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.
CDCR’s plan for releasing 8,000 explained. It will provide essential relief to some incarcerated people and their families, but it is too little, too late, too reactive, and too tailored to public pressure.
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.
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.
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:
***
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.
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.
My UCSF colleagues Brie Williams and David Sears, among others, are at the helm of Amend, an organization seeking to transform the toxic correctional culture inside U.S. prisons and jails to reduce its debilitating health effects. They partner with correctional institutions to provide a multi-year immersive program drawing on public health-oriented correctional practices from Norway and elsewhere to inspire changes in correctional cultures and create environments that can improve the health of people living and working in American correctional facilities.
Recently, Drs. Williams and Sears gave a talk at the UCSF Town Hall. You can hear and see their findings here (from minute 19:00 to 34:00.) The team visited San Quentin on June 13 and were horrified by what they found:
The AMEND team made a series of recommendations. I recommend reading their entire report, which details possible isolation sections within the prison, as well as the importance of creating a true sense of partnership with the prison population instead of frightening them even more.
Among the AMEND recommendations was the urgent need to prioritize tests coming from San Quentin, which now take an astounding 5-6 days to come back positive or negative. They also noticed a disturbing neglect in staffing shifts, where staff was not “cohorted” with the same people, but mixed around to mill with new people every day. This was the situation when they visited:
Now, of course, things are more dire; we already have five confirmed deaths. But, and this is important, the picture we are getting is partial and misleading, because testing is so lacking and inconsistent. This gives you a comparison of cumulative testing and the testing positive rate (TPR). You’ll notice that the testing has slowed down, and there’s very little in the way of repeat testing.
If anyone reading this is in a position to help AMEND, either by offering your medical skills or in another way, here’s the contact information:
Today we learned that there are outbreaks at jails in San Bernardino and Riverside counties, and these have been tied to surges in the community. There is no sign of a COVID stats page on either county’s Sheriff’s Department’s webpage. Why not?
Agnotology, a term coined by Robert Proctor and Iain Boal, is the study of culturally induced ignorance or doubt, particularly the publication of inaccurate or misleading scientific data. In this era of post-truth, studying agnotology, in such areas as climate change and vaccines, can be valuable and instructive.
In criminal justice, we spend a lot of time focusing on the persistence of myths and disinformation, such as myths about racial violence and sex crimes. But our agnotology pays attention, as it well should, not only to misinformation, but also to glaring lacks of information. For example, Franklin Zimring spends a big chunk of his book When Police Kill discussing the huge gaps in data collection about incidents in which police officers kill citizens, and explaining how his analysis required relying on journalistic projects, rather than on official FBI statistics. Similarly, in American Roulette, Sarah Beth Kaufman takes the time and space to discuss the sociological meaning of a lack of any centralized database containing information about capital trials.
Which brings me to today’s topic: COVID-19 in jails. The UCLA COVID-19 Behind Bars Data Project, spearheaded by my colleague Sharon Dolovich, is doing an important service to all of us by collecting longitudinal data on the development of contagion, hospitalization, deaths, recoveries, transfers, testing, etc., for correctional institutions nationwide. If you look at their database, you’ll see impressive coverage of state prisons. County jail coverage, however, is a different story. Yesterday on Twitter we were exchanging notes on the frustrations of trying to find data on COVID-19 spread in jails:
These folks do such a terrific job, and if even they can’t find what we’re looking for, then getting this data is going to be a painstaking job of making requests county-by-county. A few counties, such as Orange and Los Angeles, publicly provide the statistics on their websites. Others, such as San Francisco, send emails to lawyers, etc., when someone in jail tests positive (here are the press releases.) It’s easy enough to find webpages devoted to visiting and testing policies, but the statistics are elusive.
I’m a social scientist, and so lack of information in itself strikes me as an important social fact. When my colleague Margo Schlanger wrote this brilliant piece about the Plata litigation, she expressed concern that shifting control over prison healthcare from one centralized actor, the state, to the counties, would create a “hydra problem”: 59 new, separate sources of healthcare problems. At the time, the thinking was that the state was doing so poorly that surely the counties would be a better solution. In some ways, they were indeed better–that is, as Jeffrey Lin explains, some counties were. In some places, the judges made full use of the option of community supervisions, whereas in others, all the resources and energy went into building bigger jails.
