Category: Covid -19

Impending Closure of Death Row

A couple of days ago I spoke on KCRW about the announced closure of death row at San Quentin. Here’s the story as it appeared on the KCRW website, followed by some additional thoughts from me:

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Governor Gavin Newsom announced this week a plan to shut down the notorious death row at San Quentin State Prison. The plan would move the prison’s most condemned inmates to other maximum security prisons over the next two years, in an effort to create what Newsom calls a “positive and healing environment” at the Northern California prison.

San Quentin has the largest death row population in the nation — nearly 700 total. And while California hasn’t executed anyone in more than 15 years, Newsom also signed an executive order imposing a moratorium on executions in 2019.

The facility was originally a ship, and in the mid 19th century, prisoners themselves built the prison, explains UC Hastings law professor Hadar Aviram. “It’s a dilapidated facility, there are no solid doors, there are bars on the doors, ventilation is terrible. So it’s a facility that was built for 19th century standards. And just because of inertia, we are still incarcerating people in the same condition.”

She points out that the facility is located in a geographically beautiful area surrounded by expensive real estate. “In many ways, [it’s] a waste to have a prison there where people don’t enjoy the seaview and are incarcerated in terrible conditions.”

However, she notes that people currently aren’t being executed due to the moratorium, and since 1978, the state executed only 13 people, and more than 100 died of natural causes during that time.

“Just during this moratorium that Governor Newsom introduced, more people died on death row from COVID during the horrific outbreak at Quentin than we executed since 1978. So I’m sure that is giving some pause about the utility of the exercise of keeping people there,” Aviram says.

Because San Quentin is so old, inmates there suffered from coronavirus more than those at modern and well-ventilated facilities like the state prison at Corcoran, she says. Plus, it houses lots of people who are aging and infirm, who were thus already immuno-compromised and vulnerable to the virus.

Emotional and political reasons may be driving votes

California voters approved a ballot measure in 2016 to speed up executions, and the measure included a provision allowing death row inmates to be relocated to other prisons where they could work and pay restitution to their victims.

Aviram says over the years, there have been several attempts to abolish the death penalty through voter initiaties, but they always lost by small majorities.

Through inquiries, polls, and conversations with people, she says she realizes: “People are voting for the death penalty largely for emotional, sentimental, political reasons. They are more in love with a fantasy of having a sentence that’s reserved for the worst of the worst, and can deter people.”

She describes death row in California as “basically a more expensive version of life without parole that costs us $150 million a year.”

She adds, “It’s probably a good idea to think of the death penalty as undergoing the same process as some of the people who have been sentenced to death, which is rather than an execution, the death penalty is going to die a slow natural death itself, just from disuse and from this gradual dismantling.”

However, some district attorneys continue asking for the death penalty in capital cases, though the state doesn’t execute people anymore, as they hope the governor might revive the policy, Aviram points out. However, she says, “I think that because of the national trends … it is extremely unlikely that it’s going to come back.”

Newsom’s reimagining of prisons and what’s missing

When the governor says a “positive and healing environment,” Aviram says this means a life where inmates find meaning and usefulness (do some jobs).

But this doesn’t completely eliminate the death penalty, she says. “Because there is still one very big and expensive piece of the death penalty that is still with us — and that’s death penalty litigation.”

“We have this facility where people are sentenced to death and are still litigating themselves post-conviction, and that litigation is actually the lion’s share of the expense. So it’s only really going to go away if and when all of those sentences are commuted, and these people are no longer litigating their death sentences at the state’s expense. So that is the missing piece.”

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Some more thoughts: First, it’s been interesting to follow the fanciful, but often idle, talk about the real estate potential of Quentin. Readers who have been to Quentin know how beautiful the village is and how glorious the waterfront vistas are. There are plans to close four prisons, but no definite plans for Quentin. Any prospects of selling that land are to be viewed with ambivalence. On one hand, what a waste to have a prison so close to the water, without windows to enjoy the view – a place that combines suffering with beauty. On the other hand, it would be a terrible loss for the folks housed at Quentin, dilapidated and dangerous as it is, to be strewn about prisons in remote locations in the state, far away from the progressive energy of volunteers and rehabilitative programming richness of the Bay Area that people so desperately need for making parole. In my wildest fantasies, we close Quentin down, transform it into a resort/retreat for nonviolent communication and community healing, rebuild with huge ceiling-to-floor glass walls overlooking the ocean and gorgeous walking trails, and offer all the men well-paying jobs running the resort.

About the money: I predicted much of this demise, based on national trends, in Cheap on Crime, and still think that the deep decline of the death penalty is in no small part due to the financial crisis of 2008. The fact that we still spend a sizable pile of money on death row, despite the moratorium, is not surprising, and shows that the disingenuous efforts to save money via Prop 66 didn’t fulfill their purported purpose. In 2016, when giving talks about this, I used to draw the triangle of home improvement; write in its three corners: good, fast, and cheap; and tell people, “you can have two.” We can’t compromise on having a “good” death penalty (one in which there are no constitutional violations and factual mistakes), and so, it cannot be fast or cheap. The big savings will only roll in when we get rid of the litigation piece.

There’s no better proof that the death penalty is on its last leg than the fact that Joseph Diangelo, the Golden State Killer, was sentenced to life without parole. If not the most notorious and heinous criminal in the history of California, then who? And the logic in Diangelo’s case applies to everyone else–why the death penalty? So they can continue litigating at the state’s expense and die a natural death? Whose interests does this serve?

About the actual job of relocating death row people to other prisons/general population: this is going to be a complicated and delicate job, and my fear is that it will be entrusted to folks who are not tuned in to the complexities. They would be moving people who have been effectively “at home” in solitary confinement in unique conditions, many of them for several decades, into facilities with much younger people and a very different energy. There could be animosities and alliances that are difficult to predict and go beyond crude racial/gang affiliations. This is true, generally speaking, for every prison transfer (long time readers remember the fears and concerns surrounding CDCR’s plan to comply with the landmark decision in Von Staich through transfers to other facilities); in the case of the death penalty, there are other factors, not the least of which is the unique combination of notoriety and frailness of the people to be transferred.

