The Coronavirus Aid, Relief and Economic Security (CARES) Act provides assistance to hospitals, nonprofits, individuals, and businesses. Among other provisions, the CARES Act provides individuals who earn less than $75,000 annually with a direct payment of $1,200, plus an additional $500 for every qualifying child age 16 or under. Married couples who file a joint return and earn less than $150,000 are eligible for up to $2,400 plus an additional $500 for every qualifying child age 16 or under.
On September 24, 2020, Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California issued an Order certifying a nationwide class of people incarcerated in state and federal prisons, and granting the plaintiffs’ motion for preliminary injunction requiring the U.S. Department of Treasury, the U.S. Internal Revenue Service, and the United States of America to stop withholding CARES Act stimulus funds from plaintiffs or any class member on the sole basis of their incarcerated status.
The Judge’s preliminary injunction further ordered the defendants to reconsider their prior denial of advance refund payments to any person based on incarcerated status within 30 days, whether the denial was based on a 2018 or 2019 tax return, or on claims filed through the IRS’s online “Non-Filer” portal.
Earlier, on August 1, 2020, Lieff Cabraser and the Equal Justice Society filed a groundbreaking lawsuit against the United States Department of the Treasury and Internal Revenue Service on behalf of a nationwide class of people who were incarcerated at any time from March 27, 2020 to the present—that is, people serving a sentence in state or federal prison. The lawsuit seeks to have a court order the Defendants to issue CARES Act stimulus relief to all eligible incarcerated people, or up to $1,200 per eligible person plus $500 per qualifying child.
Lieff Cabraser have put together an easy-to-follow FAQ for you, explaining who is eligible and how to file a claim.
To read CDCR’s response briefs in the Marin cases and in Von Staich, you could think that the pandemic is dwindling in prison. The opposite is true: the last two weeks have seen a spike in new COVID-19 cases in CDCR. The graph above is based on the daily CDCR data (Chad Goerzen and I code them daily.)
Here are a few other things we’ve learned:
Overall number of cases since the beginning of the pandemic stands now at 13,155 – nearly 14% of the total institution population, which as of Wednesday of last week was 95,886. This is a bit misleading, as some of the people who became infected have been released. But even with the higher population before the releases, this is a shocking percentage. By comparison, the rate of all-time infections for the entire state is 2009 per 100,000 people (approximately 2%). People in prison have been seven times as likely as people in the state to contract COVID.
COVID-19 is more lethal in prison than outside prison. Statewide, we’ve had 38 deaths per 100,000 people; in CDCR, more than twice that: 60 deaths for slightly less than 100,000 people. And this is before adjusting for age.
If you look only at the new spike in cases in the last 14 days, infection rates are even worse in prison. In CDCR facilities, it’s 17.6 per 1,000 people; in CA, it’s 1.3 per 1,000. For reference, at its peak, the CA infection rate was 3.3 per 1,000.
Generally speaking: My mentor and friend Malcolm Feeley made a shocking rough calculation. If we totaled up the population in archipelago of America’s prisons and considered them a country, both the number and rate of COVID-19 infections and deaths would place this “prison country” in the top twenty five percent of all countries in the world in terms of both absolute number of cases and deaths, and rate of deaths. By Malcolm’s rough count, this would put the “prison country” at around number 53 in over 200 countries.
We’ve also learned where the worst new outbreaks are:
FSP (Sacramento) – 585 new cases in 14 days
ASP (Kings) – 260 new cases in 14 days
CRC (Riverside) – 269 new cases in 14 days
CVSP (Riverside) – 182 new cases in 14 days
SATF (Kings) – 148 new cases in 14 days
VSP (Madera) – 77 new cases in 14 days
As you can see, this clusters mostly around Kings and Riverside Counties, which are, respectively, #2 and #14 in new cases per the L.A. Times counter (whether there’s a correlation, and what the timing is like, is a complicated question.) The biggest spike in new cases is in Imperial county; we should note that Riverside County prisons are located almost on the border with Imperial county.
