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.

Gov. Newsom and BSCC: The Prison COVID-19 Outbreak Has Calmed Down. You Can Prevent the Next Wave

For the first time in a year, there are some good news for CDCR facilities: As of this morning (see screenshot above) there are only 98 active COVID cases in the system, 90 of which are from the last 14 days. There are no new or major outbreaks in any of the prisons. For the first time in 11 months, CDCR’s case rate (95 new cases per 100k people) is lower than California’s (138 per 100k people.)

This situation is largely attributable to two factors: the vaccination rate at CDCR facilities, which is considerable (as of last month, more than 40% of the prison population had received at least the first shot) and, sadly, the herd immunity reached in some facilities with colossal infection rates, like Avenal and San Quentin (which, by the way, has been rightly chastised by OSHA to the tune of $400,000 in fines).

This reprieve could very well be temporary. This week, the CDCR population grew by 85 people (presumably transferred from county jails.) As Chad and I reported a few days ago, the transfers from jails in October and November correlated with outbreaks: 12 out of the 13 prisons whose population grew (presumably jail transfers) experienced subsequent outbreaks (the 13th facility had a big outbreak anyway.) The concern is that jail populations, whose vaccination process has been uneven and erratic, could restart the pandemic in prisons (and that’s beyond the concerns about the serious outbreaks in the jails themselves.) By contrast to prisons, which are operated by the state, jails are operated by the counties, and there is no state mandate requiring counties to prioritize their jail populations in their vaccination protocols.

I have a new piece on SSRN about the place of jails in the California COVID-19 crisis, which argues that BSCC must become the hero we need at this hour. BSCC must lobby the Governor’s office for a state mandate to vaccinate jail populations on a rolling basis, and put pressure on sheriffs to lobby their own counties for vaccine priorities. Vaccination must be a condition of employment for correctional staff and other jail workers. I hope you’ll read the whole thing, but if you’re short on time, here’s the abstract:

This Article examines a lesser-known site of the COVID-19 epidemic: county jails. Revisiting assumptions that preceded and followed criminal justice reform in California, particularly Brown v. Plata and the Realignment, the Article situates jails within two competing/complementary perspectives: a mechanistic, jurisdictional perspective, which focuses on county administration and budgeting, and a geographic perspective, which views jails in the context of their neighboring communities. The prevalence of the former perspective over the latter among both correctional administrators and criminal justice reformers has generated unique challenges in fighting the spread of COVID-19 in jails: paucity of, and reliability problems with, data, weak and decentralized healthcare policy featuring a wide variation of approaches, and serious litigation and legislation challenges. The Article concludes with the temptation and pitfalls of relying on the uniqueness of jails to advocate for vaccination and other forms of relief, and instead suggests propagating a geography-based advocacy, which can benefit the correctional landscape as a whole.

There are two advocacy angles unique to jails. The first is the transience of jail populations: people can stay in jail for periods ranging from a few days to years. This means transmissivity between jails, prisons, and the community is a challenge. The second, which I offer with some hesitation,* is that 75% of jail residents are pretrial detainees, who under our legal system are presumed innocent–all the folks who are muttering about how people in prison “deserve” to get sick, or “should have thought of this before they committed the crime,” do not have even that horrible argument where jail populations are concerned.

BSCC’s function throughout this crisis was neglectful at best and catastrophic at worst. For months on end, they let huge outbreaks go unrecorded and unaddressed, did not hold sheriffs accountable, and did not maintain data for the public. Even now, their database is shamefully clunky and does not interface with CDCR’s. Many counties are not even reporting their numbers. Now’s the time for BSCC to step up and prevent the next outbreaks.

*The hesitation comes from the fact that innocence or lack thereof, or any other variant of deservedness, should not be conflated with healthcare factors. Convicted prisoners should not be a lower priority because of their guilt.


