Category: Covid -19

In the heels of its two previous reports (see 1 and 2), and just in time for Round 2 of litigation in In re Von Staich (to assess whether an evidentiary hearing is required to modify the original order) comes the much-anticipated Part 3 of the Office of the Inspector General’s review of CDCR’s (mis)handling of the COVID-19 disaster. The report, which you can read in full here or peruse the fact sheet, is a scathing narrative of how CDCR botched the transfer from CIM in Chino to San Quentin and Corcoran prisons, bringing about the worst prison medical disaster in the United States. The report does not mince words: It is titled California Correctional Health Care Services and the California Department of Corrections and Rehabilitation Caused a Public Health Disaster at San Quentin State Prison When They Transferred Medically Vulnerable Incarcerated Persons From the California Institution for Men Without Taking Proper Safeguards.

The executive summary reads as follows:

Our review found that the efforts by CCHCS and the department to prepare for and execute the transfers were deeply flawed and risked the health and lives of thousands of incarcerated persons and staff. Insistence by CCHCS and the department to execute the transfers and subsequent pressure to meet a tight deadline resulted in the California Institution for Men ignoring concerns from health care staff and transferring the medically vulnerable incarcerated persons, even though the vast majority had not been recently tested for COVID-19. With outdated test results, the prison had no way to know whether any of the incarcerated persons were currently infected with the virus. According to email conversations that we reviewed, a California Institution for Men health care executive explicitly ordered that the incarcerated persons not be retested the day before the transfers began, and multiple CCHCS and departmental executives were aware of the outdated nature of the tests before the transfers occurred.

In addition to the department transferring the medically vulnerable incarcerated persons despite outdated tests, prison health care staff conducted verbal and temperature screenings on multiple transferring incarcerated persons too early to determine whether they had symptoms of COVID-19 when they boarded the buses. As a result, some of the incarcerated persons may have been experiencing symptoms consistent with COVID-19 when they left the prison. The risk of placing some symptomatic incarcerated persons on the buses was exacerbated by another inexplicable decision approved by CCHCS executives to increase the number of incarcerated persons on some of the buses, thus decreasing the physical distance between them, and increasing the risk that the virus could spread among the incarcerated persons and staff on the buses.

Once the incarcerated persons arrived at San Quentin, nursing staff immediately noted that two of the incarcerated persons arrived with symptoms consistent with COVID-19. Nonetheless, the prison housed almost all of the incarcerated persons who arrived from the California Institution for Men in a housing unit without solid doors, allowing air to flow in and out of the cells. By the time the prison tested the incarcerated persons for COVID-19, many of those who tested positive had been housed in the unit for at least six days. The virus then spread quickly through the housing unit and to multiple areas throughout the prison. The prison’s inability to properly quarantine and isolate incarcerated persons exposed to or infected with COVID-19, along with its practice of allowing staff to work throughout the prison during shifts or on different days, likely caused the virus to spread to multiple areas of the prison. According to data the department provided to support its COVID-19 population tracker, by the end of August 2020, 2,237 incarcerated persons and 277 staff members became infected with the virus. In addition, 28 incarcerated persons and one staff member died as a result of complications from COVID-19. In contrast, Corcoran, likely because it is a much newer prison consisting mostly of cells with solid doors, experienced a much smaller outbreak. An animated graphic displaying the progression of the COVID-19 outbreaks coursing through the various housing units at San Quentin and Corcoran after the transfers had been effected can be viewed on our website at www.oig.ca.gov.

Our review also found that when staff became aware of the positive test results shortly after the incarcerated persons arrived, both prisons failed to properly conduct contact tracing investigations. According to San Quentin, there were too many positive cases over a short period of time to conduct contact tracing. In addition, Corcoran staff failed to identify any contacts other than those living in cells adjacent to those of the incarcerated persons who tested positive. By failing to thoroughly conduct contact tracing, the prisons may have failed to alert some close contacts of the infected individuals, increasing the risk of further spread of the virus.

The report determined that the COVID-19 tests for almost all of the 122 men who were transferred to San Quentin were more than two weeks old by the time of transfer:

The report reproduces emails of directors and administrators within CCHCS who explicitly denied the staff’s requests to test the men before the transfer:

One nurse administrator documented the fact that two people on the bus were already symptomatic but were ordered to go on the bus anyway:

Symptom-checking was conducted too soon to be useful:

After a devastating section recounting how CCHCS administrators opted to transfer people in the bus without social distancing because “the benefit of a more rapid move in this specific situation appears to outweigh the risks” (p. 39), the report covers ground we already know–the failure at Quentin to properly isolate the newcomers. The report does not go into the interaction between the Marin county officials and the prison officials, which make the picture even bleaker. It also explains why a similar calamity did not occur at Corcoran: “Compared with San Quentin, Corcoran is a modern prison with a design better suited for quarantining and isolating incarcerated persons. Because the prison’s housing predominantly consists of cells with solid doors, Corcoran was able to place all arriving incarcerated persons in cells with solid doors. Doing so likely significantly reduced the spread of the virus at the prison, as only two of the 67 incarcerated persons who transferred from the California Institution for Men contracted the virus after the transfer” (p. 42.) Against this backdrop, the location chosen to house the newcomers seems even more disturbing–the report includes images of mesh doors in the South Block unit, also known as the Badger unit.

