Category: Prison Conditions

This morning’s Chron is full of delights. Not only is Mayor Breed moving to make the marvelous restaurant parklets permanent, but our county is expanding its vaccination protocols to include several important populations, amongst which is our jail population! Aidin Vaziri reported:

The city will also open appointments to individuals who live or work in high-risk congregate care settings, including correctional facilities, homeless shelters and residential care and treatment facilities, the Department of Public Health announced Friday. People experiencing homelessness will also be eligible.

“Getting vaccinations to people with disabilities and who have severe underlying conditions, and people who are in congregate settings, is an important part of our efforts to save lives and protect our most vulnerable residents,” Mayor London Breed said in a statement.

This is a key move for the various reasons I explained in my previous post and in my new article. Other counties must follow San Francisco’s lead, and if they don’t, a state mandate must be put in place so that jail populations, which are transient by their very nature and a crucial juncture in the community-to-prison-to-community multidirectional pipeline, do not act as superspreading disease points. Here is what I wrote about vaccinating jail populations:

The advent of the Pfizer and Moderna vaccines opened a new avenue of advocacy on behalf of incarcerated populations. Given the prioritization of vaccinating people in congregate housing settings, such as nursery homes, similar arguments were made in the context of prisons. The same arguments can, and should, be made on behalf of residents of county jails. In California, the concerted effort of advocates and experts led to the classification of people in prison as vaccine priorities, in Tier 1B; despite a disappointing January retraction of this policy, as of February 23, 2021, 40 percent of the prison population has been vaccinated. Despite understandable concerns that incarcerated people might harbor mistrust and suspicion of prison authorities, which would stand in the way of administering the vaccine, the acceptance rate among incarcerated people has been high; refusal rates have only been problematic among the staff.

It is here where, once again, the jurisdictional-mechanistic approach to county jails works to the detriment not only of their residents, but of all residents of the surrounding and neighboring counties: Even before it was rescinded, the California state mandate extends only to state prisons. Counties were left to decide for themselves whether to prioritize their jail populations and, as in other matters, there has been considerable variation. Bay Area counties are ramping up vaccination for their jail populations; Kings and Tulare counties are vaccinating aging and infirm jail residents, while Merced and Fresno Counties have no set date yet to begin vaccination in their jails.

While these variations in vaccine policies could be simply manifestations of supply shortages, they might also represent political pushback in the counties of the sort seen in other states regarding prisons. In Colorado, for example, Governor Jared Polis responded to public pressure by ignoring expert opinions on the urgency of vaccinating incarcerated people for public health and downgraded this population in his plan. The Director of the Center for Bioethics and Humanities at the University of Colorado criticized this decision as guided by “moralistic argument,” explaining that “[i]t’s a very stigmatized population, and there are people who say, ‘They’re in prison, they must have done something terrible, and they don’t deserve a place in line.’”

The prevalence of such “moralistic arguments,” which compound public health priorities with hierarchies of perceived deservedness, might play into the struggle for vaccination in jails. As explained above, 75% of the California jail population consists of pretrial detainees who, of course, are presumed innocent; it is not difficult to imagine an appeal to public policy that distinguishes between these people and the presumably “less deserving” people in state prisons.

Despite its superficial rhetorical appeal, I strongly advise against relying on such an argument. Adopting the organic-geographical perspective that this article proposes implies seeing all incarcerated people in California as part of one porous carceral network, along a continuum that reaches to the outside community. The bottleneck effects of the jurisdictional approach have led to outbreaks; the way out of this quagmire requires accepting the need for population equilibrium and population reductions throughout the entire correctional system, regardless of administration and budgeting levels. Part and parcel of this essential population reduction is opening the jail floodgates, not only through releases to the population, but also as a two-way flow to and from the prisons. Under such circumstances, it is unacceptable to continue mixing vaccinated and unvaccinated populations. Moreover, 25% of the jail population consists of sentenced individuals, many of them for felonies; taking the deservedness argument to its conclusion would lead to the absurd policy of vaccinating only some jail residents and leaving others exposed. Such a policy would be impossible to justify and would have unbearable equity and public health implications.  

Instead, I propose advocating the vaccination of the jail population by relying on two arguments with organic-geographical appeal. First, it must be clear that the transient jail population poses at least as much risk to the surrounding community as the staff working among the less transient prison population. The reasoning for vaccination in both cases should be the same. In addition, there is a practical consideration that should appeal to counties and municipalities: running a vaccination enterprise at a congregate housing location with permanent medical staff would ease vaccine distribution, help with the dissemination of medical information, and possibly have the ripple effect of generating more vaccine acceptance among family members and friends of people who are vaccinated during the course of their jail residency.

