Category: Covid -19

Euthanize the Death Penalty Already: Scenes from Capital Punishment’s Chronic Deathbed

(published: The Green Bag 27(3), Spring 2024)

INTRODUCTION

J.R.R. Tolkien’s immortal Lord of the Rings tells of the crossing of the Bridge of Khazad-dûm, during which members of the Fellowship of the Ring inadvertently awaken the Balrog. A monstrous holdover from ancient times, the Balrog attacks the Fellowship. Gandalf, the wizard leader of the Fellowship, successfully fights the monster, but at the very last moment, as the Balrog plunges to its death, it swings its whip one last time, capturing Gandalf and dragging him along into the abyss under the Bridge of Khazad-dûm.

The U.S. death penalty in the 21st century is like the Balrog – arcane, decrepit, still grasping and lashing its whip even as it approaches its demise. The score, state-by-state, is practically against capital punishment: 23 states have abolished it, and out of the 27 states that retain it, six (plus the federal government under President Joe Biden) have instated moratoria upon its use.

Even in retentionist states, the rate of executions has slowed almost to a grinding halt, and initiatives to abolish the death penalty frequently appear on the ballot. Even as Americans hang on to their support of the death penalty by a thread,3 and these ballot initiatives continue to be defeated,4 the death penalty continues to lose practical ground.5 Much like people on death row, most of whom die natural deaths after decades of incarceration and litigation,6 the death penalty itself is dying a slow, natural death.

As Ryan Newby and I explained more than a decade ago, the slow decline of the death penalty has been caused by a confluence of several factors.7 The first is the advent of cheap-on-crime politics in the aftermath of the Great Recession of 2008, which drew attention to the immense, disproportionate expenditure on capital punishment. 8 The second is the rising prominence of the innocence movement, which has shone a light on the widespread problem of wrongful convictions, supported in recent years by
the popular reach of true-crime podcasts highlighting miscarriages of justice.9 The third is the growing attention to racial disparities in criminal justice which, while a tough argument to bring up in litigation,10 has impacted the national policy field through Obama-era reforms.11

The expense, discrimination, and potential for harrowing mistakes are all aspects of the chronic disease afflicting the death penalty. But like many natural deaths from chronic disease, the end is prolonged, undignified, and sometimes bitingly cruel. Anyone who has cared for a loved one through the end of life can probably recall the chaotic, arbitrary, sometimes contradictory indignities that every day of decline brings in its wings. And so, in this paper, I offer you a safari tour of horrors, injustices, absurdities, and embarrassments that have characterized the death penalty through its prolonged chronic demise.

TRUMP’S LAST KILLING SPREE: RELUCTANT VICTIMS, ALZHEIMER’S, AND JURISDICTIONAL DISPARITIES

Tolkien is a master storyteller, and he sets up the moment when the Balrog’s whip ensnares Gandalf as poignantly tragic – a sudden, unnecessary reminder that, even at its demise, the ancient monster can still unleash vicious harm. The last few days of the Trump administration offered ample proof of this, through the Supreme Court’s decision in Barr v. Lee.12

Like much of latter-day death penalty litigation, Lee focused on chemicals used in federal executions – to wit, a single shot of pentobarbital, a mainstay of state executions as European countries no longer export lethal drugs to the U.S.13 As Ryan Newby and I explained in 2013, this sort of litigation is a classic example of what Justice Harry Blackmun referred to in the early 1990s as “tinkering with the machinery of death.” Blackmun could afford a direct, stop-beating-around-the-bush approach to the tiresome and technical minutiae of postconviction litigation, but capital defense lawyers cannot; arguments about human rights and racial disparities have long been futile, for various procedural reasons, and the limits of the sayable on appeal and on habeas revolve around chemicals and number of injections. Barr v. Lee, decided 5-4, was no exception: the plaintiffs, whose cases were final and cleared for executions, provided expert declarations correlating pentobarital use to flash pulmonary edema, a form of respiratory distress that temporarily produces the sensation of drowning or asphyxiation. The federal government provided contrary expert testimony, according to which pulmonary edema occurs only after the prisoner has died or been rendered
fully insensate. The Supreme Court found, per curiam, that the plaintiffs had not carried the burden of proof and cleared the way for the executions. Justice Stephen Breyer’s dissent echoed Blackmun’s distaste for what death penalty litigation has become, remarking, “[t]his case illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishmen[t].’” Justice Sonia Sotomayor, in turn, remarked on the absurdity of doing justice to fundamental questions via “accelerated decisionmaking.”

Then came three troubling executions. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victims’ families to spare him.14 The judicial and executive branches’ trampling of those requests followed the usual capital punishment theater in which, as Sarah Beth Kaufman explains in American Roulette, prosecutors, governors, and death penalty advocates use victims as props, assuming that punitiveness is faithful to their wishes – a position that does not faithfully represent the diverse views among victims of violent crime.15 According to the first-ever national survey of crime, twice as many victims prefer that the criminal justice system focus more on rehabilitation than on punishment; victims overwhelmingly prefer investments in education and in job creation to investments in prisons and jails, by margins of 15-to-1 and 10-to-1 respectively; by a margin of 7-to-1, victims prefer increased investments in crime prevention and programs for at-risk youth over more investment in prisons and jails; and 6 in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation than on lengthy prison sentences.

Then, the federal government executed 68-year-old Wesley Purkey, who was described by his lawyer, Rebecca Woodman, as a “severely braindamaged and mentally ill man who suffers from Alzheimer’s disease” and does not understand “why the government plans to execute him.”16 The debate over Purkey’s mental illness was emblematic of the decades and billions of dollars spent poring over the fitness for execution of elderly, decadeslong death row residents. It also made a mockery of Atkins v. Virginia,
17 which forbade the execution of mentally challenged people but left it up to individual jurisdictions to duke out the details of who, precisely, they deem smart or sane enough to be injected with pentobarbital.

Finally came Dustin Honken’s execution, which offered a grim reminder of the gap between the inexplicable federal enthusiasm for executions and the waning interest of states in the penalty. Honken was the first person from Iowa to be executed since 1963; Iowa abolished the death penalty in 1965. Honken’s lawyer, Shawn Nolan, said, “There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.”18

Another development was the reintroduction of electrocutions and firing squads as permissible execution methods by the administration of President Donald Trump in late November 2020 – after Biden had defeated Trump in the presidential election. The change was intended to offer federal prosecutors a wider variety of options for execution in order to avoid delays if the state in which the inmate was sentenced did not provide other alternatives. At the same time, the Department of Justice said it would keep federal executions in line with state law: “the federal government will never execute an inmate by firing squad or electrocution unless the relevant state has itself authorized that method of execution.”19

Trump’s appetite for executions was, at least, consistent with his positions on capital punishment since the 1980s, when he regularly purchased large ads and gave interviews advocating for the death penalty for the Central Park Five20 (who have since been exonerated, as is well known). In the early days of his presidency, he chased headlines expressing support for capital punishment for drug dealers.21 While consistent with Trump’s presidential positions, the viciousness of his last-minute addition of federal electrocutions and firing squads seemed pointless, since Biden was known to oppose the death penalty and had made campaign promises to work toward federal abolition.22 Moreover, any effort to electrocute or shoot death row convicts would embroil the federal government in interminable Eighth Amendment litigation, given the always-present risk of botched executions.