There’s also the question whether dismantling death row, what with its symbolic hold over the Californian imagination, slows down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole), does the effort to abolish the death penalty lose its steam? The uphill battle for activists will be to spin this development to argue that the death penalty has been defanged beyond its utility; now that we’re left with only its negative aspects (to the extent that some people think it has advantages) it’s time to stop hemorrhaging state funds for incessant litigation.

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Today I’m at the Annual Meeting of the Western Society of Criminology, speaking about FESTER. My panel starts at 8:15am island time in the Waianae room – come say hi!

Los Angeles Times Op-Ed: California’s blocked vaccine mandate for prison guards is public health idiocy

I have an op-ed in this morning’s Los Angeles Times about the shameful, hypocritical appeal of the Plata vaccine mandate. I’m reproducing it here:

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California’s correctional facilities in January saw an alarming third wave of infection that brings an urgent threat.

The first wave, during the spring and summer of 2020, saw disastrous infections starting at the California Institution for Men and leading to cases in most residents at Avenal and San Quentin. The second wave, during the winter of 2020, saw outbreaks across all prisons with thousands of active cases. More than 66,000 infections have occurred to date, and at least 246 incarcerated people have died of the virus.

But this third wave features another cause for alarm: As of Jan. 28 there were 4,337 active cases among prison staff, with this surge seeing faster spread for that group than at any other point in the pandemic.

With staff moving freely in and out of these facilities, they have been agents of contagion in prisons and their surrounding communities. Data that I collected with independent researcher Chad Goerzen, as well as a report published by the Prison Policy Initiative in December 2020, show considerable correlations between prison COVID spikes and outbreaks in nearby counties and indicate that staff are primary drivers of this trend. And despite all these risks, they still are not required to get vaccinated.

After the federal receiver in charge of California’s correctional healthcare system pleaded for a vaccine requirement, U.S. District Judge John Tigar finally ordered one in September — only for Gov. Gavin Newsom, otherwise a staunch vaccine supporter, to side with the corrections department and the guards’ union in opposing the mandate. Their appeal is still pending with the 9th Circuit, and at this point there is no general requirement that prison staff become vaccinated.

The main concern of opponents of the mandate is that it might lead to mass resignations of guards, which in turn would result in understaffed, unsafe prisons. Yet in other sectors with mandates, such as schools and government offices, vocal protestations and resignation threats gave way to vaccination compliance. Indeed, the opponents’ rejection of a vaccine mandate is creating the reality they warned of: As of last week, 21 prisons each had more than 100 infected staff members, who then could not safely show up for work.

The irony of the situation might be lost on prison authorities, but it has an even darker side. Even if the threat of correctional officers’ resignations over a mandate were real, and graver than the very real staffing problems generated by the spike in staff cases, why do government officials so stubbornly support overcrowded prisons? Exposing incarcerated people to a serious virus with no means to protect themselves from unvaccinated staff members — amid other health order violations in prisons, per multiple reports — violates their 8th Amendment rights.

For the sake of public health, the state should withdraw its appeal of the court ruling on the mandate for prison guards, and Newsom should stop supporting the guards’ resistance, in accordance with his position on vaccination at other congregate spaces.

Ultimately, to protect California’s prison populations and everyone in surrounding counties, not only from this pandemic but from others in the future, we need to confront the larger truth: If it is impossible to retain enough correctional staff to provide propercare for our incarcerated population, then we cannot incarcerate as many people as we do.

We cannot, lawfully and constitutionally, house, clothe and feed more than 100,000 people, many of them aging and sick, if the staff cannot be bothered to take minimal precautions to protect those people from disease.

California needs a lasting policy of releasing inmates — shown to be an effective intervention to reduce COVID cases — taking into account criminologically and medically relevant factors such as their age and health conditions. (When only 7,600 people were released from California’s prisons in summer 2020 as a COVID mitigation measure, fewer than 1% were in a medically high-risk category; most were younger people about to be released anyway.)

One cliché of the pandemic has been that “we are all in the same storm, but not in the same boat.” This is true both behind bars and on the outside. Requiring prison staff to be vaccinated, while reducing prison populations through targeted release, protects everyone’s interests in the years to come.

Hadar Aviram is a professor at UC Hastings College of the Law and participated in the San Quentin COVID-19 litigation as counsel on behalf of ACLU of Northern California and criminal justice scholars. She is the co-author of the forthcoming book “Fester: Carceral Permeability and the California COVID-19 Correctional Disaster.”

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The LA Times has been good to our struggle this week; over the weekend, it published a phenomenal op-ed by incarcerated journalist Juan Haines about the astonishing appeal of the Quentin case.

Worried about Vaccine Mandates Potentially Causing Prison Understaffing? Guess What Actually Causes Prison Understaffing: COVID-19.

At first glance, today’s COVID-19 numbers for California prisons appear to be a grim reprise of the two previous outbreak waves: thousands of cases, with major outbreaks in several facilities. Clearly, we have learned nothing from the last two years, which led to infections among more than half of the prison population and to 246 deaths; Governor Newsom’s recent reversal of 80-year-old Sirhan Sirhan’s parole bid indicates that politics and optics, rather than pragmatic public health and public safety considerations, are standing in the way of sensible choices. But upon closer inspection, this third wave features another cause for alarm: in addition to the 4,069 active cases among incarcerated people, there are currently 4,570 active cases among prison staff, and in 20 prisons, more than 100 staff members are currently infected.

The reason is not particularly mysterious. Throughout the last two years, California’s prison guards’ union (the CCPOA) led a dogged fight against mandatory vaccination for its members. For many months, the federal district court hearing the case adopted a conciliatory, welcoming approach, appeasing the guards and turning to gentle persuasion methods; these have proven useless in raising the vaccination rates among the staff. Finally, after the COVID catastrophe ravaged prisons (and several months too late to save lives) Judge Tigar ordered a vaccine mandate; the guards, the prison authorities, and Governor Newsom are opposing the mandate and their appeal is pending before the Ninth Circuit.

