CDCR Vaccination: The Staff Is the Problem

A few weeks ago, when I pushed to prioritize prisons in California’s vaccine plan, I identified two serious problems: historically understandable mistrust of CDCR by the incarcerated population and COVID-19 denialism among prison staff. Earlier this week I participated in an extremely informative call with lawyers, AMEND doctors, activists and advocates, regarding the progress of CDCR’s vaccination program, the upshot of which is: The staff is the problem.

Here’s a quote from an email sent by the excellent Sara Norman of the Prison Law Office:

The State is currently vaccinating people in Phase 1A, which is three million people; they only have about two million doses so far, though, and have only vaccinated about 500,000.  Phase 1A includes people in long-term care facilities and some frontline medical workers, which in CDCR means people incarcerated at CCWF skilled nursing facility, CMF, and CHCF (all of which are in the middle of their first serious outbreaks) and some staff at all the prisons.  So far, we know that at least 1200 incarcerated people have been vaccinated (first dose).  As I mentioned on the call, CCHCS (the federal Receiver who runs health care in CDCR) expects to offer the vaccine to everyone at those three prisons within the next week or two. 

Our understanding is that at some point today, the California Department of Public Health will officially post the Phase 1BTier Two vaccine eligibility list, which will include all people who are incarcerated.  Statewide, there are about eight million people in Phase IB, counting both Tiers 1 and 2.  We are told that CCHCS expects to receive vaccine to start its Phase IB work in about 10 to 14 days. 

Sara added a few important points in her overview on the phone call. The acceptance rate among incarcerated people was not 100%, but it was quite high; as of Tuesday, 1227 vaccines were offered and only 108 were refused (this is a considerably higher rate of compliance than the rate in the general population.) The PLO spoke to the people who refused and identified some problems with vaccine education and communication, which should not surprise you if you’ve read this post.

The vaccination plan at CCWF, CMF, and CHCF is quite ambitious–they plan to offer the vaccine to every single person at these facilities in the next few days. The challenges they face involve serious nursing shortages. Not only do they need medical personnel to administer the vaccines and care for the sick, but they need to check vitals for the thousands of isolated people twice a day. The strain on the nurses is incredible, but they are forging through with the plan, including exhortations and threats of dismissal from Shereef Aref, the Chief Executive Officer of CCHCS. Paige St. John of the Los Angeles Times reports:

“A refusal to a mandate is insubordination,” Dr. Shereef Aref wrote. “It is not acceptable and it will not be tolerated.”

First refusals will result in a write-up, Arf wrote. “A second refusal will be referred, as a request for Adverse Action, to the Hiring Authority.”

One prison medical worker, who spoke anonymously out of fear of losing her job, said the stress was intense.

“Nursing staff [have] children out of school; to be away 16 hours not including walk time to the parking lot and drive time home could add up to 18 hours a day,” she said. In many cases, both spouses work at the prison. “It’s stressful. There is no such thing as ‘social distancing’ in prison.

“Also, the office staff have masks, but if you go on a housing unit, very few have masks because of the scarcity. … We are confused as to why they seem to have masks for administrative posts.”

She added, “Oh, and an inmate committed suicide yesterday. And two officers committed suicide in March.”

The Prison Law Office personnel were told that other incarcerated people, particularly people who are under inpatient care, were next on the list, and that the plan would roll to other prisons in mid-January, prioritizing people according to a complicated COVID-19 risk algorithm, which highlights the need to target people who are “covid-naive,” i.e, who have not contracted COVID-19 in last 90 days. Among those people, the first to be offered the vaccine are at higher risk due to age, preexisting conditions, or both. Reportedly, no thought is being given to the differences between CDCR facilities who have and have not reached herd immunity the hard way. Nor has there been an effort to prioritize incarcerated firefighters, despite the obvious transmissibility reasons that put them at the top of the list for other vaccines.

But even these are minor problems compared with what is emerging as the most serious problem: the staff. Vaccines have been rolled out for staff at all institutions, prioritizing medical and frontline workers or people who work directly with patients, but generally the plan is to offer the vaccine to all staff throughout January and February. The administration of staff vaccination has been contracted out of CDCR/CCHCS to another organization. So far, 6,700 staff members have been vaccinated, most of them at CHCF and at CMF. However, there is disconcerting evidence of significant refusal rates among staff. Incarcerated people have heard rumors that 40% of staff members are refusing the vaccine. Also, in response to a CDCR survey, about 40-50% reportedly expressed reluctance about vaccination, citing reasons such as “I wanna wait and see what happens.” The people on the call were unsure whether there was any educational campaign targeted at the staff, nor did anyone seem to know whether CDCR, as employer, would condition employment upon vaccination. In case you’re wondering whether terminating vaccine refusers from employment at CDCR would be legal from an employment law perspective, the answer is: yes, it would be.

