Delta in Prisons and Disturbing Staff Vaccination Rates

As many of us experience despair and frustration with the virus’ persistence and wonder what fresh restrictions, closures, and infighting 2021 will bring, here’s a glance at how this has played out in California prisons. As per CDCR data (now compiled for your convenience, in collaboration with the COVID in-custody project, on this blog) CDCR has 159 new confirmed cases in the past 14 days, for a rate of 160 per 100,000. For comparison, CA has a rate of 258 new cases per 100,000 in the past 14 days. There are three new outbreaks: SOL (3) PBSP (11) and PVSP (9). A major outbreak is occurring at SCC (111. cases.) Against this backdrop, CDCR as a whole has a net population increase of 42 since last week (presumably jail transfers.)

Before talking about what is going on, let’s take a glance at the vaccination status. The vast majority of the incarcerated population is incarcerated – just a bit over 50% of the staff is, and no sign that anyone – Judge Tigar, the Governor, the Attorney General – has plans to require vaccination (for comparison’s sake, my workplace, like all campuses of the University of California, requires proof of vaccination.)

Vaccination status for incarcerated people and staff at CDCR as of August 3, 2021. Source: COVID in-custody project on this blog.

It’s important to exercise caution when talking about this. We are hearing again and again that this new plot twist, robbing us of our way of life, is a plague driven by unvaccinated people and the solution is to vaccinate. Newspapers are fomenting an enormous amount of outrage against the unvaccinated and, with everyone’s nerves already frayed, it’s easy to view this group as a monolith. I worry a bit about this facile story; it turns out that, in Israel, half of the infections are among vaccinated people and the government has started offering a third booster to older people, which suggests that the vaccine’s protection wanes over time. Still, given our quaratinist approach to managing healthcare in prisons, it’s hard to argue with the fact that the virus does enter prison from somewhere, likely through staff, and that the rates of people refusing to take a free, accessible, and medically proven prophylactic among staff are significantly higher than in the general population. As the UCLA COVID Behind Bars Data Project has shown, this is a disturbing nationwide trend:

Source: UCLA COVID Behind Bars Data Project

What we’re seeing is no more than what has been the case since the beginning of this: I’ve documented again and again the ways in which the problem with COVID management has been the staff, particularly custodial staff. Just like the Governor has demurred about the scale of releases that would protect elderly, infirm people from COVID, he has demurred about requiring staff to vaccinate. A recurring theme at the Plata hearings has been the effort to treat staff with kid gloves, consult experts on methods of gentle persuasion, congratulate CCPOA for the simple act of even deigning to show up at the case management conferences–in short, do anything except impose a state mandate. The Attorney General has put so many of his employees to work on opposing releases and relief, in the Plata and San Quentin cases, that one might ask if anyone’s even been tasked with considering the legality of a CDCR vaccine mandate.

It’s hard not to be cynical about this when we hear that CCPOA is the largest organizational donor to Newsom’s anti-recall campaign, just recently cutting him a check for $1.75 million (for a total of $4.1 million) after receiving bonuses. CCPOA has been a major political player in California for ages, and has been actively striving to become a political force again even though its traditional issues have become muddled (crime rates are low and the discourse about criminal justice has shifted.) I want to be clear about two things. First, I oppose the recall and will personally vote against it. I think the alternative is much worse than Newsom–even as I find myself unmotivated to donate or volunteer to help the person who presided over the worst prison medical disaster in U.S. history. Second, we have no proof that CCPOA’s support of his campaign is directly related to the waffling about vaccine mandates (and is far more closely tied to bonuses for custodial staff.) But at the very least, given how much we know about how CCPOA treat their enemies, this suggests that CCPOA perceive Newsom as an asset. Also, remember – Newsom desperately needs the CCPOA’s support as he loses ground in the recall battle. So, even though I’m not saying that this is payoff for his staff vaccination policy (or non-policy,) it almost certainly means we won’t be seeing a vaccine mandate.

This might be what CCPOA rank-and-file members want, but it’s not what they need. Nationwide–and in California–staff infection rates are considerably higher than the rates in the general population (in California, almost twice as high.)

The story of CCPOA’s engagement with this crisis is, therefore, complex. The union is completely politically captured, for sure; it does not defend the rational interest of its members, for sure; but “rational interest” and actual interest are not the same thing. In evidence everywhere are COVID denialists who accept their diagnosis only when it’s much too late. Because nobody has collected reliable data on political opinions among prison guards, we can only guess how much of this reluctance among prison staff reflects the wider phenomenon of Trumpist prevalence within law enforcement. If it does, I expect the chances of them changing their minds even as their colleagues fall ill are probably similar to the chances of Newsom, now their political protégé, protecting them from themselves through a vaccine mandate.