The last slew of planned Trump executions included more cases that provoked moral anguish. For example, the execution of Lisa Montgomery, the only woman on federal death row.23 Montgomery’s crime was shockingly brutal. She strangled a pregnant woman before cutting her stomach open and kidnapping her baby. Her own experiences of victimization were torturous and harrowing. She was sexually assaulted by her father starting at 11 years old, trafficked by her mother, and horrifically abused by her stepbrother, who became her husband. She was involuntarily sterilized, deteriorated into severe mental illness, and lived in abject poverty at the time the crime was committed. The uproar about the sentence provoked heated debates about the Trump administration’s appetite for creating controversies that the Biden administration would then have to undo. What is the point, one might ask, of all this cruelty? And the answer, as Adam Serwer wrote in a different context, might be: the cruelty is the point.24

OKLAHOMA: CHEMICALS AND INNOCENCE

A tragic Talmudic story tells how Yehuda ben Tabbai, President of the Sanhedrin, once wrongly convicted a man of perjury. By the time ben Tabbai realized his mistake, it was too late; the man had already been put to death. Shocked by his complicity in injustice, ben Tabbai would never again rule singlehandedly on a legal point, and every day of his life he would prostrate himself on the grave of the wrongly executed man, begging forgiveness and weeping.25

One wishes that more judicial and executive officials would take a page from ben Tabbai’s book. Instead, a sense of confusion, lack of commitment, and being in perpetual limbo has characterized capital punishment for the last decade. The story of Richard Glossip, the lead petitioner in Glossip v. Gross, is a case in point. In 2015, the Supreme Court rejected Glossip’s petition against the use of midazolam in his execution, just a brief time after the same drug played a horrendous part in the botched execution of Clayton Lockett. In line with the aforementioned trend of technical litigation, the decision revolved around whether Glossip had shown that Oklahoma had better execution methods than midazolam.26

Anyone reading the decision could be forgiven for having no idea that Glossip is widely believed to be innocent, and that Oklahoma’s Attorney General, who reviewed his case, does not stand behind the conviction. Nevertheless, the Oklahoma Court of Criminal Appeals would not halt Glossip’s execution. Judge David Lewis wrote that the case “has been thoroughly investigated and reviewed,” with Glossip given “unprecedented access” to prosecutors’ files, “[y]et he has not provided this court with sufficient information that would convince this court to overturn the jury’s determination that he is guilty of first-degree murder and should be sentenced to death.” It took yet another petition to the U.S. Supreme Court to halt the execution.27

CALIFORNIA: DEATH BY MORATORIUM

For more ambiguity and discombobulation on the death penalty in the 21st century, consider California, where several rounds of abolitionist voter initiatives failed in the last decade.28 I want to spend more time discussing California, not only because I am intimately familiar with capital punishment law where I live and work, but also because I think the last decade in the Golden State perfectly encapsulates what a chronic, slow death for capital punishment looks like. In 2016, while narrowly defeating the abolitionist Prop 62, California voters narrowly approved Prop 66, which was supposed to speed up executions, as well as allow death row residents to be relocated to other prisons where they could pay restitution to their victims. Some aspects of Prop 66 – specifically, those which remove safeguards against wrongful executions – have been found unconstitutional, but most of it has survived constitutional review.29

When explaining what the death penalty in California was like in the late 2010s, I sometimes borrow a framework from the construction world. When planning a project, general contractors might draw a triangle, writing in each corner one word – respectively, “good,” “fast,” and “cheap.” They then say to the client, “you can’t have all three; pick two.” This is an apt description of why death penalty opponents often refer to California’s capital punishment as “broken beyond repair.” A “good” and “cheap” death penalty would require finding some way to seriously litigate postconviction motions on a lengthy timeline and on a shoestring, relying mostly on California’s minuscule existing cadre of capital habeas litigators. Cases would drag on and on, as they do now, until people received representation, a situation that at least one federal judge found to violate the Eighth Amendment.30 A “good” and “fast” death penalty, which is what some supporters of Prop 66 perhaps wanted, would require massive expenditures so that proper, high-quality representation could be found and habeas writs could efficiently work their way through the courts. A “fast” and “cheap” death penalty, which is what Prop 66 might have produced had all its aspects been found constitutional, would do away with many safeguards against wrongful executions and result in more deadly mistakes. Even if
one approves of capital punishment in theory, as many California voters do (for example, through a retributive framework), it is therefore hard to compare its abstract form to the way it is administered in practice: There is no way of fashioning capital punishment in California in a way that guarantees it to be “good,” “fast,” and “cheap.”

These concerns, and many others, led California Governor Gavin Newsom to take a step that his abolitionist predecessors had shied away from: placing a moratorium on the death penalty in California and ordering the
death chamber dismantled.31 Newsom is also turning San Quentin prison, home to the country’s largest death row, into a Scandinavian-style “center for innovation focused on education, rehabilitation and breaking cycles of crime.” For the first time in decades, residents of death row are able to move freely within the facility, and many of them will be transferred to other facilities, a monumental change in their life circumstances that some death row residents, acclimated to their peculiar, restrictive lives, view with apprehension.32 But these are executive, not legislative acts. Because the death penalty still has a legal, if not ontological, existence, people whose lives were saved by the moratorium are still, legally, capital convicts, and costly postconviction litigation on their cases continues, to the tune of $150 million per annum.33

To cynical commenters, who might observe that this new incarnation is not “good,” “fast,” or “cheap,” one might respond, “at least we’re not executing people.” But saying, “no one is being executed on death row” is
far from saying, “no one dies on death row.” In late May 2020, as a San Francisco Chronical exposé revealed – and as a subsequent investigation by the California Inspector General’s office and litigation in state courts confirmed – San Quentin, still home to the country’s largest death row, was overcrowded to 113% of design capacity.34 Alarmed by a horrific COVID19 outbreak at the California Institute of Men in Chino, custodial and
medical officials there sought to mitigate the spread by transferring 200 men out of the facility, 122 of them to San Quentin. The men were not tested for COVID-19 for weeks prior to their transfer. On the morning of
the transfer, several transferees told nurses that they were experiencing COVID-19 symptoms (fever and coughing). According to email correspondence between health officials, these men were treated as malingerers and the transfer proceeded as planned. No effort was made to facilitate social distancing within the buses; the transferees heard and felt their neighbors cough throughout the lengthy journey to the destination facilities.35

The virus spread quickly throughout San Quentin. By the end of June, more than three quarters of the prison population had been infected and 29 had died – 28 prisoners and one worker.36 San Quentin’s death row was especially vulnerable to COVID-19, both because of the low quality of the physical plant – a dilapidated, poorly constructed, and thinly staffed long-term home to approximately 750 men (now many fewer) – and because the death row population tends to be older and sicker than the general prison population. The virus tore quickly through death row, and while prison authorities did what they could to obscure the calamities, San Francisco Chronicle journalists broke the story:

A coronavirus outbreak exploding through San Quentin State Prison has reached Death Row, where more than 160 condemned prisoners are infected, sources told The Chronicle on Thursday. One condemned inmate, 71-year-old Richard Eugene Stitely, was found dead Wednesday night. Officials are determining the cause of death and checking to see whether he was infected.

