What Kind of World Is This?

As I’m collaborating with a legal effort that might help some people at San Quentin get home, safe(r) from the raging pandemic, members of the #StopSanQuentinOutbreak forwarded me this video, which was broadcast on yesterday’s news. Will you just watch this, please, and answer me–what kind of world is this?

BSCC Publishes Data on COVID-19 in Jails

Finally, the BSCC has published its COVID-19 data on juvenile and adult county facilities. But don’t rejoice yet: it’s very sparse. For Alameda County, Santa Rita Jail is still seeing active infections, as you see above. Thankfully, so far no cases in Alameda youth facilities, but they also report having done less than 11 cases (which could or could not mean zero tests.)

Things look grimmer, as you’d expect, in Fresno, where people in jail are suing the sheriff over inadequate prevention and treatment. Note that, to get a sense of the cumulative outbreak, you need to look at “adult outcomes” at the bottom. They report 507 cases resolved (how many of these folks were released? hospitalized? isolated? no answers.)

I’m not sure why this tool isn’t providing us with an aggregate picture for jails, like the CDCR one does, but I’m glad it at least groups jails from the same county on the same page. I would have liked to see the juvenile and adult jails on the same page. In any case, this allows me to overlay data from the L.A. Times for each county onto the situation in the jails and show how the traffic of staff and residents between the community and the institution operates. My suspicion is that, given the shorter stays in jails, we’re going to see more interactions between jails and the community. I also worry about whether some of these places are acting now as “bottlenecks” because local prisons are seeing outbreaks.

In other news, CCI and Avenal are in very bad shape, again, which indicates that we cannot assume that the outbreak truly abated there (or, for that matter, anywhere else where there’s no new infections.)

New Outbreak at CIW: Van Houten’s Fate in Gov. Newsom’s Hands

After a spike in early June and an apparent abatement, COVID-19 is once again tearing through the California Institute for Women (CIW) in Chino. In the last 14 days, the prison tested 1,200 of its 1,413 residents (housed in a facility designed to hold 1,398 people – slightly above 100% capacity.) The testing count on the tracking tool seems to suggest testing done in batches, but we don’t know how they are managing isolation in a crowded facility–hopefully not taking a page from the book of this women’s prison in Texas.

CIW is of special interest to me, because a few days ago we learned that Leslie van Houten, who is serving her sentence there, has been yet again recommended for parole. Van Houten has been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what seems to me, after having pored over 50 years’ worth of her prison record, purely political reasons. Van Houten has maintained a clean disciplinary record, participated in a variety of laudable programs, and incessantly excavated her psyche to show “insight” to the Board. She participated in the murders when she was 19 years old, manipulated and sexually exploited in a setting that, with today’s #MeToo sensibilities, might have shed a completely different light on her involvement.

I mention van Houten’s case because it is emblematic of the dilemma that Gov. Newsom faces with countless other cases. The right thing to do is to release older prisoners, who are more vulnerable to the virus; these people, who serve long sentences, are serving them for violent crimes they committed decades ago. Everything we know about life course criminology supports the prediction that they pose no risk to public safety–they themselves face a risk by remaining behind bars.

In Yesterday’s Monsters I explain how the Manson family cases came to shape California’s extreme punishment regime, and how these cases were impacted by this new regime in turn. This is the chance for a politician who has consistently ran, and prevailed, on a platform of doing the right thing in the face of baseless political pressures. There is no ambiguity about the right thing to do now. Van Houten is 70 years old, has been consistently found to pose very low risk to public safety by actuarial instruments and by everyone who has interacted with her, and there’s a pandemic going on.

Van Houten is not the only person at CIW facing these risks. Just a few days ago, advocates were overjoyed to welcome home Patricia Wright, a 69-year-old cancer patient who doctors say has mere months to live, after she served 23 years in prison. Wright’s release encouraged me, given the infuriating and heartbreaking scene just eleven years ago at Susan Atkins’ last hearing. Perhaps the pandemic is driving home, finally, the message that allowing an older person to die at home with their loved ones, or live out in peace the few years they have left, is not a weakness, nor a slight to the victims. Perhaps it is driving home the message that compassion is an essential component of our humanity. Will Gov. Newsom choose to do the right thing for van Houten and other women at CIW, from both public health and public safety perspectives, or will he succumb to unfounded public pressure, hysteria, and fear?

