San Quentin Evidentiary Hearing: Day 1 Recap

https://twitter.com/aviramh/status/1395413455423737861

Please follow the thread above for a summary of today’s hearing, including some photos and links.

I have a few observations to add to the recap. First is that the picture, as it emerges from the hearing is strikingly damning–even to those of us who had front-row seats to this tragedy last year. The testimonies were extremely powerful, especially given the courage that it takes for someone currently incarcerated or for someone at CDCR’s employ to testify against CDCR.

If anything, the cross examination helped, rather than hurt, Petitioners’ case. CDCR’s goal at this hearing is to show that they took ameliorative steps that reduced the seriousness of their Chino transfer fiasco, and that the conditions at present are much better than they were–because their overall objection to the testimony revolves around the legal point that habeas relief cannot be awarded for past convictions, only for present convictions. The supreme irony of abandoning people to their fate through mismanagement and indifference, waiting for the virus to ail and kill them, and after it’s all over (because the virus won–not because they did!) claim that it’s over and no remedy is forthcoming, is extremely difficult to stomach.

But at the hearing itself, some of these questions backfired. When AG representative John Walters repeatedly asked the witnesses whether–and why–they declined testing, he opened the door to one of the main horrors of the pandemic, namely, to the fact that CDCR had lost credibility to such a degree that asking for help was putting oneself at a disadvantage. I hope the petitioners’ team hammers this home in coming days. The exchanges between Walters and incarcerated journalist Juan Haines were especially testy: Haines challenged Walters’ reliance on CDCR post-Plata definitions of design capacity, as well as reminded him, wryly, that he couldn’t comment on population reductions because he didn’t actually have access to the data. Similarly, when Walters asked John Mattox, one of the Chino transferees (who reported his symptoms before getting on the bus and was told he was lying!) “If I told you there were 500 less people, would it surprise you?” Mattox replied: “It would surprise me, because I haven’t seen any difference in how they treat us.”

The big question continues to be the efficacy of the remedy. I’m sure Judge Howard has a lot to chew on.

Evidentiary Hearing in Quentin Cases to Begin Thu 9am via Zoom

As regular followers of the blog probably recall, the CA Supreme Court ordered to remand Von Staich to the Marin Superior Court, where Judge Geoffrey Howard will be presiding over an evidentiary hearing. The hearing is scheduled to begin this coming Thursday at 9am, via Zoom.

The factual question the court must resolve is whether CDCR acted with deliberate indifference by failing to protect the health and safety of petitioners, who are several hundred members of the San Quentin prison population. The Petitioner’s lawyers–some of them from private law firms, some of them from the Public Defender’s Office, some of them from the First District Appellate Project–will lay out the evidence of the devastation at San Quentin, which ailed thousands of people (more than 75% of the prison population) and killed 28 prisoners and one staff member. An important focal point of the hearing will likely be the OIG’s scathing report from February 1, which details the gross mishandling of the CIM transfer into Quentin (including email screenshots.) There will also be evidence of the lived experience behind bars, which will come from currently and formerly incarcerated witnesses. Given the obvious magnitude of the disaster, it is likely that the Attorney General representatives, who are arguing for CDCR, will focus on the ameliorative steps they took in the aftermath (masks? posters?) and argue that the cumulative effect of their behavior in the crisis falls short of the deliberate indifference standard. They are also likely to argue that, when the contagion broke at Quentin, we knew a lot less than we know now about ventilation (compare to this much newer report by AMEND about conditions at SATF) and that it is unfair to judge their mishandling of the crisis in hindsight.

The last two days featured case management conferences, in which Judge Howard has tried to encourage the parties to cull their presentations so that the hearings can proceed in a timely manner. Part of me wishes that the whole thing were televised, so as to keep a record of what happened in the prison (we will provide such a record in Chapter 3 of #FESTER.) But the hearing is not purely ceremonial–it has real import to real lives in real time–and so, it has to be conducted efficiently.

The first difficulty is that some of petitioners’ witnesses are currently incarcerated. This raises logistical challenges because, apparently, it is complicated to set up functional Zoom rooms in prison, and because West Block is currently under lockdown. The Quentin COVID numbers for today (above) do not betray the cause of this, as there is only one active case, but our records reveal two more cases a couple of weeks ago, so it makes sense that a prison wing is quarantined. In addition, I’m sure petitioners are concerned about retaliation against the witnesses, which adds stress (but also gravitas) to the testimony of those who are going forward. There was some debate today about hesitancy to testify, and the AG representative reminded that witnesses must testify. I trust the judgment of the petitioners’ lawyers in this matter.

The second issue is time. The hearing begins on Thursday and the parties have to prep for that as well as continue negotiating factual stipulations and culling the list of witnesses.

But the most serious issue, which was left unspoken at today’s hearing, is the remedy. As you’ll recall, the original Von Staich decision ordered San Quentin to reduce its population to 50% capacity, but it did not specify how to do so, which led CDCR to opt for transfers rather than releases. Even at that point in the pandemic story, this was akin to playing Tetris with human lives. The outbreak in Quentin was quelling while case numbers at the facilities targeted for transfers were climbing (remember the horrible numbers at Avenal, SATF, CMC, and elsewhere in November/December?) Not only would it be an enormous risk to transfer people to facilities that were in worse shape, but this would also awaken all kinds of inter-facility animosities; I received numerous letters from prison in which people told me that they feared retaliation from people in other institutions for all kinds of historical conflicts and beefs.

These factors are still significant today, but there are a few additional ones. The population at Quentin tends to be older and serve longer sentences, which means a lot of the people who end up at Quentin are in the process of preparing for parole and resentencing hearings, and to do so, they must rack up rehabilitative programs and chronos (laudatory write-ups) for their dossier. Quentin has a wealth of programming that is unavailable in other facilities (no thanks to CDCR; thanks to the many Bay Area do-gooders who volunteer in prisons.) Shifting people between prisons when there is no medical reason to do so–and there hasn’t been in months–is going to sabotage these releases and ultimately cost more, in terms of health risk and money, than no remedy at all. The only worthwhile remedy to consider would be releases, which has been an uphill battle all along, but which are essential to prevent not only a recurrence of COVID (note that there’s a steady stream of transfers from jails, to the tune of hundreds of people every week,, and that the vaccine uptake rate in jails is abysmal) but also future pandemics.