This trend is more generalizable. Here’s a snapshot of our coded data, in order of outbreak seriousness in counties. You’ll see a correlation, to the tune of 0.588 (pretty good!) between outbreak in the county and an outbreak at a prison located either in the county or in a neighboring county near the county border.
As I’ve explained before, we’re not telling an airtight causal story here. All we are doing is dispelling the notion that locking people up is somehow keeping the surrounding county safe.
In my previous writings about the COVID-19 prison disaster (especially here and here), I relied on Ben Bernanke’s famous “triggers and vulnerabilities” model. I explained that the virus happened on a fertile Petri dish of neglect, both preceding and following the Plata litigation. But it’s just occurred to me that there’s a better way of explaining why the problem lies not only with the prison healthcare crisis that preceded Plata, but also with the Plata remedy itself: Criminal justice reforms in CA (through litigation as well as legislation) are often like homeopathic remedies: a low-concentration of the exact problem they purport to solve. The crisis we are facing now is merely an exaggerated example of the futility of homeopathic criminal justice reform.
Homeopathy, the creation of Eighteenth-century physician Samuel Hahnemann, follows an idea known as the Law of Similars – the idea that, if exposure to substance X causes symptom Y in a healthy person, substance X can cure symptom Y in a person where they occur naturally as part of a disease process. For example, exposure to onions causes an itchy, stinging sensation in the eyes; therefore, the homeopathic remedy for hay fevers or head colds accompanied by such sensation is a low-concentration formula of onion.
I’ve come to see criminal justice reform initiatives in California as low-concentration forms of the underlying problems they purport to solve. The COVID-19 “relief” policies sold to us by the Governor and CDCR are a case in point.
The problem we had to solve was a giant, bureaucratic correctional monster, which we could not wrangle. The Plata solution: we made it more complicated by breaking it into 59 monsters that have an equally unwieldy, though different, structure. We’re now dealing with the ramifications of this homeopathic preparation: inscrutable BSCC reports on jails alongside journalistic exposés of serious outbreaks; four months of delay before numbers were even available; traffic between jails and prisons that is unpredictable and difficult to regulate.
The problem we had to solve was the rate (and percentage of the general prison population) of aging, infirm people serving interminable sentences. The Plata solution, the Prop 47 solution, the Prop 57 solution: reinforce the notion that these people belong in prison by designing all releases around the issue of nonviolent offenders. While removing people from prison (diluting them) this, ironically, increases the concentration of aging and infirm people in prison so that they are the ones exposed to healthcare scandals.
The problem we had to solve was a bloated correctional apparatus, whose provenance was decades-long oversensitivity to victim pressure groups advancing a monolithic vision for alleviating their plight: Monstrous sentencing policies. The solution we’ve devised for COVID-19? Anticipate the sensitivity and address it by avoiding releases of people convicted of violent crime.
The problem we had to solve was a “correctional free lunch”, in which people in the community were largely unaware of the costs of our correctional system because these were concentrated in large facilities in rural and remote areas. The solution? Now we encourage community-prison alienation through jurisdictional jockeying for position between county health officers and the prisons that are literally located amidst these counties and irrational fears that releasing people will infect the community (the opposite is true: incubating the disease in prisons is much more risky for communities.)
As we’ve seen in the COVID-19 release plan (before and after its implementation), and just like homeopathic formulas, diluting the problem results in obtaining a placebo at best, and a worsening of the problem at worst. The logic of the Law of Similars is supposedly an appeal to the idea of a “natural law” principle, but actual science refutes this: what makes sense is to treat an ailment with an antidote, not with a diluted version of the same ailment. The antidotes are obvious to me: Thin out the monster by locking fewer people up in fewer places. Do not lock up aging, sick people. Give victims/survivors better roles than the world curators of what should happen to offenders.