State prison officials declined to confirm that the virus has spread to Death Row, but three sources familiar with the details of the outbreak there provided The Chronicle with information on the condition they not be named, and in accordance with the paper’s anonymous source policy. Two of the sources are San Quentin employees who are not authorized to speak publicly and feared losing their jobs.

There are 725 condemned inmates at San Quentin, and of those
who agreed to be tested for the coronavirus, 166 tested positive, the
sources said. . . .

It is unclear whether Stitely was infected with the coronavirus. He refused to be tested, according to the three sources with knowledge of the situation.37

By contrast to general population residents, whose identities were hidden from the public for medical privacy reasons, the California Department of Corrections and Rehabilitation sent emails to interested parties about
deaths of people on death row, listing their names and full details. Through subtracting the named casualties from the total death toll, a horrifying truth emerged: More people died on death row from COVID-19 under Newsom’s moratorium than California had executed since the reestablishment of the death penalty in 1978.38

This outcome was deeply ironic, because even after the moratorium, with no death chamber and bereft of lethal chemicals, California courts continued to be clogged with death penalty litigation concerning details
revolving around whether various modes and aspects of the execution process are “cruel and unusual” even as the death penalty itself was still deemed “kind and usual.”39 Flying in the face of this precious and expensive effort to sever the death penalty from any of its potentially cruel and unusual implications were executions clearly not prescribed by the California Penal Code: deaths from a contagious pandemic, compounded by incompetence and neglect.

At the same time, even stalwart supporters of the death penalty realized that capital verdicts that will never be carried out make no sense, logically or practically. In summer 2020, Santa Clara County District Attorney Jeff Rosen, by no means a capital-punishment-shy public prosecutor, announced that his office would no longer seek the death penalty. Rosen claimed that his visit to the Civil Rights Museum in Alabama inspired him to see the death penalty not only “through eyes of the victims and families of those whose lives were taken,” but also “through the lens of race and inequity.” The rationales he offered for the policy change were in line with those behind the penalty’s decline in popularity more generally: “These cases use up massive public resources and cruelly drag on for years with endless appeals that give no finality to the victims’ families,” he said. “There’s the tragic but real risk of wrongful conviction. And, shamefully, our society’s most drastic and devastating law enforcement punishment has been used disproportionately against defendants of color.”40 Rosen was facing an election challenge from a more progressive candidate, which could partly explain his change in position. Nevertheless, his reliance on the more general arguments means that the gubernatorial changes at San Quentin did resonate.

Perhaps even more important was the announcement by George Gascón, upon his election as Los Angeles District Attorney in fall 2020, that the county would no longer seek the death penalty41 – an inflection point for one of California’s four “killer counties” and one of the entire country’s three highest sources of capital sentences. 42 Even more striking is a remarkable data point from Sacramento: Joseph DiAngelo, otherwise known as the Golden State Killer, was finally caught and convicted using innovative forensic investigative tools.43 The Sacramento County prosecutor did not even ask for the death penalty, and rightly so, as it would have allowed DiAngelo to continue litigating at the state’s expense only to die a natural death, like everyone else on death row. Which raises a fair question: If not the most notorious and heinous criminal in the history of California, then who?

WHAT DEATH PENALTY EUTHANASIA MIGHT LOOK LIKE

Capital punishment’s last gasps are, as these examples show, rife with inconsistencies, ironies, and changes of direction, which raise the question when, and how, the end will come. As public opinion and results at the ballot box show, the death penalty retains a symbolic hold over the American imagination. But judges and politicians are exposed to its unsavory sides.

It is hard to provide facile explanations for the different modes of the capital penalty’s demise in recently abolitionist states. In Washington, abolition arrived through a judicial decision about racial disparities in the penalty’s application;44 in Delaware, through a case involving arbitrary jury decisions in capital cases, which was later extended to the remaining cases on death row;45 in New Hampshire, through a non-retroactive statute; 46 in Colorado, through a combination of a statute and gubernatorial commutations;47 in Virginia, the first Southern state to abolish the death penalty, through a bipartisan legislative vote.48

One is left wondering whether it is easier to get rid of the death penalty in retentionist states – such as in Illinois, where abolition followed Governor George Ryan’s mass commutations, largely due to his concerns about innocence and wrongful executions49 – or in states with moratoria – such as California, where one wonders whether the dismantlement of the death chamber and the disbanding of death row, along with the vanishing prospect of an execution as a lightning rod, might be slowing down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole),50 does the effort to abolish a thoroughly defanged (but still expensive) death penalty lose its steam?

What signals a new phase in the death penalty’s terminal illness is a combination of factors: a critical mass of abolitionist states; backlash caused by the Trump administration’s execution spree; the absence of capital sentencing nationwide and, especially, in high-profile cases; abolitionist thinking and decisionmaking at the county prosecution level; the specter of COVID-19 deaths; and, of course, the ever-rising costs. We are unlikely to see a definitive kiss of death. Instead, many local developments may eventually mean – perhaps, to our surprise – that, like so many people on death row itself, capital punishment has died a quiet, natural death.

NOTES

1 J.R.R. TOLKIEN, THE LORD OF THE RINGS: THE FELLOWSHIP OF THE RING bk. II, ch. 5
(2012 [1954]).

2 Abolitionist states with date of abolition: Alaska (1957), Colorado (2020), Connecticut (2012), Delaware (2016), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Maryland
(2013), Massachusetts (1984), Michigan (1847), Minnesota (1911), New Hampshire (2019),
New Jersey (2007), New Mexico (2009), New York (2007), North Dakota (1973), Rhode
Island (1984), Vermont (1972), Virginia (2021), Washington (2023), West Virginia (1965),
Wisconsin (1853). Retentionist states (including states with moratoria): Alabama, Arizona,
Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wyoming.
States with moratoria, along with moratorium date: California (2019), Pennsylvania (2023),
Oregon (2022), Arizona (2023), Ohio (2020), Tennessee (2022). The federal moratorium
was put in place by the Biden administration in 2021. Source: Death Penalty Information
Center (“Death Penalty Info”) website, deathpenaltyinfo.org/states-landing. 3 Megan Brenan, “Steady 55% of Americans Support Death Penalty for Murderers,” Gallup, Nov. 14, 2022.

4 AUSTIN SARAT, JOHN MALAGUE, AND SARAH WISHLOFF, THE DEATH PENALTY ON THE
BALLOT: AMERICAN DEMOCRACY AND THE FATE OF CAPITAL PUNISHMENT (2019).

5 DANIEL LACHANCE, EXECUTING FREEDOM: THE CULTURAL LIFE OF CAPITAL PUNISHMENT
IN THE UNITED STATES (2016).

6 166 non-execution deaths, as of 2024: Death Penalty Focus, deathpenalty.org/facts/.

7 Hadar Aviram and Ryan Newby, “Death Row Economics: The Rise of Fiscally Prudent
Anti-Death Penalty Activism,” 28 CRIM. JUST. 33 (2013).

