Category: California Justice Issues

State issues in the correctional system.

Wonderful Review of Yesterday’s Monsters in the SF Chronicle

I’m very happy to share a great review of Yesterday’s Monsters written by Bob Egelko of the San Francisco Chronicle.

Review: ‘Yesterday’s Monsters’ shows parole system’s flaws in Manson cases

Bob Egelko September 30, 2020 Updated: September 30, 2020, 7:28 am

Susan Atkins, convicted of eight murders as a member of Charles Manson’s “family,” was dying of cancer when she made her 18th appearance before the California parole board in September 2009, after nearly 40 years in prison. Bedridden for 18 months and barely able to speak or move, she remained largely silent while her husband and attorney, James Whitehouse, asked the board to release her to a hospice, which he said he would pay for.

In response, relatives of Manson’s victims recalled the horrors of the 1969 killings. A Los Angeles prosecutor, Patrick Sequeira, called the family a “criminal terrorist organization” and said Atkins “has tried to minimize her involvement in the crime.” The board swiftly decided Atkins “poses an unreasonable risk if released” and denied parole for at least three more years. Atkins, 61, died of brain cancer 22 days later.

The incident is the most graphic but far from the only illustration of a malfunctioning system in “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” by Hadar Aviram, a professor at UC Hastings College of the Law in San Francisco who specializes in criminal law and civil rights.

The state Board of Parole Hearings shows “a clear preference for looking back and discussing the past (rather) than for the future, sometimes astonishingly ignoring terminal illness and old age when discussing future risk,” Aviram writes. And that, she notes, is the opposite of its assigned task of determining whether a prisoner who has served many years for past wrongdoing can now be safely released.

The book is a study, not an exposé — there are nearly 800 footnotes — but its language is everyday and accessible. Discussing inmates’ need to display “insight” into their crimes to be found suitable for parole, for example, Aviram writes, “the Board continuously moves the goal posts.” It’s aimed at two sets of readers, those who care about the workings of the criminal justice system and those with enduring memories of the Manson nightmare (this reviewer fits both categories).

Convicted mass murderer Charles Manson listens to the panel at his 1986 parole hearing in San Quentin prison.Photo: Eric Risberg, Associated Press 1986

It may not be fair to judge any criminal justice process by its response to extremes, and the Manson cases are about as extreme as they come. For reasons that remain unclear — some say Manson wanted to start a race war, others simply describe a cult obsessed with drugs, sex and violence — he ordered seven of his followers, including Atkins and two other young women, to kill nine people in three gruesome attacks in the Los Angeles area in July and August 1969. After the fatal stabbing of actress Sharon Tate, Atkins scrawled “PIG” in Tate’s blood on the front door of the home.

Manson, Atkins and three others were sentenced to death in 1971. But the state Supreme Court overturned California’s death penalty law in 1972, and all death sentences were reduced to life in prison with the possibility of parole; only under the subsequent law, passed by legislators in 1977 and expanded by the voters in 1978, were capital cases made punishable solely by death or life without parole.

Meanwhile, lawmakers and Gov. Jerry Brown, serving the first of his four terms in office, were remaking California’s sentencing and parole structure.

Discussing inmates’ need to display “insight” into their crimes to be found suitable for parole, for example, Hadar Aviram writes, “the Board continuously moves the goal posts.”Photo: Jana Asenbrennerova

Previously, nearly all crimes were punishable by a range of terms — 1 to 5 years, for example, or 5 to 20 — and a parole board that included psychologists and other professionals decided when a prisoner was fit for release. The system came under attack from both the left, as racially prejudiced, and the right, as unduly lenient, and was replaced in 1977 by “determinate” sentences for most crimes — two, four or six years, for example, with the sentencing judge making the choice.

Only “lifers,” those convicted of murder or a few other crimes, such as kidnapping, would now appear before the parole board, after a designated period, to seek their release. And board members were appointed by the governor, who generally chose law enforcement professionals skeptical of claims of rehabilitation.

The parole board’s occasional decisions to approve release were made subject to the governor’s veto by a 1988 initiative. A 2008 initiative called Marsy’s Law requires inmates who are denied parole to wait 15 years for their next hearing — five times the previous interval — unless the board finds “clear and convincing evidence” to justify an earlier hearing.

“Yesterday’s Monsters” focuses on a Board of Parole Hearings that is supposed to look forward, not backward. The state Supreme Court underscored that mission in a 2008 ruling that prohibited both the board and the governor from denying parole based solely on the gruesome nature of the crime — though, in a frequently cited exception, the court said the board could consider an inmate’s lack of “insight” into the offense.

Participants in the Manson family hearings, in transcripts quoted in the book, have focused largely on the past — understandably, in light of the events that gave rise to the hearings.

In 2013, Debra Tate speaks about her sister, actress Sharon Tate, who was killed by the Manson family, during a parole hearing for former Manson family member Leslie Van Houten at the California Institution for Women in Chino.Photo: Nick Ut, Associated Press 2013

At one hearing for Patricia Krenwinkel, Aviram says, prosecutor Sequeira declared, “I think if she had true remorse and she truly understood her crimes and the horrific nature of it, she wouldn’t be here at a parole hearing. She would just accept a punishment.”

Relatives of the victims were equally unforgiving.