Whether prison guards refuse to get vaccinated due to indifference, COVID-19 denialism, or misguided politicization of healthcare, is pure speculation. But in their appeal, opponents of the mandate raise concerns that requiring vaccinations might lead to mass resignations of prison guards, which in turn would result in understaffed prisons. This scenario was feared, but failed to realize, in many other employment sectors with mandates, where vocal protestations and threats of resignation gave way to vaccination compliance. Indeed, the opponents’ stance is generating precisely the scenario they worry about: it turns out that, when thousands of people are sick at home, prisons become understaffed.

The irony of the situation might be completely lost on prison authorities, but it has an even darker side. Even if the threat of correctional officers’ resignations were real, and graver than the very real understaffing generated by the spike in staff cases, we must ask ourselves why courts and government officials so stubbornly cling to the idea of overcrowded prisons as a public good. If it is impossible to hire and retain correctional staff who can provide a standard of care that complies with minimal Eighth Amendment requirements, then it is impossible to incarcerate as many people as we do. We must reckon with the fact that we cannot, lawfully and constitutionally, house, clothe, and feed more than 100,000 people—a quarter of whom are over 50 years old—if the staff entrusted with their care cannot be bothered to take minimal precautions to protect their captive wards from disease.

Omicron, Sirhan Parole Denial, Academic/Activist Exhaustion: Four Thoughts

Denying parole to aging, infirm people at this moment in time is… maddening. Several journalist friends called me yesterday about Gov. Newsom’s reversal of Sirhan Sirhan’s parole grant. Anyone who has read Yesterday’s Monsters will guess I am not surprised–in fact, I predicted this outcome, which was foreshadowed in his no-on-recall campaign, on this very blog. Just as with Leslie Van Houten’s parole bid, the fifty-year cling to political and optical considerations is jarring: fully rehabilitated people, advanced in years and presenting no risk to society, confined during a time of pandemic spike in prisons, to which they are especially vulnerable because of their age. Maddening but unsurprising. I think I’ve said it all so many times–what more is there to say?
They worried about staff shortages b/c of vaccine mandate. They got staff shortages b/c of COVID. Yes, Omicron in prisons and jails clearly shows that we have learned nothing. But there is one new factor in this wave: a massive infection spike among the staff. Take a look at CDCR’s employee COVID ticker: as of this morning, there are 4,419 staff cases. Most facilities have more than 100 sick staff. Recall that the opposition to Judge Tigar’s vaccine mandate–in CCPOA’s appeal, the Governor’s supporting brief, and the Ninth Circuit’s decision to stay the mandate–was that vaccine requirements could lead to mass resignations and a difficulty in staffing prisons. I’m assuming that the irony of having to staff prisons when the staff sickens by droves is completely lost on everyone, so I feel compelled to flag it: for exactly the reasons CDCR and CCPOA state, it is impossible to run a prison in which wide swaths of the staff knowingly render themselves potentially unable to work. If allowing medically irresponsible decisionmaking among employees is a priority, something must give–and the obvious corollary (I’m so tired of saying this again and again) is: we must incarcerate far fewer people than we do because we cannot provide minimal, constitutionally compliant care for them under current circumstances.
No good deed goes unpunished #1. Everyone in academia is exhausted, worn, burned out, just like yours truly. As in Tolstoy’s opening for Anna Karenina, there are infinite variations to the unhappiness, but the aggregate effect is the same: people trying to keep afloat by teaching their classes and having no bandwidth for anything else. I’m experiencing this on both sides: solicitations to review, to participate in panels, to assess grants, to do this or that, are flooding my inbox and I’m overwhelmed, just like everyone else. At the same time, as the book review editor for Law & Society Review, I’m finding it difficult to get reviewers and, when I do, the reviews arrive late or not at all. I get it. I really, truly do. The effort to keep the giant machine grinding beyond the essential components of the job, in the face of all THIS, is bewildering. It occurred to me that one way to help a little bit would be to compensate (not lavishly, but reasonably) for people’s efforts in this direction. Peer reviewing an article? Cash. Supervising a student’s independent work? Cash. Heavy-load committee? Cash. Panel appearance requiring preparation? Cash. This would be especially wonderful for the folks who are trying to write their way out of adjuncting while teaching at several institutions. Many of us, even in these high-prestige occupations, suffered a financial blow; many of us have spouses who had to quit or restructure their jobs to provide childcare, or have had to do that ourselves. Money is important in itself–it’s how we afford our lives–and it would also signal some recognition and gratitude for our efforts.
No good deed goes unpunished #2. Speaking of lack of recognition and gratitude, this morning’s L.A. Times features the story of Patrisse Cullors, one of the national leaders of Black Lives Matter, who had to quit her position and regain her mental health in the face of threats from without and incessant critique from within that made her life a misery. I’m in a variety of activist scenes because of my work and I know exactly what she’s talking about. There is something very unhealthy, very rotten, in how we manage interpersonal relationships in activist spaces, and the unbearable ease of vomiting negativity and mobbing people on social media is enough to break anyone’s spirit. I would really like to create a sanctuary for exhausted activists and advocates–a place where people can come refresh their spirits and take care of themselves. Our movements for change will not survive if we continue treating each other like trash.

Omicron Is Here, and We’ve Learned Nothing

Let’s cut straight to the chase. Today’s CDCR ticker is showing 1,343 new cases and only three prisons with no cases (one of them is San Quentin, which may be why we are not hearing as much about this as we should.) CDCR has 313 cases, Wasco 285, CIM (which gets battered with every COVID wave) 229, and North Kern 104. Smaller but still worrisome outbreaks are present throughout the system.

Unsurprisingly, the same is happening in county jails: Yesterday, Darby Aono, who is keeping tabs on Santa Rita, reported on twitter that there were 177 cases among jail population and 54 among the staff. And the UCLA COVID-19-Behind-Bars Data Project is reporting spikes in hundreds of prisons and jails nationwide.

The immediate response at CDCR and in some counties (such as San Mateo) has been to suspend visitation. But what about the people who come in and out of prison every day, namely, the staff? The partial vaccination requirement is in place, resulting in 46% of staff still unvaccinated after all this.