8 HADAR AVIRAM, CHEAP ON CRIME: RECESSION-ERA POLITICS AND THE TRANSFORMATION
OF AMERICAN PUNISHMENT (2015).

9 Keith A. Findley, “Innocence Found: The New Revolution in American Criminal Justice,”
in CONTROVERSIES IN INNOCENCE CASES IN AMERICA 3-20 (2016); Lindsey A. Sherrill,
“Beyond Entertainment: Podcasting and the Criminal Justice Reform ‘Niche,’” and Robin
Blom, Gabriel B. Tait, Gwyn Hultquist, Ida S. Cage, and Melodie K. Griffin, “True
Crime, True Representation? Race and Injustice Narratives in Wrongful Conviction Podcasts,” in TRUE CRIME IN AMERICAN MEDIA 67-82 (2023).

10 McClesky v. Kemp, 481 U.S. 279 (1987).

11 Barack Obama, “The President’s Role in Advancing Criminal Justice Reform,” 130 HARV.
L. REV. 811 (2017).

12 Barr v. Lee, 591 U.S. 979 (2020).

13 “Europe’s moral stand has U.S. states running out of execution drugs, complicating capital
punishment,” CBS NEWS, Feb. 18, 2014.

14 Hailey Fuchs, “Government Carries Out First Federal Execution in 17 Years,” NEW YORK
TIMES, July 14, 2020.

15 SARAH BETH KAUFMANN, AMERICAN ROULETTE: THE SOCIAL LOGIC OF DEATH PENALTY
SENTENCING TRIALS (2020).

16 Khaleda Rahman, “U.S. Executes Wesley Purkey, Who Calls It a ‘Sanitized Murder’ In
Last Words,” NEWSWEEK, July 16, 2020.

17 Atkins v. Virginia, 536 U.S. 304 (2002).

18 Shawn Nolan, “Statement From Shawn Nolan, Attorney For Dustin Honken,” FEDERAL
DEFENDER, July 17, 2020.

19 Matt Zapotosky and Mark Berman, “Justice Dept. rule change could allow federal executions by electrocution or firing squad,” WASHINGTON POST, Nov. 27, 2020.

20 Colby Itkowitz and Michael Brice-Saddler, “Trump still won’t apologize to the Central
Park Five. Here’s what he said at the time.” WASHINGTON POST, June 18, 2019.

21 Michael Krasny, “President Trump Announces Plan to Fight Opioid Abuse, Including
Death Penalty,” KQED FORUM, Mar. 20, 2018.

22 Dakin Andone, “Biden Campaigned on Abolishing the Federal Death Penalty. But 2 Years
In, Advocates See an ‘Inconsistent’ Message,” CNN, Jan. 22, 2023.

23 Reuters, “Lisa Montgomery: US Executes Only Woman on Federal Death Row,” BBC
WORLD, Jan. 13, 2021.

24 Adam Serwer, “The Cruelty Is the Point,” THE ATLANTIC, Oct. 3, 2018.

25 Bavli Hagiga 16:2.

26 Glossip v. Gross, 576 U.S. 863 (2015); Jeffrey E. Stern, “The Cruel and Unusual Execution
of Clayton Lockett,” THE ATLANTIC, June 15, 2015.

27 Glossip v. State, www.okcca.net/cases/2023/OK-CR-5/ (2023); Glossip v. Oklahoma, 143.Ct. 2453 (2023).

28 Prop 34 failed in 2012: David A. Love, “Prop 34 Fails But Signals the Imminent Demise
of California’s Death Penalty,” THE GUARDIAN, Nov. 9, 2012. Prop 66 failed in 2016:
Sarah Heise, “Death Penalty Supporters Claim Victory with Failure of Prop 62,” KCRA3, Nov. 9, 2016.

29 Bob Egelko, “California Supreme Court Upholds Most Of Expedited Death Penalty
Initiative,” SAN FRANCISCO CHRONICLE, Aug. 24, 2017.

30 Jones v. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014).

31 Kyung Lah, “How Kamala Harris’ Death Penalty Decisions Broke Hearts on Both Sides,”
CNN, Apr. 8, 2019; Eric Westervelt, “California Says It Will Dismantle Death Row.
The Move Brings Cheers and Anger,” NPR, Jan. 13, 2023.

32 Nigel Duara, “Gavin Newsom Moves to ‘Transform’ San Quentin as California Prison
Population Shrinks,” CALMATTERS, Mar. 21, 2023; Sam Levin, “The Last Days of Death
Row in California: ‘Your Soul is Tested Here’,” THE GUARDIAN, May 1, 2023.

33 Arthur Rizer and Marc Hyden, “Why Conservatives Should Oppose the Death Penalty,”
THE AMERICAN CONSERVATIVE, Jan. 10, 2019.

34 Mary Harris, “California’s Carelessness Spurred a New COVID Outbreak,” SLATE, July 7,2020; Roy W. Wesley and Bryan B. Beyer, “COVID-19 Review Series, Part Three,” OFFICEOF THE INSPECTOR GENERAL STATE OF CALIFORNIA, Feb. 1, 2021, 1-2, www.oig.ca.gov/wpcontent/uploads/2021/02/OIG-COVID-19-Review-Series-Part-3-%E2%80%93-Transferof-Patients-from-CIM.pdf; “Monthly Report of Population As of Midnight June 30, 2020,”CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, July 1, 2020, 2, www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/07/Tpop1d2006.pdf.

35 For a thorough examination of COVID-19 and California’s death row, see HADAR AVIRAM AND CHAD GOERZEN, FESTER: CARCERAL PERMEABILITY AND CALIFORNIA’S COVID19 CORRECTIONAL DISASTER (2024).

36 Daniel Montes, “Trial Over COVID-19 Outbreak at San Quentin State Prison That Left29 Dead to Begin Thursday,” BAY CITY NEWS, May 20, 2021.Euthanize the Death Penalty AlreadySPRING 2024 193

37 Megan Cassidy and Jason Fagone, “Coronavirus Tears through San Quentin’s Death Row;
Condemned Inmate Dead of Unknown Cause,” SAN FRANCISCO CHRONICLE, June 25, 2020,
www.sfchronicle.com/crime/article/Coronavirus-tears-through-San-Quentin-s-Death15367782.php.

38 Patt Morrison, “California Is Closing San Quentin’s Death Row. This Is Its Gruesome
History,” LOS ANGELES TIMES, Feb. 8, 2022.

39 Aviram & Newby, supra note 7; George Skelton, “In California, the Death Penalty is Allbut Meaningless. A Life Sentence for the Golden State Killer Was the Right Move,” LOSANGELES TIMES, July 2, 2020.

40 Quoted in Michael Cabanatuan, “Santa Clara County DA Jeff Rosen No Longer to SeekDeath Penalty,” SAN FRANCISCO CHRONICLE, July 22, 2020.

41 Alexandra Meeks and Madeline Holcombe, “New Los Angeles DA Announces End to
Cash Bail, the Death Penalty and Trying Children as Adults,” CNN, Dec. 8, 2020.

42 “Death Penalty Info: ACLU Study: Los Angeles Death Penalty Discriminates Against
Defendants of Color and the Poor,” deathpenaltyinfo.org/news/aclu-study-los-angelesdeath-penalty-discriminates-against-defendants-of-color-and-the-poor.