One aspect of the report that seems especially important is the repeated reference to the fact that the prison authorities were aware of the risks they were taking. The email chains reproduced in the report are truly damning in terms of their evidentiary power. This matters because prevailing in a lawsuit about prison conditions requires not only negligence, but a higher standard known as “deliberate indifference.” This requires proving that authorities were aware of the risk they were creating and decided to act anyway. Seeing how this awareness permeated all levels of command within CDCR/CCHCS offers proof of deliberate indifference, and it is hard to think, given the actions of the prison once the newcomers were there, that they could show anything in mitigation.

Obviously, this has crucial legal ramifications for Von Staich, Ruiz, Hall, and beyond, so CDCR/CCHCS have issued a joint statement, according to which they “disagree with the information” in the report. This is nonsensical. One can disagree with an opinion, but to “disagree” with information? The information is either true or not true, and in this case it’s rather obvious it’s true, as the emails are screenshot and reproduced verbatim in the report. We know what happened, we have obvious, factual truth that they knew and chose to disregard the risk, and no milquetoast “disagreement” is going to change that.

Beyond the obvious, today has been auspicious in a personal way, too. I’m elated to share that my book with Chad Goerzen, FESTER: Carceral Permeability and the California COVID-19 Prison Crisis, is under contract with the University of California Press. This will be my fourth book (after Cheap on Crime, The Legal Process and the Promise of Justice, and Yesterday’s Monsters) and my third with UC Press. It will also be Chad’s first book. Chad is a superb research engineer and data scientist with the San Jose State Research Foundation and my partner of 17 years.

The book will bear witness to the COVID-19 catastrophe in California Prisons and will feature multiple sources and research methods. We rely on archival and journalistic sources, oral histories and interviews with people who experienced the crisis, and quantitative modeling and analysis of data from CDCR, the New York Times, the L.A. Times, and the BSCC.

The theoretical framework of the book–the concept of carceral permeability–relies on a synthesis of carceral geography, situational crime prevention, and prison health scholarship.

We are hard at work on the book and hope you will have it in your hands, at the latest–COVID and our son’s preschool permitting–in early 2024. In the meantime, you can continue to read about this catastrophe on this blog, or follow the book on Twitter using the hashtag #FESTER.

Late last week I received the second joint request by the parties in In re Von Staich to reschedule the deadline for briefs. The parties cite workload and other pressing cases. Given the inscrutability of the California Supreme Court decision, I bet no one knows exactly what to write; remember, the Court remanded the case to the Court of Appeal with instructions to “reconsider the cause in light of People v. Duvall“–in other words, to reconsider whether an evidentiary hearing is necessary.

But what does an evidentiary hearing even mean at this point? Litigation thrives on dissecting the wrongs of the past, based on an unchanging (if disputed) set of facts. COVID-19 is anything but unchanging. When we held our press conference outside the main gate at Quentin, and when I filed our amicus brief in Von Staich in August, San Quentin was amidst the most serious outbreak in the country; UCSF doctor Peter Chin-Hong referred to San Quentin as “the Chernobyl of COVID-19.” Even in September, when oral argument took place, Justice Kline understandably bristled at CDCR representative Kathleen Walton’s argument that there was “no need to act hastily.”

And now? Look at this morning’s snapshot from the CDCR infection ticker. Every single prison has cases, but not all places are alike. San Quentin has only four active cases; like a few of the prisons who had horrific outbreaks just a couple of months ago, it is not a hot spot. By contrast, some of the places that were COVID-free for months are now seriously afflicted. Disturbingly, one such place is CMF in Vacaville, which is a medical facility with large numbers of aging and infirm people and was one of the initial vaccination grounds. This just came in from one of the activists helping people at CMF:

On December 11, the number of positive cases at CMF was 2. On December 12, the prison went under lockdown. Within five days, the number of cases had risen to 58. As of last night (1-17), the number of positive cases on the tracker was 260 (about 13% of the population). At the height of the outbreak, the total was 463. In all, 520 people (about 26% of the population) have been infected, and seven have died. Also, there was not a single drop in numbers until 1-6, 25 days into the outbreak, with the numbers going up as much as 50 or 58 in a single day on a few occasions.

Before the outbreak began, reports from incarcerated people and their loved ones of correctional officers refusing to wear masks and the incarcerated population not having access to cleaning supplies had persisted for months. Additionally, some incarcerated people have said that they had not been given new masks when their old ones wore out to the point of being ineffective–until 12-24, that is (a whole 12 days into the outbreak), when new masks were finally distributed.

Since the outbreak, we have heard horrific accounts of conditions inside. D- dorm at CMF is currently being used as a triage / Covid positive dorm. The dorm was formerly used to house the dogs that were part of the Paws for Life program. The dogs were removed shortly after the start of the pandemic, and the dorm was not cleaned prior to being used for quarantine. It is filthy. There are no porters available to clean because they are all sick with covid. Staff are not stepping up to help clean, and the few incarcerated who are well enough to clean are not being given adequate cleaning supplies. Laundry is not being picked up. The strain of covid that is moving through CMF is causing severe diarrhea. Several people have soiled themselves and do not have access to clean clothes. Each person is only being given one roll of toilet paper per week. This is nowhere near enough for those experiencing diarrhea.