Which brings me to why I think the analogy matters. As I’ve explained elsewhere, I don’t think this is some evil, sadistic ploy at work here. I think what’s stopping state and prison officials from applying the antidotes is institutional intransigence and fear. Homeopathy itself was borne of Hahnemann’s disgust with the medicine practiced during his era: bloodletting, leeching, purging, etc. By contrast to these harmful measures, the delicacy of the diluted solutions was mellow and reassuring. Here, too, there’s immense fear of what would happen if drastic measures were taken. I saw this logic at the recent federal Plata hearing (though, admittedly, the PLRA plays an important role here, too) and also at the two state courts. We don’t like drastic solutions and purging; better to drink a Bach Flower distillation.
Ashley Rubin’s forthcoming book The Deviant Prison looks at why the Pennsylvania incarceration model, practiced at Eastern State Penitentiary, persisted long after it was proven not to work. I see the same form of institutional obstinance at work here. And, by contrast to Eastern State, this is perpetuated because homeopathic criminal justice reform has become the habitual, accepted mode of doing things. It might be sobering to realize that homeopathic preparations are the only category of alternative medicine products legally marketable as drugs. Quackwatch explains that this situation is the result of two circumstances. First, the 1938 Federal Food, Drug, and Cosmetic Act, which was shepherded through Congress by a homeopathic physician who was a senator, recognizes as drugs all substances included in the Homeopathic Pharmacopeia of the United States. Second, the FDA has not held homeopathic products to the same standards as other drugs. Today they are marketed in health-food stores, in pharmacies, in practitioner offices, by multilevel distributors, through the mail, and on the Internet. I think that our habituation to homeopathic criminal justice reform has created a similar situation, where we are willing to accept these placebo solutions because the ideas that drive both the problems and the solutions have been so hammered in, that we can’t imagine anything else.
It’s now mid-September, and it’s time to see these releases. The picture of occupancy in California prisons as of yesterday’s count (the weekly count happens on Wednesday) is at the top of this page. If you wish to look at CDCR’s original data, from which I compiled the above, it’s right here.
We’ve seen an overall reduction to 96,827 total–here’s a great piece by the Chron’s Bob Egelko to give you some historical perspective on how we got there–but how that affects your prison experience or your exposure to COVID depends on where you are. More than half of the CDCR institutions are still in the red with above-capacity populations. Others are hovering at or neat 100%, which is a big improvement, but still very crowded and doesn’t do much for social distancing. And, for San Quentin and some other prisons, the reduction to 100% will not offset the basic architecture of the prison, which is dilapidated and lacks ventilation. Moreover, consider the bottleneck in county jails, and the extent to which transfers from jails might offset this population reduction.
State courts (and federal courts, though their hands are largely tied due to the limitations of the Prison Litigation Reform Act) must act to provide relief. As you see, there’s no safe destination.
“There’s no need to act hastily.” –CDCR counsel Kathleen Walton
“Yes there is. Yes there is. There is a need to act hastily.” –Justice Kline, CA 1st District Court of Appeal
Oral Argument, In re Von Staich on Habeas Corpus, September 8, 2020
Today, the First District Court of Appeal heard oral argument in In re Von Staich, the San Quentin COVID-related habeas case. The hearing opened with a legal debate on whether CDCR, who disputes the declarations and reports made by physicians about the conditions at San Quentin, should have provided actual evidence to refute these reports. CDCR representative Kathleen Walton argued that the habeas rules did not require her to provide these facts, and pressed the court for an evidentiary hearing; Brad O’Connell, for the petitioner, argued that CDCR made no attempt to plead the facts or meet them at all. Justice Kline characterized the prison’s response as “conclusionary statements, not facts”, and rejected CDCR’s argument that the issues they briefed on (whether CDCR provided adequate cleaning, sanitizing, masks, continuation of of holding petitioner Von Staich with other inmates, whether COVID is still spreading at the prison, etc.), were the focus of the case. “What we believe this case is about”, said Justice Kline, “is whether there is persuasive evidence that the court must do what the Plata court cannot do, which is to reduce population of San Quentin to a level that can permit the administration of social distancing within that prison.”
