What Can We Learn from Prisons where COVID-19 Has Abated?

We got more much-needed media attention yesterday to the crisis at San Quentin and elsewhere; here’s my interview at KALW, and here’s a fantastic episode of Fifth and Mission. Also, the Quentin outbreak is now considered one of the “three big reasons” for the outbreak in the Bay Area–as per the graphs in my post a few days ago.

Let’s take a moment to look at two other prisons this morning: Avenal and Chuckawalla. Both prisons belong to the first group in my prison typology from a few days ago: places where there was serious outbreak that seems now to be petering out. The Avenal data is in the image above; the Chuckawalla data is in the image below.

The two prisons have numerous features in common. First, they are both overcrowded below, but near, the limit set in Plata. Avenal has 4,158 prisoners in a facility built for 2,920, housed at 124.4% of design capacity, and Chuckawalla has 2261 people in a facility built to house 1738, at 130.1% of design capacity. The course of the pandemic in both prisons has been remarkably similar: an alarming rise in cases, to the tune of hundreds of cases, which then gradually slowed down. In both prisons, 99% of the population has been tested, so the numbers tell a fairly complete story. A few people died of the virus (three at Avenal, two at Chuckawalla.) A few people were released (30 at Avenal, 17 at Chuckawalla.) The vast majority of cases (871 at Avenal, 710 at Chuckawalla) resolved with the person still in custody. Overall, about 1,000 people in each prison tested positive, and the contagion seems to be abating.

Even though I’m not an epidemiologist, it seems to me that studying what happened at Avenal and Chuckawalla has immense epidemiological importance. The most important question is: How did the contagion abate? This is where I enter the realm of speculation. One possibility might be that, at some point, even without prison intervention, the virus simply reaches saturation, the population develops herd immunity, and infection rate gradually slows down. Another possibility might be that the populations at these prisons are younger and healthier, and they recover more quickly. We know that a quarter of California prisoners are aged 50 and up, but they might not be evenly distributed throughout all facilities; San Quentin, for example, has a higher concentration of older prisoners. Yet another possibility might be that the few releases they did were targeted toward key transmitters, though I doubt there’s that level of epidemiological knowledge within CDCR at this point. If the answer is mostly the former–natural abatement–then the follow-up question might be: what is the risk of a second outbreak if there’s a new botched transfer into the prison, or a staff member contracts the virus outside and brings it in? Does the herd immunity hinder a second outbreak?

The answers to these questions are important because they can shed light on other epidemiological questions we are facing. The topic de jour in my social media circles today seems to be the reopening of schools–if, when, and how. It strikes me that, given the real possibility of outbreaks in schools (albeit minimal, because kids do not seem to be carriers or transmitters to the same degree), the experience of Avenal and Chuckawalla can provide the worst-case scenario of contagion and give us a sense of what to expect–as well as how to prevent it. This is relevant to other indoor spaces in which social distancing may be a challenge: workplaces, movie theaters, etc. If epidemiologists want to provide knowledgeable advice, they might want to learn from the experience of these prisons–what can be expected when the virus runs its course and, if any interventions were used, which of them was fruitful.

Rising COVID-19 Rates in Kern County Prisons Likely Reflect County Statistics

Media attention has thankfully shifted to COVID-19 outbreaks in prisons, focusing, understandably, on the horrific crisis unfolding in San Quentin. Yesterday’s KTVU story (below) and another one at The Appeal are a step in the right direction (also, today at 5pm KALW will broadcast an interview in which I explain some dimensions of the problem.)

I think it’s important, though, to perceive what is happening not just at the individual prison level, but on a systemic level, and through the lens of organic connections between prisons and the surrounding community. Which brings us to the site of some recent rises in infections: prisons in Kern County.

A few important things to know about Kern County: Just by looking at the CDCR tracking tool, you’d think that there are four prisons there – California Correctional Institution (CCI), Kern Valley State Prison (KVSP), North Kern State Prison (NKSP), and Wasco State Prison (WSP). But there’s a fifth one, California City Correctional Facility (CAC). The story of CAC explains a lot about the dynamics of California corrections. It was originally built in 1998 on speculation by Correctional Corporation of America (CCA), now rebranded in its gentler, kinder image as CoreCivic. By contrast to CCA’s wild success nationwide, it was unable to open a private prison on California soil because our powerful prison guards’ union, the CCPOA, resisted. Think about it as a Terminator-vs.-Godzilla epic fight: as Josh Page explains in his book The Toughest Beat, the union was so powerful that it beat the private contractors. The facility lay empty until 2006, when it was used as an ICE detention center (this was part of the “portfolio investment diversification” I talk about in Cheap on Crime.) But in 2013, as part of the state’s difficulty complying with the Plata population reduction mandates, they leased CAC from CCA, and it remains a privately-owned, state-run facility–confirming the speculative strategy of CCA, encapsulated in “if you build it, they will come.” I don’t know why the CDCR tracking tool does not provide information about CAC, and if you do, please email me–if there are people incarcerated there under CDCR management, their health is as important as that of people in state-owned facilities.

Let’s talk about what we do know. California Correctional Institution (CCI) started seeing cases on June 16. There are now 109 cases (there were 110; one person was released) and they have tested 41% of their population of 3,655 prisoners. Their infection rate is, therefore 7% of their tested population, and with an overcrowding of 131.3% as of last count, this could become a more serious problem.

Kern Valley State Prison (KVSP) has no cases at all (here’s hoping that, barring staff carriers or more botched transfers, it will stay that way), but North Kern State Prison (NKSP) has a few. They had one isolated case in late March, which resolved itself in April, and on June 3 they had one case. They currently have five. They have tested 18% of their population, so there are probably more, and they are at 107.3% capacity.

