Prison-Community Transmissivity Model: COVID-19 Management in Prisons Would Have Prevented Almost 12,000 Deaths in CA

It’s been a very busy week, but an accomplished one: Chad Goerzen and I finished writing FESTER and sent the manuscript off to University of California Press. We are very proud of the book and look forward to the reviews, which are sure to make it even stronger.

Among the many things we do in this book is a model of prison-community transmissivity. Because the correlation between prison and community cases (which we were tracking here throughout the pandemic) is bidirectional, we rely on the Bradford Hill factors for causal inference in epidemiology. Among the tools we use is a counterfactual model, in which we create concentric rings around each of the following: every correctional facility (e.g., San Quentin); every surrounding community (e.g., Marin County); and the wider community beyond. We can add and subtract rings to show the effect of infections in one ring on the others.

Our model shows that, due to the extraordinarily high prevalence of COVID-19 cases inside CDCR facilities, particularly during the year 2020, these facilities had a large influence on their regions, far more than their relatively small population and isolation would suggest. In Marin County, we predict that avoiding the Quentin outbreaks would have prevented 58 deaths, 22% of the COVID-19 deaths; and throughout the states, without the outbreaks in CDCR facilities, we could have prevented 11,974 deaths, or 18.5% of the COVID-19 deaths in California for this period. Furthermore, the outbreaks in San Quentin and CDCR occurred before vaccinations were publicly available and before effective treatments for COVID-19 were developed, making them particularly high impact on mortality.

In the next few weeks, I will give a few talks in which I’ll elaborate on the model and on the other tools we used to expose the experience and roots of what we consider a very serious human rights crime. On September 13 I’m giving a virtual talk at the University of Arizona, and on October 10 an in-person talk at UC Berkeley’s Center for the Study of Law & Society. I’ll advertise these via the Events tab on the blog and would love to see my readers in the audience to discuss what we can learn from this disaster.

Understanding Newsom as a Politician following Injection Site Bill Veto

The harm reduction community is deeply dispirited over Gov. Newsom’s rejection of the proposed safe drug injection/overdose prevention site in Oakland. Marisa Kendall reports for the Mercury News:

Senate Bill 57 would have allowed the two Bay Area cities to become among the first in the country to open facilities where users could bring drugs and consume them in a safe, supervised setting. The bill passed the state legislature this month. But after rejecting the bill, Newsom expressed worry that the law could actually make the drug crisis worse in those three cities.

“The unlimited number of safe injection sites that this bill would authorize — facilities which could exist well into the later part of this decade — could induce a world of unintended consequences,” he wrote in a veto message. “It is possible that these sites would help improve the safety and health of our urban areas, but if done without a strong plan, they could work against this purpose.”

Newsom added that he is instructing the secretary of Health and Human Services to convene a group of city and county officials to discuss overdose prevention strategies and how to implement a more limited pilot program.

This is a great disappointment, but not a big surprise. Kendall ties this position to Newsom’s possible presidential candidacy:

The move comes amid mounting speculation that Newsom might be eyeing a presidential run. And while it’s unclear whether those ambitions played into his decision, rejecting the bill likely will only help him on the national stage, where the majority of voters would likely balk at the idea of facilitating drug use, said Claremont McKenna College political science professor Jack Pitney.

“There’s a solid policy rationale for the veto,” Pitney said, “but politically, he’s dodged a potentially big problem.”

I have a few thoughts to offer about this observation. For many years–since my graduate school days in the early 2000s–I liked Newsom and believed in him, though I always knew that a politician is a politician, not the messiah (some of the Obama disappointees fell into that trap.) I admired his administration’s bold moves to the point that I was delighted to be considered for his penal code revision commission and sorely disappointed not to have been picked. In hindsight, though, not working for this administration was a blessing. I can’t imagine being able to help the people at San Quentin as much or in the ways that I did if I felt bound by loyalty to the Newsom administration.

Watching Newsom, Bonta, and others handle the executive and judicial aspects of the COVID-19 crisis was sobering. In Chapter 7 of our forthcoming book FESTER (the manuscript is due with UC Press this week!) we make the following observations about Newsom:

[T]he Governor’s [paltry COVID-19 release] program was overly sensitive to public backlash, and featured the classic hallmarks of the age-violence-risk paradox. Bifurcation—applying early releases and good time credits only to nonserious, nonviolent, nonsexual offenses—was in evidence in every category on the plan, despite the lack of correlation between the crime of commitment and risk to public safety. At first blush, such kowtowing to public outcry would seem uncharacteristic of Newsom, whose political path, from his early days as Mayor of San Francisco, featured bold, high-profile moves to advance progressive values and objectives, which he presented as doing the right thing no matter the backlash. His move to legalize same-sex marriage in California—the subject of ferocious litigation that culminated in a Supreme Court victory—was perceived by some, at the time, to be political suicide. Similarly, his moratorium on the death penalty was criticized for not reflecting the wish of a small but consistent majority of Californians. In both of these cases, Newsom correctly read the political winds, and his predictions proved true; his self-styled image of an idealistic pioneer was boosted by the fact that his executive decisions preceded wider societal shifts. But Newsom’s reluctance to release people convicted of violent crime reflected age-old wisdom in California politics that, even in the bluest of counties, it is not a wise political move to flout entrenched fears of violent crime. Reflective of the justifiability of this concern was a disparaging story in the Los Angeles Times about Newsom’s plan titled, “California is releasing some murderers due to COVID-19. Some say it should free more.” After a barrage of phone calls from Coalition members, the newspaper changed the headline, but the content, which rehearsed tired tough-on-crime tropes from the Reagan administration days, remained unaltered: the writers chose to interview crime victims who, while entitled to their personal opinions, were neither the statewide curators of victims’ perspectives nor qualified to offer broad insights on emergency healthcare policies. They also mentioned, without a shred of irony, Willie Horton.

. . .

Three examples of such aging, low-risk people drive home the extent to which age-violence-risk paradox was part of the Newsom administration’s calculus. Twice during the pandemic, the parole board recommended parole for Leslie Van Houten, born in 1950 and housed at California Institute for Women (CIW.) Van Houten had been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what appear, in light of her exemplary prison record, pure political spite. Van Houten has maintained a clean disciplinary record, participated in a variety of laudable programs, and incessantly excavated her psyche to show “insight” to the Board. She participated in the Manson murders when she was 19 years old, manipulated and sexually exploited in a setting that, with today’s #MeToo sensibilities, might have shed a completely different light on her involvement.

