FESTER Blurb from the Chronicle’s Jason Fagone

Fester Book Cover

I’m very pleased to share the first book blurb for FESTER, from star journalist and author Jason Fagone. As a reminder, Jason was part of the San Francisco Chronicle team that broke the story of the San Quentin outbreak. He is also the author of a terrific nonfiction book, The Woman Who Smashed Codes: A True Story of Love, Spies, and the Unlikely Heroine Who Outwitted America’s Enemies.

Here is what Jason has to say about FESTER:

Myths can kill, and FESTER dissects a vicious one: the idea that prisons are worlds apart, isolated from their surrounding communities. With passion, rigor, and a flair for storytelling, Aviram and Goerzen show how California’s fealty to this myth placed whole cities at risk during the coronavirus pandemic, transforming the state’s overcrowded prisons into virus bombs that exploded outward. An indictment of a failed system and the politicians and judges who prop it up, this stunning book is also a call to action, laying out reforms that could save lives the next time a deadly virus proves that we’re all connected.

Canteen vs. Chow Hall: Let’s Have Enough Love in Our Hearts for Two Wars

After much consternation and many compromises, AB 474 cleared the Appropriations Committee last week and is headed for a floor vote at the California Assembly. The bill regulates the markups at prison canteens, setting prices at a level that “will render each canteen self-supporting,” which effectively means a reduction in canteen markup rates from 65% to 35% for the next 4 years (until 2028). On January 1st 2028, CDCR may ratchet up the markup rate to make canteens “self-supporting.”

As someone interested in both prisons and food, I’ve organized events that classified correctional institutions as food deserts, and rightly so: the cuisine is horrendous. When I visited a Brazilian maximum-security prison a few years ago, I marveled at the organic vegetable garden that surrounded the facility and enriched the decent and nutritious meals served there. The battle to lower canteen prices reminded me of those experiences and raises the question: would we be so worried and upset about canteen markups if the regular meals were decent?

I think the answer is: it’s all about balance. A few years ago, I attended a panel about food and law, in which one of the speakers, a law professor and farmer, expounded on the need to bring native foods back to the communities, claim ownership of native crops, etc. etc. I raised the question of prison canteens, and the fact that some of the most oppressed people on the planet just want some comfort and simple pleasure from their food and might not be aggressively lobbying for heirloom beans. The guy almost chopped my head off and was incredibly rude and dismissive. By pure coincidence, linguist Janet Ainsworth was in the audience, conducting fieldwork on gender norms in academic settings, and wrote up the following (M was the anti-colonial radical-farmer-cum-academic guy, I was the F Qer who was thrice interrupted):

During their panel presentations, three of the four panelists invoked critical ideological positions as underpinning their presentations—both men and one woman. Specifically, one of the two F speakers referenced Critical Race Theory in her presentation, one M panelist referenced critical theory (unspecified), anti-racism, anti-subordination, anti-capitalism, anti-colonialism, and anti-neo-liberalism in his presentation; the other M referenced critical race theory, anti-capitalism, anti-racism, white privilege, and anti-colonialism in his presentation. Conspicuous by its near absence was feminist theory; it was referenced by one of the F speakers once in a response to a Qer. In immediate response one of the M panelists interrupted and responded critically to her suggestion that feminism had a progressive role to play in the topic; she immediately took an apologetic turn, beginning “Yes, yes, I didn’t mean to say…”

This session was marked by interruptions and negative assessments by the male panelists of the speaking turns of the F Qers. One M panelist interrupted F Qers on two occasions, the other M panelist interrupted F Qer speaking turns on six occasions. This more aggressive M panelist began one of his response turns with “I disagree with everything you said,” his response turn took 3 minutes and 52 seconds. (My qualitative assessment of that turn was that it was only very tangentially related to the point that the initial Qer had made.) The same F. Q’er began a follow-up turn, and after eight seconds, the same M. panelist interrupted again, beginning his turn with “No, what you must understand is…” His turn continued for 6 minutes and four seconds. The same F Q’er tried again to take a speaking turn; this time he interrupted her after four seconds. Two of the F. panelists at this point called him by name twice, in what appeared to be an attempt to open a space to speak for the F Q’er. He ignored both F. panelists and took another two minute and 18 second speaking turn. This M panelist interrupted the speaking turn of an additional F Qer later in the session, and he also interrupted the speaking turn of one of the F panelists in her response to a Qer.

Janet astutely remarked about this exchange:

One striking observation is that the male panelists who in their presentations most explicitly and frequently remarked upon their commitment to left-wing and critical theory stood out in the nature of their interactions with female questioners and co-presenters. They interrupted women, negatively assessed female contributions, and seemed unwilling to engage with them, instead taking long speaking turns that were irrelevant to the points earlier made by women speakers. This sample is far too small to suggest that male academics whose presentations prominently reference their commitments to left-wing political theory are more likely to discursively bully women academics. . . However, it does suggest that merely having an academic understanding of power, privilege, and hegemony is not sufficient to counter the tendencies of some male academics to utilize their discursive privileges to silence and discipline women in the academy even today.