To recap, after everything we’ve been through:

There have been 53,261 cases of COVID-19 at CDCR, some of which are reinfections.
246 incarcerated people have died of COVID, four of them recently.
The prison population is 80% vaccinated. The prison staff vaccination rate hovers around 54%.
Our science-minded Governor and Attorney General are supporting prison guards in their efforts to shirk mandatory vaccination even as they mandate the vaccine in all other areas of life, including schools. Their appeal of the order to vaccinate is pending.
The Ninth Circuit has reversed the District Court decision and placed a stay upon the vaccine mandate, even as there are now prisons with hundreds of cases.
The institutional response, rather than immediately ordering the staff to vaccinate, has been to suspend visitation (which could have been conditioned, like everything else, on showing a vaccination record).
Jails are seeing spikes, and the vaccination rates there are much lower than in prisons, for both the population and the staff.

CDCR, CCPOA, and the administration insists that the measures they have adopted (including the partial vaccination requirement) are sufficient, but it turns out that even these partial measures are not being followed. I’ve recently received correspondence about conditions at CMF in Vacaville, where aging and infirm people are housed. CMF currently has, according to the ticker, only two active cases, and given the explosion of Omicron everywhere else, there are particular worries because of the vulnerability of this population. Nonetheless, at the last case management conference of Plata v. Newsom, the petitioners’ attorneys reported a serious lack of enforcement at CMF and CHCF of the Aug. 19 public health order requiring prison staff who work in healthcare settings to have been vaccinated by Oct. 14.

The problem is specifically with contracted staff, who account for 26% of CMF’s overall staff and are only 37% compliant with the public health order. At CHCF, contracted staff account for 17%, and the compliance rate is 61%. Many of those contractors are medical personnel who, as explained above, are interacting with the most ,some of the oldest and most medically vulnerable incarcerated people in the state. When the issue was raised at the conference, the state representatives did not dispute the numbers–rather, they admitted familiarity with the problem–and the conference simply moved on.

What more is there to say? Omicron is here, and we’ve learned nothing.

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Ninth Circuit Stays Vaccine Mandate

Unbelievable and unconscionable. NBC News report:

A federal appeals court on Friday temporarily blocked an order that all California prison workers must be vaccinated against the coronavirus or have a religious or medical exemption.
A panel of the 9th U.S. Circuit Court of Appeals granted a request for a stay of September’s lower court order pending an appeal. It also sped up the hearing process by setting a Dec. 13 deadline for opening briefs.
The vaccination mandate was supposed to have taken effect by Jan. 12 but the appellate court stay blocks enforcement until sometime in March, when the appeal hearing will be scheduled.

A horrifying and preventable catastrophe

It is absurd to deny that a horrifying and preventable catastrophe has played out in California prisons. So far, more than 50,000 people—more than half the state’s prison population – has contracted COVID-19, and 242 people have died. The California Inspector General’s reports, as well as federal and state court findings, reveal a picture of shocking indifference, shortsightedness, and neglect in the California Department of Corrections and Rehabilitation’s (CDCR) handling of the pandemic—complete with irresponsible transfers, an overwhelm of the prison healthcare system, low testing rates, a rumor mill of fearmongering and disinformation, and unreliable data collection.

For a year and a half, advocates for incarcerated people fought in federal court to obtain relief. The lawsuit began as a plea to reduce prison population, which for much of the pandemic hovered around 100% of design capacity. But with the advent of vaccination, and after an uphill battle to ensure that prisoners, like other people living in congregate settings, receive it, the lawsuit’s focus became much more modest: a mandate that correctional staff (the main transmitters of the pathogen) become vaccinated. Despite concerns that prisoners, who have lost all faith in CDCR, would be suspicious of the vaccine, advocacy groups comprised of physicians, family members, and recently released people, succeeded in providing accurate and trustworthy medical information, resulting in high vaccine acceptance rates among the prison population.

The picture is completely different regarding prison staff. Throughout the pandemic, correctional officers told incarcerated people that COVID-19 is a hoax and that the vaccine would kill them; neglected to wear PPE in enclosed spaces and mocked prisoners for doing so; ordered prisoners to clean cells of infected people; fed prisoners insufficient, unpalatable food when the pandemic ravaged kitchen workers; and planned a correctional officers’ union event in Las Vegas amidst the pandemic wave of late 2020, which was abandoned only under public pressure. Even as their colleagues ailed and died, many correctional officers persisted in COVID-19 denialism and anti-vaccine sentiments.

The stay is the last in a long series of concessions and placations by government officials to the powerful prison guards’ union. Throughout the litigation, Judge Tigar exhibited remarkable patience and tolerance for bad faith arguments, trying to foster cooperation rather than impose orders and congratulating attorneys for the prison guards’ union for even sitting at the (virtual) table. Then, Governor Newsom—ostensibly, the outspoken architect of California’s science-forward vaccination policy and of vaccine mandates in schools—supported the guards in their bid to evade vaccination (the prison guards’ union reportedly contributed $1.75 million to Newsom’s anti-recall campaign). Attorney General Rob Bonta, who publicly decried the pandemic crisis at San Quentin as an Assemblymember, changed his tune as soon as he took office, and has allowed his employees to defend the prison system’s unconscionable policies.

This disturbing pattern offers somber proof that all government branches are paralyzed not only by fear of unflattering optics—the people who should be first in line to be released, elderly and infirm prisoners, are often serving time for serious, violent offenses—but also by the manipulations of the prison authorities and the prison guards’ union. In one case, justice delayed due to these evasive maneuvers was, literally, justice denied: Just a few weeks ago, Judge Howard of the Marin Superior Court found that the ill-fated transfer that started the horrific San Quentin outbreak constituted an Eighth Amendment violation—but offered the prisoners no relief, because the vaccines supposedly “changed the game” to a point that lifesaving population reductions are moot.

The Remaining Threat

But the threat is not moot; currently, there are several active outbreaks in California prisons and dozens of active cases. Studies are increasingly showing that the congregate setting in prisons, complete with flawed ventilation, lack of social distancing, and the rise in prison population, pose continuous risks. Efforts to control prison populations by stopping jail transfers are currently causing massive outbreaks in several county jails. Moreover, the emergence of new variants, such as Omicron, does not bode well for correctional facilities.