As one of us has explained elsewhere, the Manson family cases shine a light on the question of redeemability, featuring people who have clearly done their utmost to undergo, live, and exude transformation but whose notoriety stands in their way. But van Houten’s two last hearings featured an additional consideration: the parole hopeful was over 70 years old and CIW, where she was housed, was experiencing an outbreak just as she was denied parole.

Another notorious member of the “Class of ‘72’”—the 107 people condemned to death whose sentences were commuted to life with parole after People v. Anderson—was Sirhan Sirhan, who had assassinated Robert Kennedy. At the time of his COVID parole hearing, Sirhan was 77 years old. The Chronicle’s Bob Egelko forecasted his parole bid:

“Anybody that has ever walked into my office, you have to walk by photographs of Bobby Kennedy’s funeral procession, those famous train photos,” the governor said, according to a transcript provided by his office. “The first photograph, the only photograph you will see in my office is a photo of my father and Bobby Kennedy just days before Bobby Kennedy was murdered.”

At the time of Sirhan’s parole bid, Newsom was facing a recall election in which he had everything to lose, and absolutely nothing to gain, from releasing Sirhan. As Egelko explained, Newsom’s leading opponents in the recall, all of whom were well to his right politically, would seem equally unlikely to approve Sirhan’s parole. Moreover, any decision to release Kennedy’s murderer would surely become a flash point in the 2022 governor’s election.

“I’d be shocked if Newsom didn’t reverse” the parole board’s decision, said Robert Weisberg, a Stanford criminal law professor. Although the governor would have to explain why he believed Sirhan still posed a threat of violence, Weisberg said, he would most likely be “responding to a public view that this guy’s crime was so heinous that he shouldn’t be paroled.”

Predictably, Newsom vetoed Sirhan’s parole and, perhaps hoping to win political points while facing a recall election, took the trouble to pen an op-ed about it in the Los Angeles Times:

“Kennedy’s assassination not only changed the course of this nation and robbed the world of a promising young leader, it also left his 11 children without a father and his wife without a husband. Kennedy’s family bears his loss every day. Millions of Americans lost a unifier in a time of national turmoil and grief, just nine weeks after the assassination of the Rev. Martin Luther King, Jr., and four-and-a-half years after the murder of Kennedy’s brother, President John F. Kennedy.

“Yet, after decades in prison, Sirhan still lacks the insight that would prevent him from making the kind of dangerous and destructive decisions he made in the past. The most glaring proof of Sirhan’s deficient insight is his shifting narrative about his assassination of Kennedy, and his current refusal to accept responsibility for it.”

The language in Newsom’s op-ed echoes the concept of “insight”, which parole researchers broadly agree is a deliberately opaque, vague term used to justify denials based on the now-prohibited consideration of the heinousness of the original crime. Kathryne Young explains that “insight” is. Kristen Bell identifies the same obfuscation with regard to juvenile parole hearings. And Rita Shah, in a review of my previous book Yesterday’s Monsters, pithily explains that “Like rehabilitation, insight seems be a bullshit term as determining whether one has gained insight or is on the road to rehabilitation appears to be the criminal legal system’s equivalent of ‘I’ll know when I see it.’”

But the absurdities in Van Houten and Sirhan’s cases pales in comparison with the continued incarceration of Gerald Albert Oates who, at the age of 94, is the oldest living person incarcerated at CDCR. After a parole denial in 2018 because, unbelievably, Oates is still categorized as “high risk” by CDCR,[8] he remained incarcerated throughout the COVID-19 crisis, apparently surviving the Newsom Administration’s project to identify priorities for release. Oates’ case highlights the extent to which the calcification of fear and loathing of so-called “violent offenders”, wrought by the age-violence-risk paradox, stood in the way of making parole decisions that made sense, practically and medically.

There you have it: a politician I used to respect and admire. Over the course of the last few years, I have come to realize that his true gift is his keen sense of smell for where public opinion will be two weeks from now, appearing as a maverick when pushing initiatives that he knows will shortly enjoy wide public support. Because he knows that people addicted to drugs in the streets and people languishing in overcrowded prisons (1) don’t vote and (2) don’t matter to voters, he can afford to continue running California as if their lives don’t matter at all.

Last comment: Whatever Newsom is doing is playing out marvelously in California, where a recent poll shows him a reelection shoe-in (long-time readers will recognize his opponent, Brian Dahle, an old-skool law and order guy who opposed the recent prison closure in Susanville.) But it might not earn him as many points as he hopes in less-blue pastures on the national stage; he’s not getting any love for this on Fox News, where they can see right through it (even a broken clock shows the right time twice a day.)

LSA 2022 in Lisbon!

Hello, Everyone! Today I’m heading out to Lisbon, Portugal, for the annual meeting of the Law & Society Association. At the meeting I will be quite busy, participating in five panels:

Wednesday, July 13, 8:15-10:00am Lisbon time: Criminal Law. I will comment on three groundbreaking papers on topics ranging from the politics of self defense to the criminal responsibility of AI entities.

Thursday, July 14, 10:15am-12:00pm: Politics in and of Punishment. I will comment on papers examining public opinion, punitivism, and political machinations in punishment.

Friday, July 15, 2:45-4:00pm: Emotional Labour of Conducting Research. A topic near and dear to the heart of anyone doing work in and about correctional facilities, I will comment on papers unpacking the emotional toll of researching complicated settings (my comments will highlight, among other issues, secondary trauma, and provide some practical mindfulness and wellbeing tips for advocates and activists as well as journalists and interviewers.)

Saturday, July 16, 12:45-2:30pm: Punishment’s Nuance: Looking at Incarceration and Parole in New Contexts and Perspectives. I will present Chapter 3 of my forthcoming book with Chad Goerzen FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster, which surveys the pains of COVID imprisonment. Ashley Rubin will comment. The other papers of the panel are well worth hearing.

Saturday, July 16, 4:45-6:30pm: Contrasting penal trends across the Global North and the Global South III. I will comment on four papers by criminologists and social historians on the political economy of punishment across borders, and will center my remarks on the malleability of the concepts of “developed” and “developing” countries (a topic I discussed here.)

All of my panels, including locations, are listed in the event tabs of the blog. I’ve already read most of the papers I’m commenting on, and the quality is outstanding!

As the outgoing co-organizer for CRN 27, Punishment and Society, I also plan to attend our informational/social meting Wednesday (13 July) from 12:10 to 1:10 (location TBD for CRN members.) 

I am also the book review editor for Law & Society Review (until the end of 2022) and happy to discuss your new publication and how to celebrate it in our flagship journal. And, as a member of the LSA Publications Committee, am at your disposal if you want to discuss the open call for a new LSR editor-in-chief.