How to Reduce California’s Prison Population by 50%

Today’s Chronicle features a great article by Bob Egelko, which tries to parse out who is responsible for the San Quentin catastrophe. Getting into the chain of command that made the botched transfer decision might come in handy at a later date, I think, when the time comes to file the inevitable (and more than justified) lawsuit. But, as I said in the article, the time to squabble over who’s at fault has not come yet. Right now we must have all hands on deck, including Gov. Newsom, Mr. Kelso, and Mr. Diaz, making prison releases their absolute top priority.

By now, regular readers of my COVID-19 prison crisis posts know that Gov. Newsom’s plan to release a mere 8,000 people over the course of the summer will not suffice to curb infections, illnesses, and death in prison. You also know that, at least with regard to San Quentin–an antiquated facility that lacks proper ventilation–the physicians at AMEND recommended an immediate population reduction by 50%. But how is it to be done?

The #StopSanQuentinOutbreak coalition, and the Prison Advocacy Network (PAN) have useful, well-researched answers, which are encapsulated in the lovely infographic above. Here are the coalition’s demands, and here’s the PAN page offering legal resources and pathways to release. I want to spend this post getting into the particulars. Before doing so, though, I need to explain a few important things.The Prisoner Advocacy Network has a list of pathways to release.

A lot of the categories in Newsom’s current release plan make sense and show evidence of public health thinking. They are considering age, medical condition, and time left on people’s sentences. The problem with the categories is that they are unnecessarily restrictive, and I think the restrictions can be attributed to two hangups that many people, including well-meaning, educated folks, share about prison releases: the fear that releasing a lot of people is going to be hugely expensive and the hangup around the violent/nonviolent distinction. So let’s tackle these two first.

Get over the hangup of re-entry costs. You may have read that BSCC is considering offering $15 million to CDCR, and might wonder how we can possibly pay for housing, temporary or permanent, of tens of thousands of people. Of course this is going to cost money; the question is, compared to what. It may shock you to learn that, in the 2018/2019 fiscal year, the Legislative Analyst’s Office estimated that the average cost to incarcerate one person in California for a year was $81,502 – more than a $30k increase since our recession-era prison population reduction in 2010-2011. How much does it cost to help such a person for a year, when their healthcare is funded by Obamacare, rather than by CDCR? Here’s a PPIC report from 2015 detailing alternatives to incarceration. Specifically with regard to COVID-19-related reentries, here’s another great infographic detailing what the needs are going to be. The big one is housing, and there are organizations on the ground that are set up to help with that. Even with transitional housing costs, this does not add up to $80k per person per year.

Get over the hangup of making the violent/nonviolent distinction. I am still seeing lots of well-intentioned folks who read Michelle Alexander years ago tweeting about how ending the war on drugs (with or without the hashtag), or focusing on so-called “nonviolent inmates” is the key to fighting this outbreak. I can’t really fault them for this misapprehension–what I can do is repeatedly present you with facts to correct it.

Take a look at the graph below. It comes from CDCR’s population data points from 2018. You will note that the vast majority of people in California prisons are serving time for a violent offense. Drug convictions are the smallest contributors to our prison population (this is of course not true for jails or for federal prisons; I’m talking about the state prison system.) I know we all love to say “dismantle” these days, but dismantling the war on drugs will do very little to reduce state prison population.

Now, take a look at CDCR’s Spring 2020 population projection. What you see in the diagram below are the reductions in population since 2010, and some projections for the years to come. The two big reductions were in 2011, following the Realignment, and, to a smaller extent, in 2015, following Prop. 47. Both of those propositions diverted drug offenders to the community corrections systems–jails and probation. If you care about the injustices of the war on drugs, your heart is in the right place, but this is simply not the most dire problem we are facing in the context of prison population reduction.