The situation at Wasco State Prison (WSC) seems more recent. They currently have 24 cases; the first five were diagnosed June 1st. Again, they have only tested 13.5% of their population, so it’s hard to say how things might evolve. They are at 109.7% capacity.

I’ve looked at the corresponding numbers in Kern County, and there doesn’t seem to be a corresponding spike. In fact, contagion Kern County is an ongoing disaster regardless of what happens at the prisons–their infection rates has been rising, unabated, since March. You can see the overall county picture in yellow in the graph below; the county numbers are dwarfing the prison numbers, even though the latter, in themselves, seem significant.

As I’ve explained before, it is impossible to tell airtight causal stories based on these graphs without careful contact tracing. Nonetheless, it seems like what is happening in prisons there is a consequence of excessive reopening countywide: their restaurants and bars are open for indoor dining, as are their gyms, salons, and tribal casinos, to name just a few. The L.A. Times page for Kern County offers another dimension to the story: a tragic focal point of infections there is their nursing homes which, like prisons, are vulnerable to contagion once the virus is introduced from outside. It seems more probable, then, that infection in Kern County prisons is attributable to staff who live, shop, dine, or gamble in the county. The imperative seems to be to avoid transferring anyone into Kern Valley and to release everyone over 50 or otherwise immunocompromised/vulnerable.

More Known Unknowns: Where’s COVID-19 Data on County Jails?

Today we learned that there are outbreaks at jails in San Bernardino and Riverside counties, and these have been tied to surges in the community. There is no sign of a COVID stats page on either county’s Sheriff’s Department’s webpage. Why not?

Agnotology, a term coined by Robert Proctor and Iain Boal, is the study of culturally induced ignorance or doubt, particularly the publication of inaccurate or misleading scientific data. In this era of post-truth, studying agnotology, in such areas as climate change and vaccines, can be valuable and instructive.

In criminal justice, we spend a lot of time focusing on the persistence of myths and disinformation, such as myths about racial violence and sex crimes. But our agnotology pays attention, as it well should, not only to misinformation, but also to glaring lacks of information. For example, Franklin Zimring spends a big chunk of his book When Police Kill discussing the huge gaps in data collection about incidents in which police officers kill citizens, and explaining how his analysis required relying on journalistic projects, rather than on official FBI statistics. Similarly, in American Roulette, Sarah Beth Kaufman takes the time and space to discuss the sociological meaning of a lack of any centralized database containing information about capital trials.

Which brings me to today’s topic: COVID-19 in jails. The UCLA COVID-19 Behind Bars Data Project, spearheaded by my colleague Sharon Dolovich, is doing an important service to all of us by collecting longitudinal data on the development of contagion, hospitalization, deaths, recoveries, transfers, testing, etc., for correctional institutions nationwide. If you look at their database, you’ll see impressive coverage of state prisons. County jail coverage, however, is a different story. Yesterday on Twitter we were exchanging notes on the frustrations of trying to find data on COVID-19 spread in jails:

These folks do such a terrific job, and if even they can’t find what we’re looking for, then getting this data is going to be a painstaking job of making requests county-by-county. A few counties, such as Orange and Los Angeles, publicly provide the statistics on their websites. Others, such as San Francisco, send emails to lawyers, etc., when someone in jail tests positive (here are the press releases.) It’s easy enough to find webpages devoted to visiting and testing policies, but the statistics are elusive.

I’m a social scientist, and so lack of information in itself strikes me as an important social fact. When my colleague Margo Schlanger wrote this brilliant piece about the Plata litigation, she expressed concern that shifting control over prison healthcare from one centralized actor, the state, to the counties, would create a “hydra problem”: 59 new, separate sources of healthcare problems. At the time, the thinking was that the state was doing so poorly that surely the counties would be a better solution. In some ways, they were indeed better–that is, as Jeffrey Lin explains, some counties were. In some places, the judges made full use of the option of community supervisions, whereas in others, all the resources and energy went into building bigger jails.

We see the problem of diversification in the way we are getting information. As you saw in my previous posts, CDCR has an excellent and informative tracking tool; one only wishes their actual containment and healthcare management rose to the level of their pandemic documentation. By contrast, in the counties, you’re not dealing with one master, but with fifty-nine. Almost no one is obligated to report, and those who do, do not do it in a uniform manner that would enable us to compare counties effectively.

This is a huge problem for several reasons. The fragmentation of data makes it difficult–perhaps impossible–to track down interactions between correctional outbreaks and spikes in the surrounding counties. For example, we don’t know nearly enough about COVID-19-related releases from jails, nor do we know how to assess the contagion behind bars without clear, accessible information about population, design capacity, and testing protocols. For that reason, it’s impossible to draw connections that are hugely important–especially because jail staff is likely to be coming in and out of the facility into the surrounding county. Moreover, transfers between prisons and jails, which are important points of interface between systems and with the community, remain invisible. In an ideal world, there would be an excellent data interface between the CDCR tool and the county tools, and the latter would all look the same and provide the information that CDCR is doling out (as well they should.) But this is not that world, and perhaps we’ve gotten so used to administrative fragmentation that many don’t see what a hindrance it is.

Jails are not the only place where fragmentation is a problem. A decade ago, Jeremy Seymour, Richard Leo and I wrote a piece called Moving Targets, in which we explained that the fragmentation of police departments in the U.S. allows for all kinds of negligence and shenanigans in which one municipal police department can blame its mishaps on another. The current interest in policing has floated another nefarious aspect of this: cops who beat people up and lie in court might get fired by Department A, but might be immediately rehired by Department B, given that there are no state or federal licensing requirement. “This person beats people up and lies in court in a different municipality” does not seem to be a hindrance to getting rehired; in fact, the glorified disbanding of police departments has led to the county sheriff’s department taking over and rehiring all the cops that the disbanded department fired in the same geographical area. The absurdity goes beyond just cops–incompetent coroners get fired and rehired by other agencies all the time.

