Between COVID and Fires

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.

OIG Report Criticizes CDCR’s COVID-19 Screening Practices

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.

Amicus Curiae Brief Filed in Support of SQ Relief Effort

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.

You can read the brief here:

AmiciCuriaeBriefMarinConsol… by hadaraviram on Scribd

Nov. 2020 Ballot Endorsement: Yes on 17

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.

Marin’s Top Health Official Warned SQ Warden, Was Rebuffed

If you thought the travesty of the Chino-Quentin transfer was the absolute rock bottom of prison management, prepare to dig. Today’s Chron reports that Dr. Matthew Willis, Marin County’s top health official, has written a letter to Judge Howard of the Marin Superior Court, in which he documents his efforts to get San Quentin officials to quarantine the incoming people from Chino–to no avail. Megan Cassidy reports:

Dr. Matthew Willis had learned that the 122 prisoners weren’t tested for weeks before they were transferred on May 30. Unless they were “radically sequestered” from the native population, Willis warned, the prison was setting the stage for a major outbreak.

This advice — given in a June 1 conference call with acting San Quentin Warden Ron Broomfield and other high-ranking prison staffers — was the first in a series of public health recommendations to be issued and ultimately dismissed by prison officials, Willis said in a letter to a Marin County Superior Court judge and in an interview Tuesday with The Chronicle.

You’ll want to click on the article and read Dr. Willis’ letter in full, as well as the astonishing letter he received. Prison officials forwarded him a letter written by CDCR’s General Counsel, Jennifer Neill, who wrote, “The State is not an entity under local health officers’ jurisdictions, and thus local health officer orders are not valid against the State.” Neill hadn’t even written the letter to Dr. Willis: she had written it to Kings County’s health officials when they offered advice regarding the horrific outbreak in Avenal. Go ahead, read it for yourself. I put a snippet of it above, to make sure you get the gist of it, but you need to see this with your own eyes.

As the horror settles in the pit of your stomach, let’s break this down:

  1. It was always obvious that prison outbreaks are connected to outbreaks in the surrounding counties (this should be obvious to you, too, by now; the virus doesn’t read the Penal Code.) Because of this, traditionally, there was communication between county health officials and the prison on matters of public health, such as the flu vaccine and an outbreak of Legionnaires’ Disease.
  2. There had already been an incident in which, rather than heeding advice from the people directly affected by the outbreaks in prison, CDCR decided to ignore the advice and instead jockey for position and squabble about jurisdiction. Outcome: several hundreds of people became infected and a few died.
  3. Then, months later, this occurred again. Again, the health official of the surrounding county offered advice. Again, CDCR chose to ignore the advice and instead jockey for position and squabble about jurisdiction. Indeed, they were apparently so pleased with how they had handled the previous incident that they didn’t even bother to write a new letter; instead, they simply forwarded the same letter to the health officials of the new county. Outcome: several thousands of people became infected and a few dozen died.

Friends, this is shocking. If all the previous warnings, all the alarm bells sounded by public health and criminal justice experts, did not suffice to prove that San Quentin officials, and the warden, exhibited deliberate indifference to the lives of the people under their supervision and care, this incident alone should make all of us sick to our stomachs.

More News of COVID-19 in CA Prisons

A few important items from the last few days:

Democracy Now! devoted an episode to the San Quentin COVID-19 disaster, including conversations with folks on the inside, as well as Ella Baker Center’s State Campaigner James King, commenting on the structure of Quentin and why it is incompatible with healthcare:

Today at 1pm, the #StopSanQuentinOutbreak coalition is hosting a virtual press conference on FB Live, featuring updates on the situation in prison, the Plata v. Newsom litigation, and the habeas corpus cases that have been consolidated at the Marin Superior Court. FYI, I am authoring the brief on behalf of amici curiae the ACLU of Northern California and twenty of my colleagues, criminal justice and corrections experts. I will post the brief in full here after it is filed.

