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.

AB 2730 Proposes a Prison-Release Continuum

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

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

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

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

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

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

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

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

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

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

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

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

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

June 2022 Election: Blog Endorsements

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

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

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

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

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

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

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

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

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

Ninth Circuit Strikes Down Guard Vaccine Mandate

In an unfortunate, albeit not unexpected, decision, the Ninth Circuit reversed Judge Tigar’s vaccine mandate. You can read the decision in full here.

The reasons, in short, are as follows: the judges considered CDCR’s efforts in “making vaccines and booster doses available to prisoners and correctional staff, enacting policies to encourage and facilitate staff and prisoner vaccination, requiring staff to wear personal protective equipment, and ensuring unvaccinated staff members regularly test for COVID-19. . . symptom screening for all individuals entering the prisons; enhanced cleaning in the facilities; adopting an outbreak action plan; upgrading ventilation; establishing quarantine protocols for medically vulnerable patients; and testing, masking, and physical distancing among inmates” sufficiently ameliorative to reduce their misdeed below the threshold for an Eighth Amendment violation and “[a] decision to adopt an approach that is not the most medically efficacious does not itself establish deliberate indifference.”

Chapter 6 of our book, which discusses COVID prison litigation, is called “The House Always Wins.” This decision is a textbook example of the pathologies of prison litigation and why it fails to address problems in real time. It doesn’t even matter whether the litigation is happening on the federal or state level, because the basic problems are the same: the courts focus on the prison setting more than on the law, continuously contort the Eighth Amendment to defend prison administration, and ignore the basic regulatory requirements in the free world, assuming the prison is so different that they don’t apply. In addition, there is an interagency “game of chicken” that stalemates any efforts at providing timely help during an emergency: the natural actors that should quickly intervene in such situations are the governor and the prison authorities. Since neither has any incentive to do anything helpful, and since the people entrusted with the immediate care of the inmates are in a union that has been completely politically captured, the courts have to make noises of stepping in, but dragging their feet means that dynamic situations change and transform long before they have a chance to intervene.

I think that what happened with this Ninth Circuit decision mirrors what happened with the San Quentin litigation. Recall that, back in November, Judge Howard found that the botched transfer from Chino constituted an Eighth Amendment violation, but the vaccines changed the game and rendered relief moot. I suspect that the Ninth Circuit judges were affected by the fact that, due to the new variants and new endemic realities of COVID, the diminishing returns of vaccination mean that the urgency behind vaccinating the guards (which had already begun to fade by the time Judge Tigar decided to act) is far less salient than it was in winter 2021, when their opposition to vaccination was at its strongest and their compliance could have made a real difference. In other words, this is a classic demonstration of how justice delayed is justice denied.

The other issue is the inherent limitation of litigation, which is backwards-looking. In the Quentin case, Judge Howard explicitly said that he did not look to the next variant or to the next pandemic; his job was just to assess the violations of the past. As we see again in the Plata case, this fundamental trait of litigation is unfortunate for dynamic situations because, as Wes Venteicher reports in this morning’s SacBee:

Now another wave could be coming. The corrections depnartment reported its largest week-over-week increase in new cases, measured as a percentage, in the last week of April. New cases increased by 820%, reaching 322 infections from the prior week’s low figure of 35. About 97,000 people are incarcerated in the state’s 34 prisons. The biggest increases in the last two weeks have been at San Quentin State Prison, Pelican Bay State Prison, California Health Care Facility in Stockton, California Medical Facility in Vacaville and Ironwood State Prison in the southeast corner of the state, according to a corrections department infection tracker.

Ultimately, the only way to learn lessons for the next variant, the next pandemic, the next health crisis, is to conclude the obvious: it is impossible to save lives and provide decent healthcare to 100,000 people in California if the people entrusted with their care do not prioritize their wellbeing. Given that we do not seem to be able to attract people who have the prisoners’ best interests in mind to fulfill custodial positions, from the top, through the unions, to the rank-and-file, the only tenable conclusion is that we cannot and should not incarcerate nearly as many people as we do now. This will be the main conclusion of Fester, though we do make many other recommendations.