What we urgently need is for counties to liaise with whoever is doing the work for CDCR, get the same platform, collect the same information, link their databases, and get to work. This would be incredibly helpful to the good folks doing the work at the UCLA data collection project, but to epidemiologists and to all of us. Until that happens, a word of advice to other folks doing work on this: please, keep in mind this glaring gap in knowledge when you theorize about what is going on behind bars.

From the CDCR Tracking Tool: New Outbreaks to Watch and New Questions to Ask

Reports that say that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.

Donald Rumsfeld, Department of Defense Briefing, February 12, 2002

The two previous posts about San Quentin and Susanville finally moved the needle on public attention. After swearing off Twitter, I finally posted some links there, and thankfully (after months of predicting this would happen!), some people with the ability to investigate are biting. This is crucially important, because current trends require more consideration, particularly in prisons of which we have heard very little so far.

Looking at the “active cases in custody” curve in prisons only gets us so far, because, as the testing curve shows, oftentimes we only find out the peak of an outbreak after (or because) testing has been ramped up. It’s also difficult to tell a causal or even temporal story because we know so little about prison policy. The two previous posts benefitted from the information we had about the two botched transfers: from Chino to Quentin and from Quentin to Susanville. Why and how different institutions peak at different times could be a corollary of staff transfers, or could be completely coincidental (i.e., a staff member infected out in the community and bringing the disease to incubate in the prison.)

Keeping these considerable limitations in mind, as of yesterday, June 27, CA prisons fall into five categories:

Outbreak came and gone. Examples: Avenal, Chuckawalla, LA County, California Institution for Women, California Men’s Colony. Peaked weeks ago, by now all or most cases are resolved. These prisons have a high percentage of tested inmates and seem to have gone through the worst of it, with a few or zero new cases.

Outbreak ongoing and unabated. Examples: Corcoran, California Rehabilitation Center, Ironwood. In these places, there’s a considerable number of new cases, but also a bulk of old cases. Testing is underway, and so, these could be “outbreak came and gone” cases in disguise.

Recent outbreak. Examples: San Quentin, California Correctional Center, Wasco. In some of these cases, notably San Quentin and CCC, we know of specific events–botched transfers–that might have caused the outbreak.

Handful of cases. Examples: Centinela, North Kern, CA State Prison Sacramento, Salinas Valley, High Desert, It is unclear what this means, because these prisons typically have tested a small number of prisoners. There could be a successful isolation of a handful of people or a recent outbreak as-of-yet undetected because of a lack of testing.

No cases. Examples: Valley State Prison, R.J. Donovan, Pleasant Valley State Prison, Mule Creek State Prison, Kern Valley State Prison, Deuel Vocational Institution, Correctional Training Facility, CA Medical Facility (Vacaville), California Health Care Facility.

There are, likely, a lot of “unknown unknowns” here, which worries me. There are also a few “known knowns”, such as the situation at San Quentin and at Susanville. The only thing I can add to that, at the moment, are some “known unknowns” to think about. Here are some places to watch out for and some questions to ask in the coming days:

  1. For the places where the outbreak seems abated, what’s happened? Is there ongoing retesting after transfers from places where the virus might still be alive? What is going on in the neighboring communities, where the staff members live?
  2. For the places where the outbreak has been ongoing for a long time, what is going on? Are these places more overcrowded than places that have things more under control?
  3. For how many of the places in the third category, in addition to the “known knowns” I covered because I had the information, do we have a plausible theory of infection? Do we know, for example, of other population transfers beyond the one from CIM to Quentin and from Quentin to CCC? Have staff been transferred there? What was going on in the surrounding communities before the outbreaks?
  4. At this point, per the tracking tool, only 13 prisons (mostly from the first category) have tested more than a quarter of their prisoners. What is going on? Are people refusing to get tested? Is there a shortage of tests?
  5. Which of the places in the fourth category are merely isolated cases, and which are huge outbreaks a-la-Quentin waiting to happen? This is unanswerable without more testing, so expect things to be changing soon. I am especially disheartened to see the first case in Pelican Bay crop up on the tool today.
  6. Are there any transfers, etc., planned to the institutions that so far have no cases?

I am particularly worried about Category Four. Any of these could develop, in the next few days, into a horror show, or resolve itself with a relatively few number of cases, and a lot of this depends on administrative decisions that we are unlikely to learn about without reliable information from within. If you have such information, because you or a loved ones are behind bars as a prisoners or a staff member, please write and let me know immediately.

COVID-19 Ravages Susanville Prisons, Spikes in Lassen County a Few Days Later

Yesterday’s horror show–the botched Chino transfer, a dramatic (who knows how dramatic with 35% testing?) rise in infections in San Quentin, subsequent (who knows if consequent?) spikes in the surrounding population–seems to be playing out in Lassen County. As of a few days ago, the two state prisons in Susanville–California Correctional Center (CCC) and High Desert State Prison (HDSP)–have started seeing new cases, arguably as a consequence of a botched transfer from–you guessed it! COVID-19-ravaged San Quentin. The Lassen County Times reports:

The outbreak at CCC came after CDCR transferred four inmates from San Quentin State Prison in a effort to reduce the inmate population there as it struggled with a COVID-19 outbreak that some health experts said could explode to threaten the entire Bay Area. Officials said the inmates had previously tested negative for the virus sometime before their transfer, and they were not tested or quarantined immediately upon their arrival at CCC.