“There are eight people that lie in their graves who remain unchanged, unrehabilitated, unparoled,” Anthony Demaria, a nephew of murder victim Jay Sebring, said at Krenwinkel’s 2011 hearing. “I beg the board to consider parole for Patricia Krenwinkel only when her victims are paroled from their graves.”

At another hearing, board members asked Krenwinkel why she wasn’t attending drug-treatment programs and shrugged off her explanation that her high-security custody barred her from the nighttime classes.

At a 1981 hearing, the board was unimpressed by ex-Mansonite Bruce Davis’ leadership position with a Christian counseling group in prison. One board member, Aviram notes, said Davis had merely switched his allegiance from “one god-like figure to another.”

When Manson follower Leslie Van Houten appeared before the board in 2013, Aviram says, she had a strong record of participation in prison rehabilitation programs, with a few minor violations, the last one in 1981. The board denied parole on the grounds that she lacked insight into her life before imprisonment: “You need to demonstrate what made you that person to engage in those acts so long ago.”

Three years later, with Van Houten’s record substantially the same, the board recommended her release but was overridden by Brown’s veto, events replicated under Gov. Gavin Newsom in 2019. Steve “Clem” Grogan, a relatively minor participant in the crimes, was paroled in 1985. Manson, denied parole at 12 hearings, died in prison in 2017 at age 83. His other co-defendants remain behind bars.

In 2013, Leslie Van Houten appears during her parole hearing, with her attorney, Michael Satris (left). Parole was denied.Photo: Nick Ut, Associated Press 2013

In one sense, the timing of the 1969 murders spared Manson and his cohorts from more severe punishment. Had they committed their crimes a decade later, some of the Family almost certainly would have been executed, and others would have had no opportunity for parole. And it seems safe to say that few Californians who remember the killings will shed tears at the prospect that Manson’s followers who are still in prison will probably die there.

But that doesn’t contradict the message that Aviram convincingly presents: If the parole system had worked as it was supposed to, based on the law and the policies underlying it, most of the participants in the murders, other than Manson himself, eventually would have been released.

The Board of Parole Hearings, the author concludes, “should not be the arbiter of moral goodness.”

I’d like to have seen a bit more context, comparing these parole decisions to others here and elsewhere, and perhaps some background on the parole board members, sometimes identified only by last names in the book. But as California rethinks the roles of imprisonment and parole in this COVID-19, post-Three Strikes era, “Yesterday’s Monsters” has some lessons for today.

“Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole”
By Hadar Aviram
(University of California Press; 294 pages; 29.95)

Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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It’s Not Over: Alarming Rise in New Cases in CDCR

To read CDCR’s response briefs in the Marin cases and in Von Staich, you could think that the pandemic is dwindling in prison. The opposite is true: the last two weeks have seen a spike in new COVID-19 cases in CDCR. The graph above is based on the daily CDCR data (Chad Goerzen and I code them daily.)

Here are a few other things we’ve learned:

Overall number of cases since the beginning of the pandemic stands now at 13,155 – nearly 14% of the total institution population, which as of Wednesday of last week was 95,886. This is a bit misleading, as some of the people who became infected have been released. But even with the higher population before the releases, this is a shocking percentage. By comparison, the rate of all-time infections for the entire state is 2009 per 100,000 people (approximately 2%). People in prison have been seven times as likely as people in the state to contract COVID.
COVID-19 is more lethal in prison than outside prison. Statewide, we’ve had 38 deaths per 100,000 people; in CDCR, more than twice that: 60 deaths for slightly less than 100,000 people. And this is before adjusting for age.
If you look only at the new spike in cases in the last 14 days, infection rates are even worse in prison. In CDCR facilities, it’s 17.6 per 1,000 people; in CA, it’s 1.3 per 1,000. For reference, at its peak, the CA infection rate was 3.3 per 1,000.
Generally speaking: My mentor and friend Malcolm Feeley made a shocking rough calculation. If we totaled up the population in archipelago of America’s prisons and considered them a country, both the number and rate of COVID-19 infections and deaths would place this “prison country” in the top twenty five percent of all countries in the world in terms of both absolute number of cases and deaths, and rate of deaths. By Malcolm’s rough count, this would put the “prison country” at around number 53 in over 200 countries.

We’ve also learned where the worst new outbreaks are:

FSP (Sacramento) – 585 new cases in 14 days
ASP (Kings) – 260 new cases in 14 days
CRC (Riverside) – 269 new cases in 14 days
CVSP (Riverside) – 182 new cases in 14 days
SATF (Kings) – 148 new cases in 14 days
VSP (Madera) – 77 new cases in 14 days

As you can see, this clusters mostly around Kings and Riverside Counties, which are, respectively, #2 and #14 in new cases per the L.A. Times counter (whether there’s a correlation, and what the timing is like, is a complicated question.) The biggest spike in new cases is in Imperial county; we should note that Riverside County prisons are located almost on the border with Imperial county.

This trend is more generalizable. Here’s a snapshot of our coded data, in order of outbreak seriousness in counties. You’ll see a correlation, to the tune of 0.588 (pretty good!) between outbreak in the county and an outbreak at a prison located either in the county or in a neighboring county near the county border.

As I’ve explained before, we’re not telling an airtight causal story here. All we are doing is dispelling the notion that locking people up is somehow keeping the surrounding county safe.