While the project of vaccinating incarcerated populations is worthwhile, it raises the concern that the vaccine would come to be seen as the panacea for all correctional problems. This article’s review of the spillover of healthcare problems from prisons into jails should be a cautionary tale.

My recommendations for remedying the broken healthcare structure in county jails require a paradigm change, which would view jails not through the jurisdictional-mechanistic perspective, but as organic parts of their surroundings and communities. Unifying the administration of prisons and jails in California might be a pipe dream; however, at bare minimum, health care policies should be far better coordinated. Informational databases—not only involving healthcare, but also population shifts—should have seamless interfaces between state and county facilities (an inexcusable oversight in a state with such high technological literacy.) Aggressive efforts at hiring and retaining medical staff should target not only individual facilities, but also local county hospitals with an eye toward serving incarcerated populations as well. Most importantly, health care policies, ranging from preventative healthcare, nutrition and wellness, to emergency care, should start with families and schools, extending into jails and prisons as a continuum. These are crucial not only to curb the current pandemic, but also to prevent the pandemics of the future.

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For the first time in a year, there are some good news for CDCR facilities: As of this morning (see screenshot above) there are only 98 active COVID cases in the system, 90 of which are from the last 14 days. There are no new or major outbreaks in any of the prisons. For the first time in 11 months, CDCR’s case rate (95 new cases per 100k people) is lower than California’s (138 per 100k people.)

This situation is largely attributable to two factors: the vaccination rate at CDCR facilities, which is considerable (as of last month, more than 40% of the prison population had received at least the first shot) and, sadly, the herd immunity reached in some facilities with colossal infection rates, like Avenal and San Quentin (which, by the way, has been rightly chastised by OSHA to the tune of $400,000 in fines).

This reprieve could very well be temporary. This week, the CDCR population grew by 85 people (presumably transferred from county jails.) As Chad and I reported a few days ago, the transfers from jails in October and November correlated with outbreaks: 12 out of the 13 prisons whose population grew (presumably jail transfers) experienced subsequent outbreaks (the 13th facility had a big outbreak anyway.) The concern is that jail populations, whose vaccination process has been uneven and erratic, could restart the pandemic in prisons (and that’s beyond the concerns about the serious outbreaks in the jails themselves.) By contrast to prisons, which are operated by the state, jails are operated by the counties, and there is no state mandate requiring counties to prioritize their jail populations in their vaccination protocols.

I have a new piece on SSRN about the place of jails in the California COVID-19 crisis, which argues that BSCC must become the hero we need at this hour. BSCC must lobby the Governor’s office for a state mandate to vaccinate jail populations on a rolling basis, and put pressure on sheriffs to lobby their own counties for vaccine priorities. Vaccination must be a condition of employment for correctional staff and other jail workers. I hope you’ll read the whole thing, but if you’re short on time, here’s the abstract:

This Article examines a lesser-known site of the COVID-19 epidemic: county jails. Revisiting assumptions that preceded and followed criminal justice reform in California, particularly Brown v. Plata and the Realignment, the Article situates jails within two competing/complementary perspectives: a mechanistic, jurisdictional perspective, which focuses on county administration and budgeting, and a geographic perspective, which views jails in the context of their neighboring communities. The prevalence of the former perspective over the latter among both correctional administrators and criminal justice reformers has generated unique challenges in fighting the spread of COVID-19 in jails: paucity of, and reliability problems with, data, weak and decentralized healthcare policy featuring a wide variation of approaches, and serious litigation and legislation challenges. The Article concludes with the temptation and pitfalls of relying on the uniqueness of jails to advocate for vaccination and other forms of relief, and instead suggests propagating a geography-based advocacy, which can benefit the correctional landscape as a whole.

There are two advocacy angles unique to jails. The first is the transience of jail populations: people can stay in jail for periods ranging from a few days to years. This means transmissivity between jails, prisons, and the community is a challenge. The second, which I offer with some hesitation,* is that 75% of jail residents are pretrial detainees, who under our legal system are presumed innocent–all the folks who are muttering about how people in prison “deserve” to get sick, or “should have thought of this before they committed the crime,” do not have even that horrible argument where jail populations are concerned.

BSCC’s function throughout this crisis was neglectful at best and catastrophic at worst. For months on end, they let huge outbreaks go unrecorded and unaddressed, did not hold sheriffs accountable, and did not maintain data for the public. Even now, their database is shamefully clunky and does not interface with CDCR’s. Many counties are not even reporting their numbers. Now’s the time for BSCC to step up and prevent the next outbreaks.

*The hesitation comes from the fact that innocence or lack thereof, or any other variant of deservedness, should not be conflated with healthcare factors. Convicted prisoners should not be a lower priority because of their guilt.