Lassen County Times, June 26, 2020

Again, we’ve checked the numbers. As of the Wednesday weekly count, CCC holds 3,828 in a facility designed to hold 3,883, which puts it as 98.6% capacity. The prison has tested 58.1% of its population so far, finding 187 new cases, which are eight percent out of its tested population of 2284 prisoners. And don’t be fooled by the relative calm at HDSP. So far, only one prisoner has tested positive yet, but HDSP has tested only 15.41% of its population so far, and the potential for contagion there is frightening, given that they have 3,580 prisoners in a space designed to hold 2,324 prisoners–overcrowded to the tune of 154% (and yes, for those still clinging to the arbitrary numbers from ten years ago, if Plata compliance were applied to individual prisons, this would be noncompliant.) HDSP 3580 2324 154% capacity. It has tested only 15.41% of its population so far.

Matters with staff, as per the CDCR daily report, are also grim. One staff member has tested positive at CCC and 5 at HDSP, 3 of which have been returned to work. This is crucial, because Lassen prison staff are more likely to reside in Lassen than San Quentin staff to reside in Marin (after all, that was the point of making Susanville into Prison Town, U.S.A.)

We’ve looked up the Lassen numbers on the L.A. Times database (we extracted it from this github tool.) Graph 1 shows the total number of cases in Lassen County and at the two prisons. As you can see, the spike in Lassen County happens after the spike at CCC, though it is hard to provide an airtight causal story because testing rates at the prison and the county differ.

Data for CCC and HDSP from CDCR tool. Data for Lassen County from L.A. Times tool.
Data synthesis and charting Hadar Aviram and Chad Goerzen.

The second graph shows new cases, rather than cumulative cases. It’s easier here to see the timeline. You’ll also note the spike in cases at CCC, whose shape likely reflects the spike in testing (you can see the testing spike on the CDCR tool.)

Data for CCC and HDSP from CDCR tool. Data for Lassen County from L.A. Times tool.
Data synthesis and charting Hadar Aviram and Chad Goerzen.

Again, I want to emphasize that, without contact tracing, telling an airtight causal story here is impossible, but the numbers tell a plausible story. This seems to have finally driven home the point that prisoners are actual people who live in the county, whether or not they are being “counted” as such. Realizing that Lassen County people’s health depends on what goes on at CCC, Brian and Megan Dahle, respectively a Senator and an Assembly Member for Lassen County’s First District, Megan Dahle, who is running for State Assembly, wrote a letter to CDCR Secretary Ralph Diaz, asking him “to provide answers on questionable protocols that have led to a surge of inmate #COVID19 cases in Lassen County.” Waking up to this reality has finally made the county and the prison work together, even though there’s still a bunch of posturing about “jurisdiction”:

While CDCR’s attorneys allege in a June 5 statement the counties lack jurisdiction over the prisons, even during the COVID-19 pandemic, in the past two days the Lassen County Public Health Department and our local prisons worked together to test more than 2,000 inmates and approximately 180 employees for the virus according to a Friday, June 26 statement from the Lassen COVID-19 Incident command.

In a previous statement on June 5, the general counsel for the California Department of Corrections and Rehabilitation issued this statement in regards to a local health officer’s orders in Kings County: “While local health officers are able to issue orders to other governmental entities to control the spread of the communicable disease, this is limited to entities within the local health officer’s jurisdiction. The state is not an entity under local health officers’ jurisdictions, and thus local health officer orders are not valid against the state. As a state agency CDCR and its institutions will follow the direction for CDPH.”

Lassen County Times, June 26, 2020

I said this in yesterday’s post and, unfortunately, I have to say it again: Nothing here was unforeseeable. My colleagues and I repeatedly warned, months ago, that being timid about releases, because the uninformed public would grumble about “violent inmates”, was tantamount to incubating the virus to the detriment of the general population. Without decisive action from Gov. Newsom, we won’t be able to make a dent in the cumulative disaster that is unfolding. Yesterday I got a missive from the Governor’s office, asking all Californians to “do their part” by wearing masks and keeping social distancing. Gov. Newsom, please do YOUR part. You have many tools at your disposal to alleviate prison overcrowding. This is already a human rights disaster, but immediate releases of everyone over 50 or otherwise at risk can make the mass graveyard nightmare less threatening. It had to happen weeks ago, but some lives might still be saved if you act quickly.

COVID-19 Tears Through San Quentin

A tragedy is playing out in California’s theatre of the absurd, San Quentin Death Row. For the last few days, advocates have watched in horror as COVID-19 ravaged through the prison, likely as a consequence of a mass transfer from Chino of prisoners who had not been tested: as of June 25, 542 cases, all but 30 of them very recent. This morning, the Chronicle reports:

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.

If Stitely tests postive, his death could mark the first coronavirus fatality in California’s oldest prison, where prisoner cases have rocketed from zero infections in late May to 515 by Thursday evening. Additionally, 73 San Quentin staff members have tested positive.

The infections were touched off by a botched transfer of 121 men on May 30 from the virus-swamped California Institution for Men in Chino, which until Thursday was the state prison with the largest number of infected inmates.

San Quentin has surpassed Chino’s current tally of 507 cases, and now holds more incarcerated people who have tested positive for the virus than anywhere else in the state. There have been more than 4,000 confirmed cases throughout California’s prison systems, with 20 prisoner deaths attributed to COVID-19. Sixteen of those deaths came from the California Institution for Men in Chino.

As of Thursday, there were 16 San Quentin prisoners who were receiving care from outside hospitals because of COVID-19 complications, according to Liz Gransee, a spokeswoman for the prison’s health care system.

