Category: Covid -19

Closing State Beaches and the Problem of Noncompliance

When I heard late last night of Gov. Newsom’s decision to close California beaches because of crowds, I was devastated. I observed my thought pattern immediately cycle through the first three of Elizabeth Kübler-Ross’s five stages of grief: denial (“I can’t believe this. It can’t be happening. Surely this won’t happen”), anger (at the Governor, at the mayor, at the lawmakers, at the folks congregating in five SoCal beaches – “you are why we can’t have nice things!”) and depression (“what am I going to do? How will we get through this month?”). This morning I progressed to the bargaining stage (“wait, he said state beaches, right? So SF beaches, which are run by the city, are exempt, right?”) and I might find some acceptance later this afternoon.

In short, my inchoate fear, sadness, and uncertainty, finally found an appropriate coathanger to hook itself to, and I was in emotional turmoil throughout the night.

Now that the emotional storm has passed, I’m thinking a bit about what park and beach closure policies have to teach us about the punitive and cooperative aspects of making public policy. Oftentimes when prohibitive legislation is considered on any topic, ranging from speed laws to tax policy, people forget that any policy brings with it some level of noncompliance. A classic article by Fred Coombs provides a typology of reasons for noncompliance: “(1) lapses or ambiguities in communication; (2) insufficient resources; (3) an objection to the policy itself (i.e., its goals or its assumptions); (4) distaste for the action required; or (5) doubts about the authority upon which the policy is based, or that authority’s agents.”

Looking particularly at (3) and (4), which are different facets of how much one agrees with the policy decision and how much one is inconvenienced by them, reminded me of Tom Tyler’s classic work Why People Obey the Law. Moving away from the “instrumental” explanations (“people obey if there’s something in it for them”), Tyler focuses on normative ones, which are concerned with–

the influence of what people regard as just and moral as opposed to what is in their self-interest. It also examines the connection between normative commitment to legal authorities and law-abiding behavior.
If people view compliance with the law as appropriate because of their attitudes about how they should behave, they will voluntarily assume the obligation to follow legal rules. They will feel personally committed to obeying the law,
irrespective of whether they risk punishment for breaking the law. This normative commitment can involve personal morality or legitimacy. Normative commitment through personal morality means obeying a law because one feels the law is just; normative commitment through legitimacy means obeying a law because one feels that the authority enforcing the law has the right to dictate behavior.
According to a normative perspective, people who respond to the moral appropriateness of different laws may (for example) use drugs or engage in illegal sexual practices, feeling that these crimes are not immoral, but at the same time will refrain from stealing. Similarly, if they regard legal authorities as more legitimate, they are less likely to break any laws, for they will believe that they ought to follow all of them, regardless of the potential for punishment. On the other hand, people who make instrumental decisions about complying with various laws will have their degree of compliance dictated by their estimate of the likelihood that they will be punished if they do not comply. They may exceed the speed limit, thinking that the likelihood of being caught for speeding is low, but not rob a bank, thinking that the likelihood of being caught is higher.
Tom Tyler, Why People Obey the Law, pp. 3-4

Tyler thinks that that fostering compliance from a normative place works better because it requires less enforcement and it fosters more care for people’s values and motivations. He coins the concept “procedural justice” to argue that, when people think a decision has been made fairly–even if it disadvantages them personally–and they have been treated respectfully, they are more likely to comply.

It is inevitable that not all citizens will share the same normative values or the same level of legitimacy in government. While most of us understand the need for extreme social distancing measures to save lives, some of us simply do not believe the facts the government cites as a basis for its decisions. We might think the government is ignorant, or we might think it is deliberately misleading us because of ulterior motives. We might think the government has good intentions, but is missing the mark with the policies. Or, we might simply find the new requirements unbearable.

Looking at my own reaction to the order, it was guided by similar questions. Is it true that there’s noncompliance? Yes, we have evidence of it in SoCal. Is it widespread? No, by the Governor’s own admission: “About 100 beaches, easily defined 100 beaches, and there were five where we had some particular challenges. Overwhelming majority there were no major issues. Quite frankly no issues,” he said. Is the reaction disproportionate to the threat? That’s a matter of perspective. Look at these concerns from local government officials:

California State Assemblymember Melissa Melendez fired back at Newsom’s decision on Twitter, stating “This is not going to end well. Californians are not children you can ground when they don’t ‘behave’ the way you want.”

