To read CDCR’s response briefs in the Marin cases and in Von Staich, you could think that the pandemic is dwindling in prison. The opposite is true: the last two weeks have seen a spike in new COVID-19 cases in CDCR. The graph above is based on the daily CDCR data (Chad Goerzen and I code them daily.)

Here are a few other things we’ve learned:

• Overall number of cases since the beginning of the pandemic stands now at 13,155 – nearly 14% of the total institution population, which as of Wednesday of last week was 95,886. This is a bit misleading, as some of the people who became infected have been released. But even with the higher population before the releases, this is a shocking percentage. By comparison, the rate of all-time infections for the entire state is 2009 per 100,000 people (approximately 2%). People in prison have been seven times as likely as people in the state to contract COVID.
• COVID-19 is more lethal in prison than outside prison. Statewide, we’ve had 38 deaths per 100,000 people; in CDCR, more than twice that: 60 deaths for slightly less than 100,000 people. And this is before adjusting for age.
• If you look only at the new spike in cases in the last 14 days, infection rates are even worse in prison. In CDCR facilities, it’s 17.6 per 1,000 people; in CA, it’s 1.3 per 1,000. For reference, at its peak, the CA infection rate was 3.3 per 1,000.
• Generally speaking: My mentor and friend Malcolm Feeley made a shocking rough calculation. If we totaled up the population in archipelago of America’s prisons and considered them a country, both the number and rate of COVID-19 infections and deaths would place this “prison country” in the top twenty five percent of all countries in the world in terms of both absolute number of cases and deaths, and rate of deaths.  By Malcolm’s rough count, this would put the “prison country” at around number 53 in over 200 countries.

We’ve also learned where the worst new outbreaks are:

• FSP (Sacramento) – 585 new cases in 14 days
• ASP (Kings) – 260 new cases in 14 days
• CRC (Riverside) – 269 new cases in 14 days
• CVSP (Riverside) – 182 new cases in 14 days
• SATF (Kings) – 148 new cases in 14 days
• VSP (Madera) – 77 new cases in 14 days

As you can see, this clusters mostly around Kings and Riverside Counties, which are, respectively, #2 and #14 in new cases per the L.A. Times counter (whether there’s a correlation, and what the timing is like, is a complicated question.) The biggest spike in new cases is in Imperial county; we should note that Riverside County prisons are located almost on the border with Imperial county.

This trend is more generalizable. Here’s a snapshot of our coded data, in order of outbreak seriousness in counties. You’ll see a correlation, to the tune of 0.588 (pretty good!) between outbreak in the county and an outbreak at a prison located either in the county or in a neighboring county near the county border.

As I’ve explained before, we’re not telling an airtight causal story here. All we are doing is dispelling the notion that locking people up is somehow keeping the surrounding county safe.

Remember when, on July 10, Gov. Newsom announced the release of up to 8,000 people by late August? And remember when I said it was too little, too late, too reactive, and too obsequious to public opinion?

It’s now mid-September, and it’s time to see these releases. The picture of occupancy in California prisons as of yesterday’s count (the weekly count happens on Wednesday) is at the top of this page. If you wish to look at CDCR’s original data, from which I compiled the above, it’s right here.

We’ve seen an overall reduction to 96,827 total–here’s a great piece by the Chron’s Bob Egelko to give you some historical perspective on how we got there–but how that affects your prison experience or your exposure to COVID depends on where you are. More than half of the CDCR institutions are still in the red with above-capacity populations. Others are hovering at or neat 100%, which is a big improvement, but still very crowded and doesn’t do much for social distancing. And, for San Quentin and some other prisons, the reduction to 100% will not offset the basic architecture of the prison, which is dilapidated and lacks ventilation. Moreover, consider the bottleneck in county jails, and the extent to which transfers from jails might offset this population reduction.

State courts (and federal courts, though their hands are largely tied due to the limitations of the Prison Litigation Reform Act) must act to provide relief. As you see, there’s no safe destination.