The House Always Wins: Quasi-Judicial Immunity in the Valley Fever Prison Case

This morning at the Western Society of Criminology Annual Meeting I’ll present Chapter 6 of our upcoming book FESTER, which I’ve tentatively titled The House Always Wins. In this chapter we show how, in both federal and state litigation for COVID-19 healthcare, prison authorities and the guards’ union run jurisdictional circles around the prisoners and their advocates, playing forum battles and jurisdictional whack-a-mole. This morning brought in its wings a fresh example of the same situation: on February 1, Judge Tigar (who also presides over the COVID class action Plata v. Newsom) granted the current and former federal receivers of the prison healthcare system (Clark Kelso and Robert Sillen) a motion to dismiss a class action involving the valley fever outbreak of the mid-2000s. Sillen was appointed Receiver on February 14, 2006, effective April 17, 2006, and was fired by Judge Henderson after two years (it later turned out that Sillen and his employees were overpaid to the tune of hundreds of thousands of dollars.) Kelso was appointed his successor on January 23, 2008, effectively immediately, and is still occupying that position.

The installment of the receivership created an uneasy division of labor between CDCR–a state department–and the federally-appointed Receiver, who was now vested with the authority to oversee and manage healthcare in prisons as well as with the powers of an officer of the (federal) court. Here is what happened next, which Judge Tigar quotes directly from the Ninth Circuit decision:

In 2005, California prison officials noticed a “significant increase” in the number of Valley Fever cases among prisoners. The federal Receiver asked the California Department of Health Services to investigate the outbreak at Pleasant Valley State Prison, the prison with the highest infection rate. After its investigation, the Department of Health Services issued a report in January 2007. It stated that Pleasant Valley State Prison had 166 Valley Fever infections in 2005, including 29 hospitalizations and four deaths. The infection rate inside the prison was 38 times higher than in the nearby town and 600 times higher than in the surrounding county. According to the report, “the risk for extrapulmonary complications [was] increased for persons of African or Filipino descent, but the risk [was] even higher for heavily immunosuppressed patients.” The report then explained that physically removing heavily immunosuppressed patients from the affected area “would be the most effective method to decrease risk.” The report also recommended ways to reduce the amount of dust at the prisons. After receiving the health department’s recommendations, the Receiver convened its own committee. In June 2007, the Receiver’s committee made recommendations that were similar to those from the health department.

In response, a statewide exclusion policy went into effect in November 2007. The inmates who were “most susceptible to developing severe or disseminated cocci” would be moved from prisons in the Central Valley or not housed there in the first place. The prisons used six clinical criteria to identify which inmates were most likely to die from Valley Fever: “(a) All identified HIV infected inmate patients; (b) History of lymphoma; (c) Status post solid organ transplant; (d) Chronic inmmunosuppressive [sic] therapy (e.g. severe rheumatoid arthritis); (e) Moderate to severe Chronic Obstructive Pulmonary Disease (COPD) requiring ongoing intermittent or continuous oxygen therapy; and Inmate-patients with cancer on chemotherapy.” Inmates were not excluded from the Central Valley prisons based on race. The Receiver refined the exclusion policy in 2010 and created a list of “inmates who [were] at institutions within the Valley Fever hyperendemic area that [needed] to be transferred out.” The record does not indicate that the 2010 policy excluded inmates from the outbreak prisons based on race.