But I digress (thanks for indulging me in this little exorcism; who hasn’t interacted with a chauvinist brute at a conference from time to time?) The point is that we must cultivate enough love in our hearts to fight two simultaneous wars. The short-term fix for the prison nutrition crisis is reasonable pricing at the canteen, because people must have access to something comforting and not torturous to eat. The long-term fix must acknowledge that even a 35% markup is an exploitation; canteen foods are goods that currently have no viable alternative. Incarcerated people can’t choose not to eat them, because the default option is inedible. Consequently, for people who want to eat what their palates recognize as food–100% of the prison population–the canteen has a monopoly, and the markup cannot be avoided. If canteens want to make a profit, improving prison food is the way to go; high pricing for luxury items is fair only if they are truly luxury items, not essentials.

The problem of short-term versus long-term goals is a mainstay in social justice struggles. I see it again and again. During COVID-19, as we describe in Chapter 4 of FESTER, activists had to tackle the trade-off between the short-term struggle to make vaccines accessible and increase vaccine acceptance (short-term life-saving measure) and the long-term struggle to save lives from pandemics and other diseases through population reductions (the only viable long-term solution to the prison disease problem.) The challenge was that the vaccines provided courts and politicians respite from the pressing questions of overcrowding, and were universally used as an excuse not to release nearly enough people.

Similarly, I would like to believe that we all want to eradicate rape culture, and that we all know that is a long-term struggle and a worthy one. At the same time, I would really love it if nobody got raped tonight (a short-term struggle.) For that reason, I advocate sensible behavior and caution: self defense classes, a buddy system, and a lot of judgment and circumspection around any situation involving alcohol. Long-term activists might bristle against this advice because it places the responsibility for rape prevention on the putative victims. This, I’m sorry to say, is nonsense; if you are assaulted it is not your fault! it is the fault of your assailant. And at the same time, we do not live in a world devoid of bad people, and if you get drunk or put yourself in vulnerable positions you are taking a risk that bad people will exploit the situation and do bad things to you.

Want another one? When we voted on death penalty abolition, activists argued it would only entrench life without parole, which was “the other death penalty.” Getting rid of the death penalty was a short-term struggle; getting rid of extreme incarceration, including life without parole, would be a long-term struggle. In response, I wrote this:

Unfortunately, the struggle against life without parole cannot begin until we win the struggle against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and supported by a coalition. As I explain in Cheap on Crime, incrementalism produced the considerable reforms that occurred since 2008, and this one will be no exception.

The prison food struggle exhibits the same characteristics, and I think this requires a dialectic approach. I fully support the fight to reduce markups today, and at the same time I support continuing to fight for a world in which the food one is supposedly getting for free somewhat dulls the necessity for markup reductions. The problem, as we see with prison disease prevention and with rape prevention, is that sometimes short-term and long-term struggles can get in each other’s way. In those situations, I recommend thinking about the viability of the long-term goal and operating accordingly.

A New Life for Death Row

“Of what shall a living man complain, each man for his sins?” (Lamentations 3:39).
“Of what shall a living man complain?” – it is sufficient for him that he is alive. Rabbi Levi said: The Holy One blessed be He said: Your life is in My hands, yet you complain? Rabbi Huna said: Let him stand like a mighty one, confess his sins, and not complain. Rabbi Berekhya said: Of what shall he complain about the One who gives life to the worlds? If he seeks to complain, it should be each man for his sins.

Eikhah Rabbah 3: 13

There’s a superb story in this morning’s Guardian by Sam Levin about what Gov. Newsom’s Quentin “Scandinavization” means for the people on death row. Levin had incredible access and interviewed some fascinating people, whose voices we almost never see in print: the people on death row themselves, who are coming to terms with an unfathomable change in their lives and future prospects. It may surprise those of us unfamiliar with death row that the change is not universally celebrated, and that some people feel downright dread about the prospect of being surrounded by people and other stimuli. Some express serious concerns about being transferred away from their family and lawyers. Others are thrilled with the new experiences, including those of the natural world, even as they are reeling from them:

Leaving death row was immediately overwhelming. His group of about a dozen men, heading to a prison outside Los Angeles in July 2021, made a brief stop in the Central Valley, and as they stepped off of their bus, many of them froze in their tracks, he said.

For the first time in decades, they were standing on grass.

When they explained to a guard why they were so stunned, the officer allowed them to walk to an even lusher patch of grass nearby. “We just marveled at the softness and the smell of the grass and the earth. It was remarkable. The officer let us stand there and watch as we left our footprints in the grass. It’s just an amazing thing that people take for granted.”

At their new prison, Correll Thomas, 49, who had been on death row since 1999, experienced sensory overload: “On the yard, it’s just movement – people running laps at different speeds, people doing push-ups and exercising, someone’s throwing a football back and forth, people playing soccer while others are playing football. I was keeping my head on a swivel, trying to take in as much as I can, turning right to left every two seconds. On death row, we don’t have such fast movements.”