“There’s no need to act hastily.” –CDCR counsel Kathleen Walton

“Yes there is. Yes there is. There is a need to act hastily.” –Justice Kline, CA 1st District Court of Appeal

Oral Argument, In re Von Staich on Habeas Corpus, September 8, 2020

Today, the First District Court of Appeal heard oral argument in In re Von Staich, the San Quentin COVID-related habeas case. The hearing opened with a legal debate on whether CDCR, who disputes the declarations and reports made by physicians about the conditions at San Quentin, should have provided actual evidence to refute these reports. CDCR representative Kathleen Walton argued that the habeas rules did not require her to provide these facts, and pressed the court for an evidentiary hearing; Brad O’Connell, for the petitioner, argued that CDCR made no attempt to plead the facts or meet them at all. Justice Kline characterized the prison’s response as “conclusionary statements, not facts”, and rejected CDCR’s argument that the issues they briefed on (whether CDCR provided adequate cleaning, sanitizing, masks, continuation of of holding petitioner Von Staich with other inmates, whether COVID is still spreading at the prison, etc.), were the focus of the case. “What we believe this case is about”, said Justice Kline, “is whether there is persuasive evidence that the court must do what the Plata court cannot do, which is to reduce population of San Quentin to a level that can permit the administration of social distancing within that prison.”

After confirming that CDCR can, indeed, release people serving life with parole, and discussing the legal mechanisms to do so (including the Governor’s emergency authority to release), much of the discussion consisted of CDCR peddling various falsehoods and the Justices not having it. At some point, Ms. Walton intimated that they estimate that some of their vigorous efforts to contain COVID in prison were hindered (they don’t know to what extent) by “inmates refusing to cooperate”, including testing and reporting symptoms. Justice Kline countered with the possibility that people were disincentivized from cooperating because the prison relied on spaces with a punitive connotation (solitary confinement cells) for the purpose of medical isolation (a problem pointed out in the AMEND report and in our Amicus brief.) This struck me as a problem that correctional health professionals should have perhaps taken into account *back in March* when they were repeatedly warned of outbreaks in prison. Fancy that, prison health officials having to consider the possibility that people might try to avoid being transferred to solitary!

Discussion then turned to release policies, with Justice Kline extensively mentioning our brief, which highlighted the most obvious demographic for successful releases: aging people doing long stints for violent crime. The AG representative responded that the petitioner in this particular case was judged to be “moderate risk.”

The next topic on the table was, again, the argument that the court was an inappropriate forum, and somehow “duplicative” of the Plata litigation. Justice Kline explained: “You keep making arguments that assume we have the same interests as the federal court. We are not being asked to evaluate the quality of care and attention to covid they are providing. [The federal courts] are looking into that.” To top the outrage, the CDCR representative tried to spin Judge Tigar’s Plata stance as “he didn’t find an Eighth Amendment violation.” Justice Kline wasn’t having any of it and responded that it is a matter of public knowledge that Judge Tigar *urged* state courts to do something because the PLRA stopped him from acting. In short, said Justice Kline, the COVID crisis at Quentin is a state prboelm, happening at a state department of corrections, which is the duty of state courts to address–in particular at Quentin, which is unique in being the system’s oldest and most dilapidated prison.

Justice Stewart then challenged the CDCR representative, quoting our argument in our Amicus brief that they have basically arrived at each of the three courts handling these lawsuits and argued it was not the appropriate forum. The CDCR representative, in turn, tried to harmonize their position by creating a hierarchy of sorts between the different litigation efforts.