In April 2012, the prison system’s own healthcare services released a report examining Valley Fever in prisons. The report concluded that despite the “education of staff and inmates” and the “exclusion of immunocompromised inmates,” there had been “no decrease in cocci rates.” The authors found that Pleasant Valley State Prison inmates were still much more likely to contract Valley Fever than citizens of the surrounding county. From 2006 to 2010, 7.01% of inmates at Pleasant Valley State Prison and 1.33% of inmates at Avenal State Prison were infected. By comparison, the highest countywide infection rate was 0.135%, and the statewide rate was just 0.007%. From 2006 to 2011, 36 inmates in the Central Valley prisons died from Valley Fever. Prison healthcare services also found that male African-American inmates were twice as likely to die as other inmates. Each year, about 29% of the male inmates in California are African-American, but 50% of the inmates who developed disseminated cocci between 2010 and 2012 were African-American, and 71% of the inmates who died from Valley Fever between 2006 and 2011 were African-American.

Following this report, the Receiver issued another exclusion policy –one that would effectively suspend the transfer of African-American and diabetic inmates to the Central Valley prisons. The state objected, but the district court ordered the prisons to comply with the new exclusion policy.

Hines v. Youseff, 914 F.3d 1218, 1224-25 (9th Cir. 2019)

In Hines, incarcerated people infected with valley fever attempted to sue CDCR officials for mismanaging the outbreak; the lawsuit failed due to qualified immunity. The officials prevailed because they followed the orders of the Receiver. This week’s decision dismissed a similar lawsuit against the Receiver.

The valley fever victims argued, on the merits, that the Receivers were neglectful in their preventative approach; the Receivers countered that, as officers of the court, they have quasi-judicial immunity. The plaintiffs attempted a sophisticated attack on this argument, claiming that the Receivers should not have directed CDCR’s preventative policies, and that their mandate was limited to providing medical care. The argument failed: Judge Tigar found that “prevention of disease is, and always has been, within the Receivers’ jurisdiction.”

Ironically, it is precisely this wide mandate that aided the Receivers’ success in dismissing the case. Because they were acting within their authority, writes Judge Tigar, and because said authority is quasi judicial, they can enjoy immunity. Weirdly, “Plaintiffs do not argue that the other exception to judicial immunity – for actions “not taken in the judge’s judicial capacity” – applies here”—I think that’s precisely what I would have argued in this case, as Sillen and Kelso were acting as medical officials rather than judicial ones.

If this seems overly technical, it’s because it is. As I observe in chapter 6 of FESTER (more to come on that in the next few days), the particular gymnastics of each courtroom failure are less important (albeit technically interesting.) What’s important to observe is that the Byzantine nature of California’s correctional healthcare system, which, ironically, stems from the effort to create patchwork remedies for the system’s own ineptitude, then stands in the way of recourse for this very ineptitude.

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Hat tip to Allison Villegas, who sent me this decision.

Impending Closure of Death Row

A couple of days ago I spoke on KCRW about the announced closure of death row at San Quentin. Here’s the story as it appeared on the KCRW website, followed by some additional thoughts from me:

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Governor Gavin Newsom announced this week a plan to shut down the notorious death row at San Quentin State Prison. The plan would move the prison’s most condemned inmates to other maximum security prisons over the next two years, in an effort to create what Newsom calls a “positive and healing environment” at the Northern California prison. 

San Quentin has the largest death row population in the nation — nearly 700 total. And while California hasn’t executed anyone in more than 15 years, Newsom also signed an executive order imposing a moratorium on executions in 2019. 

The facility was originally a ship, and in the mid 19th century, prisoners themselves built the prison, explains UC Hastings law professor Hadar Aviram. “It’s a dilapidated facility, there are no solid doors, there are bars on the doors, ventilation is terrible. So it’s a facility that was built for 19th century standards. And just because of inertia, we are still incarcerating people in the same condition.”

She points out that the facility is located in a geographically beautiful area surrounded by expensive real estate. “In many ways, [it’s] a waste to have a prison there where people don’t enjoy the seaview and are incarcerated in terrible conditions.”

However, she notes that people currently aren’t being executed due to the moratorium, and since 1978, the state executed only 13 people, and more than 100 died of natural causes during that time. 