Nurses are refusing to go bed to bed to check on people. They expect sick and bedridden people to line up in the middle of the dorm to have their vitals taken, with the result that the people too ill to get up are being missed completely and not getting help when their conditions become life-threatening. Around the end of December, a man fainted and defecated on himself. When medical staff refused to respond to calls for help, other incarcerated people in the dorm, who were themselves ill, cleaned him up and carried him to his bed before he was finally taken to an outside hospital. In a similar incident, a man fainted and was refused medical attention for hours before finally being carried out on a stretcher. Staff are hesitant to call ambulances because they are concerned about how it will look with regard to the Plata litigation. Correctional officers tell the nurses to call for ambulances, and the nurses ignore them. They would rather refuse to get people the proper medical attention they need than make it look like they’re incapable of caring for them at the prison.

The incarcerated who are too sick to cook for themselves are still being given raw vegetables like onions, on top of the already deplorable food situation. Food amounts are proportionally small, not enough for an adult. Some correctional officers are not wearing masks or refusing to wear them properly. Many refuse to wear gloves. Some are moving around from positive to negative units, socializing with other COs. Many believe this is intentional for the purpose of spreading the virus around the prison. People who are sick are not being given access to over-the-counter medications, and only a select few are being given antibody treatments. The incarcerated have been moved from one area to another in hopes of containing the virus. This, apart from being completely ineffective, has presented additional problems of loss of property.

Access to phones has been restricted drastically, so families are not in contact with their loved ones to know what is going on. The hearing impaired are further restricted, as they are barred from the specially-equipped phones they would normally use. In fact, phone use was completely suspended on 12-21 in part of the prison on the grounds that this was the cause of the spread. Quite apart from being untrue, this had the effect of further restricting people\’s access to their loved ones, which was severely detrimental to the mental health of all involved until the restrictions were modified. The disabled population at CMF, who are supposed to have assistance with various daily living tasks from other incarcerated people (people who are employed to do this specific job as their work assignment), have seen this help severely hampered by the outbreak. People with disabilities are required to be accommodated under the Americans with Disabilities Act, and no alternative accommodations for the disabled at CMF have been offered.

Many of the population at CMF are over 60, and many have medical conditions such as diabetes, AIDS, and high blood pressure–all of which put them at higher risk of serious complications if they were to be infected with covid. Some are already being held in a hospice unit due to terminal illnesses. Some have covid risk scores, as defined by California Correctional Health Care Services (the office responsible for healthcare in prisons after conditions were declared unconstitutional), as high as 16. Hospitals in some parts of California have already begun to turn away the incarcerated, and many are talking of rationing medical care. If they do, they will deny treatment to those they deem to be less likely to survive a covid diagnosis. This would be catastrophic for anyone from CMF in need of hospitalization. There is a dorm at CMF that holds 21 wheelchair users. There are not enough wheelchair-accessible single cells to facilitate the quarantine of these people, resulting in the spread of the virus through this dorm. Poor ventilation within the prison is also a facilitator of the spread.

I don’t know how the parties in Von Staich are going to pretzel their arguments around the shifting map of COVID, and because this is a blog, not a courtroom, I’ll be brutally honest. The vagueness of the Von Staich remedy (strongly urging CDCR to release aging and infirm people, but explicitly stating that transfers are a viable path to compliance too), coupled with the moral paralysis at the governor’s office and at CDCR, led to a situation in which the “relief” that CDCR was willing to provide–i.e., transfers from Quentin to other prisons–was worse than no relief at all. People wrote to me from inside saying that programs they deeply cared about, which are not offered anywhere else in the system, were going to be denied to them; others wrote and said that there was historical bad blood between Quentin people and people in other prisons, compounded with its identification at the time as “the COVID prison” and that they were worried of retaliation if transferred elsewhere. In the Marin consolidated cases, the AG representative, Denise Yates, twisted this to argue that “petitioners can’t have it both ways.” I lost sleep wondering if our big win in Von Staich hadn’t made matters worse for everyone (Von Staich himself was released from CDCR, and immediately found himself ensnared in the federal court system via an ancient Bureau of Prisons hold from before his incarceration in 1981, which in itself raises serious questions.) We’re seeing the Achilles heel of trying to litigate this horror via state courts, which have jurisdiction only over a particular prison based on district.

Are we faring better in federal courts? The federal system has been the classic venue for prison litigation, but its ability to do something has been seriously curbed by the PLRA. As Margo Schlanger shows in her 2015 article, case filings took a serious nose dive after the PLRA’s enactment in 1996 and never bounced back, while prison and jail populations (and, subsequently, problems and grievances) continued to grow.

We are seeing the fruit of this problem in Plata v. Newsom. In my recap of the last case management conference I quoted Judge Tigar, who said, “if I could let people out I would do it today,” but “my view of the law is that I’m not allowed to do that.” I was not entirely clear, during the conference, how much of this is Tigar’s analysis of the extent to which his hands are formally tied by the PLRA–he has shed tears more than once over the COVID prison crisis, including at its initial statement–and how much of this is his judicial psychology of catching flies with honey by bringing CDCR and the CCPOA on board. And now we learn, per my source at CMF, that the need to perform compliance for the purposes of the Plata litigation is obstructing, in horrible ways, actual compliance that can save lives.