Orange County Board of Supervisors member Donald Wagner on Wednesday acknowledged the governor’s ability to close the county’s beaches, but said “it is not wise to do so.”

“Medical professionals tell us the importance of fresh air and sunlight in fighting infectious diseases, including mental health benefits,” Wagner wrote.

“Moreover, Orange County citizens have been cooperative with California state and county restrictions thus far. I fear that this overreaction from the state will undermine that cooperative attitude and our collective efforts to fight the disease, based on the best available medical information.”

All the noncompliance factors are there: an emotional insult at not being respected enough to follow the rules out of our own volition, doubts about the values behind the approach (punitivism vs. fresh air), concerns that suppressing people too much will backfire and yield more noncompliance. Right out of the Coombs and Tyler playbooks.

The big question is: What, ultimately, will produce more compliance? Do we get more cooperation if we relax the order, counting on people’s common sense (and accepting that some will not display such common sense), or if we impose the order, counting on people’s agreement in principle? My gut tells me that, in the short term, enforcement stuff might be better, but in the long term, people’s sense of legitimacy and compliance will wear off, and we might see worse behaviors all across the state than the ones we saw on the beach. The problem is that levels of compliance are very tricky to model. They depend on demographics, political views, and other factors, which are changing daily, and would make this very difficult to predict even for compliance experts.

Ultimately, I think my personal reaction to this has been a great teacher. It opened some unexpected compassion gates: I managed to find within my soul more than a modicum of empathy for the feelings of Huntington Beach protesters, Spring Break revelers, and anti-vax conspiracy theorists. Don’t get me wrong: I have deep ideological disagreements with all these three groups and a much higher belief in the legitimacy of our local government (let’s talk about Trump some other day, shall we?). But what we share is the deep sense of emotional injury by a curtailment of a freedom we treasure. That’s something I can understand and sit with emotionally even as I ideologically disagree. In our case, my family treasures nature and water, and my son thrives during these difficult times because he has the world’s biggest sensory box to play and learn in. I very much hope our local government will not take this away from him.

Socially distant boy having a blast on a San Francisco beach

The “What’s In It For Me?” Angle on COVID-19 Prison Releases

The thing everyone was warning you about has happened: the prisons, incubators of COVID-19, are spreading it to the general population. The Columbus Dispatch, reporting on the Ohio prisons rife with infections and disease, reports:

Marion County’s top health official is urging vigilance as the outbreak of the novel coronavirus in a Marion prison spills into the community.

More than 80% of Marion Correctional Institution’s inmates have tested positive for the coronavirus, as have more than 160 corrections officers and other employees, according to the Ohio Department of Rehabilitation and Correction. Those workers live in Marion County and surrounding counties.

More prisoners might have the virus because although a prison spokesperson previously said that mass testing was completed more than a week ago, spokesperson JoEllen Smith said Friday that only 2,300 tests had been administered. She did not clarify whether that included employees, and the prison has about 2,500 inmates.

Even excluding the prisoners who have tested positive, Marion County has a higher number of cases per capita than almost every other county in Ohio, including densely populated ones such as Franklin and Cuyahoga, according to Ohio Department of Health data.

[Health commissioner Traci] Kinsler attributed Marion County’s high number of cases per capita to the prison outbreak.

The idea of prisons as incubators of miasma is as old as the prison reforms of John Howard. Ashley Rubin has a terrific thread on this on Twitter. As she explains, preventing the spread of disease was at the forefront of the reformers’ interests, and for many thinkers was a metaphor for the spread of crime.

Many of the campaigns for releasing prisoners that I’ve seen make the scientifically correct point that, as long as U.S. prisons remain Petri dishes for the virus, nobody’s safe. I want to draw an important distinction between this argument and the equally correct argument that prisoners–better said, people who happen to be in prison during this outbreak–are human beings, too, whose protection from the virus would have to be a priority from a human rights perspective whether or not they endangered others.

