instructions to consider whether to order an evidentiary hearing to investigate these matters before judgment is pronounced. (See People v. Duvall (1995) 9 Cal.4th 464, 482-483, 485.) As we have repeatedly advised in other cases raising similar issues, the matter should be resolved as expeditiously as is consistent with sound adjudication, given the exigent and evolving circumstances concerning COVID-19.

The request for judicial notice is granted. 

The petition for review is granted. The cause is transferred to the Court of Appeal, First Appellate District, Division Two, with directions to vacate its decision and reconsider the cause in light of People v. Duvall, supra, 9 Cal.4th at pages 482-483 and 485, the Attorney General’s Return to the Order to Show Cause at pages 13-19, and the supporting Memorandum of Points and Authorities at pages 32-38. (Cal. Rules of Court, rule 8.528(d).) 

The request for depublication is denied.

Votes: Cantil-Sakauye, C.J., Corrigan, Liu, Cuellar, Kruger, Groban and Jenkins, JJ.

And here’s the order in the 311 Marin County cases:

122420 Order Staying Further Proceedings & Vacating Individual Orders by hadaraviram on Scribd

Here’s what’s going on. Von Staich was decided on the basis of a case called People v. Duvall, which clarified how habeas corpus cases should be heard in court. Under Duvall, when someone petitions for habeas corpus and claims that the government is holding them under unconstitutional conditions, the government must provide a return that “allege[s] facts tending to establish the legality of petitioner’s detention. . . The factual allegations of a return must also respond to the allegations of the petition that form the basis of the petitioner’s claim that the confinement is unlawful. . . In addition to stating facts, the return should also, “where appropriate, … provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.”

The Court of Appeal in Von Staich relied on a fairly straightforward application of Duvall. Because the AG representatives of the San Quentin warden did not actually present evidence showing that the prison authorities’ behavior was appropriate, all the Court was left with was the AMEND report, which stated that no appropriate social distancing could take place unless the prison population were to be reduced to 50% of design capacity. The return did not provide any contrary medical opinion. The Supreme Court seems to disagree with the Court of Appeal, finding that the “significant disputes about the efficacy of the measures officials have already taken” to ameliorate the Quentin catastrophe, an evidentiary hearing might be warranted. As a consequence, the actions taken by the Marin court toward relief for the hundreds of San Quentin petitioners have been frozen until the Court of Appeal determines whether to hold an evidentiary hearing to examine whether the steps taken by the prison authorities can undermine the findings of “deliberate indifference.”

This is not necessarily a bad development, for several reasons. First of all, it is dubious that CDCR, and the AG, could put on any convincing evidence to show that the measures they took, short of releasing people, adequately put them out of “deliberate indifference” territory. Their own doctors are horrified by what they are doing and have said on the record that they want nothing to do with the transfers. Their claims about other precautions, such as screening and wearing PPE, have now been refuted by two Inspector General reports, and they have been excoriated by the legislature for not rising to that level. Only this week did they show any signs of enforcing proper protection on their own staff (so, even the ameliorating steps they claimed to have taken, which the Court of Appeal found “commendable”, turn out to be fictional.)

In addition, consider the dire developments for our friends behind bars before the Supreme Court’s grant. Recall that the Von Staich decision offered CDCR the choice between releases and transfers, urging them to consider releases of aging, infirm people. CDCR proceeded to abuse the discretion it was given to cook up a “remedy” that turned out worse than no remedy at all: as of a week ago, CDCR was still taking active steps to move people out of San Quentin, where the outbreak has abated (for now), to places like RJD and VSP, which experienced horrific outbreaks to the tune of hundreds of cases. Even in the face of realities on the ground–an outbreak in every single prison, a third of the entire prison population infected, a ninth of the entire prison population experiencing an active case, 104 deaths–they were going to shortsightedly confine their energies toward begrudging formal compliance that actually endangered people even more (in addition to the obvious contagion risks, I’ve received emails from folks inside expressing real fears of retaliation from people in the prisons to which they were to be transferred.) Meanwhile, flying in the face of the obvious public health priorities, the folks who should have been first in line to be released were at the very end of the line. This new development buys us more time to push for releases.