Homeopathic Criminal Justice Reform and Its Discontents

In my previous writings about the COVID-19 prison disaster (especially here and here), I relied on Ben Bernanke’s famous “triggers and vulnerabilities” model. I explained that the virus happened on a fertile Petri dish of neglect, both preceding and following the Plata litigation. But it’s just occurred to me that there’s a better way of explaining why the problem lies not only with the prison healthcare crisis that preceded Plata, but also with the Plata remedy itself: Criminal justice reforms in CA (through litigation as well as legislation) are often like homeopathic remedies: a low-concentration of the exact problem they purport to solve. The crisis we are facing now is merely an exaggerated example of the futility of homeopathic criminal justice reform.

Homeopathy, the creation of Eighteenth-century physician Samuel Hahnemann, follows an idea known as the Law of Similars – the idea that, if exposure to substance X causes symptom Y in a healthy person, substance X can cure symptom Y in a person where they occur naturally as part of a disease process. For example, exposure to onions causes an itchy, stinging sensation in the eyes; therefore, the homeopathic remedy for hay fevers or head colds accompanied by such sensation is a low-concentration formula of onion.

I’ve come to see criminal justice reform initiatives in California as low-concentration forms of the underlying problems they purport to solve. The COVID-19 “relief” policies sold to us by the Governor and CDCR are a case in point.

The problem we had to solve was a giant, bureaucratic correctional monster, which we could not wrangle. The Plata solution: we made it more complicated by breaking it into 59 monsters that have an equally unwieldy, though different, structure. We’re now dealing with the ramifications of this homeopathic preparation: inscrutable BSCC reports on jails alongside journalistic exposés of serious outbreaks; four months of delay before numbers were even available; traffic between jails and prisons that is unpredictable and difficult to regulate.

The problem we had to solve was the rate (and percentage of the general prison population) of aging, infirm people serving interminable sentences. The Plata solution, the Prop 47 solution, the Prop 57 solution: reinforce the notion that these people belong in prison by designing all releases around the issue of nonviolent offenders. While removing people from prison (diluting them) this, ironically, increases the concentration of aging and infirm people in prison so that they are the ones exposed to healthcare scandals.

The problem we had to solve was a bloated correctional apparatus, whose provenance was decades-long oversensitivity to victim pressure groups advancing a monolithic vision for alleviating their plight: Monstrous sentencing policies. The solution we’ve devised for COVID-19? Anticipate the sensitivity and address it by avoiding releases of people convicted of violent crime.

The problem we had to solve was a “correctional free lunch”, in which people in the community were largely unaware of the costs of our correctional system because these were concentrated in large facilities in rural and remote areas. The solution? Now we encourage community-prison alienation through jurisdictional jockeying for position between county health officers and the prisons that are literally located amidst these counties and irrational fears that releasing people will infect the community (the opposite is true: incubating the disease in prisons is much more risky for communities.)

As we’ve seen in the COVID-19 release plan (before and after its implementation), and just like homeopathic formulas, diluting the problem results in obtaining a placebo at best, and a worsening of the problem at worst. The logic of the Law of Similars is supposedly an appeal to the idea of a “natural law” principle, but actual science refutes this: what makes sense is to treat an ailment with an antidote, not with a diluted version of the same ailment. The antidotes are obvious to me: Thin out the monster by locking fewer people up in fewer places. Do not lock up aging, sick people. Give victims/survivors better roles than the world curators of what should happen to offenders.

Which brings me to why I think the analogy matters. As I’ve explained elsewhere, I don’t think this is some evil, sadistic ploy at work here. I think what’s stopping state and prison officials from applying the antidotes is institutional intransigence and fear. Homeopathy itself was borne of Hahnemann’s disgust with the medicine practiced during his era: bloodletting, leeching, purging, etc. By contrast to these harmful measures, the delicacy of the diluted solutions was mellow and reassuring. Here, too, there’s immense fear of what would happen if drastic measures were taken. I saw this logic at the recent federal Plata hearing (though, admittedly, the PLRA plays an important role here, too) and also at the two state courts. We don’t like drastic solutions and purging; better to drink a Bach Flower distillation.

Ashley Rubin’s forthcoming book The Deviant Prison looks at why the Pennsylvania incarceration model, practiced at Eastern State Penitentiary, persisted long after it was proven not to work. I see the same form of institutional obstinance at work here. And, by contrast to Eastern State, this is perpetuated because homeopathic criminal justice reform has become the habitual, accepted mode of doing things. It might be sobering to realize that homeopathic preparations are the only category of alternative medicine products legally marketable as drugs. Quackwatch explains that this situation is the result of two circumstances. First, the 1938 Federal Food, Drug, and Cosmetic Act, which was shepherded through Congress by a homeopathic physician who was a senator, recognizes as drugs all substances included in the Homeopathic Pharmacopeia of the United States. Second, the FDA has not held homeopathic products to the same standards as other drugs. Today they are marketed in health-food stores, in pharmacies, in practitioner offices, by multilevel distributors, through the mail, and on the Internet. I think that our habituation to homeopathic criminal justice reform has created a similar situation, where we are willing to accept these placebo solutions because the ideas that drive both the problems and the solutions have been so hammered in, that we can’t imagine anything else.