The first article based on data collected by the UCLA COVID-19 Behind Bars Data Project is out from JAMA, showing that the the adjusted COVID-19 mortality rate in the prison population is 3.0 times higher than would be expected if the age and sex distributions of the US and prison populations were equal.

Finally, my article California’s COVID-19 Prison Disaster and the Trap of Palatable Reform is out from Boom California and offered free to the public on Boom’s open access platform. I decided to publish with Boom, rather than with a paywalled academic journal, because I think it is crucial for anyone in CA who is looking for background on this crisis to learn the background and understand why the proposed solutions are inadequate. Please share widely with your networks.

Outbreak “Abating” at Quentin? It Can Easily Return

I’m noticing public attention wavering away from the San Quentin disaster, and my concern is that the slowing down of the contagion has lulled people into a false assumption that the prison is doing what it should and conquering this challenge. Lest you believe this, let’s talk about what’s happened in other places. Avenal (pictured above) is a case in point. As in previous posts, Chad Goerzen and I are using CDCR’s own data, from the COVID-19 tracking tool.

The outbreak in Avenal happened early on in the pandemic, and was probably one of the most severe outbreaks before the transfer from CIM to Quentin. Avenal’s casualties were among the first behind bars, too. At the beginning of June, most tests were coming in negative, and prison authorities probably thought that the outbreak had abated. Then, in mid-July, case numbers started climbing up again.

Another example is CIW, pictured below. Note the alarming numbers in early May, the decline in testing (and in cases! in late May and in June, and then the spike in numbers of cases in mid- to late-July.

There are other examples of apparent abatement followed by a resurgence of the outbreak. Here’s the data for CMC, where initially there were only a handful of cases. As opposed to other prisons, you can see that CMC continued to test people periodically, on a weekly basis, even when they had no contagion, and the in late July they caught a new wave with dozens of new infections.

Here’s the picture for Corcoran, which seems to have had three waves of outbreak. You’ll note that one of them followed the ill-fated transfer from Chino. Corcoran did test a lot of people in early July and found no infections, but toward mid- to late-July we’re seeing infections again.

Finally, here’s a more ambiguous resurgence in LA County State Prison. Note that this prison was conducting very few tests between the two waves, so what they are seeing from early July onward could simply be a consequence of the increased testing.

What can we learn from this, particularly from the examples of Avenal and CIW? The obvious takeaway is that a serious outbreak does not protect a prison from a recurrence. There are numerous reasons for this. The jury’s apparently still out as to the extent to which recent infection and recovery effectively inoculate a person against a recurrence. It seems that people who get reinfected are less contagious, but this is highly dependent upon their medical condition and environmental immunosuppression (and there’s no absolute certainty that the person was actually reinfected after recovery, rather than just continuously sick or just expelling dead cells.) If, indeed, reinfection is possible–whether or not to the same contagious extent–then a mere staff member who gets takeout on the way home could restart the cycle. But this is exacerbated by the renewal of prison transfers which, I believe, start again today. We now know, because (or, actually, despite) the scant reporting from BSCC, that several jails are hotbeds of COVID-19, with dozens, and sometimes hundreds, of infections. The slow drip of people out of state prisons is going to be offset by the incoming bottleneck of people from jails, and one can only hope against hope that they’ll bother testing people on both ends of the transfer this time.

In short, keep your eyes on the human rights crime. It’s slowing down not because we are succeeding, but because the virus is succeeding. And state officials–at the Governor’s mansion, at the prisons, at the courts–are not doing enough to stop it in its tracks.

Just What We Need from the L.A. Times: Tired Tropes, Misinformation, Hatred and Dehumanization

During this pandemic, I’ve seen some hate-baiting news coverage of the COVID-19 disaster in prisons, but today’s article in the L.A. Times truly takes the cake. I am astonished at the unfortunate choice to title the article “California is releasing some murderers due to COVID-19. Some say it should free more” (UPDATE: as you can see from the picture above, our feedback helped and they changed the tone of the headline.) The “some” to which the original headline referred, who are discussed in a mocking and discrediting tone in the piece, represent robust, decades-long criminological evidence that the distinction between so-called “violent” and “nonviolent” offender is meaningless from a public safety perspective.

