How to Reduce California’s Prison Population by 50%

Today’s Chronicle features a great article by Bob Egelko, which tries to parse out who is responsible for the San Quentin catastrophe. Getting into the chain of command that made the botched transfer decision might come in handy at a later date, I think, when the time comes to file the inevitable (and more than justified) lawsuit. But, as I said in the article, the time to squabble over who’s at fault has not come yet. Right now we must have all hands on deck, including Gov. Newsom, Mr. Kelso, and Mr. Diaz, making prison releases their absolute top priority.

By now, regular readers of my COVID-19 prison crisis posts know that Gov. Newsom’s plan to release a mere 8,000 people over the course of the summer will not suffice to curb infections, illnesses, and death in prison. You also know that, at least with regard to San Quentin–an antiquated facility that lacks proper ventilation–the physicians at AMEND recommended an immediate population reduction by 50%. But how is it to be done?

The #StopSanQuentinOutbreak coalition, and the Prison Advocacy Network (PAN) have useful, well-researched answers, which are encapsulated in the lovely infographic above. Here are the coalition’s demands, and here’s the PAN page offering legal resources and pathways to release. I want to spend this post getting into the particulars. Before doing so, though, I need to explain a few important things.The Prisoner Advocacy Network has a list of pathways to release.

A lot of the categories in Newsom’s current release plan make sense and show evidence of public health thinking. They are considering age, medical condition, and time left on people’s sentences. The problem with the categories is that they are unnecessarily restrictive, and I think the restrictions can be attributed to two hangups that many people, including well-meaning, educated folks, share about prison releases: the fear that releasing a lot of people is going to be hugely expensive and the hangup around the violent/nonviolent distinction. So let’s tackle these two first.

Get over the hangup of re-entry costs. You may have read that BSCC is considering offering $15 million to CDCR, and might wonder how we can possibly pay for housing, temporary or permanent, of tens of thousands of people. Of course this is going to cost money; the question is, compared to what. It may shock you to learn that, in the 2018/2019 fiscal year, the Legislative Analyst’s Office estimated that the average cost to incarcerate one person in California for a year was $81,502 – more than a $30k increase since our recession-era prison population reduction in 2010-2011. How much does it cost to help such a person for a year, when their healthcare is funded by Obamacare, rather than by CDCR? Here’s a PPIC report from 2015 detailing alternatives to incarceration. Specifically with regard to COVID-19-related reentries, here’s another great infographic detailing what the needs are going to be. The big one is housing, and there are organizations on the ground that are set up to help with that. Even with transitional housing costs, this does not add up to $80k per person per year.

Get over the hangup of making the violent/nonviolent distinction. I am still seeing lots of well-intentioned folks who read Michelle Alexander years ago tweeting about how ending the war on drugs (with or without the hashtag), or focusing on so-called “nonviolent inmates” is the key to fighting this outbreak. I can’t really fault them for this misapprehension–what I can do is repeatedly present you with facts to correct it.

Take a look at the graph below. It comes from CDCR’s population data points from 2018. You will note that the vast majority of people in California prisons are serving time for a violent offense. Drug convictions are the smallest contributors to our prison population (this is of course not true for jails or for federal prisons; I’m talking about the state prison system.) I know we all love to say “dismantle” these days, but dismantling the war on drugs will do very little to reduce state prison population.

Now, take a look at CDCR’s Spring 2020 population projection. What you see in the diagram below are the reductions in population since 2010, and some projections for the years to come. The two big reductions were in 2011, following the Realignment, and, to a smaller extent, in 2015, following Prop. 47. Both of those propositions diverted drug offenders to the community corrections systems–jails and probation. If you care about the injustices of the war on drugs, your heart is in the right place, but this is simply not the most dire problem we are facing in the context of prison population reduction.

It is easier to talk about drugs and nonviolent offenders, because these are typically categories of people that evoke more sympathy from the press. My colleague Susan Turner at UCI has shown that risk assessment tools, when used properly and carefully, yield dependable predictive results, and these are not correlated with the crime of commitment. Because we were so married to the idea that only nonviolent folks need help and public support, our three major population reduction efforts–Realignment, Prop 47, and Prop 57–missed the mark on getting more reductions for little to no “price” of increased criminal activity. Whenever you see a headline lambasting the Governor or the Board of Parole Hearings for releasing a “murderer,” immediately ask yourself the two relevant questions: (1) How old is this person now, and (2) how long ago did they commit the crime? The answers should lead you to the robust insights of life course criminology: People age out of violent crime by their mid- to late-twenties, and at 50 they pose a negligible risk to public safety. Moreover, what a person was convicted of doesn’t tell you a full story of what their undetected criminal activity was like before they were incarcerated. Take a look at the homicide solving rates in California, as reported by the Orange County Register in 2017–a bit over 50%–and ask yourself whether the crime of conviction is telling you a story with any statistical meaning.