The last point is crucial, because the big legal case involving the entire CDCR apparatus, Plata v. Newsom, took a drastic turn in our favor yesterday. At the oral argument, Judge Tigar was exceedingly critical of CDCR’s handling of this crisis. He mentioned a conversation he had with Dr. Elizabeth Linos of the Berkeley Goldman School regarding a much-needed cultural change inside CDCR–a shift in approach from making demands (which Tigar referred to as a “sledgehammer” approach) toward emulation and leading by example, going as far as expressing doubt that the new CDCR policy to ensure testing compliance–and any measures taken by CCPOA, the prison guards union–went far enough, given the existence of significant “pockets” of noncompliance among the staff. Judge Tigar became visibly emotional as he discussed his visits at CMF, mentioning that Gov. Newsom called him and expressed a desire to tour CMF as well. Judge Tigar discussed in detail several people he had met behind bars, including a man in his 90s and a man who became eligible for parole in 1993. He displayed pictures of several people who had died of COVID-19 behind bars, speaking at length and in detail about Eric Warner, 57, an amputee, reformed Christian, and volunteer, and about Sergeant Gilbert Polanco, 55. When speaking of Mr. Warner’s passing, Judge Tigar had to stop to wipe his tears.

Judge Tigar then made a lengthy and forceful plea with Katheleen Allison to consider releases, stating that the time had come for that remedy and giving Gov. Newsom is support in this effort. Judge Tigar used the term of art “deliberate indifference”–a term indicating a finding of Eight Amendment violation–several times–even though he said that it had not been technically met, but explicitly said that CDCR’s behavior will fuel further lawsuits. The upshot of the hearing was the following order:

gov.uscourts.cand.76.3523.0 (1) by hadaraviram on Scribd

The order requires the parties to brief Judge Tigar on the physical possibilities to create quarantine and social distancing (including, for example, the existence of solid doors), as well as on the extent to which pandemic prevention guidelines might have changed during the course of the litigation. The situation on the ground makes it plainly obvious that what is needed here is an all-encompassing solution for the entire prison system; while state courts should be the vanguard of safeguarding Eighth Amendment rights in prisons, their jurisdiction is limited to their counties, and we are simply no longer in a situation in which this makes geographical sense. The thing to do now is push aggressively for releases and for early, effective, and broad vaccination behind bars, and to bring Plata to a successful and effective conclusion.

BREAKING NEWS: Vaccine Available for Staff AND Incarcerated People This Month

Today, CDCR Secretary Kathleen Allison communicated excellent news. The letter above reads:

To All Loved Ones of Incarcerated Individuals and Valued External Stakeholders,

We have an important update in our response efforts against the COVID-19 pandemic. As most of you know, the vaccine has arrived in California, and it is safe and effective. The vaccine is being made available on a phased basis, and as a state, we are committed to a fair and equitable allocation and distribution process.

To that end, California Department of Corrections and Rehabilitation (CDCR) and California Correctional Health Care Services (CCHCS) will receive our first vaccines allocation as soon as this month, and we are currently working with our public health partners on a distribution plan. The initial focus will be on people at high risk of becoming infected or severely ill from COVID-19, as well as frontline workers.

We will have information on our website, and will update it regularly to ensure we are keeping everyone informed on these efforts.

CDCR and CCHCS have also sent out a similar communication to the incarcerated population and staff. We encourage everyone to accept the vaccine once they are eligible to receive it, and in accordance with the phased distribution approach. These collective efforts will set us on the path to recovery, and will allow us to reduce the risk of COVID-19 in our institutions, and safely reopen to in-person visiting, group programming, volunteering, and other opportunities.

If you have questions please email COVID19@cdcr.ca.gov. We are unable to address questions about specific individuals with this correspondence; however, we value your feedback and welcome your questions about the vaccine program and our COVID-19 response efforts.

In the meantime, we are continuing to ensure everyone is taking every precaution to ensure the safety and wellness of everyone who lives and works in our institutions. We are thankful to the families, friends and loved ones of our incarcerated population, as well as our stakeholders. Your hard work, dedication, and sacrifice this year has not been lost on us, and we are appreciative of all your efforts.

For more information on these response efforts, please visit the CDCR/CCHCS COVID response page. For more information about this project and the COVID-19 vaccine, visit this web page.

Take care of yourselves and take care of each other.

Kathleen Allison Clark Kelso

Secretary Receiver

I received the above in a format that did not have clickable links, but I assume the links take you here and here. I have many questions, which I will email to the above address tomorrow morning, including whether the vaccine is mandatory for staff, whether readiness/buy in questionnaires have been administered, and whether choice to vaccinate will be linked to incarceration conditions. I hope to provide updates soon.