This stuff–the opening of possibilities for people whose life was entirely doomed–is huge. It’s a scenario I’m intimately familiar with, because of my work on members of the “Class of ’72” and their parole hearings. In 1972, the California Supreme Court decided People v. Anderson, which found the death penalty unconstitutional because of its barbarism. The decision would be publicly lambasted and later reversed, and the death penalty would return in 1978, but the people who were on death row at the time–including Charles Manson, Dennis Stanworth, and Sirhan Sirhan–had their sentences commuted. Life with parole was not an option at the time, and so, all these people, who were not supposed to see the light of day, started coming up for parole in the late 1970s.

All the parole hearings I’ve looked at from the early 1980s reflect a sense of great public panic about the prospect that these folks would receive what was considered the standard sentence for murder at the time–fifteen years or so at most–and the sense of urgency to keep them behind bars. I wouldn’t be surprised if the rapid and considerable increase in the average length of a sentence for murder was because of the concerns about disproportionate punishments in these high-profile cases. Which raises a really interesting question: if you were supposed to be executed and you’ve had a reversal of fortune, are you supposed to just be grateful and roll with the punches of absurdity at the parole board? If you’re then barred from taking any programming because of protective segregation or whatnot, should you just shut up and say thank you, because you weren’t going to receive any programming anyway? Or are we willing to revise our opinions about people’s fates over time.

My colleague Alessandro Corda drew my attention to a new and intriguing development in retributivism: Julian Roberts and Nethanel Dagan propose revising our notions of just deserts. Rather than a “static” assessment of severity, conducted and calcified at a particular point in time, they propose a “dynamic censure” model, which is flexible to changes in censure that occur as time passes. Here they explain this model in their own words:

According to the dynamic model, the amount of censure that an offender deserves for his crime may change in response to certain acts of the offender. Sensitivity to some post-offence and, particularly, post-sentence behaviour thereby becomes internal to assessments of (continuing) deservedness of punishment. According to what we term ‘ static ’ desert, post-offence conduct does not affect the seriousness of the crime or the offender ’ s culpability for the offence. Under a purely desert-based sentencing rationale, the focus of the sentence is, therefore, tightly drawn upon the culpable act or omission. The offender’s general lifestyle and his actions after the commission of the crime should carry no weight. They are not seen as affecting an offender ’ s culpability and are therefore excluded from the sentencing equation.

A responsive censure-based approach, however, necessarily expands the ambit of inquiry at sentencing. Penal censure engages the offender in a more clearly communicative manner. Andreas von Hirsch and Andrew Ashworth capture the essence of the concept in this way: ‘ The punishment conveys to the actor a certain critical normative message concerning his conduct … this message treats him as a moral agent – that is an agent capable of moral deliberation ’. These authors further note that ‘ When the offender is thus censured, a moral response on his part is deemed appropriate ’ , but then suggest that ‘ The censure, however, serves only to give the actor the opportunity to make such a response ’ . Yet does it make sense to provide offenders with an opportunity but to then remain oblivious to whether they avail themselves of the opportunity ? We argue that the censuring authority should be attentive to the fruits of the offender ’ s moral deliberation, as they may affect the degree of censure that is (or remains) appropriate.

Even more importantly, a responsive censure approach draws the sentence administration phase into the purview of desert-based punishment. Desert theory contains restraining arguments for the punitiveness of the state, such as the ‘ drowning out ’ argument, progressive loss of mitigation for repeat offenders, the principle of parsimony, and related decremental penal strategies. However, desert theory fails to offer any restraints on the severity of punishment after sentencing, no matter what offender does thereafter. The punishment phase itself – which can last for years and even decades, sometimes for an offender’s entire natural lifespan – creates a normative ‘ vacuum ’ for desert theory. In contrast, we argue that a responsive censure-based account offers an important resource for evaluating the degree of deserved punishment into the administration of the sentence.

Roberts J. & Dagan N. (2019). “The Evolution of Retributive Punishment: From Static Desert to Responsive/Dynamic Penal Censure.” In: A. du Bois-Pedain & A. Bottoms (eds.) Penal Censure: Engagements within and Beyond Desert Theory, pp. 141-159 Oxford: Hart.

One possible critique of Roberts and Dagan’s groundbreaking article is that they are doing nothing more than articulating utilitarian reasons, such as rehabilitation, within the retributive framework. To which one might answer: Why is that a bad thing? If a person manages to avail herself of rehabilitative options, isn’t that as much a statement of the rebalancing of good and evil in their case as it is of their future reentry prospects? I think one can make a case about both. This also helps explain why, for example, I feel differently about the release prospects of Sirhan Sirhan and Yigal Amir. The former has been in prison for 55 years, improved himself in countless ways, picked up far fewer disciplinary write-ups than one would expect for such a long incarceration, and expressed serious contrition and a change of heart about terrorism and about violence as a solution for the world’s problems. The latter has been inside less than 30 years, expresses no contrition whatsoever, and is pretty much the same person he was when he went in. Even from a purely retributive perspective it feels like one of these people is more deserving of freedom than the other.