In short, my friend, take a breath, let go of your attachment to the violent/nonviolent distinction, and let’s find some real solutions. The #StopSanQuentin coalition has a more in-depth breakdown to offer. Generally speaking, the legal mechanisms to achieve this reduction were identified by UnCommon Law in their letter to the Governor–primarily, early releases, commutations, and parole. Section 8 of Article V of the CA Constitution vests the power to grant a “reprieve, pardon, or commutation” in the Governor. The Penal Code elaborates and explains the process. Section 8658 of the California Government Code provides an emergency release valve: “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution.  He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.  the Governor has the authority to grant mass clemencies in an emergency.”

To begin, there are some bulk populations which, if targeted for release, can deliver the kind of numbers we need to stop the epidemic. These three populations largely overlap, which might make it easier to tailor the remedies to capture the right people. About half of the CDCR population are people designated “low risk” by CDCR’s own admission. CDCR uses risk classification primarily for housing purposes, and their methodology–as well as their practice of overriding their own classification–have been found by LAO to be in dire need of overhaul. LAO and other researchers believe that CDCR’s use of the “low risk” category is too restrictive, and their exceptions to their own classification come from hangups around issues of crime of commitment. This chart from the LAO report tells a useful story: Most of our prison population is doing time for violent crime, and a quarter of it is 50 and older; given the length of sentences for violent crimes, and the fact that a quarter of CA prisoners is serving decades on one of the “extreme punishment trifecta” of sentences (death, LWOP, or life with parole), it’s not difficult to figure out where the older, lower risk people fit in.

Between a quarter to a third of the prison population, depends on how you count: People who have already served a long sentence. This is the time to question the marginal utility of serving a few more years after being in prison for decades. According to the Public Policy Institute of California, About 33,000 inmates are “second strikers,” about 9,000 of whom are released annually after serving about 3.5 years. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Approximately 33,000 inmates are serving sentences of life or life without parole. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

23%: People Over 50. Not only does this population intersect with lower criminal risk and higher medical risk, it also correlated with cost. According to the Public Policy Institute of California and Pew center data they cite, in fiscal year 2015 the state spent $19,796 per inmate on health care–more than thrice the national average.

To this, we can add a few smaller populations, numbering a few thousand each. Let’s start with people on death row and people on life without parole, who have been exempted from pretty much any release valve possible. The Governor has the authority to commute both of those sentences to life with parole today, and this is probably the right course of action anyway, pandemic or no pandemic. We have a moratorium on the death penalty, which means no one is getting executed but we are still paying for expensive capital punishment litigation. Cut out the middle man and shift all these folks to life with parole. I talk about how these three sentences are indistinguishable anyway in Yesterday’s Monsters, chapter 2.

There are also, apparently, a few hundred people still incarcerated who have been recommended for parole and approved by the Governor–coalition members have identified a few dozen in San Quentin alone. If these people have been given the green light to be released, why are they still behind bars? As for people who have been recommended for release and still awaiting the Governor’s authorization, now’s the time to expedite that.

Finally, lifting the offense limitations on people from outbreak epicenters, people with medical conditions, and the like, should expand those numbers considerably, given the significant overlap between crime of commitment, length of sentence, age, and health condition.

My point is that all of this is eminently doable, and there would hardly be any downsides. If we can just let go of the tendency to view only one side of the cost equation, and of our hangup about the nonviolent/violent distinction, we can scale up the proposed release plan to the point that it will be effective. Let me end with this thought: Gov. Newsom announced that the goal is to reduce San Quentin population to close to 100% of design capacity. In a sane world, prisons that are at 100% occupancy are not a goal. They are a starting point.

August 14 Update: Jason Fagone has a gorgeous piece in today’s Chron explaining how we could achieve a 50% reduction today, with negligible impact on public safety.

Are Outbreaks in Prisons and Surrounding Counties Correlated?

Answer: Yes.

Today, Chad Goerzen and I looked at the new numbers from the CDCR tool and laid them over the county numbers from the L.A. Times. A few patterns emerge. First, a lot of testing is being done at San Quentin, but the vast majority of tests are coming back negative. How much we can trust this given the lag between testing date and result date is an important question, but it is at least a little bit encouraging. Second, two places in particular, which had seen peaks and valleys in infections–Avenal and CIM–are seeing infections.

For today, though, I want to point out something striking: Out of the top 15 counties in terms of infection numbers, 12 also have prisons that have seen new infections in the last 14 days. Look at the graph on the top. The picture is incomplete (we need data on detention centers and jails) but it is striking. Without contact tracing it is impossible to tell a causal story, but this correlation should be enough to easily counter the assumption that prisons are somehow separate from the community, or worse, that there’s some trade off between saving lives behind bars and on the outside. The virus doesn’t read the CA Penal Code, nor does it know where the prison gates are. Nor is there an allotted number of infections and deaths and it’s merely a question of who’s more “deserving.” If people behind prison are healthy and taken care of, people in the community are healthy and taken care of, and vice versa.