43 Paige St. John, “The Untold Story of How the Golden State Killer Was Found: A Covert
Operation and Private DNA,” LOS ANGELES TIMES, Dec. 8, 2020.

44 State v. Gregory, 427 P.2d 621 (Wash. 2018).

45 “Death Penalty Info: Delaware,” deathpenaltyinfo.org/state-and-federal-info/state-by-state/
delaware.

46 “Death Penalty Info: New Hampshire,” deathpenaltyinfo.org/state-and-federal-info/stateby-state/new-hampshire.

47 “Death Penalty Info: Colorado,” deathpenaltyinfo.org/state-and-federal-info/state-by-state/
colorado.

48 “Death Penalty Info: Virginia,” deathpenaltyinfo.org/news/virginia-legislature-votes-toabolish-the-death-penalty.

49 Sarah Schulte, “20 Years After Commuting 167 Illinois Death Sentences, Ex-Gov.
George Ryan Has No Regrets,” ABC7 CHICAGO, Jan. 10, 2023.

50 HADAR AVIRAM, YESTERDAY’S MONSTERS: THE MANSON FAMILY CASES AND THE ILLUSION
OF PAROLE (2020).

Damages Lawsuits for Prison COVID-19 Neglect Proceed

If you’ve followed this blog during COVID-19, when we were litigating Eighth Amendment cases at Quentin and beyond, or read FESTER (you should!), then you know an unpleasant truth about prison impact litigation: the house always wins. Judges feel bound by Turner v. Safley or by the PLRA or whatnot, and even in the rare occasion that cruel and unusual punishment is found, the remedies seem meaningless. And yet, when Judge Howard told us all that the Eighth Amendment was violated and yet we get bupkis in terms of remedies, I thought to myself, “boy, I really hope that someone’s family runs with this and sues them for all they’ve got and cleans them out.”

That is exactly what seems to be happening now: several lawsuits for wrongful death have been filed against San Quentin and CDCR by families of people who died in the horrific outbreak, and despite the state’s best efforts to dismiss these lawsuits using the sort of bad-faith, cynical arguments we’ve come to expect in this matter, the Ninth Circuit has just decided that the lawsuit on behalf of the bereaved family of Sgt. Gilbert Polanco can go forward.

To make a long story short, here’s the legal framework: Generally speaking, state actors are not liable under the Due Process Clause for omissions (as opposed to affirmative acts), but this rule has exceptions, as the Ninth Circuit explains:

Under the state-created danger doctrine, state actors may be liable “for their roles in creating or exposing individuals to danger they otherwise would not have faced”. . . In the context of public employment, although state employers have no constitutional duty to provide their employees with a safe working environment, the state-created-danger doctrine holds them liable when they affirmatively, and with deliberate indifference, create or expose their employees to a dangerous working environment.

To prove state-created danger, plaintiffs need to show three things: (1) “affirmative conduct” on the part of the state, (2) “particularized danger” to the plaintiff, and (3) “deliberate indifference” on the part of the state. The Ninth Circuit seemed appalled, and with good reason, with the state’s argument that Sgt. Polanco could’ve just quit his job if he thought it was too dangerous. And remember, we already have a finding of deliberate indifference from the Marin Superior Court and from the CA Court of Appeal. I’ll keep you posted.

In some ways, this development goes hand in hand with an excellent suggestion made in a paper by Aaron Littman called Free-World Law Behind Bars. We talk about this idea quite a bit in the last chapter of FESTER: the idea is to move away from litigating constitutional standards toward regulatory frameworks of health and safety. You know, like in any other environment where humans experience risky conditions not of their making. There were already some interesting examples of these, such as the CAL/OSHA action brought by prison employees about their horrifically cavalier work conditions that yielded a whooping $421,888 fine. The Polanco family lawsuit does use constitutional arguments, but is looking to obtain damages. I hope the lawsuits brought by families of incarcerated people–who didn’t even have the choices that the staff had–go forward. And I also hope that the CCPOA sits up and takes notice of what happens when a union does not advance the rational interests of its members.

News! FESTER Available for Preorder

We’re live! FESTER, my book with Chad Goerzen about the COVID-19 catastrophe in California prisons and jails, is available for preorder on the UC Press website and on Amazon. The official publication date is March 2024.

From the back jacket:

The mismanagement of the COVID-19 pandemic in California’s prisons stands out as the state’s worst-ever medical catastrophe in a carceral setting. In Fester, socio-legal scholar Hadar Aviram and data scientist Chad Goerzen offer a cultural history of the COVID-19 correctional disaster through hundreds of first-person accounts, months of courtroom observations, years of carefully collected quantitative data, and a wealth of policy documents. Bearing witness to the immense suffering wrought on people behind bars through dehumanization, fear, and ignorance, Fester explains how the carceral system’s cruelty threatens the health and well-being not only of those caught in its grasp, but all Californians—and stands as a monument to the brave coalition of incarcerated and formerly incarcerated people, family members and loved ones, advocates and activists, doctors, journalists, and lawyers who fought to shed light on one of the Golden State’s correctional system’s darkest times.

If you’d like us to come to your campus or bookstore in Spring 2024 and beyond, please contact us and we’ll make it happen.

Film Review: 26.2 to Life

I still remember the incredible emotions that choked me as I took the last steps of the Oakland Marathon and realized that, yes, I was going to finish. Even with lots of experience racing endurance events, including some very long marathon swim, there was nothing quite like it. And the faces of everyone around me reflected that we had all undergone a very special experience, stretching body, mind and spirit to their limits, and that we would forever share that experience.

It is this direct appeal to common humanity that drives Christine Yoo’s fantastic documentary 26.2 to Life, which is now playing in select theaters and winning all sorts of incredible awards at film festival. With unparalleled access to the inside of San Quentin–the yard, of course, 105 laps of which add up to 26.2 miles, but also other areas of the prison, including the cells–this documentary has the potential to go where no work of advocacy has gone before.

Lots of tired, jargony academic pieces about carceral geography and mass incarceration blather about “bodies” and “embodiment”, but nowhere is the somatic experience of an incarcerated body more visceral than in this film. We see people living under the horrid conditions that are only too familiar to regular readers of this blog and using endurance running–their own bodies, pushed to their limit–to sublimate and divert anger, to release stress, to find liberation, to imagine commonalities and brotherhood with people running on the outside. In one memorable scene, runner Jonathan Levin talks of running as a physical form of doing penance for his crime, reminding me vividly of the incredible ending scene of the Buddhist film Spring, Summer, Fall, Winter… and Spring.

Other runners feature more prominently, and we get to learn their personal stories. Markelle “The Gazelle” Taylor, the fastest runner of the club, dreams of qualifying for the Boston Marathon and running it if he makes parole. Rahsaan “New York” Thomas finds his voice as a journalist and leader in prison (his work for the San Quentin News and for Ear Hustle is also featured in Adamu Chan’s recent documentary What These Walls Cannot Hold. Tommy Wickerd works hard to redeem himself from a life of violence and be as much of a good husband to Marin and father to Tommy II as he can from behind bars. These folks, and many others featured in the film, are people I know. Some of them I met in person, though most of them I did not; I did spend many many hours with their loved ones, and hearing from them, in the weekly #StopSanQuentinOutbreak coalition meetings that we document in FESTER. There was something heartbreaking in watching these very familiar people in footage from before the calamity would strike and terrorize them and require them to develop new forms of courage and work new psychological muscles.