The Pains of COVID-19 Imprisonment

This is a quick preview of the ideas presented in chapter 3 of our book in progress Fester: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract with UC Press.)

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Numerous factors coalesced to make the 1950s and 1960s fertile grounds for ethnographic prison research. The work of Erving Goffman and others, who viewed prisons as a unique psychological and sociological setting; the relatively fresh horrors of Nazism, fascism, and comunism; and the still-lax approach to research ethics on vulnerable populations (manifested in the controversies around Milgram’s Obedience to Authority study and Zimbardo et al.’s Stanford Prison Experiment) resulted in an explosion of works on prison society, staff-population interactions, and the prison economy. , In the late 1950s, Goffman coined the term “total institution” to capture the absolute subjection of the person to the environment, beginning with the branding rituals that turned the person into an “inmate” and continuing with the clandestine economy, adaptation strategies, alliances and conflicts, and more aspects of prison life. In 1965, a fundamental volume of works in this vein came out, edited by Johnston, Savitz and Wolfgang, titled The Sociology of Punishment and Correction. Many works in the volume were reprints of penology classics, such as Donald Clemmer’s concept of “prisonization” – socialization to life inside. Among these works was a short but fundamental text by criminologist Gresham Sykes titled The Pains of Imprisonment. This was an excerpt from Sykes’ book The Society of Captives, based on his ethnography at a New Jersey Prison.

As Victor Shammas explains in a retrospective, Sykes was far from the first observer of the misery and suffering inflicted on residents of prisons and jails; author Charles Dickens and journalist Henry Mayhew extensively illuminated the anguish of incarceration in the 19th century. Sykes’ effort was important in that it identified that prisons did far more to their residents than merely deprive them of their liberty, which was merely the first of five “pains of imprisonment.”

Sykes’ description of the first pain, Deprivation of Liberty, went beyond the obvious limitation to the confines of the prison (and control measures like cells, checkpoints, and passes.) He included the dissolution of bonds to family and friends due to restrictions or difficulties associated with receiving visitors, sending and receiving mail, or placing telephone calls.

The second pain Sykes identified, Deprivation of Goods and Services, consisted of a decline in the material standard of living compared to life on the outside: unpaid or very poorly compensated labor, few personal possessions, and a decline in the quality of shelter, clothing, diet, and healthcare.

Today, Sykes’ third pain, the Deprivation of Heterosexual Relationships, reads as somewhat antiquated; Sykes’ understanding and framing of homosexual relationships and intimacy behind bars was based on limited assumptions. Nevertheless, his sensitivity to the notion that involuntary celibacy could create emotional, psychological, and physical problems in the inmate population was prescient. He believed an involuntary loss of sexual relations produced tension, anxiety, and a worsened self-image for inmates.

The fourth pain, the Deprivation of Autonomy, consisted of denying prisoners the ability to make even the most basic decisions about their daily life, such as when and what food to eat, when and how bodily functions should be taken care of, and when and how to move within the restricted confines of the prison. Sykes believed the loss of autonomy was harmful because it reduced inmates to a child-like state through a series of public humiliations and forced acts of deference.

Finally, the Deprivation of Security, according to Sykes, consisted of subjecting prisoners to a violent, unsafe environment, in which they could be subjected to assaults, sexual victimization, substance abuse, and disease.

Sykes’ typology of pains yielded a long and fertile strain of criminological literature. Later commentators added considerable nuance to his analysis and, in some cases, modified his findings. One notable example is Benjamin Fleury Steiner and Jamie Longazel’s The Pains of Mass Imprisonment, which offers a mass-incarceration-era update rife with awareness of the increased salience of problems exacerbated by overcrowding and racial injustices. Much has changed, they argued in 2010, since Sykes conducted his ethnography in the mid-1950s, beginning with the scope of the system: At the time of Sykes’s research, there were approximately 250,000 prisoners in the U.S. (state and federal) prisons and jails. As of 2010, there were more than 2.2 million, that is, just about nine times as many prisoners. But there were other changes, which they lay out in page 8:

As opposed to focusing on more traditional penological goals such as rehabilitation, the prerogative of prisons today is aggressive incapacitation. In this way, the deprivation of liberty has been exacerbated in the contemporary era, amounting to what can more accurately be described as containment. • Beyond having to endure what amounts to forced poverty (i.e., the deprivation of goods and services), today’s prisoners must cope with a massive for-profit prison industry that routinely exploits them for financial profits by, for example, making them engage in low-wage labor under often dangerous conditions. • Sykes’s extensive observations of the New Jersey State Prison and interviews with those imprisoned there illustrate a lack of access to sexual relationships; yet today with the recent explosion of the number of women behind bars, we have witnessed a crisis of prisoner sexual abuse as female prisoners find themselves subjected to widespread sexualized coercion by their male captors. Whereas being deprived of autonomy once entailed being reduced to the “weak, helpless, dependent status of childhood” (ibid., p. 75), mass imprisonment has wrought a far more aggressive focus on the isolation of exorbitant numbers of prisoners in the brutal conditions of solitary confinement, utterly stripping away the humanity of many prisoners. • The potentially violent behavior of other prisoners once encompassed the deprivation of security, but today is compounded as prisoners are subjected to numerous forms of prison guard brutality.