Yesterday I spent some time playing with the infection statistics in CA prisons, trying to correlate them with overcrowding, as well as with infection data from each prison’s surrounding county. The signal-to-noise ratio was too faint to pick anything useful up. I’m going to leave the more fine-grained inference models to epidemiologists; this is something that should be done on a time series, not a snapshot of one day. It’s also useless to infer contagion given the dramatic change, over time, in testing rates, and the considerable differences between prisons in both overcrowding and testing rates. According to the CDCR tool, as of last night only 35.3% of inmates at San Quentin have been tested, and the testing rates range widely, from 97% at Amador to 11.4% at Chuckawalla.

Specifically as to Quentin: As of June 24, the population in prison was 3,507. Design capacity for Quentin is 3,082; they are at 113% capacity. I’m sure some of you will remind me that this complies with the Plata mandate, but the Plata numbers are meaningless in this context, so let go of the mythical 137.5%. What matters is not what federal courts said ten years ago in a different context; what matters is whether there is actual room to isolate and treat people now. If death row isolation, where people are housed in single-occupancy cells, is not sufficient protection from contagion, it is unclear where and how they can make space in an overcrowded general population to maintain social distancing. In any case, it’s way too late for masks and 6-feet-niceties. Let’s play a bit with numbers. With a 35% testing rate at Quentin, we have, say, 1227 prisoners out of 3507 tested. Out of those folks, 542 – an astounding 44 percent – have been found positive.

Now, this does not mean that 44% of the entire San Quentin population is infected. The virus doesn’t pick and choose where to spread, nor does it spread evenly across the prison. The geography and architecture of the prison is key, which is partly why we’re seeing this horror play out specifically on death row. We also don’t know whether the testing protocol follows the infected areas. Recall that the people who spoke to the Chron did so anonymously, out of fear of losing their jobs.

While we cannot (yet?) causally attribute the death in death row to COVID-19, the absurdity of the entire situation is breathtaking. We have a death penalty moratorium after decades of sentencing people to death and then not executing them. We have spent billions of dollars during these decades litigating minute technicalities: death chamber setup, this drug, that drug, one drug, three drugs. Extensive appellate proceedings have gotten into the minutiae of a person’s health because, shockingly, in this country, in half the states, it is still a valid legal question whether someone is healthy enough to be killed by their government. Whatever heinous homicide people committed forty or fifty years ago that landed them on death row, we did not embroil ourselves in endless technical litigation so that people would get their death sentence via COVID.

Nor is it the case, as some people might secretly think, that this is somehow less awful because the people on death row are anyway “the worst of the worst.” Sarah Beth Kaufman’s new book American Roulette, which is out this month, reflects meticulous observations of 16 capital trials nationwide, beginning to end. The people that get the death penalty, as opposed to life without parole, are not necessarily the people who commit the most heinous murders, nor are they necessarily the victims of systemic racism. More likely than not, the question of life or death is decided on the basis of which team puts together the better theatrical spectacle for the jurors, whose selection process already guarantees that they are what Kaufman calls “punitive citizens.” There is nothing that separates the people more and less at risk but misfortune and mismanagement.

Even if you can’t find compassion for your fellow human beings behind bars, think of you and your loved ones on the outside. California prison guards live in California, and as of yesterday, 73 staff members from San Quentin were infected. We ran some numbers for Quentin as well as for the neighboring counties (the former from CDCR, the latter from the L.A. Times), and the outbreaks in the neighboring counties happened after the transfer from Chino to Quentin. To establish this with certainty you’d need contact tracing, but it is not implausible that guards incubating the disease went shopping or eating around Sonoma, Napa, Solano, or Marin sometime in late May or early June, and that’s what has made Marin’s numbers spike.

Calculation of R_t as follows:
Estimated R_t based on new case levels 7 days apart, or a value of 1
in the case of 0 new cases. Smoothed using an exponential moving
average filter with an alpha value of 0.15. Calculation credit Chad Goerzen.

Months ago my colleagues and I repeatedly pleaded Gov. Newsom to release more prisoners than the piddly 3,500 people. I warned that, if we did not do so, CDCR would become a mass grave. Gov. Newsom has seven powerful levers at his disposal to alleviate this crisis: early releases, testing, commutations, ending any collaboration with ICE, parole, resentencing, and funding. UnCommon Law is putting a pressure campaign on titled Healthy and Home. Do what you can to join the calls to aggressively hasten the testing of 100% of the prison population, get home everyone over 50 or otherwise in a high-risk group, and guarantee real health care and preventive measures behind bars.

Sorry, Prisoners, the IRS Wants Your Stimulus Checks Back

The news these days, especially from prisons, are so outrageous they far outdo anything one could invent. Take this astounding story from CorrectionsOne:

Hundreds of thousands of dollars in coronavirus relief payments have been sent to people behind bars across the United States, and now the IRS is asking state officials to help claw back the cash that the federal tax agency says was mistakenly sent.

The legislation authorizing the payments during the pandemic doesn’t specifically exclude jail or prison inmates, and the IRS has refused to say exactly what legal authority it has to retrieve the money. On its website, it points to the unrelated Social Security Act, which bars incarcerated people from receiving some types of old-age and survivor insurance benefit payments.