After confirming that CDCR can, indeed, release people serving life with parole, and discussing the legal mechanisms to do so (including the Governor’s emergency authority to release), much of the discussion consisted of CDCR peddling various falsehoods and the Justices not having it. At some point, Ms. Walton intimated that they estimate that some of their vigorous efforts to contain COVID in prison were hindered (they don’t know to what extent) by “inmates refusing to cooperate”, including testing and reporting symptoms. Justice Kline countered with the possibility that people were disincentivized from cooperating because the prison relied on spaces with a punitive connotation (solitary confinement cells) for the purpose of medical isolation (a problem pointed out in the AMEND report and in our Amicus brief.) This struck me as a problem that correctional health professionals should have perhaps taken into account *back in March* when they were repeatedly warned of outbreaks in prison. Fancy that, prison health officials having to consider the possibility that people might try to avoid being transferred to solitary!
Discussion then turned to release policies, with Justice Kline extensively mentioning our brief, which highlighted the most obvious demographic for successful releases: aging people doing long stints for violent crime. The AG representative responded that the petitioner in this particular case was judged to be “moderate risk.”
The next topic on the table was, again, the argument that the court was an inappropriate forum, and somehow “duplicative” of the Plata litigation. Justice Kline explained: “You keep making arguments that assume we have the same interests as the federal court. We are not being asked to evaluate the quality of care and attention to covid they are providing. [The federal courts] are looking into that.” To top the outrage, the CDCR representative tried to spin Judge Tigar’s Plata stance as “he didn’t find an Eighth Amendment violation.” Justice Kline wasn’t having any of it and responded that it is a matter of public knowledge that Judge Tigar *urged* state courts to do something because the PLRA stopped him from acting. In short, said Justice Kline, the COVID crisis at Quentin is a state prboelm, happening at a state department of corrections, which is the duty of state courts to address–in particular at Quentin, which is unique in being the system’s oldest and most dilapidated prison.
Justice Stewart then challenged the CDCR representative, quoting our argument in our Amicus brief that they have basically arrived at each of the three courts handling these lawsuits and argued it was not the appropriate forum. The CDCR representative, in turn, tried to harmonize their position by creating a hierarchy of sorts between the different litigation efforts.
Even though this was, overall, a good day for the petitioner, the court did press petitioner’s representatives on the appropriate remedy. Issuing an order to release 50% of the prisoners, said Justice Kline, is “something I’m not sure I’m willing to do. . . not confident that my court has the ability.” Indeed, the role of the appellate court might be limited to assessing whether the current conditions at Quentin allow the social distancing necessary to stop the spread in that facility, and to put in some guidelines about particular issues that would apply across the board. Justice Kline also commented that the lawsuit has already resulted in a benefit to Von Staich himself; he’s been isolated and no longer as exposed to COVID as he previously was. In light of these issues, the question to petitioner’s attorneys was, “What would you have us say?” The response from Richard Braucher (for the petitioner) was that the only ways to reduce the population at Quentin were via release or via transfer.
Which is where the argument for petitioner touched on some real talk. The elephant in the room, of course, is the rise in cases at other institutions not at stake in this lawsuit. Petitioner’s representative specifically mentioned the situation at Avenal, which has become dire in the last few days, and is currently the worst COVID Petri dish in the state. Here’s the picture there:
We’ve been tracking the CDCR prisons as well as CA counties for months now, and I should probably say that I’m not at all sure whether this is a third outbreak or the continuation of the second one; testing has been sporadic and erratic and basically reflects Trump’s philosophy of “no testing –> no cases.” Nonetheless, it indicates active disease, and it’s not the only place with hundreds of cases. Folsom is doing abysmally as well:
The Court, however, expressed the need to restrain the extent of their inteference with prison business via a direct release order. They pressed petitioner’s representatives on this point, and I think I would have argued that CDCR *needs* help and guidance from the courts because it had *ample* opportunity to do the decent thing and didn’t do so. Even the current CDCR plan is dated, inadequate, targets the wrong people, and we now hear will take the better part of a year to implement, which will come woefully late for the folks who will get sick or even die in the interim. That launched a discussion of how petitioner’s counsel would craft the priority of releases, to which they replied that the two lynchpins of the policy should be age and medical condition.