This changed landscape of incarceration led Fleury-Steiner and Longazel to an updated inventory of imprisonment pains: Containment, exploitation, coercion, isolation, and brutality. But a critical look at Steiner and Longazel’s inventory of oppression and suffering, supported by their comparative table, reveals that the roots of these deprivations were already present in Sykes’ time. This struck me as an important point as we were cataloguing the hundreds of reports we received about how COVID-19 was experienced in California prisons. Listening to recordings, reading emails, and participating in phone and Zoom calls with incarcerated people and their families throughout the COVID-19 pandemic—sometimes several a day—showed us that COVID-19 merely exposed the neglect, abuse, fear and deprivation already rampant in the system and its horrors are manifestations of these old pains and difficulties. Following Fleury-Steiner and Longazel, we provide an updated inventory, including the parallels to today’s situation:

The Pains of Imprisonment (1958)The Pains of Mass Imprisonment (2010)The Pains of COVID Imprisonment (2021)
deprivation of libertycontainmentquarantine
deprivation of goods and servicesexploitationorganizational and medical collapse
deprivation of heterosexual relationshipscoerciondeprivation and erosion of all relationships
deprivation of autonomyisolation isolation, quarantine, misinformation, fearmongering
deprivation of securitybrutalitymedical neglect and abuse; staff misinformation and noncompliance; retaliation
Sources: Sykes 1958; Fleury and Longazel 2010; Aviram and Goerzen 2021

The deprivation of liberty, which became containment in the era of mass incarceration, was ground zero of what John Witt refers to in American Contagions as the “quarantinist state.” Administrative unwillingness to release people, court prevarication on transfers and releases, playing Tetris with human lives, the bottleneck of the jails, and the pipelines to ICE, all played a role in this quarantine system. Also to be filed here were the forced moves within the prison – the various isolation strategies which conflated punishment with medical need.

The deprivation of goods and services, which morphed into large-scale economic exploitation, manifested itself in the total administrative collapse of the prison. We include in this category the ineptitude of healthcare at the highest levels, the Chino transfer fiasco, the absence of PPE, the absurd preventions on sanitizing chemicals, the collapse of the sanitation and kitchen system, and the spillover of COVID healthcare ineptitude into the realm of general provision of healthcare. We also include here the disrespectful approach to the dying and the dead and the humiliation and mortification of their families.

What Sykes saw as deprivation of heterosexual relationships (and Fleury-Steiner and Longazel argued became sexual coercion by staff and residents in overcrowded facilities) we see as morphing into a deprivation of all consensual relationships: the ban on phone calls, the problems contacting loved ones and informing them of what was happening, the difficulties faced by lawyers, advocates, volunteers, and activists to get a sense of what was occurring and to help.

The deprivation of autonomy, the ultimate mass incarceration example of which is isolation in solitary confinement, became a systemwide regime of isolation and quarantine. The inability to govern one’s fate manifested itself in the transfer system (housing COVID positive and negative people together), the structural and architectural barriers to even the most basic forms of self-protection and social distancing, and the disciplinary system backing up these contagion-producing practices. All of this was amplified through a systemwide atmosphere of misinformation and fearmongering fomented by staff and tacitly approved by high command.

Finally, the deprivation of security, which at its extreme end in mass incarceration becomes brutality, was in evidence everywhere as massive medical neglect, widely visible staff noncompliance and COVID denialism, and a system of retaliation (via transfer threats) against those who pursued political and legal action against the prison system.

In Fester, we present this framework and walk our readers through each of these five pains of imprisonment not through our own words, but through the words of the people who experienced this first hand–incarcerated people and their families, as well as prison workers.

The Hidden Side of the Prison Labor Economy on Marketplace

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

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


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

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

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

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

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

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

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

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

“The range of occupations that people have in prison”

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

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

When formerly incarcerated people are unable to get jobs

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

Hadar Aviram

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

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

Hadar Aviram, UC Hastings law professor

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

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

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

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

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

Is prison labor, by definition, exploitative?

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

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

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

The kind of work formerly incarcerated people end up doing

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

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

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

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

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

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

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

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

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

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

Support A.B. 1210 – Diversify the Parole Board

This morning I’m scheduled to testify before the Senate Public Safety Committee in support of AB 1210 (Ting). The proposition is to diversify the parole board by including commissioners with a variety of professional backgrounds, including therapeutic backgrounds.