“Just during this moratorium that Governor Newsom introduced, more people died on death row from COVID during the horrific outbreak at Quentin than we executed since 1978. So I’m sure that is giving some pause about the utility of the exercise of keeping people there,” Aviram says. 

Because San Quentin is so old, inmates there suffered from coronavirus more than those at modern and well-ventilated facilities like the state prison at Corcoran, she says. Plus, it houses lots of people who are aging and infirm, who were thus already immuno-compromised and vulnerable to the virus.  

Emotional and political reasons may be driving votes

California voters approved a ballot measure in 2016 to speed up executions, and the measure included a provision allowing death row inmates to be relocated to other prisons where they could work and pay restitution to their victims.

Aviram says over the years, there have been several attempts to abolish the death penalty through voter initiaties, but they always lost by small majorities. 

Through inquiries, polls, and conversations with people, she says she realizes: “People are voting for the death penalty largely for emotional, sentimental, political reasons. They are more in love with a fantasy of having a sentence that’s reserved for the worst of the worst, and can deter people.” 

She describes death row in California as “basically a more expensive version of life without parole that costs us $150 million a year.”

She adds, “It’s probably a good idea to think of the death penalty as undergoing the same process as some of the people who have been sentenced to death, which is rather than an execution, the death penalty is going to die a slow natural death itself, just from disuse and from this gradual dismantling.” 

However, some district attorneys continue asking for the death penalty in capital cases, though the state doesn’t execute people anymore, as they hope the governor might revive the policy, Aviram points out. However, she says, “I think that because of the national trends … it is extremely unlikely that it’s going to come back.”

Newsom’s reimagining of prisons and what’s missing

When the governor says a “positive and healing environment,” Aviram says this means a life where inmates find meaning and usefulness (do some jobs). 

But this doesn’t completely eliminate the death penalty, she says. “Because there is still one very big and expensive piece of the death penalty that is still with us — and that’s death penalty litigation.”

“We have this facility where people are sentenced to death and are still litigating themselves post-conviction, and that litigation is actually the lion’s share of the expense. So it’s only really going to go away if and when all of those sentences are commuted, and these people are no longer litigating their death sentences at the state’s expense. So that is the missing piece.”

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Some more thoughts: First, it’s been interesting to follow the fanciful, but often idle, talk about the real estate potential of Quentin. Readers who have been to Quentin know how beautiful the village is and how glorious the waterfront vistas are. There are plans to close four prisons, but no definite plans for Quentin. Any prospects of selling that land are to be viewed with ambivalence. On one hand, what a waste to have a prison so close to the water, without windows to enjoy the view – a place that combines suffering with beauty. On the other hand, it would be a terrible loss for the folks housed at Quentin, dilapidated and dangerous as it is, to be strewn about prisons in remote locations in the state, far away from the progressive energy of volunteers and rehabilitative programming richness of the Bay Area that people so desperately need for making parole. In my wildest fantasies, we close Quentin down, transform it into a resort/retreat for nonviolent communication and community healing, rebuild with huge ceiling-to-floor glass walls overlooking the ocean and gorgeous walking trails, and offer all the men well-paying jobs running the resort.

About the money: I predicted much of this demise, based on national trends, in Cheap on Crime, and still think that the deep decline of the death penalty is in no small part due to the financial crisis of 2008. The fact that we still spend a sizable pile of money on death row, despite the moratorium, is not surprising, and shows that the disingenuous efforts to save money via Prop 66 didn’t fulfill their purported purpose. In 2016, when giving talks about this, I used to draw the triangle of home improvement; write in its three corners: good, fast, and cheap; and tell people, “you can have two.” We can’t compromise on having a “good” death penalty (one in which there are no constitutional violations and factual mistakes), and so, it cannot be fast or cheap. The big savings will only roll in when we get rid of the litigation piece.

There’s no better proof that the death penalty is on its last leg than the fact that Joseph Diangelo, the Golden State Killer, was sentenced to life without parole. If not the most notorious and heinous criminal in the history of California, then who? And the logic in Diangelo’s case applies to everyone else–why the death penalty? So they can continue litigating at the state’s expense and die a natural death? Whose interests does this serve?