Where does this leave us? When dealing with bad faith and obfuscatory antics, there’s very little point looking for justice in places that champion gentleness and restraint. Vague remedies that allow transfers, rather than just releases, invariably and immediately lead CDCR to embrace transfers as their go-to strategy, and then use the ensuing horrors to come to court, shrug their collective shoulders, and say, “but we thought that’s what you wanted!” Petitioning and cajoling the governor, unsurprisingly, is not nearly as effective as ordering him to release people would be. Documentation amasses, judges and parties complain about caseloads and information overloads, and in the meantime people continue to die.

Speaking of the ultimate horror, I neglected to report on the first wrongful death suit filed against CDCR, on behalf of the survivors of Daniel Ruiz who died at San Quentin. Here is the full claim:

Claim Form.govt Code Claim.091020 by hadaraviram on Scribd

The claim articulates the facts of the San Quentin disaster as we already know them, with an extra wrinkle of cruelty: “Due to the policies promulgated and enforced by [CDCR, the hospital and medical personnel] were prohibited from informing [Ruiz’s] family. . . that he was there, or gravely ill, or dying from COVID-19. Respondents denied Daniel any contact with his family for many days, until shortly before he died.”

I initially thought that the heartlessness and trickery of the AG’s office was an effort to preempt an avalanche of wrongful death lawsuits and the prospect of high amounts in damages. But securing a law firm that can litigate a case like this, even on behalf of one person, is a tall order, especially for people who are impoverished already and trying to survive in the pandemic. The result is that even this path makes it a steep uphill battle to seek redress or make any changes.

The only thing that can make a dent in this crisis is an initiative to release aging, infirm people en masse. But the good will necessary for this is not forthcoming. The very people nationally hailed as heroes of the anti-Trump resistance have consistently defended untold villainy on the local stage, resulting in horrific sickness and death. This is something to ponder as we dance around the Trump Administration’s funeral pyre tomorrow.

Today, Judge Tigar held a two-hour case management conference in Plata v. Newsom to discuss the latest developments as described in the joint case management statement. On the agenda were specific issues such as vaccination plan and staff compliance, but in the background loomed the basic problem: the solution to this catastrophe is a mass release but none is forthcoming.

The conference opened with CCHCS Receiver Clark Kelso offering an overview of the vaccination progress and plans. So far, in skilled nursing facilities, they have vaccinated 2300 incarcerated people. In combination with people who recently had COVID, they are approaching 80 percent coverage in these institutions. The good news are that the refusal rate is very low–between 8 and 10 percent–especially compared to previous vaccination campaigns such as flu vaccines. In response to Judge Tigar’s question, Mr. Kelson explained that they will have a full documentation of the refusals.

Judge Tigar’s next questions were an effort to find out how far CDCR/CCHCS were from vaccinating the entire COVID-naive population behind bars, assuming that appropriate vaccine dosage would be available. Kelso explained that the next step is to offer the vaccine to everyone aged 65 and up (2000 people, if you exclude people who have been infected.) After that, the next priority would be people who have not been infected with COVID and have risk scores of 3 and above (CCHCS uses a scale based on CDC risk assessment, where they assign points to preexisting conditions.) Kelso estimated that this group–approximately 5200 people–could be vaccinated in about 7 days. The next scenario would be to tackle 42,000 people–the remaining people in CDCR custody who have not been infected–which would realistically take about 4 weeks. The severe nursing shortage was mentioned, of course.

The problem, as I explained in a previous post, is not buy-in from incarcerated people but from staff. Kelso explained that, so far, they have vaccinated 19,351 staff members, out of which 110 have received the second dose. In the three skilled nursing facilities, staff buy-in is 95% and full vaccination will be completed in a few days. The percentage of compliance among the staff is declining, and even though no one at the hearing provided a breakdown, it was widely assumed (probably with good reason) that the problem is with custody staff rather than with health care professionals.

At that point, Judge Tigar talked about the elephant in the room: the institutional unwillingness to take the obvious best step, which would be releases. “I have sometimes become emotional when discussing this,” he said, referencing the previous hearing, in which he mentioned people who died by name and showed their pictures. He said that he “cajoled and begged the governor to release significant numbers beyond the current numbers so we can avoid unnecessary sickness and death. So far these requests have, again, with all appreciation for the efforts that have been made, fallen on deaf ears. The consequence is now becoming more apparent. COVID has spread more easily than it had to, and we’ll never know for sure, but there is unknown number of people who got sick and died who didn’t have to.” Judge Tigar highlighted the importance of granting people the good time credits they are unable to earn because of the lockdowns, saying that “we’re overincarcerating and doing worse precisely when we were supposed to do later.” He also pointed out that he “[could not] overemphasize the need to release elderly infirm people. There is an alarming increase in deaths” (56 since the previous case management conference) and “we must ensure it does not continue. I take this case personally. I asked CDCR to send me the records of all the inmates from CMF and CHCF who died from COVID since the last CMC. The vast majority were elderly.” Judge Tigar was visibly emotional when describing incarcerated people who have to use commode chairs when going to the bathroom–and “when the virus came, they were defenseless, and they died.”