The Meaning of Life: A Friend’s Murder and the Recent Federal Executions

I was quietly reading Robin Wall Kimmerer’s Braiding Sweetgrass and thinking about yesterday’s post on the interconnected dance of life, when Facebook, with its indelible memory, reminded me: It is six years to the day that my colleague Dan Markel, a criminal law professor at Florida State University, was murdered, shot to death in his garage.

The sensation of shock, like unsavory gray smoke filling my lungs, making me nauseous with incomprehension, has stayed with me, and seems to have been universal. Dan was so alive–isn’t that what is always said of the dead?–a true, energetic community builder, the architect of Prawfs Blawg, the inaugurator of CrimFest, both of which have outlived him. A loving father to his two young boys, of whom he always spoke with such affection. The nauseating smoke whispered, how? why? who? Theories spread among Dan’s friends and colleagues; blogs were ablaze, picking up the shreds of Dan’s life, looking for some conflict, strife, danger, something that would explain the unexplainable. Underneath it all, unspoken save, perhaps, in the offices of my friends’ therapists, was the uncomfortable but true realization, this doesn’t just happen to someone I know. People living comfortable lives of safety and social advantage, lives that do not grow in the shadow of street violence or require it, were deeply unsettled. If we could only find out why, we felt, perhaps, this senseless thing will make sense; something in Dan’s life, in his relationships and entanglements, would make sense of this out-of-place death.

The mystery of Dan’s murder lingered on, picking up steam occasionally on blogs, for two years. Whenever I met other friends and colleagues of Dan’s, we shook our heads. “We just want to know what happened,” we said. The aching gap Dan left in the professional and social fabric of our trade was lovingly mended by friends who took the mantle of organizing. Then, two years later, we found out. It was sordid, disturbing, the stuff of low-grade cold-crime television shows in which a deep-voiced anchor dramatizes the events. They were Luis Rivera, 33, and Sigfredo García, 34, murderers for hire, and the only plausible connection between them and Dan was the mother of García’s children, Katherine Magbanua, who was dating a rich Florida dentist, Charlie Adelson.

Adelson was Dan’s brother in law. Dan and his ex-wife, Wendi Adelson, had divorced in 2013, and were amidst an ugly custody battle; Dan had won an order prohibiting Wendi from moving to Miami with the children, and filed a motion that would have prohibited Donna, Wendi’s mother, from being alone and unsupervised with the children due to alleged disparaging remarks about Dan. The investigators alleged Magbanua made the connection between the Adelson family and Garcia , that she received a large amount of money from the Adelsons following Dan’s murder, and that Magbanua was the first call Garcia dialed after Markel was murdered.

All this added up to arrest warrants against García, Magbanua, and Rivera, but not against the Adelsons. Despite repeated efforts to trip them, they have eluded law enforcement efforts at gathering more evidence against them. Rivera turned state witness, García was convicted, and Magbanua, who remained steadfastly silent even in the face of a threat with Florida’s death penalty, won a mistrial (ten jurors voted to convict, two to acquit.) Magbanua is to be retried for the murder. Much as I find it loathsome and distasteful to lionize and sanctify the three apprehended parties to a murder-for-hire because they are “poor people of color,” I can understand and empathize with the sentiments of injustice: the rich and powerful have managed to escape all consequences of their likely actions. Given what we know, what plausible explanation could there be for all this except the Adelsons’ desire to get Dan out of the way? Not one member of the Adelson clan evokes even a shred of sympathy: In a particularly cruel move, Wendi Adelson immediately proceeded to remove Dan’s last name from those of the children and denied them contact with their paternal grandparents. And yet, the police claims not to have cobbled enough probable cause for an arrest.

Thing is, what I think happened and what the law, which requires stringent beyond-reasonable-doubt proof, asserts happened, are two different things. The law does not operate in a vacuum, and people of means have many ways to insulate themselves from incriminating behavior and paper trails. I know many of my friends and colleagues who grieve for Dan hope for justice in the form of criminal consequences for the Adelsons. Much as I fail to comprehend the moral makeup of the Adelsons, I’ve always been pretty clear on the fact that I would not feel even a little bit better about this tragedy if I heard that the police arrested Donna, Charlie, or Wendi. Moreover, I didn’t feel relieved or vindicated when the police waved the threat of capital punishment over Katherine Magbanua’s head. Not only did it not work, in Magbanua’s case, and not only does this use of the death penalty as a bargaining tool create ugly disparities between sentences in abolitionist and retentive states, but I found the whole entanglement with the worst aspects of Florida’s criminal justice system tasteless given Dan’s own scholarly stance against the death penalty. My conversations with many of Dan’s friends and colleagues revealed that they, too, felt like knowing what had happened and making their mind about the culprits was sufficient. What horrors, albeit deserved, could the criminal justice system possibly visit upon the Adelsons that would make us feel better about the grievous loss of our friend?