This opened the door to some breathtakingly cynical takes from the CDCR representative, the gist of which was that there was “no need to act hastily”–presumably because the urgent call to release 50% of the people in prison happened before the reductions in population and because now, after so much damage has already been done, they’re implementing some new program for sanitation and PPE equipment. Basing an argument that no remedy should be offered on the fact that the harm’s already been done was pretty much what I expected them to argue; CDCR has maintained that they are winning the fight against the virus, when in fact the virus has already won and continues to win, again and again, in prisons where COVID was thought to have abated. Justice Kline responded from the heart: “Yes there is. Yes there is. There is a need to act hastily.” People have gotten sick and died, he said, and we must ensure that no more of this happens. We now wait to hear what the Court will decide.
Today I submitted an Amicus Curiae brief on behalf of the ACLU of Northern California and eighteen criminal justice scholars in In re Von Staich, another San Quentin-related COVID-19 relief case pending before the Court of Appeal. You can find the brief here:
Part of what I discuss in the brief has to do with CDCR’s evasive maneuvers. There are now three COVID-19 prison cases pending before the courts: Plata v. Newsom in federal court, the Marin County consolidated cases, and Von Staich. In each of these cases, the Attorney General representatives are claiming that the court is not the appropriate forum for handling the matter. Not only does this argument lack legal merit–judicial review is part and parcel of the struggle in prison conditions cases, and people are expected to exhaust state remedies before going federal–it is also a cynical evasive maneuver, designed to put off resolution in these cases until people either get well on their own or die. Indeed, at a status conference I attended last week, the AG representative led with the argument that there’s no longer a problem at San Quentin because the rates of new cases are slowing down. I cannot emphasize enough how misguided this line of argument is. San Quentin is not winning the battle against COVID-19. The virus has won–it’s infected almost all the available hosts, two thirds of the prison population, and killed 26 people–and will win again if there’s a repeat outbreak and no measures are taken to prevent it, as it has in five other prisons so far: Avenal, CIW, Corcoran, LAC, and ISP.
It may be that I’m feeling especially livid about this having read Jason Fagone’s story in yesterday’s Chron, according to which grieving relatives of incarcerated people who die of COVID get, in addition to their grief and anger, a cremation bill for $900:
Since the start of the pandemic, 54 incarcerated people have died of COVID-19 in California’s 35 prisons, and even though the deceased were in state custody until they drew their last breaths, the state expects their loved ones to pay burial costs, which can run into the thousands of dollars.
Families and advocates for incarcerated people say the policy is not only cruel, it discriminates against those without means to pay the sudden expenses. And with death numbers rising in the state prisons, the issue isn’t likely to go away.
“It’s a pretty disgusting policy,” said attorney Michael Bien, who represents tens of thousands of California prisoners and knows families struggling to scrape up money to bury incarcerated loved ones felled by the virus. He said the state has a moral duty to pay for a basic burial or cremation of people who die in their custody.
“This is basic human decency here,” Bien said, emphasizing that the financial burden is falling not on those convicted of crimes but on their “children and wives and moms.”
I wonder if CDCR also charges the families for the burial of incarcerated firefighters who are risking their lives to save my life and yours as I type this.
This is a hard post to write, because quite honestly, with today’s news, I’m just not sure how much more calamity human beings can take. The intersection between the pandemic and the frightening fires in California has created a perfect storm around our prison population, and some of the reporting about it is so horridly inadequate that someone has to say something. What I’m seeing is such a poisonous cocktail of moralistic duplicity, naked opportunism, and sheer indifference to human suffering, that it cannot go unremarked upon.