Advocating for Prison Vaccination Should Not Be a “PR Nightmare”

In the aftermath of the upsetting removal of prison populations from Tier 1B of vaccination in CA, and the horribleness of the Colorado debate over vaccinating in prisons, come more unscientific blends of public health and deservedness. Another version of this is the nauseating “inmates-before-Grandma” soundbite from Wisconsin. And today, we hear that Tennessee has scheduled its prison population last in line, because a state advisory panel tasked with deciding in what order residents should receive the COVID-19 vaccine, which acknowledged that prison populations were high-risk, concluded that prioritizing them for inoculation could be a “public relations nightmare.” Kimberly Kruesi and Jonathan Mattise of the Associated Press report:

Documents from the meetings of the Pandemic Vaccine Planning Stakeholder group, did, in fact, stress the importance of the general public seeing that inmates “are people” who should be treated as “part of the community” and “if untreated they will be a vector of general population transmission.” Yet the documents concede that providing the vaccine to inmates would result in “lots of media inquiries.”

The panel comprises roughly 40 public health agencies, lawmakers, health care coalitions, emergency management and other organizations. Because it serves in an advisory capacity it is not required under Tennessee law to meet publicly, and no audio recordings of the meetings exist, according to the Department of Health. The AP obtained the meeting notes through a public records request.

According to the documents, the group first met, virtually, on Sept. 22, before vaccines were available. Tennessee’s incarcerated population came up during that meeting, when the committee talked about populations that may have been overlooked.

“Understand it would be a (public relations) nightmare but a possible liability to the state,” states one document, which is not attributed to anyone by name.

Later, in December, when the group met to discuss moving up certain age groups, as well as teachers, inmates were once again considered.

“If we get hit hard in jails it affects the whole community. Disease leaves corrections facilities and reenters general society as inmates cycle out of their sentencing,” the document reads, adding that when inmates get the disease “it is the taxpayers that have to absorb the bill for treatment.”

Ultimately, corrections workers and jailers were bumped up to one of the earliest slots, alongside first responders. Meanwhile, inmates remained in the last eligible group. Even now, senior inmates who may qualify under the state’s age qualifications are still not getting immunized.

I’m not only disgusted, but puzzled. Do people in Tennessee (and Wisconsin, and Colorado, and apparently now California) not understand (1) how prisons work or (2) how contagion spreads? Chapter 5 of our book-in-progress Fester: Carceral Permeability and the California COVID-19 Prison Disaster relies on modeling, some our own based on primary data and some developed by others, to show that tackling the outbreaks in prisons should be a priority not just from a humanitarian standpoint, but also from a sheer selfish perspective.

Consider the graph above, which shows infections over time in three groups of California counties: Counties with prisons in them, counties within 20 miles of prisons, and counties farther away. The waves of infection are clearly visible, not only in the sense that more distant counties have fewer cases, but also in that the outbreaks there occur later.

Consider also this more general graph of CDCR infections and overall state infections:

Image

Our data shows that peaks in state infections closely follow (by “closely” we mean, a delay of about 14 days) peaks in prison infections. We can also show that the number of CDCR facilities within a given county correlates with the infection rate in the county:

Image

Over the last few days, people of various political persuasions have talked with me about this, making some variation or other of the argument that “taxpaying, honest folks should be first in line.” Rather than launching into schoolmarmish scolding of their morals (tempting as it was), all I did was show them these three graphs. Vaccinating “inmates-before-Grandma” does not mean “inmates-at-the-expense-of-Grandma.” Eliminating Petri dishes for the virus is beneficial to everyone.

The Empathy at the End of Diversity

Yesterday, Heather Knight reported about the latest absurdity perpetrated by the San Francisco Unified School District board:

A gay dad volunteers for one of eight open slots on a parent committee that advises the school board. All of the 10 current members are straight moms. Three are white. Three are Latina. Two are Black. One is Tongan. They all want the dad to join them.

The seven school board members talk for two hours about whether the dad brings enough diversity. Yes, he’d be the only man. And the only LGBTQ representative. But he’d be the fourth white person in a district where 15% of students are white.