In the aftermath of the upsetting removal of prison populations from Tier 1B of vaccination in CA, and the horribleness of the Colorado debate over vaccinating in prisons, come more unscientific blends of public health and deservedness. Another version of this is the nauseating “inmates-before-Grandma” soundbite from Wisconsin. And today, we hear that Tennessee has scheduled its prison population last in line, because a state advisory panel tasked with deciding in what order residents should receive the COVID-19 vaccine, which acknowledged that prison populations were high-risk, concluded that prioritizing them for inoculation could be a “public relations nightmare.” Kimberly Kruesi and Jonathan Mattise of the Associated Press report:

Documents from the meetings of the Pandemic Vaccine Planning Stakeholder group, did, in fact, stress the importance of the general public seeing that inmates “are people” who should be treated as “part of the community” and “if untreated they will be a vector of general population transmission.” Yet the documents concede that providing the vaccine to inmates would result in “lots of media inquiries.”

The panel comprises roughly 40 public health agencies, lawmakers, health care coalitions, emergency management and other organizations. Because it serves in an advisory capacity it is not required under Tennessee law to meet publicly, and no audio recordings of the meetings exist, according to the Department of Health. The AP obtained the meeting notes through a public records request.

According to the documents, the group first met, virtually, on Sept. 22, before vaccines were available. Tennessee’s incarcerated population came up during that meeting, when the committee talked about populations that may have been overlooked.

“Understand it would be a (public relations) nightmare but a possible liability to the state,” states one document, which is not attributed to anyone by name.

Later, in December, when the group met to discuss moving up certain age groups, as well as teachers, inmates were once again considered.

“If we get hit hard in jails it affects the whole community. Disease leaves corrections facilities and reenters general society as inmates cycle out of their sentencing,” the document reads, adding that when inmates get the disease “it is the taxpayers that have to absorb the bill for treatment.”

Ultimately, corrections workers and jailers were bumped up to one of the earliest slots, alongside first responders. Meanwhile, inmates remained in the last eligible group. Even now, senior inmates who may qualify under the state’s age qualifications are still not getting immunized.

I’m not only disgusted, but puzzled. Do people in Tennessee (and Wisconsin, and Colorado, and apparently now California) not understand (1) how prisons work or (2) how contagion spreads? Chapter 5 of our book-in-progress Fester: Carceral Permeability and the California COVID-19 Prison Disaster relies on modeling, some our own based on primary data and some developed by others, to show that tackling the outbreaks in prisons should be a priority not just from a humanitarian standpoint, but also from a sheer selfish perspective.

Consider the graph above, which shows infections over time in three groups of California counties: Counties with prisons in them, counties within 20 miles of prisons, and counties farther away. The waves of infection are clearly visible, not only in the sense that more distant counties have fewer cases, but also in that the outbreaks there occur later.

Consider also this more general graph of CDCR infections and overall state infections:

Our data shows that peaks in state infections closely follow (by “closely” we mean, a delay of about 14 days) peaks in prison infections. We can also show that the number of CDCR facilities within a given county correlates with the infection rate in the county:

Over the last few days, people of various political persuasions have talked with me about this, making some variation or other of the argument that “taxpaying, honest folks should be first in line.” Rather than launching into schoolmarmish scolding of their morals (tempting as it was), all I did was show them these three graphs. Vaccinating “inmates-before-Grandma” does not mean “inmates-at-the-expense-of-Grandma.” Eliminating Petri dishes for the virus is beneficial to everyone.

I’ve just finished listening to the California Assembly hearing, which in part discussed the OIG report about the botched transfer to San Quentin. Most of the attention focused on this part, as CCHCS Receiver Clark Kelso (depicted above) blamed San Quentin officials for their part in causing the outbreak (seeing Quentin and CCHCS blame each other is like watching an elegant train wreck.) No satisfying response was given to the question how we can prevent such situations in the future–or at least not ostensibly, unless one listened very carefully to the beginning of the hearing.

In the first part of the hearing, CDCR Secretary Kathleen Allison discussed budgetary aspects of CDCR management in the coming year–particularly the impending closure/transformation of at least two prisons: CCWF and DVI. She also commented on population fluctuations, focusing on population reduction (“lowest levels in 30 years”) and on the bottleneck at the jails.

Because some alert activists noted a recent rise in population at Wasco, we decided to check whether there was a bigger trend here. Chad Goerzen ran the numbers, and what we found may suggest that the mistakes that were made at Quentin are still being made–resulting in increased infections.

First, it wasn’t just Wasco. The graph below shows the change in net CDCR population in the last six months or so. As you can see, between mid-October and late November, CDCR population actually increased.