I’m not particularly surprised that so many people’s grief over Dan’s death didn’t manifest as a desire to see his killers–all of them, including the ones too dainty to pull the trigger–harshly punished. I see the same from families and friends of homicide victims all the time. The first-ever national survey of crime survivors show that victims are far less punitive than Twitter would have you believe.

Not everyone is nonpunitive, of course. The Tate family, whom I discuss at length in my book Yesterday’s Monsters, were instrumental in shaping public perception of what victims want, as was Mark Klaas. I don’t think any of these people has been manipulative or insincere or has not suffered unimaginable pain; I do think, however, that their voices are mistakenly assumed to represent what most victims want, which is not the real picture. Nor is this an illness particular to the conservative right; the fault lies just as much with the folks who wrote fashionable pieces about how Jean Brandt’s act of faith and forgiveness toward Amber Guyger was “problematic” in that it “allowed whites to benefit from black forgiveness”, because some people on the left are apparently so enlightened that they can educate people on how to properly grieve their relatives. I saw the same dynamic in some of the astonishing reactions on Christian Cooper’s sane and measured response to the police investigation of Amy Cooper’s false complaint about him to the police, those accusing him of “performing a disservice” to African Americans nationwide, because apparently (1) everything has to be a performance and (2) the only true path to social justice is through arrests, charges, and convictions.

Why is all this making me so sad today? Because amidst these frightening times, that should by right make all of us deeply grateful for life and concerned to preserve its fragility, incomprehensibly, the federal appetite for executions reached a boiling point, and sometime last week, while we were all asleep, the Supreme Court kosherized three executions. Each, in its way, highlighted the deeply misguided aspects of the death penalty. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victims’ families against his execution. Wesley Purkey’s execution of a “severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease,” whose lawyer, Rebecca woodman, said does not understand “why the government plans to execute him” was a grim reminder of the idiocy of incessant, expensive litigation to ensure that people are healthy enough to be killed by the state; And Dustin Honken’s attorney, Shawn Nolan, underscored the fallacy that people are unchanging and irredeemable: “”There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.” In keeping with the usual pattern of death penalty litigation, which Justice Harry Blackmun called “tinkering with the machinery of death“, the dissents were all about method and process, rather than about the heart of the matter.

That this–a reaffirmation of our government’s commitment to a punishment that is, itself, dying a slow death (like many of death row inmates themselves)–is our takeaway from this pandemic, is mind boggling, but I see the same mentality among those wondering why we worry about people on California’s own death row catching COVID-19. Being on death row is hardly a natural consequence of one’s actions, as so many of my colleagues have explained over the years, and so the shrugging of shoulders, accompanied by a more or less crude version of “you do the crime, you do the time” or “we have to make priorities” astounds and perplexes me. As we inch toward November, the urgency of a vote that affirms everyone’s value in the dance of life becomes clearer and clearer. And then, we begin the hard work of reshaping the arc of progress, which has taken a very, very wrong turn.

BSCC to Consider Offering $15 Million in COVID-19 Assistance to CDCR

A couple of weeks ago I posted about the “known unknowns”: the situation in county jails. I don’t think that the cloud of ignorance over infections, illnesses, and deaths in hundreds of facilities (some as big as prisons) is coincidental. I’ve already mentioned the concept of agnotology–the study of culturally induced ignorance or doubt, particularly the publication of inaccurate or misleading scientific data–and I think that, when problems are prioritized, knowledge about them is also gathered and shared.

We have an opportunity to press the Board of State and Community Corrections (BSCC) for some answers, because they have just announced an emergency meeting scheduled for this Thursday, July 16 at 10:00 a.m. At the meeting they plan to decide whether to give $15 million of the total $58.6 million of federal Coronavirus Emergency Supplemental Funding (CESF) to the California Department of Corrections and Rehabilitation (CDCR) to “quickly leverage existing contracts that can provide emergency housing” for individuals being released from state prison due to COVID-19. You can find the full proposal here; the gist of it is as follows:

In May, the BSCC’s CESF application for $58.5 million was approved. In June, the BSCC launched a dedicated CESF email address to seek input on how the funds should be used, established a 30-day public comment period that concluded July 12, and staff committed to sharing those results with the Board at the September Board meeting. In the weeks following the June Board meeting, however, the Administration identified an urgent need to provide housing to individuals being released from CDCR due to COVID-19. As many as 8,000 individuals with less than a year left on their sentences could be eligible for release by the end of August. There is an immediate need for housing to help these people with successful reentry. The Administration has requested a portion of the federal grant to meet those emergency needs.

