Category: Prison Conditions

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.

Today, Judge Tigar held a two-hour case management conference in Plata v. Newsom to discuss the latest developments as described in the joint case management statement. On the agenda were specific issues such as vaccination plan and staff compliance, but in the background loomed the basic problem: the solution to this catastrophe is a mass release but none is forthcoming.

The conference opened with CCHCS Receiver Clark Kelso offering an overview of the vaccination progress and plans. So far, in skilled nursing facilities, they have vaccinated 2300 incarcerated people. In combination with people who recently had COVID, they are approaching 80 percent coverage in these institutions. The good news are that the refusal rate is very low–between 8 and 10 percent–especially compared to previous vaccination campaigns such as flu vaccines. In response to Judge Tigar’s question, Mr. Kelson explained that they will have a full documentation of the refusals.

Judge Tigar’s next questions were an effort to find out how far CDCR/CCHCS were from vaccinating the entire COVID-naive population behind bars, assuming that appropriate vaccine dosage would be available. Kelso explained that the next step is to offer the vaccine to everyone aged 65 and up (2000 people, if you exclude people who have been infected.) After that, the next priority would be people who have not been infected with COVID and have risk scores of 3 and above (CCHCS uses a scale based on CDC risk assessment, where they assign points to preexisting conditions.) Kelso estimated that this group–approximately 5200 people–could be vaccinated in about 7 days. The next scenario would be to tackle 42,000 people–the remaining people in CDCR custody who have not been infected–which would realistically take about 4 weeks. The severe nursing shortage was mentioned, of course.

The problem, as I explained in a previous post, is not buy-in from incarcerated people but from staff. Kelso explained that, so far, they have vaccinated 19,351 staff members, out of which 110 have received the second dose. In the three skilled nursing facilities, staff buy-in is 95% and full vaccination will be completed in a few days. The percentage of compliance among the staff is declining, and even though no one at the hearing provided a breakdown, it was widely assumed (probably with good reason) that the problem is with custody staff rather than with health care professionals.

At that point, Judge Tigar talked about the elephant in the room: the institutional unwillingness to take the obvious best step, which would be releases. “I have sometimes become emotional when discussing this,” he said, referencing the previous hearing, in which he mentioned people who died by name and showed their pictures. He said that he “cajoled and begged the governor to release significant numbers beyond the current numbers so we can avoid unnecessary sickness and death. So far these requests have, again, with all appreciation for the efforts that have been made, fallen on deaf ears. The consequence is now becoming more apparent. COVID has spread more easily than it had to, and we’ll never know for sure, but there is unknown number of people who got sick and died who didn’t have to.” Judge Tigar highlighted the importance of granting people the good time credits they are unable to earn because of the lockdowns, saying that “we’re overincarcerating and doing worse precisely when we were supposed to do later.” He also pointed out that he “[could not] overemphasize the need to release elderly infirm people. There is an alarming increase in deaths” (56 since the previous case management conference) and “we must ensure it does not continue. I take this case personally. I asked CDCR to send me the records of all the inmates from CMF and CHCF who died from COVID since the last CMC. The vast majority were elderly.” Judge Tigar was visibly emotional when describing incarcerated people who have to use commode chairs when going to the bathroom–and “when the virus came, they were defenseless, and they died.”

Judge Tigar then pressed CDCR counsel Paul Mello on whether the “primary reason” for the alarming infection rates was people’s refusal to move to safer housing. Mello replied that “in some instances people aren’t moved quickly enough but [refusal] appears to be the primary reason.” Judge Tigar urged to increase education, so that people “may appreciate the efforts being made to protect them.” This, again, led to the discussion of the thorny problem of the staff: refusals to wear masks and get tested. Judge Tigar probed as to what the reasons might be, getting very little input from the parties (here on the blog, I’ve looked into the twisted priorities of CCPOA, as well as at the possibility that the rank-and-file, like the rank-and-file of other law enforcement orgs, is a hotbed of Trumpist COVID denialism. I have searched high and low for surveys of correctional officers’ political opinions and found none.)

Even in the face of all this, Judge Tigar insisted that he is not yet at the point at which the PLRA enables him to release people pursuant to a finding of “deliberate indifference.” “if I could let people out I would do it today,” he said, but ” my view of the law is that I’m not allowed to do that.” The plaintiffs, of course, disagree, but Tigar seems very convinced that, legally speaking, his hands are tied, which he says is a “source of incredible frustration” to him. While he is not ruling out a future finding of deliberate indifference, he says, “we’re not there yet.”

While listening to the hearing, I was trying to ponder what was behind this sense Judge Tigar had that his hands are tied. Partly, it seems to stem from his reading of the PLRA, and partly from what seems to be his judicial psychology of this case, according to which “litigation is a very bad way to resolve this… communication is the right way.” A case in point was his effort to get to the bottom of the staff noncompliance. Tigar made an effort to get everyone on board: “Everyone doesn’t like low staff testing rates. We need to get them as high as possible. Why are they where they are to begin with?”