Those of you who read Yesterday’s Monsters may recall that, while the Board is diverse in terms of race and gender, it is not diverse in terms of professional background. The vast majority of commissioners come from law enforcement backgrounds: former sheriffs, police chiefs, and correctional officers. This has far-reaching implications as to the nature and result of the hearings.

The current composition of the board dates back to several transformations in California punishment that happened throughout the late 1970s and 1980s. Over the years, the time before the initial hearing and between hearings increased; actuarial risk assessment replaced correctional counselors and psychologists; the role of prosecutors and victim supporters vastly increased; and voters approved a gubernatorial veto on parole board decisions to release. Despite repeated instruction from the California Supreme Court to focus on future prospects and risks, the Board acts defensively, finding ways to bypass this requirement and deny parole on the basis of crimes that happened decades ago—even to people who, according to vast criminological research, have long ago aged out of crime. As a consequence, recommendations for release are rare, accounting for only 16-17% of all hearings.

It is unsurprising that a group comprised almost exclusively of law enforcement officers is professionally and culturally predisposed to accept court records and disciplinary write-ups as incontrovertible truth, makes biased assumptions about people from their demeanor and body language, and tends to accept simplistic narratives at the expense of more complicated stories involving people’s environment and circumstances. The commissioners also exhibit complacency regarding the woeful inadequacies of our prison programming system, laying the blame for inaccessible or nonexisting rehabilitation programs on the parole applicants themselves. Despite some continuing education workshops, the commissioners as a group do not possess deep professional knowledge on issues such as substance abuse and mental health.

The commissioners regularly pride themselves for being able to detect false remorse or lack of insight. Unfortunately, this self-assessment claim is contradicted by robust empirical research. In experiments, law enforcement officers regularly express significantly more certainty about their ability to detect lies–and regularly do significantly WORSE than general population in telling truth and lies apart.

We are at a unique moment in history, in which we acknowledge that multiple forms of wisdom and expertise—not only the expertise of law enforcement officers—are essential to solve social problems and offer hope to families and communities. Tune in to the hearing today and make your voice heard in support of this important change.

Testimony at the San Quentin Hearing Wraps Up

Finally, I have a moment away from grading to provide some updates, and the news from CDCR are not good. The last 14 days have seen 104 cases, including 80 that constitute a major outbreak in Solano. CCC and Mule Creek also have new outbreaks, so far fewer than ten cases each. In the last week, CDCR’s population as a whole saw a net increase of 238, indicating a continuation of the trickle in from jails.

This is worrisome, and a grim reminder that the reality painted by the AG representatives at the Quentin hearing–namely, that the worst is over and everything is hunky-dory–could change at any minute. For detailed summaries of each day of the hearing, I highly recommend the Davis Vanguard coverage:

Day 1 – testimonies by incarcerated witnesses, including John Mattox, one of the CIM transferees

Day 2 – Matthew Willis, health chief of Marin County, testifies about being rebuffed when he asked to isolate and test transferees

Day 3 – testimonies by Drs. Bick and Pachynski

Day 4 – testimony of warden Broomfield

Day 5 – continued testimony by Broomfield and testimony of expert witness Dr. Morris

Day 6 – testimony by incarcerated witnesses Burroughs and Crawford and by psychiatrist Dr. Kupers

Day 7 – testimony by CDCR employees, more incarcerated witnesses, expert witness Dr. Parker, and Channing Sheets of CAL/OSHA

Day 8 – testimony of CDCR administrators Bishop and Avila

Day 9 – testimony of four prison officials

Day 10 – testimony of more prison officials

Day 11 – final testimony day

The testimony has now concluded. Petitioners’ written brief is due July 7 and Respondents’ brief is due on August 4; replies are due on August 18. Judge Howard was undecided yesterday on whether he will give a tentative written decision or final decision. The Judge was mindful that this could push the timeline for the case into September; the complication is that there are 400 other petitioners waiting patiently because a response to their petition has been continued since the decision in the hundreds of cases related to this evidentiary hearing could affect them. 

Yesterday I participated in an event organized by the Vanguard, featuring Danica Rodarmel and Adamu Chan, which you can catch up on here:

Beyond the things we discussed at the event, I’ve had a few general observations about how things are going so far.

The first and perhaps most important has to do with the purpose of all this. At the event, all three of us mentioned accountability as an important goal. But what can accountability even mean given the constantly changing landscape of the disease? The population in the prison has decreased since the advent of the pandemic, and any remedy phrased as “population reduction” would be interpreted by CDCR as requiring transfers, which would be disastrous to the Quentin population because of the paucity of programming elsewhere and because of the possibility of infections elsewhere (such as we see now in Solano.) Other remedies (including administrative injunctions and monetary damages) are outside the scope of a habeas hearing (remember, this is not a class action–it’s hundreds of individual cases that have been consolidated.)