About the actual job of relocating death row people to other prisons/general population: this is going to be a complicated and delicate job, and my fear is that it will be entrusted to folks who are not tuned in to the complexities. They would be moving people who have been effectively “at home” in solitary confinement in unique conditions, many of them for several decades, into facilities with much younger people and a very different energy. There could be animosities and alliances that are difficult to predict and go beyond crude racial/gang affiliations. This is true, generally speaking, for every prison transfer (long time readers remember the fears and concerns surrounding CDCR’s plan to comply with the landmark decision in Von Staich through transfers to other facilities); in the case of the death penalty, there are other factors, not the least of which is the unique combination of notoriety and frailness of the people to be transferred.

There’s also the question whether dismantling death row, what with its symbolic hold over the Californian imagination, slows down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole), does the effort to abolish the death penalty lose its steam? The uphill battle for activists will be to spin this development to argue that the death penalty has been defanged beyond its utility; now that we’re left with only its negative aspects (to the extent that some people think it has advantages) it’s time to stop hemorrhaging state funds for incessant litigation.

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Today I’m at the Annual Meeting of the Western Society of Criminology, speaking about FESTER. My panel starts at 8:15am island time in the Waianae room – come say hi!

Los Angeles Times Op-Ed: California’s blocked vaccine mandate for prison guards is public health idiocy

I have an op-ed in this morning’s Los Angeles Times about the shameful, hypocritical appeal of the Plata vaccine mandate. I’m reproducing it here:

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California’s correctional facilities in January saw an alarming third wave of infection that brings an urgent threat.

The first wave, during the spring and summer of 2020, saw disastrous infections starting at the California Institution for Men and leading to cases in most residents at Avenal and San Quentin. The second wave, during the winter of 2020, saw outbreaks across all prisons with thousands of active cases. More than 66,000 infections have occurred to date, and at least 246 incarcerated people have died of the virus.

But this third wave features another cause for alarm: As of Jan. 28 there were 4,337 active cases among prison staff, with this surge seeing faster spread for that group than at any other point in the pandemic.

With staff moving freely in and out of these facilities, they have been agents of contagion in prisons and their surrounding communities. Data that I collected with independent researcher Chad Goerzen, as well as a report published by the Prison Policy Initiative in December 2020, show considerable correlations between prison COVID spikes and outbreaks in nearby counties and indicate that staff are primary drivers of this trend. And despite all these risks, they still are not required to get vaccinated.

After the federal receiver in charge of California’s correctional healthcare system pleaded for a vaccine requirement, U.S. District Judge John Tigar finally ordered one in September — only for Gov. Gavin Newsom, otherwise a staunch vaccine supporter, to side with the corrections department and the guards’ union in opposing the mandate. Their appeal is still pending with the 9th Circuit, and at this point there is no general requirement that prison staff become vaccinated.

The main concern of opponents of the mandate is that it might lead to mass resignations of guards, which in turn would result in understaffed, unsafe prisons. Yet in other sectors with mandates, such as schools and government offices, vocal protestations and resignation threats gave way to vaccination compliance. Indeed, the opponents’ rejection of a vaccine mandate is creating the reality they warned of: As of last week, 21 prisons each had more than 100 infected staff members, who then could not safely show up for work.

The irony of the situation might be lost on prison authorities, but it has an even darker side. Even if the threat of correctional officers’ resignations over a mandate were real, and graver than the very real staffing problems generated by the spike in staff cases, why do government officials so stubbornly support overcrowded prisons? Exposing incarcerated people to a serious virus with no means to protect themselves from unvaccinated staff members — amid other health order violations in prisons, per multiple reports — violates their 8th Amendment rights.

For the sake of public health, the state should withdraw its appeal of the court ruling on the mandate for prison guards, and Newsom should stop supporting the guards’ resistance, in accordance with his position on vaccination at other congregate spaces.