The gay dad never utters a single word. The board members do not ask the dad a single question before declining to approve him for the committee. They say they’ll consider allowing him to volunteer if he comes back with a slate of more diverse candidates, ideally including an Arab parent, a Native American parent, a Vietnamese parent and a Chinese parent who doesn’t speak English.

This display of idiocy–complete with two hours of discussing Seth Brenzel’s “lack of diversity” while he sits before them in complete silence–is just the latest antic in the Board’s record of breathtaking performative incompetence, one of the previous episodes of which was the ridiculous quest to rename 44 of San Francisco’s closed schools based on their semiliterate understanding of history through Wikipedia.

Much has been said about these people’s incompetence and recurrence to woke theater in lieu of (what a wacky suggestion) actually helping the district’s children by charting the reopening of schools, but one particular point has caught my eye. The sole commissioner to defend Brenzel–Commissioner Jenny Lam–chose to do so by arguing that, as a gay man, he does bring diversity to the Board:

By denying him the position, we are failing SFUSD’s core values— the promise to value diversity, and to build inclusive school environments for our students and families.  Parents and families deserve utmost respect and dignity.  We also know the challenges faced by LGBTQ students in our schools from bullying to lack of school connectedness and sense of belonging.  

For decades, the LGBTQ community has fought hard for the right to be recognized as parents. As a board we missed an opportunity to reaffirm the humanity of one of our dads.  Seth deserves a fair opportunity— I will work to advance his appointment.

While it is critical to have diversity we must not pit communities against one another. We often say we must remain vigilant fighting against discrimination and hate. I will continue that commitment.

It seems like the only rhetorical currency available to San Francisco officials and pundits is diversity; Brenzel’s defense, as well as his humiliation, uses the same linguistic tropes. Indulge me, then, in a little thought experiment: let’s assume, just for a moment, that the Board had declined the application of a <gasp!> cis straight white man for lack of diversity. And let’s also remember, for a brief moment, that this coveted position is volunteer work on behalf of children. It does not grant anyone monetary benefits, fame, or status; all it means is a burden on a parent’s already-scarce free time amidst a pandemic.

Now, think: How often do you see fathers–any fathers–volunteer for educational leadership? How much have you seen fathers (as opposed to mothers) losing productivity to the pandemic? How many men in your immediate surroundings have made the choice (or accepted the lack of choice) to leave their jobs and tend to their children’s needs and education while their wives kept their positions? Can you think why, in order to appeal to people, a humongous effort needs to be put into imbuing school volunteering with any sort of status, and whether this might possibly relate somehow to the fact that parent volunteers tend to be women? Against this backdrop, wouldn’t it be a positive–even, perhaps, progressive–move to say to a man, any man, of any sexuality, ethnicity, or nationality, applying for one of multiple vacant volunteer positions advancing the wellbeing of the community’s children: “Welcome! When can you start?”

Here was an opportunity to understand that a motivated, good-willed person, does not give of his free time to the community to abuse and belittle other people’s children. Here was an opportunity to drive home the crucially important message that we advance as a community when all our kids advance, and that all parents, of all colors and sexualities, should be invested in the advancement of all children, of all colors and sexualities. Instead, judging from the furious comments of the scores of parents of all colors who responded to the decision, what happened here was exactly what happens when people receive mandatory diversity training: resentment, derision, disengagement. When has bullying, humiliating, and excoriating people who want to help ever worked as effective motivation to continue “doing the work,” so to speak? What, exactly, was the goal here, and how was it accomplished?

I don’t think our diversity aspirations should be more modest. Au contraire, I think they should be bolder. So bold, in fact, that diversity itself should not be a goal. Treating it as such is shortsighted. Diversity is a path that takes us toward a brighter future–one in which everyone can enjoy self-fulfillment and thrive. This takes the understanding of two entwined but distinct truths, which have come to obscure each other in our shrill, shallow narratives: the one progressives get–that people of different backgrounds experience the world in unique and unequal ways because of their identities–and the one they don’t get, namely, that empathy is a human superpower that transcends differences because, at the ember of lived experiences, we all know what it’s like to be disregarded, lonely, misunderstood, dehumanized. A quest for diversity is worthy and important when it advances the cause of empathy, and a caricature of performative wokeness when it stands in the way of empathy, which is what happened here.