Relatedly, the AG’s line has been all along that habeas relief cannot be granted on the basis of past circumstances, and it’s not a ridiculous argument. I’ve said before that these hearings, as well as the Plata hearing, are proof that courts are an imperfect mechanism for remedying an ongoing, ever-changing situation. The immediate relief needs to come from the people directly in charge of the welfare of the prison population, and when these folks are far more interested in preserving themselves and their jobs than in keeping the people in their care alive and well, we’re stuck in a quagmire.

The biggest disappointment in all this is that AG Rob Bonta–who, just months before his appointment, stood shoulder-to-shoulder with me in front of the San Quentin gates denouncing prison administration and calling for releases–is allowing his employees to fight against doing the right thing. In July, Bonta said at the press conference: “We are in the middle of a humanitarian crisis that was created and wholly avoidable; we need to act with urgency fueled by compassion; we missed the opportunity to prevent, so now we have to make things right.” Now, he’s apparently comfortable presenting a legal argument that the crisis was unavoidable, that everything that needed doing was, in fact, done, and that the incarcerated people themselves have compounded their own situation. He also does not seem to stop his employees from the unnecessarily humiliating practice of asking incarcerated witnesses for their inmate numbers at the beginning of cross examination (are they afraid we’ll confuse them with each other? Or do they perhaps need a reminder that they are incarcerated, in case they forgot?). Good luck trying, again, to explain to your East Coast friends how yet another hero of the progressive resistance turns out to be a villain on the local level.

Another theme that has emerged, for me, is the mess that Plata created. I’ve already published about this here and here and here, but it was only at the hearing that I realized one more problem that emerged from the Plata/Coleman line of cases: the appointment of the receiver to oversee health services have created two separate masters, for healthcare and custody respectively, whose chain of command seems to be unclear even to the warden himself. They have had more than a decade to figure out who trumps whom and who makes the final decisions, and it looks like there is basic confusion even in figuring out which decisions count as medical and which as custodial. For a hierarchical law enforcement institution that has to feed, clothe, and shelter tens of thousands of people, this is an enormous problem, and it’s inconceivable that they have been unaware of it until now.

Finally, we said yesterday that just memorializing what happened is important, and it is, but the judicial order not to film or record is thwarting that goal. I’ve recently participated in a special workshop about mass atrocity trials, in which several of the presentations involved efforts to make, for example, holocaust trials into educational tools through virtual reality, simulations, and testimony broadcasts. The strength of this hearing, particularly as it is broadcast via Zoom, is that incarcerated people can tell their story, in their own words, on your computer screen, humanizing them to people who might only think of them in the abstract and facilitating access to what happens behind bars. But almost no one can afford to watch a full day of hearing (hence the important service by the Vanguard), and with no filming/recording permissions, news outlets cannot broadcast the highlights in the evenings. This has strengthened my conviction that our book in progress #FESTER is an important endeavor, which I hope will be joined by other works bearing witness to what happened here.

San Quentin Evidentiary Hearing: Day 1 Recap

https://twitter.com/aviramh/status/1395413455423737861

Please follow the thread above for a summary of today’s hearing, including some photos and links.

I have a few observations to add to the recap. First is that the picture, as it emerges from the hearing is strikingly damning–even to those of us who had front-row seats to this tragedy last year. The testimonies were extremely powerful, especially given the courage that it takes for someone currently incarcerated or for someone at CDCR’s employ to testify against CDCR.

If anything, the cross examination helped, rather than hurt, Petitioners’ case. CDCR’s goal at this hearing is to show that they took ameliorative steps that reduced the seriousness of their Chino transfer fiasco, and that the conditions at present are much better than they were–because their overall objection to the testimony revolves around the legal point that habeas relief cannot be awarded for past convictions, only for present convictions. The supreme irony of abandoning people to their fate through mismanagement and indifference, waiting for the virus to ail and kill them, and after it’s all over (because the virus won–not because they did!) claim that it’s over and no remedy is forthcoming, is extremely difficult to stomach.

But at the hearing itself, some of these questions backfired. When AG representative John Walters repeatedly asked the witnesses whether–and why–they declined testing, he opened the door to one of the main horrors of the pandemic, namely, to the fact that CDCR had lost credibility to such a degree that asking for help was putting oneself at a disadvantage. I hope the petitioners’ team hammers this home in coming days. The exchanges between Walters and incarcerated journalist Juan Haines were especially testy: Haines challenged Walters’ reliance on CDCR post-Plata definitions of design capacity, as well as reminded him, wryly, that he couldn’t comment on population reductions because he didn’t actually have access to the data. Similarly, when Walters asked John Mattox, one of the Chino transferees (who reported his symptoms before getting on the bus and was told he was lying!) “If I told you there were 500 less people, would it surprise you?” Mattox replied: “It would surprise me, because I haven’t seen any difference in how they treat us.”