Judge Tigar then pressed CDCR counsel Paul Mello on whether the “primary reason” for the alarming infection rates was people’s refusal to move to safer housing. Mello replied that “in some instances people aren’t moved quickly enough but [refusal] appears to be the primary reason.” Judge Tigar urged to increase education, so that people “may appreciate the efforts being made to protect them.” This, again, led to the discussion of the thorny problem of the staff: refusals to wear masks and get tested. Judge Tigar probed as to what the reasons might be, getting very little input from the parties (here on the blog, I’ve looked into the twisted priorities of CCPOA, as well as at the possibility that the rank-and-file, like the rank-and-file of other law enforcement orgs, is a hotbed of Trumpist COVID denialism. I have searched high and low for surveys of correctional officers’ political opinions and found none.)

Even in the face of all this, Judge Tigar insisted that he is not yet at the point at which the PLRA enables him to release people pursuant to a finding of “deliberate indifference.” “if I could let people out I would do it today,” he said, but ” my view of the law is that I’m not allowed to do that.” The plaintiffs, of course, disagree, but Tigar seems very convinced that, legally speaking, his hands are tied, which he says is a “source of incredible frustration” to him. While he is not ruling out a future finding of deliberate indifference, he says, “we’re not there yet.”

While listening to the hearing, I was trying to ponder what was behind this sense Judge Tigar had that his hands are tied. Partly, it seems to stem from his reading of the PLRA, and partly from what seems to be his judicial psychology of this case, according to which “litigation is a very bad way to resolve this… communication is the right way.” A case in point was his effort to get to the bottom of the staff noncompliance. Tigar made an effort to get everyone on board: “Everyone doesn’t like low staff testing rates. We need to get them as high as possible. Why are they where they are to begin with?”

At this point, he turned to the CCPOA representatives, the union lawyer David Sanders and labor attorney Gregg Adam, in an effort to get the union’s collaboration at “[a] moment when CCPOA can become an invaluable partner if they want to, to keep their brothers and sisters safe.” This opportune moment, in my opinion, was ten months ago, but okay. Judge Tigar hammered home the need to get complete buy-in from the leadership: “If the captain says you have to wear a mask, then you have to wear a mask, no exceptions. If that becomes policy, that is how this is going to work.” The back-and-forth between the judge and union counsel offered another insight into Judge Tigar’s cooperative psychology: he told them that the benefit would be that compliance orders from above “create[s] an environment where you can publicly take the position that you don’t like masks but I wear one because I have to, because I don’t have a choice. If leadership is uniform, it creates a position where it is much easier for staff to be uniform. Consistent, off the job too. I’ve been hoping that CDCR/CCHCS would create videos for staff using staff. I asked and asked and asked more than you will ever know. Then I gave up. Then they did it and they’re great, I just saw them yesterday. Your staff will see them. And they make this point. You can’t be in the car with your friends driving to work or going to someone’s backyard thinking, I know these guys. COVID doesn’t care who your friends are. Need to wear is the same, on and off. On that level. [high command gives] order to do on job, expect[s] [compliance] off job, do it myself.”

One of Judge Tigar’s ideas was to solicit a volunteer in each prison who is “down with the goal” to report to a member of Kelso’s staff who “comes from custody and speaks the language.” He also seemed to set a lot of store by Prof. Amy Lerman of the Goldman School, regarding correctional culture and fostering compliance (this is good news, because insights into correctional culture is what we need.) Happily, Adam, one of the CCPOA representatives, also seemed to have respect for Lerman and also mentioned that they were planning to speak to Prof. Elizabeth Linos (whom Tigar referred to as the “persuasion guru” about compliance strategy. At that point, CCPOA counsel Sanders offered what seemed to me a very partial and revisionist history of CCPOA’s involvement in this issue, presenting CCPOA as the great champions of the original Plata release order, both because of the safety of their own employees and because they apparently thought that it was “morally and professionally wrong, what happened in our prisons – warehousing human beings and literally seeing them die because of conditions.” None of this explains why CCPOA, in the same breath, invested 4 million dollars in punitive propositions just in the last elections, while their own members were dying of COVID, or why they are suddenly in a rush to jaunt to Vegas amidst all this, but okay. Another thing we learned from Sanders is that Tigar’s exhortation to model good conduct would likely go nowhere because “we don’t represent captains” and because “sergeants and lieutenants don’t have collective bargaining power.”

At this point, when the conversation turned to isolation and quarantine, the hearing again touched on the heart of the matter. In the previous status conference, the plaintiffs asked that CDCR comply with the Receiver’s directives, but as infections and deaths soared, they changed tacks and asked that CDCR procure vaccinations for everyone. Mello’s reaction to this request was to resort to legalese: not only did they get the request too late, he said, “we think an order will be unnecessary and will constitute undue intrusion on authority.” There are also practical hurdles, he explained, and CDCR was not out of line by addressing this within the confines of current CDC health directives. Getting back to the PLRA hurdle, Mello opined that the plaintiffs face an uphill battle showing deliberate indifference with expert testimony.