I think it’s fair to read the Guardian piece with an open mind, without drawing comparisons between life on death row and life in general population. There is only one road in your life, and that’s the road your life ends up taking. Gratitude is always a wonderful thing to feel and express, but there is plenty to fix in general population and in the parole process as well. Where someone should or should not have ended up is far less important then where they actually are. Let’s fashion our policy to acclimating these folks to the yard accordingly.

How Machine Learning Improves Parole Research

Rabbi Levi son of Rabbi says…The Holy One said to Moshe “You will make a menorah of pure gold” (Shemot 25:31).

Moshe responded: how will we make it?

God responded: “It will be made of hammered work” (Shemot 25:31).

But Moshe struggled and went down and forgot how to make it.

He went up again and said: My Master, how do we make it? God said: “It will be made of hammered work” (Shemot 25:31).

But Moshe struggled and went down and forgot.

He went back up and said: My Master, I forgot it!

God showed Moshe, and Moshe still struggled. God said to him: “See and create” (Shemot 25:40), and took a menorah of fire and showed him how it was made.

But, it was still a struggle for Moshe!

The Holy One said to Moshe: Go to Betzalel, and he will make it.

Moshe told Betzalel, and he immediately made it. Moshe was amazed and said: How many times did the Holy One show me, and I still struggled to make it! But you, who never saw it, knew how to make it by yourself!

BaMidbar Rabah 15

One of the professional events I most look forward to each spring is the Virtual Workshop on Contemporary Parole–a fantastic two-day online gathering of a rigorous group of people producing exceptional work, which we’ve now held for the third year in a row. The papers are always superb and so is the camaraderie and commentary. I got to present a draft version of my new Sirhan Sirhan paper, as well as hear really terrific work on various aspects of parole: gang validation, racial proxies, young adulthood, and others. I can’t go into too much detail, because these are all works in progress and we’ll probably see polished versions of everything getting published soon enough. But one thing that stood out to me was the uptick in really interesting work utilizing machine learning.

I know next to nothing about machine learning and, like Moshe in the midrash above, I might be too old a dog to learn that particular trick. I mean, in the Sirhan paper, n=1. Thing is, the midrash really resonates with me because I, too, feel a lot like Moshe when I hear someone else talk about a fantastic skill they have and how they put it to good use. It looks like, despite God’s repeated tutorials, Moshe’s goldsmithing skills weren’t up to snuff. Thankfully, there were other Israelites with that particular skillset: Betzalel was a gifted goldsmith who made a spectacular menorah on the first try (this is why Israel’s fantastic art school is named after him.) While unable to emulate Betzalel’s feat, Moshe had acquired a basic understanding of the necessary artistry and workmanship, so he could appreciate why Betzalel’s finished product was of such high quality. In other words–I don’t employ machine learning in my own work, but I know enough about it to be amazed when I read a paper that uses it well.

To understand the promise of machine learning, let’s first talk about how we do parole research the old-skool way. A multivariate regression works much like the denouement in an Agatha Christie mystery novel. You know the drill: Poirot gathers all the usual suspects in a room and goes through a litany of their motivations, opportunities, debunked alibis, you name it. He eliminates them one by one until he can point to the culprits. The important point is that Poirot selects who goes into the parlor for that last scene: people get there by invitation, and Christie is careful to craft the scene so that it’s pretty much always a finite and manageable list of people. When I run a regression, I pretty much do the same: I think about the dependent variable–the phenomenon I’m trying to explain–and I try to come up with a list of the independent variables that might explain it. For example, if my determinate variable is a parole grant, I ask myself: Do people who are represented by a private attorney do better than people who are represented by a panel attorney? Do people whose hearings happen in the morning fare better than folks who are heard in the afternoon? If victims and/or prosecutors show up for the hearing, does that make a difference? Does the professional background of the commissioners matter? Do people in some prisons stand a better chance of being granted parole? You can tell that each of these assumptions has a certain logic behind it (you get what you pay for; people are more attentive and in a better mood when they are not tired or hungry; professional background goes into constructing people’s worldviews; some prisons have better rehabilitative offerings than others, which improves one’s case.) I put all of these “suspects” in a room (the regression equation,) run the numbers, and see which comes out significant.

One of the problems with this model is that regression models rarely offer a complete and exhaustive prediction of the phenomenon they try to predict. There is even a statistic, the r-square, that measures how much of the dependent variable is explained by the set of independent variables we coded for. But there could be many factors that play into a parole grant that cannot be adequately captured by the variables we identified. In other words, 21st century law enforcement doesn’t solve crime by putting twelve people in a parlor; if there is forensic evidence at the scene, it gets analyzed, plonked into giant databases, and could generate hits that are one-in-a-million, not one in twelve.