The big question continues to be the efficacy of the remedy. I’m sure Judge Howard has a lot to chew on.

Evidentiary Hearing in Quentin Cases to Begin Thu 9am via Zoom

As regular followers of the blog probably recall, the CA Supreme Court ordered to remand Von Staich to the Marin Superior Court, where Judge Geoffrey Howard will be presiding over an evidentiary hearing. The hearing is scheduled to begin this coming Thursday at 9am, via Zoom.

The factual question the court must resolve is whether CDCR acted with deliberate indifference by failing to protect the health and safety of petitioners, who are several hundred members of the San Quentin prison population. The Petitioner’s lawyers–some of them from private law firms, some of them from the Public Defender’s Office, some of them from the First District Appellate Project–will lay out the evidence of the devastation at San Quentin, which ailed thousands of people (more than 75% of the prison population) and killed 28 prisoners and one staff member. An important focal point of the hearing will likely be the OIG’s scathing report from February 1, which details the gross mishandling of the CIM transfer into Quentin (including email screenshots.) There will also be evidence of the lived experience behind bars, which will come from currently and formerly incarcerated witnesses. Given the obvious magnitude of the disaster, it is likely that the Attorney General representatives, who are arguing for CDCR, will focus on the ameliorative steps they took in the aftermath (masks? posters?) and argue that the cumulative effect of their behavior in the crisis falls short of the deliberate indifference standard. They are also likely to argue that, when the contagion broke at Quentin, we knew a lot less than we know now about ventilation (compare to this much newer report by AMEND about conditions at SATF) and that it is unfair to judge their mishandling of the crisis in hindsight.

The last two days featured case management conferences, in which Judge Howard has tried to encourage the parties to cull their presentations so that the hearings can proceed in a timely manner. Part of me wishes that the whole thing were televised, so as to keep a record of what happened in the prison (we will provide such a record in Chapter 3 of #FESTER.) But the hearing is not purely ceremonial–it has real import to real lives in real time–and so, it has to be conducted efficiently.

The first difficulty is that some of petitioners’ witnesses are currently incarcerated. This raises logistical challenges because, apparently, it is complicated to set up functional Zoom rooms in prison, and because West Block is currently under lockdown. The Quentin COVID numbers for today (above) do not betray the cause of this, as there is only one active case, but our records reveal two more cases a couple of weeks ago, so it makes sense that a prison wing is quarantined. In addition, I’m sure petitioners are concerned about retaliation against the witnesses, which adds stress (but also gravitas) to the testimony of those who are going forward. There was some debate today about hesitancy to testify, and the AG representative reminded that witnesses must testify. I trust the judgment of the petitioners’ lawyers in this matter.

The second issue is time. The hearing begins on Thursday and the parties have to prep for that as well as continue negotiating factual stipulations and culling the list of witnesses.

But the most serious issue, which was left unspoken at today’s hearing, is the remedy. As you’ll recall, the original Von Staich decision ordered San Quentin to reduce its population to 50% capacity, but it did not specify how to do so, which led CDCR to opt for transfers rather than releases. Even at that point in the pandemic story, this was akin to playing Tetris with human lives. The outbreak in Quentin was quelling while case numbers at the facilities targeted for transfers were climbing (remember the horrible numbers at Avenal, SATF, CMC, and elsewhere in November/December?) Not only would it be an enormous risk to transfer people to facilities that were in worse shape, but this would also awaken all kinds of inter-facility animosities; I received numerous letters from prison in which people told me that they feared retaliation from people in other institutions for all kinds of historical conflicts and beefs.

These factors are still significant today, but there are a few additional ones. The population at Quentin tends to be older and serve longer sentences, which means a lot of the people who end up at Quentin are in the process of preparing for parole and resentencing hearings, and to do so, they must rack up rehabilitative programs and chronos (laudatory write-ups) for their dossier. Quentin has a wealth of programming that is unavailable in other facilities (no thanks to CDCR; thanks to the many Bay Area do-gooders who volunteer in prisons.) Shifting people between prisons when there is no medical reason to do so–and there hasn’t been in months–is going to sabotage these releases and ultimately cost more, in terms of health risk and money, than no remedy at all. The only worthwhile remedy to consider would be releases, which has been an uphill battle all along, but which are essential to prevent not only a recurrence of COVID (note that there’s a steady stream of transfers from jails, to the tune of hundreds of people every week,, and that the vaccine uptake rate in jails is abysmal) but also future pandemics.

In short, this is in some important ways not unlike the financial considerations I discussed in Cheap on Crime: We simply cannot afford to lock that many people up, because it is impossible to provide them minimal guarantees of health and safety under these conditions.