This distressing information suggests that the problem is not only with CCPOA leadership, who have been far more interested in spending millions on losing punitive voter initiatives than in the health of their membership, but also with the rank and file, where Trump-style COVID denialism seems to have found a solid foothold. Just this week, we had ample proof of what happens when vast ignorance, misinformation campaigns, and fetid ideologies come together, right? To my shock and amazement, in the face of thousands of their colleagues sick and twelve staff deaths, including two in December, prison guards are planning an excursion to… Las Vegas for a board meeting. Wes Venteicher of the Sacramento Bee reports:

The union for California state correctional officers has invited representatives from every prison to gather in Las Vegas for a board of directors meeting even as their institutions contend with surging coronavirus outbreaks.

The California Correctional Peace Officers Association’s board includes representatives from all 35 prisons plus some members who represent officers outside prisons, such as parole agents and officers who work at fire camps.

Also invited to the two-day meeting, scheduled for Jan. 26 and 27 at Caesar’s Palace, are roughly a dozen members of the union’s committees along with retired chapter members, according to a website set up for union members to make travel arrangements.

A dozen state prisons have reported more than 200 new COVID-19 infections among inmates in the last two weeks, and another six have reported more than 100 new infections. More than 2,500 prison employees have reported new infections in the last two weeks and about 13,000 out of 55,000 have contracted the virus since the start of the pandemic.

Most large in-person meetings have been canceled during the coronavirus pandemic due to concerns about creating “super-spreader” events in which an infection may be passed around and then spread far beyond the group when the gathering is over.

California has prohibited most in-person gatherings of more than one household, whether they are held indoors or outdoors, under emergency orders. Nevada permits gatherings of up to 50 people.

Glen Stailey, the union’s president, referred questions to a union spokeswoman when reached by phone Wednesday.

“These meetings are important to the association and its members as it relates to many topics including COVID-19 inside prisons,” CCPOA spokeswoman Nichol Gomez said in an email.

Gomez said the group would follow all Nevada and California state protocols and is “constantly evaluating the situation and will make decisions accordingly.”

Gomez did not respond to questions about how many of the members who have been invited plan to attend, nor did she say whether the members plan to get tested or quarantine before or after the trip.

Note that the quarterly meeting is typically held in Sacramento. Apparently, CCPOA leaders decided that early 2021 was the right time to party. If, as Gomez stated, the meeting “relates” to COVID-19 inside prisons, they don’t apparently mean “relates” as in “aims to prevent.” The risk that Christmas gatherings of COVID-denier staff members may be partly to blame for the horrific infection rate does not seem to have been considered. In the absence of any positive educational or other initiative from their employer or union, the only visible effort addressed at reducing COVID-19 denialism among correctional staff comes from our good friends at Amend SF. In the off-chance that you, dear reader, are a correctional staff member and are reading this and open to persuasion, please, in the name of everything that is holy, watch this and share it widely with your colleagues:

COVID-denialism among staff affects not only the odds of infection among incarcerated people, but also the messaging they receive from staff members. Several people with good friends and loved ones behind bars mentioned that their connections inside have heard correctional officers tell incarcerated people that they can die from taking the vaccine and that COVID-19 is not real.

In the face of this problem, and the dearth of efforts by CDCR to quash this ignorance, I have two proposals. The first involves health officers in all cities and counties surrounding prisons in California–people like Dr. Matthew Willis, Marin County’s top health official, who tried to stop this disaster and were sidelined and ignored. This is your moment. Please organize and liaise not only with the prisons in your respective counties and demand that they condition employment upon vaccination. Tell them that there is now quantitative data, some of which comes from our original research and some from the work of others, to show the impact of their neglect on your communities. These COVID-19 deniers among the staff are endangering you and the people who live in your county. Please get involved, as there is not a moment to lose.

The other proposal is mine, and its logic is simple: If the staff won’t do their part to protect incarcerated people, we need to raise the vaccination rate among incarcerated people as close to 100% as we possibly can. And so, dear reader, if you are a formerly incarcerated person–especially if you’ve only recently been released and you still have some good friends inside–I need your help. I can also use help from family members and loved ones of incarcerated and formerly incarcerated people. Please send me a short video you can film on your phone–make it shorter than a minute, so someone inside might be able to watch it quickly–in which you address the folks you know and care about inside. Be sure that your video includes:

  • a bit of info about yourself: your name, anything you’d like to share, where you were incarcerated, and when you were released
  • why you care about COVID-19 in prison: your worries and fears about your friends getting seriously sick
  • explicitly state that you plan to take the vaccine when it is offered to you, and why
  • encourage your friends to do the same when the vaccine is offered to them
  • express compassion and empathy for the concerns and uncertainty they may have and counter it with solid facts and with your love for them

Email me your video to aviramh at uchastings dot edu. I will display it prominently, with a little intro about the specific facility where you know people, here on the blog.

Thank you very much for your collaboration–let’s save as many lives as we can together. As Rabbi Hillel said almost two millennia ago: If I am not for me, who will be for me? And when I am for myself alone, what am I? And if not now, then when?