This afternoon, Dr. Peter Chin-Hong of UCSF and I participated in an event hosted by Eastern State Penitentiary, as part of their Searchlight series, on vaccinating incarcerated populations. Here is the full conversation:

https://t.co/hPSHDtumM2

— Dr. Hadar Aviram (@aviramh) February 3, 2021

A couple of hours after we finished the show, we got word of a fantastic development: federal litigation on behalf of incarcerated people in Oregon ended in a big human rights victory. Magistrate Judge Beckerman just ordered the Oregon Department of Corrections (ODOC) to vaccinate all state’s prisoners–12,900 people–as if they should have been vaccinated last month; in other words, to place all of them in 1A2 tier. The hearing ended with Judge Beckerman memorializing the 41 lives lost in Oregon’s prisons during this pandemic. Read the opinion in full here. A few highlights that are crucially relevant to the California scenario:

Our constitutional rights are not suspended during a crisis. On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless. Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody.

The Eighth Amendment imposes an obligation on Defendants to protect the people in their custody because they cannot protect themselves. . . Courts have also long recognized that prison officials have an Eighth Amendment duty to protect inmates from exposure to communicable diseases.

Plaintiffs’ recent evidence demonstrates that individuals in ODOC custody continue to lack the means to protect themselves from exposure to COVID-19 and, in some cases, risk being disciplined in attempting to do so.

Defendants argue that “it is reasonable and important to vaccinate correctional workers before AICs because they are a primary source of infection.” Defendants contend that, due to limited vaccine supplies, Oregon has reasonably determined that the most effective means for slowing transmission is first to administer the vaccine to ODOC staff and contractors.

The Court is not persuaded. First, Defendants’ argument is belied by their own Vaccination Plan. Defendants Allen and Governor Brown have included in Phase 1A individuals living in (1) “Residential care facilities”; (2) “Adult foster care”; (3) “Group homes for people with intellectual and developmental disabilities”; and (4) “Other similar congregate care sites.” This is evidence that Defendants are aware of the high risk of COVID-19 exposure and infection to individuals both working and living in a congregate setting, and aware of the importance of vaccinating both populations to protect against infection. AICs also live in a congregate care setting, yet they have been excluded from Phase 1A. Indeed, ODOC initially assumed that AICs must be included at this priority level “because ODOC has previously been classified as a congregate care setting by OHA[,]” which is why ODOC mistakenly began vaccinating AICs. In light of this recognition of the risks to those living in a congregate care environment, and the risk of those working in a correctional setting, the exclusion of AICs from Phase 1A supports a finding of deliberate indifference on the part of Defendants.

Additionally, while Defendants are aware that ODOC staff and contractors are the primary source of transmission of COVID-19 within ODOC facilities, they are also aware that only an estimated fifty-five percent of ODOC staff and contractors will elect vaccination. As of January 29, 2021, ODOC had administered 1,500 doses to eligible staff and contractors, for a vaccination rate of approximately thirty-four percent. Thus, even assuming that vaccinated correctional officers cannot spread the virus to AICs (an assumption public health experts have not yet endorsed), vaccinating only one out of every two or three correctional staff is inadequate to stop the spread of COVID-19 in the prisons. Simply put, Defendants are well aware of the risks of serious harm to both correctional staff and AICs and have chosen to protect only the staff.

The Court finds that Plaintiffs have demonstrated a substantial likelihood of success on the merits of its Eighth Amendment claim as applied to the Vaccine Class. The Court therefore enters the following preliminary injunction: Defendants shall offer all AICs housed in ODOC facilities, who have not been offered a COVID-19 vaccine, a COVID-19 vaccine as if they had been included in Phase 1A, Group 2, of Oregon’s Vaccination Plan.

Maney et al. v. Brown (2020)

I hardly need to tell regular readers of this blog that all of this applies, to the letter, to the situation in California. Here, too, the waffling about vaccinating incarcerated populations, and the policy of offering vaccines to the staff has backfired. As I explained elsewhere, the staff is the problem. Incarcerated people are complying at impressive rates, whereas staff’s compliance rates have been dire.

According to information I received from the Prison Law Office, as of of January 25, 2021, 8,349 incarcerated persons have been offered the vaccine. Approximately 84% of those patients accepted the first dose of the vaccine and approximately 99% accepted the second dose. Of those offered, COVID-19 naïve patients aged 65 or older accepted dose 1 of the vaccine at a rate of over 90% and dose 2 at a rate of over 99%; COVID-19 naïve patients with a COVID-19 weighted risk score of 6 or higher accepted dose 1 of the vaccine at a rate of over 90% and dose 2 at a rate of over 99%; and COVID-19 naïve patients with a COVID-19 weighted risk score of 3 or higher accepted dose 1 of the vaccine at a rate of approximately 86% and dose 2 at a rate of over 99%. 