There. Is. Nowhere. To. Transfer.

Today we are hearing more rumblings about CDCR’s plans (irrespective of the Von Staich decision, they claim) to transfer elderly, infirm people between prisons.

Where are they going to transfer people to? The graph above, compiled by Chad Goerzen from CDCR data, depicts the rise in new cases just in the last few days. A third of the prison population has been infected so far; a tenth is currently infected; 97 people have died. As of today, twenty-three prisons have major outbreaks (more than 50 cases):

  • CCI (156 new cases)
  • CIW (64 new cases)
  • CMC (180 new cases)
  • LAC (795 new cases)
  • SAC (115 new cases)
  • SOL (129 new cases)
  • CAC (367 new cases)
  • CAL (154 new cases)
  • CEN (419 new cases)
  • CTF (799 new cases)
  • HDSP (722 new cases)
  • ISP (120 new cases)
  • KVSP (505 new cases)
  • MCSP (733 new cases)
  • NKSP (208 new cases)
  • PBSP (76 new cases) 
  • PVSP (1,213 new cases)
  • RJD (400 new cases)
  • SVSP (83 new cases)
  • SCC (248 new cases)
  • SATF (593 new cases)
  • VSP (368 new cases)

A change in strategy is long past due. But it looks like CDCR is taking a page out of Trump’s pandemic prevention playbook, flailing about, transferring people to and fro, hoping that this will go away and arguing in court that “there is no need to act hastily.”

What worries me about this is not just the immediate danger to people. The profound and understandable breakdown in trust between CDCR and the people in its care is going to be the Achilles’ heel of any vaccination strategy. It is essential to understand that releases and vaccinations must go hand in hand. I say this not only to CDCR officials, who might be thinking that the vaccine will obviate the need to release people, but also to activists who obstinately oppose the vaccines because they worry it will weaken the struggle for releases. Without the good will that only releases can create, not only will any vaccine intervention be ineffective, but the problems that fester in the system will increase its susceptibility to the next pandemic.

New Death Penalty Abolition Bill

There’s a new bill, introduced by Assemblymembers Levine and Chiu and coauthored by Assemblymembers Friedman, Gipson, and Stone and Senator Weiner to abolish the death penalty. The bill does not include a retroactive provision to commute current death sentences to LWOP.

The bill will likely pass in the legislature, but because it requires a constitutional amendment it will be on the ballot. This does not have a history of success, as Austin Sarat explains in this book. But since 2016, when we tried this last, six big things have changed, which may improve the odds:

  1. Twenty-two states have abolished the death penalty and three have moratoria on its use. A critical mass of states can now be said to have given it up.
  2. Since the beginning of this pandemic, more people have died of COVID-19 on death row alone than we’ve executed since the death penalty was reintroduced in 1978.
  3. Because of the death penalty moratorium, we won’t be executing anyone else anytime soon – but we’re still footing the bill of death penalty litigation.
  4. The Golden State Killer got life without parole. If not him, then who?
  5. One of California’s major killer counties, L.A. County, will cease to seek death sentences under new D.A. George Gascón.
  6. The recent Trump/Barr killing spree at the federal level has disgusted and reviled millions of people.

I think these developments have altered the landscape considerably enough to merit another try at abolition.

BREAKING NEWS: OC Superior Court Orders OC Jail Population Reduction to 50%

Incredible day: the Orange County Superior Court held today that the Orange County Sheriff, whose COVID-19 prevention incompetence was featured in Barnes v. Ahlman, violated the Eighth Amendment, and ordered the jail to reduce its population by 50%!

Here’s the decision in its entirety; summary follows.

20.12.11 Campbell Order by hadaraviram on Scribd

First, the bottom line: The specific petitioners in Campbell receive immediate relief, in the form of release or transfer. For everyone else, the court orders reductions of at least 50% in all dormitories–and if this is insufficient to achieve proper distancing, even further reductions.

The facts paint a horrible picture of the COVID experience at the jail. Not only is it impossible, given the conditions there, for people to socially distance, staff behavior is not monitored when they are away from the facility. Amazingly, staff are not tested unless they request it, even if they display symptoms. The staff is provided PPE but are not required to wear it. Housing decisions do not take medical vulnerability into account. None of these facts, which were backed by statements from medical experts and staff members, were contradicted by respondents with any evidence.