It is easier to talk about drugs and nonviolent offenders, because these are typically categories of people that evoke more sympathy from the press. My colleague Susan Turner at UCI has shown that risk assessment tools, when used properly and carefully, yield dependable predictive results, and these are not correlated with the crime of commitment. Because we were so married to the idea that only nonviolent folks need help and public support, our three major population reduction efforts–Realignment, Prop 47, and Prop 57–missed the mark on getting more reductions for little to no “price” of increased criminal activity. Whenever you see a headline lambasting the Governor or the Board of Parole Hearings for releasing a “murderer,” immediately ask yourself the two relevant questions: (1) How old is this person now, and (2) how long ago did they commit the crime? The answers should lead you to the robust insights of life course criminology: People age out of violent crime by their mid- to late-twenties, and at 50 they pose a negligible risk to public safety. Moreover, what a person was convicted of doesn’t tell you a full story of what their undetected criminal activity was like before they were incarcerated. Take a look at the homicide solving rates in California, as reported by the Orange County Register in 2017–a bit over 50%–and ask yourself whether the crime of conviction is telling you a story with any statistical meaning.

In short, my friend, take a breath, let go of your attachment to the violent/nonviolent distinction, and let’s find some real solutions. The #StopSanQuentin coalition has a more in-depth breakdown to offer. Generally speaking, the legal mechanisms to achieve this reduction were identified by UnCommon Law in their letter to the Governor–primarily, early releases, commutations, and parole. Section 8 of Article V of the CA Constitution vests the power to grant a “reprieve, pardon, or commutation” in the Governor. The Penal Code elaborates and explains the process. Section 8658 of the California Government Code provides an emergency release valve: “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution.  He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.  the Governor has the authority to grant mass clemencies in an emergency.”

To begin, there are some bulk populations which, if targeted for release, can deliver the kind of numbers we need to stop the epidemic. These three populations largely overlap, which might make it easier to tailor the remedies to capture the right people. About half of the CDCR population are people designated “low risk” by CDCR’s own admission. CDCR uses risk classification primarily for housing purposes, and their methodology–as well as their practice of overriding their own classification–have been found by LAO to be in dire need of overhaul. LAO and other researchers believe that CDCR’s use of the “low risk” category is too restrictive, and their exceptions to their own classification come from hangups around issues of crime of commitment. This chart from the LAO report tells a useful story: Most of our prison population is doing time for violent crime, and a quarter of it is 50 and older; given the length of sentences for violent crimes, and the fact that a quarter of CA prisoners is serving decades on one of the “extreme punishment trifecta” of sentences (death, LWOP, or life with parole), it’s not difficult to figure out where the older, lower risk people fit in.

Between a quarter to a third of the prison population, depends on how you count: People who have already served a long sentence. This is the time to question the marginal utility of serving a few more years after being in prison for decades. According to the Public Policy Institute of California, About 33,000 inmates are “second strikers,” about 9,000 of whom are released annually after serving about 3.5 years. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Approximately 33,000 inmates are serving sentences of life or life without parole. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

23%: People Over 50. Not only does this population intersect with lower criminal risk and higher medical risk, it also correlated with cost. According to the Public Policy Institute of California and Pew center data they cite, in fiscal year 2015 the state spent $19,796 per inmate on health care–more than thrice the national average.

To this, we can add a few smaller populations, numbering a few thousand each. Let’s start with people on death row and people on life without parole, who have been exempted from pretty much any release valve possible. The Governor has the authority to commute both of those sentences to life with parole today, and this is probably the right course of action anyway, pandemic or no pandemic. We have a moratorium on the death penalty, which means no one is getting executed but we are still paying for expensive capital punishment litigation. Cut out the middle man and shift all these folks to life with parole. I talk about how these three sentences are indistinguishable anyway in Yesterday’s Monsters, chapter 2.

There are also, apparently, a few hundred people still incarcerated who have been recommended for parole and approved by the Governor–coalition members have identified a few dozen in San Quentin alone. If these people have been given the green light to be released, why are they still behind bars? As for people who have been recommended for release and still awaiting the Governor’s authorization, now’s the time to expedite that.

Finally, lifting the offense limitations on people from outbreak epicenters, people with medical conditions, and the like, should expand those numbers considerably, given the significant overlap between crime of commitment, length of sentence, age, and health condition.

My point is that all of this is eminently doable, and there would hardly be any downsides. If we can just let go of the tendency to view only one side of the cost equation, and of our hangup about the nonviolent/violent distinction, we can scale up the proposed release plan to the point that it will be effective. Let me end with this thought: Gov. Newsom announced that the goal is to reduce San Quentin population to close to 100% of design capacity. In a sane world, prisons that are at 100% occupancy are not a goal. They are a starting point.

