Euthanize the Death Penalty Already: Scenes from Capital Punishment’s Chronic Deathbed

(published: The Green Bag 27(3), Spring 2024)


INTRODUCTION

J.R.R. Tolkien’s immortal Lord of the Rings tells of the crossing of the Bridge of Khazad-dûm, during which members of the Fellowship of the Ring inadvertently awaken the Balrog. A monstrous holdover from ancient times, the Balrog attacks the Fellowship. Gandalf, the wizard leader of the Fellowship, successfully fights the monster, but at the very last moment, as the Balrog plunges to its death, it swings its whip one last time, capturing Gandalf and dragging him along into the abyss under the Bridge of Khazad-dûm.

The U.S. death penalty in the 21st century is like the Balrog – arcane, decrepit, still grasping and lashing its whip even as it approaches its demise. The score, state-by-state, is practically against capital punishment: 23 states have abolished it, and out of the 27 states that retain it, six (plus the federal government under President Joe Biden) have instated moratoria upon its use.

Even in retentionist states, the rate of executions has slowed almost to a grinding halt, and initiatives to abolish the death penalty frequently appear on the ballot. Even as Americans hang on to their support of the death penalty by a thread,3 and these ballot initiatives continue to be defeated,4 the death penalty continues to lose practical ground.5 Much like people on death row, most of whom die natural deaths after decades of incarceration and litigation,6 the death penalty itself is dying a slow, natural death.

As Ryan Newby and I explained more than a decade ago, the slow decline of the death penalty has been caused by a confluence of several factors.7 The first is the advent of cheap-on-crime politics in the aftermath of the Great Recession of 2008, which drew attention to the immense, disproportionate expenditure on capital punishment. 8 The second is the rising prominence of the innocence movement, which has shone a light on the widespread problem of wrongful convictions, supported in recent years by
the popular reach of true-crime podcasts highlighting miscarriages of justice.9 The third is the growing attention to racial disparities in criminal justice which, while a tough argument to bring up in litigation,10 has impacted the national policy field through Obama-era reforms.11

The expense, discrimination, and potential for harrowing mistakes are all aspects of the chronic disease afflicting the death penalty. But like many natural deaths from chronic disease, the end is prolonged, undignified, and sometimes bitingly cruel. Anyone who has cared for a loved one through the end of life can probably recall the chaotic, arbitrary, sometimes contradictory indignities that every day of decline brings in its wings. And so, in this paper, I offer you a safari tour of horrors, injustices, absurdities, and embarrassments that have characterized the death penalty through its prolonged chronic demise.


TRUMP’S LAST KILLING SPREE: RELUCTANT VICTIMS, ALZHEIMER’S, AND JURISDICTIONAL DISPARITIES


Tolkien is a master storyteller, and he sets up the moment when the Balrog’s whip ensnares Gandalf as poignantly tragic – a sudden, unnecessary reminder that, even at its demise, the ancient monster can still unleash vicious harm. The last few days of the Trump administration offered ample proof of this, through the Supreme Court’s decision in Barr v. Lee.12

Like much of latter-day death penalty litigation, Lee focused on chemicals used in federal executions – to wit, a single shot of pentobarbital, a mainstay of state executions as European countries no longer export lethal drugs to the U.S.13 As Ryan Newby and I explained in 2013, this sort of litigation is a classic example of what Justice Harry Blackmun referred to in the early 1990s as “tinkering with the machinery of death.” Blackmun could afford a direct, stop-beating-around-the-bush approach to the tiresome and technical minutiae of postconviction litigation, but capital defense lawyers cannot; arguments about human rights and racial disparities have long been futile, for various procedural reasons, and the limits of the sayable on appeal and on habeas revolve around chemicals and number of injections. Barr v. Lee, decided 5-4, was no exception: the plaintiffs, whose cases were final and cleared for executions, provided expert declarations correlating pentobarital use to flash pulmonary edema, a form of respiratory distress that temporarily produces the sensation of drowning or asphyxiation. The federal government provided contrary expert testimony, according to which pulmonary edema occurs only after the prisoner has died or been rendered
fully insensate. The Supreme Court found, per curiam, that the plaintiffs had not carried the burden of proof and cleared the way for the executions. Justice Stephen Breyer’s dissent echoed Blackmun’s distaste for what death penalty litigation has become, remarking, “[t]his case illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishmen[t].’” Justice Sonia Sotomayor, in turn, remarked on the absurdity of doing justice to fundamental questions via “accelerated decisionmaking.”

Then came three troubling executions. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victims’ families to spare him.14 The judicial and executive branches’ trampling of those requests followed the usual capital punishment theater in which, as Sarah Beth Kaufman explains in American Roulette, prosecutors, governors, and death penalty advocates use victims as props, assuming that punitiveness is faithful to their wishes – a position that does not faithfully represent the diverse views among victims of violent crime.15 According to the first-ever national survey of crime, twice as many victims prefer that the criminal justice system focus more on rehabilitation than on punishment; victims overwhelmingly prefer investments in education and in job creation to investments in prisons and jails, by margins of 15-to-1 and 10-to-1 respectively; by a margin of 7-to-1, victims prefer increased investments in crime prevention and programs for at-risk youth over more investment in prisons and jails; and 6 in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation than on lengthy prison sentences.

Then, the federal government executed 68-year-old Wesley Purkey, who was described by his lawyer, Rebecca Woodman, as a “severely braindamaged and mentally ill man who suffers from Alzheimer’s disease” and does not understand “why the government plans to execute him.”16 The debate over Purkey’s mental illness was emblematic of the decades and billions of dollars spent poring over the fitness for execution of elderly, decadeslong death row residents. It also made a mockery of Atkins v. Virginia,
17 which forbade the execution of mentally challenged people but left it up to individual jurisdictions to duke out the details of who, precisely, they deem smart or sane enough to be injected with pentobarbital.

Finally came Dustin Honken’s execution, which offered a grim reminder of the gap between the inexplicable federal enthusiasm for executions and the waning interest of states in the penalty. Honken was the first person from Iowa to be executed since 1963; Iowa abolished the death penalty in 1965. Honken’s lawyer, Shawn Nolan, said, “There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.”18

Another development was the reintroduction of electrocutions and firing squads as permissible execution methods by the administration of President Donald Trump in late November 2020 – after Biden had defeated Trump in the presidential election. The change was intended to offer federal prosecutors a wider variety of options for execution in order to avoid delays if the state in which the inmate was sentenced did not provide other alternatives. At the same time, the Department of Justice said it would keep federal executions in line with state law: “the federal government will never execute an inmate by firing squad or electrocution unless the relevant state has itself authorized that method of execution.”19

Trump’s appetite for executions was, at least, consistent with his positions on capital punishment since the 1980s, when he regularly purchased large ads and gave interviews advocating for the death penalty for the Central Park Five20 (who have since been exonerated, as is well known). In the early days of his presidency, he chased headlines expressing support for capital punishment for drug dealers.21 While consistent with Trump’s presidential positions, the viciousness of his last-minute addition of federal electrocutions and firing squads seemed pointless, since Biden was known to oppose the death penalty and had made campaign promises to work toward federal abolition.22 Moreover, any effort to electrocute or shoot death row convicts would embroil the federal government in interminable Eighth Amendment litigation, given the always-present risk of botched executions.