Even though this was, overall, a good day for the petitioner, the court did press petitioner’s representatives on the appropriate remedy. Issuing an order to release 50% of the prisoners, said Justice Kline, is “something I’m not sure I’m willing to do. . . not confident that my court has the ability.” Indeed, the role of the appellate court might be limited to assessing whether the current conditions at Quentin allow the social distancing necessary to stop the spread in that facility, and to put in some guidelines about particular issues that would apply across the board. Justice Kline also commented that the lawsuit has already resulted in a benefit to Von Staich himself; he’s been isolated and no longer as exposed to COVID as he previously was. In light of these issues, the question to petitioner’s attorneys was, “What would you have us say?” The response from Richard Braucher (for the petitioner) was that the only ways to reduce the population at Quentin were via release or via transfer.

Which is where the argument for petitioner touched on some real talk. The elephant in the room, of course, is the rise in cases at other institutions not at stake in this lawsuit. Petitioner’s representative specifically mentioned the situation at Avenal, which has become dire in the last few days, and is currently the worst COVID Petri dish in the state. Here’s the picture there:

We’ve been tracking the CDCR prisons as well as CA counties for months now, and I should probably say that I’m not at all sure whether this is a third outbreak or the continuation of the second one; testing has been sporadic and erratic and basically reflects Trump’s philosophy of “no testing –> no cases.” Nonetheless, it indicates active disease, and it’s not the only place with hundreds of cases. Folsom is doing abysmally as well:

The Court, however, expressed the need to restrain the extent of their inteference with prison business via a direct release order. They pressed petitioner’s representatives on this point, and I think I would have argued that CDCR *needs* help and guidance from the courts because it had *ample* opportunity to do the decent thing and didn’t do so. Even the current CDCR plan is dated, inadequate, targets the wrong people, and we now hear will take the better part of a year to implement, which will come woefully late for the folks who will get sick or even die in the interim. That launched a discussion of how petitioner’s counsel would craft the priority of releases, to which they replied that the two lynchpins of the policy should be age and medical condition.

This opened the door to some breathtakingly cynical takes from the CDCR representative, the gist of which was that there was “no need to act hastily”–presumably because the urgent call to release 50% of the people in prison happened before the reductions in population and because now, after so much damage has already been done, they’re implementing some new program for sanitation and PPE equipment. Basing an argument that no remedy should be offered on the fact that the harm’s already been done was pretty much what I expected them to argue; CDCR has maintained that they are winning the fight against the virus, when in fact the virus has already won and continues to win, again and again, in prisons where COVID was thought to have abated. Justice Kline responded from the heart: “Yes there is. Yes there is. There is a need to act hastily.” People have gotten sick and died, he said, and we must ensure that no more of this happens. We now wait to hear what the Court will decide.

Today, the Office of the Inspector General published the first installment in a series of three reports about CDCR’s (mis)handling of the COVID-19 crisis in prisons. The report was commissioned by Assembly Speaker Anthony Rendon and you can read it here, in its 47-page glory. For those of you unfamiliar with the Inspector General, the Office’s authority to review CDCR’s policies and practices comes from the California Penal Code and serves as an important control over correctional operations.

The first report examines CDCR’s screening practices for staff and visitors. Heeding warnings from the WHO and CDC, Governor Newsom instructed CDCR to take preventative measures to prevent the pread of COVID-19 in prisons. As early as March 11, CDCR suspended all visits to the prison–the suspension remains in effect–but continued to allow some essential visitors, including contracted workers, attorneys, and OIG staff, to enter prisons, in addition to thousands of the department’s staff who did so each day. On March 14, the suspension policy was supplemented by a directive to verbally screen all staff and visitors by querying them about signs and symptoms of COVID-19. Later in March, CDCR added required temperature checks to the verbal queries.

Here’s where it’s important to explain something. Every morning when I drop my son off at preschool, and every afternoon when I pick him up, a staff member checks both our temperatures, and asks us screening questions about symptoms, travel, and contact with known COVID-19 carriers. Even though this screening procedure does not detect asymptomatic carriers, it is hugely important, and it is doable, because the preschool only has one entrance. But prisons are more complicated than preschools. As the report explains, most prisons have multiple gates and entrance points, ranging in security level. Administrative offices, warehouses, industries, and other areas are often behind the main gate, but outside of an internal, secured entrance point. Take a look, for example, at this aerial photo of San Quentin. On the top right, you can see structures that are not part of the inner perimeter of the prison, and you can also see that, within the complex, there are multiple buildings with their own secured gates.