It is incomprehensible that, as a deadly pandemic ravages prisons and inflicts punishments that can’t be found anywhere in the California Penal Code, the L.A. Times recurs to these cheap tropes to attract its readerships. The writers chose to interview victims who, while entitled to their personal opinions, are not the statewide curators of victims’ perspectives, and do not represent the thousands of compassionate human beings whose lives were wrecked by violent crime and nonetheless believe that prisoners were not sentenced do die by COVID-19. They also, astoundingly, dragged–yet again!–the tired trope of Willie Horton to foment hatred and dehumanization.

Because I think this is shameful, lazy, hate-baiting journalism, and because I don’t need to read newspapers whose criminal justice analysis hasn’t progressed since the Reagan Administration, I am canceling my subscription to the Los Angeles Times. If you share my views, give their customer service department a piece of your mind tomorrow morning: 213-283-2274.

Prison Workers’ Union Files Grievance; Silence from the Prison Guards’ Union

The union that represents health care workers, clerical staff, custodians and other prison employees, SEIU Local 1000, has filed a wide-ranging grievance against CDCR and CCHCS (the Federal Receiver’s prison health services) for employing them, throughout the state, in unsafe conditions. Megan Cassidy for the San Francisco Chronicle reports:

The grievance, filed July 28, alleges that union officials documented safety violations at all 35 prisons owned and operated by the California Department of Corrections and Rehabilitation, or CDCR.

“Some of these prisons have already had serious COVID-19 outbreaks,” the grievance states. “(Prison and prison health care officials) should still be able to prevent outbreaks if they take all possible and reasonable steps to prevent them.”

The grievance lists numerous violations:

  • Inadequate supply of hand sanitizer machines and disinfecting wipes
  • Common areas at worksite are not being cleaned throughout the day
  • No training received on the state’s COVID-19 health and safety guidelines
  • Employees are not getting notice when someone at your worksite has tested positive for COVID-19
  • Not everyone at institution wears a mask
  • Six foot physical distance is not being maintained at worksite
  • Failure of adequate testing of staff and inmates
  • Transfer of inmates without adequate testing [this pertains to the infamous transfer from Chino, which brought COVID-19 to Quentin and Corcoran–HA]
  • Failure to quarantine or isolate inmates with suspected exposure
  • Failure to maintain adequate internal command or control
  • Failure to provide safety protocols to protect staff from infection
  • Inadequate supplies and types of PPE

The union demands taking the following steps:

  • Take all necessary steps to ensure employee health and safety
  • Ensure that each institution has a COVID-19 incident command center with both medical and custody staff
  • Have a clear written plan for spaces/areas that will be utilized to isolate/quarantine suspected and COVID-19 confirmed inmates at each institution.
  • Ensure that management at all levels understands their responsibilities and role in preventing the further spread of COVID-19.
  • Halt the movement of inmates between prisons and intakes from counties [this is crucial because, as I learned today on Twitter from people on the inside, transfers are scheduled to resume this coming Monday – HA]
  • Ensure that DAI and CCHCS are doing everything possible to maintain six foot physical distance between persons (including allowing all employees possible to telework), providing adequate hand sanitizer and disinfectant wipes and are enforcing that everyone wear masks/or face coverings
  • Ensure that all employees are trained with the latest State of California health and safety guidelines and that all employees are noticed about possible COVID-19 exposure at their worksite.

This was a long time coming; I’m surprised the union is taking these steps only now, but there’s something else that bothers me. In Arthur Conan Doyle’s The Hound of the Baskervilles, Scotland Yard Inspector Gregory asks Sherlock Holmes, “Is there any other point to which you would wish to draw my attention?” Holmes replies, “To the curious incident of the dog in the night-time.” Gregory says, “The dog did nothing in the night-time.” To which Holmes answers, “That was the curious incident.” I bring this up because, if there’s any union that should expected to vociferously defend the interests, safety, and health of its members, it’s the strongest union in California— the CCPOA.