A CESF award would allow CDCR to immediately leverage existing contracts through the Specialized Treatment for Optimized Programming (STOP) to help with emergency housing needs. The STOP system operates in six regional areas statewide, with offices in LA, San Diego, Sacramento, Marin, San Bernardino and Fresno. Each provider contracts to provide step-down services ranging from residential treatment to recovery and reentry housing at the local level. The proposed funding would provide emergency housing and could cover costs associated with increasing housing capacity and providing quality assurance of housing to ensure safe housing standards are implemented.

The Board will have the opportunity to consider the public comment received to determine priorities for the remaining $41.7 million and take further action at the September meeting. Sixty-seven public comments have been received to date from community based organizations, local governments (both city and county), concerned citizens, public and private organizations, law enforcement, and the faith-based community.

This, in itself, might be a good thing–the money will be sorely needed to cushion the path of so many folks who have been incarcerated in an environment that is an anathema to rehabilitation as they make their first steps in a horrible economy. But we must also be mindful of the fact that we don’t actually know what the situation is in jails, and to what extent these funds are needed to put out local COVID fires on the county level. In any case, if you want to chime in and make your opinions known at the meeting tomorrow, here’s all the info you need to attend the emergency meeting. I’m not sure I can make it, but if I could, my priority would be to comment on the fact that BSCC must be the “responsible adult” and liaise between the counties to create a uniform, informative reporting platform for all the jails in California. We cannot solve a problem we know so little about.

Important postscript: The last few weeks have made the question of school reopening into yet another partisan screeching war lacking any nuance. While we have proof (not unambiguous, because this virus is a shapeshifter when it comes to data) that indiscriminate school reopening without social distancing measures can be dangerous, we also have proof that early education centers (daycares and preschools) that have rigorous sanitation and distancing protocols in place have not contributed to the spikes we are seeing (in fact, many of them were operating for months, for children of first responders, without seeing positive infections.) The most shrill, uncompromising voices for not opening schools come from what some might consider “my” side of the political map, and almost without exception from people who (1) don’t have kids (2) don’t teach kids and (3) don’t work in K-12 school administration. I’m noticing that these posts, invariably strewn with expletives about the selfishness of opening schools, are harvesting “likes” aplenty, because apparently wanting children to be properly educated and socialized, regardless of their class or wealth, is suddenly no longer a progressive priority, and wanting abuse, neglect, and household poverty to be detected and addressed is tantamount to being a loathsome Trumper. There are many good and knowledgeable people in school administration–some of them are good friends of mine–and they report so much uncertainty and efforts to do the right thing, precisely because they are exposed to the downsides of multiple options. There’s complicated choreography and architecture and proper messaging that needs to be done. I don’t have the answer to the difficult questions (and anyone who claims they have the perfect solution is either lying or ignorant), but I will tell you this: everything you’ve seen from me in the last three weeks—TV appearances, radio appearances, newspaper stories, dozens of posts with primary data analysis, this morning’s op-ed in the Chronicle, the open letter, the press conference speech–everything that I have done to try and save lives behind bars–has been brought to you by my son’s preschool, which has been open now for three weeks, and thank goodness for that. To their great credit, they took on an enormous amount of work and created sanitation protocols, symptom checking lines, pick-up and drop-off routines, and rigorous cohorting, so that I can write this post and you can read it. Working parents are part of the economy and part of the community. When we are full-time caregivers for our children, we are excluded from contributing to our communities in other ways. You might want to think of that and square the struggle to stop the prison outbreak with other progressive sensibilities before you exhort your local government to make decisions that lack nuance, ignore externalities (to teachers as well as students and families.) For more on why it is important to say this, read here.

Country for Some Old Men: The Roger Stone Pardon and the COVID-19 Prison Crisis

I confess to being a bit bewildered by the outrage building around Trump’s recent pardon of his business partner Roger Stone. Not because this is not outrageous–read Robert Mueller’s op-ed about Stone’s direct involvement in the misdeeds that led to Trump’s impeachment–but because Stone is only the last in a long list of people pardoned by Trump. The never-ending parade of horrors may have numbed some of us, but you might still remember the pardon of Joe Arpaio (the “penal cartoon” who ran Arizona jails as spectacles of dehumanization and humiliation).

Trump is not the only president to have used his commutation powers in controversial ways. As this excellent NPR piece explains, both Bushes and Clinton were criticized for misuse of their powers, as was Obama for the sheer number of commutations. What is unique about Trump’s pardons and commutations is that, with a handful of exceptions, they were given to people in furtherance of his own personal interests or to people prominently featured on Fox News. Moreover, Trump has virtually ignored the Department of Justice’s Office of the Pardon Attorney, whose function is to parse out the thousands of pardon requests it receives every year and make recommendations to the President. Usually, the President follows the Office’s recommendations, but not in this case, and as Mitch Jeserich and I discussed this morning on KPFA’s Letters and Politics, this means not only that Trump’s business partners and go-betweens are rewarded for their crimes, but also that ordinary people’s petitions are ignored and recommendations about them go unheeded. Trump’s adulation and courtship of celebrities is one contribution to his assault on the rule of law (with the notable exception of Kim Kardashian’s influence on the First Step Act). Combine all of this with Bill Barr’s jockeying of Manhattan federal prosecutors and you’ll find a continuation of the same trends.