The last slew of planned Trump executions included more cases that provoked moral anguish. For example, the execution of Lisa Montgomery, the only woman on federal death row.23 Montgomery’s crime was shockingly brutal. She strangled a pregnant woman before cutting her stomach open and kidnapping her baby. Her own experiences of victimization were torturous and harrowing. She was sexually assaulted by her father starting at 11 years old, trafficked by her mother, and horrifically abused by her stepbrother, who became her husband. She was involuntarily sterilized, deteriorated into severe mental illness, and lived in abject poverty at the time the crime was committed. The uproar about the sentence provoked heated debates about the Trump administration’s appetite for creating controversies that the Biden administration would then have to undo. What is the point, one might ask, of all this cruelty? And the answer, as Adam Serwer wrote in a different context, might be: the cruelty is the point.24

OKLAHOMA: CHEMICALS AND INNOCENCE

A tragic Talmudic story tells how Yehuda ben Tabbai, President of the Sanhedrin, once wrongly convicted a man of perjury. By the time ben Tabbai realized his mistake, it was too late; the man had already been put to death. Shocked by his complicity in injustice, ben Tabbai would never again rule singlehandedly on a legal point, and every day of his life he would prostrate himself on the grave of the wrongly executed man, begging forgiveness and weeping.25

One wishes that more judicial and executive officials would take a page from ben Tabbai’s book. Instead, a sense of confusion, lack of commitment, and being in perpetual limbo has characterized capital punishment for the last decade. The story of Richard Glossip, the lead petitioner in Glossip v. Gross, is a case in point. In 2015, the Supreme Court rejected Glossip’s petition against the use of midazolam in his execution, just a brief time after the same drug played a horrendous part in the botched execution of Clayton Lockett. In line with the aforementioned trend of technical litigation, the decision revolved around whether Glossip had shown that Oklahoma had better execution methods than midazolam.26

Anyone reading the decision could be forgiven for having no idea that Glossip is widely believed to be innocent, and that Oklahoma’s Attorney General, who reviewed his case, does not stand behind the conviction. Nevertheless, the Oklahoma Court of Criminal Appeals would not halt Glossip’s execution. Judge David Lewis wrote that the case “has been thoroughly investigated and reviewed,” with Glossip given “unprecedented access” to prosecutors’ files, “[y]et he has not provided this court with sufficient information that would convince this court to overturn the jury’s determination that he is guilty of first-degree murder and should be sentenced to death.” It took yet another petition to the U.S. Supreme Court to halt the execution.27

CALIFORNIA: DEATH BY MORATORIUM

For more ambiguity and discombobulation on the death penalty in the 21st century, consider California, where several rounds of abolitionist voter initiatives failed in the last decade.28 I want to spend more time discussing California, not only because I am intimately familiar with capital punishment law where I live and work, but also because I think the last decade in the Golden State perfectly encapsulates what a chronic, slow death for capital punishment looks like. In 2016, while narrowly defeating the abolitionist Prop 62, California voters narrowly approved Prop 66, which was supposed to speed up executions, as well as allow death row residents to be relocated to other prisons where they could pay restitution to their victims. Some aspects of Prop 66 – specifically, those which remove safeguards against wrongful executions – have been found unconstitutional, but most of it has survived constitutional review.29

When explaining what the death penalty in California was like in the late 2010s, I sometimes borrow a framework from the construction world. When planning a project, general contractors might draw a triangle, writing in each corner one word – respectively, “good,” “fast,” and “cheap.” They then say to the client, “you can’t have all three; pick two.” This is an apt description of why death penalty opponents often refer to California’s capital punishment as “broken beyond repair.” A “good” and “cheap” death penalty would require finding some way to seriously litigate postconviction motions on a lengthy timeline and on a shoestring, relying mostly on California’s minuscule existing cadre of capital habeas litigators. Cases would drag on and on, as they do now, until people received representation, a situation that at least one federal judge found to violate the Eighth Amendment.30 A “good” and “fast” death penalty, which is what some supporters of Prop 66 perhaps wanted, would require massive expenditures so that proper, high-quality representation could be found and habeas writs could efficiently work their way through the courts. A “fast” and “cheap” death penalty, which is what Prop 66 might have produced had all its aspects been found constitutional, would do away with many safeguards against wrongful executions and result in more deadly mistakes. Even if
one approves of capital punishment in theory, as many California voters do (for example, through a retributive framework), it is therefore hard to compare its abstract form to the way it is administered in practice: There is no way of fashioning capital punishment in California in a way that guarantees it to be “good,” “fast,” and “cheap.”

These concerns, and many others, led California Governor Gavin Newsom to take a step that his abolitionist predecessors had shied away from: placing a moratorium on the death penalty in California and ordering the
death chamber dismantled.31 Newsom is also turning San Quentin prison, home to the country’s largest death row, into a Scandinavian-style “center for innovation focused on education, rehabilitation and breaking cycles of crime.” For the first time in decades, residents of death row are able to move freely within the facility, and many of them will be transferred to other facilities, a monumental change in their life circumstances that some death row residents, acclimated to their peculiar, restrictive lives, view with apprehension.32 But these are executive, not legislative acts. Because the death penalty still has a legal, if not ontological, existence, people whose lives were saved by the moratorium are still, legally, capital convicts, and costly postconviction litigation on their cases continues, to the tune of $150 million per annum.33

To cynical commenters, who might observe that this new incarnation is not “good,” “fast,” or “cheap,” one might respond, “at least we’re not executing people.” But saying, “no one is being executed on death row” is
far from saying, “no one dies on death row.” In late May 2020, as a San Francisco Chronical exposé revealed – and as a subsequent investigation by the California Inspector General’s office and litigation in state courts confirmed – San Quentin, still home to the country’s largest death row, was overcrowded to 113% of design capacity.34 Alarmed by a horrific COVID19 outbreak at the California Institute of Men in Chino, custodial and
medical officials there sought to mitigate the spread by transferring 200 men out of the facility, 122 of them to San Quentin. The men were not tested for COVID-19 for weeks prior to their transfer. On the morning of
the transfer, several transferees told nurses that they were experiencing COVID-19 symptoms (fever and coughing). According to email correspondence between health officials, these men were treated as malingerers and the transfer proceeded as planned. No effort was made to facilitate social distancing within the buses; the transferees heard and felt their neighbors cough throughout the lengthy journey to the destination facilities.35

The virus spread quickly throughout San Quentin. By the end of June, more than three quarters of the prison population had been infected and 29 had died – 28 prisoners and one worker.36 San Quentin’s death row was especially vulnerable to COVID-19, both because of the low quality of the physical plant – a dilapidated, poorly constructed, and thinly staffed long-term home to approximately 750 men (now many fewer) – and because the death row population tends to be older and sicker than the general prison population. The virus tore quickly through death row, and while prison authorities did what they could to obscure the calamities, San Francisco Chronicle journalists broke the story:

A coronavirus outbreak exploding through San Quentin State Prison has reached Death Row, where more than 160 condemned prisoners are infected, sources told The Chronicle on Thursday. One condemned inmate, 71-year-old Richard Eugene Stitely, was found dead Wednesday night. Officials are determining the cause of death and checking to see whether he was infected.

State prison officials declined to confirm that the virus has spread to Death Row, but three sources familiar with the details of the outbreak there provided The Chronicle with information on the condition they not be named, and in accordance with the paper’s anonymous source policy. Two of the sources are San Quentin employees who are not authorized to speak publicly and feared losing their jobs.

There are 725 condemned inmates at San Quentin, and of those
who agreed to be tested for the coronavirus, 166 tested positive, the
sources said. . . .

It is unclear whether Stitely was infected with the coronavirus. He refused to be tested, according to the three sources with knowledge of the situation.37

By contrast to general population residents, whose identities were hidden from the public for medical privacy reasons, the California Department of Corrections and Rehabilitation sent emails to interested parties about
deaths of people on death row, listing their names and full details. Through subtracting the named casualties from the total death toll, a horrifying truth emerged: More people died on death row from COVID-19 under Newsom’s moratorium than California had executed since the reestablishment of the death penalty in 1978.38

This outcome was deeply ironic, because even after the moratorium, with no death chamber and bereft of lethal chemicals, California courts continued to be clogged with death penalty litigation concerning details
revolving around whether various modes and aspects of the execution process are “cruel and unusual” even as the death penalty itself was still deemed “kind and usual.”39 Flying in the face of this precious and expensive effort to sever the death penalty from any of its potentially cruel and unusual implications were executions clearly not prescribed by the California Penal Code: deaths from a contagious pandemic, compounded by incompetence and neglect.