I’ve spent quite a while today on the CCPOA’s website, trying to find a sliver of a reference to COVID-19. Nothing on the front page; nothing under “news and information.” They do take care to mention a study according to which PTSD rates among prison guards rivals that of war veterans and to take pride in a 5% salary raise from 2019, but nothing whatsoever about the obvious. CCPOA guards face as much risk from the virus as the workers represented by SEIU Local 1000; the CDCR reporting system does not distinguish between guards and other staff members. To-date, CDCR reports 1976 COVID-19 cases among staff, as well as eight deaths.

CCPOA is not a particularly timid union. As Josh Page explains in his wonderful book about the union, CCPOA has been at the helm of much of the punitive animus in California, branding itself as a tough-on-crime organization and partnering with (or puppeteering) Crime Victims United of California, with whom CCPOA shares numerous board members. CCPOA and CVU are largely responsible for the public perception of punitivism as natural and ubiquitous, a perception not shared by many survivors of violent crime. And here we have a matter that’s not about fancy penological philosophy, but is actually the bread-and-butter of what a union is supposed to do: protect its members’ health and safety on the job. Instead, here’s what the Sac Bee reports about their salary negotiations with Gov. Newsom:

California correctional officers would take one furlough day per month and defer raises for two years under a proposed agreement their union has negotiated with Gov. Gavin Newsom’s administration.

The California Correctional Peace Officers Association’s two-year agreement appears to be the first deal a state union has reached with the administration over pay cuts Newsom proposed for all state workers to help address a projected $54 billion budget deficit.

The tentative agreement will require a vote from the union’s 26,000 members to pass and will need approval from the Legislature.

The agreement uses a personal leave program to reduce officers’ pay by 4.5% — roughly the equivalent of one day of work per month — for two years. In exchange, the officers receive 12 hours of paid leave per month, the equivalent of one and a half days of work.

A 3% raise the officers were scheduled to receive July 1 is deferred until July 1, 2022.

The agreement would reduce the state’s spending on correctional officers by 8.99%, or about $395 million, according to a cost summary of the agreement. Correctional officers make up a large share of the state’s general fund spending on its workforce, accounting for about a third of general fund payroll spending.

Newsom’s original proposal of two unpaid leave days would have reduced the state’s spending on the group by 9.53%, or about $419 million, according to the summary.

The agreement softens the impact of the cuts on correctional officers’ pocketbooks by suspending a paycheck deduction that funds the health care plans they’ll use in retirement. That change allows workers’ to keep 4% of their paycheck that had been going to future health care costs.

The state also would cover an increase to health insurance costs of .54 percent, according to the summary.

The deal would suspend holiday pay for seven of the 11 state holidays, eliminate one personal development day for the term of the agreement, suspend night and weekend differentials and make other tweaks to pay.

This is not great for CCPOA, though it does somewhat soften the blow of the salary cuts. But how could CCPOA negotiate with the Governor, amidst a pandemic, and not mention their working conditions, even in passing?

The curious thing about the guards’ COVID-19 interests is that the best thing that can be done for them, which is, obviously, mass releases to allow for social distancing and minimally competent healthcare, stands in opposition to what their leadership has advocated for in the last forty years. CCPOA built its power advocating for more and longer prison sentences, getting its political cache from being “the toughest beat” and from the sheer enormity of the California correctional apparatus. But this does not necessarily reflect the rational self-interest of its members, which even in ordinary times would find it safer and easier to wrangle and supervise fewer people in a less crowded facility. In that respect, the virus is not so much reversing the interests of the guards as it is putting them in clearer focus. And if this is the case, then it seems that CCPOA is not really representing its members properly, and we’re seeing a pretty dire example of political capture.