Herd Immunity at CDCR, and the Worst of All Worlds

Remember this headline? You might have missed it, what with the onslaught of news and scandals. In mid-December, emails made public by the House committee overseeing the government’s pandemic response show that Paul Alexander—who was installed by President Trump in April to lead the HHS’ communications efforts—wrote to his higher-ups multiple times throughout June and July arguing that there is “no other way” to tackle Covid-19 except establishing “herd immunity” by allowing non-risk groups to expose themselves to the virus.

“Infants, kids, teens, young people, young adults, middle aged with no conditions etc. have zero to little risk,” wrote Alexander in a July 4 message to his boss, Assistant Secretary for Public Affairs Michael Caputo, saying “we want them infected” to help “develop herd.”

Similarly, on July 24, Alexander wrote to the Food and Drug Administration’s Commissioner Stephen Hahn, Associated Commissioner for External Affairs John Wagner and numerous top HHS officials arguing that it “may be best to open up the flood zone and let the kids and young folk get infected.”

In the emails, Alexander also acknowledged that the Trump administration was aware its policies would increase the spread of Covid-19, urged HHS staff to release more “positive statements” in support of the administration’s pandemic response and cast blame on scientists like Dr. Anthony Fauci for offering less rosy assessments of the situation, accusing them of trying to “make the president look bad.”

The published emails don’t include the replies from Alexander’s supervisors to his guidance aside from a skeptical—“How can this be researched and proven true or false?”—written by Caputo in response to a claim made by Alexander about herd immunity on a cruise ship.

The HHS has previously disavowed herd immunity, with Secretary Alex Azar in October insisting it was “not the strategy of the U.S. government with regard to the coronavirus,” although the House watchdog pointed out that high-profile members of the administration on multiple occasions echoed the messaging promoted by Alexander soon after his emails were sent.

The agency drew a thick line between itself and Alexander in a Wednesday statement to Forbes, saying “his emails absolutely did not shape department strategy” and emphasizing that he was a “temporary Senior Policy Advisor to the Assistant Secretary for Public Affairs and is no longer employed at the Department.”

I’m quoting this because the idea of herd immunity by infection offers a useful, if grim, lens to look at the status of CDCR infections. Right now, CDCR has 6406 new confirmed cases in the past 14 days, and the overall infection number has risen to 41,449 cases–more than 40% of the entire prison population. All prisons have outbreaks, and 29 out of 36 prisons have serious outbreaks (more than 50 cases.) But in some prisons, the rate of infection is staggering. According to today’s data, eight prisons have had more than 60% of their population infected:

CVSP    96%
ASP     92%
CRC     91%
SQ      81%
PVSP    71%
CIM     70%
SATF    68%
FSP     62%

We chose 60% and above because estimates of the rate of infection necessary for herd immunity is estimated by experts to hover between 60% and 80%.

In case you are inclined to see this as good news, don’t. Here’s a primer from Johns Hopkins about herd immunity, which was written in April, when the current infection rates in the U.S. seemed horrendously farfetched. “As with any other infection,” they explain, “there are two ways to achieve herd immunity: A large proportion of the population either gets infected or gets a protective vaccine.” They go on to explain why the former option is not a good idea:

With some other diseases, such as chickenpox before the varicella vaccine was developed, people sometimes exposed themselves intentionally as a way of achieving immunity. For less severe diseases, this approach might be reasonable. But the situation for SARS-CoV-2 is very different: COVID-19 carries a much higher risk of severe disease and even death.

The death rate for COVID-19 is unknown, but current data suggest it is 10 times higher than for the flu. It’s higher still among vulnerable groups like the elderly and people with weakened immune systems. Even if the same number of people ultimately get infected with SARS-CoV-2, it’s best to space those infections over time to avoid overwhelming our doctors and hospitals. Quicker is not always better, as we have seen in previous epidemics with high mortality rates, such as the 1918 Flu pandemic.

 It would be tempting to juxtapose the Paul Alexander emails and the CDCR numbers and suggest that CDCR’s COVID-19 policy team have lifted their prevention strategy straight out of Trump’s playbook, but I think that assumes a much higher degree of premeditated planning than what is actually going on, which is chaos. Systemwide, the percentage of infections (more than 40%!) is staggering, but not at a high enough level to provide herd immunity for a minority of non-infected people; institution-wide, this means that CDCR’s explicit party line–transfers, rather than releases as its modus operandi–is likely to backfire spectacularly. Shifting people from places with fewer infections to places with more infections puts their lives in danger and risks transferring the new strain of COVID-19 before the vaccination plan is completed (I will post about how that’s going tomorrow, but for now just know that vaccinations are not underway in the worst outbreak sites and that the priority process raises serious concerns.) Shifting people from places with lots of infections to places with fewer infections, as the so-called “remedy” CDCR has fashioned for the San Quentin disaster, dilutes herd immunity and generates horrific outbreaks like the ones we’ve seen at Avenal, Folsom, SATF, CVSP and other facilities.

These problems are going to persist as long as CDCR willfully ignores the obvious solution: release aging, infirm people to the community, where they are safer for all of us.

