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 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.
“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.
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:
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.
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.
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.
This is a hard post to write, because quite honestly, with today’s news, I’m just not sure how much more calamity human beings can take. The intersection between the pandemic and the frightening fires in California has created a perfect storm around our prison population, and some of the reporting about it is so horridly inadequate that someone has to say something. What I’m seeing is such a poisonous cocktail of moralistic duplicity, naked opportunism, and sheer indifference to human suffering, that it cannot go unremarked upon.
The horrific fires that have devastated a million acres in the state have engulfed the areas close to at least two prisons: the California Medical Facility and Solano State Prison. CMF, in particular, has a population especially sensitive to smoke: older, vulnerable people. As you can see in the Vacaville police map above, the prisons are located smack dab in the middle of the evacuation zone. Nevertheless, the prisons have not been evacuated, nor have preparations been made–not even bringing, say, a bus nearby for transportation. Incarcerated people and family members who spoke with the Guardian’s Sam Levin report heavy smoke, ash, and an inability to escape toxic fumes.The people inside are reporting that prison guards arrive into the facility covered in ash. In case you’re wondering what CDCR has done, Levin reports:
“They are breathing in fire and smoke, and they have nowhere to run,” said Sophia Murillo, 39, whose brother is incarcerated at CMF in Vacaville. “Everyone has evacuated but they were left there in prison. Are they going to wait until the last minute to get them out?”
To increase social distancing and limit the spread of Covid, CMF had moved 80 people to sleep in outdoor tents instead of indoor cells, but with the fire approaching and air pollution rising, the prison moved them back indoors. Murillo said she now fears a major Covid outbreak inside the prison, and noted that mass evacuations could also spread the virus if people are packed in buses together.
Unfortunately, the New York Times’ Thomas Fuller does not share Levin’s basic humanity. In his story about the intersection of fire, disease, and incarceration, he gives you, gentle reader, the following take: our vast compassion in releasing people or in holding them confined due to COVID is hurting our firefighting efforts. But his interviewee Mike Hampton, a former corrections officer who worked at a firecamp, truly takes the cake:
“The inmates should have been put on the fire lines, fighting fires . . . How do you justify releasing all these inmates in prime fire season with all these fires going on?”
This false dualism echoes a similarly horrible, opportunistic perspective about incarcerated firefighters that came a few years ago out of Attorney General Kamala Harris’ office. In a 2014 legal proceeding regarding Plata releases, the AG representative wrote:
“if forced to release these inmates early, prisons would lose an important labor pool.” Those prisoners, the Times reported, earn wages that range from “8 cents to 37 cents per hour.”
In a Sept. 30 filing in the case, signed by Deputy Attorney General Patrick McKinney but under Harris’ name, the state argued, “Extending 2-for-1 credits to all minimum custody inmates at this time would severely impact fire camp participation — a dangerous outcome while California is in the middle of a difficult fire season and severe drought.”
CDCR is apparently still embracing this mentality–on one hand, decrying how releases would presumably harm public safety and on the other hand treating the people in prison like expendable machines at the service of the state. It does not seem to matter that the folks slotted for release–older, medically vulnerable folks–are obviously not the folks working at the firecamps.
Much less monstrous, but equally misguided, is the idea that in order to stop relying on “slave labor” we must stop relying on incarcerated people to put out fires in California. This is the sort of lazy take that comes from self-perceived enlightenment but has nothing to do with what incarcerated people actually want. You don’t have to guess–you could read my colleague Phil Goodman’s research about the firecamps. People who serve their sentences at the firecamps feel an enormous amount of dignity and pride at being able to contribute in this heroic manner and save lives. They experience firecamp placement as “another second chance.” Moreover, CDCR is the only place in which the racial animosities within prison–some self-imposed and some institutionally-directed–simply do not exist and people befriend folks of other races and ethnicities and of other gangs.
These two takes are presenting Californians with a false dichotomy: either you exploit people and risk their lives for a pittance OR you keep them behind bars. The obvious solution to this conundrum is not on the menu, even though it should be: (1) pay people commensurately with their skills and the risks they take, and (2) remove the criminal record limitations on firefighting work. I’m going to venture a wild guess that this would also be a terrific recidivism reduction strategy, because someone who acquires unique skills in a field essential to preserving our state and saving human and nonhuman lives is going to feel proud putting those skills to use, getting fairly paid for them, and getting the social respect that is rightly owed to those doing the job. Anyone who is suggesting that the solution to our problem is more reductive or more complex is simply lying to you.