I do not have a Portuguese SIM, and my responsiveness to texts throughout the day will depend on internet availability. The safest way to schedule something with me is through my email (messages to this website end up in the same inbox, so you can do that, too.)

AB 2730 Proposes a Prison-Release Continuum

Good news! AB 2730 (Villapudua) is on its way to the California Senate. The gist of the proposal is:

This bill would would, subject to appropriation by the Legislature, create the California Antirecidivism and Public Safety Act pilot program for the purpose of providing opportunities for job training and work experience to individuals during incarceration to ensure their readiness for employment upon release from incarceration. The bill would require the California Department of Corrections and Rehabilitation to establish and implement a 5-year pilot program under which individuals sentenced to state prison, and scheduled to be released to parole or postrelease community supervision within 2 years, would be eligible to participate. The bill would require the pilot program to provide for the housing of the program participants in a community campus setting. The bill would require program participants to have access to evidence-based programs suitable for serving their rehabilitative, workforce training, and education needs, as specified. The bill would require the department, on or before March 1, 2027, to submit a comprehensive report to the Legislature that evaluates the effectiveness of the pilot program, as specified. The bill would repeal these provisions on January 1, 2028.

The idea is nothing new from a global perspective. As Cal Matters’ Nigel Duara explains, it is inspired by Scandinavian prisons, but I vividly recall working on precisely this sort of thing alongside Israel’s Prisoner Rehabilitation Authority in the late 1990s and early 2000s. I’m not sure how the program works now or how well it is funded, but back in the day the idea was this: ninety days before any incarcerated person was to be released, representatives of the Authority would meet with them and come up with a release plan that involves housing and employment. The Authority partnered with an assortment of diverse entities on the outside–agricultural enterprises in Kibbutzim, Yeshivot looking for students, big construction contractor firms, and lots more–and tailored an employment plan for each person. They made sure the person started receiving orientation and training before being released, and the prospective employers were briefed on how to make people feel welcome. They also sponsored a wide variety of housing initiatives, including subsidized housing that partnered two university students with one formerly incarcerated roommate.

It is also nothing new from an historical perspective. One of the most well-known prison reformers, Alexander Maconochie, was Warden of Norfolk Island (see image above) in the mid-19th century and introduced a points system that rewarded good behavior with gradual freedoms and skill acquisition. He transformed a horrific penal colony into a success story and ended up being a victim of his own success, removed from office by law-and-order folks who didn’t like hearing that the prisoners had toasted the Queen’s birthday with alcohol.

Here are some thoughts on what is and is not in the bill, which is a very general one-pager:

Who is in the program? The bill states that, at least during the five-year pilot period, the participants will be chosen by the warden or his/her designate. The criteria are not specified in the bill. I worry that this means that wardens concerned about optics will exclude long-term prisoners who could most benefit from a good introduction to the outside world.

How long does the program last? It looks like the prison is budgeting for the last two years of one’s sentence,

What job skills are provided? The Cal Matters article mentions truck driving, which means leaving prison with a Class A commercial driving license (a great asset on the job market.) But I wonder if CDCR shouldn’t also look at programs it already offers to very few people and consider vastly expanding them. Two examples of programs that produce a 0% recidivism rate (!) are carpentry and marine technology, and our incarcerated firefighter program could also use a considerable expansion. I’m also not entirely clear whether this is only about the provision of jobs or also about actually connecting people with openminded employers, so that they can have a guaranteed job on day one. This is how it’s done in Israel and should also be done here, given the mixed blessing of Ban the Box.

What else does someone need before they go into the outside world? According to Alessandro de Giorgi’s work–money to survive and a place to live. The main problem people face in the first few months on the outside is abject poverty. And since this program doesn’t provide any extra funding, I wonder how we can accomplish that.

If there’s no money, how can prisons make this happen? While rehabilitative prison programming, which now relies mostly on volunteers, is quite uneven in quality, some programs, such as Alliance for CHANGE, already provide useful, pragmatic training for reentry, including training on how to use smartphones and the Internet, as well as budgeting, managing outside bureaucracy, and the like. CDCR should approach this in a collaborative way, seeking to scale up what is being done in these volunteer programs for the benefit of the whole prison. What this also means is that, if the quality of incarceration has to improve, the quantity has to be decreased, and the best way to do that is to incarcerate fewer people for shorter periods. Presumably, if this program works and its graduates are less likely to get back to committing crime, it should pay for itself.

What about staff/guards? CCPOA has, perhaps surprisingly, lent its support to this project, telling CalMatters that the guards have front-row seats to everything that doesn’t work: programs that have “no correlation to the needs of the communities to which inmates will be released” and housing scenarios that produce “pressures […] from fellow inmates [that] can be too great to keep to the straight and narrow.” They know that “[p]rison politics can often be inescapable when programs and housing are delivered in the same environment as those who have no intention of improving themselves” (and one only wishes they were so enlightened when it was time to get vaccinated.) But I also think that, in separate transitional housing, CDCR should seriously consider hiring, training, and placing differently.

How to assess the success of the project? This is a very tricky issue. If the folks who enter the program are selected by the warden, rather than randomly assigned to the program, then an experiment with randomized experiment and control groups is impossible, and much of the success of the program may rely on self-selection. So, even if the pilot cohort will be successful, this will raise serious questions about the ability to scale this up to the entire prison population. Whoever is doing this evaluation study will have their work cut out for them (I don’t think it’ll be me, but we’ll see.)

What about the politics of this? Will it pass through the Senate? I don’t know. Everything is policitized these days, even things that shouldn’t be. It should be everyone’s goal, from the staunchest law and order fanatic to the bleedingest of progressive hearts, that less recidivism is good for everyone: taxpayers, potential victims, you name it. There is no reason this should get anything less than enthusiastic support from all quarters; the question is only whether the reallocation of CDCR’s budget will be done in a way that sets this up for success.

My Chesa Recall Punditry: The View from Bayview-Hunter’s Point

Last night provided me a unique vantage point on the Boudin recall effort: I was an inspector at a polling station in Bayview-Hunter’s Point, which is a neighborhood with a long history of neglect and criminalization. It is also unique in its demographics: 33.7% African American in a city that is just under 6% African American as a whole. There were approximately 650 registered voters in our precinct. 18 voted by mail and 17 voted in person, for a grand total of 35 voters. That’s 5% of the electorate. Things were somewhat better, but not by much, elsewhere in the city. By stark contrast to the 2020 Presidential election, pre-election mail-in voting in this local election–the third in 2022!–was very low. Our Federal Election Deputy (FED), who came to visit us throughout the day, reported that the polls were quiet and dormant throughout the whole day, pretty much everywhere.