Here’s the scenario, staff-wise: As of January 25, 22,068 CDCR and CCHCS employees (or approximately 35% of employees) have been given the first dose of the COVID-19 vaccine. Of these, 2,289 staff have received both doses of the COVID-19 vaccine.  Approximately 20% have had the disease. The reason for this reluctance, as well as the reluctance to wear masks, get tested, etc., has been the subject of much consternation at the Plata conferences, but beyond praising CCPOA’s counsel for showing up and making a video, little has been done to demystify this situation and provide a solution. For what it’s worth, today I learned from Dr. Chin-Hong that they are finding low compliance among nursing home staff as well, which is distressing.

We also have reports of vaccination at the federal prisons at Terminal Island and Lompoc, where about 20% of incarcerated people have been vaccinated, and several county jail systems where vaccination programs have been rolled out – San Francisco and Contra Costa in particular. Other jail systems are lagging behind.

In other words, the importance of vaccinating incarcerated people rises because of the low rates of cooperation from staff. The Oregon arguments are valid here, too. The Plata court must follow suit with a universal vaccination order, before more lives are lost.

In the heels of its two previous reports (see 1 and 2), and just in time for Round 2 of litigation in In re Von Staich (to assess whether an evidentiary hearing is required to modify the original order) comes the much-anticipated Part 3 of the Office of the Inspector General’s review of CDCR’s (mis)handling of the COVID-19 disaster. The report, which you can read in full here or peruse the fact sheet, is a scathing narrative of how CDCR botched the transfer from CIM in Chino to San Quentin and Corcoran prisons, bringing about the worst prison medical disaster in the United States. The report does not mince words: It is titled California Correctional Health Care Services and the California Department of Corrections and Rehabilitation Caused a Public Health Disaster at San Quentin State Prison When They Transferred Medically Vulnerable Incarcerated Persons From the California Institution for Men Without Taking Proper Safeguards.

The executive summary reads as follows:

Our review found that the efforts by CCHCS and the department to prepare for and execute the transfers were deeply flawed and risked the health and lives of thousands of incarcerated persons and staff. Insistence by CCHCS and the department to execute the transfers and subsequent pressure to meet a tight deadline resulted in the California Institution for Men ignoring concerns from health care staff and transferring the medically vulnerable incarcerated persons, even though the vast majority had not been recently tested for COVID-19. With outdated test results, the prison had no way to know whether any of the incarcerated persons were currently infected with the virus. According to email conversations that we reviewed, a California Institution for Men health care executive explicitly ordered that the incarcerated persons not be retested the day before the transfers began, and multiple CCHCS and departmental executives were aware of the outdated nature of the tests before the transfers occurred.

In addition to the department transferring the medically vulnerable incarcerated persons despite outdated tests, prison health care staff conducted verbal and temperature screenings on multiple transferring incarcerated persons too early to determine whether they had symptoms of COVID-19 when they boarded the buses. As a result, some of the incarcerated persons may have been experiencing symptoms consistent with COVID-19 when they left the prison. The risk of placing some symptomatic incarcerated persons on the buses was exacerbated by another inexplicable decision approved by CCHCS executives to increase the number of incarcerated persons on some of the buses, thus decreasing the physical distance between them, and increasing the risk that the virus could spread among the incarcerated persons and staff on the buses.

Once the incarcerated persons arrived at San Quentin, nursing staff immediately noted that two of the incarcerated persons arrived with symptoms consistent with COVID-19. Nonetheless, the prison housed almost all of the incarcerated persons who arrived from the California Institution for Men in a housing unit without solid doors, allowing air to flow in and out of the cells. By the time the prison tested the incarcerated persons for COVID-19, many of those who tested positive had been housed in the unit for at least six days. The virus then spread quickly through the housing unit and to multiple areas throughout the prison. The prison’s inability to properly quarantine and isolate incarcerated persons exposed to or infected with COVID-19, along with its practice of allowing staff to work throughout the prison during shifts or on different days, likely caused the virus to spread to multiple areas of the prison. According to data the department provided to support its COVID-19 population tracker, by the end of August 2020, 2,237 incarcerated persons and 277 staff members became infected with the virus. In addition, 28 incarcerated persons and one staff member died as a result of complications from COVID-19. In contrast, Corcoran, likely because it is a much newer prison consisting mostly of cells with solid doors, experienced a much smaller outbreak. An animated graphic displaying the progression of the COVID-19 outbreaks coursing through the various housing units at San Quentin and Corcoran after the transfers had been effected can be viewed on our website at www.oig.ca.gov.

