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.

It’s Official: Nowhere in CDCR Is Safe from COVID-19

Today feels like we’ve crossed a new threshold of horror: As of this morning’s update of the official CDCR ticker, every single CDCR facility has a COVID-19 outbreak. Every single facility has new cases from the last 14 days. There are currently 4,763 active cases in custody. So far, 24,716 people–more than a quarter of the current prison population–have contracted COVID-19 behind bars, and 93 people have died in 17 facilities.

Numerous prisons are seeing major outbreaks (more than 50 new cases in past 14 days): CCI (92 new cases), LAC (198 new cases), SAC (103 new cases), CAC (174 new cases), CEN (319 mew cases), CTF (393 new cases), HDSP (464 new cases), KVSP (92 new cases), MCSP ( 469 new cases), NKSP (77 new cases), PBSP (51 new cases), PVSP (699 new cases), SATF (937 new cases), and VSP (339 new cases). There are new outbreaks at CIW (37 new cases–a third recurrence!), CMC (38 new cases), SOL (34 new cases), CCWF (3 new cases), DVI (11 new cases), ISP (12 new cases), RJD (3 new cases–the last prison to see an outbreak), SVSP (27 new cases), SCC (16 new cases), and WSP (22 new cases–a recurrence.)

All facilities have staff cases. So far, 7366 prison staff members have contracted COVID-19 behind bars; 1722 of these are new cases and 2121 are still deemed “active cases.” Ten staff members have died.

Big facilities have cases. Small facilities have cases. Overcrowded facilities (20 prisons are still over 100% capacity!) have cases. Facilities under, but close to, 100% capacity have cases.

I look at this and think of the Attorney General’s stance in the Plata, Von Staich, and Hall et al. cases. “We can safely transfer people; your suggestion that we cannot is not well taken.” Transfer them where?

Nor is testing a silver bullet; it merely helps the analysis after the fact. Mule Creek, which features 469 new cases, has tested 95% of its population. Testing itself, without decisive action, is a diagnostic, not a prevention mechanism.

An acquaintance at Solano prison managed to send me a missive through a common friend. I’ve removed his identifying information, and this is what is happening there:

Current conditions at CSP-SOL

Complaints: 1. Buses have arriving with inmates from prisons where known positive coronavirus cases have been documented.

2. CDCR are not quarantining these inmates as they arrive, exposing the entire housing units to potentially dangerous viruses.

3. CSP-SOL is currently experiencing an outbreak

4. C/O’s are working double shifts some of them, going from an infected building to a non-infected bldg exposing inmate population to higher levels of probable infection.

5. C/O admitted that a staff member was covid positive a d thus potentially started the spread/outbreak.

6. Inmates have been forced to move from one to another to facilitate work assignments or receive a CDCR RVR115, for refusal or asking for a job change.

These issues and there are more, are some of the things the guys want the public to know.

We are given the proper PPE’s (only received them 2 days ago, before that we only had inmate-made masks), it’s just a mess.

And in the face of this, California Attorney General Xavier Becerra, who has been presiding over the state’s outrageous, self-righteous responses to this plight, is rewarded with a cabinet seat–the health seat, in the name of all that is holy?

The California COVID-19 Prison Tragedy, in Four Snapshots

Something is rotten in the state of California. Rotten throughout, from top to bottom. In today’s post I juxtapose for you four pieces from the last couple of days, which illuminate just how much trouble we’re in.

Scene 1: The SATF Horror and the Geography of Prison Remoteness

Throughout the summer, the public gaze was laser focused on San Quentin. There was a good reason for this; at 2,239 cases and 29 deaths, the outbreak at Quentin was the worst COVID-19 outbreak in the nation and the worst medical prison disaster in the country’s history. But as has been the case throughout this ordeal, once attention turns somewhere, the government’s or anyone else’s, the virus has already found opportunities elsewhere. By the time the litigation surrounding the Quentin catastrophe matured into an order and started moving toward fashioning remedies, the pestilence metastasized elsewhere–whether through a careless employee or a botched transfer, we won’t know. The CDCR population infection count shows numerous large outbreaks, to the tunes of hundreds of people, in prisons located in rural areas. Jason Fagone’s recent Chron story turns the focus to the Substance Abuse Treatment Facility (SATF) in Kings County, the largest prison in the state, which is operating at 128% of capacity. Not only is the outbreak there horrible, and has already claimed lives, but the conduct of prison authorities there seems absolutely appalling:

In just the past two weeks, 713 men in custody at SATF [now 851 – H.A.] have tested positive for the coronavirus, according to CDCR’s web tracker, and as of last week, 150 staff members were infected. Half of the facility’s 4,400 prisoners have caught the virus since August. Three have died.