Ultimately, to protect California’s prison populations and everyone in surrounding counties, not only from this pandemic but from others in the future, we need to confront the larger truth: If it is impossible to retain enough correctional staff to provide propercare for our incarcerated population, then we cannot incarcerate as many people as we do.

We cannot, lawfully and constitutionally, house, clothe and feed more than 100,000 people, many of them aging and sick, if the staff cannot be bothered to take minimal precautions to protect those people from disease.

California needs a lasting policy of releasing inmates — shown to be an effective intervention to reduce COVID cases — taking into account criminologically and medically relevant factors such as their age and health conditions. (When only 7,600 people were released from California’s prisons in summer 2020 as a COVID mitigation measure, fewer than 1% were in a medically high-risk category; most were younger people about to be released anyway.)

One cliché of the pandemic has been that “we are all in the same storm, but not in the same boat.” This is true both behind bars and on the outside. Requiring prison staff to be vaccinated, while reducing prison populations through targeted release, protects everyone’s interests in the years to come.

Hadar Aviram is a professor at UC Hastings College of the Law and participated in the San Quentin COVID-19 litigation as counsel on behalf of ACLU of Northern California and criminal justice scholars. She is the co-author of the forthcoming book “Fester: Carceral Permeability and the California COVID-19 Correctional Disaster.”

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The LA Times has been good to our struggle this week; over the weekend, it published a phenomenal op-ed by incarcerated journalist Juan Haines about the astonishing appeal of the Quentin case.

Worried about Vaccine Mandates Potentially Causing Prison Understaffing? Guess What Actually Causes Prison Understaffing: COVID-19.

At first glance, today’s COVID-19 numbers for California prisons appear to be a grim reprise of the two previous outbreak waves: thousands of cases, with major outbreaks in several facilities. Clearly, we have learned nothing from the last two years, which led to infections among more than half of the prison population and to 246 deaths; Governor Newsom’s recent reversal of 80-year-old Sirhan Sirhan’s parole bid indicates that politics and optics, rather than pragmatic public health and public safety considerations, are standing in the way of sensible choices. But upon closer inspection, this third wave features another cause for alarm: in addition to the 4,069 active cases among incarcerated people, there are currently 4,570 active cases among prison staff, and in 20 prisons, more than 100 staff members are currently infected.

The reason is not particularly mysterious. Throughout the last two years, California’s prison guards’ union (the CCPOA) led a dogged fight against mandatory vaccination for its members. For many months, the federal district court hearing the case adopted a conciliatory, welcoming approach, appeasing the guards and turning to gentle persuasion methods; these have proven useless in raising the vaccination rates among the staff. Finally, after the COVID catastrophe ravaged prisons (and several months too late to save lives) Judge Tigar ordered a vaccine mandate; the guards, the prison authorities, and Governor Newsom are opposing the mandate and their appeal is pending before the Ninth Circuit.

Whether prison guards refuse to get vaccinated due to indifference, COVID-19 denialism, or misguided politicization of healthcare, is pure speculation. But in their appeal, opponents of the mandate raise concerns that requiring vaccinations might lead to mass resignations of prison guards, which in turn would result in understaffed prisons. This scenario was feared, but failed to realize, in many other employment sectors with mandates, where vocal protestations and threats of resignation gave way to vaccination compliance. Indeed, the opponents’ stance is generating precisely the scenario they worry about: it turns out that, when thousands of people are sick at home, prisons become understaffed.

The irony of the situation might be completely lost on prison authorities, but it has an even darker side. Even if the threat of correctional officers’ resignations were real, and graver than the very real understaffing generated by the spike in staff cases, we must ask ourselves why courts and government officials so stubbornly cling to the idea of overcrowded prisons as a public good. If it is impossible to hire and retain correctional staff who can provide a standard of care that complies with minimal Eighth Amendment requirements, then it is impossible to incarcerate as many people as we do. We must reckon with the fact that we cannot, lawfully and constitutionally, house, clothe, and feed more than 100,000 people—a quarter of whom are over 50 years old—if the staff entrusted with their care cannot be bothered to take minimal precautions to protect their captive wards from disease.