One issue that Mitch and I discussed today was the public discourse around Roger Stone’s age and (he’s 67), and the argument that, with the pandemic ravaging prisons, he would be “put at serious medical risk in prison“. Of course age and health condition are valid considerations, but let’s keep things in context. Here’s a breakdown of the federal prison population by age. Close to 20% of them are aged 51 and older. Throw in people aged 46 and above, and you’re at almost a third of the prison population. That’s tens of thousands of people. One person, albeit famous/infamous, is a drop in the bucket, so forgive me if I’m not persuaded by the argument that this reflects sensitivity to public health.

Source: Federal Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_age.jsp

Worried about older people catching COVID-19 in federal prisons? Let them go–not only the ones that are doing time for being presidential go-betweens, but those who are doing time on a Frankenstein-like construction of enhancements and multiplications on nonviolent drug offenses (this is not as much of a thing in state prisons, but it is a huge factor in federal ones).

Speaking of state prisons, the situation at San Quentin continues to be dire. Over the weekend, they’ve seen 204 new cases. Notably, those are 204 positives out of a total of 259 tests, so things are going horribly wrong there. There are also 167 new cases at CCC (reflecting a major testing push), 15 new cases at CCI (hundreds of new tests there, as well as in DVI), 8 new cases at CRC, 5 new cases at WSP, 1 new case at SOL, 1 new case at CAL, and 2 new cases at CHCF (this is particularly worrisome because this Stockton prison houses a medically vulnerable population.)

In short, gentle readers, things are not going well. Stay tuned for updates.

BREAKING NEWS: Newsom to Release 8,000 People from CA Prisons

The Chron reports:

Gov. Gavin Newsom is set to announce that he will release approximately 8,000 people incarcerated inside California’s prison system, in a move that comes amid devastating coronavirus outbreaks at several facilities and pressure from lawmakers and advocates.

Prisoner attorney Donald Specter on Friday said the announcement is expected early this afternoon. Specter, who is the executive director of the Prison Law Office, the organization that represents prisoners in a long-running lawsuit alleging inadequate medical services, said the governor’s office advised of the details.

“We certainly appreciate the effort from the administration to reduce the prison population,” Specter said. “We still remain concerned that there’s not enough space, especially in places like Vacaville and Folsom to house people safely if the virus gets into those institutions.”

Across state prisons, 2,286 inmates were confirmed to have active cases of the virus and 31 had died as of Friday morning, according to California Department of Corrections and Rehabilitation. Staffers with active cases of the virus totaled 719.

Specter said the releases will come on a rolling basis, and they’ll include both people who were scheduled to be freed soon as well as people at high risk for serious complications if they contract the virus.

Those bound for releases include about 700 people from high-risk prisons like San Quentin, Folsom and the California Medical Facility, Specter said, as well as people who are in hospice and appropriate for release. State prisons have about 6,500 people who are high risk medically for COVID-19 and low risk for recidivism, he said, “and they’re going to start releasing some of them.”

The move will expedite the governor’s review for people who were granted parole, which can traditionally take about six months, Specter said.

Prison officials announced Thursday night that they would provide 12 weeks of credit to every inmate eligible for release who had not been found guilty of a serious rule violation between March 1 and July 5. The policy, adopted because prisons have shut down their credit-earning programs during pandemic, could benefit as many 108,000 people.

With the reduced sentences, about 3,100 inmates would reach their earlier possible release date, officials estimated, with those releases set to begin Aug. 1.

Too few and too late, but it’s a start. The advocates, activists, and elected officials are making a difference. We must press on to stop this human rights crime.

Testing, Testing: Why COVID-19 Testing Is a Crucial Element of Curbing Prison Pandemic

CDCR seem to have taken a page out of Trump’s pandemic prevention book: They slowed down testing in San Quentin, the epicenter of the prison pandemic. We found a big push in testing in late June shortly after the San Quentin disaster broke into mainstream media. Indeed, a high percentage of the tests came back positive. Even though cases were still rising, around July 3, testing came to a grinding halt–and the few tests that were still coming in were coming in positive. The correlation we found between cumulative testing and cumulative cases is 0.99. The correlation between new testing and new cases is 0.7. In other words: The more people you test, the more people come out positive. If you’re seeing abatement in the numbers of infected people, it does not necessarily mean fewer infected people. It could mean, and actually does mean, less testing.

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#StopSanQuentinOutbreak Press Conference

Yesterday, on July 9, we held a press conference at San Quentin to draw attention to the conditions inside the prison. We invited Gov. Newsom to participate, but he did not attend. His absence was glaring, as one of the demands of the protesters is that he at least make the effort to visit the prison and see the conditions with his own eyes.