Enter machine learning. As we’re all now figuring out through our use of ChatGPT, artificial intelligence excels at digesting large amounts of text, identifying repetitive patterns, and throwing those patterns into a model. AI is intertextual in that it can assess the impact of any factor in the database on any other factor. As my colleague Kristen Bell and others explain in this paper, this allows the tool to mine parole transcripts for repeated words to get a sense of factors that would not be salient to us in a traditional regression. Moreover, the capacity of these tools is enormous, so one can feed the machine tens of thousands of cases and get a very powerful sense of what is going on. There are even tools like SuperLearner, which can apply multiple machine learning tools to a dataset, coming up with the best of several models. My colleagues Ryan Copus and Hannah Laqueur do exactly this.

Machine learning has many applications in criminal justice, as this excellent NIJ article explains. The critiques that are leveled on machine learning often revolve around its most common criminal justice use: predicting reoffending risk. As explained in this solid blog post, critics worry that any predictive analysis based on historical crime data will reflect (and thus reinforce) existing biases embedded in the criminal justice system, and perpetuate misconceptions and fears through the feedback loop of basic predictions on past decisionmaking. In other words, as my colleague Sandy Mayson argues, the problem is with the nature of prediction itself. You rely on a biased past, you get a biased future.

What researchers like Bell, Copus, Laqueur and others contribute is the potential of turning the use of the predictive tool on itself and using it not to predict the risk of those subjective to the system, but rather the factors that impact the decisions that the system itself makes. For example, if private attorneys do a better job than state-funded panel attorneys, wouldn’t we want to know this, and wouldn’t it be important to figure out exactly what it is about their performance that makes the difference in the outcome? Using AI can help identify, for example, terminology used by lawyers, thus giving us a sense of the “flavor” of representation that parole candidates receive.

When done well, this technique has fantastic potential to teach us about the hidden nooks and crannies of the parole hearing machine that we would not be able to flag on our own. You don’t have to be an AI whiz to understand and appreciate machine learning research; you just have to understand what it does and appreciate its strengths and weaknesses.

Newsom Announces Quentin “Scandinavian” Revamp

Big news regarding San Quentin today: Gov. Newsom announced a complete reorganization of San Quentin as a rehabilitation and training center, along the lines of Scandinavian prisons. Nigel Duara of CalMatters reports:

Gov. Gavin Newsom is expected to say that the state will spend $20 million to begin the reorganization of San Quentin State Prison from an institution that houses 3,300 incarcerated people at a high-security site on the San Francisco Bay to a “center for innovation focused on education, rehabilitation and breaking cycles of crime.”  

The new plan would complete the closing of death row and shut a Prison Industry Authority warehouse. The facility would be renamed the San Quentin Rehabilitation Center. 

Some of the larger questions about the reorganization will remain unanswered until the prison’s advisory committee decides them, including which imprisoned people are eligible for the rehabilitation center. 

The new facility will also offer job training, according to the governor’s office, though the advisory committee will have to decide for which jobs inmates will be trained. In prisons in other states that emphasize vocational training, the jobs include plumbing and long-haul trucking. 

The plan for the new facility is modeled on prisons in Scandinavian countries, including Norway, which significantly improved its rate of recidivism from 60%-70% in the 1980s to about 20% today when it began to allow prisoners more freedom and focused its prisons on rehabilitation. 

In those prisons, incarcerated people can wear their own clothes, cook their own food and have relative freedom of movement within the prison walls. That model has taken root in states as disparate as deep-blue Connecticut and deep-red North Dakota. 

Drawing inspiration from Scandinavian facilities is nothing new, and in fact, continues a trend that AMEND SF have begun in partnership with Norwegian prisons. Here’s an interesting report on the CDCR website about a trip some custodial staff took to Norway and what they learned from it. They’ve also brought Norwegian custodial staff to CDCR and to prisons in Washington State to inspire improvements in correctional culture.

It’s important to keep in mind that not all is peachy in Scandinavian criminal justice. In her book Nordic Nationalism, Vanessa Barker highlights the price of preserving a humanist welfare state–gatekeeping against immigrants. Keramet Reiter, Lori Sexton and Jennifer Sumner also wonder about the extent to which the humane and rehabilitative treatment of prisoners in Denmark can be imported to the United States given the difference in political cultures. And, in their fieldwork, they ask and answer some complicated questions about the Danish prison experience:

First, we find that harsh punishment can and does exist in Danish prisons.They are not, after all, uniformly humane; there are scratches in the “polished glass” and certainly reasons to resent the system. Second, the “responsibilization,”which Larson describes (and which, we argue, is fundamental to modern incarceration), can only be enacted through staff and institutional frameworks, which necessarily impose limits on individual freedoms. The particular ways that prisoners and staff describe the negotiation of limits—in the context of both open and closed prisons in Denmark—sheds light on the shortcomings of ScandinavianExceptionalism as both a substantive explanatory model as an ideological agenda that other countries might emulate.