In short, this is in some important ways not unlike the financial considerations I discussed in Cheap on Crime: We simply cannot afford to lock that many people up, because it is impossible to provide them minimal guarantees of health and safety under these conditions.

I will cover the evidentiary hearing with great interest and concern in my next posts. Tune in tomorrow for new information on vaccination in jails, complete with a review of the lousy, low-quality data obtained from sheriffs, courtesy of the excellent Aparna Komarla of the Davis Vanguard‘s superb project COVID-19 in California Jails and Prisons.

New Policy re Good Time Credits toward Release at CDCR: Truth, Misrepresentation, and Panic

On Friday afternoon, CDCR announced an amendment to its regulations regarding the earning of good time credits. It’s always important to pay attention to such regulations, because as Kevin Reitz, Ed Rhine, and their colleagues at the Robina Institute remind us, whether a sentence is determinate or indeterminate is a question with many moving parts and many institutional actors, including prison administrators.

The new regulations are good news, albeit modestly so. For people doing time for nonviolent felonies, the good time credits will increase from 33% to 50% credit earned. For people doing time for violent felonies, the increase will be from 20% to 33.33%. In addition, the new regulations establish a new credit, called “minimum camp credit”: those who make it to conservation camps, earn a day for each day at the camp.

Reading these plain facts doesn’t suggest much cause for alarm, does it? But someone at the Associated Press decided that injecting some inflammatory, dehumanizing language was de rigueur, so they published this article, which was originally titled “76k California violent, career felons get earlier releases.”

The article is not only inflammatory, but deeply misleading. The number of people eligible for credits is far fewer than 76,000. First, the people presumably doing time for the most serious offenses–lifers without parole and people on death row–are ineligible for the credits. Second, for all those serving life sentences with the possibility of parole, release is not automatic, but rather conditioned upon success before the parole board which, if you’ve read Yesterday’s Monsters, you know is exceedingly rare (less than 20% of applicants receive parole.) Third, anyone who is already in the parole pipeline–including people with youth offender parole dates (who have aged out of crime) and people with elderly parole dates (who have also aged out of crime)–is not eligible. Fourth, the credits will be fairly modest because the regulations are not retroactive: the new percentage will only apply to the remaining portion of the person’s sentence, effective May 1, 2021. And finally, the choice of headline highlighting “violent, career felons” produced (as far as I could see) the predictable fatuous shrieks on Twitter, I’m sure will play a role in the similarly fatuous recall campaign, and is not the sort of thing that is conducive to reasonable conversations about criminal justice reform.

The regulations are a small step in the right direction. In the last few weeks, Chad and I are noticing increases of approximately 150-200 people at CDCR, presumably intake from jails. To curb new outbreaks and prevent the next pandemic, we must keep prison population lower to offset these transfers.

In the Name of All that is Holy, Vote No on the Recall and Spare Us This Idiot

I post this with a heavy heart. Anyone who has been following the most atrocious medical disaster in U.S. history has realized, by now, how much of the culpability lies at the door of the Governor’s mansion. Newsom’s failure to release aging, infirm people and Becerra’s office’s callous defense of prison authorities have ushered in the catastrophe I’ve been covering for a year. And yet, here I am urging you to vote NO on Newsom’s recall, so that this breathtakingly ignorant tabloid star does not unleash Trumpistan in California. In another time and place, she’d be laughed out of town, but in California, home of the Gipper and the Terminator, and in the U.S., where a semiliterate reality show personality shepherded us in the valley of fascist darkness for four entire years, nothing goes without saying. Case in point:

The take above tells you all you need to know about Jenner’s qualifications for the job. One doesn’t even know where to start. First, you’d think that a gubernatorial candidate would know the difference between a state and a county–specifically, the fact that district attorneys are elected and have nothing to do with the governor. Second, you’d think she would be even vaguely familiar with the California District Attorneys Association. Third, to anyone who has expressed even a passing interest in reading or watching the news in the last year, the thought that we are releasing too many people would be risible unless it were so tragic.

I’m too disgusted with what happened in prison to shell out any shekels to support the “no on recall” effort (I’m not too worried about campaign funding: Newsom’s French Laundry buddies can make up the difference), but having been through what we’ve been through in the last five years, I’m painfully aware of what happens when vicious, uninformed idiots get elected. In the name of all that is holy, and I can’t believe I have to say this, do not vote for Caitlyn Jenner.

Diversify CA’s Parole Board and Broaden Medical Parole: Support AB 1210 and 960!

Here’s the letter I submitted in support of AB 1210 and AB 960 today. To do the same, click here!

Dear Committee Members,

Letter of Support: AB 1210 and AB 960

My name is Hadar Aviram. I am a UC Hastings law professor specializing in corrections and the author of a recent book about parole in California, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (UC Press, 2020.) I write to offer my strong support for two measures discussed at today’s hearing: AB 1210 and AB 960.

AB 1210 is an essential step for reforming parole. While the BPH is diverse in terms of gender and race, it is not at all diverse in terms of professional background. My research revealed that, almost invariably, gubernatorial appointees to the BPH are former law enforcement officers from the police and correctional fields. This means that, continuing education notwithstanding, the board is truly impoverished in terms of several topics that are incredibly germane to the commissioners’ deliberation: substance abuse, mental health, and the like, which are part and parcel of the skillset of people from the helping professions. In addition, my research reveals that the commissioners are overconfident about their ability to discern remorse or insight from nonverbal clues such as the parole applicant’s demeanor. This confidence is unfounded: robust social science research shows that law enforcement officers, who believe they are better than the general population at detecting sincerity or release, are actually worse at it in controlled experiments. This is another reason to diversify the board.

I also offer my strong support for AB 960. I am currently working on a book about the COVID-19 crisis in California prisons (under contract, UC Press) and have several publications out on the topic. Among the things I have found is that the Governor’s release policy was flawed not only in its modest numbers, but also in terms of determining *who* was to be released. I suspect that the tendency to release people with short sentences toward the end of their sentence was largely political, to avoid backlash; in fact, the people who are older and serve longer sentences (now about a third of the CA prison population) are the ones who pose the least risk to the outside and who need the most help because they, themselves, are at medical risk. It is essential not to pollute public health considerations with a flawed discourse of deservedness. We must expand medical parole, not only for the sake of abating this pandemic, but also for the sake of preventing the next.

Many thanks for adding my research into your considerations. I am happy to provide any further information you need.