You can read about the press conference in the Guardian, the Chron, and the ABC News website. It was incredibly moving to hear from mothers and spouses of people on the inside about the desperation of their loved ones. James King, state campaigner for the Ella Baker Center who is formerly incarcerated in San Quentin, shared a letter from a friend of his currently behind bars that truly conveyed the horror of dealing with this pandemic. Shawanda Scott spoke of the loving home she has waiting for her son. These testimonies undercut the myth that no one is waiting for those afflicted on the outside, and that, as James said, “the minute they are released… tens of thousands of families will be here at the gate to welcome them with open arms.” Adnan Khan of Re:store Justice spoke very movingly of the tendency to dehumanize people in prison. Dr. Peter Chin-Hong from UCSF spoke of the history of contagion in prisons (“prisons are incompatible with health.”) It was terrific to have legislators with us: Marc Levine, who has been on top of this from the very beginning, Scott Weiner, Ash Kalra, and Rob Bonta were with us. Public Defenders Brendon Woods and Mano Raju, and San Francisco District Attorney Chesa Boudin, also came to lend support. And, it was amazing to hear from Eddie Zheng, and from more family members of people incarcerated at San Quentin, at the open mike section.

What really inspired me was that the families spoke without spite or rancor. They said they were not interested in blame, only in saving their loved ones from illness and death. My mentor Malcolm Feeley, who started the ball rolling on this by emailing me a couple of weeks ago saying “I’m so pissed”, said that this is the new victims’ rights movement: the victims of the state’s indifference.

Co-organizing the press conference was inspiring. There is no way a single organization or demographic could’ve put this thing together on their own. It took a diverse coalition of talent and experience, united by our passion to save people and put an end to what is probably the worst medical scandal in prison history. I am so grateful to my co-organizers–most of whom put an enormous amount of effort into this and stayed behind the scenes. They are an amazing group of people and I hope we can keep up the pressure on Gov. Newsom to do the right thing.

A few people asked me to post my speech, so here it is:

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Hello. My name is Hadar Aviram and I am a law professor at UC Hastings. I am the author of an open letter to Governor Newsom asking him to release people from prison to save lives. I speak here on behalf of more than 400 of my colleagues [now closer to 500–H.A.], who signed the letter: criminal justice experts, prison law experts, public health experts. We are asking Gov. Newsom to do what he knows, in his heart of hearts, is the right thing.

An old Cherokee story tells of a wise grandfather and his grandson. The grandfather says, “Son, within each of us there is a battle between two wolves. One is evil. It is hatred, greed, arrogance, malice. The other is kind. It is compassion, love, empathy, and truth.” The grandson asks, “Which wolf wins?” The wise grandfather replies, “the one you feed.”

If Gov. Newsom were here, I would ask him which wolf he wants to feed. But he is not. Where is he? When people are getting sick and dying in droves, where is he? When buses transport people from prison to prison without testing and quarantining them, where is he? When people who test positive and negative are thrown together without care, where is he? When there is no retesting, where is he? When people get no medical treatment beyond checking their vitals, where is he? When people are terrified to report their symptoms out of fear that they will be thrown in death row or in solitary confinement, where is he? When we don’t even know what’s going on in jails and juvenile facilities because they are not reporting numbers, where is he?

I know that many people secretly think that lives behind bars are worth less than lives on the outside. Some of this ignorance comes from the panic and cabin fever of the pandemic. I would like to explain to them that prisons are part of the community, and that people in prison are members of the community. I should know; I ran the numbers. Infection rates in Marin county spiked after the outbreak in San Quentin. Infection rates in Lassen county spiked after the outbreak in prisons in Susanville. Saving lives in prison is a priority because it protects everyone, people behind bars and people on the outside. By contrast, incubating the virus in prisons endangers us all and makes all our prevention efforts futile. You asked us to do our part. When will you do your part, Gov. Newsom? Which wolf do you want to feed?

The people behind these gates are serving sentences under the California Penal Code. They were not sentenced to abuse, neglect, and illness. They were not sentenced to chaos and ineptitude. They are in the custody of their government, and with this great power comes great responsibility. So, Gov. Newsom, which wolf do you want to feed?

Newspapers have been making distinctions between so-called “violent” and “nonviolent” people. I am here to tell you the facts. The facts are that a quarter of the California prison population are people aged 50 and older. These people do not pose a risk to public safety; rather, they themselves face risks because of their age and deteriorating health. My colleagues and I have studied California crime rates for decades and found no correlation between the crime and commitment and the risk of reoffending. The public risk here is not from imaginary crime, but from the very real possibility that our prisons are turning into mass graves. So, Gov. Newsom, which wolf do you want to feed?