I will cover the evidentiary hearing with great interest and concern in my next posts. Tune in tomorrow for new information on vaccination in jails, complete with a review of the lousy, low-quality data obtained from sheriffs, courtesy of the excellent Aparna Komarla of the Davis Vanguard‘s superb project COVID-19 in California Jails and Prisons.

New Policy re Good Time Credits toward Release at CDCR: Truth, Misrepresentation, and Panic

On Friday afternoon, CDCR announced an amendment to its regulations regarding the earning of good time credits. It’s always important to pay attention to such regulations, because as Kevin Reitz, Ed Rhine, and their colleagues at the Robina Institute remind us, whether a sentence is determinate or indeterminate is a question with many moving parts and many institutional actors, including prison administrators.

The new regulations are good news, albeit modestly so. For people doing time for nonviolent felonies, the good time credits will increase from 33% to 50% credit earned. For people doing time for violent felonies, the increase will be from 20% to 33.33%. In addition, the new regulations establish a new credit, called “minimum camp credit”: those who make it to conservation camps, earn a day for each day at the camp.

Reading these plain facts doesn’t suggest much cause for alarm, does it? But someone at the Associated Press decided that injecting some inflammatory, dehumanizing language was de rigueur, so they published this article, which was originally titled “76k California violent, career felons get earlier releases.”

The article is not only inflammatory, but deeply misleading. The number of people eligible for credits is far fewer than 76,000. First, the people presumably doing time for the most serious offenses–lifers without parole and people on death row–are ineligible for the credits. Second, for all those serving life sentences with the possibility of parole, release is not automatic, but rather conditioned upon success before the parole board which, if you’ve read Yesterday’s Monsters, you know is exceedingly rare (less than 20% of applicants receive parole.) Third, anyone who is already in the parole pipeline–including people with youth offender parole dates (who have aged out of crime) and people with elderly parole dates (who have also aged out of crime)–is not eligible. Fourth, the credits will be fairly modest because the regulations are not retroactive: the new percentage will only apply to the remaining portion of the person’s sentence, effective May 1, 2021. And finally, the choice of headline highlighting “violent, career felons” produced (as far as I could see) the predictable fatuous shrieks on Twitter, I’m sure will play a role in the similarly fatuous recall campaign, and is not the sort of thing that is conducive to reasonable conversations about criminal justice reform.

The regulations are a small step in the right direction. In the last few weeks, Chad and I are noticing increases of approximately 150-200 people at CDCR, presumably intake from jails. To curb new outbreaks and prevent the next pandemic, we must keep prison population lower to offset these transfers.

Diversify CA’s Parole Board and Broaden Medical Parole: Support AB 1210 and 960!

Here’s the letter I submitted in support of AB 1210 and AB 960 today. To do the same, click here!

Dear Committee Members,

Letter of Support: AB 1210 and AB 960

My name is Hadar Aviram. I am a UC Hastings law professor specializing in corrections and the author of a recent book about parole in California, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (UC Press, 2020.) I write to offer my strong support for two measures discussed at today’s hearing: AB 1210 and AB 960.

AB 1210 is an essential step for reforming parole. While the BPH is diverse in terms of gender and race, it is not at all diverse in terms of professional background. My research revealed that, almost invariably, gubernatorial appointees to the BPH are former law enforcement officers from the police and correctional fields. This means that, continuing education notwithstanding, the board is truly impoverished in terms of several topics that are incredibly germane to the commissioners’ deliberation: substance abuse, mental health, and the like, which are part and parcel of the skillset of people from the helping professions. In addition, my research reveals that the commissioners are overconfident about their ability to discern remorse or insight from nonverbal clues such as the parole applicant’s demeanor. This confidence is unfounded: robust social science research shows that law enforcement officers, who believe they are better than the general population at detecting sincerity or release, are actually worse at it in controlled experiments. This is another reason to diversify the board.

I also offer my strong support for AB 960. I am currently working on a book about the COVID-19 crisis in California prisons (under contract, UC Press) and have several publications out on the topic. Among the things I have found is that the Governor’s release policy was flawed not only in its modest numbers, but also in terms of determining *who* was to be released. I suspect that the tendency to release people with short sentences toward the end of their sentence was largely political, to avoid backlash; in fact, the people who are older and serve longer sentences (now about a third of the CA prison population) are the ones who pose the least risk to the outside and who need the most help because they, themselves, are at medical risk. It is essential not to pollute public health considerations with a flawed discourse of deservedness. We must expand medical parole, not only for the sake of abating this pandemic, but also for the sake of preventing the next.

Many thanks for adding my research into your considerations. I am happy to provide any further information you need.