A Visit to Tulane

For the first time since Fall 2019, I got on a plane on Monday and flew to New Orleans; Professor Adam Feibelman very graciously invited me to participate in the Workshop on Law and the Economy, and I had the opportunity to present Fester to people who read big chunks of it, including the introduction and Chapter 4.

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What is the CA Attorney General’s Job?

On July 9, 2020, the #StopSanQuentinOutbreak coalition held a press conference outside the prison gate to draw attention to the medical crisis behind bars. The five weeks that preceded the conference saw the COVID-19 case count in the facility grow from zero to more than a thousand, and when we held the conference, people were already dying. Many people spoke at the conference–family members, formerly incarcerated people, doctors, experts, politicians.

The picture above is from the press conference. On the right side of the picture is then-Assemblymember Rob Bonta, who spoke very movingly and urgently about the need to have Gov. Newsom visit the prison and release people. Bonta’s speech was quoted in the Guardian:

“We are in the middle of a humanitarian crisis that was created and wholly avoidable,” said the California assembly member Rob Bonta at a press conference in front of San Quentin state prison on Thursday.

“We need act with urgency fueled by compassion,” he added. “We missed the opportunity to prevent, so now we have to make things right.”

Fast-forward a year and a half, and Bonta, now California’s Attorney General, is appealing Judge Tigar’s order to vaccinate the guards in CA prisons. The staunch resistance at CDCR and at the Governor’s mansion to the idea of letting old, sick people be released back to their families–purely for optics reasons, as they pose little to no risk to public safety–resulted in a paltry an ineffectual release policy (as I predicted the day it was announced) and, also predictably, in a complete abandonment of the release plan as soon as vaccination emerged on the horizon. Within the activist/advocate community, this presented a problem: while vaccines would slow down, or even end, the COVID-19 crisis, they would not prevent future contagions, which are sure to come given the prison infrastructure, medical understaffing, and chronic neglect and indifference. At the time, when talking to a friend, I said we had to get on the vaccine bandwagon; the fight to save lives now was as important as the fight to save more lives in future years, and we certainly could not afford to let go of the call to make the prison population a top vaccination priority.

Despite some governmental hiccups, and despite the prevalence of ignorant arguments that combined deservedness with medical care, people in correctional facilities educated themselves about the benefits of vaccination and, thankfully, accepted the vaccine at rates exceeding the general population. The credit for this success goes first and foremost to the correctional residents themselves, who had to sift their way through mountains of disinformation from custodial staff and their own mistrust of anything coming out of the authority that caused the outbreak in the first place. It also goes to formerly incarcerated people who encouraged their friends to do the right thing, and to AMEND for targeting correctional populations with excellent, 100% reliable medical advice. It certainly does not go to the government, which deprioritized prisons throughout the process.

More seriously, the staff is still the problem: custodial staff nationwide are still refusing vaccines at mind-boggling rates.

Graph showing vaccination rates among prison staff lagging behind overall rates in nearly all states
Source: UCLA Behind Bars Data Project

In short: Even though the fight to release people is still as urgent and relevant as it was in the summer of 2020, virtually nothing has happened on that front that would make a difference during this pandemic or the next one. Jail populations are back up to pre-pandemic levels; California prisons, which are still overcrowded despite a 18% population reduction, are now responsible for 7 out of the top 10 largest COVID-19 prison clusters in the country.

line graph showing 50 state prison and federal prison population changes from March 2020 to October 2021
Source: Prison Policy Initiative

Against this backdrop–the most important and pressing measure for contagion prevention basically abandoned–the litigation battle lines have been drawn at a much more modest expectation: staff vaccination. As a legislator, Bonta called for the more thorough system fix; as part of the Newsom administration, his employees are defending indefensible arguments and making absurd excuses to shirk responsibility even for the truly modest goal of protecting the lives of staff and incarcerated people.