People mill about through these multiple gates on a daily basis. The staff, of course, and the essential visitors, come in and out of the prison on a daily basis. In addition, incarcerated people at San Quentin frequently work in the buildings outside the secure perimeter. This brings people across security entrances in daily contact with each other, and requires careful screening at the entrance to each correctional complex.

Unfortunately, the screening policy has not worked out at CDCR. The report summarizes:

Despite the department’s statewide directives that staff and visitors be screened for signs and symptoms of COVID-19 upon entry to prisons, we found that the department’s vague screening directives resulted in inconsistent implementation among the prisons, which left some staff and visitors entering prisons unscreened. Specifically, we found prisons took different approaches to implementing the same departmentwide directive. Some prisons funneled every car to a single screening location, where prison staff conducted verbal and temperature screenings of the cars’ occupants. Other prisons screened staff at certain pedestrian entrances to the prisons. We found that this second approach increased the risk that staff or visitors may have walked into or through other workspaces without having been screened.

OIG staff viewed and experienced these inconsistencies firsthand. During multiple visits by our staff between May 19, 2020, and June 26, 2020, prisons did not screen some of them for the disease’s known signs and symptoms. For example, California State Prison, Sacramento, conducted screenings at an area that cannot be seen from
the prison’s main entrance. In one example at this prison, two OIG staff experienced no delays when walking onto prison grounds; no one screened them as they parked their cars and then walked into the prison’s administration building.

OIG staff’s observations were also supported by staff whom we surveyed at several prisons. To obtain prison employees’ perspectives, we surveyed all staff at seven prisons—more than 12,000 staff members. Staff responding to that survey indicated that the vast majority of them, but not all, had always been screened upon prison entry. Specifically, 5 percent of the survey’s respondents indicated that they had not always been screened as required by the department’s directive. We also learned that the results derived from some staff and visitor screenings may have been flawed. In response to a separate survey that we administered to screeners at five prisons, numerous screeners also identified multiple instances of thermometers malfunctioning during screenings. However, the screeners’ survey responses did not indicate how they proceeded to conduct screenings when they could not accurately obtain temperatures; consequently, it is unclear whether they allowed entry to those individuals. Nevertheless, because the department’s directive lacks instructions on what screeners were supposed to do in those instances, it was possible that screeners allowed some staff and visitors entry without obtaining accurate temperature readings. In addition, according to our review of a sample of screeners’ training records and our survey of screeners themselves, many screeners apparently received no formal training at all concerning their prisons’ screening processes, thus increasing the risk of allowing infected individuals to walk into prison facilities and expose others to the disease.

Much of the media reportage on CDCR’s failures to properly act has focused on issues of testing and cohorting, but screening is a fairly doable preventative policy, especially in places designed to prevent people from escaping. It’s dismaying to see how haphazardly it has been implemented. And, as the report points out, it’s especially distressing when you keep in mind that the testing fails to give anything close to a complete picture: because of the delays in receiving result, a person might contract the disease after taking the test, experience symptoms, and a few days later receive a “negative” result. These gaps can and should be stopped through screening, among other measures, and it is not to CDCR’s credit that they were not.

Yesterday I filed a brief on behalf of the ACLU of Northern CA, and seventeen of my colleagues, in support of the consolidated habeas corpus petitions submitted by dozens of people at San Quentin to the Marin Superior Court. Petitioners are demanding that the Warden of San Quentin release them, because their incarceration is a violation of the Eighth Amendment protection against cruel and unusual punishment.