How Bar Applicants with Criminal Records Experience the Moral Character Determination

My paper “Moral Character: Making Sense of the Experiences of Bar Applicants with Criminal Records” is out from the Manitoba Law Journal. It is an interview-based study of bar applicants, bar officials, and ethics attorneys, and the way they experience and process their pasts and presents via the California Bar’s moral character determination. The journal is open source, so you’re all welcome to read the full thing (which mostly speaks through my interviewees’ voices) but for those pressed for time, here are just a few of my findings:

The most dominant emotion that arose in the interviews was shame, stemming from the juxtaposition of my interviewee’s pasts and their elite professional futures. My interviewees, most of whom had managed to
morph their self-identity to conform to their new status as candidates for the legal profession, were reduced by the process into their former shoes as convicts and/or prisoners.
The bar process exacerbated the shame. The stringent requirements of accuracy in disclosure are obtuse to the difficulties of recreating unsettled adolescent pasts, and the choreography of the hearings (no support for the applicants, cross examination styles, etc.) was described by six of my interviewees, without any prompting from me, as “the worst experience of my life.” This, mind you, included people who had done time in jail and/or juvie.
There was a striking contrast between the Bar’s framing of remorse as monolithic and absolute and the much more complex ways in which people described their feelings about their past crimes. The certainty that bar officials can detect insincerity is not borne by empirical science, which casts very serious doubt on anyone’s ability to tell true from false remorse. Moreover, the mediocre community theater aspect of the hearings does not leave room for people to discuss their experiences with true insight and nuance, and they know this, and it frustrates them. Moreover, cultural performance/presentation stands in the way of communicating remorse in a way that will be properly “read” by officers of a largely white, elite, male profession.
The demographic effects of professional exclusion from the bar are largely unknown because, until recently, the bar didn’t even collect data on the race/class of people and how they fared in the moral character process (we do have evidence that black male lawyers are significantly discriminated against in disciplinary proceedings.) White applicants felt that their deviance and alienation was unseen because it wasn’t part of the usual demographics boxes; applicants of color felt that they were doubly deviant and “otherized.”
There is a lot of hubris, which echoes the hubris I found when I studied parole hearing, in the assumption that the key to rehabilitation is the performance of psychic excavation in front of a panel of strangers. This is nonsense from a research standpoint. We know that rehabilitation is what rehabilitation does: people who are holding down jobs and going through law school in good standing are great prospects for professional success–and they don’t necessarily overlap with people who give a convincingly weepy performance in front of 4-7 people in suits. Specifically, the bar ignores established, robust findings from life-course criminology according to which just going through and finishing law school is in itself a strong indicator of desistance.
The bar frequently diagnoses substance abuse issues and forces people through substance abuse programs. The interviewees themselves report that they found some value in the programs even though they didn’t actually have a substance abuse problem. I don’t know whether this reflects people in denial about their problems, overcautiousness on the part of the bar, or both.
Even as people experience joy and relief at their eventual admission to the bar, the experience continues to haunt them and adds stress to their professional and personal lives. The extent to which people are open about their backgrounds after their successful admission to the bar varies widely, with public interest lawyers much more open and corporate lawyers much more circumspect.
What the bar views as uniformly negative baggage is actually a rich and important asset to the profession. My interviewees talked about their experiences as a catalyst for their decision to pursue justice for clients and about their deep understandings of injustice and oppression. But treating criminal records as liabilities, rather than resources, we are missing on an important opportunity to make the bar more receptive and service-oriented to clients who would greatly benefit from their lawyers’ empathy and compassion, through professional diversification beyond the usual census boxes and through education of the profession as a whole.
Even though my interviewees regarded their law schools–and especially their faculty–as sources of empowerment and good advice, there’s more law schools can do. We can alert people, in law school application forms, that accuracy in describing their backgrounds is key to being regarded as honest and forthright later, in the bar admission process. We can give people access to their admissions package when they prep for the moral character. And we can devote a smidgeon of the immense energy we’ve devoted to lowering the bar passage rate to advocating for our students with criminal records.

Gov. Newsom Clears Path for Incarcerated Firefighters to Work as Firefighters upon Release

FOR IMMEDIATE RELEASE:	Contact: Governor’s Press Office
Friday, September 11, 2020	(916) 445-4571

Governor Newsom Signs Bill Eliminating Barriers that Block Former Inmate Fire Crews from Becoming Career Firefighters After Serving their Sentences

OROVILLE – At the site of the North Complex Fire today, Governor Newsom signed AB 2147, a bill that eliminates barriers that prevent former inmate fire crews from pursuing a career as a firefighter once they served their time. Authored by Assemblymember Eloise Gomez Reyes, the bill allows nonviolent offenders who have fought fires as members of the California Department of Corrections and Rehabilitation’s fire camps to have their records expunged, paving the way for individuals leaving fire camps to seek meaningful employment and further training.

“This legislation rights a historic wrong and recognizes the sacrifice of thousands of incarcerated people who have helped battle wildfires in our state, and I would like to thank the Legislature for passing this bill,” said Governor Newsom.

“Signing AB 2147 into law is about giving second chances. To correct is to right a wrong; to rehabilitate is to restore,” said Assemblymember Gomez Reyes. “Rehabilitation without strategies to ensure the formerly incarcerated have a career is a pathway to recidivism. We must get serious about providing pathways for those that show the determination to turn their lives around.”