While Tigar did not lose his temper–and seemingly agreed with Mello about the legal point–he clearly found the resort to legalese somewhat tasteless. “I think about this in a simplistic way,” he said, “I heard Mr. Kelso say that he needs 40,000 doses to get the job done. Two and a half million doses have already rolled in to the state. 40,000 is couch cushion money. Do we think that the governor can shake 40,000 doses loose? We can litigate this, and by the time the litigation will be resolved, this will be a dead issue. There are things I can do to expedite matters, but I have a much simpler question. Do we think the governor could shake loose whatever the number is, 40,000 doses to protect the population that he has already recognized is defenseless, deeply in need of this vaccination, and because of the role of prison [in the larger infection story] greatly affect public health in a positive way? Do you think he would shake them loose if I asked him to?”

Sara Norman of the Prison Law Office responded with a moral call to action. “This is not litigation about vaccination,” she explained, “it’s about quarantine, hundreds of thousands quarantined with shared air, which has resulted in significant illness and death.” The solution, she said, “has been obvious”; releasing people “is their choice and they have continued to place our clieets, their patients, at significant risk of harm. . . We are now saying there’s another solution.” Vaccination of incarcerated people–mandated by virtue of their classification as 1.B.2. in the priority list–is “within [CDCR’s] reach, they can do it.” Norman ended by quoting Yoda: “Do or do not, there is no try. It is up to them to do it.”

I’m left with a lot of questions. First, when will someone tackle the elephant in the room–Trumpist COVID denialism among the staff? Second, is “shaking loose” 40,000 doses a mere issue of friendly persuasion of the Governor? Most importantly, if all the horrors of the last ten months have not persuaded Judge Tigar that the PLRA’s deliberate indifference standard has been met, what is it going to take?

As the first part in the blog’s vaccine education campaign, and following up on yesterday’s post, I’m very happy to offer you a Frequently Asked Questions document created by Drs. Leah Rorvig and Brie Williams with medical/scientific information about the COVID-19 vaccine from a source that 100% wishes you well and you can trust. Drs. Rorvig and Williams are active members of AMEND, the physician organization that issued the memo urging San Quentin to reduce its population to 50% of design capacity. Here goes:

COVID-19 Vaccines: The Basics

• Vaccines teach the immune system how to recognize and fight off the virus that causes COVID19, which can prevent vaccinated people from getting sick. Vaccines are not used to treat
  people who are currently infected with COVID-19.
• There are currently two vaccines available in the United States – one made by Pfizer and one
  made by Moderna
• The vaccines are both 95% effective at preventing illness due to COVID-19
• The vaccines have now been administered to millions of people and have a strong record of
  safety
• While the vaccines were developed in record time, they have gone through all of the same
  steps required of any vaccine before it can be approved for use
• Both vaccines have two doses, either three weeks apart (Pfizer) or four weeks apart (Moderna)
• The vaccine is given as a shot in the upper arm

Is the COVID-19 vaccine safe? Should I worry that the vaccine was made so quickly?

• Both vaccines were found to be safe and effective in tens of thousands of adults (including Bla
  and Latinx people) who participated in high quality research – the same research that any new
  vaccine or medicine must undergo before being approved.
• Both vaccines were reviewed faster than normal, but this is because so many people are getting
  sick and dying of COVID-19 that it is considered a national emergency.
• Both vaccines have been authorized by the FDA (Food & Drug Administration) and the
  California Department of Public Health.
• In the U.S. alone, more than 5 million people have now received at least one dose of a COVID19 vaccine.

Has anyone died as a result of the COVID-19 vaccine?

• No one has died from the COVID-19 vaccine. More than 350,000 Americans have died from COVID-19.

What are the possible side effects of the vaccine? Should I be worried about them?

• The most common side effects of the vaccine are arm soreness, tiredness, headache, muscle
  pain, chills, joint pain, and fever. These side effects are more common after the second dose of
  the vaccine and – if they occur – usually resolve within 2 days.
• These symptoms are normal and they are a sign that your body is building protection against
  the virus that causes COVID-19.
• Among the millions of people who have now received the vaccine, a very small number of
  people have experienced severe allergic reactions to COVID-19 vaccines. If you have ever had a severe allergic reaction to a vaccine or other substance in the past, you should discuss this with
  the health care professionals giving you the vaccine.

The COVID-19 vaccine is an mRNA vaccine. Does that mean it changes your DNA (also called your genetic code)?

• The Pfizer and Moderna vaccines both use “messenger RNA” (also called mRNA) to teach the
  cells in your body to recognize the outside part of the virus that causes COVID-19. That way, if
  you are exposed to the virus, your immune system will stop it from making you sick.
• The COVID-19 vaccine does not change your DNA. mRNA is not the same as DNA, and it
  cannot combine with your DNA to change your genetic code.

Can I get COVID-19 from the vaccine?

• No. Because of how the vaccine works, it is impossible to get COVID-19 from the vaccine. However, the vaccine prevents 95% (and not 100%) of COVID-19 cases. Even if you have been vaccinated, if you have a cough, fever, or other symptoms, then there is a chance you could have COVID-19, and you should ask to speak to medical staff right away.