Transfers Into CDCR Facilities in October/November Correlate with Spike in Cases

I’ve just finished listening to the California Assembly hearing, which in part discussed the OIG report about the botched transfer to San Quentin. Most of the attention focused on this part, as CCHCS Receiver Clark Kelso (depicted above) blamed San Quentin officials for their part in causing the outbreak (seeing Quentin and CCHCS blame each other is like watching an elegant train wreck.) No satisfying response was given to the question how we can prevent such situations in the future–or at least not ostensibly, unless one listened very carefully to the beginning of the hearing.

In the first part of the hearing, CDCR Secretary Kathleen Allison discussed budgetary aspects of CDCR management in the coming year–particularly the impending closure/transformation of at least two prisons: CCWF and DVI. She also commented on population fluctuations, focusing on population reduction (“lowest levels in 30 years”) and on the bottleneck at the jails.

Because some alert activists noted a recent rise in population at Wasco, we decided to check whether there was a bigger trend here. Chad Goerzen ran the numbers, and what we found may suggest that the mistakes that were made at Quentin are still being made–resulting in increased infections.

First, it wasn’t just Wasco. The graph below shows the change in net CDCR population in the last six months or so. As you can see, between mid-October and late November, CDCR population actually increased.

Between October 4 and November 29, 13 prisons showed a net population increase:

SAC (+3)
CAL (+89)
CEN (+22)
CCWF (+63)
HDSP (+2)
KVSP (+139)
MCSP (+126)
NKSP (+187)
RJD (+41)
SVSP (+63)
SCC (+64)
VSP (+22)
WSP (+749)

Now, recall the serious outbreaks that characterized the fall and winter at CDCR. Without contact tracing, of course, we can’t show that these transfers caused the outbreaks. But here’s what we can tell. The green dots mark the period during which the prison population overall increased:

Now, a granular analysis of outbreaks for individual institutions. By December 7, 2020, the following prisons had major outbreaks of more than 50:

CCI (92)
LAC (795)
SAC (115) 
CAC (367)
CAL (154) 
CEN (419)
CTF (799)
HDSP (722)
ISP (120)
KVSP (505)
MCSP (733)
NKSP (208)
PBSP (51)
PVSP (1213)
RJD (400)
SVSP (83)
SCC (248)
SATF (593)
VSP (368) 
WSP (336) 

The prisons in bold are the ones that had increases in population. In total, 12 of the 13 prisons with population increases suffered major outbreaks by 12/07/20. Furthermore, these make up 12 of the 20 major outbreaks within CDCR at that time. The only prison that did not evince a new outbreak after a population increase was CCWF, which was just at the tail end of a major outbreak at the time (and possibly experiencing some form of herd immunity.)

Where did the new population come from? We don’t know. What we do know is what Sheriff Growdon of Lassen County said at the CCC conference last Friday: that the population bottleneck at the jails due to the transfer stoppages has caused outbreaks at the jails; that it is incredibly difficult to recruit qualified medical staff in jails located in rural areas; and that educating guards about masking, testing, and vaccinating has been an uphill battle, to the point that he was considering rewarding them financially for COVID compliance. Could an accumulation of these local problems at the county level account for the population rise in the fall and, subsequently, for the outbreaks? We cannot prove this beyond doubt, but we can raise concerns.