BREAKING NEWS: Important Legal Developments in Quentin, Plata Cases

The last few days have seen key developments in all three major COVID-19 lawsuits against CDCR. On the San Quentin front, the California Supreme Court granted CDCR’s petition for review… but this is not necessarily bad news, just complicated. I’ll start by providing the decision in Von Staich and the order in the Marin cases, and follow up with commentary. Here’s the grant of petition for review:

The Attorney General seeks review of the judgment of the Court of Appeal, First Appellate District, Division Two, which found that prison officials have been deliberately indifferent to the health and safety of prisoners at San Quentin State Prison during the COVID-19 pandemic. The court ordered officials to remedy the constitutional violation by designing a plan to reduce the population of the prison to 50 percent of its June 2020 population, through either additional releases from custody or transfers to other institutions.

The questions raised by the petition are undoubtedly substantial. The health and welfare of individuals in the state’s custody during the pandemic, and the appropriate measures for their protection, are matters of clear statewide importance. As the Court of Appeal explained, “[t]he Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution both require correctional officials to provide inmates adequate medical care” and prohibit prison officials from being ” ‘deliberately indifferent to the exposure of inmates to a serious communicable disease’ [citation].” (In re Von Staich, filed opn. at p. 18.) 

The Court of Appeal ruled on the basis of the documents submitted and oral argument, without holding an evidentiary hearing. As the case now comes to this court, it appears that there are significant disputes about the efficacy of the measures officials have already taken to abate the risk of serious harm to petitioner and other prisoners, as well as the appropriate health and safety measures they should take in light of present conditions. For this reason, we return the case to the Court of Appeal with instructions to consider whether to order an evidentiary hearing to investigate these matters before judgment is pronounced. (See People v. Duvall (1995) 9 Cal.4th 464, 482-483, 485.) As we have repeatedly advised in other cases raising similar issues, the matter should be resolved as expeditiously as is consistent with sound adjudication, given the exigent and evolving circumstances concerning COVID-19.

The request for judicial notice is granted. 

The petition for review is granted. The cause is transferred to the Court of Appeal, First Appellate District, Division Two, with directions to vacate its decision and reconsider the cause in light of People v. Duvall, supra, 9 Cal.4th at pages 482-483 and 485, the Attorney General’s Return to the Order to Show Cause at pages 13-19, and the supporting Memorandum of Points and Authorities at pages 32-38. (Cal. Rules of Court, rule 8.528(d).) 

The request for depublication is denied.

Votes: Cantil-Sakauye, C.J., Corrigan, Liu, Cuellar, Kruger, Groban and Jenkins, JJ.

And here’s the order in the 311 Marin County cases:

122420 Order Staying Further Proceedings & Vacating Individual Orders by hadaraviram on Scribd

Here’s what’s going on. Von Staich was decided on the basis of a case called People v. Duvall, which clarified how habeas corpus cases should be heard in court. Under Duvall, when someone petitions for habeas corpus and claims that the government is holding them under unconstitutional conditions, the government must provide a return that “allege[s] facts tending to establish the legality of petitioner’s detention. . . The factual allegations of a return must also respond to the allegations of the petition that form the basis of the petitioner’s claim that the confinement is unlawful. . . In addition to stating facts, the return should also, “where appropriate, … provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.”

The Court of Appeal in Von Staich relied on a fairly straightforward application of Duvall. Because the AG representatives of the San Quentin warden did not actually present evidence showing that the prison authorities’ behavior was appropriate, all the Court was left with was the AMEND report, which stated that no appropriate social distancing could take place unless the prison population were to be reduced to 50% of design capacity. The return did not provide any contrary medical opinion. The Supreme Court seems to disagree with the Court of Appeal, finding that the “significant disputes about the efficacy of the measures officials have already taken” to ameliorate the Quentin catastrophe, an evidentiary hearing might be warranted. As a consequence, the actions taken by the Marin court toward relief for the hundreds of San Quentin petitioners have been frozen until the Court of Appeal determines whether to hold an evidentiary hearing to examine whether the steps taken by the prison authorities can undermine the findings of “deliberate indifference.”

This is not necessarily a bad development, for several reasons. First of all, it is dubious that CDCR, and the AG, could put on any convincing evidence to show that the measures they took, short of releasing people, adequately put them out of “deliberate indifference” territory. Their own doctors are horrified by what they are doing and have said on the record that they want nothing to do with the transfers. Their claims about other precautions, such as screening and wearing PPE, have now been refuted by two Inspector General reports, and they have been excoriated by the legislature for not rising to that level. Only this week did they show any signs of enforcing proper protection on their own staff (so, even the ameliorating steps they claimed to have taken, which the Court of Appeal found “commendable”, turn out to be fictional.)