Despite their experience and qualifications, many formerly incarcerated firefighters struggle to obtain licenses and employment due to their criminal records. Under AB 2147, formerly incarcerated individuals can file a petition in county court to expunge their records and waive parole time, which will open career pathways in emergency response and a variety of other disciplines.

It’s September. No Sufficient Recourse from the State. Only Remedy is in Court.

Remember when, on July 10, Gov. Newsom announced the release of up to 8,000 people by late August? And remember when I said it was too little, too late, too reactive, and too obsequious to public opinion?

It’s now mid-September, and it’s time to see these releases. The picture of occupancy in California prisons as of yesterday’s count (the weekly count happens on Wednesday) is at the top of this page. If you wish to look at CDCR’s original data, from which I compiled the above, it’s right here.

We’ve seen an overall reduction to 96,827 total–here’s a great piece by the Chron’s Bob Egelko to give you some historical perspective on how we got there–but how that affects your prison experience or your exposure to COVID depends on where you are. More than half of the CDCR institutions are still in the red with above-capacity populations. Others are hovering at or neat 100%, which is a big improvement, but still very crowded and doesn’t do much for social distancing. And, for San Quentin and some other prisons, the reduction to 100% will not offset the basic architecture of the prison, which is dilapidated and lacks ventilation. Moreover, consider the bottleneck in county jails, and the extent to which transfers from jails might offset this population reduction.

State courts (and federal courts, though their hands are largely tied due to the limitations of the Prison Litigation Reform Act) must act to provide relief. As you see, there’s no safe destination.

Oral Argument in In re Von Staich

“There’s no need to act hastily.” –CDCR counsel Kathleen Walton
“Yes there is. Yes there is. There is a need to act hastily.” –Justice Kline, CA 1st District Court of Appeal
Oral Argument, In re Von Staich on Habeas Corpus, September 8, 2020

Today, the First District Court of Appeal heard oral argument in In re Von Staich, the San Quentin COVID-related habeas case. The hearing opened with a legal debate on whether CDCR, who disputes the declarations and reports made by physicians about the conditions at San Quentin, should have provided actual evidence to refute these reports. CDCR representative Kathleen Walton argued that the habeas rules did not require her to provide these facts, and pressed the court for an evidentiary hearing; Brad O’Connell, for the petitioner, argued that CDCR made no attempt to plead the facts or meet them at all. Justice Kline characterized the prison’s response as “conclusionary statements, not facts”, and rejected CDCR’s argument that the issues they briefed on (whether CDCR provided adequate cleaning, sanitizing, masks, continuation of of holding petitioner Von Staich with other inmates, whether COVID is still spreading at the prison, etc.), were the focus of the case. “What we believe this case is about”, said Justice Kline, “is whether there is persuasive evidence that the court must do what the Plata court cannot do, which is to reduce population of San Quentin to a level that can permit the administration of social distancing within that prison.”

After confirming that CDCR can, indeed, release people serving life with parole, and discussing the legal mechanisms to do so (including the Governor’s emergency authority to release), much of the discussion consisted of CDCR peddling various falsehoods and the Justices not having it. At some point, Ms. Walton intimated that they estimate that some of their vigorous efforts to contain COVID in prison were hindered (they don’t know to what extent) by “inmates refusing to cooperate”, including testing and reporting symptoms. Justice Kline countered with the possibility that people were disincentivized from cooperating because the prison relied on spaces with a punitive connotation (solitary confinement cells) for the purpose of medical isolation (a problem pointed out in the AMEND report and in our Amicus brief.) This struck me as a problem that correctional health professionals should have perhaps taken into account *back in March* when they were repeatedly warned of outbreaks in prison. Fancy that, prison health officials having to consider the possibility that people might try to avoid being transferred to solitary!

Discussion then turned to release policies, with Justice Kline extensively mentioning our brief, which highlighted the most obvious demographic for successful releases: aging people doing long stints for violent crime. The AG representative responded that the petitioner in this particular case was judged to be “moderate risk.”

The next topic on the table was, again, the argument that the court was an inappropriate forum, and somehow “duplicative” of the Plata litigation. Justice Kline explained: “You keep making arguments that assume we have the same interests as the federal court. We are not being asked to evaluate the quality of care and attention to covid they are providing. [The federal courts] are looking into that.” To top the outrage, the CDCR representative tried to spin Judge Tigar’s Plata stance as “he didn’t find an Eighth Amendment violation.” Justice Kline wasn’t having any of it and responded that it is a matter of public knowledge that Judge Tigar *urged* state courts to do something because the PLRA stopped him from acting. In short, said Justice Kline, the COVID crisis at Quentin is a state prboelm, happening at a state department of corrections, which is the duty of state courts to address–in particular at Quentin, which is unique in being the system’s oldest and most dilapidated prison.

Justice Stewart then challenged the CDCR representative, quoting our argument in our Amicus brief that they have basically arrived at each of the three courts handling these lawsuits and argued it was not the appropriate forum. The CDCR representative, in turn, tried to harmonize their position by creating a hierarchy of sorts between the different litigation efforts.