Our review also found that when staff became aware of the positive test results shortly after the incarcerated persons arrived, both prisons failed to properly conduct contact tracing investigations. According to San Quentin, there were too many positive cases over a short period of time to conduct contact tracing. In addition, Corcoran staff failed to identify any contacts other than those living in cells adjacent to those of the incarcerated persons who tested positive. By failing to thoroughly conduct contact tracing, the prisons may have failed to alert some close contacts of the infected individuals, increasing the risk of further spread of the virus.

The report determined that the COVID-19 tests for almost all of the 122 men who were transferred to San Quentin were more than two weeks old by the time of transfer:

The report reproduces emails of directors and administrators within CCHCS who explicitly denied the staff’s requests to test the men before the transfer:

One nurse administrator documented the fact that two people on the bus were already symptomatic but were ordered to go on the bus anyway:

Symptom-checking was conducted too soon to be useful:

After a devastating section recounting how CCHCS administrators opted to transfer people in the bus without social distancing because “the benefit of a more rapid move in this specific situation appears to outweigh the risks” (p. 39), the report covers ground we already know–the failure at Quentin to properly isolate the newcomers. The report does not go into the interaction between the Marin county officials and the prison officials, which make the picture even bleaker. It also explains why a similar calamity did not occur at Corcoran: “Compared with San Quentin, Corcoran is a modern prison with a design better suited for quarantining and isolating incarcerated persons. Because the prison’s housing predominantly consists of cells with solid doors, Corcoran was able to place all arriving incarcerated persons in cells with solid doors. Doing so likely significantly reduced the spread of the virus at the prison, as only two of the 67 incarcerated persons who transferred from the California Institution for Men contracted the virus after the transfer” (p. 42.) Against this backdrop, the location chosen to house the newcomers seems even more disturbing–the report includes images of mesh doors in the South Block unit, also known as the Badger unit.

One aspect of the report that seems especially important is the repeated reference to the fact that the prison authorities were aware of the risks they were taking. The email chains reproduced in the report are truly damning in terms of their evidentiary power. This matters because prevailing in a lawsuit about prison conditions requires not only negligence, but a higher standard known as “deliberate indifference.” This requires proving that authorities were aware of the risk they were creating and decided to act anyway. Seeing how this awareness permeated all levels of command within CDCR/CCHCS offers proof of deliberate indifference, and it is hard to think, given the actions of the prison once the newcomers were there, that they could show anything in mitigation.

Obviously, this has crucial legal ramifications for Von Staich, Ruiz, Hall, and beyond, so CDCR/CCHCS have issued a joint statement, according to which they “disagree with the information” in the report. This is nonsensical. One can disagree with an opinion, but to “disagree” with information? The information is either true or not true, and in this case it’s rather obvious it’s true, as the emails are screenshot and reproduced verbatim in the report. We know what happened, we have obvious, factual truth that they knew and chose to disregard the risk, and no milquetoast “disagreement” is going to change that.

Beyond the obvious, today has been auspicious in a personal way, too. I’m elated to share that my book with Chad Goerzen, FESTER: Carceral Permeability and the California COVID-19 Prison Crisis, is under contract with the University of California Press. This will be my fourth book (after Cheap on Crime, The Legal Process and the Promise of Justice, and Yesterday’s Monsters) and my third with UC Press. It will also be Chad’s first book. Chad is a superb research engineer and data scientist with the San Jose State Research Foundation and my partner of 17 years.

The book will bear witness to the COVID-19 catastrophe in California Prisons and will feature multiple sources and research methods. We rely on archival and journalistic sources, oral histories and interviews with people who experienced the crisis, and quantitative modeling and analysis of data from CDCR, the New York Times, the L.A. Times, and the BSCC.

The theoretical framework of the book–the concept of carceral permeability–relies on a synthesis of carceral geography, situational crime prevention, and prison health scholarship.

We are hard at work on the book and hope you will have it in your hands, at the latest–COVID and our son’s preschool permitting–in early 2024. In the meantime, you can continue to read about this catastrophe on this blog, or follow the book on Twitter using the hashtag #FESTER.

Late last week I received the second joint request by the parties in In re Von Staich to reschedule the deadline for briefs. The parties cite workload and other pressing cases. Given the inscrutability of the California Supreme Court decision, I bet no one knows exactly what to write; remember, the Court remanded the case to the Court of Appeal with instructions to “reconsider the cause in light of People v. Duvall“–in other words, to reconsider whether an evidentiary hearing is necessary.

But what does an evidentiary hearing even mean at this point? Litigation thrives on dissecting the wrongs of the past, based on an unchanging (if disputed) set of facts. COVID-19 is anything but unchanging. When we held our press conference outside the main gate at Quentin, and when I filed our amicus brief in Von Staich in August, San Quentin was amidst the most serious outbreak in the country; UCSF doctor Peter Chin-Hong referred to San Quentin as “the Chernobyl of COVID-19.” Even in September, when oral argument took place, Justice Kline understandably bristled at CDCR representative Kathleen Walton’s argument that there was “no need to act hastily.”