At the same time, even stalwart supporters of the death penalty realized that capital verdicts that will never be carried out make no sense, logically or practically. In summer 2020, Santa Clara County District Attorney Jeff Rosen, by no means a capital-punishment-shy public prosecutor, announced that his office would no longer seek the death penalty. Rosen claimed that his visit to the Civil Rights Museum in Alabama inspired him to see the death penalty not only “through eyes of the victims and families of those whose lives were taken,” but also “through the lens of race and inequity.” The rationales he offered for the policy change were in line with those behind the penalty’s decline in popularity more generally: “These cases use up massive public resources and cruelly drag on for years with endless appeals that give no finality to the victims’ families,” he said. “There’s the tragic but real risk of wrongful conviction. And, shamefully, our society’s most drastic and devastating law enforcement punishment has been used disproportionately against defendants of color.”40 Rosen was facing an election challenge from a more progressive candidate, which could partly explain his change in position. Nevertheless, his reliance on the more general arguments means that the gubernatorial changes at San Quentin did resonate.

Perhaps even more important was the announcement by George Gascón, upon his election as Los Angeles District Attorney in fall 2020, that the county would no longer seek the death penalty41 – an inflection point for one of California’s four “killer counties” and one of the entire country’s three highest sources of capital sentences. 42 Even more striking is a remarkable data point from Sacramento: Joseph DiAngelo, otherwise known as the Golden State Killer, was finally caught and convicted using innovative forensic investigative tools.43 The Sacramento County prosecutor did not even ask for the death penalty, and rightly so, as it would have allowed DiAngelo to continue litigating at the state’s expense only to die a natural death, like everyone else on death row. Which raises a fair question: If not the most notorious and heinous criminal in the history of California, then who?

WHAT DEATH PENALTY EUTHANASIA MIGHT LOOK LIKE

Capital punishment’s last gasps are, as these examples show, rife with inconsistencies, ironies, and changes of direction, which raise the question when, and how, the end will come. As public opinion and results at the ballot box show, the death penalty retains a symbolic hold over the American imagination. But judges and politicians are exposed to its unsavory sides.

It is hard to provide facile explanations for the different modes of the capital penalty’s demise in recently abolitionist states. In Washington, abolition arrived through a judicial decision about racial disparities in the penalty’s application;44 in Delaware, through a case involving arbitrary jury decisions in capital cases, which was later extended to the remaining cases on death row;45 in New Hampshire, through a non-retroactive statute; 46 in Colorado, through a combination of a statute and gubernatorial commutations;47 in Virginia, the first Southern state to abolish the death penalty, through a bipartisan legislative vote.48

One is left wondering whether it is easier to get rid of the death penalty in retentionist states – such as in Illinois, where abolition followed Governor George Ryan’s mass commutations, largely due to his concerns about innocence and wrongful executions49 – or in states with moratoria – such as California, where one wonders whether the dismantlement of the death chamber and the disbanding of death row, along with the vanishing prospect of an execution as a lightning rod, might be slowing down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole),50 does the effort to abolish a thoroughly defanged (but still expensive) death penalty lose its steam?

What signals a new phase in the death penalty’s terminal illness is a combination of factors: a critical mass of abolitionist states; backlash caused by the Trump administration’s execution spree; the absence of capital sentencing nationwide and, especially, in high-profile cases; abolitionist thinking and decisionmaking at the county prosecution level; the specter of COVID-19 deaths; and, of course, the ever-rising costs. We are unlikely to see a definitive kiss of death. Instead, many local developments may eventually mean – perhaps, to our surprise – that, like so many people on death row itself, capital punishment has died a quiet, natural death.

NOTES


1 J.R.R. TOLKIEN, THE LORD OF THE RINGS: THE FELLOWSHIP OF THE RING bk. II, ch. 5
(2012 [1954]).

2 Abolitionist states with date of abolition: Alaska (1957), Colorado (2020), Connecticut (2012), Delaware (2016), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Maryland
(2013), Massachusetts (1984), Michigan (1847), Minnesota (1911), New Hampshire (2019),
New Jersey (2007), New Mexico (2009), New York (2007), North Dakota (1973), Rhode
Island (1984), Vermont (1972), Virginia (2021), Washington (2023), West Virginia (1965),
Wisconsin (1853). Retentionist states (including states with moratoria): Alabama, Arizona,
Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wyoming.
States with moratoria, along with moratorium date: California (2019), Pennsylvania (2023),
Oregon (2022), Arizona (2023), Ohio (2020), Tennessee (2022). The federal moratorium
was put in place by the Biden administration in 2021. Source: Death Penalty Information
Center (“Death Penalty Info”) website, deathpenaltyinfo.org/states-landing. 3 Megan Brenan, “Steady 55% of Americans Support Death Penalty for Murderers,” Gallup, Nov. 14, 2022.

4 AUSTIN SARAT, JOHN MALAGUE, AND SARAH WISHLOFF, THE DEATH PENALTY ON THE
BALLOT: AMERICAN DEMOCRACY AND THE FATE OF CAPITAL PUNISHMENT (2019).

5 DANIEL LACHANCE, EXECUTING FREEDOM: THE CULTURAL LIFE OF CAPITAL PUNISHMENT
IN THE UNITED STATES (2016).

6 166 non-execution deaths, as of 2024: Death Penalty Focus, deathpenalty.org/facts/.

7 Hadar Aviram and Ryan Newby, “Death Row Economics: The Rise of Fiscally Prudent
Anti-Death Penalty Activism,” 28 CRIM. JUST. 33 (2013).

8 HADAR AVIRAM, CHEAP ON CRIME: RECESSION-ERA POLITICS AND THE TRANSFORMATION
OF AMERICAN PUNISHMENT (2015).

9 Keith A. Findley, “Innocence Found: The New Revolution in American Criminal Justice,”
in CONTROVERSIES IN INNOCENCE CASES IN AMERICA 3-20 (2016); Lindsey A. Sherrill,
“Beyond Entertainment: Podcasting and the Criminal Justice Reform ‘Niche,’” and Robin
Blom, Gabriel B. Tait, Gwyn Hultquist, Ida S. Cage, and Melodie K. Griffin, “True
Crime, True Representation? Race and Injustice Narratives in Wrongful Conviction Podcasts,” in TRUE CRIME IN AMERICAN MEDIA 67-82 (2023).

10 McClesky v. Kemp, 481 U.S. 279 (1987).

11 Barack Obama, “The President’s Role in Advancing Criminal Justice Reform,” 130 HARV.
L. REV. 811 (2017).

12 Barr v. Lee, 591 U.S. 979 (2020).

13 “Europe’s moral stand has U.S. states running out of execution drugs, complicating capital
punishment,” CBS NEWS, Feb. 18, 2014.

14 Hailey Fuchs, “Government Carries Out First Federal Execution in 17 Years,” NEW YORK
TIMES, July 14, 2020.

15 SARAH BETH KAUFMANN, AMERICAN ROULETTE: THE SOCIAL LOGIC OF DEATH PENALTY
SENTENCING TRIALS (2020).

16 Khaleda Rahman, “U.S. Executes Wesley Purkey, Who Calls It a ‘Sanitized Murder’ In
Last Words,” NEWSWEEK, July 16, 2020.