A possible answer to this might be–duh, it’s prison. If it takes you out of your ordinary life against your will, it will involve *some* form of suffering. But I think there’s something else we have to ask ourselves.

I suspect that the energy behind the proposed Quentin overhaul–which, if it comes to fruition, will be overall a welcome development–has a lot to do with the Quentin COVID-19 disaster that we cover in FESTER. Yes, the physical plant at Quentin requires special attention because it is dilapidated and almost 200 years old, and basically allows disease to run rampant. But at the same time, it was no wonder that when CDCR tried to address COVID with transfer policies many people fretted and objected. As we explain in the book, Quentin benefits immensely from its location in the Bay Area, near nonprofits, universities, and a plethora of progressive do-gooders. Which means that, if you want to make parole, this is the place that will offer you the kind of programming and positive reports (“chronos”) that the parole board wants to see. People from all over the state jostle to try and get to Quentin. Investing even more in making Quentin a jewel of enlightened incarceration will make these disparities even worse.

This is not a good reason, of course, not to change things. But it is a good reason to rethink how things are going in the system as a whole. Given what we know about the practicality of population reduction–namely, that you could release 50% of CA’s prison population tomorrow without an appreciable rise in crime if the political good will was there–shouldn’t we try to spread the love toward Susanville and Central Valley, where lifers are parched for programming? And wouldn’t it do wonders for everything prison related–health-care, rehabilitation, the works–if there were overall fewer people in the system? If each prison, individually, were populated to 50% of design capacity, and this were the norm, wouldn’t that free up resources and professional attention to invest in Denmark-izing other prisons beyond the Bay Area?

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.

More Good News: Bonta Drops State Appeal in Quentin Cases

While I was focus on witness prep for the #SmithfieldTrial, my friend Allison Villegas shared a piece of good news: on Thursday, the Attorney General filed a notice that he is dropping the state’s appeal in In re Hall et al.

To recap what happened: Since the outbreak at San Quentin erupted in late May/early June 2020, hundreds of people incarcerated there litigated, asking to be delivered from the environment of infection, hospitalization, fear, misinformation, neglect, ineptitude, and death that characterized the prison’s response to the outbreak. Our litigation led to the landmark decision In re Von Staich, in which the Court of Appeal ordered that the population at Quentin be reduced to 50% of design capacity (as the physician group AMEND SF recommended.) We later had a reversal of fortune at the hands of the CA Supreme Court, which ordered an evidentiary hearing (a year after the fact, but waves of COVID continued to ravage the prison.) At the evidentiary hearing, things looked even bleaker for the states, as witnesses testifying from Quentin via Zoom revealed layer after layer of what they suffered at the hands of nincompoops, COVID denialists, and a prison administrative system in which the custodial and the medical sides have no understanding of each other. In October 2021, Judge Howard issued a tentative ruling in which he accepted every claim we made about the horrific and unconstitutional abuse that the men were subjected to, and wrote that the Eighth Amendment was violated in no uncertain terms, but… did not give us any relief, because presumably the whole case was “moot” as “the vaccine changed the game for COVID-19 at San Quentin. With a nearly 80 percent inmate vaccination rate, COVID-19 has all but disappeared from inside the prison. Although COVID-19 remains a risk within San Quentin, it appears at present no more than, and perhaps even less than, the risk faced by the community at large.”

This was, in itself, outrageous, and not exactly true even when it was written: the Delta variant began making its way through the prison. Shortly after, we saw the shortsightedness of not getting relief when Omicron swept through the system. To add insult to injury, while the petitioners chose not to appeal the decision (a choice I still feel quite crummy about), a surprising thing happened: the state appealed, even though we actually received no relief!

Back in summer 2020, Rob Bonta, then an Assemblymember from San Mateo, stood shoulder to shoulder with us at the press conference, speaking so movingly about the preventable disaster at Quentin that he was quoted in the guardian. But by March 2021, when he was appointed Attorney General, he apparently forgot all this. At the time, thinking the same person would keep the same conscience, I made a list of all the things he could do to help, and I confess that “refraining from appealing a decision in which the prisoners got no relief only to save the honor of CDCR at the taxpayers’ expense” was not something that even occurred to me needed to be said! But lo and behold, the AG office did appeal the ruling, God knows why, which prompted me to ask what I still think is an excellent question: What, actually, is the Attorney General’s job? Does the Attorney General work for all Californians all the time–including Californians behind bars–or does he become a hired gun when he’s in litigation? Does it make sense to posture as a science-forward, vaccine-forward AG when the time comes to require vaccines in schools, while at the same time becoming the Tom Hagan of the prison guard’s union when they don’t want a vaccine mandate because they are “his client”?

Thursday’s decision to pull this tasteless, tone-deft, and frankly, disgusting appeal, comes two years too late, when it doesn’t make news or waves, but it at least gives back a modicum of decency to an office that showed absolutely none throughout this entire crisis. We write extensively about the AG’s role in curtailing releases and supporting COVID denialists in uniform in Chapter 7 of #FESTER.