August 14 Update: Jason Fagone has a gorgeous piece in today’s Chron explaining how we could achieve a 50% reduction today, with negligible impact on public safety.

Are Outbreaks in Prisons and Surrounding Counties Correlated?

Answer: Yes.

Today, Chad Goerzen and I looked at the new numbers from the CDCR tool and laid them over the county numbers from the L.A. Times. A few patterns emerge. First, a lot of testing is being done at San Quentin, but the vast majority of tests are coming back negative. How much we can trust this given the lag between testing date and result date is an important question, but it is at least a little bit encouraging. Second, two places in particular, which had seen peaks and valleys in infections–Avenal and CIM–are seeing infections.

For today, though, I want to point out something striking: Out of the top 15 counties in terms of infection numbers, 12 also have prisons that have seen new infections in the last 14 days. Look at the graph on the top. The picture is incomplete (we need data on detention centers and jails) but it is striking. Without contact tracing it is impossible to tell a causal story, but this correlation should be enough to easily counter the assumption that prisons are somehow separate from the community, or worse, that there’s some trade off between saving lives behind bars and on the outside. The virus doesn’t read the CA Penal Code, nor does it know where the prison gates are. Nor is there an allotted number of infections and deaths and it’s merely a question of who’s more “deserving.” If people behind prison are healthy and taken care of, people in the community are healthy and taken care of, and vice versa.

BREAKING NEWS: Newsom to Release 8,000 People from CA Prisons

The Chron reports:

Gov. Gavin Newsom is set to announce that he will release approximately 8,000 people incarcerated inside California’s prison system, in a move that comes amid devastating coronavirus outbreaks at several facilities and pressure from lawmakers and advocates.

Prisoner attorney Donald Specter on Friday said the announcement is expected early this afternoon. Specter, who is the executive director of the Prison Law Office, the organization that represents prisoners in a long-running lawsuit alleging inadequate medical services, said the governor’s office advised of the details.

“We certainly appreciate the effort from the administration to reduce the prison population,” Specter said. “We still remain concerned that there’s not enough space, especially in places like Vacaville and Folsom to house people safely if the virus gets into those institutions.”

Across state prisons, 2,286 inmates were confirmed to have active cases of the virus and 31 had died as of Friday morning, according to California Department of Corrections and Rehabilitation. Staffers with active cases of the virus totaled 719.

Specter said the releases will come on a rolling basis, and they’ll include both people who were scheduled to be freed soon as well as people at high risk for serious complications if they contract the virus.

Those bound for releases include about 700 people from high-risk prisons like San Quentin, Folsom and the California Medical Facility, Specter said, as well as people who are in hospice and appropriate for release. State prisons have about 6,500 people who are high risk medically for COVID-19 and low risk for recidivism, he said, “and they’re going to start releasing some of them.”

The move will expedite the governor’s review for people who were granted parole, which can traditionally take about six months, Specter said.

Prison officials announced Thursday night that they would provide 12 weeks of credit to every inmate eligible for release who had not been found guilty of a serious rule violation between March 1 and July 5. The policy, adopted because prisons have shut down their credit-earning programs during pandemic, could benefit as many 108,000 people.

With the reduced sentences, about 3,100 inmates would reach their earlier possible release date, officials estimated, with those releases set to begin Aug. 1.

Too few and too late, but it’s a start. The advocates, activists, and elected officials are making a difference. We must press on to stop this human rights crime.

Testing, Testing: Why COVID-19 Testing Is a Crucial Element of Curbing Prison Pandemic

CDCR seem to have taken a page out of Trump’s pandemic prevention book: They slowed down testing in San Quentin, the epicenter of the prison pandemic. We found a big push in testing in late June shortly after the San Quentin disaster broke into mainstream media. Indeed, a high percentage of the tests came back positive. Even though cases were still rising, around July 3, testing came to a grinding halt–and the few tests that were still coming in were coming in positive. The correlation we found between cumulative testing and cumulative cases is 0.99. The correlation between new testing and new cases is 0.7. In other words: The more people you test, the more people come out positive. If you’re seeing abatement in the numbers of infected people, it does not necessarily mean fewer infected people. It could mean, and actually does mean, less testing.