Best,

Hadar Aviram

Similarities and Variations in Legal Responses to COVID-19 in Correctional Facilities

This morning I’ll be speaking, alongside Sharon Dolovich, James King, and Jane Dorotik, about court responses to COVID-19, at an event organized by UCLA Social Medicine. Thankfully, we now have a somewhat fuller picture of how litigation efforts have fared overall, which we can draw on to discuss some similarities and variations.

One of the things mindfulness has taught me is that disappointment depends on expectations. In that respect, to say that correctional policies during COVID-19 have been a disappointment reflects, perhaps, unrealistic expectations from institutions that have been unwieldy and incredibly resistant to change even at the best of times. Perhaps it’s not that unexpected that the giant machine that protects the correctional colossus from reform was overall characterized by delays, evasive maneuvers, reversals of fortune and too-little-too-late gestures. So, if one expected mass releases, the disappointment would be commensurate with the expectations.

Still, there is an objective benchmark against which to measure my disappointment: the problem is not that the releases fell short of being what I hoped they’d be–it’s that they fell short of what was needed to curb the spread of the pandemic. We don’t have to wonder what that number would be; we had assessments of individual institutions with recommendations from physicians specializing in pandemic spread. I think that now, in mid-April 2021, we can safely say that, with respect to releases, courts have failed to provide the relief they should have provided.

We have two great nationwide summaries that support this conclusion. Brandon Garrett and Lee Kovarsky’s new piece Viral Injustice is a survey of COVID-19 correctional litigation outcomes. Garrett and Kovarsky conclude:

Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Brandon L. Garrett and Lee Kovarsky, Viral Injustice

We also have an excellent summary from the Prison Policy Initiative, who concluded that overall the response was “grim”:

Lawmakers failed to reduce prison and jail populations enough to slow down the spread of the coronavirus, causing incarcerated people to get sick and die at a rate unparalleled in the general public.

However, some individual state and local policymakers took steps that stand as an example of how to release a large number of people from prison — a necessary step to ending mass incarceration. And some policy changes made during the pandemic — like eliminating cruel copays for incarcerated people — are ones we need to remember and demand that they be extended permanently.

Prison Policy Initiative, The most significant criminal justice policy changes from the COVID-19 pandemic

I want to throw in a few additional issues that illuminate aspects of these legal responses:

  1. The PLRA, while greatly responsible for suffocating prison litigation, is not the be-all, end-all of the problem. Following Plata v. Newsom closely, I’m not sure how much of the inaction is Judge Tigar’s allegiance to the PLRA framework and how much of it is a culture of conciliatory, deferent approach and valuing “bringing everyone to the table” rather than ordering a solution. Some of this could be down to individual judicial personalities and some of this could be attributed to litigation cultures in different states or even in different counties. I think that our good fortune in the first round of Von Staich was because we were fortunate to get a panel that was deeply responsive to both the humanitarian emergency behind bars and to the geographical argument that the threat would extend to outside communities.
  2. Relatedly, I don’t think that the state vs. federal litigation was the important distinction. Nor was it class action vs. habeas corpus. I think the defining feature of the litigation is the aggressive deference to correctional authorities–giving vague, modest relief knowing that correctional officers and their lawyers can sabotage it.
  3. Generally speaking, and beyond CA, the staff has been the problem–from dragging their feet to actual frustration of purpose (by not testing, not reporting symptoms, and not getting vaccinated.) There has been precious little done to hold correctional officer unions accountable for their colossal leadership failures.
  4. In the absence of releases, there’s been a lot of reliance on bottleneck provisions–stopping admissions from jails, which put the onus on jails to handle their own pandemic issues, often without data and without accountability. The counties have been left to figure things on their own, with dramatically varying degrees of success (see my analysis of this here.)
  5. The advent of the vaccine made a difference, both in terms of state enthusiasm to help incarcerated populations and in the courage of courts. How vaccines played into advocacy and litigation is a complicated story, which Chad and I will analyze more thoroughly in our book-in-progress, #FESTER: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract, UC Press.) In a nutshell, vaccines opened an avenue that allowed courts to avoid grappling with their paralysis regarding releases and recur to a short-term strategy to provide immediate relief from the current pandemic. And even this was not always necessary, given that many states got ahead of the courts and gave the vaccines.
  6. The most notable aspect of the deference/reluctance to do more for prison and jail populations was the prevalence of zero-sum games of deservedness (“grandma before inmates!”), which ignored obvious implications of geography and epidemiology: the idea that people in congregate settings, no matter who they are, face more risk, and that spaces that are jurisdictionally/institutionally set apart from society at large are, in fact, permeable to disease. This is going to be the main premise of #FESTER.
  7. The deservedness argument posed some difficulties in advocacy and organizing: does making the argument that jail populations are largely presumed innocent introduce the deservedness scale, which as Kovarsky and Garrett show was at play in the overall picture of relief? And, how to advocate short-term for vaccination while advocating long-term for releases?

Teaching Crimmigration to Criminal Procedure Students: Lessons from the First Year

My advanced criminal procedure course is, as far as I know, the first and only criminal procedure course in the U.S. to include a crimmigration unit. Following a formative semester as a visitor at Harvard, during which I audited Phil Torrey’s terrific crimmigration course, I decided that this was an essential addition–this blog post, which I wrote at the time, explains why.

At the time, I hypothesized that there were knowledge gaps in immigration, which were not completely closed since the Supreme Court’s decision in Padilla v. Kentucky (2010). I was not the only one; in this piece, Gabriel Chin discusses the professional toll that Padilla advising would take on defense attorneys, who would now have to specialize in immigration law. Even in Padilla itself, Elena Kagan–then the U.S. Solicitor General–spoke about her concerns that an entire cadre of professionals would now need to acquire expertise in an adjacent (and not particularly easy to master) field.

True, Padilla did not require defense attorneys to become full-fledged immigration law experts. It only required them to advise clients of the immigration consequences of their conviction if those were clear. The problem is that one needs to know at least something about immigration law to even identify the appropriate statutes (for example, is the person admitted or not admitted to the U.S.? in the former case, the law is in INA §237; in the latter, in INA §212.) You can’t know whether the answer is clear without understanding what the question is, and that in itself requires expertise. A big part of the wisdom, from a defense attorney’s perspective, is having the basic skills to understand whether the immigration determination is even within the attorney’s wheelhouse.