The risk extends far beyond the prison gate. For our forthcoming book about the California COVID-19 prison crisis, my coauthor Chad Goerzen and I have found worrisome correlations between prison outbreaks and spikes in cases in surrounding and neighboring counties. We should all know by now that the pandemic is not a zero-sum game. Viruses do not decide which hosts to inhabit based on arguments of moral deservedness or the California Penal Code. If prisons are allowed to incubate dangerous variants, the risk to you and your loved ones increases.

The Ninth Circuit reasons that anti-vaccination sentiments run rampant among prison guards (we do not know why, as no one has ever systematically surveyed the political views of correctional officers) and assumes (without foundation) that, in the face of vaccine mandates, many might quit their well-paying jobs, leaving our vast prison system understaffed. This scenario was feared, but failed to acknowledge that in many other employment sectors with mandates, where vocal protestations and threats of resignation gave way to vaccine compliance. ‘

But even if the threat of correctional officers’ resignations is real, we must ask ourselves why courts and government officials are so stubbornly clinging to the idea of overcrowded prisons as a social good. If it is impossible to hire and retain correctional staff who can provide a standard of care that complies with minimal Eighth Amendment requirements, then it is impossible to incarcerate as many people as we do. We must reckon with the fact that we cannot, lawfully and constitutionally, house more than 100,000 people—a quarter of whom are over 50 years old—if the staff entrusted with their care cannot be bothered to take minimal precautions to protect their captive wards from disease.

A Visit to Tulane

For the first time since Fall 2019, I got on a plane on Monday and flew to New Orleans; Professor Adam Feibelman very graciously invited me to participate in the Workshop on Law and the Economy, and I had the opportunity to present Fester to people who read big chunks of it, including the introduction and Chapter 4.

What is the CA Attorney General’s Job?

On July 9, 2020, the #StopSanQuentinOutbreak coalition held a press conference outside the prison gate to draw attention to the medical crisis behind bars. The five weeks that preceded the conference saw the COVID-19 case count in the facility grow from zero to more than a thousand, and when we held the conference, people were already dying. Many people spoke at the conference–family members, formerly incarcerated people, doctors, experts, politicians.

The picture above is from the press conference. On the right side of the picture is then-Assemblymember Rob Bonta, who spoke very movingly and urgently about the need to have Gov. Newsom visit the prison and release people. Bonta’s speech was quoted in the Guardian:

“We are in the middle of a humanitarian crisis that was created and wholly avoidable,” said the California assembly member Rob Bonta at a press conference in front of San Quentin state prison on Thursday.
“We need act with urgency fueled by compassion,” he added. “We missed the opportunity to prevent, so now we have to make things right.”

Fast-forward a year and a half, and Bonta, now California’s Attorney General, is appealing Judge Tigar’s order to vaccinate the guards in CA prisons. The staunch resistance at CDCR and at the Governor’s mansion to the idea of letting old, sick people be released back to their families–purely for optics reasons, as they pose little to no risk to public safety–resulted in a paltry an ineffectual release policy (as I predicted the day it was announced) and, also predictably, in a complete abandonment of the release plan as soon as vaccination emerged on the horizon. Within the activist/advocate community, this presented a problem: while vaccines would slow down, or even end, the COVID-19 crisis, they would not prevent future contagions, which are sure to come given the prison infrastructure, medical understaffing, and chronic neglect and indifference. At the time, when talking to a friend, I said we had to get on the vaccine bandwagon; the fight to save lives now was as important as the fight to save more lives in future years, and we certainly could not afford to let go of the call to make the prison population a top vaccination priority.

Despite some governmental hiccups, and despite the prevalence of ignorant arguments that combined deservedness with medical care, people in correctional facilities educated themselves about the benefits of vaccination and, thankfully, accepted the vaccine at rates exceeding the general population. The credit for this success goes first and foremost to the correctional residents themselves, who had to sift their way through mountains of disinformation from custodial staff and their own mistrust of anything coming out of the authority that caused the outbreak in the first place. It also goes to formerly incarcerated people who encouraged their friends to do the right thing, and to AMEND for targeting correctional populations with excellent, 100% reliable medical advice. It certainly does not go to the government, which deprioritized prisons throughout the process.

More seriously, the staff is still the problem: custodial staff nationwide are still refusing vaccines at mind-boggling rates.

Graph showing vaccination rates among prison staff lagging behind overall rates in nearly all states — Source: UCLA Behind Bars Data Project

In short: Even though the fight to release people is still as urgent and relevant as it was in the summer of 2020, virtually nothing has happened on that front that would make a difference during this pandemic or the next one. Jail populations are back up to pre-pandemic levels; California prisons, which are still overcrowded despite a 18% population reduction, are now responsible for 7 out of the top 10 largest COVID-19 prison clusters in the country.

line graph showing 50 state prison and federal prison population changes from March 2020 to October 2021 — Source: Prison Policy Initiative

Against this backdrop–the most important and pressing measure for contagion prevention basically abandoned–the litigation battle lines have been drawn at a much more modest expectation: staff vaccination. As a legislator, Bonta called for the more thorough system fix; as part of the Newsom administration, his employees are defending indefensible arguments and making absurd excuses to shirk responsibility even for the truly modest goal of protecting the lives of staff and incarcerated people.

Bonta/Newsom’s zealous appeal against this modest goal (essentially an incomprehensible support of Trumpist anti-vaccine drivel coming out of the Proud Heroes of the Resistance! or is it?) is even more absurd when compared to the Newsom/Bonta perspective on mandating vaccines in schools, considerably less dangerous settings than correctional facilities from an epidemiological standpoint. Indeed, some anti-maskers are calling Newsom/Bonta to task for forcing them and their kids to vaccinate when they are not imposing such duties in prison (even a broken clock shows the correct time twice a day.) Bonta’s response when a CalMatters journalist confronted him with the hypocrisy? “I have a client” (i.e., CDCR) and “you’ll have to take it up with my client.”