Why does this matter? Take a look at a map published in today’s Chron of the neighborhoods that voted against Boudin:

At first glance, the story appears to be that neighborhoods associated with Asian-American populations tended to support the recall more fervently. This is unsurprising, and only talked about in hushed tones even though I think it is a big part of the story. In the last few weeks I saw concerted, fervent activism in support of the recall from very similar crowds to the ones who drove the SFUSD recall from a few months ago: it’s not all about out-of-town Republican millionaires conning unsuspecting masses into false consciousness. These are pretty much the same parents who resented the performative woketalk from the Board about school renaming and lottery admissions to Lowell. I suspect that some residual energy poured over from the previous recall (which I think was 100% justified) to this one (which I think was not.) The superficial narrative might be that a permissive and forgiving attitude toward prosecuting some people (read: presumably, young African American men) incentivizes crime and victimization (read: toward, presumably, Asian American victims) in the same way that lowering standards and talking about reparations and abolitionism (read: a narrative that supports, presumably, a monolithic African American interest) harms the pursuit of hard work and excellence in education (read: the purview, presumably, of Asian American students and parents.)

This story, which suggests the fomenting of racial animus between these two groups, building on the racial conflict undertones of the previous recall, is not completely preposterous. Most of the people who came to vote in person yesterday at our precinct were African American, and from their conversations, I gathered they all came motivated to vote against the recall. But this assumes that we can understand and generalize trends from a pretty minuscule percentage of San Franciscans. It’s not that the people who live in my beautiful city don’t care about criminal justice administration. NextDoor and other social media outlets are full of people chewing each other’s heads off about whether this or that wave of smash-and-grab, retail theft, or other incident is Chesa’s fault. But how many people care enough about this to put work into reading a hefty booklet and considering their positions on a three-page ballot, in which Prop H was the very last voting issue on the back side of the third page, for the third time in a row in the same year?

Over the years, I’ve returned again and again to Vanessa Barker’s excellent book The Politics of Imprisonment. Barker conducts a three-way comparison of penal politics in three states: California, Washington, and New York, finding that California’s political culture more easily lends itself to punitive experiments because of its polarization and populism. I write about this culture in Yesterday’s Monsters, when I show how politicized and emotion-driven the issue of parole is. In this kind of political environment, where money and strong interests can push something into the ballot as well as foment a well-oiled promotion machine (complete with all the tricks and deceptions we’ve come to expect from the initiative process), it is not difficult to swing the pendulum back and forth, from big reforms to big cancellations, from experiments in jurisdictional shifts to draconian policies masquerading as victim’s rights policies, and everything in between.

Ultimately, I think that what we saw here was just an exercise in manipulating this big machine and effectuating huge change through a relatively small number of voters. Direct democracy can be, and is, too direct when it imposes this burden thrice a year on already exhausted, grieving, anguished, and ticked off people with an empathy deficit from three years of awfulness that followed four years of a different kind of awfulness. In sum, whether or not the small minority who bothered to show up at the polls has false or true consciousness matters much less, sadly, than the forces exploiting the initiative process far beyond the Bay Area.

Would it have made a difference if the entire Bayview-Hunter’s Point electorate showed up en masse and voted against this recall? Of course it would. But after everything we’ve all been through–the impoverished folks in the neglected parts of town disproportionately suffering–we just didn’t have it in us to make yesterday a proud, sparkling moment for people-powered government, and even though it’s not our fault, we will all have to live with the consequences. Increased incarceration and the return of cash bail will not deter violent crime (but people’s attention will wander, and those who supported the recall will stop paying attention). Crime might go up (despite the recall, the supporters will say, or because of the recall, the opponents will say) or it might go down (because of the recall, supporters will say, or despite it, opponents will say) and we will continue to delude ourselves that dumbing down complicated policy decisions, deceiving people with oversimplified campaigns, and seasoning everything with some piquant interracial conflict, is how democracy should work.

The truth is that crime rates are like the weather. They rise and fall for a variety of reasons, only a few of which we can measure, and most of which have nothing to do with who is in charge. They have very little to do with big punishment trends (though, in localized situations, they do depend on effective police work in solving crime, which is a damn difficult thing to do when the community doesn’t trust the police enough to help.) It takes a real sea change in policy to effectuate changes in criminality patterns. But our megalomanic assumption that we can control crime rates through tinkering with policies will persist, and we will keep tinkering, until no one has any energy left to vote.

I offered a few more thoughts on KCRW here.

Justice Delayed is Justice Denied on the Appellate Level: Eisenberg vs. the Third District Court of Appeal

Not being on Twitter, while glorious, has its drawbacks; I would not have found out about this story if not for my colleague Paul Belonick, who came upon it through this thread. The story, in essence, is this:

The Sixth Amendment guarantees anyone the right to a speedy trial. What’s unique about this right, as the Supreme Court explained in Barker v. Wingo, is that it is often (though by no means always) in the interest of the defendant to delay matters in court: witnesses could forget and disappear, evidence could be mislaid, etc. But if someone is in pretrial detention, the clock ticks while the person’s ability to plan their defense is hampered. At the same time, speedy trial saves time and makes courts more efficient, and in that respect, it is as much a “right” of the government and the public coffers as it is of the defendant. For this reason, when someone brings a speedy trial motion, the court tallies the delays that are the government’s fault versus those that lie at the door of the defendant. There are official limitations on the time that can pass before a case is brought to trial at both the federal and state levels.

But speedy trial problems can happen at the appellate level, too–especially true for defendants languishing in prison while their appeals are pending. In 2021, well-known appellate attorney Jon Eisenberg decided on an unusual course of action: he sued the Third District Court of Appeal for the delays, framing them as the Court’s failure to comply with ministerial duties. In his petition for a mandamus writ, Eisenberg wrote:

***

Since 2018, the court has denied calendar preference for at least 278 criminal appeals, with cases languishing from 12 to 99 months after being fully briefed. In some cases, the defendants had already served part or all of a reversed prison term or sentence enhancement—an egregious failure of the appellate process. Systemic inordinate delay in adjudicating criminal appeals is unconstitutional—a denial of due process. Where a right of appeal is afforded, the adjudicatory process must be timely. Currently, the Court of Appeal for the Third Appellate District has yet to calendar at least 66 criminal appeals that have been fully briefed for 12 to 41 months. Expeditious action by this Court is essential to protect dozens of inmates who are threatened with irreparable injury—or the worsening of irreparable injury already suffered—from denial of their constitutional right to timely appellate review. This systemic denial of statutory and constitutional rights is a stain on the integrity of California’s appellate process. This Court should not condone it by inaction.