Even though this was, overall, a good day for the petitioner, the court did press petitioner’s representatives on the appropriate remedy. Issuing an order to release 50% of the prisoners, said Justice Kline, is “something I’m not sure I’m willing to do. . . not confident that my court has the ability.” Indeed, the role of the appellate court might be limited to assessing whether the current conditions at Quentin allow the social distancing necessary to stop the spread in that facility, and to put in some guidelines about particular issues that would apply across the board. Justice Kline also commented that the lawsuit has already resulted in a benefit to Von Staich himself; he’s been isolated and no longer as exposed to COVID as he previously was. In light of these issues, the question to petitioner’s attorneys was, “What would you have us say?” The response from Richard Braucher (for the petitioner) was that the only ways to reduce the population at Quentin were via release or via transfer.

Which is where the argument for petitioner touched on some real talk. The elephant in the room, of course, is the rise in cases at other institutions not at stake in this lawsuit. Petitioner’s representative specifically mentioned the situation at Avenal, which has become dire in the last few days, and is currently the worst COVID Petri dish in the state. Here’s the picture there:

We’ve been tracking the CDCR prisons as well as CA counties for months now, and I should probably say that I’m not at all sure whether this is a third outbreak or the continuation of the second one; testing has been sporadic and erratic and basically reflects Trump’s philosophy of “no testing –> no cases.” Nonetheless, it indicates active disease, and it’s not the only place with hundreds of cases. Folsom is doing abysmally as well:

The Court, however, expressed the need to restrain the extent of their inteference with prison business via a direct release order. They pressed petitioner’s representatives on this point, and I think I would have argued that CDCR *needs* help and guidance from the courts because it had *ample* opportunity to do the decent thing and didn’t do so. Even the current CDCR plan is dated, inadequate, targets the wrong people, and we now hear will take the better part of a year to implement, which will come woefully late for the folks who will get sick or even die in the interim. That launched a discussion of how petitioner’s counsel would craft the priority of releases, to which they replied that the two lynchpins of the policy should be age and medical condition.

This opened the door to some breathtakingly cynical takes from the CDCR representative, the gist of which was that there was “no need to act hastily”–presumably because the urgent call to release 50% of the people in prison happened before the reductions in population and because now, after so much damage has already been done, they’re implementing some new program for sanitation and PPE equipment. Basing an argument that no remedy should be offered on the fact that the harm’s already been done was pretty much what I expected them to argue; CDCR has maintained that they are winning the fight against the virus, when in fact the virus has already won and continues to win, again and again, in prisons where COVID was thought to have abated. Justice Kline responded from the heart: “Yes there is. Yes there is. There is a need to act hastily.” People have gotten sick and died, he said, and we must ensure that no more of this happens. We now wait to hear what the Court will decide.

Brief on Behalf of Amici Curiae Filed in Von Staich, and an Extra Helping of Cruelty

Today I submitted an Amicus Curiae brief on behalf of the ACLU of Northern California and eighteen criminal justice scholars in In re Von Staich, another San Quentin-related COVID-19 relief case pending before the Court of Appeal. You can find the brief here:

AmiciCuriaeBriefVonStaich.pdf by hadaraviram on Scribd

Part of what I discuss in the brief has to do with CDCR’s evasive maneuvers. There are now three COVID-19 prison cases pending before the courts: Plata v. Newsom in federal court, the Marin County consolidated cases, and Von Staich. In each of these cases, the Attorney General representatives are claiming that the court is not the appropriate forum for handling the matter. Not only does this argument lack legal merit–judicial review is part and parcel of the struggle in prison conditions cases, and people are expected to exhaust state remedies before going federal–it is also a cynical evasive maneuver, designed to put off resolution in these cases until people either get well on their own or die. Indeed, at a status conference I attended last week, the AG representative led with the argument that there’s no longer a problem at San Quentin because the rates of new cases are slowing down. I cannot emphasize enough how misguided this line of argument is. San Quentin is not winning the battle against COVID-19. The virus has won–it’s infected almost all the available hosts, two thirds of the prison population, and killed 26 people–and will win again if there’s a repeat outbreak and no measures are taken to prevent it, as it has in five other prisons so far: Avenal, CIW, Corcoran, LAC, and ISP.

It may be that I’m feeling especially livid about this having read Jason Fagone’s story in yesterday’s Chron, according to which grieving relatives of incarcerated people who die of COVID get, in addition to their grief and anger, a cremation bill for $900:

Since the start of the pandemic, 54 incarcerated people have died of COVID-19 in California’s 35 prisons, and even though the deceased were in state custody until they drew their last breaths, the state expects their loved ones to pay burial costs, which can run into the thousands of dollars.
Families and advocates for incarcerated people say the policy is not only cruel, it discriminates against those without means to pay the sudden expenses. And with death numbers rising in the state prisons, the issue isn’t likely to go away.
“It’s a pretty disgusting policy,” said attorney Michael Bien, who represents tens of thousands of California prisoners and knows families struggling to scrape up money to bury incarcerated loved ones felled by the virus. He said the state has a moral duty to pay for a basic burial or cremation of people who die in their custody.
“This is basic human decency here,” Bien said, emphasizing that the financial burden is falling not on those convicted of crimes but on their “children and wives and moms.”