I’m wondering whether the former argument is made not only because it is sound (it is) but because of realpolitik. In Cheap on Crime I argued that the post-recession reforms a-la “justice reinvestment”, which led to a decline in the overall U.S. prison population for the first time in 37 years, benefitted from having a morally neutral cost argument, which allowed activists and advocates to break the decades-long impasse between public safety and human rights. It’s quite possible that framing prisoner release as a “what’s in it for me?” argument, rather than an argument on behalf of the prisoners themselves, has more persuasive power, and if so, I’m all for whichever argument gets less people, in and out of prison, sick or dead.

But just so that we get a glimpse of life behind bars, here are some words from Kevin Cooper, an innocent person on San Quentin’s death row (shared with me via email through Innocence Project):

Experiencing COVID-19 on Death Row
By Kevin Cooper
In my humble opinion being on death row with this COVID-19 pandemic raging is like having another death sentence. I can and do only speak for myself in this essay, and I must admit that I am scared of this virus!
I pride myself on not being scared of anything or anyone on death row, not even death itself, because after all this is death row. But this virus is more than just dying, or death. It’s a torturous death, like lethal injection is.
I do all I can to take care of me in here under these traumatic times and stressful circumstances. I social distance, I wash my hands regularly, clean this cage that I am forced to live in on a regular basis, and I often ask myself is this enough?
Every inmate who lives next to me or around me to my knowledge is taking care of themselves too. Quite a few still go outside to the yard every other day as we are allowed to do. I went out for the first time two days ago after a month living non-stop inside this cage. I went out to get fresh air.
This unit, East Block, has staff who have been giving us cleaning supplies such as “cell block” which is a strong liquid cleaning agent, and we use that to spray on a towel and wipe the telephone down before each inmate uses the phone. We have been given hand sanitizer for the first time since this pandemic started. It’s a 6-ounce bottle and the writing on it says World Health Organization Formula. The same World Health Organization that Trump just stopped funding…no joke!
We still have not received any mask* though a memo was sent around last week stating that cloth masks were being made to be passed out to inmates but that they have not yet been finished being made. Who is making them? I don’t know.
We people, we human beings on death row aren’t for the most part cared about by society as a whole. That truth makes some of us wonder, including me, do the powers that be truly give a damn whether we human beings who have been sentenced to death by society care if any of us get the coronavirus and die from it in a tortuous way?
In 2004 I came within 3 hours and 42 minutes of being tortured and murdered/executed by the state of California. I survived that, and have worked very hard with lots of great people to prove that I am innocent, that I was framed by the police and that I am wrongfully convicted. To do all of this and, especially to survive that inhumane and manmade ritual of death in 2004, only to be taken out by COVID-19 is something that honestly goes through my mind on a regular basis. Right now, I am free of this virus and I am doing everything to stay this way. But that thought, that real life and death thought of the coronavirus taking my life is always present, especially under these inhumane manmade prison conditions on Death Row.
*On Monday, April 20th, Kevin called to say: I received a cloth face mask today as did everyone here on death row. We are now instructed to use it every time we leave the cell.

Triggers and Vulnerabilities Video Talk

Why California prisons are so vulnerable to covid-19 and what to do about it.

COVID-19

Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It

When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernanke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of “triggers and vulnerabilities:”

The triggers of the crisis were the particular events or factors that touched off the events of 2007-09–the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).

The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction.

Bernanke’s distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons, and that 59 of his fellow prisoners have tested positive. As of today, we’ve also seen the first positive test in the San Francisco jail system. It’s all going to mushroom from here.

Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?

Think of COVID-19 as the trigger, and think of the disappointing–even shocking–reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.

First, what gets called “health care” in CA prisons really isn’t. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon’s retelling of these stories here.)

It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things–diet, especially, comes to mind–was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People’s medical complaints were regularly trivialized and disbelieved–not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.

The outcome of the case–reducing the prison population from 200% capacity to 137.5% capacity–was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the “non-non-nons”) rather than addressing a full fourth of our prison population–people doing long sentences for violent crime and getting old and sick behind bars.

So, now we face this trigger–COVID-19–with the following vulnerabilities:

We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
We’re now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
We have gotten used to doing a “health vs. public safety” equation that doesn’t make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can’t second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by… introducing private prisons into the mix.

Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It’s already started.

And if you wonder whether this can be contained in prisons, well, it can’t. Guards don’t live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.