One day last week, when prison staff tried to move a new man into an empty spot in Meyer’s eight-man cell, he got nervous, he said in an interview via JPay, a prison email service. Days earlier, another man sleeping mere feet away from Meyer had developed COVID-19 symptoms and was removed by staff, and Meyer suspected that his new cellmate might also be infectious. Meyer approached the officers’ station and complained, saying he didn’t want to be housed with a potentially contagious person. That’s when he was handcuffed, Meyer said.

Two days ago I talked with Sam Lewis of the Anti-Recidivism Coalition about the possibility of a vaccine for incarcerated populations, and one of the points he brought up was the proximity of San Quentin to white, wealthy Marin County. I think Sam was right to say that Quentin receives an inordinate amount of attention, but I suspect race and class play into this situation in ways that have more to do with political culture, proximity, and opportunity. Quentin is extremely close to the Bay Area, where all kinds of do-gooders like me have easy daily access to the prison; if there’s no traffic, it takes approximately 35 minutes to drive to Quentin from my house. Given that, for decades, prison programming has been slashed–most recently, this was one of the negative effects of the recession–the availability of a cadre of academics and activists as volunteers produces a rich array of programming (go ahead, click on each link, and I could offer more.) Because parole hearings emphasize programming and encourage people to talk in “programspeak”, and because of the paucity of programming elsewhere in the system, people are desperate to come to Quentin and avail themselves of these opportunities as much as they can if they ever want to be approved for parole.

By contrast, California’s other large prisons are located in rural areas, mostly in poor towns that were persuaded to accept prison siting and become a “company town” because of the promise of jobs. These places are not squeaky wheels, and for Bay Area or Los Angeles do-gooders they are difficult to access. For example, during the Pelican Bay hunger strike, my students had to drive 8-9 hours to visit the strikers, which implies huge barriers for visitors without the means to drive or stay at a hotel. These places are not “squeaky wheels”, and it’s quite difficult to get the programming “grease” there. Also, it means that the voices raising serious concerns about the outrages that happen in these rural prisons are far less amplified by voices of high-profile, concerned progressive politicians.

Scene 2: Inaction Figures

The Chronicle is on a roll, continuing with a hard-hitting, data-intensive piece by Nora Mishanec. Mishanec managed to obtain a demographic breakdown of the thousands of people who were released by CDCR since Newsom promised 8,000 releases by the end of the summer. It’s not summer anymore, of course, and even when the plan was proposed it was already underwhelming–too little, too late, too piecemeal, and too restrictive. I am sorry to say that this sad excuse for pandemic relief played out exactly as I had predicted, and please believe me that I take no pleasure in having been 100% right.

This graphic from the Chron story gives you an idea of who was released and who was not. Take a look at the circle in the top left. The vast majority of people who have been released had only months left on their sentence back in early July. It is now early December, and these folks would have gotten out by now anyway–they just got a wee push on the way out the door to hasten their release. This is something that happens all the time in California prisons, pandemic or no pandemic: every month thousands of people churn in and out of the system, the folks whose sentences have ended to be exchanged for folks coming in from jails (The population reduction here is artificial, and stems from the halt of transfers from jails–but the carceral apparatus as a whole is bursting at the seams, and of course now the jails are seeing their own COVID-19 horrors and are grossly over-capacity. Something’s gotta give, and there are already jail lawsuits.) Only 0.8% of the people who were released were deemed “COVID high-risk medical”, when a full quarter of the population on the eve of the pandemic was people aged 50 and over.

Why, you might wonder, are so few of the people who got released in the over-50 bracket (1,390 out of 7483)? The answer is in the bottom right. People convicted of violent crime who, unsurprisingly, serve longer sentences and, also unsurprisingly, are older because of it, are underrepresented. Those are also the folks at highest risk of contagion and serious complications. But this plan was not designed with public health in mind–it was designed to avoid headlines like “Newsom Releases Murderers, Yikes.” And so here we are.