Since Padilla was decided, public and private criminal attorneys have adopted a wide range of approaches to close the knowledge gap. For the purpose of creating my module, I assembled two focus groups of friends from various areas of practice. Beyond two immigration experts (an immigration law prof and a lawyer at an immigration rights nonprofit) I had three prosecutors, one appellate attorney, three public defenders and two defense lawyers in private practice. Before practice-teaching them the modules I created, I asked them where they got their immigration law expertise. I got quite a variety of answers:

One prosecutor said that their office took immigration consequences into account when charging; they had an immigration unit staffed by experts. The other prosecutor said that the D.A. ignored all immigration matters and instructed them to proceed as if immigration consequences did not exist. Out of the defense attorneys, the appellate lawyer was unfamiliar with the field (this is unsurprising, as appellate lawyers would only rarely encounter it.) The bigger, urban public defender offices had immigration units in-house, staffed by experts. In one rural public defender’s office, one person at the office specialized in immigration law and became the office’s unofficial go-to “expert.” In another rural office, everyone learned a little and called immigration nonprofits when they needed advice. The private attorneys were lost at sea and would use published materials from nonprofits when advising their clients. Everyone professed great ignorance and panic at being entrusted with counseling clients on immigration consequences.

The focus groups conversations convinced me that there is great need to add the basics of crimmigration to criminal procedure courses–at least the advanced bail-to-jail courses that are taught to people seriously contemplating criminal justice careers.

What to teach

In shaping the curriculum, I consulted with Phil and with my colleague and friend Tally Kritzman-Amir on what to teach. I decided that the students needed to know what what would touch on their criminal practice (and if they wanted to know more about immigration law, they could take a specialized course.) As criminal attorneys they are most likely to encounter crimmigration when advising clients whether to plead guilty or when negotiating charge bargains, so they would need to be familiar with the most popular removal grounds–aggravated felonies, crimes of moral turpitude, and some of the specific removal grounds–and acquire the skill of ascertaining whether a particular criminal conviction satisfies any of these. Many interesting crimmigration topics, including a detailed history of the immigration code, the immigration removal procedure, detention and bond, and immigration protections, were left out of the curriculum. To facilitate learning, I broke the crimmigration unit into three modules:

Module 1: Background to crimmigration (including Padilla and science-based readings refuting the immigration-crime nexus and examining the emergence of IIRIRA and today’s removal grounds); The admissibility doctrine (distinguishing between admitted/deportable and non-admitted/inadmissible noncitizens, defining “conviction” under immigration law, knowing the consequences of these definitions and distinctions); the categorical and modified-categorical analysis (the basic analytical tool the students would be using in Modules 2 and 3.)

Module 2: Aggravated felonies (explaining what generic offenses are., focusing on the categories of “crime of violence” and “trafficking in a controlled substance”, and highlighting the difference between elements of a generic offense and circumstance-specific elements, such as loss to the victim.)

Module 3: Crimes of moral turpitude (explaining the category within and outside the context of immigration, practicing some cases); the specific grounds of drugs, firearms, and domestic violence

The choice to front-load the mechanics of the categorical analysis reflected the fact that, of all the material I teach in the course, this would be one of the most difficult skills to master, in no small part because the federal removal grounds are so thin, vague, and poorly drafted, and state law can so often be overbroad and abstruse. This was also the reason I chose to sequence the entire crimmigration unit after teaching double jeopardy and sentencing. I reasoned that, at this point in the course, the students would have mastered the art (hopefully taught to them in 1L criminal law) of breaking an offense into its elements. Before teaching double jeopardy, I provided them with a prerecorded refresher on elements of the offense, reminding them that this skill matters beyond substantive criminal law. This way, prior to studying the crimmigration unit, they would practice this skill when determining whether two offenses count as the “same offense” for double jeopardy purposes (under Blockburger) and when determining whether a particular fact must be alleged in the charging document and found by a jury beyond reasonable doubt (under Apprendi.) These two topics would also serve as a rehearsal before learning the categorical analysis and make it more comprehensible.

A note on terminology

The first question I faced was what to call the new unit. I automatically gravitated toward the term “crimmigration”, popularized in Juliet Stumpf’s seminal article. The term has gained considerable traction, becoming the title of César Cuauhtémoc García Hernández’s book and eponymous blog. But then I received a thoughtful note from a colleague who explained that, when Stumpf adapted the term, it was being used in white nationalist/neo-Nazi circles with racist and xenophobic connotations. Its portmanteau construction can also be seen as reinforcing a particular set of suggestions about immigration and criminality that we seek to reject–namely, that there is a nexus between immigration and criminality. My colleague suggested the colloquial alternative “crim-imm”, or the clunkier “convergence between immigration control and crime control” (which reflects, quite well, Stephen Legomsky’s wonderful piece about the asymmetric convergence between the two fields.)

My colleague’s comments were well-taken, and I gave them a lot of thought, but finally decided to keep “crimmigration” as the unit title. There’s value in introducing students to the field by the name the field is known, so that if they seek to know more, it’s accessible and available to them. I also think that terminology isn’t static–it changes over time, and there have been multiple examples of derogatory terms being redeemed and put into empowering use by the people they sought to oppress.

Which brings me to the second issue. Immigration law currently uses the term “alien” to refer to noncitizens (here’s a CIS primer on definitions). Several students emailed, feeling jarred by the statutory terminology, saying it sounded “racist” (I think they meant xenophobic or dehumanizing.) I know this sentiment is shared by many, to the point that the Biden Administration is poised to change the term. I confess that I’m not an enthusiastic convert to the terminology obsession, which does not show any signs of abating. I get it–I’m not stupid–words can create reality. But we’re imbuing words with much more power than they have, I think, and this constant cycle of the linguistic washing machine is diverting attention from more important matters. It reminds me of how, as a child, I heard adults around me say “she has a bad thing… they found something…” treating the word cancer as if it was Voldemort. If a horde of dedicated, progressive-minded Biden officials do a “find + replace” function on the immigration code and replace all instances of “alien” with “noncitizen”, but leave all the removal grounds intact and continue to deny basic Gideon rights to people facing permanent banishment from the country, the enlightened terminology is not going to cheer me up. And given that the zeitgeist is all about certifying only the oppressed for speaking about their own oppression, I am happy to tell you that, prior to my naturalization in 2015, I was an “alien” for fifteen years–an alien student, a nonresident alien with extraordinary abilities, a resident alien–and I always found the term humorous and not dehumanizing at all. If foreigners are dehumanized and marginalized in the United States–and they absolutely are–it’s not because of what the INA calls them; it’s because of what we are misled to think about them. Nationalists were not born with the term “alien” at hand. “Alien” means foreign; it was then borrowed to describe extraterrestrial life. Whatever “they” took, “we” can reclaim, for whatever value of “they” and “we.” In class, I use “noncitizen” when I talk (or, when relevant, “lawful permanent resident” or “visa holder”), and “alien” when I’m quoting legislature, and I leave it at that.