We’ve had to release people from our bloated prisons twice recently: in 2011 and in 2014. Both times, there was fearmongering, and there were stories in the media. We let out tens of thousands of people. We know what happened because we crunched the numbers: Crime rates stayed low. Violent crime did not rise. There was no increased risk to public safety. So, Gov. Newsom, which wolf do you want to feed?

The virus is tearing through Death Row, and the irony is that California has a moratorium on the death penalty. For decades, we litigated to the tune of billions of dollars how to kill people in a way that was not “cruel and unusual”. We were even careful to examine whether people were healthy enough to be killed by the state. And so, when you put the moratorium in place, Gov. Newsom, we applauded you for doing the right thing for California. How does that feel now, when more people have died during this moratorium than we actually executed in the entire century? Which wolf do you want to feed?

Moreover, we know for a fact that some of the people behind these gates, whom you are sentencing to death via Covid, are innocent. They are behind bars because of mistaken eyewitnesses, coerced confessions, and hidden exculpatory evidence. So, Gov. Newsom, which wolf do you want to feed?

And we know that crimes are not just a matter of choice. They come from a confluence of factors, such as poverty, neglect, deprivation, abuse, racial discrimination, persecution, food deserts, lead poisoning, necessity, mental illness, substance abuse, pain and hurt and suffering. The virus doesn’t take sides. The virus doesn’t decide who “deserves” to get sick. So, Gov. Newsom, which wolf do you want to feed?

In 2005, at the UC Berkeley ceremony in which I received my Ph.D., you, then Mayor of San Francisco, were the commencement speaker. You spoke of your decision to allow people to marry the person that they loved. And you said that it is important to do the right thing, even if it’s politically risky, even if you face press backlash, even if people are not ready for it. History has smiled on your bravery. We applauded you for your courage. Now is just such a moment. History is being written, right now, behind these gates. You know the right thing to do. Trust your own goodness. Trust your own courage. Trust your own compassion. Bring them home.

CA Prisons as COVID-19 Incubators: Data Analysis

Building on the work we did in the last couple of weeks based on the CDCR COVID-19 tool, my partner Chad Goerzen spent a few days and nights synthesizing the numbers from the tool with the numbers for the surrounding counties from the L.A. Times tool. We think these plots tell stories about the interplay between prison and community infections, but the stories are incomplete because testing (and retesting) is so lacking, so take them with a grain of salt.

Up on top you see our plots for Lassen county prisons and for Lassen county population. Please keep in mind that the L.A. Times ticker does not include prison populations (though it does include residential homes, as per their data page, and we don’t know whether it includes county jails.) As you’ll see, the Lassen plot confirms that the prison and outside community outbreaks happened in tandem, and that we cannot rule out a causal story that explains the spike in Lassen County as an outcome of the botched transfer from Quentin to Lassen. The spike makes more sense if you notice that our Y axis is exponential, not linear.

The Marin county plot tells a very similar story. Notice that the outbreak in Quentin slightly preceded the sharp spike in county cases, confirming the theory floated in the Chron a few days ago that attributes the Bay Area spikes in great part to the Quentin outbreak.

In other counties, it’s more plausible that the prison outbreaks occur either as a consequence of a community contact or some CDCR snafu, against a backdrop of a county that sees exponential increase in new cases (seen in this graph as linear). A classic exam is Kern County, which we looked at a few days ago. Kern is a relatively open county with low levels of shelter-in-place compliance, and it’s not surprising we’re seeing contagion in all three prisons, which is more consistent with a story of surrounding county chaos than a particular transfer to a particular prison.

Seeing a similar pattern in Kings county. You can see a discrete outbreak in the local prison, against a backdrop of rising cases in the neighboring county. We see the county spikes closely following prison spikes (or vice versa; we’re not sure whether the 6-day testing lag in prisons is the same in the counties), but it’s hard to tell a causal story.

Same thing in San Luis Obispo. We’re seeing the outbreak at CMC against the backdrop of community infections, and it could be attributed to a community contact or to CDCR mismanagement:

At Imperial county, we see parallel outbreaks in prison and county, both of which follow the same pattern over time.

Same deal (with worse numbers) in San Bernardino, where the virus continues unabated in both county and prison:

At L.A. County, which has the worst numbers in the state, there was early on a serious outbreak at the local prison, which has now abated, but their jail is facing some serious problems.

Now take a look at Riverside county, where outbreaks at local prisons are staggered (and all in different stages of abatement.) The county numbers continue to grow–started rising exponentially in mid-May after rising at the same rate since late March — and it’s hard to tell a story about community contacts.

Given the variety of patterns and the low quality of the data, it’s hard to tell a consistent story about this, except the Marin and Lassen stories, which are the most obvious. The only takeaway, which I think is not an unimportant one, is the two-way permeability of prison and county populations. This should provide a rather solid answer to whoever in your life is telling you “but I don’t care about ‘those people'” when you sound the alarm about prison outbreaks.