We see the problem of diversification in the way we are getting information. As you saw in my previous posts, CDCR has an excellent and informative tracking tool; one only wishes their actual containment and healthcare management rose to the level of their pandemic documentation. By contrast, in the counties, you’re not dealing with one master, but with fifty-nine. Almost no one is obligated to report, and those who do, do not do it in a uniform manner that would enable us to compare counties effectively.
This is a huge problem for several reasons. The fragmentation of data makes it difficult–perhaps impossible–to track down interactions between correctional outbreaks and spikes in the surrounding counties. For example, we don’t know nearly enough about COVID-19-related releases from jails, nor do we know how to assess the contagion behind bars without clear, accessible information about population, design capacity, and testing protocols. For that reason, it’s impossible to draw connections that are hugely important–especially because jail staff is likely to be coming in and out of the facility into the surrounding county. Moreover, transfers between prisons and jails, which are important points of interface between systems and with the community, remain invisible. In an ideal world, there would be an excellent data interface between the CDCR tool and the county tools, and the latter would all look the same and provide the information that CDCR is doling out (as well they should.) But this is not that world, and perhaps we’ve gotten so used to administrative fragmentation that many don’t see what a hindrance it is.
Jails are not the only place where fragmentation is a problem. A decade ago, Jeremy Seymour, Richard Leo and I wrote a piece called Moving Targets, in which we explained that the fragmentation of police departments in the U.S. allows for all kinds of negligence and shenanigans in which one municipal police department can blame its mishaps on another. The current interest in policing has floated another nefarious aspect of this: cops who beat people up and lie in court might get fired by Department A, but might be immediately rehired by Department B, given that there are no state or federal licensing requirement. “This person beats people up and lies in court in a different municipality” does not seem to be a hindrance to getting rehired; in fact, the glorified disbanding of police departments has led to the county sheriff’s department taking over and rehiring all the cops that the disbanded department fired in the same geographical area. The absurdity goes beyond just cops–incompetent coroners get fired and rehired by other agencies all the time.
What we urgently need is for counties to liaise with whoever is doing the work for CDCR, get the same platform, collect the same information, link their databases, and get to work. This would be incredibly helpful to the good folks doing the work at the UCLA data collection project, but to epidemiologists and to all of us. Until that happens, a word of advice to other folks doing work on this: please, keep in mind this glaring gap in knowledge when you theorize about what is going on behind bars.
When I heard late last night of Gov. Newsom’s decision to close California beaches because of crowds, I was devastated. I observed my thought pattern immediately cycle through the first three of Elizabeth Kübler-Ross’s five stages of grief: denial (“I can’t believe this. It can’t be happening. Surely this won’t happen”), anger (at the Governor, at the mayor, at the lawmakers, at the folks congregating in five SoCal beaches – “you are why we can’t have nice things!”) and depression (“what am I going to do? How will we get through this month?”). This morning I progressed to the bargaining stage (“wait, he said state beaches, right? So SF beaches, which are run by the city, are exempt, right?”) and I might find some acceptance later this afternoon.
In short, my inchoate fear, sadness, and uncertainty, finally found an appropriate coathanger to hook itself to, and I was in emotional turmoil throughout the night.
Now that the emotional storm has passed, I’m thinking a bit about what park and beach closure policies have to teach us about the punitive and cooperative aspects of making public policy. Oftentimes when prohibitive legislation is considered on any topic, ranging from speed laws to tax policy, people forget that any policy brings with it some level of noncompliance. A classic article by Fred Coombs provides a typology of reasons for noncompliance: “(1) lapses or ambiguities in communication; (2) insufficient resources; (3) an objection to the policy itself (i.e., its goals or its assumptions); (4) distaste for the action required; or (5) doubts about the authority upon which the policy is based, or that authority’s agents.”
Looking particularly at (3) and (4), which are different facets of how much one agrees with the policy decision and how much one is inconvenienced by them, reminded me of Tom Tyler’s classic work Why People Obey the Law. Moving away from the “instrumental” explanations (“people obey if there’s something in it for them”), Tyler focuses on normative ones, which are concerned with–
the influence of what people regard as just and moral as opposed to what is in their self-interest. It also examines the connection between normative commitment to legal authorities and law-abiding behavior. If people view compliance with the law as appropriate because of their attitudes about how they should behave, they will voluntarily assume the obligation to follow legal rules. They will feel personally committed to obeying the law, irrespective of whether they risk punishment for breaking the law. This normative commitment can involve personal morality or legitimacy. Normative commitment through personal morality means obeying a law because one feels the law is just; normative commitment through legitimacy means obeying a law because one feels that the authority enforcing the law has the right to dictate behavior. According to a normative perspective, people who respond to the moral appropriateness of different laws may (for example) use drugs or engage in illegal sexual practices, feeling that these crimes are not immoral, but at the same time will refrain from stealing. Similarly, if they regard legal authorities as more legitimate, they are less likely to break any laws, for they will believe that they ought to follow all of them, regardless of the potential for punishment. On the other hand, people who make instrumental decisions about complying with various laws will have their degree of compliance dictated by their estimate of the likelihood that they will be punished if they do not comply. They may exceed the speed limit, thinking that the likelihood of being caught for speeding is low, but not rob a bank, thinking that the likelihood of being caught is higher.