What to read

For this course, I use an electronic casebook hosted by ChartaCourse, which gives me great control ver my materials. I assigned a bit of Legomsky’s article, sections from the INA, and some key cases. The selection of cases presented some challenges, though. The categorical and modified categorical analyses, which are the cornerstone of crimmigration, were established in federal cases, Descamps and Mathis, both of which deal with portions of the Armed Career Criminal Act (ACCA.) This presented a dilemma. On one hand, I wanted the students to know that the categorical analysis will come in handy in a variety of federal legal contexts; on the other, I didn’t want to confuse them and muddle the issue by making them read cases that are not about immigration. I opted for omitting Descamps and assigning only the portion of Mathis that explains the analysis.

As to the rest of the cases, I had to be quite selective and a harsh editor. The cases come from various federal courts and from the Board of Immigration Appeals (BIA), and they often involve various issues that pertain to the immigration side of the case, e.g., adjustment of status issues or removal protections. For the limited purpose of criminal practice, the students don’t need to know that. There are also cases that deal with interesting but arcane immigration law sections, and the choice I made was to focus on the common deportation and inadmissibility grounds. I can already see how making the choice to teach these materials will require keeping abreast of the information in a field adjacent to my own with its own precedents, etc., but there are blogs and other good people working on this, and honestly, after Padilla, I do think it’s our responsibility to teach this.

Finally, my materials include one of the best helping tools for criminal lawyers: the ILRC reference table and notes. It is detailed and trustworthy but, as I found, not exhaustive. I’m trying to teach the students not to rely on the table as the be-all, end-all of crimmigration (even though it’s very useful to have on hand) in the same way that I was taught, when I learned statistics, how to calculate F-values and t-values by hand while also learning STATA. There is immense value in doing the exercise by oneself, and I wanted to put people on the path to proficiency.

Crafting problems

Since the second semester of the pandemic, I transitioned my classes to a flipped classroom model: the students receive readings and prerecorded lecturettes in advance. In class, I go over the basics, and the bulk of the time is devoted to solving problems in small groups. Oftentimes, my problems are shaped after real cases. This proved to be a bit tricky in crimmigration. The cases are very complicated and require serious paring down. They are also often BIA cases, which means there are lots of adjacent, ancillary issues to be resolved on the immigration front. This means the hypotheticals need to be carefully edited, and that the ones based on real cases cannot be the first problems that the students solve. I have had to come up with simpler, two-liner problems that the students solve, and then graduate to problems based on recent cases.

Basing the problems on real cases also presented a problem involving the hermeneutics of immigration law. Because removal grounds are so generalized and vague, and because it is difficult to tell, just from looking at a state statute, whether it is divisible or not, there’s an abundance of caselaw, precedent, and courtroom documentation that needs to be looked at to ascertain how to resolve the problem. In the context of a classroom exercise, it is essential that all the information the students need be within the four corners of the problem. So that, too, requires attention in fashioning the problems. And, of course, working through these hypotheticals can be frustrating to the students, because it is ultimately not where the heart of their practice will lie, and it requires them to visit an entire different world of legal meaning-making. Which brings me to the heart of the matter.

The heart of the matter

I think the frustration and incredulity that the students might encounter when studying this material comes from a pretty understandable source: after all, I am essentially teaching them how to twist and turn their main occupation to bypass the perversion that is immigration law. Rather than looking at what a defendant did and charge them with that, they now have to think ten steps ahead, consider what the feds might do, and craft the whole narrative of the case away from the truth if they are trying to avoid immigration consequences.

What mitigates this frustration, though, is the other component at the heart of the matter: I kept banging the same drum again and again in class–the fact that, across all places, crime categories, and legal statuses, immigrants commit less crime than the native born. I usually deeply dislike facile, oversimplified slogans, but in this case there’s robust social science supporting that, and I had to talk about that again and again because the perception of an immigration/crime nexus is incredibly pervasive and very resistant to modification–more resistant than any other myth of immigration. I think the students might feel better about learning how to perform this analysis if they know that the purpose is to prevent situations in which ancillary, collateral consequences eclipse the actual criminal process and frustrate its goals.

Stressing the moral imperative to take this so-called externality into account in criminal lawyering is important for another reason. That the categorical analysis is technical and ignores the facts of the cases creates the risk that class will become a glib game, akin to the fantastical hypos that are often part and parcel of teaching 1L criminal law. The somber, urgent quality that accompanies the perceived domestic crises (the prime example is the relationship between police departments and communities of color) can be absent from this unless personal stories of people are brought forth. And the absurdities need to be highlighted for people to feel that what they are doing is not just an intellectual exercise of overlaying one offense on top of the other, but a valuable effort to save families from falling apart.

Striking the right balance

Toward the end of the third module, I asked my students whether learning this material made them more or less confident about their ability to do this. Responses were mixed (even though they knew nothing about this analysis before taking the unit!). I’m not sure that’s a bad result. On one hand, per Padilla, you want the students to feel empowered to offer this kind of advisory to their clients–it is their constitutional duty. On the other, you don’t want them to be overconfident about their ability to clearly predict the immigration consequences of everything under the sun. In this respect, Padilla is too optimistic about the ability of a criminal lawyer to tell a simple crimmigration case from a complex one. Immigration law is ever-changing, very responsive to the blowing of political winds, and what my students are taught about immigration law might not be good law under a new administration. Rather than have them freeze in panic, I would like to empower them to take action: call an immigration lawyer or a nonprofit and consult. Because this isn’t going to be sustainable for every lawyer/client, I think that ultimately the answer to the problem of advising noncitizen clients should be a combination of two factors: the emergence of law school clinics whose job is to offer Padilla support to public and private defense attorneys, and the establishment of an excellent MCLE credit network that keeps criminal lawyers abreast of pertinent developments in immigration law.