In addition, consider the dire developments for our friends behind bars before the Supreme Court’s grant. Recall that the Von Staich decision offered CDCR the choice between releases and transfers, urging them to consider releases of aging, infirm people. CDCR proceeded to abuse the discretion it was given to cook up a “remedy” that turned out worse than no remedy at all: as of a week ago, CDCR was still taking active steps to move people out of San Quentin, where the outbreak has abated (for now), to places like RJD and VSP, which experienced horrific outbreaks to the tune of hundreds of cases. Even in the face of realities on the ground–an outbreak in every single prison, a third of the entire prison population infected, a ninth of the entire prison population experiencing an active case, 104 deaths–they were going to shortsightedly confine their energies toward begrudging formal compliance that actually endangered people even more (in addition to the obvious contagion risks, I’ve received emails from folks inside expressing real fears of retaliation from people in the prisons to which they were to be transferred.) Meanwhile, flying in the face of the obvious public health priorities, the folks who should have been first in line to be released were at the very end of the line. This new development buys us more time to push for releases.

The last point is crucial, because the big legal case involving the entire CDCR apparatus, Plata v. Newsom, took a drastic turn in our favor yesterday. At the oral argument, Judge Tigar was exceedingly critical of CDCR’s handling of this crisis. He mentioned a conversation he had with Dr. Elizabeth Linos of the Berkeley Goldman School regarding a much-needed cultural change inside CDCR–a shift in approach from making demands (which Tigar referred to as a “sledgehammer” approach) toward emulation and leading by example, going as far as expressing doubt that the new CDCR policy to ensure testing compliance–and any measures taken by CCPOA, the prison guards union–went far enough, given the existence of significant “pockets” of noncompliance among the staff. Judge Tigar became visibly emotional as he discussed his visits at CMF, mentioning that Gov. Newsom called him and expressed a desire to tour CMF as well. Judge Tigar discussed in detail several people he had met behind bars, including a man in his 90s and a man who became eligible for parole in 1993. He displayed pictures of several people who had died of COVID-19 behind bars, speaking at length and in detail about Eric Warner, 57, an amputee, reformed Christian, and volunteer, and about Sergeant Gilbert Polanco, 55. When speaking of Mr. Warner’s passing, Judge Tigar had to stop to wipe his tears.

Judge Tigar then made a lengthy and forceful plea with Katheleen Allison to consider releases, stating that the time had come for that remedy and giving Gov. Newsom is support in this effort. Judge Tigar used the term of art “deliberate indifference”–a term indicating a finding of Eight Amendment violation–several times–even though he said that it had not been technically met, but explicitly said that CDCR’s behavior will fuel further lawsuits. The upshot of the hearing was the following order:

gov.uscourts.cand.76.3523.0 (1) by hadaraviram on Scribd

The order requires the parties to brief Judge Tigar on the physical possibilities to create quarantine and social distancing (including, for example, the existence of solid doors), as well as on the extent to which pandemic prevention guidelines might have changed during the course of the litigation. The situation on the ground makes it plainly obvious that what is needed here is an all-encompassing solution for the entire prison system; while state courts should be the vanguard of safeguarding Eighth Amendment rights in prisons, their jurisdiction is limited to their counties, and we are simply no longer in a situation in which this makes geographical sense. The thing to do now is push aggressively for releases and for early, effective, and broad vaccination behind bars, and to bring Plata to a successful and effective conclusion.

BREAKING NEWS: Vaccine Available for Staff AND Incarcerated People This Month

Today, CDCR Secretary Kathleen Allison communicated excellent news. The letter above reads:

To All Loved Ones of Incarcerated Individuals and Valued External Stakeholders,

We have an important update in our response efforts against the COVID-19 pandemic. As most of you know, the vaccine has arrived in California, and it is safe and effective. The vaccine is being made available on a phased basis, and as a state, we are committed to a fair and equitable allocation and distribution process.

To that end, California Department of Corrections and Rehabilitation (CDCR) and California Correctional Health Care Services (CCHCS) will receive our first vaccines allocation as soon as this month, and we are currently working with our public health partners on a distribution plan. The initial focus will be on people at high risk of becoming infected or severely ill from COVID-19, as well as frontline workers.

We will have information on our website, and will update it regularly to ensure we are keeping everyone informed on these efforts.

CDCR and CCHCS have also sent out a similar communication to the incarcerated population and staff. We encourage everyone to accept the vaccine once they are eligible to receive it, and in accordance with the phased distribution approach. These collective efforts will set us on the path to recovery, and will allow us to reduce the risk of COVID-19 in our institutions, and safely reopen to in-person visiting, group programming, volunteering, and other opportunities.

If you have questions please email COVID19@cdcr.ca.gov. We are unable to address questions about specific individuals with this correspondence; however, we value your feedback and welcome your questions about the vaccine program and our COVID-19 response efforts.

In the meantime, we are continuing to ensure everyone is taking every precaution to ensure the safety and wellness of everyone who lives and works in our institutions. We are thankful to the families, friends and loved ones of our incarcerated population, as well as our stakeholders. Your hard work, dedication, and sacrifice this year has not been lost on us, and we are appreciative of all your efforts.

For more information on these response efforts, please visit the CDCR/CCHCS COVID response page. For more information about this project and the COVID-19 vaccine, visit this web page.

Take care of yourselves and take care of each other.