How to Talk to Our Kids About Prison

Today we took our five-year-old son to visit Alcatraz. We had been talking about prisons for a while, and I’ve been telling him some of what we have been doing on COVID-19 in prisons, and we had the opportunity to make a family trip of it with a young relative who is visiting.

In the days before our trip I thought to myself – what a good dilemma to have, whether and how to expose my kid to the realities of incarceration. Many, many children nationwide (almost 200,000 in California alone) have no choice but to know all about the prison or jail experience, because a parent, a sibling, or another loved one is behind bars. I still remember the haunting opening scene from Brett Story’s film The Prison in Twelve Landscapes, in which we see mothers and young kids aboard a bus that drives all night to a remote prison. Megan Comfort’s book Doing Time Together tells the stories of the families, and Kay Levine and Volkan Topalli examine criminal trials attended by the defendants’ children as intergenerational punishment.

With my own fortunate son I’ve used two wonderful books, which do not sugarcoat the prison experience, but mediate it in age-appropriate ways. Matt de la Peña and Christian Robinson’s Milo Imagines the World tells the story of a young boy and his older sister as they ride the New York City Subway on their way to visit their incarcerated mother. It’s a very moving and empathetic book, offering empathy and connection. We have also read Emma Bland Smith and John Ely’s The Gardener of Alcatraz, which recounts the true story of Elliot Michener, who was incarcerated on The Rock in the 1950s. We also plan to read Mariame Kaba’s Missing Daddy and watch the special Sesame Street episode about children of incarcerated parents.

While we walked around the prison, we talked about the realities of living there. We compared the size of the cells to the rooms in our house, and talked about what it would be like to live in a room with no toys and very little furniture. When we got to the visitation block, we talked about kids who get to see their parents only through a glass; and when we got to the glum exercise yard, we talked about how much we value time outside in the natural world. My son walked away from the experience feeling that prison was not a good place to be, and that it was important to be kind to everyone and offer them hope, even if they’ve done bad things in the past.

Prison-Community Transmissivity Model: COVID-19 Management in Prisons Would Have Prevented Almost 12,000 Deaths in CA

It’s been a very busy week, but an accomplished one: Chad Goerzen and I finished writing FESTER and sent the manuscript off to University of California Press. We are very proud of the book and look forward to the reviews, which are sure to make it even stronger.

Among the many things we do in this book is a model of prison-community transmissivity. Because the correlation between prison and community cases (which we were tracking here throughout the pandemic) is bidirectional, we rely on the Bradford Hill factors for causal inference in epidemiology. Among the tools we use is a counterfactual model, in which we create concentric rings around each of the following: every correctional facility (e.g., San Quentin); every surrounding community (e.g., Marin County); and the wider community beyond. We can add and subtract rings to show the effect of infections in one ring on the others.

Our model shows that, due to the extraordinarily high prevalence of COVID-19 cases inside CDCR facilities, particularly during the year 2020, these facilities had a large influence on their regions, far more than their relatively small population and isolation would suggest. In Marin County, we predict that avoiding the Quentin outbreaks would have prevented 58 deaths, 22% of the COVID-19 deaths; and throughout the states, without the outbreaks in CDCR facilities, we could have prevented 11,974 deaths, or 18.5% of the COVID-19 deaths in California for this period. Furthermore, the outbreaks in San Quentin and CDCR occurred before vaccinations were publicly available and before effective treatments for COVID-19 were developed, making them particularly high impact on mortality.

In the next few weeks, I will give a few talks in which I’ll elaborate on the model and on the other tools we used to expose the experience and roots of what we consider a very serious human rights crime. On September 13 I’m giving a virtual talk at the University of Arizona, and on October 10 an in-person talk at UC Berkeley’s Center for the Study of Law & Society. I’ll advertise these via the Events tab on the blog and would love to see my readers in the audience to discuss what we can learn from this disaster.

In Memoriam: Leslie Sebba

It’s been more than a week since we lost Leslie Sebba, my beloved mentor and teacher at Hebrew University’s Institute of Criminology, and only now have I found the time to write. I spent the entire week at the Law and Society Association’s Annual Meeting in Lisbon, amidst a heatwave, and throughout the week my heart was heavy with the palpable absence of Leslie, who attended the meeting almost every year as a member of our Punishment and Society CRN. And at the same time, there was the uncanny feeling that Leslie was there, because the conversation revolved around ideas that he helped develop and interrogate throughout his professional life. We paid tribute to Leslie at some of the panels, though I was restless with grief because I was unable to attend the funeral and the Shiv’a and tell his family a bit about how inspiring, kind, and special he was.