I. CODE OF CIVIL PROCEDURE SECTION 44 GIVES CALENDAR PREFERENCE TO CRIMINAL APPEALS. Code of Civil Procedure section 44 prescribes two forms of priority in calendaring appeals—among civil appeals, and between civil and criminal appeals. First, the statute requires “preference in hearing in the courts of appeal” for probate, contested election and certain defamation cases. Second, prioritized civil appeals must be placed on the calendar “next after cases in which the people of the state are parties.” These provisions have the effect of mandating calendar preference for all criminal appeals. “Adult criminal appeals receive priority because they are cases ‘in which the people of the state are parties.’” Thus, once a criminal appeal is fully briefed, it must be placed on the next available oral argument calendar—which in most Courts of Appeal usually means three or four months later.

II. SYSTEMIC DELAY IN THE CRIMINAL APPELLATE PROCESS IS UNCONSTITUTIONAL. Although there is no federal constitutional right of appeal, “if a State has created appellate courts as ‘an integral part of the … system for finally adjudicating the guilt or innocence of a defendant,’ [citation], the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the [U.S.] Constitution.” This means a state’s criminal appellate process must be timely. “[F]ederal courts have held that undue delay in processing an appeal may rise to the level of a violation of due process.”  “[A]n appeal that is inordinately delayed is … a ‘meaningless ritual.’”

The Tenth Circuit has enunciated a general rule that delay in adjudicating a noncapital criminal appeal for more than two years after filing of the notice of appeal—including more than 11 months from the completion of briefing to the filing of the opinion—“gives rise to a presumption that the state appellate process is ineffective.” This “rebuttable presumption of prejudice” is applied where “such delays are chronic and systemic and have resulted in the wholesale denial of the right to a reasonably timely appeal.” “Delays of such magnitude produce an unacceptable threat to the integrity of the appellate process.” The most obvious and egregious prejudice from inordinate delay in a criminal appeal occurs when the defendant has already served part or all of a reversed prison term or sentence enhancement—which has happened more than a few times in the Third District. In such instances, the right of appeal is wholly subverted. Prejudice can also occur when delay impairs the defendant’s right to a retrial or resentencing after reversal—for example, due to faded memories or lost evidence. And harm can occur even if a long-delayed appeal eventually proves to be unsuccessful—in the form of emotional damage from the “increased anxiety, mistrust, hopelessness, fear, and depression” that “results from the very thwarting of the hope that liberty will be restored through a right that the State has guaranteed—the appellate process.” The rule should be no different under article I, section 7 of the California Constitution. “[T]he proper and efficient administration of the penal laws of the state, due regard being had to established procedure, demands a speedy resolution of all appeals taken in criminal cases.”

III. THE THIRD DISTRICT IS SYSTEMICALLY DENYING STATUTORY CALENDAR PREFERENCE FOR MANY CRIMINAL APPEALS.

A. Hundreds of Criminal Appeals Have Been Denied

Calendar Preference, With Dozens Yet to be Calendared. Justice Raye was appointed to the Third District in 1991 and became its Administrative Presiding Justice in 2010. His predecessor as Administrative Presiding Justice retired in September 2010. That same month, the Third District commenced a decade-long practice of failing to accord calendar preference to many criminal appeals.1 From September 2010 to March 2012, Justice Raye authored four decisions in criminal appeals with lapses of 17 to 25 months from fully briefed to submission for decision. Thereafter, the number of substantially delayed. Third District criminal appeals steadily rose, 1 Previously, such delay was rare. Petitioner has found only two Third District criminal appeals that were prejudicially delayed during the two years preceding Justice Raye’s appointment as Administrative Presiding Justice. (People v. Petit [18 months from fully briefed to submission for decision; adding 112 days conduct credit after sentence completed]; People v. Garcia [14 months from fully briefed to submission for decision; striking 8-month sentence enhancement after sentence completed].) 19 with longer delays. In 2012–2013, Justice Raye authored 17 decisions in criminal appeals with lapses of 13 to 36 months from fully briefed to submission for decision. By 2018, in cases authored by Justice Raye and other Third District justices, the court was failing to accord calendar preference to dozens of criminal appeals annually, some with extraordinary delays. From 2018 to the present, at least 212 criminal appeals had lapses of 12 to 99 months from fully briefed to submission for decision. Each was calendared months or years after the calendaring of civil appeals that were fully briefed long after those criminal appeals were fully briefed.

Other Third District criminal appeals, however, have been accorded calendar preference. As of this writing, at least 66 fully briefed Third District criminal appeals have yet to be calendared, with lapses of 12 to 41 months from fully briefed to submission for decision. (Eisenberg 2 Petitioner determined the numbers of delayed criminal appeals recounted in this petition by manually reviewing online docket entries for some 20,000 Third District filings. Given the limitations of that methodology, the true numbers are likely higher. The Third District’s internal records can complete the picture. Meanwhile, the Third District continues to calendar civil appeals that have been fully briefed for as few as four to eight months. 

B. Calendar Preference Failures Have Prejudiced Many Defendants.

Each of the 278 delayed criminal appeals referenced in this petition exceeds the Harris threshold for the rebuttable presumption of prejudice from unconstitutional delay—more than two years from notice of appeal to filing of opinion, including more than 11 months after completion of briefing. In some of those cases, actual prejudice is demonstrated by the fact that the defendant had already served part or all of a reversed prison term or sentence enhancement by the time of adjudication. For example: This despite the fact that, according to the Third District’s clerk/executive officer, “‘tentative opinions have already been prepared’” in many of those cases.

The Third District has also failed to accord calendar preference to some probate appeals, as Code of Civil Procedure section 44 also requires. [docket entries for four probate appeals with 17 to 21 months from case fully briefed to submission for decision].)

• In People v. Kalac [16 months from fully briefed to submission for decision], the Third District struck a one-year sentence enhancement only after it had been served. The People had conceded the point from the outset.

• In People v. Speegle [53 months from fully briefed to dismissal of appeal], the Third District dismissed as moot the defendant’s appeal from an order denying his transfer out of Napa State Hospital for outpatient treatment—because he had completed his seven-year commitment pending the appeal. 

• In People v. Weathers [41 months from fully briefed to submission for decision], the Third District struck a partially served 10-year sentence enhancement. Again, the People had conceded the point. Weathers is especially noteworthy because, by contrast, in an almost simultaneously filed appeal presenting the same conceded issue, a different Third District panel ruled just 81 days after the concession, thus giving that defendant the benefit of the court’s decision.