Kathleen Allison Clark Kelso

Secretary Receiver

I received the above in a format that did not have clickable links, but I assume the links take you here and here. I have many questions, which I will email to the above address tomorrow morning, including whether the vaccine is mandatory for staff, whether readiness/buy in questionnaires have been administered, and whether choice to vaccinate will be linked to incarceration conditions. I hope to provide updates soon.

There. Is. Nowhere. To. Transfer.

Today we are hearing more rumblings about CDCR’s plans (irrespective of the Von Staich decision, they claim) to transfer elderly, infirm people between prisons.

Where are they going to transfer people to? The graph above, compiled by Chad Goerzen from CDCR data, depicts the rise in new cases just in the last few days. A third of the prison population has been infected so far; a tenth is currently infected; 97 people have died. As of today, twenty-three prisons have major outbreaks (more than 50 cases):

  • CCI (156 new cases)
  • CIW (64 new cases)
  • CMC (180 new cases)
  • LAC (795 new cases)
  • SAC (115 new cases)
  • SOL (129 new cases)
  • CAC (367 new cases)
  • CAL (154 new cases)
  • CEN (419 new cases)
  • CTF (799 new cases)
  • HDSP (722 new cases)
  • ISP (120 new cases)
  • KVSP (505 new cases)
  • MCSP (733 new cases)
  • NKSP (208 new cases)
  • PBSP (76 new cases) 
  • PVSP (1,213 new cases)
  • RJD (400 new cases)
  • SVSP (83 new cases)
  • SCC (248 new cases)
  • SATF (593 new cases)
  • VSP (368 new cases)

A change in strategy is long past due. But it looks like CDCR is taking a page out of Trump’s pandemic prevention playbook, flailing about, transferring people to and fro, hoping that this will go away and arguing in court that “there is no need to act hastily.”

What worries me about this is not just the immediate danger to people. The profound and understandable breakdown in trust between CDCR and the people in its care is going to be the Achilles’ heel of any vaccination strategy. It is essential to understand that releases and vaccinations must go hand in hand. I say this not only to CDCR officials, who might be thinking that the vaccine will obviate the need to release people, but also to activists who obstinately oppose the vaccines because they worry it will weaken the struggle for releases. Without the good will that only releases can create, not only will any vaccine intervention be ineffective, but the problems that fester in the system will increase its susceptibility to the next pandemic.

BREAKING NEWS: OC Superior Court Orders OC Jail Population Reduction to 50%

Incredible day: the Orange County Superior Court held today that the Orange County Sheriff, whose COVID-19 prevention incompetence was featured in Barnes v. Ahlman, violated the Eighth Amendment, and ordered the jail to reduce its population by 50%!

Here’s the decision in its entirety; summary follows.

20.12.11 Campbell Order by hadaraviram on Scribd

First, the bottom line: The specific petitioners in Campbell receive immediate relief, in the form of release or transfer. For everyone else, the court orders reductions of at least 50% in all dormitories–and if this is insufficient to achieve proper distancing, even further reductions.

The facts paint a horrible picture of the COVID experience at the jail. Not only is it impossible, given the conditions there, for people to socially distance, staff behavior is not monitored when they are away from the facility. Amazingly, staff are not tested unless they request it, even if they display symptoms. The staff is provided PPE but are not required to wear it. Housing decisions do not take medical vulnerability into account. None of these facts, which were backed by statements from medical experts and staff members, were contradicted by respondents with any evidence.

The decision is a pretty straightforward application of Von Staich, which in itself is a pretty straightforward application of Duvall. In other words: Petitioners showed evidence of incompetence accompanied by awareness of the danger to their lives + the Sheriff neglected to challenge the evidence => petitioners win.

I really hope this signals the beginning of the collapse of CDCR’s deceit machine about transfers; I want there to be court decisions in every single CDCR facility and county jail ordering 50% reductions. What we need is a more holistic understanding of the fact that there truly is nowhere to escape to–the entire COVID-19 prevention situation is broken beyond repair, and shifting people around won’t help.

There’s another way in which this matters for carceral permeability: so far, the meager releases from CDCR prisons have not been offset by transfers from jail because CDCR temporarily halted the transfers. The folly of having to obtain these decisions facility by facility is that, from CDCR’s standpoint, the population glut and resulting outbreaks in jails are invisible. This isn’t helped by the poor job BSCC is doing and the low credibility of their data (to the point that upstanding citizens like Berkeley law student Darby Aono have had to step up and collect data on their own.) But it should be obvious to CDCR that, sooner rather than later, the party will have to end, and the outbreaks in jails will require an exit door on that end. Shuffling folks around is not enough: something’s gotta give.

Full Steam Ahead in the Wrong Direction

You may recall that the Court of Appeal’s population reduction order in Von Staich did not specify the method by which CDCR should go about population reduction (though it did strongly recommend focusing on people aged 60 and over with 25 years of incarceration behind them.) The order specified that CDCR could choose to comply via releases or transfers. As far as releases, the recent Chron exposé shows that they delivered more or less on what was promised back in July: far too few people, 99% of whom were getting out in a few months anyway, and only 0.8% of whom were COVID-19 risks.