SCOTUS Temporarily Relieves OC Jail from Obligation to Take COVID-19 Precaution Measures

Yesterday, in a 5-4 vote, SCOTUS stayed a lower court’s preliminary injunction that required the Orange County Sheriff to implement certain COVID-19 safety measures. The decision, Barnes v. Ahlman, is brief, with only Justice Sotomayor writing for the dissent (what a superb law-and-society Justice she is–and a fantastic writer.) Before delving into the decision, it’s worthwhile looking at the BSCC reports for the OC, which I’ve placed above. Now, the webpage claims that they updated it yesterday, but it also claims that the numbers we’re seeing are for the week between 7/19 and 7/25, which is adds to my impression that BSCC reporting, which is already woefully late to the game, needs considerable improvement if it is to be informative. For what it’s worth, during that week–and things might’ve exponentially spread since then–the OC jail system had at least 17 cases and had tested less than 10% of their population. Moreover, Justice Sotomayor writes that “[a]t the time of the District Court’s injunction, the Jail had witnessed an increase of more than 300 confirmed COVID–19 cases in a little over a month.” You wouldn’t know this from the BSCC page, because for unfathomable reasons they don’t report cumulative cases, nor do they provide the data they had before the dashboard was created. I really hope that the COVID-19 Behind Bars Data Project will be able to obtain better information, including cumulative and historical numbers–apparently the numbers exist, because local newspapers were reporting on them weeks ago–but I’m not holding my breath. In any case, putting together Justice Sotomayor’s summary and the BSCC data points to a worrisome situation: they’ve had hundreds of cases and they are currently doing hardly any testing, which could explain why they numbers seem small.

Anyway, back to the decision. Justice Sotomayor refers to the decision to stay the injunction as “extraordinary.” Ordinarily, the conditions for granting a stay require (1) a “reasonable probability” that SCOTUS will actually grant certiorari to hear the case, (2) a “fair prospect” that SCOTUS will subsequently reverse the decision on the merits, and (3) “a likelihood that irreparable harm [will] result from the denial of a stay”. None of these apply here: the Ninth Circuit ruled on clearly established law–it found ample proof of “deliberate indifference” because the jails were forewarned about this months ago and knew the risks–and, even if the Eighth Amendment is not grounds enough for relief, there is an alternative claim under the ADA. Therefore, odds that SCOTUS will hear this case and reverse are slim. Worst of all, the “likelihood of irreparable harm” is obvious from the facts, described in “dozens of inmate declarations”:

Although the Jail had been warned that “social distancing is the cornerstone of reducing transmission of COVID–19,”
inmates described being transported back and forth to the jail in crammed buses, socializing in dayrooms with no space to distance physically, lining up next to each other to wait for the phone, sleeping in bunk beds two to three feet apart, and even being ordered to stand closer than six feet apart when inmates tried to socially distance. Moreover, although the Jail told its inmates that they could “best protect” themselves by washing their hands with “soap and water throughout the day,” numerous inmates reported receiving just one small, hotel-sized bar of soap per week. And after symptomatic inmates were removed from their units, other inmates were ordered to dispose of their belongings without gloves or other protective equipment. Finally, despite the Jail’s stated policy to test and isolate individuals who reported or exhibited symptoms consistent with COVID–19, multiple symptomatic detainees described being denied tests, and others recounted sharing common spaces with infected or symptomatic inmates.

That the Sheriff’s Department gets to benefit from a pattern of recklessness and obfuscation is sickening in itself, but what’s really sickening is that even as I type this, more cases are preventable. What kind of public official spends their times and resources fighting an order to implement sensible precautions, instead of actually implementing them? BSCC’s feebleness is all over this, starting with the flimsy data collection effort and continuing with these disturbing practices at the county level. The other thing that nauseates me is that there’s no reason to assume that everything is tickety-boo at the other jails, and we now need to expand our list of “known unknowns” at the county level to actual practices of the ground. We can’t make definitive extrapolations from this OC example without knowing more, but if the OC “inmate health and safety” is just a facade, there’s no assurance that other jails are following their own COVID-19 protocols.