Tom Tyler, Why People Obey the Law, pp. 3-4
Tyler thinks that that fostering compliance from a normative place works better because it requires less enforcement and it fosters more care for people’s values and motivations. He coins the concept “procedural justice” to argue that, when people think a decision has been made fairly–even if it disadvantages them personally–and they have been treated respectfully, they are more likely to comply.
It is inevitable that not all citizens will share the same normative values or the same level of legitimacy in government. While most of us understand the need for extreme social distancing measures to save lives, some of us simply do not believe the facts the government cites as a basis for its decisions. We might think the government is ignorant, or we might think it is deliberately misleading us because of ulterior motives. We might think the government has good intentions, but is missing the mark with the policies. Or, we might simply find the new requirements unbearable.
Looking at my own reaction to the order, it was guided by similar questions. Is it true that there’s noncompliance? Yes, we have evidence of it in SoCal. Is it widespread? No, by the Governor’s own admission: “About 100 beaches, easily defined 100 beaches, and there were five where we had some particular challenges. Overwhelming majority there were no major issues. Quite frankly no issues,” he said. Is the reaction disproportionate to the threat? That’s a matter of perspective. Look at these concerns from local government officials:
California State Assemblymember Melissa Melendez fired back at Newsom’s decision on Twitter, stating “This is not going to end well. Californians are not children you can ground when they don’t ‘behave’ the way you want.”
Orange County Board of Supervisors member Donald Wagner on Wednesday acknowledged the governor’s ability to close the county’s beaches, but said “it is not wise to do so.”
“Medical professionals tell us the importance of fresh air and sunlight in fighting infectious diseases, including mental health benefits,” Wagner wrote.
“Moreover, Orange County citizens have been cooperative with California state and county restrictions thus far. I fear that this overreaction from the state will undermine that cooperative attitude and our collective efforts to fight the disease, based on the best available medical information.”
All the noncompliance factors are there: an emotional insult at not being respected enough to follow the rules out of our own volition, doubts about the values behind the approach (punitivism vs. fresh air), concerns that suppressing people too much will backfire and yield more noncompliance. Right out of the Coombs and Tyler playbooks.
The big question is: What, ultimately, will produce more compliance? Do we get more cooperation if we relax the order, counting on people’s common sense (and accepting that some will not display such common sense), or if we impose the order, counting on people’s agreement in principle? My gut tells me that, in the short term, enforcement stuff might be better, but in the long term, people’s sense of legitimacy and compliance will wear off, and we might see worse behaviors all across the state than the ones we saw on the beach. The problem is that levels of compliance are very tricky to model. They depend on demographics, political views, and other factors, which are changing daily, and would make this very difficult to predict even for compliance experts.
Ultimately, I think my personal reaction to this has been a great teacher. It opened some unexpected compassion gates: I managed to find within my soul more than a modicum of empathy for the feelings of Huntington Beach protesters, Spring Break revelers, and anti-vax conspiracy theorists. Don’t get me wrong: I have deep ideological disagreements with all these three groups and a much higher belief in the legitimacy of our local government (let’s talk about Trump some other day, shall we?). But what we share is the deep sense of emotional injury by a curtailment of a freedom we treasure. That’s something I can understand and sit with emotionally even as I ideologically disagree. In our case, my family treasures nature and water, and my son thrives during these difficult times because he has the world’s biggest sensory box to play and learn in. I very much hope our local government will not take this away from him.
Socially distant boy having a blast on a San Francisco beach
The thing everyone was warning you about has happened: the prisons, incubators of COVID-19, are spreading it to the general population. The Columbus Dispatch, reporting on the Ohio prisons rife with infections and disease, reports:
Marion County’s top health official is urging vigilance as the outbreak of the novel coronavirus in a Marion prison spills into the community.