• In People v. Wrobel [52 months from fully briefed to submission for decision], the Third District reversed a 44-month prison sentence and remanded for misdemeanor sentencing only after the defendant had completed the sentence.

• In People v. Johnson [24 months from fully briefed to submission for decision], the Third District struck an already served five-year sentence enhancement.

• In People v. Kent [78 months from fully briefed to submission for decision], the Third District struck an already served eight-month sentence enhancement.

The extraordinary delay in these cases, resulting in defendants having served part or all of a wrongly imposed sentence, is an egregious failure of the appellate process.

C. These Systemic Failures Were Presaged.

These systemic failures of calendar preference for Third District criminal appeals may lack bad intent, but they have effectively operated to implement a proposal the Legislature 23 rejected four decades ago—that in criminal cases there should be no absolute right of appeal at all, much less calendar preference. In 1979, this Court held that the Court of Appeal may not summarily affirm a criminal conviction without full briefing and the right to oral argument, as guaranteed by statute and the California Constitution. In 1981, Justice Raye, at the time Senior Assistant Attorney General for Legislative Affairs, urged the Legislature to supersede Brigham, testifying in support of a bill the Attorney General’s office was sponsoring—Senate Bill No. 1197—which would have eliminated appeals as a matter of right in criminal cases and made criminal appellate review conditioned on the trial judge’s discretionary issuance of a “certificate of appeal.” The bill failed. Immediately before Justice Raye’s testimony, Court of Appeal Justice Winslow Christian testified in opposition to summary affirmance of criminal convictions and urged the Legislature not to alter the statutory calendar preference for criminal appeals, stating: “[T]hat’s a priority that I think is sound. It should not be changed.” Justice Raye then testified:

• “[W]e think there should be some limitation on the right to appeal in consideration of the fact that over 90 percent of criminal appeals result in affirmance and a substantial number of that 90 percent could be characterized as frivolous appeals.”

• Under proposed Senate Bill No. 1197, “[a]ppeal would be only by a certificate of appeal granted by a trial court… Another proposal that we’re considering is vesting discretion not with the trial court but with the court of appeal to decide whether an appeal, on its face, presents substantial issues that warrant consideration by a panel [of] the court of appeal … and the court of appeal would have discretion to refuse to entertain an appeal.”

• “We think this Committee should consider a procedure whereby our office on behalf of the people can move for [summary affirmance] of appeals filed with the court of appeal. We attempted to do this under existing law about three years ago and regrettably the Supreme Court ruled the procedure … improper as not being authorized and in fact being at odds with court rules and with statute … The case name is People v. Brigham.”

A month before this legislative hearing, Justice Raye wrote to members of the Senate opposing an ultimately successful bill to increase the number of Court of Appeal justices statewide. Justice Raye argued that “the more appropriate remedy is to curtail the filing of the frivolous appeal” and “[t]he Courts of Appeal must also become selective in the cases they hear.” During Justice Raye’s tenure as Administrative Presiding Justice, the Third District has only selectively complied with Code of Civil Procedure section 44, thus effectively undermining Brigham by withholding meaningful appellate review in many criminal appeals—sometimes with serious consequences.

IV. MANDATE LIES TO COMPEL STATUTORY COMPLIANCE.

This Court has original jurisdiction to adjudicate this petition. Under such jurisdiction, mandate lies to compel public entities and officers to perform ministerial duties. A ministerial duty may be created “either by statute or by constitutional compulsion.” “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a 26 given state of facts exists.’” The statutory duty of appellate courts to accord calendar preference to every criminal appeal is plainly ministerial. The “act” they are “required to perform in a prescribed manner” is to put fully briefed criminal appeals on the next available calendar. The “given state of facts” (ibid.) is a criminal appeal having become fully briefed. Code of Civil Procedure section 44 affords no discretion “concerning such act’s propriety or impropriety.” The gravity of the Third District’s mismanagement of its criminal docket amply justifies exercise of this Court’s original jurisdiction to compel compliance with Code of Civil Procedure section 44. Expeditious restoration of statutorily mandated calendar preference for all Third District criminal appeals is essential to protect dozens of inmates currently facing irreparable injury—or the worsening of irreparable injury already suffered— from denial of their constitutional right to timely appellate review. 

***

The California Supreme Court formally denied Eisenberg’s petition, but wrote: 

***

We recommend that within 180 days of this order, the Judicial Council complete an investigation of alleged delays in the Third District Court of Appeal’s disposition of criminal appeals and, if appropriate, propose measures that the Judicial Council and the Court of Appeal should employ to address any problems that are identified.

***

As a consequence of the investigation, three appellate judges resigned (see here, here, and here.)

June 2022 Election: Blog Endorsements

Back when hadaraviram.com was California Correctional Crisis, I used to offer election endorsements for your consideration, focusing on the criminal justice propositions. This election has offered a grim opportunity to contemplate the probable victory of two seasoned and experienced politicians, whose management of the COVID-19 crisis in prisons has reflected an astounding moral eclipse.

A while ago, I posted an endorsement against Gov. Gavin Newsom’s recall. We were all experiencing collective distress over his reluctance to do anything useful to save lives behind bars from COVID. My reasoning was this: the rest of the ballot was a list of egomaniacal clowns with no political experience, many of whom could not even spell their statements. And, as I said there:

I’m not an idiot, and I do understand the concept of the lesser evil. If you are so warped in single-issue agitation that you can’t see the qualitative differences between Newsom–an experienced and capable politician–and the rest of the lot, you need better glasses.

I wrote that post in August. in November, we found out that Newsom, the champion of science-forward, vaccine-forward policies in schools and everywhere else, thinks that unvaccinated guards are a-ok, and goes as far as to support them in their (devastatingly) successful appeal against a vaccine mandate. It was one of the ugliest examples of justice delayed becoming justice denied, can easily be attributed to the fact that the prison guards contributed $1.75 million to his anti-recall campaign, and has disillusioned me. I’ve come a long way from cheering for the then-Mayor of San Francisco who spoke at my 2005 PhD ceremony, and I’m feeling so full of bitterness and bile over the unnecessary loss of life that, this time around, I offer no endorsement for the gubernatorial position. Vote for whoever you want; Newsom will likely win.

The other person to resent is Attorney General Rob Bonta, who is the darling of all the progressive voting guides. Bonta and his employees are the architects of the prison system’s defense against the COVID lawsuits, both regarding San Quentin and more generally in federal court. Their bad-faith in court appearances and representations, ugly games, and shocking lack of regard for human life has soured me on Bonta to the point that I make no endorsement, even though on paper he is the better candidate of the lot and will likely win. I explain my position in detail here. The short version is this: Bonta thinks that he works for us only when he legislates or creates policy, and that when his office litigates, he is the Tom Hagen of the prison guards. That’s an unacceptable perspective for a public servant.