17 Atkins v. Virginia, 536 U.S. 304 (2002).

18 Shawn Nolan, “Statement From Shawn Nolan, Attorney For Dustin Honken,” FEDERAL
DEFENDER, July 17, 2020.

19 Matt Zapotosky and Mark Berman, “Justice Dept. rule change could allow federal executions by electrocution or firing squad,” WASHINGTON POST, Nov. 27, 2020.

20 Colby Itkowitz and Michael Brice-Saddler, “Trump still won’t apologize to the Central
Park Five. Here’s what he said at the time.” WASHINGTON POST, June 18, 2019.

21 Michael Krasny, “President Trump Announces Plan to Fight Opioid Abuse, Including
Death Penalty,” KQED FORUM, Mar. 20, 2018.

22 Dakin Andone, “Biden Campaigned on Abolishing the Federal Death Penalty. But 2 Years
In, Advocates See an ‘Inconsistent’ Message,” CNN, Jan. 22, 2023.

23 Reuters, “Lisa Montgomery: US Executes Only Woman on Federal Death Row,” BBC
WORLD, Jan. 13, 2021.

24 Adam Serwer, “The Cruelty Is the Point,” THE ATLANTIC, Oct. 3, 2018.

25 Bavli Hagiga 16:2.

26 Glossip v. Gross, 576 U.S. 863 (2015); Jeffrey E. Stern, “The Cruel and Unusual Execution
of Clayton Lockett,” THE ATLANTIC, June 15, 2015.

27 Glossip v. State, www.okcca.net/cases/2023/OK-CR-5/ (2023); Glossip v. Oklahoma, 143.Ct. 2453 (2023).

28 Prop 34 failed in 2012: David A. Love, “Prop 34 Fails But Signals the Imminent Demise
of California’s Death Penalty,” THE GUARDIAN, Nov. 9, 2012. Prop 66 failed in 2016:
Sarah Heise, “Death Penalty Supporters Claim Victory with Failure of Prop 62,” KCRA3, Nov. 9, 2016.

29 Bob Egelko, “California Supreme Court Upholds Most Of Expedited Death Penalty
Initiative,” SAN FRANCISCO CHRONICLE, Aug. 24, 2017.

30 Jones v. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014).

31 Kyung Lah, “How Kamala Harris’ Death Penalty Decisions Broke Hearts on Both Sides,”
CNN, Apr. 8, 2019; Eric Westervelt, “California Says It Will Dismantle Death Row.
The Move Brings Cheers and Anger,” NPR, Jan. 13, 2023.

32 Nigel Duara, “Gavin Newsom Moves to ‘Transform’ San Quentin as California Prison
Population Shrinks,” CALMATTERS, Mar. 21, 2023; Sam Levin, “The Last Days of Death
Row in California: ‘Your Soul is Tested Here’,” THE GUARDIAN, May 1, 2023.

33 Arthur Rizer and Marc Hyden, “Why Conservatives Should Oppose the Death Penalty,”
THE AMERICAN CONSERVATIVE, Jan. 10, 2019.

34 Mary Harris, “California’s Carelessness Spurred a New COVID Outbreak,” SLATE, July 7,2020; Roy W. Wesley and Bryan B. Beyer, “COVID-19 Review Series, Part Three,” OFFICEOF THE INSPECTOR GENERAL STATE OF CALIFORNIA, Feb. 1, 2021, 1-2, www.oig.ca.gov/wpcontent/uploads/2021/02/OIG-COVID-19-Review-Series-Part-3-%E2%80%93-Transferof-Patients-from-CIM.pdf; “Monthly Report of Population As of Midnight June 30, 2020,”CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, July 1, 2020, 2, www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/07/Tpop1d2006.pdf.

35 For a thorough examination of COVID-19 and California’s death row, see HADAR AVIRAM AND CHAD GOERZEN, FESTER: CARCERAL PERMEABILITY AND CALIFORNIA’S COVID19 CORRECTIONAL DISASTER (2024).

36 Daniel Montes, “Trial Over COVID-19 Outbreak at San Quentin State Prison That Left29 Dead to Begin Thursday,” BAY CITY NEWS, May 20, 2021.Euthanize the Death Penalty AlreadySPRING 2024 193

37 Megan Cassidy and Jason Fagone, “Coronavirus Tears through San Quentin’s Death Row;
Condemned Inmate Dead of Unknown Cause,” SAN FRANCISCO CHRONICLE, June 25, 2020,
www.sfchronicle.com/crime/article/Coronavirus-tears-through-San-Quentin-s-Death15367782.php.

38 Patt Morrison, “California Is Closing San Quentin’s Death Row. This Is Its Gruesome
History,” LOS ANGELES TIMES, Feb. 8, 2022.

39 Aviram & Newby, supra note 7; George Skelton, “In California, the Death Penalty is Allbut Meaningless. A Life Sentence for the Golden State Killer Was the Right Move,” LOSANGELES TIMES, July 2, 2020.

40 Quoted in Michael Cabanatuan, “Santa Clara County DA Jeff Rosen No Longer to SeekDeath Penalty,” SAN FRANCISCO CHRONICLE, July 22, 2020.

41 Alexandra Meeks and Madeline Holcombe, “New Los Angeles DA Announces End to
Cash Bail, the Death Penalty and Trying Children as Adults,” CNN, Dec. 8, 2020.

42 “Death Penalty Info: ACLU Study: Los Angeles Death Penalty Discriminates Against
Defendants of Color and the Poor,” deathpenaltyinfo.org/news/aclu-study-los-angelesdeath-penalty-discriminates-against-defendants-of-color-and-the-poor.

43 Paige St. John, “The Untold Story of How the Golden State Killer Was Found: A Covert
Operation and Private DNA,” LOS ANGELES TIMES, Dec. 8, 2020.

44 State v. Gregory, 427 P.2d 621 (Wash. 2018).

45 “Death Penalty Info: Delaware,” deathpenaltyinfo.org/state-and-federal-info/state-by-state/
delaware.

46 “Death Penalty Info: New Hampshire,” deathpenaltyinfo.org/state-and-federal-info/stateby-state/new-hampshire.

47 “Death Penalty Info: Colorado,” deathpenaltyinfo.org/state-and-federal-info/state-by-state/
colorado.

48 “Death Penalty Info: Virginia,” deathpenaltyinfo.org/news/virginia-legislature-votes-toabolish-the-death-penalty.

49 Sarah Schulte, “20 Years After Commuting 167 Illinois Death Sentences, Ex-Gov.
George Ryan Has No Regrets,” ABC7 CHICAGO, Jan. 10, 2023.

50 HADAR AVIRAM, YESTERDAY’S MONSTERS: THE MANSON FAMILY CASES AND THE ILLUSION
OF PAROLE (2020).

I Was Right About Recession-Era Decarceration: Population Has Decreased and So Have Racial Disparities

It’s always complicated to write what David Garland calls a “history of the present“, especially in criminal justice, where trends can become visible only years after the fact. And yet, that’s what I tried to do in Cheap on Crime, which was published in early 2015 but completed in 2013. The impetus for the book was the change in direction in incarceration rates: 2009 was the first year in 37 years that saw a decline in incarceration rates. I thought that was important, and observed that the change in direction was accompanied by a host of policies and rhetorics that focused on “justice reinvestment” and trimming the expensive correctional apparatus in the aftermath of the 2008 financial crisis.

The book was well received and won a nice award, but some folks in the discipline found it too optimistic. It didn’t fit in neatly with the pessimistic slant of the discipline as a whole, where we can critique mass incarceration (especially, though not exclusively, from a racial standpoint) by showing that things are progressively getting worse, not better. At one of my book events in 2015 I said that I worried that our love for critiques of neoliberalism might be leading us to ignore the data, or at least to pretzel ourselves with complicated rationalizations for why an incarceration picture that seems to be getting better is actually getting worse. Or something.