I wonder if CDCR also charges the families for the burial of incarcerated firefighters who are risking their lives to save my life and yours as I type this.

litigation

Nov. 2020 Ballot Endorsement: Yes on 25

Once upon a time, I was at a quantitative research conference, in which I was assigned to comment on a paper by two economist colleagues, Frank McIntyre and Shima Baradaran. They ran the numbers on bail, detention, and pretrial release, and found that, when controlling for severity of the offense and for criminal history, there was no racial discrimination in these pretrial decisions. The math was impeccable–far above my paygrade–because Frank and Shima are excellent at what they do. Their findings were deeply demoralizing: because race is so deeply baked into the American way of life, it turns out that people of color commit more of the kinds of offenses that land them in jail pretrial–either because of pretrial detention or because of bail amounts they can’t pay. It’s one of many examples in which well-intended efforts to scrub out race fail because of its protean quality: you hide it here, it pops up there. Yes, people of color do commit homicides and other violent crimes with more frequency than white people, and this happens for the same reason that they get more frequently arrested for the drug crimes they do not commit with more frequency: systemic racism. If we can’t address basic issues of deprivation, neglect, intergenerational poverty, and lack of opportunities for people of color and in low-income neighborhoods–crime will persist for the same reasons that criminalization persists.

This is the basic issue undergirding the debate about Prop. 25: In a world plagued by systemic classism and racism there are no good choices, but some are better than others. Prop. 25 invites us to affirm a reform adopted by the California legislature two years ago, which has not yet gone into effect: the elimination of cash bail. Lest you be confused, know that a “yes” vote affirms the reform and rejects cash bail; a “no” vote rejects the reform and keeps cash bail in place.

Under a cash bail system, the judge typically looks at a bail schedule–a “price list” that attaches monetary amounts to offenses based on a crude severity scale. The price listed for the offense with which you were charged is your bail amount. Since this is not the kind of money most people have available, there’s a workaround: the bail bonds industry. The defendant or their family pay the bail bondsman a nonrefundable amount, typically a tenth of the bail amount, and the bail bondsman essentially assumes the risk of absconding (“jumping bail”) or reoffending vis-á-vis the court. The existence of this industry negates any risk-based element that the cash bail system might have, because the person doesn’t actually bear the risk of their own pretrial behavior. Worse, as per this amazing exposé by my colleague Josh Page, the predatory bail bonds industry essentially feeds off the sacrifices and risks of women of color, who pay the premiums and co-sign the bonds. Even the amount owed to the bail bondsman is far more than many families can afford, which is why poor people who are at low risk of absconding or reoffending remain behind bars, as my colleagues Hank Fradella and Christine Scott-Hayward explain in their book Punishing Poverty.

The 2018 reform sought to replace this unfair system, which explicitly locks people up pretrial because they are poor, with a risk-based, no-cash model. The judge would use a risk-assessment tool to calculate the risk of absconding and reoffending and decide on release and limiting conditions accordingly.

Because cash bail is so atrocious, it is difficult to find a “no on 25” argument that isn’t equally atrocious (“people have a right to pay bail” takes the cake–I swear it’s in the voter brochure), but there is one that has superficial appeal: risk-assessment algorithms, even when they don’t explicitly factor in race, can factor in variables that closely correlate with race (including, for example, one’s arrest history) and thus exacerbate racially discriminatory outcomes. In other words, we are replacing the existing system with something that might be just as discriminatory, made worse by the facade of statistical/actuarial neutrality.

The problem with this seemingly appealing argument is that it completely misses the point of why race correlates with these race-neutral variables in the first place. My colleague Sandy Mayson has a fantastic paper, aptly titled “Bias In-Bias Out”, in which she explains:

[T]he source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology. The deep problem is the nature of prediction itself. All prediction looks to the past to make guesses about future events. In a racially stratified world, any method of prediction will project the inequalities of the past into the future. This is as true of the subjective prediction that has long pervaded criminal justice as of the algorithmic tools now replacing it. What algorithmic risk assessment has done is reveal the inequality inherent in all prediction, forcing us to confront a much larger problem than the challenges of a new technology. Algorithms shed new light on an old problem.
Ultimately. . . redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk. [C]riminal law and policy should, first, more clearly delineate the risks that matter, and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion—in which case they cannot justify state coercion. To the extent that we can reliably assess risk, on the other hand, criminal system actors should strive to respond to risk with support rather than restraint whenever possible. Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support.

In other words, the algorithm is not “racist” in itself, and it can’t “scrub” racism out of the system. It reflects a racist reality in which, for a variety of systemic, sad, and infuriating reasons, people who are treated like second-class citizens in their own country commit more violent crime. In fact, the same problem is baked into Frank and Shima’s findings about the existing cash bail system: At the conference, our colleague W. David Ball, who was in the audience, astutely pointed out that the outcome was pretty much to be expected given the fact that, in California as in many other states, judges make pretrial release decisions on the basis of bail schedules–“price lists” that attach monetary amounts to offenses based on a crude severity scale. The overrepresentation of people of color in homicide offenses and other violent crime categories is an inconvenient truth for progressives–look at the report of the National Academy of Sciences on mass incarceration and at the evasive rhetorical maneuvers they use when they talk about this. Unfortunately, it is true, and as I explained above–the reasons why more African American people commit more homicides than white people are the same reasons why they are arrested more frequently for the drug offenses they don’t actually commit more than white people: deprivation, neglect, lack of opportunities, dehumanization and marginalization on a daily basis.