The horrific fires that have devastated a million acres in the state have engulfed the areas close to at least two prisons: the California Medical Facility and Solano State Prison. CMF, in particular, has a population especially sensitive to smoke: older, vulnerable people. As you can see in the Vacaville police map above, the prisons are located smack dab in the middle of the evacuation zone. Nevertheless, the prisons have not been evacuated, nor have preparations been made–not even bringing, say, a bus nearby for transportation. Incarcerated people and family members who spoke with the Guardian’s Sam Levin report heavy smoke, ash, and an inability to escape toxic fumes.The people inside are reporting that prison guards arrive into the facility covered in ash. In case you’re wondering what CDCR has done, Levin reports:
“They are breathing in fire and smoke, and they have nowhere to run,” said Sophia Murillo, 39, whose brother is incarcerated at CMF in Vacaville. “Everyone has evacuated but they were left there in prison. Are they going to wait until the last minute to get them out?”
To increase social distancing and limit the spread of Covid, CMF had moved 80 people to sleep in outdoor tents instead of indoor cells, but with the fire approaching and air pollution rising, the prison moved them back indoors. Murillo said she now fears a major Covid outbreak inside the prison, and noted that mass evacuations could also spread the virus if people are packed in buses together.
Unfortunately, the New York Times’ Thomas Fuller does not share Levin’s basic humanity. In his story about the intersection of fire, disease, and incarceration, he gives you, gentle reader, the following take: our vast compassion in releasing people or in holding them confined due to COVID is hurting our firefighting efforts. But his interviewee Mike Hampton, a former corrections officer who worked at a firecamp, truly takes the cake:
“The inmates should have been put on the fire lines, fighting fires . . . How do you justify releasing all these inmates in prime fire season with all these fires going on?”
This false dualism echoes a similarly horrible, opportunistic perspective about incarcerated firefighters that came a few years ago out of Attorney General Kamala Harris’ office. In a 2014 legal proceeding regarding Plata releases, the AG representative wrote:
“if forced to release these inmates early, prisons would lose an important labor pool.” Those prisoners, the Times reported, earn wages that range from “8 cents to 37 cents per hour.”
In a Sept. 30 filing in the case, signed by Deputy Attorney General Patrick McKinney but under Harris’ name, the state argued, “Extending 2-for-1 credits to all minimum custody inmates at this time would severely impact fire camp participation — a dangerous outcome while California is in the middle of a difficult fire season and severe drought.”
CDCR is apparently still embracing this mentality–on one hand, decrying how releases would presumably harm public safety and on the other hand treating the people in prison like expendable machines at the service of the state. It does not seem to matter that the folks slotted for release–older, medically vulnerable folks–are obviously not the folks working at the firecamps.
Much less monstrous, but equally misguided, is the idea that in order to stop relying on “slave labor” we must stop relying on incarcerated people to put out fires in California. This is the sort of lazy take that comes from self-perceived enlightenment but has nothing to do with what incarcerated people actually want. You don’t have to guess–you could read my colleague Phil Goodman’s research about the firecamps. People who serve their sentences at the firecamps feel an enormous amount of dignity and pride at being able to contribute in this heroic manner and save lives. They experience firecamp placement as “another second chance.” Moreover, CDCR is the only place in which the racial animosities within prison–some self-imposed and some institutionally-directed–simply do not exist and people befriend folks of other races and ethnicities and of other gangs.
These two takes are presenting Californians with a false dichotomy: either you exploit people and risk their lives for a pittance OR you keep them behind bars. The obvious solution to this conundrum is not on the menu, even though it should be: (1) pay people commensurately with their skills and the risks they take, and (2) remove the criminal record limitations on firefighting work. I’m going to venture a wild guess that this would also be a terrific recidivism reduction strategy, because someone who acquires unique skills in a field essential to preserving our state and saving human and nonhuman lives is going to feel proud putting those skills to use, getting fairly paid for them, and getting the social respect that is rightly owed to those doing the job. Anyone who is suggesting that the solution to our problem is more reductive or more complex is simply lying to you.