Last week, the Sentencing Project published an interesting report looking at incarceration trends from the recession–the peak incarceration year–to 2023, and the picture is quite encouraging. The report, titled One in Five: Ending Racial Iniquities in Incarceration shows the still-extant racial disparities within prison and jail populations and, of course, emphasizes these in the title, but does not shy away from providing important descriptive data showing that, not only is the decline in prison and jail populations the mirror image of the rise that preceded the Great Recession, but it is also accompanied by a significant decline in racial disparities. Here are some of the highlights.

First, there’s this. It might be optimistic, but it does predict the decline in prison population based on the current rate of decline. In other words, if the trends set during the recession continue, we might be heading to pre-1970 incarceration rates. This is fanciful, and things can change for the worse the way they did in the 1970s, but we can dream.

Let’s leave conjecture behind and talk about facts. Here are the declines in prison populations by race. As you can see, decarceration across the board is mitigating the disparate racial effects that characterized the incarceration boom:

The effect is most pronounced for women, but it is significant for men as well:

And similar, though not identical, trends are present for county jail populations:

Lest you think that all is well with the world, we’re still seeing big sentencing disparities. 1 in 5 Black men (compared with 1 in 8 Latino men and 1 in 20 White men) born in 2001 is likely to be incarcerated at least once in his lifetime.

There is still plenty of work to do until we can look at a graph that looks like the conjecture above and congratulated ourselves. But things are definitely looking up, significantly so, and it’s okay to point out positive developments when they happen rather than try and come up with stories with why they are actually negative. Or something. And while I’m pleased to have been right, I’m even more pleased to see that, at least in this area, we’re on the right path.

Free Phone Calls from Prison – And Not a Moment Too Soon

It’s an especially happy new year for everyone incarcerated in California, as CDCR and all county jails gear up to provide everybody phone calls free of charge. This long overdue change was heralded on September 30, when Governor Newsom signed the Keep Families Connected Act, sponsored by Senator Josh Becker and numerous grassroots organizations. I’ve spoken about the importance of this bill on KQED and on KCBS this week (I think both segments will air in the new year) but I wanted to also write here so I can expand on the history and meaning of this change.

As many regular readers know, I’ve been constantly rankled by the well-meant, but shortsighted, push to divest from private prisons. I don’t think private prisons are the ultimate evil in U.S. incarceration (though they are definitely a nauseating symptom); all the horrors Chad Goerzen and I talk about in our new book FESTER occurred in public prisons and jails. More importantly, in reality, whoever pushes for divestment has too naive a perspective on how the market works. Public prisons are all but privatized on the inside. The utilities are privatized. Healthcare is provided by private contractors. Commissary is often essential as supplementation because the food is inedible. Anything beyond “bare life”, as Agamben called it, is monetized. In Cheap on Crime I spent a whole chapter explaining how this came to be: in the last few decades, and increasingly since the financial crisis, the basic conceptualization of incarcerated people has shifted from wards of the state to consumers of services. Accordingly, everything, including the actual stay in jail, is monetized, and costs are rolled onto the “customers.”

This has been especially notorious in the context of phone call. There is a long and atrocious history of litigation surrounding the dirty deals between government agencies and phone companies, and anyone who has been incarcerated, or who has called someone who is incarcerated, knows what the upshot was. There’s a lot of cumbersome bureaucracy one has to deal with to even create an account with the phone company (I personally spent hours on the phone with GTL trying to set up my account. Their robocalls are not customer friendly, and I can only imagine people despairing of them if they try to call from work or while they try to survive in some other way.) And that’s if people want to be able to accept collect calls from prison. For those who don’t, there’s the issue of accounts of the people inside. While having the conversation, both parties can hear the “dings” charging the money every few minutes (ka-Ching!). The phone calls get disconnected and one has to call again (ka-Ching!) And if it turns out the phone call was disconnected because the account is depleted, you have to deal with that right away (ka-Ching!) True to the logic I explained in Cheap on Crime and elsewhere, singling out the private sector is making a naive mistake. It takes two for tango, and you bet the only reason this extortive system existed for as long as it did was that sheriffs AND phone companies both stood to gain.

Beyond the obvious issue that people in prison don’t tend to be flush in terms of personal wealth, and therefore there’s a class justice aspect to the new legislation, there are a few more, which expand the conversation. The first is that, beyond phone calls, California’s plant is not conducive to keeping contact with families. Our prisons are located in remote, rural counties, and many people’s families live in dense urban areas. If an Oakland family wants to visit their relative, who is incarcerated in, say, Pelican Bay, they have to plan for an 8-hour trip and a night at a hotel. Public transit is nonexistent and hotels jack up the prices. We also don’t offer vacations at home, which many prison systems in the world do. Until recently, when tablets were provided to people for video visits (partly to simplify complex in-person visitation protocols during the pandemic) it was very difficult for people to stay in touch with their families. The phone call costs were just part of this problem.

There is also the fact that contact with one’s family is known to be the main factor in recidivism prevention. One of my main conclusions in Cheap on Crime was that saving money by eliminating rehabilitation programs, reentry efforts, and the like–what I called “tough ‘n’ cheap”–ends up costing more money by driving the “revolving door” phenomenon. When we talk about “justice reinvestment” it really should be exactly that: in order to save, we have to spend in the right places. Whatever we spend in phone bills we will recoup in people who come home to a supportive family and a helpful community and get the help and love they need during the first few years after release, when the risk of recidivism is at its highest point.

Finally, there is the serious problem of knowing what is happening behind bars. Phone calls are essential not only for keeping in touch with the outside, but also for notifying supporters, lawyers, advocates, and journalists about things that happen away from the public eye, where negligence, incompetence, and sometimes downright cruelty and sadism can produce terrible civil rights violations. In the early months of the San Quentin COVID-19 outbreak, prison authorities prevented people from making phone calls, assuming they would infect each other through the phone (we now know COVID-19 is airborne, but at the time, as some of you might remember, this was not yet widely known and lots of folks were obsessing about cleaning surfaces.) Consequently, for several weeks we didn’t know what was going on, and concerns about housing, food, adherence to masking protocols, etc., were high (and, as it turned out, justified.) Chad Goerzen and I talk about this in FESTER (which comes out from UC Press in 2024.)

For all these reasons, I think this is a terrific initiative. I really hope people use it in ways that are beneficial to their reentry and nourishing for their relationships.

Fighting Ridiculous Court Fees – One Piece at a Time

I’m attending the Annual Meeting of the American Society of Criminology and finding many of the talks illuminating and refreshing. It could be that the overall quality of work has improved, or that I make better choices about which panels to attend. Either way, this morning I’m following a series of panels about improving indigent representation, and have just come out of a conversation with the folks who run the campaign to End Justice Fees.

Those who followed the report on Ferguson are not strangers to the problem, but the public at large is likely ignorant of the immense (to the tune of billions of dollars!) toll of court fees and warrants. Even to me–who thought nothing would surprise me after learning about pay-to-stay and the resulting lawsuits–some of the details were shocking. The campaign’s website offers a wealth of information on the different things people get charged for: electronic monitoring, probation (yes, you pay for the pleasure of being monitored!), and–much to my horror–legal defense. Remember Gideon v. Wainwright, the landmark Warren Court case that required states to fund the defense of the indigent? Well, it turns out that, in 42 states, free representation means free for those who pay the fees (three figure amounts that many defendants cannot afford.)