And now? Look at this morning’s snapshot from the CDCR infection ticker. Every single prison has cases, but not all places are alike. San Quentin has only four active cases; like a few of the prisons who had horrific outbreaks just a couple of months ago, it is not a hot spot. By contrast, some of the places that were COVID-free for months are now seriously afflicted. Disturbingly, one such place is CMF in Vacaville, which is a medical facility with large numbers of aging and infirm people and was one of the initial vaccination grounds. This just came in from one of the activists helping people at CMF:

On December 11, the number of positive cases at CMF was 2. On December 12, the prison went under lockdown. Within five days, the number of cases had risen to 58. As of last night (1-17), the number of positive cases on the tracker was 260 (about 13% of the population). At the height of the outbreak, the total was 463. In all, 520 people (about 26% of the population) have been infected, and seven have died. Also, there was not a single drop in numbers until 1-6, 25 days into the outbreak, with the numbers going up as much as 50 or 58 in a single day on a few occasions.

Before the outbreak began, reports from incarcerated people and their loved ones of correctional officers refusing to wear masks and the incarcerated population not having access to cleaning supplies had persisted for months. Additionally, some incarcerated people have said that they had not been given new masks when their old ones wore out to the point of being ineffective–until 12-24, that is (a whole 12 days into the outbreak), when new masks were finally distributed.

Since the outbreak, we have heard horrific accounts of conditions inside. D- dorm at CMF is currently being used as a triage / Covid positive dorm. The dorm was formerly used to house the dogs that were part of the Paws for Life program. The dogs were removed shortly after the start of the pandemic, and the dorm was not cleaned prior to being used for quarantine. It is filthy. There are no porters available to clean because they are all sick with covid. Staff are not stepping up to help clean, and the few incarcerated who are well enough to clean are not being given adequate cleaning supplies. Laundry is not being picked up. The strain of covid that is moving through CMF is causing severe diarrhea. Several people have soiled themselves and do not have access to clean clothes. Each person is only being given one roll of toilet paper per week. This is nowhere near enough for those experiencing diarrhea.

Nurses are refusing to go bed to bed to check on people. They expect sick and bedridden people to line up in the middle of the dorm to have their vitals taken, with the result that the people too ill to get up are being missed completely and not getting help when their conditions become life-threatening. Around the end of December, a man fainted and defecated on himself. When medical staff refused to respond to calls for help, other incarcerated people in the dorm, who were themselves ill, cleaned him up and carried him to his bed before he was finally taken to an outside hospital. In a similar incident, a man fainted and was refused medical attention for hours before finally being carried out on a stretcher. Staff are hesitant to call ambulances because they are concerned about how it will look with regard to the Plata litigation. Correctional officers tell the nurses to call for ambulances, and the nurses ignore them. They would rather refuse to get people the proper medical attention they need than make it look like they’re incapable of caring for them at the prison.

The incarcerated who are too sick to cook for themselves are still being given raw vegetables like onions, on top of the already deplorable food situation. Food amounts are proportionally small, not enough for an adult. Some correctional officers are not wearing masks or refusing to wear them properly. Many refuse to wear gloves. Some are moving around from positive to negative units, socializing with other COs. Many believe this is intentional for the purpose of spreading the virus around the prison. People who are sick are not being given access to over-the-counter medications, and only a select few are being given antibody treatments. The incarcerated have been moved from one area to another in hopes of containing the virus. This, apart from being completely ineffective, has presented additional problems of loss of property.

Access to phones has been restricted drastically, so families are not in contact with their loved ones to know what is going on. The hearing impaired are further restricted, as they are barred from the specially-equipped phones they would normally use. In fact, phone use was completely suspended on 12-21 in part of the prison on the grounds that this was the cause of the spread. Quite apart from being untrue, this had the effect of further restricting people\’s access to their loved ones, which was severely detrimental to the mental health of all involved until the restrictions were modified. The disabled population at CMF, who are supposed to have assistance with various daily living tasks from other incarcerated people (people who are employed to do this specific job as their work assignment), have seen this help severely hampered by the outbreak. People with disabilities are required to be accommodated under the Americans with Disabilities Act, and no alternative accommodations for the disabled at CMF have been offered.