What this indicates–and what the AG’s petition for review to the California Supreme Court indicates–is that CDCR intends to address this crisis almost exclusively via transfers. This is also becoming clearer and clearer in the Marin Superior Court, where Judge Howard, who is presiding over hundreds of habeas corpus petitions from San Quentin, issued the following order:

SQ Case Management Order No. 12 by hadaraviram on Scribd

The gist of the decision is this: Judge Howard is proceeding with fashioning the remedies, as he considers Von Staich “persuasive authority” and despite declarations from the AG that they do not intend to comply until they hear back from the Supreme Court. At the same time, he seems unsympathetic to the arguments against transfers, because the Von Staich decision “provided clear guidance that transfer was a viable remedy.” The AG representatives did state that, independently of the Von Staich decision, they are starting their own transfer initiative, which targets people aged 65 and older. Judge Howard has ordered them to provide a list of the people they are transferring, and the petitioners’ lawyers to compile a list of people who are aged 60 and over and/or have COVID-19 risk factors.

How is this playing out on the ground? You can get a sense from the image at the top of this post. In the last week, per the San Francisco Bay View, people inside–both at San Quentin and at other institutions–have been pressured to accept a transfer out of their own volition, and when they refuse–they are asked to sign the form above, in which they waive any future claims about the risk they face. The form requires them to initial the following statements:

I understand that due to my age, I am at high risk for developing serious complications if I get infected with COVID-19.

I understand that I have one or more medical conditions that makes me high risk for developing serious complications if I get infected with COVID-19.

I understand that COVID-19 could lead to serious complications such as lengthy hospitalizations or even death.

I understand that living in places where individuals are in close contact and physical distancing is difficult to follow, such as prison dormitory [sic], will increases [sic] my risk of being infected by COVID-19.

I understand that COVID-19 could lead to serious implications such as lengthy hospitalization or even death.

I understand that if I change my mind and decided [sic] to be housed in celled housing, I will submit a 7362 or talk to a health staff to request for [sic] celled housing.

I’m hearing from family members and friends of incarcerated people that CDCR is gearing up toward involuntary transfers at Quentin and elsewhere, which are (and always have been) their prerogative, and so, these so-called informed consent forms are actually obsolete. Therefore, it is now more obvious to me than ever that CDCR is worried about a monetary damages lawsuit, and with good reason–I expect we’ll see one in the not-too-far future. If so, I doubt that these waivers, given the circumstances in which they are being procured, will even come close to providing the kind of defense that CDCR, or the AG, think it will provide.

More importantly, the virus doesn’t attend the status hearings at the different courts, and follows its own agenda, which is–as it always has been–to invade cells and replicate itself, which makes this transfer agenda even more inappropriate. As of three days ago, every single CDCR facility has a COVID-19 outbreak, which raises the question–how do CDCR officials purport to improve the situation via transfers, and where are they going to shuffle people to? The information I got from Solano, and a conversation with a relative of someone at SATF, have convinced me that the same pathologies that led to the spread of the virus in San Quentin are now in evidence in other prisons.

Which brings me again to the point of carceral permeability. The logic of lawsuits and court rules doesn’t conform to the realities of geography. By their very nature, they deal with “cases and controversies”, not with proactive solutions to rapidly evolving situations. Order a remedy in one prison, and by the time it’s fashioned, the outbreak will quell there and spike in other places. Exhibit judicial caution and give prison officials the choice between transfers and releases (which is, after all, what courts are supposed to do–express restraint) and they will make the wrong choices. Thinking about this remedy regarding San Quentin alone is part of the brief, but in terms of the actual problem, it makes no sense to implement the remedy in isolation from what is happening in other prisons.

Pandemic Food Problems

One of the often overlooked aspects of mass incarceration is that, as Erika Camplin puts it, “we as a nation are effectively feeding around 2 million mouths at least three times over each and every day.” Prison food has always been a problem; we even had a conference about it nine years ago. What I remember from the conference is that the CDCR nutritionist spoke on one of the panels and showed slides of prison meals that looked decent enough; under pressure from audience questions, however, she admitted that the slides were doctored, and then lashed out, “these people are monsters.” The rest of the panelists, most of whom were prison and jail doctors, immediately said, incensed, “that’s a lie.”

The pandemic has let things drop far beneath even that already low baseline. During the big outbreak in San Quentin, kitchen workers became infected and fell ill, which led, for several weeks, to serving the men an extra lunch in lieu of a hot dinner (to make up the missing calories.) We now learn from reports of people inside that the same, and worse, is happening at other institutions.

The email chain in the image above is making the rounds on Twitter; I don’t know who sent it around, but here is the text, reproduced. The printout is stamped as “Pelican Bay State Prison, Security Housing C-8.” The first email in the chain is from a Bryan Price to a Chad Parry, CC’ing a David Barneburg. I looked Barneburg up, and it looks like he’s Associate Warden at Pelican Bay. Price writes:

Hey Chad how’s your night going.