Just like I found out in Cheap on Crime about pay-to-stay schemes, the absurdity of padding the pockets of municipalities and counties by charging the poor, rather than the rich, is in plain evidence. The fees are rarely recouped, resulting in crushing debt that kills the spirit of countless families and does not make up for the deficits. Figuring out the expense of keeping this ridiculous system in place is difficult (I wish someone took this on! I would, but my plate is full), but even though the numbers are elusive, I don’t think it’s outlandish to assume that pursuing lawsuits against hundreds of thousands of people for not paying what, for them, is a lot of money, but for the system is pennies, is not an economically efficient scheme. That this is costly beyond the obvious is evident from yet another horrible data point: in the Alabama Appleseed survey of people with court debt, they found that 38% of respondents had to resort to actually committing a crime in order to be able to pay the court fees (which are sometimes imposed for mere infractions or traffic violations.)

The good folks from End Justice Fees have come to the conclusion that advocacy works better than litigation for eliminating these fees. Here are some of the ground that they’ve made in California, per their website:

  • CA AB 199 makes the balance of any court-imposed costs assessed prior to July 1, 2022 unenforceable and uncollectible and vacates any portion of a judgment imposing civil assessments charged by traffic courts
  • Eliminated 17 additional criminal administrative fees and vacated $534 million in outstanding debt (2021).
  • California’s Families Over Fees Act repealed 23 criminal administrative fees and vacated $16 billion in outstanding debt (2020)
  • California ended the assessment of new juvenile fees (2017) and discharged outstanding fees (2020)
  • Ordinance eliminated local criminal administrative fees imposed in San Francisco (2018)
  • San Francisco made all jail phone calls free for incarcerated people and ended commissary markups (2020)
  • San Diego eliminated fees for phone calls and video visits (2022)

I’m also happy to report that, per their presentation, we are among the minority of states that do not charge people for their own representation which, under Gideon, indigent folks should pay for free.

The crux of the problem, with litigation, is that Bearden v. Georgia, the case often used to argue against punishing the poor for being poor, requires an investigation of means before incarceration–but the practice in many places is to arrest people for the purpose of assessing their means, which is technically a violation of Bearden but municipalities and courts claim is the only practical way to get ahold of the person.

This strikes me as the sort of initiative that decent people of all political stripes can and should get behind. It should yield the sort of coalitions I covered in Cheap on Crime and bring about more justice on an everyday level without slogans. Want to “dismantle” “abolish” “repeal” “defund” stuff? Here’s a good place to start on the ground and deliver immediate relief to people struggling with financial craziness.

Paying for Your Time: Low-Level Financial Hassles and Criminal Justice

I spent the last week at the American Sociological Association’s annual meeting in Los Angeles. It’s a conference I rarely attend, because I far prefer intimate workshops to gigantic venues, but I was invited to be a discussant on a panel that interested me greatly titled Paying for Your Time: Economies of Displacement in the Criminal Legal System. Seven years ago, when my book Cheap on Crime came out, I attempted to bring together two literatures that seldom interact: Public choice economics, which predict that economic downturns will lead to decreased punishment capacity and thus to decreased punishment, and Marxist social history, which predicts that economic downturns lead to loss of legitimacy and thus to increased crackdown on, and oppression of, the poor. In Chapter 7 of the book I offer a third prediction: a shift in our perception of the subjects of the criminal justice system from wards of the state to burdens on the state’s budget. This can manifest in both benign and sinister ways. Benign, when our attention is drawn to aging and infirm people in prison and we start seriously consider the utility of their incarceration given the health care expenses involved; sinister, when we decide that the way for such folks to become less burdensome is to regard them as consumers and charge them for the “services” they receive. The three papers on the panel all examined this sinister mechanism and offered grim reminders of how low-level haggling over expenses and hounding people with these outrageous debts can and does ruin lives.

A classic, nefarious aspect of this is pay-to-stay, a scheme by which people are charged for their own incarceration as if they were paying for voluntary lodging. In Cheap on Crime I wryly observed that people in prison and jail don’t really have the funds to pay the exorbitant fees (pay-to-stay in the Riverside jail at the time I wrote the book, for example, amounted to $140 per night; in Fremont, it was $155) and that the next logical conclusion–a lien on their future earnings–would do wonders for their reentry prospects. Unfortunately, it turns out that I was right, and this absurd practice has just become more popular with time. In their paper Insult to Injury, April Fernandes, Brittany Friedman and Gabriela Kirk track the litigation efforts of states who chase people with disabilities after they get out of prison or jail and sue them to receive, in arrears, the “accommodation fees” for their prison stay, to the tune of tens of thousands of dollars that these people don’t have. The authors received, through FOIA requests, documentation in many such cases, and they show how physical and mental disabilities further complicate people’s ability to defend themselves against this outrage. In a heartbreaking presentation, they shared handwritten documents by pro-se defendants in these cases, who don’t understand why they are being persecuted and are not entitled to representation in these cases. I’m not surprised; I literally wrote the book about these schemes and I don’t understand either. I still vividly remember how shocked I was when I realized that courts have already examined the constitutionality of pay-to-stay and found it a-ok; seeing the real impact on real people was a shocker, and the futility of the exercise made me wonder whether states weren’t actually losing money on this litigation.

The second paper dealt with another top-down scheme aiming to fill municipal coffers: parking tickets. In a truly ingenious project, Kasey Hendricks and Ruben Ortiz triangulated all the parking tickets written up in the city of Chicago with the traffic regulations, weather reports, you name it, as well as neighborhood demographics and the identity of the ticket issuer (Shaw and McKay, the great criminological mappers of Chicago, would be very proud of this piece.) They discovered that more than 13% of the tickets were erroneous. They also discovered that mistakes in parking enforcement are often a function of the ticket issuer: cops don’t know parking regulations as well as parking officials, and because cops disproportionately write tickets in neighborhoods inhabited by undocumented immigrants, these folks bear the brunt of erroneous enforcement. Because not speaking English, and not wanting to voluntarily embroil oneself with the authorities, are both barriers to contesting tickets, erroneous enforcement proceeds.

The third paper, by Kate O’Neill, Tyler Smith, and Ian Kennedy, examined the extent to which incarceration based on low-level financial obligation and defaults has a gendered dynamic. They investigated which counties in Washington State rely on monetary sanctions such as fines and fees and examined the correlation between this reliance and women’s incarceration. Their reasoning behind this hypothesis (which their data support) is that women disproportionally live in poverty, and that women’s incarceration disproportionally relies on low-level financial violations. The connection between financial violations and incarceration is more complex than this: one driver of family disintegration is the criminalization of failure to pay child support (also a gendered thing) and women also disproportionately find themselves saddled with various financial obligations involving the incarcerated men in their lives, such as dealing with the bail bonds industry. But the question, “is this necessary?” permeated the conversation.

I had many thoughts to offer on these excellent papers, which revolve around three themes. The first, which I called “Blackstone wept,” had to do with the question whether the relatively new distinction between criminal and civil law still holds water in a world full of crimmigration, civil asset forfeiture, and §1983 lawsuits. Finding oneself as a civil defendant in these cases is just as daunting and soul-destroying as being a defendant in a criminal case, with the added complication of having no right to counsel and none of the due process guarantees from criminal procedure. It strengthens my view that the “Civil Gideon” initiative in San Francisco is essential, even as not doing these mean-spirited things in the first place would certainly be better.