When you vote yes on 25, you are not exacerbating potentially racist outcomes from the algorithm. I can already tell you that the outcome will be racist, because it will reflect the reality, which is racist also. What you would do is eliminate the existing approach, which removes risk from the equation (because of the bail bondsman as the middleman) and lands people in jail simply because they cannot pay the bail amount. It won’t fix what is already wrong in the world, but it will take one slice of it–screwing people over because they are poor–and make it better. Vote Yes on 25.

bail race

Nov. 2020 Ballot Endorsement: No on 20

Many Californians don’t know that our state Constitution requires that any voter initiative have a single subject: “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” You wouldn’t know this from looking at our convoluted, confusing, oft-misleading propositions because, as my colleague Mike Gilbert explains here, the rule is very difficult to enforce.

Prop. 20 is an example of a voter initiative that quite possibly violates the single subject rule. It bundles together four different issues under the general “tough on crime” umbrella. While I find at least two of them deeply objectionable on the merits and have serious problems with the remaining two, what really irks me is the marketing: law-and-order supporting folks are being lobbied to vote for things which are, frankly, untethered from reality, simply because they are ideologically bundled with other stuff that belongs on that side of the political map. My message to everyone, from ardent law-and-order people to rabid abolitionists: Vote no on this stupid package.

The first item in the package is the introduction of two new theft crimes. Background: In 2014, California voters approved prop. 47, which changed the designation of several theft-related offenses from felonies to misdemeanors. This is how we’ve been able to achieve the Plata-mandated prison reduction with no increases in crime rates. Prop. 20 proponents would have you think this is a bad thing, and to remedy our apparent shortage of theft crimes, you’d now have two new wobblers: “serial theft” and “organized retail theft.” “Serial theft” would be shoplifting or petty theft for someone with two prior theft convictions (because apparently we’re hurting for habitual offender enhancements, too.) “Organized retail theft” would be shoplifting or petty theft in concert with other people two or more times within six months. Both of those crimes will be punishable either as felonies or as misdemeanors. Theft, and various theft-like offenses, are still crimes in California, as they’ve always been, and the $250 limit placed by Prop. 20 is way lower than inflation would allow for (just to give you an idea, in 2014 we raised the minimum amount for grand theft to $950.)

The second issue is another effort to fix something that isn’t broken–Prop. 57, which California voters approved in 2016. Under Prop. 57, people convicted of nonviolent offenses with “enhancements”—special provisions that add years to their basic sentences, for example, because of prior convictions—come up before the parole board at the end of their basic sentence, and the parole board may recommend their release after considering their criminal history and behavior in prison. Proposition 20 would change the designation of some offenses from “nonviolent” to “violent”, to make some people ineligible to come up before the parole board, and would create a waiting period of two years before people denied parole under prop. 57 can come up before the Board again. It would also add restrictions to parole board considerations. I’m going to humbly suggest that parole in California is something I actually know a little bit about and tell you that this is absolute nonsense. Getting out on parole in CA is extremely difficult, parole hearings are Kafkaesque, and the last thing we need is pile more difficulties in the path of people who pose low reoffending risk. To appeal to people for whom the word “victim” is a talisman for righteousness, they threw in the need to consult with victims, but guess what: victims are ALREADY NOTIFIED of Prop. 57 hearings, and if they want to get involved, they get registered with the state. This proposition would drag into the punitive rhetoric net even victims who are not registered with the state. For what purpose, if these folks themselves are not interested in participating?

The third part of Prop. 20 would expand our DNA collection practices. Currently, California collects a DNA sample from people arrested or charged with felonies. If Prop 20 passes, DNA samples will be collected from people who are under arrest for certain misdemeanors. Many people have qualms about expanding DNA databases, on account of the mistakes that can happen. I suspect that, in the aftermath of the successful DNA-based prosecution and conviction of the Golden State Killer, this is not going to be super persuasive; I also submit to you that DNA databases have the potential to clear and exonerate, not only to convict, and I would therefore be willing to entertain pros and cons of this part of Prop. 20 if it came to us on its own, without the other issues. As it is, it’s not worth the price and expense of reversing two highly beneficial initiatives that reduced incarceration without risk to public safety, so I’m still firmly on the “no” side.

Finally, Prop. 20 also involves various changes to community supervision of people released from prison or jail. Currently, people released from jail, or from prison for nonviolent or nonserious crimes, are supervised in their counties. If Prop. 20 passes, probation officers will be required to ask a judge to change the terms of supervision if the person under supervision violates them for a third time. In addition, the proposition requires state parole and county probation departments to exchange more information about the people they supervise. In community supervision matters, it’s all about the details, and these are technical issues that are unsuitable for resolution via a yes/no political referendum.

The complicated structure of Prop. 20 makes it difficult to estimate the expense involved in its implementation. Because the proposition overall would lead to more and longer incarceration—more severe crimes, less opportunity for parole—there would be cost increases associated with it. The only silver lining here, and this tells you something, is that a sane court will find that the two first aspects are unconstitutional and strike them down, which will mitigate the expense of incarceration (but require litigation.) In other words, if it ain’t broke, don’t fix it. Vote No on 20.

ballot do something legislation politics