Well as for here, it’s not going to good. The inmate are starting to act out over the food and I don’t blame them. I thought when we cut one of their hot meals like dinner. In the past we have given them two lunches for dinner to make up for the calorie lost. Right now they got six crackers, two cookies, a small bag of pretzels, block of cheese and a drink mix. They also got 1 peanut butter, banana and a jalapeno. It is hard to believe that two of these lunches and the breakfast meal has the calories that is due to them. I the memo it states they will be getting box lunches with fruit, milk and juice.

So my question is, is this right because it does not seem right. The same lunch they saw this morning is the one they got for dinner. Hope there is something we can do. I think it’s going to get really bad really fast around here.

Any help in this matter would be greatly appreciated.

Out of the obvious awfulness of the whole thing, for some reason I find myself stuck on the mystery of the jalapeño. What is someone who can’t cook, and who has no access to vegetables, supposed to do with a single jalapeño? Is it cooked? Canned? Pickled? Frankly, I’m not sure the problem is only or even primarily the calories (snacks, peanut butter, and the “drink mix” probably pack a punch of calories)–the serious problem is the nutritional content, which seems sorely lacking.

Chad’s response:

Hey Bryan, that’s the correct meal. They were supposed to get the extra stuff you mentioned… not sure what is planned for tomorrow.

Kim, anything we can do to improve upon this meal? The fellas aren’t enjoying it much…

Thank you

Several family members and friends chimed in the relevant twitter thread. One person reported that she received a letter from someone at VSP who reported that “they are receiving 8 tablespoons of food per meal.”

I’m unsure whether this is garden variety incompetence or pandemic-related; the dinner shortage mentioned in the first email suggests the latter. This is pure conjecture, but the numbers of infected staff have shot up, which could explain kitchen worker shortage. I’m also unsure who leaked this printout; it features pretty feeble efforts to mask people’s names, but not their emails, so the names were easily readable.

It’s Official: Nowhere in CDCR Is Safe from COVID-19

Today feels like we’ve crossed a new threshold of horror: As of this morning’s update of the official CDCR ticker, every single CDCR facility has a COVID-19 outbreak. Every single facility has new cases from the last 14 days. There are currently 4,763 active cases in custody. So far, 24,716 people–more than a quarter of the current prison population–have contracted COVID-19 behind bars, and 93 people have died in 17 facilities.

Numerous prisons are seeing major outbreaks (more than 50 new cases in past 14 days): CCI (92 new cases), LAC (198 new cases), SAC (103 new cases), CAC (174 new cases), CEN (319 mew cases), CTF (393 new cases), HDSP (464 new cases), KVSP (92 new cases), MCSP ( 469 new cases), NKSP (77 new cases), PBSP (51 new cases), PVSP (699 new cases), SATF (937 new cases), and VSP (339 new cases). There are new outbreaks at CIW (37 new cases–a third recurrence!), CMC (38 new cases), SOL (34 new cases), CCWF (3 new cases), DVI (11 new cases), ISP (12 new cases), RJD (3 new cases–the last prison to see an outbreak), SVSP (27 new cases), SCC (16 new cases), and WSP (22 new cases–a recurrence.)

All facilities have staff cases. So far, 7366 prison staff members have contracted COVID-19 behind bars; 1722 of these are new cases and 2121 are still deemed “active cases.” Ten staff members have died.

Big facilities have cases. Small facilities have cases. Overcrowded facilities (20 prisons are still over 100% capacity!) have cases. Facilities under, but close to, 100% capacity have cases.

I look at this and think of the Attorney General’s stance in the Plata, Von Staich, and Hall et al. cases. “We can safely transfer people; your suggestion that we cannot is not well taken.” Transfer them where?

Nor is testing a silver bullet; it merely helps the analysis after the fact. Mule Creek, which features 469 new cases, has tested 95% of its population. Testing itself, without decisive action, is a diagnostic, not a prevention mechanism.

An acquaintance at Solano prison managed to send me a missive through a common friend. I’ve removed his identifying information, and this is what is happening there:

Current conditions at CSP-SOL

Complaints: 1. Buses have arriving with inmates from prisons where known positive coronavirus cases have been documented.

2. CDCR are not quarantining these inmates as they arrive, exposing the entire housing units to potentially dangerous viruses.

3. CSP-SOL is currently experiencing an outbreak

4. C/O’s are working double shifts some of them, going from an infected building to a non-infected bldg exposing inmate population to higher levels of probable infection.

5. C/O admitted that a staff member was covid positive a d thus potentially started the spread/outbreak.

6. Inmates have been forced to move from one to another to facilitate work assignments or receive a CDCR RVR115, for refusal or asking for a job change.

These issues and there are more, are some of the things the guys want the public to know.

We are given the proper PPE’s (only received them 2 days ago, before that we only had inmate-made masks), it’s just a mess.

And in the face of this, California Attorney General Xavier Becerra, who has been presiding over the state’s outrageous, self-righteous responses to this plight, is rewarded with a cabinet seat–the health seat, in the name of all that is holy?