My second thought had to do with the decreasing importance of the public-private divide. In a paper that got considerable attention at the time, I questioned the wisdom of focusing critical and reformist energy on the private prison industry, vile as it is. My thinking about this issue was shaped by three eye-opening days that I spent at a public choice economics workshop. While in the belly of that particular beast, I ate and drank at the expense of (I think) the Koch brothers and took in some libertarian perspectives on the government-versus-free-market debacle. I came to realize that the government is shaped by very similar savings-and-greed incentives to the ones of the private sector. To my workshop instructors, this was wonderful, and to me, it was horrible, but it was true nonetheless. Some of the worst atrocities of the prison system have been perpetrated in government facilities; the private prison industry hasn’t cornered the market on scrimping and saving at the expense of a minimal standard of living for its wards. That all these mean, insidious persecutions are perpetrated by local government has strengthened my belief that, if there’s a loophole that allows someone to make a quick buck at the expense of the basic humanity of someone else, it must be immediately closed, regardless of whether the Machiavellian party is a private entrepreneur or a government paper-pusher.

The third thought, and the one that really hits me in the gut, turns back to the utility of these persecutions. I honestly cannot imagine that it is a worthwhile, profitable exercise to hound people with mental disabilities for money they don’t have; to chase after tickets issued to people who do not speak English for nonexisting parking violations; or to pay for the incarceration of women who are not actually endangering public safety because of their failure to pay this or that fee. So what is the point of this cruelty? Or perhaps the cruelty is the point? And if so, it’s another reminder to my rabble-rousing friends that we must cultivate enough love in our hearts for two wars: the long-term dismantle-abolish-defund stuff we’re so fond of talking about, and the actual, short-term, emergency, person-to-person immediate help to combat this awfulness, which from a bird’s-eye view seems like small potatoes but can completely overwhelm and wreck someone’s life.

As an aside, the visit to Los Angeles was glorious, as I got to stay at the Los Angeles Athletic club, where I swam in their spectacular pool (lots of backstroke, so I could gaze at the chandelier!); chat with old and new friends about viewpoint diversity, how to encourage empowerment and resilience in our students, what religion means behind bars, etc.; enjoy the Academy Museum and the majestic Angkor exhibit at the California Science Center; take in jazz near the La Brea Tar Pits; and visit the atelier of one of my favorite designers, Jerry Jacob, the creative genius behind Ito888. I’ll be back, Angelenos!

AB 2730 Proposes a Prison-Release Continuum

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

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

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

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

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

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

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

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

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

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

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

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

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

June 2022 Election: Blog Endorsements

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

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

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

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

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

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

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

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

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

Christ, These Parole Officers!

Today brings a special offering from the Tenth Circuit: Janny v. Gamez exposes (and finds unconstitutional) some religious coercion in reentry programming. The facts:

Mark Janny was released from jail on parole in early 2015. His parole officer, John Gamez, directed Mr. Janny to establish his residence of record at the Rescue Mission in Fort Collins, Colorado, and to abide by its “house rules.” After arriving at the Mission, Mr. Janny learned he had been enrolled in “Steps to Success,” a Christian transitional program involving mandatory prayer, bible study, and church attendance. When Mr. Janny objected, citing his atheist beliefs, he alleges both Officer Gamez and Jim Carmack, the Mission’s director, repeatedly told him he could choose between participating in the Christian programming or returning to jail. Less than a week later, Mr. Carmack expelled Mr. Janny from the Mission for skipping worship services, leading to Mr. Janny’s arrest on a parole violation and the revocation of his parole.

That this offends the First Amendment should be obvious–but apparently wasn’t to the parole officer. And I think it would be a mistake to view this through a narrow prism of preferential treatment for evangelical Christianity. I say this because, in Yesterday’s Monsters, I devoted a considerable amount of the narrative to the way the parole commissioners treated Susan Atkins, Bruce Davis, and Tex Watson, all of whom are born-again Christians. I wrote:

A charismatic, proselytizing religion, characterized by the consistent responsibility to offer ministry to others and draw them closer to a personal relationship with their Savior. Offering testimony in this religious context is surprisingly similar to expressing and performing “insight” before the Board. The act of Christian testimony often includes references to previous life, and maximizing one’s bad acts prior to conversion plays an important rhetorical role in highlighting the magnitude of the transformative experience. It can be analogous to the “I once was blind, but now I see” narrative of insight, with the important distinction that the insight is specifically religious. But for the Board, accepting a religious conversion wholesale is a dangerous proposition. The hearing transcripts of Davis, Watson, and Atkins demonstrate various ways in which the Board is uncomfortable with the role of religion in the inmates’ lives: it is out of the Board’s scripted plan for the inmate; it is insincere; or, it is too sincere for the prison environment.

As I show in the narrative, the Board flunks Susan Atkins for ministering to her fellow inmates (literally a captive audience–but offering testimony is part of the mandates of evangelical Christianity); Bruce Davis for preferring the programs he runs in the prison to the official psychological counseling and for having “replaced Manson with Jesus”; and Tex Watson for bonding with a relative of his victims over their shared faith. So I don’t think what’s going on here is some sort of bias in favor of Christians.

Instead, it makes more sense to see this through the prism of the postrecession absence of proper rehabilitation and reentry programming. Into the void caused by states’ ineptitude and austerity stepped organizations that retained their funding base, and it’s not particularly surprising that, in this deeply religious country, many prison ministries are religious.

Back in the 1990s, I remember talking to a prison reentry pioneer in Israel who explained that he’d partner with anyone who offered a positive path of redemption: a secular kibbutz, an ultra-Orthodox yeshiva, a general contractor offering construction jobs, whoever had something to bring to the table. And I think it’s a great approach–provided that people like Mark Janny, who want their reentry without a side helping of accepting Jesus as their personal savior, have a choice.

The Hidden Side of the Prison Labor Economy on Marketplace

When prison records stand in the way of getting work

This morning I spoke with David Brancaccio of Marketplace Morning Report about the perversions and frustrations of the job market for formerly and currently incarcerated workers. The broadcast version is above – here’s the longer version from Marketplace:

This interview is part of our series Econ Extra Credit with David Brancaccio: Documentary Studies, a conversation about the economics lessons we can learn from documentary films. We’re watching and discussing a new documentary each month. To watch along with us, sign up for our newsletter.

There’s a striking scene in Brett Story’s documentary “The Prison in 12 Landscapes” that captures the complicated and exploitative aspect of rehabilitative prison labor programs: An incarcerated firefighter, explaining how they’re not allowed to talk to others on the job, adds that — because of their criminal record — they have a slim chance of becoming a firefighter upon leaving prison.

It’s an experience that’s common not just for prison firefighters, but for people who work making telemarketing calls, care for elderly or infirm people in prison, and more, according to UC Hastings law professor Hadar Aviram.

“There are many limitations on people working in these occupations, and because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people,” Aviram said in an interview with “Marketplace Morning Report” host David Brancaccio. 

While there are laws in place to protect formerly incarcerated people from hiring discrimination, Aviram noted that many barriers to employment remain, including the scarcity of rehabilitative work programs and their stringent terms and conditions.

“The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based,” Aviram said, “so oftentimes they will train people to do jobs that they can’t actually get on the outside.”

Below is an edited transcript of Brancaccio’s conversation with Aviram on the other jobs prisoners commonly do, the challenges facing formerly incarcerated people who are trying to find work and what Aviram thinks can be done to increase their chances of finding meaningful jobs that take advantage of skills learned while in prison.

David Brancaccio: In this film, we see a California wildfire at first. It turns out that one of those working on the fireline, to keep it from spreading, is a person in prison, in a special prison work program. Would a program like that be common or fairly rare?

Hadar Aviram: Here in California, it’s extremely common. And among the people who saved probably thousands of lives in the last summer, when we had the wildfires, were many, many incarcerated people working as firefighters.

“The range of occupations that people have in prison”

David Brancaccio: It’s interesting, right? Because often people don’t know that, in fact, there’s a ban on people who are incarcerated speaking with members of the public while out there fighting the fire.