Today, the Office of the Inspector General published the first installment in a series of three reports about CDCR’s (mis)handling of the COVID-19 crisis in prisons. The report was commissioned by Assembly Speaker Anthony Rendon and you can read it here, in its 47-page glory. For those of you unfamiliar with the Inspector General, the Office’s authority to review CDCR’s policies and practices comes from the California Penal Code and serves as an important control over correctional operations.
The first report examines CDCR’s screening practices for staff and visitors. Heeding warnings from the WHO and CDC, Governor Newsom instructed CDCR to take preventative measures to prevent the pread of COVID-19 in prisons. As early as March 11, CDCR suspended all visits to the prison–the suspension remains in effect–but continued to allow some essential visitors, including contracted workers, attorneys, and OIG staff, to enter prisons, in addition to thousands of the department’s staff who did so each day. On March 14, the suspension policy was supplemented by a directive to verbally screen all staff and visitors by querying them about signs and symptoms of COVID-19. Later in March, CDCR added required temperature checks to the verbal queries.
Here’s where it’s important to explain something. Every morning when I drop my son off at preschool, and every afternoon when I pick him up, a staff member checks both our temperatures, and asks us screening questions about symptoms, travel, and contact with known COVID-19 carriers. Even though this screening procedure does not detect asymptomatic carriers, it is hugely important, and it is doable, because the preschool only has one entrance. But prisons are more complicated than preschools. As the report explains, most prisons have multiple gates and entrance points, ranging in security level. Administrative offices, warehouses, industries, and other areas are often behind the main gate, but outside of an internal, secured entrance point. Take a look, for example, at this aerial photo of San Quentin. On the top right, you can see structures that are not part of the inner perimeter of the prison, and you can also see that, within the complex, there are multiple buildings with their own secured gates.
People mill about through these multiple gates on a daily basis. The staff, of course, and the essential visitors, come in and out of the prison on a daily basis. In addition, incarcerated people at San Quentin frequently work in the buildings outside the secure perimeter. This brings people across security entrances in daily contact with each other, and requires careful screening at the entrance to each correctional complex.
Unfortunately, the screening policy has not worked out at CDCR. The report summarizes:
Despite the department’s statewide directives that staff and visitors be screened for signs and symptoms of COVID-19 upon entry to prisons, we found that the department’s vague screening directives resulted in inconsistent implementation among the prisons, which left some staff and visitors entering prisons unscreened. Specifically, we found prisons took different approaches to implementing the same departmentwide directive. Some prisons funneled every car to a single screening location, where prison staff conducted verbal and temperature screenings of the cars’ occupants. Other prisons screened staff at certain pedestrian entrances to the prisons. We found that this second approach increased the risk that staff or visitors may have walked into or through other workspaces without having been screened.
OIG staff viewed and experienced these inconsistencies firsthand. During multiple visits by our staff between May 19, 2020, and June 26, 2020, prisons did not screen some of them for the disease’s known signs and symptoms. For example, California State Prison, Sacramento, conducted screenings at an area that cannot be seen from the prison’s main entrance. In one example at this prison, two OIG staff experienced no delays when walking onto prison grounds; no one screened them as they parked their cars and then walked into the prison’s administration building.
OIG staff’s observations were also supported by staff whom we surveyed at several prisons. To obtain prison employees’ perspectives, we surveyed all staff at seven prisons—more than 12,000 staff members. Staff responding to that survey indicated that the vast majority of them, but not all, had always been screened upon prison entry. Specifically, 5 percent of the survey’s respondents indicated that they had not always been screened as required by the department’s directive. We also learned that the results derived from some staff and visitor screenings may have been flawed. In response to a separate survey that we administered to screeners at five prisons, numerous screeners also identified multiple instances of thermometers malfunctioning during screenings. However, the screeners’ survey responses did not indicate how they proceeded to conduct screenings when they could not accurately obtain temperatures; consequently, it is unclear whether they allowed entry to those individuals. Nevertheless, because the department’s directive lacks instructions on what screeners were supposed to do in those instances, it was possible that screeners allowed some staff and visitors entry without obtaining accurate temperature readings. In addition, according to our review of a sample of screeners’ training records and our survey of screeners themselves, many screeners apparently received no formal training at all concerning their prisons’ screening processes, thus increasing the risk of allowing infected individuals to walk into prison facilities and expose others to the disease.