What stands out in the movie is how it lends itself to bridges of empathy and perspective taking. Not pity–though the men’s stories are contextualized in a way that does not absolve them from accountability and yet evinces profound understanding of their circumstances–but the same sense that every one of us has felt upon embarking on a huge athletic undertaking. The same sense of exhilaration and terror that is evident in the first steps of the protagonist of Brittany Runs a Marathon; the same trepidation and enormous effort of the swimmers in Driven; the sense of dread, then relief, accompanying Alex Honnold’s heroic climb of El Capitan in Free Solo. Christine Yoo has elevated Taylor, Thomas, Wickerd and the other runners to their rightful place along these cinematic athletic heroes by bringing her viewers into communion with the most basic things we all share: our bodies and our striving to make something of our lives within them.

You must see this movie. And you also must consider financially helping some of the film’s heroes. As pioneering research by Alessandro de Giorgi shows, the first and foremost challenges for anyone on the outside involve their basic survival: finding a place to live and a job. Even phenomenal athletes are not exempt from this. Markelle sells amazing athletic gear you can wear in pride for your training and racing, and Rahsaan is doing wonderful journalistic work that requires support.. Too often we expect formerly incarcerated folks to hit the ground running with activism for their friends still on the inside, discounting the importance of getting their own lives in order. Let’s lend our fellow athletes a helping hand.

FESTER Blurb from UCI’s Keramet Reiter

Another great endorsement for FESTER comes from Prof. Keramet Reiter of UC Irvine, one of the nation’s most respected and productive scholars of extreme punishment and incarceration and the author of 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement. Keramet is the director of UCI LIFTED, a phenomenal higher education program granting incarcerated people access to, and degrees from, UC Irvine, and also spearheaded the Prison Pandemic project, which collected first-hand accounts of COVID-19 in prisons and was one of our best primary sources.

Here is Keramet’s endorsement for FESTER:

Aviram, with Goerzen, has produced another tour de force unpacking a new legitimation crisis in California’s punishment infrastructure. Marshalling evidence from litigation, first-person narratives, administrative data compilations, and their own advocacy work, Aviram and Goerzen meticulously analyze how COVID-19 outbreaks in California prisons and jails cruelly terrorized incarcerated people and also exacerbated health risks in the surrounding communities. Impressively, the book reads like a true crime thriller – about the horrors wrought not by the people inside prisons but by the people running and overseeing those prisons. Poignant details of everyday life in prisons in crisis make vivid the book’s pointed policy critiques: information gaps about criminal legal system practices, in combination with dangerously inaccurate assumptions about the impermeability of prisons and jails, produce dangerous incarceration conditions. And dangerous incarceration conditions put us all at risk.

FESTER Blurb from the Chronicle’s Jason Fagone

I’m very pleased to share the first book blurb for FESTER, from star journalist and author Jason Fagone. As a reminder, Jason was part of the San Francisco Chronicle team that broke the story of the San Quentin outbreak. He is also the author of a terrific nonfiction book, The Woman Who Smashed Codes: A True Story of Love, Spies, and the Unlikely Heroine Who Outwitted America’s Enemies.

Here is what Jason has to say about FESTER:

Myths can kill, and FESTER dissects a vicious one: the idea that prisons are worlds apart, isolated from their surrounding communities. With passion, rigor, and a flair for storytelling, Aviram and Goerzen show how California’s fealty to this myth placed whole cities at risk during the coronavirus pandemic, transforming the state’s overcrowded prisons into virus bombs that exploded outward. An indictment of a failed system and the politicians and judges who prop it up, this stunning book is also a call to action, laying out reforms that could save lives the next time a deadly virus proves that we’re all connected.

First Peek at the Cover Art for FESTER

Last night we were ecstatic to receive the cover art for FESTER. UC Press has always done right by me–we had a back-and-forth about Yesterday’s Monsters that was very productive, and to this day people remember Cheap on Crime as “the one with the stripes”–but I think this is the best cover they’ve designed for me so far. I like it for three main reasons:

(1) The color. THE COLOR! I love it! Sickness green. You can’t avoid it. You can’t ignore it. It’s so sick. It’s so sickening. It’s the color of miasma and nausea. It evokes with such visceral precision the story we tell in the book. And, people will remember “that green one.”

(2) The map. This was my proposal to the press, and I’m really glad they took me up on it; the execution, of course, is much nicer and cleaner than anything I could’ve possibly produced. You’ll notice it is a map of California, with coronaviruses indicating the locations of CDCR prisons. Inside the book, in Chapter 5, you’ll see another version of this map, which overlays the prison locations on the entire state’s COVID-19 map, which we think drives home the point we make there, and throughout the book: when and where people get sick behind bars, everything around them is sick, because prison is not isolated from its surroundings, but rather along a continuum. I love that this spatial idea, according to which we are not safer when our fellow Californians age and ail behind bars, made it to the cover in such a neat, communicative way.

(3) The font and the way the word breaks down the middle. They could’ve written it on the diagonal, or in smaller print, but they wanted it to be HUGE.And it *should* be huge. We’ve been spelling FESTER in all-caps for a reason, and I’m so glad they kept it that way for the cover. It is only now, presented with the cover art, that friends of mine are finally “getting” the title: it’s not just the disease that is festering. It’s the massive neglect and dehumanization that festered there for decades. The outbreak is nothing more than a trigger that activated existing vulnerabilities. And don’t forget how the coronavirus permeates not only the state map, but also the letters. Everything about this cover is overlaid and permeable.

We are told that FESTER copies will be at the warehouse in January and available in bookstores, brick-and-mortar and online, in March. I will keep you all posted as to developments and as to the book party and tour.

978-0-520-38612-9

Last night I finished copyediting FESTER (or, more accurately, responding to our copyeditor’s queries, which were blissfully few.) Indexing, cover art, and other stuff should follow, and we won’t be at your favorite book purveyor until January 2024. But we already have an ISBN for all three editions–hardcover, paperback, and ebook–and that makes the book feel more real somehow. As regular readers know, this has been a rough, rough summer, submerged in heartbreak and tragedy for my family and beyond, and any step forward feels like an accomplishment.

Reading the book again after several months of disengagement clarified some of what happened in the world since then. In Chapter 7, we wrote about Leslie Van Houten’s parole quest in the context of COVID-19 (I still think that denying a fully rehabilitated septuagenarian person’s parole while their institution experiences an outbreak reeks of politicization); I don’t think either of us imagined that, so shortly afterward, Van Houten would prevail in court and the judges would call Newsom’s “lack of insight” bluff so plainly and explicitly, resulting in her release. Having reread our manuscript, I now wonder whether the court’s newfound courage to push against denial decisions that turn our prisons into nursing homes is part of the sad legacy of the pandemic. Recall that it was the California Court of Appeal that recognized the gerontological aspect of the prison pandemic and urged CDCR to factor people’s age into account more clearly when seeking population reductions. Everything involving work is wrapped in a fog of exhaustion and despair now, but just a couple of short weeks ago I managed to give an interview about Van Houten’s release to Nightline, and was later dismayed that the mainstream coverage of her release was idiosyncratic and focused on the uniqueness of the case. I wish they had made more of an effort to see the decision as part of a possible post-pandemic reckoning.