Which brings up an important question: What, actually, is the Attorney General’s job? Is the AG wearing two separate hats when supporting legislation/regulation and when litigating? Can the government speak out of two sides of its mouth on, essentially, the same matter of scientific/medical validity? When litigating in court, is the AG no more than a hired gun for a “client” (the government) with no obligations to support what’s right? Does the AG stop working for us when he works for our government? When protecting anti-masker prison guards, does the AG stop being a public official, holding office for the benefit of all Californians, and become CCPOA’s Tom Hagen?

Here are two instructive scenarios from recent CA history. In the first one, then-Governor Jerry Brown and then-AG Kamala Harris were called upon to defend a new amendment to the CA constitution, otherwise known as Prop 8 (“marriage is between one man and one woman”). You may recall their position then: Harris declined to defend Prop 8 “because it violate[d] the Constitution. The Supreme Court has described marriage as a fundamental right 14 times since 1888. The time has come for this right to be afforded to every citizen.”

Let’s recap: The Eighth Amendment guarantees freedom from cruel and unusual punishment, which in the context of prison conditions means that deliberate indifference to a serious health and safety risk is violative of the Constitution. We now have a ruling that having unvaccinated staff at CDCR facilities is a violation of the Eighth Amendment. AG Bonta, why would you defend this in federal court?

In the other instructive scenario, Harris, again as Attorney General, appealed Jones v. Chappell, a federal court decision that held the death penalty unconstitutional because of the delays. At the Ninth Circuit, they prevailed on a narrow, technical ground–the district court had applied a “new rule” at a habeas proceeding (for my explanation of this technical legal point, see here.) On principle, I still maintain that it was wrong of Harris to appeal the decision (here‘s a summary of my position on that matter.) It was an illustration of a tail-wagging-the-dog scenario: Harris walked away from that incident remembered for upholding a technical retroactivity ruling, rather than for dismantling our dysfunctional and monstrous death penalty. But at least there was some doctrinal support for that position.

This is not the case here: we have a ruling that is not only correct (and extremely narrow) on a policy level, but also on a legal level. Bonta and Newsom know full well that their position is morally and legally indefensible. Why, then, are they appealing, and is this a fulfillment of the AG’s ethical obligations?

Moreover, even accepting Bonta’s peculiar distinction between his role in legislation and in “client” representation, even the most zealous and unprincipled gun-for-hire private attorney will have situations in which it will be necessary to sit down with the client and explain that a position that the latter wants to advance in court is untenable (e.g., there’s no hope for an insanity defense because the defendant is sane; there’s no self-defense because there’s ample proof that the defendant shot someone in the back for profit with no provocation whatsoever.) In situations in which the client insists on a particular line of legal argumentation, lawyers who cannot pursue that line with a straight face need to withdraw from representation. It is long past time for Bonta and his employees to have a come-to-Jesus conversation with their “clients” and explain that vaccinating the staff is a minimal, modest expectation, barely enough to pass the already eroded Eighth Amendment standard, and that balking at it is not a move that the AG’s office can support.

Gavin Newsom Rob Bonta

Tentative Ruling in San Quentin Cases

This week has seen several important developments in the legal cases associated with COVID-19 in prisons, the most recent of which is a tentative ruling (subject to objections from the parties, of which there are expected to be many) from Judge Howard of the Marin Superior Court in Hall (Von Staich), the case examining the San Quentin COVID tragedy. Here is Judge Howard’s 114-page ruling:

Final Tentative Ruling 10-15-21_AC (1) by hadaraviram on Scribd

The ruling provides a comprehensive historical narrative of the outbreak at San Quentin, starting with the fateful transfer from CIM, and complete with the testimonies of incarcerated and expert witnesses. Judge Howard discusses the ineptitude and mismanagement at San Quentin, from the Warden to the custodial and medical staff; he relays the many rejected offers for help. Notably, when discussing the impact on incarcerated people, the opinion takes special care of relaying the impact of the crisis on mental health and morale (through the testimony of Dr. Kupers and several incarcerated witnesses.) Also to Judge Howard’s credit, he discusses the ancillary punitive aspects of the prison’s response to COVID, which amounted to solitary confinement for many long months.

While the decision commends CDCR for some of what they did, ultimately it relies on evidence from both petitioners and respondent to show that, had they done nothing, the rate of infection, disease, and death would have been the same.

The upshot, though, is that Judge Howard denies relief to petitioners due to mootness:

[T]he vaccine changed the game for COVID-19 at San Quentin. With a nearly 80 percent inmate vaccination rate, COVID-19 has all but disappeared from inside the prison. Although COVID-19 remains a risk within San Quentin, it appears at present no more tha, and perhaps even less than, the risk faced by the community at large.
But even if COVID-19 continues to pose a substantial risk of serious harm, the combination of substantial population reduction, mitigation measures, and most importantly vaccine rollout, to every inmate in the prison shows that Respondent does not “knowingly and unreasonably” disregard an objectively intolerable risk of harm. By offering the vaccine to all inmates, Respondent has responded reasonably and effectively with the best tool available to mitigate the harm. This situation differs from the scenario presented to the In re Von Staich court, where “Absent a vaccine or an effective treatment, the best way to slow and prevent spread of the virus is through social or physical distancing, which involves avoiding human contact, and staying at least six feet away from others.” Here, the vaccine, combined with other measures, allows less physical distance. Petitioners did not carry their burden to show that Respondent continues to unreasonably disregard a known serious risk by failing to take further measures such as further reducing the prison population.

But Judge Howard doesn’t end there. He explains that, even when relief is denied due to mootness, where “a question of general public interest which is likely to recur,” habeas petitioners may seek a declaration of rights in these circumstances, “including where the court may have difficulty ruling on the issue while the controversy is alive, and where it presents important issues of liberty and social interest.” This, he says, is just such an issue. And so, the last five pages of the decision lambast CDCR/CCHCS in general, and San Quentin officials in particular, for their ongoing neglect and for the general conditions of the prison, which are conducive to future contagion. Here is Judge Howard’s declaration:

Respondent caused “the worst epidemiological disaster in California correctional history.” [my emphasis – H.A.] In doing so, Respondent recklessly ignored what it knew then and concedes now – that COVID-19 posed a “substantial risk of serious harm to the health and safety of petitioners.”
Respondent’s conduct that resulted in 75 percent of the San Quentin inmates contracting COVID-19, and 28 deaths, implicates “matters of clear statewide importance” relating to the “efficacy of the measures officials have already taken to abate the risk of serious harm to petitioner and other prisoners, as well as the appropriate health and safety measures they should take in light of present conditions.” (Staich on H.C., supra, 272 Cal.Rptr.3d 813.)