Much of the media reportage on CDCR’s failures to properly act has focused on issues of testing and cohorting, but screening is a fairly doable preventative policy, especially in places designed to prevent people from escaping. It’s dismaying to see how haphazardly it has been implemented. And, as the report points out, it’s especially distressing when you keep in mind that the testing fails to give anything close to a complete picture: because of the delays in receiving result, a person might contract the disease after taking the test, experience symptoms, and a few days later receive a “negative” result. These gaps can and should be stopped through screening, among other measures, and it is not to CDCR’s credit that they were not.
Yesterday I filed a brief on behalf of the ACLU of Northern CA, and seventeen of my colleagues, in support of the consolidated habeas corpus petitions submitted by dozens of people at San Quentin to the Marin Superior Court. Petitioners are demanding that the Warden of San Quentin release them, because their incarceration is a violation of the Eighth Amendment protection against cruel and unusual punishment.
Currently, the California Constitution, in Article II, Section 4, provides that “The Legislature shall. . . provide for the disqualification of electors while . . . imprisoned or on parole for the conviction of a felony.”
Accordingly, people who are serving a sentence in a state or federal prison, or have been released and are on parole, cannot be registered to vote. As of 2016–after our litigation efforts to get it done sooner failed–this restriction does not include people who are doing time in jail, even for felonies, nor does it include folks on community probation. But this leaves people on parole disenfranchised. According to the Prison Policy Initiative, as of Dec. 31, 2016, there were 89,586 people on parole. This is not a big number, because after Realignment, most people with felony convictions are supervised by the counties in the community (in addition to the already existing large probation population)–as of Dec. 31, 2016, we had 235,918 on probation. According to the Yes on 17 campaign, the number of parolees now is even smaller–they estimate that 50,000 people on parole are ineligible to vote under the CA constitution.
Prop 17 would change that. It is a Constitutional amendment that would grant people who served a federal or state prison sentence the right to vote as soon as they complete their sentence. If we pass this proposition, we’ll join the following states, which allow parolees to vote: Hawaii, Illinois, Indiana, Maine, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, and D.C.
A “yes” vote on 17 has many benefits. As Jessica Willis and I wrote elsewhere, civic reengagement of people after they return home from a prison sentence is a crucial step in restoring their trust, loyalty, and sense of a stake in their community. It makes communities safer by ameliorating the already-difficult trajectory of reentry and reducing recidivism. It mitigates racial injustices (most parolees are people of color.) And it brings much-needed perspectives, with important experiences, into the democratic process, which includes voting for people like prosecutors and judges.
If anything, Prop 17 does not go far enough–like everyone else, the person would need to register to vote, which is an extra step that creates a hindrance; if it passes, many people might not even know, upon release, that they are eligible to vote. But this goes to my general gripe with a system that requires registering to vote, as opposed to rendering all citizens automatically eligible to vote when they reach voting age; I’ve written before about how U.S. illogical obstinance about a simple measure–the provision of a national identity card to every American citizen when they turn 18–perpetuates a problem that is very easy to solve. But even within the constraints of the existing system (every country has tics and wrinkles–the ones here are obvious to me because I didn’t grow up here,) I can see a solution. When I became a citizen in 2015, as soon as all of us new Americans exited the beautiful Paramount Theatre where our naturalization ceremony was held, we passed through three booths: passport application, social security application, and a happy and energetic voter registration posse. Putting together a similar setup at the exit door of the prison is a piece of cake. All CDCR needs is a computer with a working Internet connection and this handy link, and everyone–EVERYONE–on the day of their release can leave CDCR facilities as a registered voter. As to the expense involved in doing all this, LAO estimates a one-time expense in updating state systems, followed by an annual expense representing the need to print and mail additional ballots and voter materials–exactly what you and I get as registered voters.
There really are no downsides, unless you’re a moralistic curmudgeon who for some reason believes that we should continue disenfranchising people after they’ve served their prison sentence. Let’s bring more people into our democracy. Vote Yes on 17.