I try not to be a one-issue voter, but having experienced the COVID-19 prison catastrophe up close it is very difficult to justify voting for Newsom and Bonta. Follow your conscience/calculus.

By contrast to these two, one public official shines as a person of profound understanding and conscientious behavior, and that is Phil Ting. I endorsed Phil’s assembly campaign in 2018 and am happy and proud to endorse him again; his conduct during the COVID-19 crisis was nothing short of exemplary. As Chair of the Assembly Budget Committee, Ting presided over a hearing in which, finally, Kathleen Allison was being asked hard questions about her policies and the way CDCR was handling itself. He has also been very sensitive to issues of parole and one of the only politicians with enough guts and public responsibility to realize that long-term aging prisoners are the best release prospects from both a medical and a public safety standpoint. Vote for him again.

There are two criminal justice issues on the ballot. One of them is the ridiculous Prop D, likely thrown into the ballot to add a prong to the Chesa Boudin recall effort by creating the (false!) impression that the D.A.’s office is not responsive to victims’ needs. There is a long tradition in CA of deceiving the voters to believe that there is a need for a victims’ bill of rights and services, when one has existed since 1982 (I explain all this in Chapter 3 of Yesterday’s Monsters.) Just like Marsy’s Law and other deceptive initiative tricks, this is money allocated to no good cause, creating duplicative services that already exist. The Chron is far too gentle on this. Don’t be swindled – vote NO on D.

Finally, speaking of swindling, you already know my position on the Boudin recall effort. There’s a well-oiled, well-funded machine here trying to roll back important reforms, and exploiting people’s exasperation at the misery and turmoil in town, which are NOT Boudin’s fault by a longshot. Don’t be deceived! Vote NO on H.

Urban Alchemy in the News

SF-based nonprofit Urban Alchemy, which I discussed here and here, is in the news this week. First, there was BBC coverage, and this morning a lengthy investigative story in the Chron. Mallory Moench and Kevin Fagan’s story is interesting and informative, and offers lots of useful perspectives, but does adopt an unnecessarily skeptical emphasis and tone, which rankled me because I work in the Tenderloin and see the transformation it has undergone through Urban Alchemy’s intervention.

In the early pandemic months, the open drug market around my workplace was so brazen and violent that my students feared going out of their dorm rooms at the Hastings towers. Mayor Breed and SFPD tried to resolve the problem by doing police sweeps of the area, which only resulted in new people coming in to deal and shoot every day. At some point I was contacted by a civil rights org, which shall remain anonymous out of compassion, with a well meant, but absurd, invitation to support their lawsuit against gang injunctions with an amicus brief refuting the existence of the drug market. Refuting? I thought. Are you kidding me? Do you have eyes? Do you live or work here? It was a prime example of what I’ve come to recoil from: the refusal, by some quarters of the Bay Area’s delusional left, to concede that crime is real and has real victims and real implications (that’s why I have no patience for armchair abolitionism, by the way.)

Then, our Dean signed a contract with Urban Alchemy, which has them support the area adjacent to the school. This proved to be a complete game changer. The first morning I showed up to work with the UA practitioners surrounding the perimeter of the school I was amazed; the change in energy, the peacefulness, the friendliness, the sense of personal safety, were palpable. I started chatting with some of the practitioners around my workplace, who came from backgrounds of serious incarceration, and found that their personal experiences provided them with just the right interpersonal skills to intervene in complicated situations in the Tenderloin. Finally, someone is doing the right thing, I thought. There are so many occupations in which a background of criminal invovement and incarceration is a priceless resource – and this includes lawyering. Recently, I interviewed people with criminal records who applied to the California bar and wrote:

In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character.

My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage.

To Moench and Fagan’s credit, their piece does represent this view; one of their interviewees explicitly says that looking at justice involvement as an asset, rather than a barrier, is revolutionary. But overall, their reporting exceedingly amplifies the voices of the naysayers above those of the many people who live and work in the Tenderloin who are quietly grateful for Urban Alchemy’s presence in the streets. You’ll be hard pressed to find detail in their story of the many good deeds that the practitioners perform daily, ranging from lives saved with Naloxone (several times a week, I’m told) to skillfully providing my female students a sense of personal safety when walking the Tenderloin in the evening. Several students described how a practitioner subtly positioned himself between them and someone who was getting too close, and how the threatening situation evaporated before it could evolve in unsavory directions. Moench and Fagan give this a passing nod, but their piece fails to properly capture the magic.

This brings me to another observation: There hasn’t yet been a project evaluation for Urban Alchemy’s Tenderloin intervention. Executing such a study would be a daunting task for several methodological reasons. First, there’s no comparative baseline for the intervention. The situation before their intervention was so abnormal that it would be hard to use it as a control, even if data were available. If the comparison is geographic, it would suffer from the usual problems with situational crime prevention: focusing an intervention in a particular geographical zone means that criminal activity is displaced onto adjacent zones, so the two comparators are not independent of each other. If the study is structured as an in-depth phenomenological project (which is what I would do if I were to do this–and a colleague and I are thinking about this), there’s the Star Trek problem of the Prime Directive: researchers or students hanging out in the Tenderloin to conduct observations would, themselves, change the dynamics in the area that they study. A big part of Urban Alchemy’s success lies in the fact that they do things differently than SFPD. They do not rely on surveillance cameras; in fact, they eschew them, and having any sort of documentation would be detrimental to their working model. And people standing in the corner for hours and taking notes would chill everyone’s behavior. Fieldwork here has to be conducted with care.

I have one more observation to offer: I now work in a service profession that requires crowd management and interpersonal intervention (as a city pool lifeguard) and also have multiple years of experience managing crowds in rowdy, inebriated, unusual situations (as a Dykes on Bikes registration volunteer at Pride and at Folsom Street Fair, for example.) The vast majority of people you encounter at these settings are lovely and a delight to be with. But the one or two percent who are decidedly not lovely can really test anyone’s self control. I’m talking about the driver who insists on driving the car into the area you’re trying to cordone off, the slow dude who insists on swimming in the lane with faster people and not letting them pass, or the people repeatedly told (politely) to move to the sidewalk so that they are not run over by trucks who don’t go where they’re told. My experiences are nothing compared to what the Urban Alchemy practitioners encounter every day on the Tenderloin streets. I really wish our reporting on this were sympathetic to the enormous challenges of interpersonal interactions in this very rough patch of our city and more appreciative of how much conflict and anxiety are spared when people who know what they’re doing take the lead.