More than 80% of Marion Correctional Institution’s inmates have tested positive for the coronavirus, as have more than 160 corrections officers and other employees, according to the Ohio Department of Rehabilitation and Correction. Those workers live in Marion County and surrounding counties.
More prisoners might have the virus because although a prison spokesperson previously said that mass testing was completed more than a week ago, spokesperson JoEllen Smith said Friday that only 2,300 tests had been administered. She did not clarify whether that included employees, and the prison has about 2,500 inmates.
Even excluding the prisoners who have tested positive, Marion County has a higher number of cases per capita than almost every other county in Ohio, including densely populated ones such as Franklin and Cuyahoga, according to Ohio Department of Health data.
[Health commissioner Traci] Kinsler attributed Marion County’s high number of cases per capita to the prison outbreak.
The idea of prisons as incubators of miasma is as old as the prison reforms of John Howard. Ashley Rubin has a terrific thread on this on Twitter. As she explains, preventing the spread of disease was at the forefront of the reformers’ interests, and for many thinkers was a metaphor for the spread of crime.
Many of the campaigns for releasing prisoners that I’ve seen make the scientifically correct point that, as long as U.S. prisons remain Petri dishes for the virus, nobody’s safe. I want to draw an important distinction between this argument and the equally correct argument that prisoners–better said, people who happen to be in prison during this outbreak–are human beings, too, whose protection from the virus would have to be a priority from a human rights perspective whether or not they endangered others.
I’m wondering whether the former argument is made not only because it is sound (it is) but because of realpolitik. In Cheap on Crime I argued that the post-recession reforms a-la “justice reinvestment”, which led to a decline in the overall U.S. prison population for the first time in 37 years, benefitted from having a morally neutral cost argument, which allowed activists and advocates to break the decades-long impasse between public safety and human rights. It’s quite possible that framing prisoner release as a “what’s in it for me?” argument, rather than an argument on behalf of the prisoners themselves, has more persuasive power, and if so, I’m all for whichever argument gets less people, in and out of prison, sick or dead.
But just so that we get a glimpse of life behind bars, here are some words from Kevin Cooper, an innocent person on San Quentin’s death row (shared with me via email through Innocence Project):
Experiencing COVID-19 on Death Row
By Kevin Cooper
In my humble opinion being on death row with this COVID-19 pandemic raging is like having another death sentence. I can and do only speak for myself in this essay, and I must admit that I am scared of this virus!
I pride myself on not being scared of anything or anyone on death row, not even death itself, because after all this is death row. But this virus is more than just dying, or death. It’s a torturous death, like lethal injection is.
I do all I can to take care of me in here under these traumatic times and stressful circumstances. I social distance, I wash my hands regularly, clean this cage that I am forced to live in on a regular basis, and I often ask myself is this enough?
Every inmate who lives next to me or around me to my knowledge is taking care of themselves too. Quite a few still go outside to the yard every other day as we are allowed to do. I went out for the first time two days ago after a month living non-stop inside this cage. I went out to get fresh air.
This unit, East Block, has staff who have been giving us cleaning supplies such as “cell block” which is a strong liquid cleaning agent, and we use that to spray on a towel and wipe the telephone down before each inmate uses the phone. We have been given hand sanitizer for the first time since this pandemic started. It’s a 6-ounce bottle and the writing on it says World Health Organization Formula. The same World Health Organization that Trump just stopped funding…no joke!
We still have not received any mask* though a memo was sent around last week stating that cloth masks were being made to be passed out to inmates but that they have not yet been finished being made. Who is making them? I don’t know.
We people, we human beings on death row aren’t for the most part cared about by society as a whole. That truth makes some of us wonder, including me, do the powers that be truly give a damn whether we human beings who have been sentenced to death by society care if any of us get the coronavirus and die from it in a tortuous way?
In 2004 I came within 3 hours and 42 minutes of being tortured and murdered/executed by the state of California. I survived that, and have worked very hard with lots of great people to prove that I am innocent, that I was framed by the police and that I am wrongfully convicted. To do all of this and, especially to survive that inhumane and manmade ritual of death in 2004, only to be taken out by COVID-19 is something that honestly goes through my mind on a regular basis. Right now, I am free of this virus and I am doing everything to stay this way. But that thought, that real life and death thought of the coronavirus taking my life is always present, especially under these inhumane manmade prison conditions on Death Row.
*On Monday, April 20th, Kevin called to say: I received a cloth face mask today as did everyone here on death row. We are now instructed to use it every time we leave the cell.