Today, the Office of the Inspector General published the first installment in a series of three reports about CDCR’s (mis)handling of the COVID-19 crisis in prisons. The report was commissioned by Assembly Speaker Anthony Rendon and you can read it here, in its 47-page glory. For those of you unfamiliar with the Inspector General, the Office’s authority to review CDCR’s policies and practices comes from the California Penal Code and serves as an important control over correctional operations.
The first report examines CDCR’s screening practices for staff and visitors. Heeding warnings from the WHO and CDC, Governor Newsom instructed CDCR to take preventative measures to prevent the pread of COVID-19 in prisons. As early as March 11, CDCR suspended all visits to the prison–the suspension remains in effect–but continued to allow some essential visitors, including contracted workers, attorneys, and OIG staff, to enter prisons, in addition to thousands of the department’s staff who did so each day. On March 14, the suspension policy was supplemented by a directive to verbally screen all staff and visitors by querying them about signs and symptoms of COVID-19. Later in March, CDCR added required temperature checks to the verbal queries.
Here’s where it’s important to explain something. Every morning when I drop my son off at preschool, and every afternoon when I pick him up, a staff member checks both our temperatures, and asks us screening questions about symptoms, travel, and contact with known COVID-19 carriers. Even though this screening procedure does not detect asymptomatic carriers, it is hugely important, and it is doable, because the preschool only has one entrance. But prisons are more complicated than preschools. As the report explains, most prisons have multiple gates and entrance points, ranging in security level. Administrative offices, warehouses, industries, and other areas are often behind the main gate, but outside of an internal, secured entrance point. Take a look, for example, at this aerial photo of San Quentin. On the top right, you can see structures that are not part of the inner perimeter of the prison, and you can also see that, within the complex, there are multiple buildings with their own secured gates.
People mill about through these multiple gates on a daily basis. The staff, of course, and the essential visitors, come in and out of the prison on a daily basis. In addition, incarcerated people at San Quentin frequently work in the buildings outside the secure perimeter. This brings people across security entrances in daily contact with each other, and requires careful screening at the entrance to each correctional complex.
Unfortunately, the screening policy has not worked out at CDCR. The report summarizes:
Despite the department’s statewide directives that staff and visitors be screened for signs and symptoms of COVID-19 upon entry to prisons, we found that the department’s vague screening directives resulted in inconsistent implementation among the prisons, which left some staff and visitors entering prisons unscreened. Specifically, we found prisons took different approaches to implementing the same departmentwide directive. Some prisons funneled every car to a single screening location, where prison staff conducted verbal and temperature screenings of the cars’ occupants. Other prisons screened staff at certain pedestrian entrances to the prisons. We found that this second approach increased the risk that staff or visitors may have walked into or through other workspaces without having been screened.
OIG staff viewed and experienced these inconsistencies firsthand. During multiple visits by our staff between May 19, 2020, and June 26, 2020, prisons did not screen some of them for the disease’s known signs and symptoms. For example, California State Prison, Sacramento, conducted screenings at an area that cannot be seen from the prison’s main entrance. In one example at this prison, two OIG staff experienced no delays when walking onto prison grounds; no one screened them as they parked their cars and then walked into the prison’s administration building.
OIG staff’s observations were also supported by staff whom we surveyed at several prisons. To obtain prison employees’ perspectives, we surveyed all staff at seven prisons—more than 12,000 staff members. Staff responding to that survey indicated that the vast majority of them, but not all, had always been screened upon prison entry. Specifically, 5 percent of the survey’s respondents indicated that they had not always been screened as required by the department’s directive. We also learned that the results derived from some staff and visitor screenings may have been flawed. In response to a separate survey that we administered to screeners at five prisons, numerous screeners also identified multiple instances of thermometers malfunctioning during screenings. However, the screeners’ survey responses did not indicate how they proceeded to conduct screenings when they could not accurately obtain temperatures; consequently, it is unclear whether they allowed entry to those individuals. Nevertheless, because the department’s directive lacks instructions on what screeners were supposed to do in those instances, it was possible that screeners allowed some staff and visitors entry without obtaining accurate temperature readings. In addition, according to our review of a sample of screeners’ training records and our survey of screeners themselves, many screeners apparently received no formal training at all concerning their prisons’ screening processes, thus increasing the risk of allowing infected individuals to walk into prison facilities and expose others to the disease.