The decision is a pretty straightforward application of Von Staich, which in itself is a pretty straightforward application of Duvall. In other words: Petitioners showed evidence of incompetence accompanied by awareness of the danger to their lives + the Sheriff neglected to challenge the evidence => petitioners win.

I really hope this signals the beginning of the collapse of CDCR’s deceit machine about transfers; I want there to be court decisions in every single CDCR facility and county jail ordering 50% reductions. What we need is a more holistic understanding of the fact that there truly is nowhere to escape to–the entire COVID-19 prevention situation is broken beyond repair, and shifting people around won’t help.

There’s another way in which this matters for carceral permeability: so far, the meager releases from CDCR prisons have not been offset by transfers from jail because CDCR temporarily halted the transfers. The folly of having to obtain these decisions facility by facility is that, from CDCR’s standpoint, the population glut and resulting outbreaks in jails are invisible. This isn’t helped by the poor job BSCC is doing and the low credibility of their data (to the point that upstanding citizens like Berkeley law student Darby Aono have had to step up and collect data on their own.) But it should be obvious to CDCR that, sooner rather than later, the party will have to end, and the outbreaks in jails will require an exit door on that end. Shuffling folks around is not enough: something’s gotta give.

Full Steam Ahead in the Wrong Direction

You may recall that the Court of Appeal’s population reduction order in Von Staich did not specify the method by which CDCR should go about population reduction (though it did strongly recommend focusing on people aged 60 and over with 25 years of incarceration behind them.) The order specified that CDCR could choose to comply via releases or transfers. As far as releases, the recent Chron exposé shows that they delivered more or less on what was promised back in July: far too few people, 99% of whom were getting out in a few months anyway, and only 0.8% of whom were COVID-19 risks.

What this indicates–and what the AG’s petition for review to the California Supreme Court indicates–is that CDCR intends to address this crisis almost exclusively via transfers. This is also becoming clearer and clearer in the Marin Superior Court, where Judge Howard, who is presiding over hundreds of habeas corpus petitions from San Quentin, issued the following order:

SQ Case Management Order No. 12 by hadaraviram on Scribd

The gist of the decision is this: Judge Howard is proceeding with fashioning the remedies, as he considers Von Staich “persuasive authority” and despite declarations from the AG that they do not intend to comply until they hear back from the Supreme Court. At the same time, he seems unsympathetic to the arguments against transfers, because the Von Staich decision “provided clear guidance that transfer was a viable remedy.” The AG representatives did state that, independently of the Von Staich decision, they are starting their own transfer initiative, which targets people aged 65 and older. Judge Howard has ordered them to provide a list of the people they are transferring, and the petitioners’ lawyers to compile a list of people who are aged 60 and over and/or have COVID-19 risk factors.

How is this playing out on the ground? You can get a sense from the image at the top of this post. In the last week, per the San Francisco Bay View, people inside–both at San Quentin and at other institutions–have been pressured to accept a transfer out of their own volition, and when they refuse–they are asked to sign the form above, in which they waive any future claims about the risk they face. The form requires them to initial the following statements:

I understand that due to my age, I am at high risk for developing serious complications if I get infected with COVID-19.

I understand that I have one or more medical conditions that makes me high risk for developing serious complications if I get infected with COVID-19.

I understand that COVID-19 could lead to serious complications such as lengthy hospitalizations or even death.

I understand that living in places where individuals are in close contact and physical distancing is difficult to follow, such as prison dormitory [sic], will increases [sic] my risk of being infected by COVID-19.

I understand that COVID-19 could lead to serious implications such as lengthy hospitalization or even death.

I understand that if I change my mind and decided [sic] to be housed in celled housing, I will submit a 7362 or talk to a health staff to request for [sic] celled housing.

I’m hearing from family members and friends of incarcerated people that CDCR is gearing up toward involuntary transfers at Quentin and elsewhere, which are (and always have been) their prerogative, and so, these so-called informed consent forms are actually obsolete. Therefore, it is now more obvious to me than ever that CDCR is worried about a monetary damages lawsuit, and with good reason–I expect we’ll see one in the not-too-far future. If so, I doubt that these waivers, given the circumstances in which they are being procured, will even come close to providing the kind of defense that CDCR, or the AG, think it will provide.