During the 2020 COVID-19 outbreak at San Quentin, Respondent violated Petitioners’ rights under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution to be free of cruel and unusual punishment. Respondent exhibited deliberate indifference to the admitted risk posed by COVID-19, by (a) violating its own rules and procedures when it transferred the CIM inmates to San Quentin, knowing that those inmates posed a risk of introducing COVID-19 into San Quentin; (b) violating its own rules and procedures during the intake and processing of the newly-arrived CIM inmates, in particular by ignoring obvious COVID-19 symptoms, failing to quarantine the transferees, failing adequately to screen them, and failing to test them until after they had already begun to infect the existing San Quentin population; (c) ignoring advice from its own medical professionals and CDC guidance by failing to provide adequate PPE, mixing sick and well inmates, failing to cohort inmates adequately, failing to enforce social distancing, and failing to provide adequate or timely testing; and (d) ignoring Willis/MDPH’s recommendations without any basis other than that MDPH purportedly had no authority over Respondent.
As in Plata, “[n]umerous experts testified that crowding is the primary cause of the constitutional violations.” (Brown v. Plata, supra, 563 U.S. at p. 521.) The evidence shows that compliance with the Urgent Memo’s population reduction recommendation in a timely fashion substantially would have reduced the scope and severity of the COVID-19 outbreak at San Quentin. Respondent knew about the Urgent Memo. It further knew that population reduction could effectively combat viral spread (as evidenced by its own population reduction efforts). Respondent failed to comply with the Urgent Memo recommendation or engage any expert of its own. Without adequate investigation or the benefit of any alternative expert opinion, ignoring the Urgent Memo’s population reduction recommendation constituted further deliberate indifference. Indeed, Respondent had the means at its disposal quickly to comply with the Urgent Memo’s recommendation; instead, it chose to litigate the matter while people died. Respondent has offered no valid argument why it could not have complied with the Urgent Memo’s recommendation. In Plata, in addition to the criteria imposed by the PLRA, the state had to consider an order involving the entire California prison system. The state could not comply with that order simply by moving inmates. It had to either release them or build more space. Here, by contrast, the problem involves only one, antiquated prison, with architectural characteristics not shared by many other prisons in the state system. Respondent contends it would violate “contemporary standards of decency” to release Petitioners prior to the end of their sentences. (Respondent Opp. at pp. 23, 57.) But it could have reduced the population through means other than outright release. Indeed, the remedy ordered by the Court of Appeal in the October 2020 In re Von Staich Order did not necessarily involve releasing any inmates. (In re Von Staich, supra, 56 Cal.App.5th at p. 84 [“To be clear: We do not order the release of petitioner or any other inmate”], emphasis in original.) Instead, the Court of Appeal left to Respondent the most efficient and effective means of reducing the population, considering the variety of factors prison officials must consider. (Ibid.) While release is certainly one option to reduce the population at San Quentin, prison officials had several other options available to them. For example, they could have transferred inmates to a different prison (following all safety protocols). The failure to do so, or at least to make good faith efforts to do so, unreasonably exposed inmates, staff, and the surrounding community to a substantial risk of serious harm.

The failure to reduce the population resulted in other constitutional deprivations of liberty. Because Respondent did not reduce the population as recommended, it effectively consigned hundreds of inmates to unwarranted, unnecessary, solitary confinement. And not just for a day or two. Where Respondent had the ability to move inmates to other facilities or release them, the court can conceive of no argument to support forcing inmates to remain in a cell smaller than 50 square feet, with two bunks, and a cellmate, for virtually 24 hours a day, seven days a week, for months on end. Doing so enhanced the inmates’ exposure to COVID-19. For the duration it lasted, it also amounted to solitary confinement in violation of common standards of decency, with all the physical and mental health effects that result. (6 RT 1206-07.) (See Exhibits 370.011 and 370.012, depicting the solitary confinement cells during lockdown in the “Blocks” at Sec. IV.B.1.a, supra.) Respondent knows about these effects. Its mental health team prepared for them, reported them, and treated them. Simply put, confinement for that long, with another person, in a space so small and foul, implicates “nothing less than the dignity of” humans. (Trop v Dulles, supra, 356 U.S. at pp. 100-101.)

Isolating COVID-positive inmates in the AC contributed to the spread of COVID-19 because inmates fear the AC. Using the AC as an isolation unit disincentivizes candid reporting of symptoms, an essential component of any effective COVID-19 mitigation strategy.

Respondent contends population reduction “involves significant policy questions about public safety and criminal justice” best left to other branches of government. (Resp. Opp. at p. 42.) However, if Respondent insists on continuing to operate an obsolete and dangerous prison that, whenever an airborne pathogen arises, threatens the health and safety of the prison population, not to mention the surrounding community, then Respondent will leave the courts with no choice but to intervene. Moreover, the circular notion that “the operation of our correctional facilities is peculiarly within the province of the Legislative and Executive Branches of Government, not the Judicial” (Bell v. Wolfish (1979) 441 U.S. 520, 548), relied upon by Respondent, assumes the lack of a constitutional violation.

No one knows how COVID-19 will behave in the future. No one knows what effect
Respondent’s efforts to vaccinate the entire inmate population will have in combating any future
outbreak. Petitioners have not – at this time – carried their burden to show current deliberate
indifference warranting injunctive relief. However, the record raises serious questions about
whether Respondent has learned the right lessons from the 2020 COVID-19 debacle at San
Quentin. It continues to operate a prison uniquely situated to allow the spread of any airborne
pathogen, including COVID-19, in a manner seemingly indifferent to the specific characteristics
that resulted in such extensive illness and death just last year. For example, Respondent
continues to double cell prisoners in multi-tiered units with open barred doors, a living
environment that enhances the risk of disease transmission. Respondent also appears intent on relying on the same population spread – as opposed to population reduction – strategy it
employed in 2020. It plans to lockdown double-celled inmates, when necessary to quarantine
them, in the cells measuring 49 square feet that make up the tiered housing units. Depending on
the circumstances, including the severity of any future outbreak, the findings above should cast
significant doubt on the wisdom of those strategies.