Another thing that struck me lately was how not just courts, but everyone, seem so eager to file the COVID disaster away as a “one off” and learn nothing from it. A week ago I gave a talk (on a different topic) to police detectives investigating serious crime in Haifa. Conversation veered toward the age of prisoners; at least one of the officers expressed strong, even angry, resistance, sharing anecdotes about the rising crime toll in Arab towns and villages and saying that age does not seem to be a barrier for family vendettas. This may well be true (and here, it is a true epidemic), but it’s also true that family honor killings are a unique phenomenon with unique features and by no means characterize crime throughout the world. When I talked about the risks of incubating COVID in prisons, the chorus in the room was “that was an isolated case, it has nothing to teach us about appropriate sentencing.” For this reason, I’m delighted that the UCLA COVID-Behind Bars Data Project is pivoting toward charting mortality in correctional facilities more generally. With valley fever still a factor in central valley prisons, mpox in jails, and who knows what other horrors that flourish in filthy, overcrowded places in the wings, I want to see more thought put into the continuum between prisons and their communities. If we encounter questions about this on the book tour, we should have data on other mortality factors and chronic disease issues to show the relevance of COVID to the next phase in correctional policies.

I also reread the parts we wrote about the #StopSanQuentinOutbreak coalition, which would later be partly depicted in Adamu Chan’s film What These Walls Won’t Hold. In the last few weeks I’ve watched, with bitterness and dismay, the internal splits in Israel’s protest movement and in the open rescue community. It’s the stuff of my nightmares and the main reason I stay away from many activist spaces, particularly with younger people who take to in-movement splintering with natural joy that repels me. I can’t stand the moralizing, schoolmarmish idioms, flagellation (of self and others), massive hatred directed at the people who are closest to the haters and most want to help, and since it’s such a defining feature of any experience on the left I try to avoid this stuff like the plague and work around it as much as possible. The #StopSanQuentinOutbreak coalition was different. This is not to say it was completely devoid of the usual diseases of activist space: there was a “white people group,” though I’m not sure whatever for (I seemed to be the only person to whom this wasn’t clear) and there were some of the usual speech tics of the movement. But for the most part, what I experienced was a bunch of great people from all walks of life–family members, folks just recently released who rolled their sleeves right away and got to work, people of all ages and professions–who came together to do whatever it took to save lives and get folks out. Perhaps the urgency of the group was part of the appeal: most folks belonged to the big tent of abolitionism (whatever the hell that even means anymore) but the dismantlement of all prisons was not on the table. Saving old, infirm people from a preventable disease augmented by the ineptitude, indifference, and sometime sadism of a garbage system was. Which made a lot of the usual shibboleths and speechifying unnecessary and freed everyone, regardless of perspective, to tend to what was in front of them in a practical way. Perhaps if the left were less precious, smug, and academic, and engaged in activism as an emergency response (climate! Collapsing democracies worldwide! Health and poverty crises!) we could unite more and accomplish more. This is why I still maintain (and you’ll see it in the book) that aggressive pruning of the prison system (Cut 50!), particularly in the context of aging and infirm people, is eminently practical and achievable and not at all an abolitionist pipe dream. If we treat this with the urgency it deserves, rather than as an esthetic prop for our goodness, you’ll be surprised what we can accomplish.

As FESTER continues its production journey, I’ll share info about our cover art, blurbs, reviews, and release. Expect a big party in 2024 and a string of fabulous book tour conversations in the year to follow.

Op-Ed in the L.A. Times Critiquing the Gubernatorial Veto on Parole

Today, the L.A. Times published my op-ed, in which I criticize California’s gubernatorial veto on parole which, as I explain in Yesterday’s Monsters, serves no purpose except contaminating the parole process with politics and optics. Here it is:

***

On Tuesday, California’s 2^nd District Court of Appeal reversed Gov. Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the state board’s parole grant decision. Their ruling exposes deep flaws in California’s system of allowing gubernatorial vetoes in the first place.

Van Houten, a member of the infamous Manson “family,” participated in the murders of Rosemary and Leno LaBianca in 1969. She was 19 at the time. These were horrific crimes whose aftermath shattered a sense of innocence and safety for many. But it is also true that Van Houten and other teenage girls caught in Manson’s web were indoctrinated into, exploited and abused by a dangerous cult not properly understood until many years after the murders.

In prison since 1971, with her original death sentence commuted to life with parole in 1972, Van Houten has transformed herself, earning two academic degrees, participating in rehabilitative programs and expressing remorse for her crimes. After decades of prosecutors and families of the victims of Manson’s crimes opposing Van Houten’s release, the factual evidence finally outdid the political pressure: Since 2016, the Board of Parole Hearings has recommended her release five times. Gov. Jerry Brown and then Gov. Newsom reversed each decision.

The appeals court reviewed the veto through a system deferential to the governor; all they needed to uphold his decision was “some evidence” that Van Houten, now 73, presents a risk to public safety. The court concluded that his veto was “not supported by a modicum of evidence in the record.”

Since a 2008 decision from the California Supreme Court, parole boards can’t deny release based solely on the severity of a crime. Instead, they must show that the parole candidate poses a public safety risk. Boards and governors alike have circumvented this standard by using hard-to-falsify language — for example, vaguely claiming that they don’t think the inmate possesses “insight” about their crime.

In denying Van Houten’s 2020 parole bid, as the appeals court reported, Gov. Newsom argued that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying.” He was also “unconvinced” that her childhood trauma, including her parents’ divorce and a forced abortion, “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”

The court essentially called the governor’s bluff. They found that Van Houten’s extensive record showed “no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but [per state law] the Governor’s ‘decisions must be supported by some evidence, not merely by a hunch or intuition.’”

Yet allowing the governor to veto parole recommendations at all risks reducing such weighty decisions to one person’s hunch or political agenda. California is one of only two states that allow gubernatorial veto of parole. The Legislature introduced it in 1988, politicizing the parole process and adding public pressure — as well as optics — to what should be a professional assessment of risk. The veto works in one direction: The governor can only veto parole recommendations, not denials.

Any fear that the state is releasing dangerous people in droves is unfounded. Parole boards are reluctant to grant parole. According to data from the California Department of Corrections and Rehabilitation, the Board of Parole Hearings recommended it in only 20% of cases in 2019. As I explain in my book “Yesterday’s Monsters,” receiving parole at one’s first hearing is extremely rare. I found that the median time spent behind bars on a life sentence with parole in California has risen from 12 years in 1980 to 28 years in 2012 for those who have been released, and a quarter of the prison population is serving life sentences — 26,000 with parole and 5,000 without.