Federal District Court Orders Vaccination of Entire Oregon Prison Population Population: Plata Court Must Do the Same Immediately

This afternoon, Dr. Peter Chin-Hong of UCSF and I participated in an event hosted by Eastern State Penitentiary, as part of their Searchlight series, on vaccinating incarcerated populations. Here is the full conversation:

A couple of hours after we finished the show, we got word of a fantastic development: federal litigation on behalf of incarcerated people in Oregon ended in a big human rights victory. Magistrate Judge Beckerman just ordered the Oregon Department of Corrections (ODOC) to vaccinate all state’s prisoners–12,900 people–as if they should have been vaccinated last month; in other words, to place all of them in 1A2 tier. The hearing ended with Judge Beckerman memorializing the 41 lives lost in Oregon’s prisons during this pandemic. Read the opinion in full here. A few highlights that are crucially relevant to the California scenario:

Our constitutional rights are not suspended during a crisis. On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless. Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody.

The Eighth Amendment imposes an obligation on Defendants to protect the people in their custody because they cannot protect themselves. . . Courts have also long recognized that prison officials have an Eighth Amendment duty to protect inmates from exposure to communicable diseases.

Plaintiffs’ recent evidence demonstrates that individuals in ODOC custody continue to lack the means to protect themselves from exposure to COVID-19 and, in some cases, risk being disciplined in attempting to do so.

Defendants argue that “it is reasonable and important to vaccinate correctional workers before AICs because they are a primary source of infection.” Defendants contend that, due to limited vaccine supplies, Oregon has reasonably determined that the most effective means for slowing transmission is first to administer the vaccine to ODOC staff and contractors.

The Court is not persuaded. First, Defendants’ argument is belied by their own Vaccination Plan. Defendants Allen and Governor Brown have included in Phase 1A individuals living in (1) “Residential care facilities”; (2) “Adult foster care”; (3) “Group homes for people with intellectual and developmental disabilities”; and (4) “Other similar congregate care sites.” This is evidence that Defendants are aware of the high risk of COVID-19 exposure and infection to individuals both working and living in a congregate setting, and aware of the importance of vaccinating both populations to protect against infection. AICs also live in a congregate care setting, yet they have been excluded from Phase 1A. Indeed, ODOC initially assumed that AICs must be included at this priority level “because ODOC has previously been classified as a congregate care setting by OHA[,]” which is why ODOC mistakenly began vaccinating AICs. In light of this recognition of the risks to those living in a congregate care environment, and the risk of those working in a correctional setting, the exclusion of AICs from Phase 1A supports a finding of deliberate indifference on the part of Defendants.

Additionally, while Defendants are aware that ODOC staff and contractors are the primary source of transmission of COVID-19 within ODOC facilities, they are also aware that only an estimated fifty-five percent of ODOC staff and contractors will elect vaccination. As of January 29, 2021, ODOC had administered 1,500 doses to eligible staff and contractors, for a vaccination rate of approximately thirty-four percent. Thus, even assuming that vaccinated correctional officers cannot spread the virus to AICs (an assumption public health experts have not yet endorsed), vaccinating only one out of every two or three correctional staff is inadequate to stop the spread of COVID-19 in the prisons. Simply put, Defendants are well aware of the risks of serious harm to both correctional staff and AICs and have chosen to protect only the staff.

The Court finds that Plaintiffs have demonstrated a substantial likelihood of success on the merits of its Eighth Amendment claim as applied to the Vaccine Class. The Court therefore enters the following preliminary injunction: Defendants shall offer all AICs housed in ODOC facilities, who have not been offered a COVID-19 vaccine, a COVID-19 vaccine as if they had been included in Phase 1A, Group 2, of Oregon’s Vaccination Plan.

Maney et al. v. Brown (2020)

I hardly need to tell regular readers of this blog that all of this applies, to the letter, to the situation in California. Here, too, the waffling about vaccinating incarcerated populations, and the policy of offering vaccines to the staff has backfired. As I explained elsewhere, the staff is the problem. Incarcerated people are complying at impressive rates, whereas staff’s compliance rates have been dire.