If you are a criminal procedure professor who read this, feels inspired, and wants to teach my bail-to-jail course with my immigration materials, contact me (or contact ChartaCourse.)

Eight Things AG Rob Bonta Could Do for the CA Prison COVID-19 Crisis

One of the most astonishing contradictions of the last year has been the image of various California political leaders as Lefty Heroes of the Resistance while, on the local level, they perpetuate and worsen the COVID-19 crisis in jails. As regular readers know, I have been quite shocked by the tack that AG representatives took in the various COVID-19 cases, playing evasion games with the courts and, quite frankly, defending the indefensible. The dragging litigation in Von Staich is a case in point–after constantly jamming the wheels of the legal machine to the point that effective relief was completely thwarted, they continue to haggle over symbolic victories even as the case goes to the Marin Superior Court for an evidentiary hearing. The AG’s office was instrumental in clinging to the Court of Appeal’s flexibility, declaring upfront that they were going to do nothing until the case went to the CA Supreme Court while people were getting sick and dying, and at the same time, for ostensibly unrelated reasons, threatening (and executing some) transfers that made everything worse than if no remedy at all were available. The shamelessness of the briefs in these cases is nothing new for seasoned prison litigators, but the delay tactics in the face of rapidly changing circumstances reached new moral lows. Plenty to be appalled at on the administrative level of corrections–CDCR’s deliberate indifference, the county sheriffs’ effrontery, BSCC’s incompetence–but it has been more than matched by the heavy legal artillery the AG’s office put forth to justify and legitimize this human rights crime. I was especially appalled to see the overseer of this edifice of legal whack-a-mole, Xavier Becerra, rewarded with–irony of ironies–the health brief, of all things, in Biden’s cabinet. It has been hard to explain to out-of-state friends how these apparent “good guys,” whose appointments are being celebrated as victories for the left and diversity wins, have been architects of horrific atrocities at the state level.

But perhaps winds of change are blowing – time will tell. Yesterday, Gov. Newsom announced his new choice for Attorney General: Assemblymember Rob Bonta of Oakland. Bonta has been hailed as a progressive lawmaker and death penalty opponent. It’s a very worthy appointment for a variety of reasons. But how will this play out in the context of our prison crisis?

I hope we’ve learned enough to realize that progressiveness, in itself, does not guarantee a ticket out of this abyss. It was not that long ago that Jerry Brown, one of our mainstay progressives, fought Plata tooth and nail all the way to the Supreme Court as Attorney General, threatened his way throughout the Plata benchmarks, even as he finally delivered, as governor, with Realignment. Becerra himself was viewed as progressive, and during his confirmation newspapers parroted the many lawsuits he filed against Trump. Governor Newsom, who is known for his progressive agenda, is another example: he has not budged on releases, to a distressing degree. But Bonta might be different, because just a few months ago he was on stage with us at the press conference the #StopSanQuentinOutbreak Coalition held at the San Quentin gate on July 9. This means he is aware of the horror that has transpired here, and that he probably understands that, without meaningful change, the next pandemic will unfold in pretty much the same way unless we make some drastic change in how we perceive and manage prisons and jails.

Here is my advice for our new Attorney General on how to oversee the legal aspects of the prison COVID-19 crisis:

  1. Stop the evasion games. It is unconscionable for the AG’s office to argue, in Von Staich, that the proper forum is the Marin Superior Court; at the Marin Superior Court, that the proper forum is the Federal District Court; and at the District Court, in Plata, that the proper resolution is administrative, not judicial. There is a reason why there are multiple lawsuits against the prison: there has been deliberate indifference. You need to address them where you stand.
  2. Urge your clients to shape up rather than prop up their defense. If all the money spent fighting these CDCR lawsuits were, instead, spent on halfway houses, reentry options, and proper PPE equipment, as well as on attracting high-quality medical and correctional staff, we wouldn’t be in this mess. Part and parcel of being counsel is offering counsel to one’s clients.
  3. Stop shirking and take responsibility. It has been embarrassing to hear AG representatives argue that hanging COVID informational posters and allowing people to tear pieces of t-shirts to cover their faces has sufficiently ameliorated the risks they created by knowingly transferring sick people between facilities. The Eighth Amendment standard has been met. Taking cover under the courts’ deference to correctional facilities, in the face of the shocking devastation of COVID-19, is an embarrassment to the entire state.
  4. Divert legal energy to the question of vaccination mandates for correctional staff. One of the most appalling aspects of this crisis has been the reluctance of staff to wear PPE, get tested, and get vaccinated. It is a badge of shame on CDCR, CCHCS, and CCPOA. If a sliver of the energy spent on justifying their actions in court were spent putting together an airtight legal structure for requiring staff to get vaccinated (or lose their jobs–which is lawful according to experts)
  5. Listen to criminologists and criminal justice experts when they repeatedly explain that holding people aged 50 and older behind bars is a complete waste of money, which does not improve public safety, but rather undermine it by incubating serious diseases behind bars as well as letting people out into a world they left decades ago and for which they are unprepared. My friend Allison Villegas was horrified to learn yesterday that the oldest person in CDCR custody is 93 years old. Ninety-three?!
  6. Exercise some firm leadership vis-a-vis county prosecutors and county sheriffs. A big part of this problem resides with county jails. It may be time to consider a unified correctional system under state leadership, because otherwise atrocities happen throughout the state that we have no control over (and no way of knowing about.) The California District Attorney Association is a disgrace and an embarrassment, and their unrestrained advocacy on behalf of policies that do not do anything but dehumanize and alienate entire populations must be stopped.
  7. Demand better data collection. As I explain in Bottleneck, a big part of the problem is that we don’t actually know what is going on in most counties, nor do the county and state databases interface with each other. This is inexcusable. Imagine how much more smoothly the machine would run if we could contact-trace, follow people to track recidivism and new charges, and project changes in population on the individual and aggregate level for both state- and county-level facilities.
  8. Visit the prisons. Please go inside and see for yourself the disease-promoting conditions in which we hold our fellow Californians. Surely if they let Justin Bieber in (the outrage! families have not seen their loved ones in a year!) they would let in the Attorney General of California, no?

I really hope this appointment bodes well for all of us, and my door is always open to do research and offer advice.