Continue reading

#StopSanQuentinOutbreak Press Conference

Yesterday, on July 9, we held a press conference at San Quentin to draw attention to the conditions inside the prison. We invited Gov. Newsom to participate, but he did not attend. His absence was glaring, as one of the demands of the protesters is that he at least make the effort to visit the prison and see the conditions with his own eyes.

You can read about the press conference in the Guardian, the Chron, and the ABC News website. It was incredibly moving to hear from mothers and spouses of people on the inside about the desperation of their loved ones. James King, state campaigner for the Ella Baker Center who is formerly incarcerated in San Quentin, shared a letter from a friend of his currently behind bars that truly conveyed the horror of dealing with this pandemic. Shawanda Scott spoke of the loving home she has waiting for her son. These testimonies undercut the myth that no one is waiting for those afflicted on the outside, and that, as James said, “the minute they are released… tens of thousands of families will be here at the gate to welcome them with open arms.” Adnan Khan of Re:store Justice spoke very movingly of the tendency to dehumanize people in prison. Dr. Peter Chin-Hong from UCSF spoke of the history of contagion in prisons (“prisons are incompatible with health.”) It was terrific to have legislators with us: Marc Levine, who has been on top of this from the very beginning, Scott Weiner, Ash Kalra, and Rob Bonta were with us. Public Defenders Brendon Woods and Mano Raju, and San Francisco District Attorney Chesa Boudin, also came to lend support. And, it was amazing to hear from Eddie Zheng, and from more family members of people incarcerated at San Quentin, at the open mike section.

What really inspired me was that the families spoke without spite or rancor. They said they were not interested in blame, only in saving their loved ones from illness and death. My mentor Malcolm Feeley, who started the ball rolling on this by emailing me a couple of weeks ago saying “I’m so pissed”, said that this is the new victims’ rights movement: the victims of the state’s indifference.

Co-organizing the press conference was inspiring. There is no way a single organization or demographic could’ve put this thing together on their own. It took a diverse coalition of talent and experience, united by our passion to save people and put an end to what is probably the worst medical scandal in prison history. I am so grateful to my co-organizers–most of whom put an enormous amount of effort into this and stayed behind the scenes. They are an amazing group of people and I hope we can keep up the pressure on Gov. Newsom to do the right thing.

A few people asked me to post my speech, so here it is:

***

Hello. My name is Hadar Aviram and I am a law professor at UC Hastings. I am the author of an open letter to Governor Newsom asking him to release people from prison to save lives. I speak here on behalf of more than 400 of my colleagues [now closer to 500–H.A.], who signed the letter: criminal justice experts, prison law experts, public health experts. We are asking Gov. Newsom to do what he knows, in his heart of hearts, is the right thing.

An old Cherokee story tells of a wise grandfather and his grandson. The grandfather says, “Son, within each of us there is a battle between two wolves. One is evil. It is hatred, greed, arrogance, malice. The other is kind. It is compassion, love, empathy, and truth.” The grandson asks, “Which wolf wins?” The wise grandfather replies, “the one you feed.”

If Gov. Newsom were here, I would ask him which wolf he wants to feed. But he is not. Where is he? When people are getting sick and dying in droves, where is he? When buses transport people from prison to prison without testing and quarantining them, where is he? When people who test positive and negative are thrown together without care, where is he? When there is no retesting, where is he? When people get no medical treatment beyond checking their vitals, where is he? When people are terrified to report their symptoms out of fear that they will be thrown in death row or in solitary confinement, where is he? When we don’t even know what’s going on in jails and juvenile facilities because they are not reporting numbers, where is he?

I know that many people secretly think that lives behind bars are worth less than lives on the outside. Some of this ignorance comes from the panic and cabin fever of the pandemic. I would like to explain to them that prisons are part of the community, and that people in prison are members of the community. I should know; I ran the numbers. Infection rates in Marin county spiked after the outbreak in San Quentin. Infection rates in Lassen county spiked after the outbreak in prisons in Susanville. Saving lives in prison is a priority because it protects everyone, people behind bars and people on the outside. By contrast, incubating the virus in prisons endangers us all and makes all our prevention efforts futile. You asked us to do our part. When will you do your part, Gov. Newsom? Which wolf do you want to feed?

The people behind these gates are serving sentences under the California Penal Code. They were not sentenced to abuse, neglect, and illness. They were not sentenced to chaos and ineptitude. They are in the custody of their government, and with this great power comes great responsibility. So, Gov. Newsom, which wolf do you want to feed?