Bonta/Newsom’s zealous appeal against this modest goal (essentially an incomprehensible support of Trumpist anti-vaccine drivel coming out of the Proud Heroes of the Resistance! or is it?) is even more absurd when compared to the Newsom/Bonta perspective on mandating vaccines in schools, considerably less dangerous settings than correctional facilities from an epidemiological standpoint. Indeed, some anti-maskers are calling Newsom/Bonta to task for forcing them and their kids to vaccinate when they are not imposing such duties in prison (even a broken clock shows the correct time twice a day.) Bonta’s response when a CalMatters journalist confronted him with the hypocrisy? “I have a client” (i.e., CDCR) and “you’ll have to take it up with my client.”

Which brings up an important question: What, actually, is the Attorney General’s job? Is the AG wearing two separate hats when supporting legislation/regulation and when litigating? Can the government speak out of two sides of its mouth on, essentially, the same matter of scientific/medical validity? When litigating in court, is the AG no more than a hired gun for a “client” (the government) with no obligations to support what’s right? Does the AG stop working for us when he works for our government? When protecting anti-masker prison guards, does the AG stop being a public official, holding office for the benefit of all Californians, and become CCPOA’s Tom Hagen?

Here are two instructive scenarios from recent CA history. In the first one, then-Governor Jerry Brown and then-AG Kamala Harris were called upon to defend a new amendment to the CA constitution, otherwise known as Prop 8 (“marriage is between one man and one woman”). You may recall their position then: Harris declined to defend Prop 8 “because it violate[d] the Constitution. The Supreme Court has described marriage as a fundamental right 14 times since 1888. The time has come for this right to be afforded to every citizen.”

Let’s recap: The Eighth Amendment guarantees freedom from cruel and unusual punishment, which in the context of prison conditions means that deliberate indifference to a serious health and safety risk is violative of the Constitution. We now have a ruling that having unvaccinated staff at CDCR facilities is a violation of the Eighth Amendment. AG Bonta, why would you defend this in federal court?

In the other instructive scenario, Harris, again as Attorney General, appealed Jones v. Chappell, a federal court decision that held the death penalty unconstitutional because of the delays. At the Ninth Circuit, they prevailed on a narrow, technical ground–the district court had applied a “new rule” at a habeas proceeding (for my explanation of this technical legal point, see here.) On principle, I still maintain that it was wrong of Harris to appeal the decision (here‘s a summary of my position on that matter.) It was an illustration of a tail-wagging-the-dog scenario: Harris walked away from that incident remembered for upholding a technical retroactivity ruling, rather than for dismantling our dysfunctional and monstrous death penalty. But at least there was some doctrinal support for that position.

This is not the case here: we have a ruling that is not only correct (and extremely narrow) on a policy level, but also on a legal level. Bonta and Newsom know full well that their position is morally and legally indefensible. Why, then, are they appealing, and is this a fulfillment of the AG’s ethical obligations?

Moreover, even accepting Bonta’s peculiar distinction between his role in legislation and in “client” representation, even the most zealous and unprincipled gun-for-hire private attorney will have situations in which it will be necessary to sit down with the client and explain that a position that the latter wants to advance in court is untenable (e.g., there’s no hope for an insanity defense because the defendant is sane; there’s no self-defense because there’s ample proof that the defendant shot someone in the back for profit with no provocation whatsoever.) In situations in which the client insists on a particular line of legal argumentation, lawyers who cannot pursue that line with a straight face need to withdraw from representation. It is long past time for Bonta and his employees to have a come-to-Jesus conversation with their “clients” and explain that vaccinating the staff is a minimal, modest expectation, barely enough to pass the already eroded Eighth Amendment standard, and that balking at it is not a move that the AG’s office can support.