Ninth Circuit Strikes Down Guard Vaccine Mandate

In an unfortunate, albeit not unexpected, decision, the Ninth Circuit reversed Judge Tigar’s vaccine mandate. You can read the decision in full here.

The reasons, in short, are as follows: the judges considered CDCR’s efforts in “making vaccines and booster doses available to prisoners and correctional staff, enacting policies to encourage and facilitate staff and prisoner vaccination, requiring staff to wear personal protective equipment, and ensuring unvaccinated staff members regularly test for COVID-19. . . symptom screening for all individuals entering the prisons; enhanced cleaning in the facilities; adopting an outbreak action plan; upgrading ventilation; establishing quarantine protocols for medically vulnerable patients; and testing, masking, and physical distancing among inmates” sufficiently ameliorative to reduce their misdeed below the threshold for an Eighth Amendment violation and “[a] decision to adopt an approach that is not the most medically efficacious does not itself establish deliberate indifference.”

Chapter 6 of our book, which discusses COVID prison litigation, is called “The House Always Wins.” This decision is a textbook example of the pathologies of prison litigation and why it fails to address problems in real time. It doesn’t even matter whether the litigation is happening on the federal or state level, because the basic problems are the same: the courts focus on the prison setting more than on the law, continuously contort the Eighth Amendment to defend prison administration, and ignore the basic regulatory requirements in the free world, assuming the prison is so different that they don’t apply. In addition, there is an interagency “game of chicken” that stalemates any efforts at providing timely help during an emergency: the natural actors that should quickly intervene in such situations are the governor and the prison authorities. Since neither has any incentive to do anything helpful, and since the people entrusted with the immediate care of the inmates are in a union that has been completely politically captured, the courts have to make noises of stepping in, but dragging their feet means that dynamic situations change and transform long before they have a chance to intervene.

I think that what happened with this Ninth Circuit decision mirrors what happened with the San Quentin litigation. Recall that, back in November, Judge Howard found that the botched transfer from Chino constituted an Eighth Amendment violation, but the vaccines changed the game and rendered relief moot. I suspect that the Ninth Circuit judges were affected by the fact that, due to the new variants and new endemic realities of COVID, the diminishing returns of vaccination mean that the urgency behind vaccinating the guards (which had already begun to fade by the time Judge Tigar decided to act) is far less salient than it was in winter 2021, when their opposition to vaccination was at its strongest and their compliance could have made a real difference. In other words, this is a classic demonstration of how justice delayed is justice denied.

The other issue is the inherent limitation of litigation, which is backwards-looking. In the Quentin case, Judge Howard explicitly said that he did not look to the next variant or to the next pandemic; his job was just to assess the violations of the past. As we see again in the Plata case, this fundamental trait of litigation is unfortunate for dynamic situations because, as Wes Venteicher reports in this morning’s SacBee:

Now another wave could be coming. The corrections depnartment reported its largest week-over-week increase in new cases, measured as a percentage, in the last week of April. New cases increased by 820%, reaching 322 infections from the prior week’s low figure of 35. About 97,000 people are incarcerated in the state’s 34 prisons. The biggest increases in the last two weeks have been at San Quentin State Prison, Pelican Bay State Prison, California Health Care Facility in Stockton, California Medical Facility in Vacaville and Ironwood State Prison in the southeast corner of the state, according to a corrections department infection tracker.

Ultimately, the only way to learn lessons for the next variant, the next pandemic, the next health crisis, is to conclude the obvious: it is impossible to save lives and provide decent healthcare to 100,000 people in California if the people entrusted with their care do not prioritize their wellbeing. Given that we do not seem to be able to attract people who have the prisoners’ best interests in mind to fulfill custodial positions, from the top, through the unions, to the rank-and-file, the only tenable conclusion is that we cannot and should not incarcerate nearly as many people as we do now. This will be the main conclusion of Fester, though we do make many other recommendations.

Endorsement: NO on Chesa Boudin’s Recall

The unbearable lightness of recalling people in California means that we have to be grownups and distinguish between two very different scenarios: saving our city or state by getting rid of idiots and nincompoops versus expressing existential discontent in an unhealthy way by throwing away capable, conscientious, hardworking officials with whom we sometimes disagree.

The recent school board recall belonged in the former category. The well funded, rage-fueled effort to recall our District Attorney, Chesa Boudin, is squarely in the latter.

I’m not a close friend of Chesa’s and I don’t know him very well, but I’d like to think of us as collaborators. We’ve been on the radio together. We’ve done projects together. We’ve appeared at press conferences together. I know quite a bit about the spirit of public service and sound policy that drives how Chesa conducts himself in office, because I know how he has shaped his position on a variety of issues. We don’t agree on everything, but he is the real deal.

Chesa is not a diplomat, has not mastered the art of the non-apology apology or the compliment sandwich, and has not shined when confronting the classic San Francisco performative outrage festival. But this does not change the fact that he does his job and does it well.

I know you are continuously bombarded with well-funded scare tactics, fearmongering signs and flawed statistics, and when there’s so much untruth around you, you’re bound to start believing it. In the name of all that is holy, think for yourself–the way you did when you stood up for your children and threw three performative stooges off the school board. There were solid statistics and finances backing you up then. This time, the reliable data points in the opposite direction – AGAINST the recall.

Think that crime is up? You feel subjectively unsafe? This is not Boudin’s fault. Crime is up everywhere and brutal prosecutions are not the answer. In the city, violent crime is stable and homicides are down. Homicide conviction rates are up. Filing rates in nonviolent crime are up. Car burglary ring has been busted.

If, after all is said and done, you still think that you’d prefer a traditional DA to bloat our prisons and jails, you can do it at the ballot box when Boudin stands for reelection. Don’t cheapen an important emergency tool by misusing it against a capable and hardworking public servant.

I know many sensible people who are frustrated by the progressive left’s insistence that no, there is no problem here, and I have deep sympathy for this frustration. Believe me, I’ve been dumbfounded by efforts to rope me into writing amicus briefs denying the serious drug and property crime problems plaguing the city. And I know that these sensible people are going to misuse this bad-faith recall as a piñata to whack their frustrations at. This is not a good use of the recall power.

Want more? Read David Sklansky’s sensible takedown of the recall extravaganza as well as the Chronicle’s position. Neither is a progressive fantasy fest. They are simply looking at what is happening in the city and breaking down for you what is, purely and simply, an unsubstantiated smear campaign.