More importantly, the virus doesn’t attend the status hearings at the different courts, and follows its own agenda, which is–as it always has been–to invade cells and replicate itself, which makes this transfer agenda even more inappropriate. As of three days ago, every single CDCR facility has a COVID-19 outbreak, which raises the question–how do CDCR officials purport to improve the situation via transfers, and where are they going to shuffle people to? The information I got from Solano, and a conversation with a relative of someone at SATF, have convinced me that the same pathologies that led to the spread of the virus in San Quentin are now in evidence in other prisons.

Which brings me again to the point of carceral permeability. The logic of lawsuits and court rules doesn’t conform to the realities of geography. By their very nature, they deal with “cases and controversies”, not with proactive solutions to rapidly evolving situations. Order a remedy in one prison, and by the time it’s fashioned, the outbreak will quell there and spike in other places. Exhibit judicial caution and give prison officials the choice between transfers and releases (which is, after all, what courts are supposed to do–express restraint) and they will make the wrong choices. Thinking about this remedy regarding San Quentin alone is part of the brief, but in terms of the actual problem, it makes no sense to implement the remedy in isolation from what is happening in other prisons.

Pandemic Food Problems

One of the often overlooked aspects of mass incarceration is that, as Erika Camplin puts it, “we as a nation are effectively feeding around 2 million mouths at least three times over each and every day.” Prison food has always been a problem; we even had a conference about it nine years ago. What I remember from the conference is that the CDCR nutritionist spoke on one of the panels and showed slides of prison meals that looked decent enough; under pressure from audience questions, however, she admitted that the slides were doctored, and then lashed out, “these people are monsters.” The rest of the panelists, most of whom were prison and jail doctors, immediately said, incensed, “that’s a lie.”

The pandemic has let things drop far beneath even that already low baseline. During the big outbreak in San Quentin, kitchen workers became infected and fell ill, which led, for several weeks, to serving the men an extra lunch in lieu of a hot dinner (to make up the missing calories.) We now learn from reports of people inside that the same, and worse, is happening at other institutions.

The email chain in the image above is making the rounds on Twitter; I don’t know who sent it around, but here is the text, reproduced. The printout is stamped as “Pelican Bay State Prison, Security Housing C-8.” The first email in the chain is from a Bryan Price to a Chad Parry, CC’ing a David Barneburg. I looked Barneburg up, and it looks like he’s Associate Warden at Pelican Bay. Price writes:

Hey Chad how’s your night going.

Well as for here, it’s not going to good. The inmate are starting to act out over the food and I don’t blame them. I thought when we cut one of their hot meals like dinner. In the past we have given them two lunches for dinner to make up for the calorie lost. Right now they got six crackers, two cookies, a small bag of pretzels, block of cheese and a drink mix. They also got 1 peanut butter, banana and a jalapeno. It is hard to believe that two of these lunches and the breakfast meal has the calories that is due to them. I the memo it states they will be getting box lunches with fruit, milk and juice.

So my question is, is this right because it does not seem right. The same lunch they saw this morning is the one they got for dinner. Hope there is something we can do. I think it’s going to get really bad really fast around here.

Any help in this matter would be greatly appreciated.

Out of the obvious awfulness of the whole thing, for some reason I find myself stuck on the mystery of the jalapeño. What is someone who can’t cook, and who has no access to vegetables, supposed to do with a single jalapeño? Is it cooked? Canned? Pickled? Frankly, I’m not sure the problem is only or even primarily the calories (snacks, peanut butter, and the “drink mix” probably pack a punch of calories)–the serious problem is the nutritional content, which seems sorely lacking.

Chad’s response:

Hey Bryan, that’s the correct meal. They were supposed to get the extra stuff you mentioned… not sure what is planned for tomorrow.

Kim, anything we can do to improve upon this meal? The fellas aren’t enjoying it much…

Thank you

Several family members and friends chimed in the relevant twitter thread. One person reported that she received a letter from someone at VSP who reported that “they are receiving 8 tablespoons of food per meal.”

I’m unsure whether this is garden variety incompetence or pandemic-related; the dinner shortage mentioned in the first email suggests the latter. This is pure conjecture, but the numbers of infected staff have shot up, which could explain kitchen worker shortage. I’m also unsure who leaked this printout; it features pretty feeble efforts to mask people’s names, but not their emails, so the names were easily readable.