According to information I received from the Prison Law Office, as of of January 25, 2021, 8,349 incarcerated persons have been offered the vaccine. Approximately 84% of those patients accepted the first dose of the vaccine and approximately 99% accepted the second dose. Of those offered, COVID-19 naïve patients aged 65 or older accepted dose 1 of the vaccine at a rate of over 90% and dose 2 at a rate of over 99%; COVID-19 naïve patients with a COVID-19 weighted risk score of 6 or higher accepted dose 1 of the vaccine at a rate of over 90% and dose 2 at a rate of over 99%; and COVID-19 naïve patients with a COVID-19 weighted risk score of 3 or higher accepted dose 1 of the vaccine at a rate of approximately 86% and dose 2 at a rate of over 99%. 

Here’s the scenario, staff-wise: As of January 25, 22,068 CDCR and CCHCS employees (or approximately 35% of employees) have been given the first dose of the COVID-19 vaccine. Of these, 2,289 staff have received both doses of the COVID-19 vaccine.  Approximately 20% have had the disease. The reason for this reluctance, as well as the reluctance to wear masks, get tested, etc., has been the subject of much consternation at the Plata conferences, but beyond praising CCPOA’s counsel for showing up and making a video, little has been done to demystify this situation and provide a solution. For what it’s worth, today I learned from Dr. Chin-Hong that they are finding low compliance among nursing home staff as well, which is distressing.

We also have reports of vaccination at the federal prisons at Terminal Island and Lompoc, where about 20% of incarcerated people have been vaccinated, and several county jail systems where vaccination programs have been rolled out – San Francisco and Contra Costa in particular. Other jail systems are lagging behind.

In other words, the importance of vaccinating incarcerated people rises because of the low rates of cooperation from staff. The Oregon arguments are valid here, too. The Plata court must follow suit with a universal vaccination order, before more lives are lost.

OIG Releases Scathing Report of CDCR’s Botched Transfer from CIM to Quentin, Corcoran

In the heels of its two previous reports (see 1 and 2), and just in time for Round 2 of litigation in In re Von Staich (to assess whether an evidentiary hearing is required to modify the original order) comes the much-anticipated Part 3 of the Office of the Inspector General’s review of CDCR’s (mis)handling of the COVID-19 disaster. The report, which you can read in full here or peruse the fact sheet, is a scathing narrative of how CDCR botched the transfer from CIM in Chino to San Quentin and Corcoran prisons, bringing about the worst prison medical disaster in the United States. The report does not mince words: It is titled California Correctional Health Care Services and the California Department of Corrections and Rehabilitation Caused a Public Health Disaster at San Quentin State Prison When They Transferred Medically Vulnerable Incarcerated Persons From the California Institution for Men Without Taking Proper Safeguards.

The executive summary reads as follows:

Our review found that the efforts by CCHCS and the department to prepare for and execute the transfers were deeply flawed and risked the health and lives of thousands of incarcerated persons and staff. Insistence by CCHCS and the department to execute the transfers and subsequent pressure to meet a tight deadline resulted in the California Institution for Men ignoring concerns from health care staff and transferring the medically vulnerable incarcerated persons, even though the vast majority had not been recently tested for COVID-19. With outdated test results, the prison had no way to know whether any of the incarcerated persons were currently infected with the virus. According to email conversations that we reviewed, a California Institution for Men health care executive explicitly ordered that the incarcerated persons not be retested the day before the transfers began, and multiple CCHCS and departmental executives were aware of the outdated nature of the tests before the transfers occurred.

In addition to the department transferring the medically vulnerable incarcerated persons despite outdated tests, prison health care staff conducted verbal and temperature screenings on multiple transferring incarcerated persons too early to determine whether they had symptoms of COVID-19 when they boarded the buses. As a result, some of the incarcerated persons may have been experiencing symptoms consistent with COVID-19 when they left the prison. The risk of placing some symptomatic incarcerated persons on the buses was exacerbated by another inexplicable decision approved by CCHCS executives to increase the number of incarcerated persons on some of the buses, thus decreasing the physical distance between them, and increasing the risk that the virus could spread among the incarcerated persons and staff on the buses.