You can read the brief here:

AmiciCuriaeBriefMarinConsol… by hadaraviram on Scribd

If you thought the travesty of the Chino-Quentin transfer was the absolute rock bottom of prison management, prepare to dig. Today’s Chron reports that Dr. Matthew Willis, Marin County’s top health official, has written a letter to Judge Howard of the Marin Superior Court, in which he documents his efforts to get San Quentin officials to quarantine the incoming people from Chino–to no avail. Megan Cassidy reports:

Dr. Matthew Willis had learned that the 122 prisoners weren’t tested for weeks before they were transferred on May 30. Unless they were “radically sequestered” from the native population, Willis warned, the prison was setting the stage for a major outbreak.

This advice — given in a June 1 conference call with acting San Quentin Warden Ron Broomfield and other high-ranking prison staffers — was the first in a series of public health recommendations to be issued and ultimately dismissed by prison officials, Willis said in a letter to a Marin County Superior Court judge and in an interview Tuesday with The Chronicle.

You’ll want to click on the article and read Dr. Willis’ letter in full, as well as the astonishing letter he received. Prison officials forwarded him a letter written by CDCR’s General Counsel, Jennifer Neill, who wrote, “The State is not an entity under local health officers’ jurisdictions, and thus local health officer orders are not valid against the State.” Neill hadn’t even written the letter to Dr. Willis: she had written it to Kings County’s health officials when they offered advice regarding the horrific outbreak in Avenal. Go ahead, read it for yourself. I put a snippet of it above, to make sure you get the gist of it, but you need to see this with your own eyes.

As the horror settles in the pit of your stomach, let’s break this down:

1. It was always obvious that prison outbreaks are connected to outbreaks in the surrounding counties (this should be obvious to you, too, by now; the virus doesn’t read the Penal Code.) Because of this, traditionally, there was communication between county health officials and the prison on matters of public health, such as the flu vaccine and an outbreak of Legionnaires’ Disease.
2. There had already been an incident in which, rather than heeding advice from the people directly affected by the outbreaks in prison, CDCR decided to ignore the advice and instead jockey for position and squabble about jurisdiction. Outcome: several hundreds of people became infected and a few died.
3. Then, months later, this occurred again. Again, the health official of the surrounding county offered advice. Again, CDCR chose to ignore the advice and instead jockey for position and squabble about jurisdiction. Indeed, they were apparently so pleased with how they had handled the previous incident that they didn’t even bother to write a new letter; instead, they simply forwarded the same letter to the health officials of the new county. Outcome: several thousands of people became infected and a few dozen died.

Friends, this is shocking. If all the previous warnings, all the alarm bells sounded by public health and criminal justice experts, did not suffice to prove that San Quentin officials, and the warden, exhibited deliberate indifference to the lives of the people under their supervision and care, this incident alone should make all of us sick to our stomachs.

A few important items from the last few days:

Democracy Now! devoted an episode to the San Quentin COVID-19 disaster, including conversations with folks on the inside, as well as Ella Baker Center’s State Campaigner James King, commenting on the structure of Quentin and why it is incompatible with healthcare:

Today at 1pm, the #StopSanQuentinOutbreak coalition is hosting a virtual press conference on FB Live, featuring updates on the situation in prison, the Plata v. Newsom litigation, and the habeas corpus cases that have been consolidated at the Marin Superior Court. FYI, I am authoring the brief on behalf of amici curiae the ACLU of Northern California and twenty of my colleagues, criminal justice and corrections experts. I will post the brief in full here after it is filed.

The first article based on data collected by the UCLA COVID-19 Behind Bars Data Project is out from JAMA, showing that the the adjusted COVID-19 mortality rate in the prison population is 3.0 times higher than would be expected if the age and sex distributions of the US and prison populations were equal.

Finally, my article California’s COVID-19 Prison Disaster and the Trap of Palatable Reform is out from Boom California and offered free to the public on Boom’s open access platform. I decided to publish with Boom, rather than with a paywalled academic journal, because I think it is crucial for anyone in CA who is looking for background on this crisis to learn the background and understand why the proposed solutions are inadequate. Please share widely with your networks.