The role of politics was particularly clear during the COVID-19 pandemic. The aging and infirm lifer population faced serious risks of contagion and death behind bars. They also pose little to no public safety risk, as shown by robust criminological evidence. Still, Newsom agreed to release merely 8,000 people — a deficit eclipsed by incoming admissions from jails, and the vast majority with just weeks or months left of their sentences. Van Houten was up for parole in 2020 when her prison, the California Institution for Women, was experiencing a COVID-19 outbreak of more than 100 cases.

The court’s decision now puts the ball back in the governor’s court. He has a 10-day window, starting in a month, wherein he can instruct Atty. Gen. Rob Bonta to appeal this case to the California Supreme Court. Common sense should prevail and guide our leadership in Sacramento to allow this rehabilitated septuagenarian to live her life quietly on the outside.

But no matter the outcome, her journey raises serious questions about the gubernatorial veto. Do we truly need an extra layer of political considerations to assess danger to the public — or should we trust the professionals appointed by the governor, mostly from law enforcement backgrounds, to do their job?

Hadar Aviram is a professor at UC Law San Francisco. She is the author of “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” and co-author with Chad Goerzen of the forthcoming “FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster.”

CA Court of Appeal Reverses Newsom’s Veto, Reinstates Van Houten’s Parole

Parole drama today! the California Court of Appeal for the Second District reversed Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the board’s parole grant decision.

You can read the decision in full at this link. It’s a 2:1 decision, with the majority opinion recounting Van Houten’s early history, life crime, prison history, and plans for release. Their point of departure is a standard of review that is highly deferential to the governor:

We review the Governor’s decision under the “some evidence” standard, a standard our Supreme Court has called “extremely deferential.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 665 (Rosenkrantz).) Under that standard, a simple modicum of evidence is all that is required to uphold the Governor’s decision. (Shaputis, supra, 53 Cal.4th at p. 210.) “Only when the evidence reflecting the inmate’s present risk to public safety leads to but one conclusion may a court overturn a contrary decision by . . . the Governor.” (Id. at p. 211.)
p. 43

But even under this standard of review, “we nonetheless conclude that the Governor’s reversal in this case is not supported by a modicum of evidence in the record.” (p. 44).

Their support for this assertion echoes what I said in chapter 4 of Yesterday’s Monsters: that the constant refrain that Van Houten has somehow failed to do even deeper psychic excavation into her circumstances and crime is nothing but smoke and mirrors, that it is ridiculous especially in someone so introspective, and that it is thin cover for political optics.

The Governor found that Van Houten’s “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying,” and he was “unconvinced” that Van Houten’s parents’ divorce and her forced abortion “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”
p. 44

To which I’d say, how exactly does he expect anyone to explain a bizarre stranger homicide in the context of a cult? Is there anything she could possibly say that would lead anyone in Sacramento to write, “aha, now I get it”? The Court agreed, walking us through Van Houten’s introspection in a way that shows the Governor’s reasoning for the sham that it is:

It cannot be said that Van Houten has not extensively identified and discussed the factors leading to her life crimes, only some of which briefly are referenced in the Governor’s decision. In both her interview with the CRA evaluator and at the parole hearing, Van Houten expounded at length on the causative factors, beginning with her feelings of anger and abandonment after her parents’ divorce, a stigmatizing event in that era, and how that led to drug and alcohol abuse. She ran away from home with her boyfriend, who had impregnated her. Her mother then forced her to have an illegal abortion against her wishes, unmedicated, in her bedroom, instructed to keep quiet so as to not wake her siblings.

Van Houten spoke of shutting down emotionally and feeling numb after the abortion. The CRA evaluator wrote that, even now, Van Houten “was tearful as she spoke of the abortion and what ‘might have been.’ ” Van Houten described herself at that point in time as being “ ‘[d]esperate to be accepted,’ ” and “ ‘ha[ving] no sense of value. My value came in the eyes of other people.’ ”

Van Houten stated when she met Manson cult member Catherine Share, she “was at an all-time bottom low. I had no income, I did not feel good about either of my parents, and when I met her, it seemed to me that I was being offered a pretty good life.” She described how Manson slowly indoctrinated her, often while she was under the influence of LSD. The cult was not murderous and violent at the outset—rather, she stated her time at the ranch initially “ ‘seemed fun,’ ” and the talk of and preparation for violence and revolution came later. Van Houten said she “ ‘wanted to belong and . . . wanted to belong to something that wasn’t connected to my past.’ ” Van Houten explained how Manson used her anger with her parents and her shame about the abortion to convince her to turn her back on society, accept the alternative lifestyle he offered, and reject the lessons of right and wrong she had learned in her youth. Manson successfully transformed any doubts Van Houten had about the cult into her own self-criticism for failing to achieve the enlightenment he purportedly offered. By the time Manson’s talk turned to violence and murder, Van Houten already had fully committed to him, so much so that she believed he was Christ reborn. She also believed in the impending revolution, and that remaining with Manson was key to her survival.

The Governor found Van Houten’s extensive discussion of the causative factors inadequate to explain her life crimes. This necessarily implies the Governor believes there are additional factors for which Van Houten has failed to account, factors that, unaddressed, create a risk of violent recidivism. There is no indication in the record, however, of a latent underlying factor that potentially could result in violent conduct, nor has the Governor identified one. The CRA evaluator found Van Houten did not meet the criteria for psychopathy or a personality disorder, and there was no evidence of a thought disorder, hallucinations, or homicidal or suicidal thoughts or behavior. The evaluator further found it “very likely” that Van Houten’s youth at the time “significantly impacted” her involvement in the life offense, a factor obviously no longer applicable five decades later. The CRA’s finding that Van Houten presented a low risk of recidivism was consistent with similar evaluations over many years. Van Houten, moreover, has no history of violence either before the life crimes or in the 50 years since, and the prison staff regarded her highly enough to place her in positions of leadership within the prison, including facilitating groups intended to help other inmates with their rehabilitation.

The record shows no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but the Governor’s “decisions must be supported by some evidence, not merely by a hunch or intuition.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
pp. 45-47

The unwritten part of this is pretty obvious to me: the only factor that can explain this veto is political optics, and California law does not allow Governors to veto people’s parole because it will look bad and people will write mean things on Twitter.

The only remaining question is: What happens next? It is quite possible that Gov. Newsom will instruct Attorney General Bonta to appeal this to the California Supreme Court and to ask for an en banc decision, which will further delay proceedings. I was asked today whether they could hold Van Houten in prison while they do that. I honestly am not sure. I will say, though, that if she’s released pending the CA Supreme Court decision, it’ll be the second time she’s spent some time on the outside–this is what happened when her request for a new trial was approved in 1979.

There is another reason why Newsom’s decision was outrageous: you may not remember this, but when Van Houten’s case was pending before Newsom, CIW, where she is incarcerated, had a horrendous COVID-19 outbreak. As I wrote at the time, to keep a 72-year-old woman in prison when she has no disciplinary record whatsoever and is lauded and appreciated for her superb behavior and personal growth at a time when her congregated facility has a huge outbreak was inhumane. I really hope our leaders in Sacramento can let go of ego and optics, set aside their personal aspirations and dread of negative publicity, and do what is unquestionably the right thing here: let this go and allow this low-risk septuagenarian woman with advanced degrees to live her quiet life on the outside.