Newspapers have been making distinctions between so-called “violent” and “nonviolent” people. I am here to tell you the facts. The facts are that a quarter of the California prison population are people aged 50 and older. These people do not pose a risk to public safety; rather, they themselves face risks because of their age and deteriorating health. My colleagues and I have studied California crime rates for decades and found no correlation between the crime and commitment and the risk of reoffending. The public risk here is not from imaginary crime, but from the very real possibility that our prisons are turning into mass graves. So, Gov. Newsom, which wolf do you want to feed?

We’ve had to release people from our bloated prisons twice recently: in 2011 and in 2014. Both times, there was fearmongering, and there were stories in the media. We let out tens of thousands of people. We know what happened because we crunched the numbers: Crime rates stayed low. Violent crime did not rise. There was no increased risk to public safety. So, Gov. Newsom, which wolf do you want to feed?

The virus is tearing through Death Row, and the irony is that California has a moratorium on the death penalty. For decades, we litigated to the tune of billions of dollars how to kill people in a way that was not “cruel and unusual”. We were even careful to examine whether people were healthy enough to be killed by the state. And so, when you put the moratorium in place, Gov. Newsom, we applauded you for doing the right thing for California. How does that feel now, when more people have died during this moratorium than we actually executed in the entire century? Which wolf do you want to feed?

Moreover, we know for a fact that some of the people behind these gates, whom you are sentencing to death via Covid, are innocent. They are behind bars because of mistaken eyewitnesses, coerced confessions, and hidden exculpatory evidence. So, Gov. Newsom, which wolf do you want to feed?

And we know that crimes are not just a matter of choice. They come from a confluence of factors, such as poverty, neglect, deprivation, abuse, racial discrimination, persecution, food deserts, lead poisoning, necessity, mental illness, substance abuse, pain and hurt and suffering. The virus doesn’t take sides. The virus doesn’t decide who “deserves” to get sick. So, Gov. Newsom, which wolf do you want to feed?

In 2005, at the UC Berkeley ceremony in which I received my Ph.D., you, then Mayor of San Francisco, were the commencement speaker. You spoke of your decision to allow people to marry the person that they loved. And you said that it is important to do the right thing, even if it’s politically risky, even if you face press backlash, even if people are not ready for it. History has smiled on your bravery. We applauded you for your courage. Now is just such a moment. History is being written, right now, behind these gates. You know the right thing to do. Trust your own goodness. Trust your own courage. Trust your own compassion. Bring them home.

Feed the Right Wolf: Questions and Answers about the COVID-19 Crisis in Prison

I thought prisons were safe. How did the virus even get into prison? Because prisons in California are often in remote, rural areas, it’s easy to think of them as impermeable and far away, but that is not the case. In all prisons, staff members go in and out of the facility, and often live in the surrounding counties. This is how infections can permeate the prison from the community. But CDCR has also made some horrific decisions to transfer people between institutions without proper testing and quarantine protocols. These transfers are probably the source of the serious infection at San Quentin and the spread at Corcoran, as well as in Lassen County and other places. Recently, the medical officer of CDCR was ousted because of these instances of mismanagement.

Why is the virus spreading in prison? Almost all the prisons in California are overcrowded, some of them to the tune of 150% of their design capacity. Social distancing is difficult to do under these conditions. Some well-intentioned, but shortsighted, strategies we took to resolve this problem has just made prisons and jails more vulnerable to the virus. Staff circulate around the prison, as do workers who are incarcerated themselves; there are no solid protocols on cohorting these populations to prevent the spread.

Aren’t the sick people receiving free healthcare in prison? What people in prison receive is not “healthcare” as you understand it. It is appalling and neglectful, and often features weeks (sometimes months and years) of delays. Not too long ago, a person would die behind bars every six days from a preventable, and sometimes iatrogenic, disease. And, until recently, people paid copays for the “healthcare” they receive. The medical system was overwhelmed before the pandemic, despite desperate efforts to turn things around; overcrowding was, and still is (albeit to a lesser degree) still a complicating factor.