You’ll have to read the whole story to get a full grasp of the inanity, so please click the link. I will only add this: In Chapter 6 of Cheap on Crime I talked about the increasing tendency of prisons to monetize basic services they provide, such as haircuts, food, and healthcare–not to mention ridiculous pay-to-stay fees that they place as liens on people’s post-incarceration earnings. Prison is not a place you go to voluntarily, obviously, which you’d think placed an obligation on the state to feed, clothe, and treat you; nonetheless, many states charge their prisoners medical co-pays (if you’re just finding out now that prisoners have been making co-pays for their medical treatment, you’re not alone.) I referred to this progression in the imagined status of prisoners as the shift from ward to burden to consumer. Indeed, if you were to just follow the money, you’d be forgiven for thinking there’s no incarceration at all: people pay hotel fees for their beds, co-pays for their health insurance, and the like, all from their lavish earnings or from their future earnings (which promises that their reentry will be a bag o’laughs.)

My initial thought about the stimulus brouhaha is this: if we’re all supposedly real consumers in the real world, who pay for our lodging, healthcare, and services–regardless of whether we happen to be in prison or not–why don’t we all get a stimulus check? Ask your government. And add this to the list of matters you address in November when you drop your ballot.

The New Salem

Many years after writing his play The Crucible, Arthur Miller reflected in the New Yorker:

In any play, however trivial, there has to be a still point of moral reference against which to gauge the action. In our lives, in the late nineteen-forties and early nineteen-fifties, no such point existed anymore. The left could not look straight at the Soviet Union’s abrogations of human rights. The anti-Communist liberals could not acknowledge the violations of those rights by congressional committees. The far right, meanwhile, was licking up all the cream. The days of “J’accuse” were gone, for anyone needs to feel right to declare someone else wrong. Gradually, all the old political and moral reality had melted like a Dali watch. Nobody but a fanatic, it seemed, could really say all that he believed.. . .

In those years, our thought processes were becoming so magical, so paranoid, that to imagine writing a play about this environment was like trying to pick one’s teeth with a ball of wool: I lacked the tools to illuminate miasma. Yet I kept being drawn back to it.

I came back to Miller’s commentary after reading Tre Johnson’s commentary in today’s Washington Post:

“Once again, as the latest racial travesty pierces our collective consciousness, I watch many of my white friends and acquaintances perform the same pieties they played out after Trayvon, Eric, Sandra, Korryn, Botham, Breonna. They are savvy, practiced consumers of Meaningful Things: They’ve listened to “Serial” and become expert critics of our broken criminal justice system after just one season. They’ve watched “Insecure” and can suddenly imagine life as Molly or Issa. They’ve shared the preordained “amplifying” social media post that just reads “This,” followed by a link to something profound from a black voice.. . .

“The confusing, perhaps contradictory advice on what white people should do probably feels maddening. To be told to step up, no step back, read, no listen, protest, don’t protest, check on black friends, leave us alone, ask for help or do the work — it probably feels contradictory at times. And yet, you’ll figure it out. Black people have been similarly exhausted making the case for jobs, freedom, happiness, justice, equality and the like. It’s made us dizzy, but we’ve managed to find the means to walk straight.”

Johnson, of course, falls into the trap that everyone else has fallen into, but at least he sees the trap. The combined effect of COVID-19 “content” (what an odious word) and, once more, the merry-go-round of commentaries on yet another horrific racial tragedy, have filled the social media universe with exhortations: Stay the fuck at home! Check your privilege! Wear your mask! Look within yourself! Be a good ally! Educate yourself! Flatten the curve! Dismantle white supremacy! The electronic town square holds trials for the Karens and Beckys of our time, which, given the centuries-old racist marinade we have been submerged in, are never in short supply. Everyone has an opinion about those (me included.) Everyone has an opinion about someone else’s opinion (me included.) Lists upon lists crop up in our social media feeds: Rating activities as to how safe they are (followed by the obligatory argument that the writer refrains from all of them, out of an abundance of caution); do’s-and-don’t’s for protesting “properly” are modified. Well-meaning people sincerely ask whether their white children may raise a fist on TikTok and receive fifty replies, all different. The actual issues are buried under edifices upon edifices of performance, performance, performance. Meta conversations about performance are rabbit holes. Every day some celebrity or other wears something or says something or performs some physical gesture, providing more grist for the mill. Every horrific incident of violence, racism, or racial distress, every photograph of someone out of compliance with the pandemic mandate-de-jour, becomes a morality tale, fueling endless takes, opinions, and new lists of instructions. Pandemic prevention enforcement and “how to be a good ally” have linked hands and are now the new religion of social media. We are in a panopticon, but the Foucaultian roles are reversed: we sit in the watchtower in the middle, and all around us are bloviating pulpits.

(I realize this post is falling into the same trap of exhortation, but this underscores my point–there is no end to a sea of pointing fingers. It’s turtles all the way down.)

If we were half as busy actually doing world improving things as we are performing our goodness in the public square and moralizing others, we might be in a different place. But public image is everything, and “content” (there it comes again!) must be provided. Citizens United has come full circle: now that corporations can speak like people, people speak like corporations. Everyone is a public entity, and so everyone has to issue on-point “messaging” to the public. Jeff Skilling’s infamous statement, “I am Enron,” is now true for everyone. Performance comes before feeling or doing. We must be on brand.

The problem is that “the personal is political” works both ways. It is one hundred percent true that we all play a role not only in pandemic spread, but also in the perpetuation of white supremacy. It is one hundred percent true that every revolution starts with individuals, and that individuals have the power to change the world–especially when organized. But these truths obscure other truths. “Flatten the curve” and “dismantle white supremacy” are big, pompous, vague goals, and in the absence of responsible adults at the helm of the country, there are bound to be differences in how we, the people, parse them into everyday behaviors. We’ve missed the train on testing and contact tracing, and now we’re left to pick at each other for mask violations.

The incessant chatter, be it contrite, derogatory, or both, is not “doing the work” that we are told to do. It is performing the work, which is something else entirely. It is exhorting others to perform the work. All the world’s a stage, and on this particular stage, we are performing The Crucible 24/7. There’s no escape from watching, from participating, from fretting about participating lest our flawed goodness be exposed.