Much of the media reportage on CDCR’s failures to properly act has focused on issues of testing and cohorting, but screening is a fairly doable preventative policy, especially in places designed to prevent people from escaping. It’s dismaying to see how haphazardly it has been implemented. And, as the report points out, it’s especially distressing when you keep in mind that the testing fails to give anything close to a complete picture: because of the delays in receiving result, a person might contract the disease after taking the test, experience symptoms, and a few days later receive a “negative” result. These gaps can and should be stopped through screening, among other measures, and it is not to CDCR’s credit that they were not.
Yesterday I filed a brief on behalf of the ACLU of Northern CA, and seventeen of my colleagues, in support of the consolidated habeas corpus petitions submitted by dozens of people at San Quentin to the Marin Superior Court. Petitioners are demanding that the Warden of San Quentin release them, because their incarceration is a violation of the Eighth Amendment protection against cruel and unusual punishment.
If you thought the travesty of the Chino-Quentin transfer was the absolute rock bottom of prison management, prepare to dig. Today’s Chron reports that Dr. Matthew Willis, Marin County’s top health official, has written a letter to Judge Howard of the Marin Superior Court, in which he documents his efforts to get San Quentin officials to quarantine the incoming people from Chino–to no avail. Megan Cassidy reports:
Dr. Matthew Willis had learned that the 122 prisoners weren’t tested for weeks before they were transferred on May 30. Unless they were “radically sequestered” from the native population, Willis warned, the prison was setting the stage for a major outbreak.
This advice — given in a June 1 conference call with acting San Quentin Warden Ron Broomfield and other high-ranking prison staffers — was the first in a series of public health recommendations to be issued and ultimately dismissed by prison officials, Willis said in a letter to a Marin County Superior Court judge and in an interview Tuesday with The Chronicle.
You’ll want to click on the article and read Dr. Willis’ letter in full, as well as the astonishing letter he received. Prison officials forwarded him a letter written by CDCR’s General Counsel, Jennifer Neill, who wrote, “The State is not an entity under local health officers’ jurisdictions, and thus local health officer orders are not valid against the State.” Neill hadn’t even written the letter to Dr. Willis: she had written it to Kings County’s health officials when they offered advice regarding the horrific outbreak in Avenal. Go ahead, read it for yourself. I put a snippet of it above, to make sure you get the gist of it, but you need to see this with your own eyes.
As the horror settles in the pit of your stomach, let’s break this down:
It was always obvious that prison outbreaks are connected to outbreaks in the surrounding counties (this should be obvious to you, too, by now; the virus doesn’t read the Penal Code.) Because of this, traditionally, there was communication between county health officials and the prison on matters of public health, such as the flu vaccine and an outbreak of Legionnaires’ Disease.
There had already been an incident in which, rather than heeding advice from the people directly affected by the outbreaks in prison, CDCR decided to ignore the advice and instead jockey for position and squabble about jurisdiction. Outcome: several hundreds of people became infected and a few died.
Then, months later, this occurred again. Again, the health official of the surrounding county offered advice. Again, CDCR chose to ignore the advice and instead jockey for position and squabble about jurisdiction. Indeed, they were apparently so pleased with how they had handled the previous incident that they didn’t even bother to write a new letter; instead, they simply forwarded the same letter to the health officials of the new county. Outcome: several thousands of people became infected and a few dozen died.
Friends, this is shocking. If all the previous warnings, all the alarm bells sounded by public health and criminal justice experts, did not suffice to prove that San Quentin officials, and the warden, exhibited deliberate indifference to the lives of the people under their supervision and care, this incident alone should make all of us sick to our stomachs.