At this point, he turned to the CCPOA representatives, the union lawyer David Sanders and labor attorney Gregg Adam, in an effort to get the union’s collaboration at “[a] moment when CCPOA can become an invaluable partner if they want to, to keep their brothers and sisters safe.” This opportune moment, in my opinion, was ten months ago, but okay. Judge Tigar hammered home the need to get complete buy-in from the leadership: “If the captain says you have to wear a mask, then you have to wear a mask, no exceptions. If that becomes policy, that is how this is going to work.” The back-and-forth between the judge and union counsel offered another insight into Judge Tigar’s cooperative psychology: he told them that the benefit would be that compliance orders from above “create[s] an environment where you can publicly take the position that you don’t like masks but I wear one because I have to, because I don’t have a choice. If leadership is uniform, it creates a position where it is much easier for staff to be uniform. Consistent, off the job too. I’ve been hoping that CDCR/CCHCS would create videos for staff using staff. I asked and asked and asked more than you will ever know. Then I gave up. Then they did it and they’re great, I just saw them yesterday. Your staff will see them. And they make this point. You can’t be in the car with your friends driving to work or going to someone’s backyard thinking, I know these guys. COVID doesn’t care who your friends are. Need to wear is the same, on and off. On that level. [high command gives] order to do on job, expect[s] [compliance] off job, do it myself.”

One of Judge Tigar’s ideas was to solicit a volunteer in each prison who is “down with the goal” to report to a member of Kelso’s staff who “comes from custody and speaks the language.” He also seemed to set a lot of store by Prof. Amy Lerman of the Goldman School, regarding correctional culture and fostering compliance (this is good news, because insights into correctional culture is what we need.) Happily, Adam, one of the CCPOA representatives, also seemed to have respect for Lerman and also mentioned that they were planning to speak to Prof. Elizabeth Linos (whom Tigar referred to as the “persuasion guru” about compliance strategy. At that point, CCPOA counsel Sanders offered what seemed to me a very partial and revisionist history of CCPOA’s involvement in this issue, presenting CCPOA as the great champions of the original Plata release order, both because of the safety of their own employees and because they apparently thought that it was “morally and professionally wrong, what happened in our prisons – warehousing human beings and literally seeing them die because of conditions.” None of this explains why CCPOA, in the same breath, invested 4 million dollars in punitive propositions just in the last elections, while their own members were dying of COVID, or why they are suddenly in a rush to jaunt to Vegas amidst all this, but okay. Another thing we learned from Sanders is that Tigar’s exhortation to model good conduct would likely go nowhere because “we don’t represent captains” and because “sergeants and lieutenants don’t have collective bargaining power.”

At this point, when the conversation turned to isolation and quarantine, the hearing again touched on the heart of the matter. In the previous status conference, the plaintiffs asked that CDCR comply with the Receiver’s directives, but as infections and deaths soared, they changed tacks and asked that CDCR procure vaccinations for everyone. Mello’s reaction to this request was to resort to legalese: not only did they get the request too late, he said, “we think an order will be unnecessary and will constitute undue intrusion on authority.” There are also practical hurdles, he explained, and CDCR was not out of line by addressing this within the confines of current CDC health directives. Getting back to the PLRA hurdle, Mello opined that the plaintiffs face an uphill battle showing deliberate indifference with expert testimony.

While Tigar did not lose his temper–and seemingly agreed with Mello about the legal point–he clearly found the resort to legalese somewhat tasteless. “I think about this in a simplistic way,” he said, “I heard Mr. Kelso say that he needs 40,000 doses to get the job done. Two and a half million doses have already rolled in to the state. 40,000 is couch cushion money. Do we think that the governor can shake 40,000 doses loose? We can litigate this, and by the time the litigation will be resolved, this will be a dead issue. There are things I can do to expedite matters, but I have a much simpler question. Do we think the governor could shake loose whatever the number is, 40,000 doses to protect the population that he has already recognized is defenseless, deeply in need of this vaccination, and because of the role of prison [in the larger infection story] greatly affect public health in a positive way? Do you think he would shake them loose if I asked him to?”

Sara Norman of the Prison Law Office responded with a moral call to action. “This is not litigation about vaccination,” she explained, “it’s about quarantine, hundreds of thousands quarantined with shared air, which has resulted in significant illness and death.” The solution, she said, “has been obvious”; releasing people “is their choice and they have continued to place our clieets, their patients, at significant risk of harm. . . We are now saying there’s another solution.” Vaccination of incarcerated people–mandated by virtue of their classification as 1.B.2. in the priority list–is “within [CDCR’s] reach, they can do it.” Norman ended by quoting Yoda: “Do or do not, there is no try. It is up to them to do it.”

I’m left with a lot of questions. First, when will someone tackle the elephant in the room–Trumpist COVID denialism among the staff? Second, is “shaking loose” 40,000 doses a mere issue of friendly persuasion of the Governor? Most importantly, if all the horrors of the last ten months have not persuaded Judge Tigar that the PLRA’s deliberate indifference standard has been met, what is it going to take?