I have hepatitis C and/or HIV. Is it safe for me to get the COVID-19 vaccine?

• Yes. It is safe for people with hepatitis C and HIV to receive the COVID-19 vaccine. There are very few medical reasons not to receive the COVID-19 vaccine.

Do I need to keep wearing a mask after I receive the COVID-19 vaccine?

• Yes. Unfortunately, even people who have had the COVID-19 vaccine may be able to get infected, and although the vaccine protects them from getting seriously sick, they may spread COVID-19 to others. (We do not know how common this is yet.) Until the majority of people have been vaccinated against COVID-19, everyone needs to continue wearing masks, practicing physical distancing, and frequently washing their hands.

If I already had COVID-19, do I need to get the COVID-19 vaccine?

• COVID-19 vaccination should be offered to you even if you already had COVID-19
• COVID-19 vaccination has been shown to be safe in those who have already had COVID-19
• Right now, research shows that reinfection with the virus that causes COVID-19 is incredibly rare in the 90 days after you first get sick with COVID-19. Therefore, the vaccine should be offered to everyone, although some health systems are currently prioritizing patients who have not already had COVID-19 while the vaccine supply is very limited.
• You should not get the vaccine if you are currently sick with COVID-19.

Is the COVID-19 vaccine mandatory (required)?

• No, there is no mandatory vaccination requirement from either the state or federal government. While vaccine doses will be limited in supply at first, public health officials – and the team at AMEND at UCSF hope that by telling people about the safety and effectiveness of the COVID-19 vaccines, we can encourage people to voluntarily take the vaccine. The AMEND team is all planning to get the vaccine and some of us have already gotten it!

I got the COVID-19 vaccine because I want things to go back to normal. When will that happen?

• We don’t know when enough people will be vaccinated so that things will go back to normal. But the more people that are vaccinated inside and outside of prison, the sooner things will begin to return to normal. Also, when you get the vaccine you protect other people around you by making it less likely for them to get COVID-19.

Did AMEND staff get the COVID-19 vaccine?

• Yes. All of the AMEND team members who see patients already have received the COVID-19 vaccine.
• Other AMEND staff will receive it as soon as it is available to them.

I heard the guards/officers, health care staff, or warden at my facility are refusing to get the vaccine. If they aren’t getting it, why should I?

• There are many reasons that people are afraid to get the vaccine. These include a lack of knowledge about the safety and effectiveness of the vaccine, a lack of understanding about COVID-19 itself, a long history of mistrust of the medical system, and more. We encourage you to empower yourself to learn as much as you can about the COVID-19 vaccine. It is important that you make your own decision about getting the vaccine regardless of what other people are doing. The team at AMEND and our partners on this FAQ all support vaccination. See above for a complete list of our partners.

I still have more questions, what should I do?

• You can ask your friends or family to get more information about the COVID-19 vaccines at these trusted sites:
  • https://covid19.ca.gov/vaccines/
  • https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html
• To learn more, you can also call the Transitions Clinic Network Reentry Healthcare Hotline to speak to a community health worker with a history of incarceration. Toll free, M-F, 9-5pm. Call: 510-606-6400.
• If you or your loved ones have additional ideas for questions that we can answer on this information sheet, please email us at info@amend.us or write to Amend, 490 Illinois St, Floor 8, UCSF Box 1265, San Francisco, CA 94143.

References

• Centers for Disease Control and Prevention: COVID-19 Vaccination
• https://www.cdc.gov/vaccines/covid-19/info-by-product/clinical-considerations.html
• https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html
• State of California COVID-19 Vaccine Information Center https://covid19.ca.gov/vaccines/
• UCSF COVID-19 Vaccine Information Hub https://coronavirus.ucsf.edu/vaccines

A few weeks ago, when I pushed to prioritize prisons in California’s vaccine plan, I identified two serious problems: historically understandable mistrust of CDCR by the incarcerated population and COVID-19 denialism among prison staff. Earlier this week I participated in an extremely informative call with lawyers, AMEND doctors, activists and advocates, regarding the progress of CDCR’s vaccination program, the upshot of which is: The staff is the problem.

Here’s a quote from an email sent by the excellent Sara Norman of the Prison Law Office:

The State is currently vaccinating people in Phase 1A, which is three million people; they only have about two million doses so far, though, and have only vaccinated about 500,000.  Phase 1A includes people in long-term care facilities and some frontline medical workers, which in CDCR means people incarcerated at CCWF skilled nursing facility, CMF, and CHCF (all of which are in the middle of their first serious outbreaks) and some staff at all the prisons.  So far, we know that at least 1200 incarcerated people have been vaccinated (first dose).  As I mentioned on the call, CCHCS (the federal Receiver who runs health care in CDCR) expects to offer the vaccine to everyone at those three prisons within the next week or two. 

Our understanding is that at some point today, the California Department of Public Health will officially post the Phase 1B, Tier Two vaccine eligibility list, which will include all people who are incarcerated.  Statewide, there are about eight million people in Phase IB, counting both Tiers 1 and 2.  We are told that CCHCS expects to receive vaccine to start its Phase IB work in about 10 to 14 days. 