Best,

Hadar Aviram

Similarities and Variations in Legal Responses to COVID-19 in Correctional Facilities

This morning I’ll be speaking, alongside Sharon Dolovich, James King, and Jane Dorotik, about court responses to COVID-19, at an event organized by UCLA Social Medicine. Thankfully, we now have a somewhat fuller picture of how litigation efforts have fared overall, which we can draw on to discuss some similarities and variations.

One of the things mindfulness has taught me is that disappointment depends on expectations. In that respect, to say that correctional policies during COVID-19 have been a disappointment reflects, perhaps, unrealistic expectations from institutions that have been unwieldy and incredibly resistant to change even at the best of times. Perhaps it’s not that unexpected that the giant machine that protects the correctional colossus from reform was overall characterized by delays, evasive maneuvers, reversals of fortune and too-little-too-late gestures. So, if one expected mass releases, the disappointment would be commensurate with the expectations.

Still, there is an objective benchmark against which to measure my disappointment: the problem is not that the releases fell short of being what I hoped they’d be–it’s that they fell short of what was needed to curb the spread of the pandemic. We don’t have to wonder what that number would be; we had assessments of individual institutions with recommendations from physicians specializing in pandemic spread. I think that now, in mid-April 2021, we can safely say that, with respect to releases, courts have failed to provide the relief they should have provided.

We have two great nationwide summaries that support this conclusion. Brandon Garrett and Lee Kovarsky’s new piece Viral Injustice is a survey of COVID-19 correctional litigation outcomes. Garrett and Kovarsky conclude:

Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Brandon L. Garrett and Lee Kovarsky, Viral Injustice

We also have an excellent summary from the Prison Policy Initiative, who concluded that overall the response was “grim”:

Lawmakers failed to reduce prison and jail populations enough to slow down the spread of the coronavirus, causing incarcerated people to get sick and die at a rate unparalleled in the general public.

However, some individual state and local policymakers took steps that stand as an example of how to release a large number of people from prison — a necessary step to ending mass incarceration. And some policy changes made during the pandemic — like eliminating cruel copays for incarcerated people — are ones we need to remember and demand that they be extended permanently.

Prison Policy Initiative, The most significant criminal justice policy changes from the COVID-19 pandemic

I want to throw in a few additional issues that illuminate aspects of these legal responses:

  1. The PLRA, while greatly responsible for suffocating prison litigation, is not the be-all, end-all of the problem. Following Plata v. Newsom closely, I’m not sure how much of the inaction is Judge Tigar’s allegiance to the PLRA framework and how much of it is a culture of conciliatory, deferent approach and valuing “bringing everyone to the table” rather than ordering a solution. Some of this could be down to individual judicial personalities and some of this could be attributed to litigation cultures in different states or even in different counties. I think that our good fortune in the first round of Von Staich was because we were fortunate to get a panel that was deeply responsive to both the humanitarian emergency behind bars and to the geographical argument that the threat would extend to outside communities.
  2. Relatedly, I don’t think that the state vs. federal litigation was the important distinction. Nor was it class action vs. habeas corpus. I think the defining feature of the litigation is the aggressive deference to correctional authorities–giving vague, modest relief knowing that correctional officers and their lawyers can sabotage it.
  3. Generally speaking, and beyond CA, the staff has been the problem–from dragging their feet to actual frustration of purpose (by not testing, not reporting symptoms, and not getting vaccinated.) There has been precious little done to hold correctional officer unions accountable for their colossal leadership failures.
  4. In the absence of releases, there’s been a lot of reliance on bottleneck provisions–stopping admissions from jails, which put the onus on jails to handle their own pandemic issues, often without data and without accountability. The counties have been left to figure things on their own, with dramatically varying degrees of success (see my analysis of this here.)
  5. The advent of the vaccine made a difference, both in terms of state enthusiasm to help incarcerated populations and in the courage of courts. How vaccines played into advocacy and litigation is a complicated story, which Chad and I will analyze more thoroughly in our book-in-progress, #FESTER: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract, UC Press.) In a nutshell, vaccines opened an avenue that allowed courts to avoid grappling with their paralysis regarding releases and recur to a short-term strategy to provide immediate relief from the current pandemic. And even this was not always necessary, given that many states got ahead of the courts and gave the vaccines.
  6. The most notable aspect of the deference/reluctance to do more for prison and jail populations was the prevalence of zero-sum games of deservedness (“grandma before inmates!”), which ignored obvious implications of geography and epidemiology: the idea that people in congregate settings, no matter who they are, face more risk, and that spaces that are jurisdictionally/institutionally set apart from society at large are, in fact, permeable to disease. This is going to be the main premise of #FESTER.
  7. The deservedness argument posed some difficulties in advocacy and organizing: does making the argument that jail populations are largely presumed innocent introduce the deservedness scale, which as Kovarsky and Garrett show was at play in the overall picture of relief? And, how to advocate short-term for vaccination while advocating long-term for releases?