My first encounter with Leslie’s work was as a law student at HUJI, where I took his course “rights of prisoners and residents of closed institutions.” HUJI’s law curriculum, at the time, was very German, in the sense that there wasn’t a lot of critical theory and empiricism; we sat in big hallways, 150 or even 300 of us, and were essentially lectured at by some of the era’s civil rights luminaries (Ruthie Gavison, Mota Kremnitzer, David Kretzmer.) Occasionally, they asked us a question; sometimes I managed to shine, which made me feel an inch taller, but I wouldn’t go as far as to actually ask a question myself, or (heaven forbid) bring myself to attend office hours. And here was something completely different: an elective course taught by a gentle, absentminded soul, a kind smile perpetually on his lips, a preemptive forgiveness for student laziness or poor behavior, and a gentle door always open for those interested in learning more. The whole thing was bathed in a quiet, gentlemanlike, and at the same time fervent care for the human rights of the most vulnerable people in society, and in big part planted the seed for my later decision to change affiliations and move over to the criminology side of the building. No longer a law student at a formalist, traditional institution, but rather a grad student at a small, rigorous empirical department, I proceeded to take more classes with Leslie throughout my master’s, and his penology course, in particular, was an exquisite tour de force. Leslie was one of the most knowledgeable and well-read people I ever met. It is thanks to him that my education included not just the American classics (though they were certainly there – the entire Johnston, Savitz, and Wolfgang prison canon) but also a lot of European and Pacific materials. I still credit my unorthodox approach to the American abolitionism movement to the fact that, thanks to Leslie, I’m well read on Scandinavian abolitionism from the 1970s. And it is greatly thanks to him that my own students learn a lot about New Zealand’s approach to restorative circles; he had us read primary research about that system when it was hot off the press.

Leslie’s own work, which he assigned with a light, humble hand (he could’ve easily had us read everything he wrote, which was just so, so good) touched on many of these subjects that came to interest me. For one thing, he was a true pioneer of victimology. While his HUJI colleague Menachem Amir published an extremely controversial book examining the concept of “victim precipitation” in sexual assault (and was skewered by feminists), Leslie’s interest in victims was far more humane. In his groundbreaking book Third Parties he tries to piece together the various theoretical legal and criminological strands underpinning the victims’ rights revolution of the 1980s and 1990s. Now, it all seems super lucid and obvious, but when it had just come out in 1996 it was a novel and well balanced effort to critically assess how much of the “victim bills of rights” that were cropping up like mushrooms after the rain was empty rhetoric and how much it would actually improve the lot of victims, especially of violent crime. His pioneering contributions to victimology were also in, basically, making room for the field as its own criminological school; he was the founding editor of the International Review of Victimology and taught a fascinating and popular course on the subject.

Third Parties was emblematic of Leslie’s approach, which straddled the worlds of law and criminology. Leslie possessed the rare and useful mix of someone who could analyze doctrine with unrivaled clarity and sharpness and, at the same time, entertain curiosity about how it plays out in the field and open-mindedly examine critiques. His vast international interests meant that he was preoccupied with international and comparative questions quite a bit; he looked at the worrisome trend of importing American punitivism such as Third Strikes laws and the notion of solitary confinement as an international human rights crime. He also had a crystal clear and lucid approach to Israeli penology, tracing the arc of punitivism back to the amnesties of the 1950s and constantly making the tie between domestic crime control and the Israeli-Palestinian conflict.

Leslie, who had a keen nose for bright and innovative minds like his own, introduced us to the writings of Malcolm Feeley, Jonathan Simon, and David Garland. It was thanks to his gentle encouragement and prodding that I mustered the cojones to attend a concentrated class, in English, from a visiting Malcolm Feeley, leading to intellectual connections that would chart the rest of my professional life. Leslie saw something in me, even as I was a night school grad student in a special master’s program for cops and prison guards (the only hours I could make while working full time as a military public defender), and it is no exaggeration to say that, if I’ve achieved a modicum of success, it is truly thanks to him. While still at the Institute, I was his research assistant as well as his teaching assistant; I was green behind the ears and truly knew nothing, and he gave me responsibilities and kudos far beyond what someone at my age and experience level merited.

Leslie also exposed me to the idea that first-rate theoretical games are fun, but they are completely meaningless if they don’t improve the lives of real people on the ground. The first project with which I helped him was a collaboration with Israel’s Prisoner Rehabilitation Authority, which had just been founded at the time. We were looking for ways to enshrine the right to meaningful labor in Israeli law. Leslie’s other work, on children’s rights, was also done in partnerships, and he was a valued and respected participant and member in initiatives of human rights organizations ACRI and Adallah.

What is truly magical about Leslie the person is that all these incredible world-improving accomplishments lived within a humble, gentle, self-effacing soul. Leslie was never driven by his ego; he supported and trumpeted his students and collaborators, worked well in groups, helped organize panels, and was happy to sit in the audience when a junior collaborator presented his work. His gentle, fatherly mannerisms belied a keen mind always devoted to improving justice. And he took great pleasure in his work – while lecturing, he always seemed to be having an interesting, enriching conversation within his own mind (it was not rare for him to pose a question and, in the same breath, answer it in two contradictory ways with a bemused face.) A great light has dimmed and the world of law, criminology, and criminal justice is impoverished for his departure. What is remembered, lives.