News on Vaccines in County Jails

The vaccination protocol in county facilities continues to be sporadic, but there are some good news. First, on March 1, 2021, at the ACIP COVID-19 Emergency Meeting, Dr. Kathleen Dooling (CDC) stated: “Transmission in Congregate Settings, such as prisons, homeless shelters, or long-term care facilities or other, continues to be a challenge. Jurisdictions may consider offering vaccines to all unvaccinated staff and residents at the same time without waiting for eligibility of each constituent group.” Look at the 12:10-12:29 minute mark:

Dr. Dooling’s comment updated ACIP’s previous recommendations to include immediate vaccinations of incarcerated persons regardless of the constituent group.

Then, on March 11, 2021, the California Department of Public Health updated its Vaccine Prioritization Guidelines, mirroring ACIP’s updated recommendation to include all those housed in a high-risk congregate residential setting, such as an incarceration/detention facility.

On March 15, Orange County jails were granted authority from our Local Vaccination Task Force to inoculate their entire population. They also made this fantastic video, which includes testimonies that I was so happy to receive from Ken Hartman, Rasheed Lockheart, and Arnold Treviño a few weeks ago, in order to encourage jail residents to accept the vaccine:

I want to especially draw your attention to what Joe Balicki, the Assistant Sheriff, says at the end, which I think is crucially important. While the decision whether to get vaccinated or not has nothing to do with one’s release (nor should it; public health and deservedness should not mix), it does impact the jail authorities’ ability to reintroduce programming and, hopefully, visitation, which makes everyone’s life inside better, regardless of their date of release. This strikes me as an eminently sensible reason to get vaxxed in any correctional facility, and underscores a point we make in our forthcoming book Fester: vaccination is a group effort, not a solitary zero-sum game.

Which brings me to my next point: My amazing colleague Dorit Reiss, who has been fighting the good fight on vaccines for years, has a fascinating new blog post over at the Skeptical Raptor Blog regarding a lawsuit brought by a correctional officer in New Mexico, which she thinks is meritless and will likely not succeed:

The main argument of the plaintiff, through his lawyers, is that it is illegal to require a EUA vaccine. To bolster that, the plaintiff also argues that a COVID-19 vaccine mandate is preempted by the federal EUA. In addition, the plaintiff, through his lawyers, also alleges that the requirement is in violation of his constitutional right to life, liberty, and privacy. This case is different than most challenges to workplace mandates in that the employer is a public employer, the county, which is also limited by the Constitution. 

The first point to remember is that if we go back to the law authorizing the EUA, it does not speak to state or local authorities at all, nor does it speak to employers. The law tells the Secretary of Health to provide information to recipients. But as the CDC points out, traditionally it’s not the federal government who mandated vaccines.

Basically, the plaintiff – and other supporters of the view that the EUA provision prohibits mandates – are asking a court to determine that a provision directed at the Secretary of Health and Human Services overturns an existing legal framework that allows states and localities to impose rules in the public health – and allows employers to set workplace health and safety conditions – by implication, without addressing them directly at all.

Maybe, but that is an extremely big legal change to make by implication. Employers have a decent argument that this provision is not directed at them, and does not change existing state and local law by implication alone.

Further, the provision itself is ambiguous. It mentions the consequences of declining a product, suggesting that there could be such consequences. Especially outside the Secretary’s orbit. 

Plaintiff also mentions that the employers did not inform him of the risks or benefits of vaccines, but the statute is fairly clear that such information needs to be given by those administering the vaccine. It is not directed at employers per se, and the plaintiff was not getting the vaccine from his employers directly.

What about the quotes from the FDA and from Dr. Cohn? Could the employee not rely on them? Well, not really.

First, the FDA issued a guidance document. Under our Supreme Court jurisprudence, while the law is not as clear as it could be in this area, agency guidance does not always get a very high level of judicial deference; Dr. Cohn’s comment would likely get even less deference: it was an oral comment by an official that, although entrusted with substantial responsibilities (and, because of her capability, intelligence, and integrity, deserving of much personal respect) is not a legal expert, and not in charge of applying the EUA law (the latter is relevant to assessing the level of deference).

Further, the language quoted from the FDA – the preemption clause – does not directly address mandates. It is part of the “Preemption” section of the guidance document, and that section, the document explains, anticipates conflicts of state law if “if states have existing requirements governing the shipment, holding, dispensing, administration, or labeling of unapproved medical products or approved medical products for unapproved uses.”

That’s not about the mandate. This clause is not a good source for arguing that the FDA is prohibiting mandates. In fact, the word mandate does not appear in the FDA guidance. The closest reference in the document is that the document quotes that “the statute requires that FDA ensure that recipients are informed to the extent practicable given the circumstances… that they have the option to accept or refuse the EUA product and of any consequences of refusing..”[the vaccine].

The only operational conclusion from that is the FDA’s recommendation to include this language in the EUA fact sheet that manufacturers prepare for recipients. Again, this is directed at recipients – and manufacturers – not employers.

In other words, while the plaintiff has a colorable argument that the EUA law prohibits mandates, the county likely has a much stronger argument that there is no such prohibition. 

The complaint also seems to me to understate the data behind the vaccines, which draw on clinical trials as large or larger than those used to license vaccines, trials consisting of tens of thousands of people, which found the vaccines very effective and very safe. Experience since, with the vaccines given to tens of millions of people, and supported, for example, by a study with over a million from Israel, supports that.

At this point, EUA COVID-19 vaccines have strong evidence to support their safety and effectiveness.

The plaintiff’s lawyers even tried to coopt the famous case of Jacobson v. Massachusetts,   which upheld a vaccine mandate, by pointing out that it acknowledged that there are limits on the government’s power to limit individual rights for public health. That is true, but Jacobson also approached such limits with some deference to the authorities. 

At any rate, a COVID-19 vaccine mandate like this would easily survive the reasonableness requirement embedded in Jacobson. The county is requiring public servants working in certain positions to get a vaccine with extensive safety and effectiveness data behind them.

Plaintiff is a corrections officer, literally working with a captive population in a congregate setting. Plaintiff is not being held down or forcibly vaccinated and does not face criminal charges if he does not vaccinate.

He is told that if he wants to work with a vulnerable population, he needs to get a vaccine. This is an imminently reasonable requirement, in these circumstances. At least arguably, when the state detains people the state owes them to take basic safety precautions and requiring that the correction officers be vaccinated seems a natural step in the right direction – especially since jails have been part of the relatively high rate of Covid-19 seen among incarcerated persons.