Many of the population at CMF are over 60, and many have medical conditions such as diabetes, AIDS, and high blood pressure–all of which put them at higher risk of serious complications if they were to be infected with covid. Some are already being held in a hospice unit due to terminal illnesses. Some have covid risk scores, as defined by California Correctional Health Care Services (the office responsible for healthcare in prisons after conditions were declared unconstitutional), as high as 16. Hospitals in some parts of California have already begun to turn away the incarcerated, and many are talking of rationing medical care. If they do, they will deny treatment to those they deem to be less likely to survive a covid diagnosis. This would be catastrophic for anyone from CMF in need of hospitalization. There is a dorm at CMF that holds 21 wheelchair users. There are not enough wheelchair-accessible single cells to facilitate the quarantine of these people, resulting in the spread of the virus through this dorm. Poor ventilation within the prison is also a facilitator of the spread.

I don’t know how the parties in Von Staich are going to pretzel their arguments around the shifting map of COVID, and because this is a blog, not a courtroom, I’ll be brutally honest. The vagueness of the Von Staich remedy (strongly urging CDCR to release aging and infirm people, but explicitly stating that transfers are a viable path to compliance too), coupled with the moral paralysis at the governor’s office and at CDCR, led to a situation in which the “relief” that CDCR was willing to provide–i.e., transfers from Quentin to other prisons–was worse than no relief at all. People wrote to me from inside saying that programs they deeply cared about, which are not offered anywhere else in the system, were going to be denied to them; others wrote and said that there was historical bad blood between Quentin people and people in other prisons, compounded with its identification at the time as “the COVID prison” and that they were worried of retaliation if transferred elsewhere. In the Marin consolidated cases, the AG representative, Denise Yates, twisted this to argue that “petitioners can’t have it both ways.” I lost sleep wondering if our big win in Von Staich hadn’t made matters worse for everyone (Von Staich himself was released from CDCR, and immediately found himself ensnared in the federal court system via an ancient Bureau of Prisons hold from before his incarceration in 1981, which in itself raises serious questions.) We’re seeing the Achilles heel of trying to litigate this horror via state courts, which have jurisdiction only over a particular prison based on district.

Are we faring better in federal courts? The federal system has been the classic venue for prison litigation, but its ability to do something has been seriously curbed by the PLRA. As Margo Schlanger shows in her 2015 article, case filings took a serious nose dive after the PLRA’s enactment in 1996 and never bounced back, while prison and jail populations (and, subsequently, problems and grievances) continued to grow.

We are seeing the fruit of this problem in Plata v. Newsom. In my recap of the last case management conference I quoted Judge Tigar, who said, “if I could let people out I would do it today,” but “my view of the law is that I’m not allowed to do that.” I was not entirely clear, during the conference, how much of this is Tigar’s analysis of the extent to which his hands are formally tied by the PLRA–he has shed tears more than once over the COVID prison crisis, including at its initial statement–and how much of this is his judicial psychology of catching flies with honey by bringing CDCR and the CCPOA on board. And now we learn, per my source at CMF, that the need to perform compliance for the purposes of the Plata litigation is obstructing, in horrible ways, actual compliance that can save lives.

Where does this leave us? When dealing with bad faith and obfuscatory antics, there’s very little point looking for justice in places that champion gentleness and restraint. Vague remedies that allow transfers, rather than just releases, invariably and immediately lead CDCR to embrace transfers as their go-to strategy, and then use the ensuing horrors to come to court, shrug their collective shoulders, and say, “but we thought that’s what you wanted!” Petitioning and cajoling the governor, unsurprisingly, is not nearly as effective as ordering him to release people would be. Documentation amasses, judges and parties complain about caseloads and information overloads, and in the meantime people continue to die.

Speaking of the ultimate horror, I neglected to report on the first wrongful death suit filed against CDCR, on behalf of the survivors of Daniel Ruiz who died at San Quentin. Here is the full claim:

Claim Form.govt Code Claim.091020 by hadaraviram on Scribd

The claim articulates the facts of the San Quentin disaster as we already know them, with an extra wrinkle of cruelty: “Due to the policies promulgated and enforced by [CDCR, the hospital and medical personnel] were prohibited from informing [Ruiz’s] family. . . that he was there, or gravely ill, or dying from COVID-19. Respondents denied Daniel any contact with his family for many days, until shortly before he died.”

I initially thought that the heartlessness and trickery of the AG’s office was an effort to preempt an avalanche of wrongful death lawsuits and the prospect of high amounts in damages. But securing a law firm that can litigate a case like this, even on behalf of one person, is a tall order, especially for people who are impoverished already and trying to survive in the pandemic. The result is that even this path makes it a steep uphill battle to seek redress or make any changes.

The only thing that can make a dent in this crisis is an initiative to release aging, infirm people en masse. But the good will necessary for this is not forthcoming. The very people nationally hailed as heroes of the anti-Trump resistance have consistently defended untold villainy on the local stage, resulting in horrific sickness and death. This is something to ponder as we dance around the Trump Administration’s funeral pyre tomorrow.