Aviram: Yes, there are many limitations on people working in these occupations and, because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people. A lot of the customer service on the phone, a lot of the furniture, things that are being manufactured — sweatshirts for dozens of Ivy League universities are made in a prison in Kansas, where people are getting paid 50 cents a day. It’s really astounding, the range of occupations that people have in prison. And I think that firefighting is an especially interesting example, because they are saving lives and they are working shoulder to shoulder with professional, non-incarcerated firefighters. The big irony, of course, is that then they get out and, at least until recently, they couldn’t get a job as firefighters, despite being trained, because they have a criminal record.

When formerly incarcerated people are unable to get jobs

Brancaccio: I mean, that’s the thing. There’s, of course, a move that we’ve spent some time covering on this program to ban employers from, for the first initial part of a job application, asking if you have a criminal record, but employers have a way finding out anyway, or it comes up during the background check.

Hadar Aviram

Aviram: Absolutely. I was one of the big pushers for this kind of, we call it “ban the box” initiatives, to screen people without knowing their criminal record. But, it turns out, colleagues of mine at the Urban Institute did a study and they found out that rather than employers discriminating on the basis of criminal records, they have started discriminating on the basis of race as a proxy for criminal records. So, for example, they’ll get job applications, and they don’t know which of the people have a criminal record, but they will interview the person called “Brad” rather than the person called “Jamal,” under the assumption that they are using this as a proxy for the criminal record that they don’t have an access to. It’s very frustrating, because you’re trying to create equal opportunities for everybody, but these things have such a protean quality that they pop up no matter what kind of protections you introduce in the workplace.

“Oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself.”

Hadar Aviram, UC Hastings law professor

Brancaccio: What do you do about that? I mean, you know, there’s an ongoing national discussion, at some level, about what we’re addressing here. But, in part, when people have worked alongside people that they find out have criminal records, and they see firsthand that they’re like the rest of us, sometimes that can help break down these stereotypes?

Aviram: Absolutely. And this is a truth that has been found in studies all over. I mean, people have done studies, for example, of members of fundamentalist churches that, you know, will be railing against single mothers and gay people, but then they have a gay uncle or a niece who’s a single mom and they love them to bits, and that softens, a little bit, this approach.

And the same thing holds for people with criminal records. I just saw a study done at a college where there was a strong correlation between students who personally knew fellow students who were formerly incarcerated and their opinions about: Would they befriend somebody with a criminal record? Would they be willing to date somebody who had been in prison? So, truly, personal acquaintances and education and exposure is the most important thing that we can do to break down these barriers.

Brancaccio: Back to this notion of labor done by people in prison: When the phone rings at our house, it could be someone who is incarcerated at the other end of the line?

Aviram: Yes, absolutely. This is just one of many, many, many occupations that people engage in in prisons. Phone solicitation, customer service, a lot of manufacturing of everyday items that you wouldn’t even have an idea come from prison. And, of course, a lot of the work inside prisons. I don’t know that a lot of people know this: We have a high population of people who are aging and infirm in prison. And oftentimes the people taking care of them are trained caregivers who are incarcerated themselves. So a lot of the things that we think the state is providing, it’s actually people from inside the prison who are incarcerated themselves who are doing it.

Is prison labor, by definition, exploitative?

Brancaccio: What’s your sense, having studied this — I mean, is it, by definition, prison labor, exploitative? I mean, no one’s paid market rates for that labor.

Aviram: This is a complicated question, because there’s the world that we would want to live in, in which everybody gets minimum wage and in which you are actually trained for the reality of the marketplace. And there’s the realities of the world we’re in, in which prison labor, to different extents, is exploitative, and we therefore try to sort of improve people’s lot within the conditions that they’re in.

We have to keep in mind the fact that, to some extent, prison labor is training people for conditions in the market on the outside. But the problem is that oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself. The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based, so oftentimes they will train people to do jobs that they can’t actually get on the outside. Up until recently, the firefighting was one such example, but there are many other examples. The programs that do have occupations where people can work on the outside, like marine technology or carpentry, are highly selective; very, very few people can get in. Overall, a more realistic prospect for people coming out is to become independent contractors and work for themselves.

The kind of work formerly incarcerated people end up doing

Brancaccio: That’s what people end up doing? Working for themselves?

Aviram: Exactly. For example, you’ll find people that are putting together landscaping companies, house work companies. And there are some examples that are really amazing, of nonprofits that people have put on the outside, where they’re working in the marketplace and just doing amazing things. Right next to Hastings, which is where I teach, is a neighborhood called the Tenderloin in San Francisco, which, during the pandemic, became pretty much an open-air drug market — lots of homeless people, lots of misery, mental health, substance abuse, oftentimes people overdosing. And the mayor was upset by this, and a couple of times they sent the police to clean up the neighborhood with everything that stems from that. That was extremely difficult, because there were no solutions for people other than just sort of cleaning up the aesthetics.

And then a nonprofit stepped in called Urban Alchemy. They operate public restrooms, which is incredibly important in these kinds of neighborhoods. They operated safe sleeping sites during COVID. They calmed down violence, they actually revived people with Naloxone who had overdosed multiple times every week. They did amazing things. And what enables them to do this work more effectively and more peacefully than the police, and almost without any show of force, is the fact that they are former lifers, that the people who work at Urban Alchemy acquired these peacemaking and mentoring skills that they use every day on the job in decades in prison. They were elders and mentors on the yard when they were inside, and they retain this kind of calm mentorship role on the outside. And they have done such an amazing job that the change in energy in the neighborhood is palpable.

Brancaccio: Those are special skills that are in demand. It’s a shame that some employers don’t fully recognize this.

Aviram: Exactly. There are many ways in which we look at a criminal record or a previous prison stay as a liability. This is of course difficult, because at any given moment, 1% of the entire population of the United States is incarcerated. So we have a lot of people who actually have acquired skills and strengths where they were that we can use in the marketplace. I’m not just thinking about occupations that are entry-level jobs, I’m thinking even about entry into, say, the California bar, as lawyers. Think about what somebody brings in, coming in with an insider perspective on a criminal justice system, reassuring their clients about what’s going to happen to them, you know, being able to present a realistic perspective. There are so many strengths that you acquire.

One of the most successful programs we have in California is called marine technologies, it’s people who work underwater fixing ships and underwater structures. And this is partly a skill where it’s a great advantage to be used to being in a very overcrowded environment. This is difficult for a lot of people. But people, unfortunately, who spent time in our grossly overcrowded prisons have acquired this skill. This is a market strength that is being undervalued and stigmatized for no good reason.

Brancaccio: I was reading about that marine program. Recidivism, going back to the ways of crime, is near zero for people who’ve gone through that program.

Aviram: Those are good jobs. If you get a job like that, there is no reason for you to commit crime, because you have gainful employment. We have to think more evidence-based about these kinds of programs and strengths in the market and prepare people for that.

Brancaccio: Those programs often can be expensive within the prison. Sometimes when budgets are tight, as you’ve written, that’s the program that gets cut.

Aviram: Exactly. It’s one of the downsides. And this is something that I wrote in my first book “Cheap on Crime,” that we, overall, saw the prison population shrink since 2009. This was a result of the the recession of 2008. But one of the side effects of that that was more sinister was that there were drastic cuts to rehabilitative programming. And that created a big difference, a big gap, between prisons that are set in urban centers, where there’s lots of volunteers and do-gooders that step in and create these programs. Here, for example, in San Quentin [State Prison], we have Silicon Valley entrepreneurs volunteering to teach people the internet, which is very difficult when you don’t have internet behind bars. So we have all of this programming because of the volunteers, because they’re stepping in to fill in the gaps that the state cannot fill. But there are many, many prisons in the United States that are located in these remote, rural locations, very, very difficult to get there, and very difficult to get quality programming that actually prepares people to get good jobs once they get released.

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.