I will add that when the government is acting as an employer, those working for it will inevitably be subject to workplace rules. By taking the employment, the employee is accepting some limits on conduct. While constitutional rights do not disappear, there are limits to their application in their employment context – even freedom of speech can be limited in the workplace when the speech is not about a matter of public concern.

Finally, I’m eagerly looking forward to this coming Wednesday, when I get my second shot of the Pfizer vaccine, and to Friday, when I will hold my first in-person office hours in a year! Here’s hoping that you get yours, too, soon.

Counties, Follow SF’s Lead and Vaccinate Your Jail Populations!

This morning’s Chron is full of delights. Not only is Mayor Breed moving to make the marvelous restaurant parklets permanent, but our county is expanding its vaccination protocols to include several important populations, amongst which is our jail population! Aidin Vaziri reported:

The city will also open appointments to individuals who live or work in high-risk congregate care settings, including correctional facilities, homeless shelters and residential care and treatment facilities, the Department of Public Health announced Friday. People experiencing homelessness will also be eligible.

“Getting vaccinations to people with disabilities and who have severe underlying conditions, and people who are in congregate settings, is an important part of our efforts to save lives and protect our most vulnerable residents,” Mayor London Breed said in a statement.

This is a key move for the various reasons I explained in my previous post and in my new article. Other counties must follow San Francisco’s lead, and if they don’t, a state mandate must be put in place so that jail populations, which are transient by their very nature and a crucial juncture in the community-to-prison-to-community multidirectional pipeline, do not act as superspreading disease points. Here is what I wrote about vaccinating jail populations:

The advent of the Pfizer and Moderna vaccines opened a new avenue of advocacy on behalf of incarcerated populations. Given the prioritization of vaccinating people in congregate housing settings, such as nursery homes, similar arguments were made in the context of prisons. The same arguments can, and should, be made on behalf of residents of county jails. In California, the concerted effort of advocates and experts led to the classification of people in prison as vaccine priorities, in Tier 1B; despite a disappointing January retraction of this policy, as of February 23, 2021, 40 percent of the prison population has been vaccinated. Despite understandable concerns that incarcerated people might harbor mistrust and suspicion of prison authorities, which would stand in the way of administering the vaccine, the acceptance rate among incarcerated people has been high; refusal rates have only been problematic among the staff.

It is here where, once again, the jurisdictional-mechanistic approach to county jails works to the detriment not only of their residents, but of all residents of the surrounding and neighboring counties: Even before it was rescinded, the California state mandate extends only to state prisons. Counties were left to decide for themselves whether to prioritize their jail populations and, as in other matters, there has been considerable variation. Bay Area counties are ramping up vaccination for their jail populations; Kings and Tulare counties are vaccinating aging and infirm jail residents, while Merced and Fresno Counties have no set date yet to begin vaccination in their jails.

While these variations in vaccine policies could be simply manifestations of supply shortages, they might also represent political pushback in the counties of the sort seen in other states regarding prisons. In Colorado, for example, Governor Jared Polis responded to public pressure by ignoring expert opinions on the urgency of vaccinating incarcerated people for public health and downgraded this population in his plan. The Director of the Center for Bioethics and Humanities at the University of Colorado criticized this decision as guided by “moralistic argument,” explaining that “[i]t’s a very stigmatized population, and there are people who say, ‘They’re in prison, they must have done something terrible, and they don’t deserve a place in line.’”

The prevalence of such “moralistic arguments,” which compound public health priorities with hierarchies of perceived deservedness, might play into the struggle for vaccination in jails. As explained above, 75% of the California jail population consists of pretrial detainees who, of course, are presumed innocent; it is not difficult to imagine an appeal to public policy that distinguishes between these people and the presumably “less deserving” people in state prisons.

Despite its superficial rhetorical appeal, I strongly advise against relying on such an argument. Adopting the organic-geographical perspective that this article proposes implies seeing all incarcerated people in California as part of one porous carceral network, along a continuum that reaches to the outside community. The bottleneck effects of the jurisdictional approach have led to outbreaks; the way out of this quagmire requires accepting the need for population equilibrium and population reductions throughout the entire correctional system, regardless of administration and budgeting levels. Part and parcel of this essential population reduction is opening the jail floodgates, not only through releases to the population, but also as a two-way flow to and from the prisons. Under such circumstances, it is unacceptable to continue mixing vaccinated and unvaccinated populations. Moreover, 25% of the jail population consists of sentenced individuals, many of them for felonies; taking the deservedness argument to its conclusion would lead to the absurd policy of vaccinating only some jail residents and leaving others exposed. Such a policy would be impossible to justify and would have unbearable equity and public health implications.  

Instead, I propose advocating the vaccination of the jail population by relying on two arguments with organic-geographical appeal. First, it must be clear that the transient jail population poses at least as much risk to the surrounding community as the staff working among the less transient prison population. The reasoning for vaccination in both cases should be the same. In addition, there is a practical consideration that should appeal to counties and municipalities: running a vaccination enterprise at a congregate housing location with permanent medical staff would ease vaccine distribution, help with the dissemination of medical information, and possibly have the ripple effect of generating more vaccine acceptance among family members and friends of people who are vaccinated during the course of their jail residency.

While the project of vaccinating incarcerated populations is worthwhile, it raises the concern that the vaccine would come to be seen as the panacea for all correctional problems. This article’s review of the spillover of healthcare problems from prisons into jails should be a cautionary tale.

My recommendations for remedying the broken healthcare structure in county jails require a paradigm change, which would view jails not through the jurisdictional-mechanistic perspective, but as organic parts of their surroundings and communities. Unifying the administration of prisons and jails in California might be a pipe dream; however, at bare minimum, health care policies should be far better coordinated. Informational databases—not only involving healthcare, but also population shifts—should have seamless interfaces between state and county facilities (an inexcusable oversight in a state with such high technological literacy.) Aggressive efforts at hiring and retaining medical staff should target not only individual facilities, but also local county hospitals with an eye toward serving incarcerated populations as well. Most importantly, health care policies, ranging from preventative healthcare, nutrition and wellness, to emergency care, should start with families and schools, extending into jails and prisons as a continuum. These are crucial not only to curb the current pandemic, but also to prevent the pandemics of the future.