What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out–even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.

cheap on crime covid-19 do something economy of punishment humonetarianism overcrowding prison conditions prison guards prison health system prison management the big picture

Cause of Death

Source here.

Today I came across this sobering table, which struck me as important not only for the obvious reasons. You’ll note that homicide is nowhere in the top-ten list of causes of death for Americans. If you look at the CDC reports for causes of death in 2017 based on vital statistics, you’ll see homicide ranked anywhere between #106-108 (interestingly, “legal intervention” is ranked 109.)

Yet, to browse through the list of Netflix and Prime Video shows we are offered to numb our souls from the pandemic experience, you could be mistaken to believe that a much higher proportion of Americans succumb to homicide. And to me, this suggests that the current debate about who to release on the basis of “public safety” is guided more by folk devils than by real concerns.

Assuming that you include people in prison in the overall category of human beings whose lives and health matter (if you don’t, thank you for reading this far–we probably don’t speak the same language and I hold no hope of convincing you, nor should you hope to convince me), it should be obvious that COVID-19 poses a much greater risk to public safety, broadly defined, than homicide.

Now, releasing people convicted of violent crimes is not really a trade-off between COVID-19 deaths and homicide deaths, given that the folks most at risk healthwise, as I explained yesterday, are old and sick and also happen to have committed violent crime decades ago.

So, if there is reluctance to release the folks colloquially known as “violent offenders”–many of whom would barely have a technical write-up or two for the last two or three decades–it’s not really coming from concerns for public safety, is it? It’s coming from concerns for palatability and an idea that this is the right time for abstract ideas for retribution.

If I put the state’s resistance to do the right thing here together with the mismanagement of homeless populations, it almost seems like, at our time of need, we’ve simply decided that the bottom rung or two in the American class ladder don’t matter. And they do, which makes my heart hurt.

In Tricycle Magazine, Chenxing Han writes so beautifully:

The Buddha is often likened to a physician. He diagnosed the unsatisfactoriness of the human condition and revealed its cause. The Buddha was no doomsayer, however: his teachings were treatments that promised a cure, an ultimate freedom from that which ails us. SARS-CoV-2 is a truth-teaching virus. It has revealed to me a deep well of fear: of my loved ones dying, of dying myself (or, during more mundane moments, of running out of brown rice). More incisively, it has revealed society’s disturbing inequities and gross iniquities, forcing us to confront the truth of how the most vulnerable among us—the poor, the disabled, the unhoused, and the otherwise marginalized—bear the brunt of this crisis.

What this cruel teacher will teach our state about caring for its most vulnerable wards remains to be seen–hopefully before it is too late.

COVID-19 Gavin prison health system prison management prison overcrowding

Yes, We Have to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins

Manson follower Susan Atkins loses 13th attempt at freedom -- and ...

Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,
James Whitehouse. Photo credit: Ben Margot for the Associated Press.

Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (TL;DR “we are not the appropriate forum for this – go to the original courts.”) As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn’t.

In the aftermath of putting up my petition to release prisoners, I’ve been hearing commentary that we should limit the releases to “nonviolent criminals.” I use the quotation marks because the definitions of what is and is not “violent” and “nonviolent” is not as clear as people think, and because someone’s crime of commitment is not necessarily an indication of their violent tendencies at present, nor does it predict their recidivism.

In Cheap on Crime and elsewhere I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though–as this excellent Prison Policy report explains–is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.

In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.

The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one’s health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and therefore far less of a public risk of reoffending than a younger person who’s been inside for a few months for some nonviolent offense.

So, if there’s any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it’s time to look in the mirror and ask ourselves – why?

Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.

So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of “reward” for people who we think are “worthy” or “deserving”?

The correctional system’s ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday’s Monsters I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins–a devout Christian with a clean disciplinary record for decades–was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.

The Parole Commissioners’ treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation “prospect.” They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:

For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.

The Parole Board refused to release Atkins, arguing that “these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group.” Atkins, who had no ability to do anything at all, died alone in prison a few months later.

If this outcome feels okay to you, ask yourself: what’s it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death?

Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you?

And if your answer is, “well, they didn’t consider that when they killed their victims, right?”, I have news for you: The victims are not coming back. They’ve been gone for decades. It’s horrible, and tragic, and we can’t fix that. Certainly not with another tragedy.

Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.