Once the incarcerated persons arrived at San Quentin, nursing staff immediately noted that two of the incarcerated persons arrived with symptoms consistent with COVID-19. Nonetheless, the prison housed almost all of the incarcerated persons who arrived from the California Institution for Men in a housing unit without solid doors, allowing air to flow in and out of the cells. By the time the prison tested the incarcerated persons for COVID-19, many of those who tested positive had been housed in the unit for at least six days. The virus then spread quickly through the housing unit and to multiple areas throughout the prison. The prison’s inability to properly quarantine and isolate incarcerated persons exposed to or infected with COVID-19, along with its practice of allowing staff to work throughout the prison during shifts or on different days, likely caused the virus to spread to multiple areas of the prison. According to data the department provided to support its COVID-19 population tracker, by the end of August 2020, 2,237 incarcerated persons and 277 staff members became infected with the virus. In addition, 28 incarcerated persons and one staff member died as a result of complications from COVID-19. In contrast, Corcoran, likely because it is a much newer prison consisting mostly of cells with solid doors, experienced a much smaller outbreak. An animated graphic displaying the progression of the COVID-19 outbreaks coursing through the various housing units at San Quentin and Corcoran after the transfers had been effected can be viewed on our website at www.oig.ca.gov.

Our review also found that when staff became aware of the positive test results shortly after the incarcerated persons arrived, both prisons failed to properly conduct contact tracing investigations. According to San Quentin, there were too many positive cases over a short period of time to conduct contact tracing. In addition, Corcoran staff failed to identify any contacts other than those living in cells adjacent to those of the incarcerated persons who tested positive. By failing to thoroughly conduct contact tracing, the prisons may have failed to alert some close contacts of the infected individuals, increasing the risk of further spread of the virus.

The report determined that the COVID-19 tests for almost all of the 122 men who were transferred to San Quentin were more than two weeks old by the time of transfer:

The report reproduces emails of directors and administrators within CCHCS who explicitly denied the staff’s requests to test the men before the transfer:

One nurse administrator documented the fact that two people on the bus were already symptomatic but were ordered to go on the bus anyway:

Symptom-checking was conducted too soon to be useful:

After a devastating section recounting how CCHCS administrators opted to transfer people in the bus without social distancing because “the benefit of a more rapid move in this specific situation appears to outweigh the risks” (p. 39), the report covers ground we already know–the failure at Quentin to properly isolate the newcomers. The report does not go into the interaction between the Marin county officials and the prison officials, which make the picture even bleaker. It also explains why a similar calamity did not occur at Corcoran: “Compared with San Quentin, Corcoran is a modern prison with a design better suited for quarantining and isolating incarcerated persons. Because the prison’s housing predominantly consists of cells with solid doors, Corcoran was able to place all arriving incarcerated persons in cells with solid doors. Doing so likely significantly reduced the spread of the virus at the prison, as only two of the 67 incarcerated persons who transferred from the California Institution for Men contracted the virus after the transfer” (p. 42.) Against this backdrop, the location chosen to house the newcomers seems even more disturbing–the report includes images of mesh doors in the South Block unit, also known as the Badger unit.

One aspect of the report that seems especially important is the repeated reference to the fact that the prison authorities were aware of the risks they were taking. The email chains reproduced in the report are truly damning in terms of their evidentiary power. This matters because prevailing in a lawsuit about prison conditions requires not only negligence, but a higher standard known as “deliberate indifference.” This requires proving that authorities were aware of the risk they were creating and decided to act anyway. Seeing how this awareness permeated all levels of command within CDCR/CCHCS offers proof of deliberate indifference, and it is hard to think, given the actions of the prison once the newcomers were there, that they could show anything in mitigation.

Obviously, this has crucial legal ramifications for Von Staich, Ruiz, Hall, and beyond, so CDCR/CCHCS have issued a joint statement, according to which they “disagree with the information” in the report. This is nonsensical. One can disagree with an opinion, but to “disagree” with information? The information is either true or not true, and in this case it’s rather obvious it’s true, as the emails are screenshot and reproduced verbatim in the report. We know what happened, we have obvious, factual truth that they knew and chose to disregard the risk, and no milquetoast “disagreement” is going to change that.