I deeply understand where the urge is coming from. There are good intentions. There is a desperate need to do something in a situation in which we feel particularly powerless; we are sheltering at home, our face-to-face meeting places are closed, this online discourse is a poor substitute to our in-person conversations. As more and more avenues to do good close, either because they are impossible or because they are severely criticized, we are clutching at straws. These bursts of personal propaganda are the best thing we have, and we figure they are better than nothing, because silence is also a problem. And most importantly, there is pain. Searing, unbearable pain and grief. Grief for the sick, grief for the dying, grief for the people being killed and injured and ostracized and ignored. Grief and guilt. It feels overwhelming to sit with it. We take to our keyboards to find some relief, to tell some story about it, to remove the center of grief from our hearts to our heads to our keyboard. But verbose descriptions of grief are not the grief itself.

Can we take an intermission? Not from the work itself–improving the world is the project of a lifetime–but from the performance of it? Can we stop obsessing about our goodness and the goodness of others? Can we stop “messaging” so that we can actually feel something? Can we quiet our nimbly typing fingers to listen to the cries of the world, of friends and neighbors born to disadvantage, of our dying planet? Can we quiet them long enough to hear our own hearts quiver in compassion?

COVID-19 Violations in Streets and in Suites: On the Inequitable Enforcement of Noncompliance

The New York Post reports good news (in itself a newsworthy event):

The NYPD will no longer make arrests or hand out tickets if people flout the mask-covering rules in the Big Apple, the mayor said Friday.

“Absent a serious danger to the public, NYPD will not take enforcement actions for failing to wear face coverings,” Mayor Bill de Blasio said during his daily press conference.

The shift in enforcement comes two days after another controversial video emerged of a police interaction with a woman and her young child in the subway over a mask.

Hizzoner said he wanted to reset the city’s approach on enforcement.

“The reset will be this: We start with the fundamental notion the NYPD is here to protect lives, to save lives, and where we see the greatest danger to lives in terms of the coronavirus and the areas where we can enforce is around gatherings, particularly large gatherings, so that’s where we’re going to focus,” the mayor said.

NY Post, May 15, 2020

Amidst the angry exhortations to “stay the f*ck home” and the like, fervent enforcers and shamers may have missed the news: NYPD has made dozens of arrests, most of them of people of color, and some of them violent. The focus on shaming people for behavior in the outdoors continues: here in San Francisco, people’s aggressiveness toward perceived violations has percolated to a point that one of my favorite journalists, Heather Knight, had to shame the shamers for targeting the (largely nonwhite) children of first responders. Only today at the skate park (our updated stay-at-home order allows us now to be there) someone thought it proper to video film the skating kids, including my 2.5-year-old son; needless to say most of the kids were not white. Of course, it’s not just police that is doing this racialized enforcement, as this ugly incident and these ugly incidents show.

We already know about the racial disparities in COVID infections and deaths, and today’s news highlights the counterpart: people at the bottom of the social ladder are also on the receiving end of the brunt of social distancing enforcement. A good way to make sense of this is to go back to the basics of theoretical criminology.

Conflict criminology, a strain of theoretical criminology originating in the 1960s and 1970s, highlighted the way in which the definition of crimes and enforcement of laws affirmed and exacerbated the existing unequal social order.

Thomas Bernard explains its premises:

  1. One’s “web of life” or the conditions of one’s life affect one’s values and interests.
  2.  Complex societies are composed of groups with widely different life conditions.
  3.  Therefore, complex societies are composed of groups with disparate and conflicting sets of values and interests.
  4.  The behavior of individuals is generally consistent with their values and interests.
  5.  Because values and interests tend to remain stable over time, groups tend to develop relatively stable behavior patterns that differ in varying degrees from the behavior patterns of other groups.
  6.  The enactment of laws is the result of a conflict and compromise process in which different groups attempt to promote their own values and interests.
  7.  Individual laws usually represent a combination of the values and interests of many groups, rather than the specific values and interests of any one particular group. Nevertheless, the higher a group’s political and economic position, the more the law in general tends to represent the values and interests of that group.
  8. Therefore, in general, the higher a group’s political and economic position, the less likely it is that the behavior patterns characteristic of the group (behaviors consistent with their values and interests) will violate the law, and vice versa.
  9. In general, the higher the political and economic position of an individual, the more difficult it is for official law enforcement agencies to process him when his behavior violates the law. This may be because the types of violations are more subtle and complex, or because the individual has greater resources to conceal the violation, to legally defend himself against official action, or to exert influence extralegally on the law enforcement process.
  10. As bureaucrats, law enforcement agencies will generally process easier rather than more difficult cases.
  11. Therefore, in general, law enforcement agencies will process individuals from lower rather than higher political and economic groups.
  12. Because of the processes of law enactment and enforcement described above, the official crime rates of groups will tend to be inversely proportional to their political and economic position, independent of any other factors (such as social or biological ones) that might also influence the distribution of crime rates.