Scene 3: Insult to Injury

If they’re not laboriously and efficiently going over people’s files and releasing grandparents back to their families, what, pray tell, are state officials busy doing? I’m so glad you asked: The best and brightest at the California Attorney General’s Office are busy not only petitioning the California Supreme Court to review the population reduction order in Von Staich and jamming the wheels on hundreds of habeas petitions, they are petitioning the court to depublish the decision itself. Yes, you heard it right. Dozens dead, tens of thousands infected, and the most pressing order of business is to obliterate from bureaucratic memory that there were compassionate, humane, knowledgeable judges, who recognized a human rights crime when they saw one, and acted accordingly.

You are incredulous? I get it. So was I. Here’s the whole thing for you to read.

VON STAICH Request for DePublication by hadaraviram on Scribd

What more is there to say about this? At every junction, when the opportunity emerges to do the right thing, these folks are doing the exact opposite. We are going to pay dearly for this concerted cruelty when the time comes to get buy-in for vaccination (that is, if anyone there might ever see prisons for what they are, which is confined, crowded spaces, and actually prioritize “murderers, yikes.” Want to know why it is important to vaccinate? here’s my op-ed in the Chron about this.) By the time the vaccine comes to the prison gate, people will not believe CDCR that it is in their benefit to take it, and while I find this awful and deeply disappointing, I deeply understand where the suspicion and resentment come from.

Scene 4: No Bad Deed Goes Unrewarded

What is going to happen to all these folks, who have worked so hard for months to keep aging, infirm people languishing behind bars, vulnerable to the pandemic? Gosh, I’m so glad you asked, because California’s AG Xavier Becerra, whose signature decorates everything you’ve seen defending CDCR in courts since March, is being tapped for a position in the Biden cabinet.

Look, I’m not a member of the no-lesser-evil brigade, and in November I cheerfully and without reservations voted for Democrats, even Democrats who have deeply disappointed me, because the alternative was to keep a despotic, sociopathic, semiliterate career criminal in office. For four years I was a vortex of disdain for the repertoire of cruelties of the Trump Administration, and I’m thrilled the people I voted for won. Elections are a buffet at a roadside motel, not a personalized meal. But when you’re handling what we call a “Big Bad” in TV tropes, the other side automatically becomes “the good guys,” and critique of them is muted, or at least softened–even when the courageous leaders of La Résistance forget about the burden of proof or flip-flop about the death penalty. I suspect it won’t be long before we forget how Monsieur et Madame Blanchisserie Française, the delectable taste of Yountville gastronomy still fresh in their mouths, proceeded to close our children’s playgrounds with not a shred of medical evidence connecting them to outbreaks. I get it. We’re grownups, politicians are politicians even when they are generally on the right side, and people should not be expected to be perfect. But I’m frustrated that the nature of California politics creates the illusion that we are a blue, progressive state, in the face of everything that has been going on.

Why is it that we appear so blue when our prisons are such a horror show? My colleague Vanessa Barker offers a convincing explanation. By contrast to the East Coast, or even the Pacific Northwest, California’s political culture is both deeply polarized and populistic. Our red counties, which are, after all, where most of our prisons are, are deeply red; jails there are run by red sheriffs and prisons by red CDCR officers. A lot of decisionmaking happens on a local level. Even when a prison is located in a blue county, such as San Quentin in Marin, prison officials refuse to collaborate with county health officials, citing jurisdiction. Moreover, we tend to legislate our criminal justice arena via referendum, which creates a lot of the horrors that I recount in Chapter 2 of Yesterday’s Monsters: a salience of a particular class of victims as the moral interlocutors of criminal justice, inflammatory rhetoric, and a lot of money backing up fear and hate.

The consequence of this is that our elected officials, who are so right on so many things (immigration, healthcare, climate action) are so often so wrong about criminal justice. Some of what we have going on is so deeply ridiculous–to name just one example, moratorium on a death penalty that should have been abolished eons ago, and because of populist stubbornness we can’t reap the huge economic benefits of abolition–and it is difficult to explain to lefty friends on the opposite coast how come people who appear to be such heroes on the national stage act in such villainous ways on the local stage.

This week, I recommend that you keep your gaze on some of the newest outbreak sites. Beyond SATF, there are also serious outbreaks in PVSP (643 new cases), HVDP (473), MCSP (416), CTF (284), and VSP (298). Dozens of other facilities have “only” dozens of cases. The only CDCR facility with no cases at present is RJD. The death toll systemwide has risen to 90.