Aren’t the sick prisoners safer in prison, where they can be isolated from the rest of the community? No. By and large, prisons are doing a very poor job putting together social distancing protocols. COVID-19 is ravaging death row, where people are single-celled and you’d think would be protected from each other. And we are not safer if the virus is incubated in prisons, either. In at least two counties, Marin and Lassen, infections in the community spiked shortly after infections in prison spiked. Prisons are part of the community, and people in prison are members of the community. Staff go in and out of prison every day, sometimes multiple times a day. They live where you live; they eat where you eat; they shop where you shop. Keeping people in prison, where prevention and treatment are impossible, incubates the virus in prison, creating, essentially, a reservoir of illness to ravage the surrounding community.

Can’t we use solitary confinement to isolate sick people? No. Medical isolation and solitary confinement are two completely different things, as Cloud et al. explain in this article. Threatening people with solitary or death row celling terrifies them and disincentivizes people from reporting their symptoms and from getting tested. It is counterproductive and cruel.

But didn’t we already decide to release some people? So far, Gov. Newsom has only released 3,500 people, and is planning on 3,500 more. It is a mere drop in the bucket. We need to release tens of thousands of people to see improvement in the contagion. Remember that, following the 2011 Realignment, we released 40,000 people, are still wrestling with quality of healthcare, and that was without a pandemic going on.

Didn’t the Governor say that the prisoners don’t have anywhere to go? The Governor’s approach to this–to examine cases one by one for “worthiness” or “eligibility”–might have been a good fit three months ago. Now, we need to triage because we are facing a disaster on an enormous scale. Many people do have loving family members and friends who are happy to welcome them back to the community. Volunteers and advocates are at the ready to help with housing solutions.

If we release people, shouldn’t we prioritize nonviolent drug offenders over violent criminals? The distinction between so-called “nonviolent” and “violent” offenders doesn’t mean anything in terms of the risk they pose to the community. A quarter of the California prison population are people aged 50 and older. These people do not pose a risk to public safety, regardless of the crime they committed decades ago. At this point, “prioritizing” is no longer a luxury we have. We must let people out in large numbers to contain the virus and prevent the prison from turning into a mass grave.

If we release criminals into the streets, won’t that endanger public safety? No. We did large-scale releases before, in 2011 and in 2014, and crime rates, particularly violent crimes, did not go up. If we see an uptick in crime in the following months, it will likely be the natural outcome of the relaxed pandemic prevention restrictions, and will not reflect people released from prison. When you see newspaper articles

Aren’t people on death row going to die anyway? No. California has a moratorium on the death penalty. And before the moratorium (and even now, because the death penalty is still in the book), we have litigated for decades, to the tune of billions of dollars, how to appropriately and constitutionally execute people. We were even careful, absurdity of absurdities, to examine whether people were healthy enough to be killed by the state. We have not made this effort and spent this money so that people could die via COVID-19. Also, keep in mind that a proportion of these people are innocent of the crimes they were sentenced to death for.

We have limited resources, and I’d rather spend them on deserving people than on people who committed violent crime. It is true that we have limited resources, and because of that, they must be spent where they can help us prevent contagion, illness, and death. COVID-19 is not a zero-sum game; it’s not like there’s an allotted number of sicknesses and you get to decide who deserves or does not deserve to get sick. Prisons are not separate from the community; they are part of the community. Allowing the contagion to ravage prisons incubates the disease within the prisons and poses a risk to all of us. If people in prison get sick, people outside of prison get sick, including you and your loved ones. It is an urgent priority to spend the resources where they can prevent illness and death for all of us.

I don’t care about people in prison. You do the crime, you do the time. The people serving prison sentences in California were sentenced under the California Penal Code. The Penal Code does not sentence people to neglect, abuse, contagion, illness, and death. Moreover, many of the people serving time in prison, and even on death row, are factually innocent. But more profoundly, ask yourself what role your lack of compassion for fellow human beings is playing in your life. A Cherokee story tells of a wise grandfather and his grandson. The grandfather says, “Son, within each of us there is a battle between two wolves. One is evil. It is anger, envy, jealousy, sorrow, regret, greed, arrogance, self-pity, guilt, resentment, inferiority, lies, false pride, superiority, and ego. The other is good. It is joy, peace, love, hope, serenity, humility, kindness, benevolence, empathy, generosity, truth, compassion, and faith.” The grandson asks, “Which wolf wins?” The wise grandfather replies, “the one you feed.”