Thomas Bernard, Distinction between Conflict and Radical Criminology

Radical criminology goes even further:

  1.  No consensus exists in society on the basic values and interests of individuals, and on the contrary, society is characterized by conflict on these issues.
  2. Society in general is divided into classes whose members have similar values and interests, the principal classes being those who own the means of production (the ruling class) and those who are employed in production (the working class). The principal conflict in society is between the ruling class and the working class.
  3. Crimes are defined as socially harmful actions that violate basic human rights. That includes both “street” crimes in which the lower class preys on itself and on others, and ruling class crimes in which the lower class is victimized through unemployment, pollution, and exploitation. Because the law is a tool of the ruling class in its conflict with the working class, the socially harmful actions of the ruling class are generally not defined as crimes by the official criminal justice system.
  4.  Conventional criminologists accept the definitions of crime provided by the law, and so assume a technocratic role in the social control of the working class. They do this through “correctionalism,” which attempts to reconcile the working class to the structure imposed by the ruling class, and through “reformism,” which attempts to improve the operation of the criminal justice system and increase its effectiveness in controlling the working class.
  5.  Radical criminologists reject the definitions of crime provided by the law and study all socially harmful behaviors that violate basic human rights. They argue that contradictions in the capitalist economic system are the underlying causes of these behaviors.
  6. The crime problem can be solved only by the overthrow of the capitalist economic system and the establishment of a socialist state. Once capitalism is overthrown, the law in its present form will eventually become unnecessary, as the conflicts between classes will have been resolved.
  7. The principal task of radical criminology is to promote the overthrow of the capitalist economic system, and thus radicals must guard against the danger of “cooptation,” that is, having specific points of radical criminology accepted by mainstream criminology and placed in a context that does not promote the overthrow of capitalism.

Bernard, see above

This distinction shows radical criminology as much more engaged with the Marxian social structure, and having more to say about what the crimes really are. Even though the two theoretical strains differ in the extent to which they accept the existing definitions of crime, the classic distinction between “crimes in the streets” and “crimes in the suites” comes in handy. The wealthy and socially powerful wreak harms that quite possibly should be defined as crime (corporate malfeasance, environmental crime), but sometimes escape the definitions altogether, because the law serves the interests of the ruling class or, if it exerts autonomy, overall supports the existing unequal social order. When the wealthy and socially powerful *do* commit crimes that are defined as such, they avoid enforcement either because they commit them in places and manners that escape detection, or because they wiggle their way out of criminal entanglement using social advantage and connections.

Social distancing violations are no different, in this respect, than any other type of crime. The most tragic example of “crimes in suites” in this pandemic that I can think of is the horrific story of the first known COVID-19 casualty in Brazil, Cleonice Gonçalves. Cleonice worked as a domestic worker at a wealthy Rio de Janeiro neighborhood. Her employer, who had just returned from holiday in Italy, was feeling ill and sought testing for coronavirus, but apparently did not inform Gonçalves, who had worked for the family for decades. The employer recovered; Cleonice died.

But this story holds the key to explaining why, through a conflict criminology lens, it is poor people and people of color that are bearing the brunt. First, wealthy people can avoid violating the law altogether. Some of us are riding this out in vacation homes, where they have extensive grounds, pools, and play structures, while some of us live in apartment buildings and projects devoid of natural beauty and space, who have to look for respite in city parks and beaches. Being able to afford grocery and takeout deliveries spares one the need to go outside and, by consequence, the possible formal and informal social control if one happened to forget their mask at home. Those of us with more social advantages have a more reliable internet connection, more access to toys and books for our children, which allows us more flexibility in entertaining our kids and thus less need to go outside.

Second, when wealthier people violate social distancing mandates, they can afford to do so in ways that keep their behavior undetected. Sneaking out to get your hair cut (or worse, having your hair stylist to come to your house), having your house cleaned by a cleaner who travels over to you (and faces risks outside and, worse, at your home), and quietly socializing with others indoors, allows you to engage in behaviors that are much more harmful to public health than outdoor mask-non-wearers.

Third, relatedly, law enforcement focus and priorities play a role in where crime is enforced. This is not news, of course, though the question of whether high enforcement priorities are necessarily racist is more complicated than it seems. But it is rather obvious that privacy concerns and the practicalities of law enforcement target places where people with less social advantage are more likely to be. Even if the police know that so-and-so has a house cleaner, coiffeur, or masseur come in once in a while, there are many practical and ethical disincentives to enforcing inside the home (they should get a warrant, right?).

Fourth, when the people at the lowest rungs of the social order violate the stay-at-home mandates, what they do is more likely to be perceived by all of us, including well-meaning folks, as a problem and a violation. Last week, UC Hastings and other Tenderloin institutions and businesses sued the city of San Francisco for the worsening conditions in the Tenderloin neighborhood. The increasing congregation of unhoused people in tents, in close proximity to each other, without bathrooms or hygienic facilities or reliable healthcare, is risking them first and foremost, but also, of course, others in the neighborhood. And yet the concern is, of course, that when law enforcement intervenes, it will be to “clean” the sidewalks and remove the nuisance-turned-serious-contagion-risk, rather than put together long-term plans to house and treat these folks properly. This is right out of the Anatole France maxim that critical criminologists quote all the time: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”

The irony, of course, is that the “crimes in suites” are much more perilous, from a public health perspective, than the “crimes in streets.” The risk of becoming infected outside is considerably lower than the risk from indoor congregations. The truth is that the ire about the spring break revelers in Florida was misdirected at their daytime beach activities, and should have been directed at the indoor partying later at night. But we focus on enforcement outdoors for the same reason that we look for a lost wallet at night under a street lamp: not because it’s more effective, but because it’s easier.

The tragedy of this is not just the hostile interpersonal environment this creates, but the concern that, if law enforcement intervenes because of some concerned citizen’s complaint, folks who are lacking social advantage to begin with will end up in jails and prisons, where their risk of contagion is so much higher, contributing to the scary incubators of disease that we are fostering in our prisons these days.

I suggest we all think about this the next time we have an urge to scowl at someone on the sidewalk. Your intentions are good, and you want us all to stay healthy, but your ire is misdirected at targets that endanger you less, and who are themselves endangered more by your actions.