***

In the meantime, there have been developments with other cases. On the heels of Judge Tigar’s order to mandate vaccination for prison guards, CDCR published a three-page plan for implementation, which excludes many people from the need to get vaccinated–while at the same time filing a notice of appeal the mandate. This is indefensible, coming from the administration that bills itself as pro-science and pro-vaccine. Simultaneously, a Kern County Superior Judge blocked the vaccine mandate order for Kern County correctional officers – unfathomably, just as North Kern State Prison is seeing a serious outbreak:

Judge Barmann explained his decision: “What I don’t want to do is I don’t want to put somebody in a situation where there’s something that happens to them that truly is irremediable.” As I said on the radio, this language can act as a dog whistle to COVID deniers, because guess what, long-term COVID and death are what’s “irremediable.”

Stay tuned for more developments in all these cases.

Hallelujah! Judge Tigar Mandates Vaccination for Staff, Guards

Fresh off the news: Given the risk from the delta variant–already fueling a massive outbreak at North Kern – Judge Tigar has finally mandated vaccination for CDCR staff (currently, vaccine rates among staff stand at 40%.) Sam Stanton and Wes Ventreicher of the Sac Bee report:

Rejecting opposition from California officials and the state’s prison guard union, a federal judge on Monday ordered the state to come up with a plan in the next two weeks for mandatory COVID-19 vaccinations for guards, as well as inmates who work outside the prisons.
The order by U.S. District Judge Jon S. Tigar in Oakland follows a hearing Friday over the issue and a recommendation in August by the federal prison receiver overseeing medical care that asked the judge to order mandatory vaccines for guards and staff, with some medical and religious exemptions.
“The question of mandatory vaccines is complex,” Tigar wrote in a 22-page order. “In this case, however, the relevant facts are undisputed. No one challenges the serious risks that COVID-19 poses to incarcerated persons.
“No one disputes that it is difficult to control the virus once it has been introduced into a prison setting. No one contests that staff are the primary vector for introduction. And no one argues that testing, even if done on a daily basis, is an adequate proxy for vaccination to reduce the risk of introduction.”
Tigar noted that since the pandemic began in spring 2020, more than 50,000 California inmates have been infected with coronavirus, and at least 240 have died.
His order would require mandatory vaccines for all workers entering California prisons, all inmates who work outside the prisons and inmates who agree to in-person visits. The judge also wrote that the receiver “shall consider efforts to increase the vaccination rate among the incarcerated population, including whether a mandatory vaccination policy should be implemented.”
The California Department of Corrections and Rehabilitation said in a statement that it was “evaluating the court’s order at this time to determine next steps” and did not agree with the judge’s finding of “deliberate indifference” by officials in their COVID policies.
“We respectfully disagree with the finding of deliberate indifference, as the department has long embraced vaccinations against COVID-19, and we continue to encourage our staff, incarcerated population, volunteers, and visitors to get vaccinated,” the statement said. “Additionally, we were one of the earliest adopters of the COVID-19 vaccine, having rolled it out to vulnerable populations and staff at the end of 2020, and have implemented robust response and mitigation efforts against the pandemic.
“We are also actively working to operationalize the recent California Department of Public Health Order and ensure all impacted staff is in compliance by Oct. 14.
“Currently, 76 percent of the incarcerated population has been fully vaccinated, with 57 percent of staff vaccinated and another 4 percent having received at least one dose. And to date approximately 99 percent of incarcerated people have been offered the vaccine.”
The judge acted after Receiver J. Clark Kelso submitted a 27-page report last month warning of “enormous risks” to the prison population because of the delta variant and noting that only 40% of the state’s correctional officers statewide are fully vaccinated.
In Friday’s court hearing, Kelso added that 11 correctional staffers have died from COVID-19 since his report was issued in August.
A lawyer for the state prison guard union argued against such an order, telling the judge that he did not believe the judge had the authority to issue such an order.
“This is uncharted territory that we’re in in this proceeding,” said Gregg Adam, arguing for the California Correctional Peace Officers Association. “There is no precedent for a court ordering employees to be vaccinated in order to keep their job under any circumstances.”
The union represents about 28,000 state correctional officers and pledged to members last month that it would fight mandatory vaccination orders. The union hasn’t opposed the current regimen, which allows unvaccinated officers to submit regular COVID-19 test results in lieu of proof of vaccination.
“We’ve undertaken an aggressive, voluntary vaccination program and we still believe the voluntary approach is the best way forward,” union president Glen Stailey said in a prepared statement emailed Monday by spokesman Nathan Ballard. “We are looking into our legal options to address this order.”
A Prison Law Office attorney representing the inmates who argued for the order said Monday that the judge’s decision was a “terrific” victory for keeping prisoners safe.
“It provided a very clear, factual basis for the decision,” attorney Rita Lomio said. “It was issued timely, just one business day after the argument Friday, and it adopts the receiver’s recommendation completely.
“It’s pretty much everything we could have hoped for.”
Lomio noted that the order does not set a deadline for the state to come into compliance with the order, instead mandating the receiver and prison officials submit a plan for meeting the requirements of the order within the next two weeks and include a deadline in the plan for when staffers must be vaccinated.
“That’s one area where we’re going to have to continue to monitor to make sure that poor implementation doesn’t gut the mandate,” she said.

Here’s the order in all its glory. Importantly, Judge Tigar fashions the mandate as the remedy for an Eighth Amendment violation, finding that CDCR has acted with deliberate indifference regarding the health and safety of incarcerated people. This is a big victory for incarcerated people, their families, advocates, and lawyers who have fought for this for almost two years.

It’s very late in the game – I wish we hadn’t wasted so many precious months on gentle persuasion efforts at people who cannot be swayed – but it’s better than never. The timing is appropriate – the worrisome North Kern outbreak has been linked to a staff member. Stay tuned for reports on compliance or lack thereof.