Sara added a few important points in her overview on the phone call. The acceptance rate among incarcerated people was not 100%, but it was quite high; as of Tuesday, 1227 vaccines were offered and only 108 were refused (this is a considerably higher rate of compliance than the rate in the general population.) The PLO spoke to the people who refused and identified some problems with vaccine education and communication, which should not surprise you if you’ve read this post.

The vaccination plan at CCWF, CMF, and CHCF is quite ambitious–they plan to offer the vaccine to every single person at these facilities in the next few days. The challenges they face involve serious nursing shortages. Not only do they need medical personnel to administer the vaccines and care for the sick, but they need to check vitals for the thousands of isolated people twice a day. The strain on the nurses is incredible, but they are forging through with the plan, including exhortations and threats of dismissal from Shereef Aref, the Chief Executive Officer of CCHCS. Paige St. John of the Los Angeles Times reports:

“A refusal to a mandate is insubordination,” Dr. Shereef Aref wrote. “It is not acceptable and it will not be tolerated.”

First refusals will result in a write-up, Arf wrote. “A second refusal will be referred, as a request for Adverse Action, to the Hiring Authority.”

One prison medical worker, who spoke anonymously out of fear of losing her job, said the stress was intense.

“Nursing staff [have] children out of school; to be away 16 hours not including walk time to the parking lot and drive time home could add up to 18 hours a day,” she said. In many cases, both spouses work at the prison. “It’s stressful. There is no such thing as ‘social distancing’ in prison.

“Also, the office staff have masks, but if you go on a housing unit, very few have masks because of the scarcity. … We are confused as to why they seem to have masks for administrative posts.”

She added, “Oh, and an inmate committed suicide yesterday. And two officers committed suicide in March.”

The Prison Law Office personnel were told that other incarcerated people, particularly people who are under inpatient care, were next on the list, and that the plan would roll to other prisons in mid-January, prioritizing people according to a complicated COVID-19 risk algorithm, which highlights the need to target people who are “covid-naive,” i.e, who have not contracted COVID-19 in last 90 days. Among those people, the first to be offered the vaccine are at higher risk due to age, preexisting conditions, or both. Reportedly, no thought is being given to the differences between CDCR facilities who have and have not reached herd immunity the hard way. Nor has there been an effort to prioritize incarcerated firefighters, despite the obvious transmissibility reasons that put them at the top of the list for other vaccines.

But even these are minor problems compared with what is emerging as the most serious problem: the staff. Vaccines have been rolled out for staff at all institutions, prioritizing medical and frontline workers or people who work directly with patients, but generally the plan is to offer the vaccine to all staff throughout January and February. The administration of staff vaccination has been contracted out of CDCR/CCHCS to another organization. So far, 6,700 staff members have been vaccinated, most of them at CHCF and at CMF. However, there is disconcerting evidence of significant refusal rates among staff. Incarcerated people have heard rumors that 40% of staff members are refusing the vaccine. Also, in response to a CDCR survey, about 40-50% reportedly expressed reluctance about vaccination, citing reasons such as “I wanna wait and see what happens.” The people on the call were unsure whether there was any educational campaign targeted at the staff, nor did anyone seem to know whether CDCR, as employer, would condition employment upon vaccination. In case you’re wondering whether terminating vaccine refusers from employment at CDCR would be legal from an employment law perspective, the answer is: yes, it would be.

This distressing information suggests that the problem is not only with CCPOA leadership, who have been far more interested in spending millions on losing punitive voter initiatives than in the health of their membership, but also with the rank and file, where Trump-style COVID denialism seems to have found a solid foothold. Just this week, we had ample proof of what happens when vast ignorance, misinformation campaigns, and fetid ideologies come together, right? To my shock and amazement, in the face of thousands of their colleagues sick and twelve staff deaths, including two in December, prison guards are planning an excursion to… Las Vegas for a board meeting. Wes Venteicher of the Sacramento Bee reports:

The union for California state correctional officers has invited representatives from every prison to gather in Las Vegas for a board of directors meeting even as their institutions contend with surging coronavirus outbreaks.

The California Correctional Peace Officers Association’s board includes representatives from all 35 prisons plus some members who represent officers outside prisons, such as parole agents and officers who work at fire camps.

Also invited to the two-day meeting, scheduled for Jan. 26 and 27 at Caesar’s Palace, are roughly a dozen members of the union’s committees along with retired chapter members, according to a website set up for union members to make travel arrangements.

A dozen state prisons have reported more than 200 new COVID-19 infections among inmates in the last two weeks, and another six have reported more than 100 new infections. More than 2,500 prison employees have reported new infections in the last two weeks and about 13,000 out of 55,000 have contracted the virus since the start of the pandemic.

Most large in-person meetings have been canceled during the coronavirus pandemic due to concerns about creating “super-spreader” events in which an infection may be passed around and then spread far beyond the group when the gathering is over.

California has prohibited most in-person gatherings of more than one household, whether they are held indoors or outdoors, under emergency orders. Nevada permits gatherings of up to 50 people.

Glen Stailey, the union’s president, referred questions to a union spokeswoman when reached by phone Wednesday.

“These meetings are important to the association and its members as it relates to many topics including COVID-19 inside prisons,” CCPOA spokeswoman Nichol Gomez said in an email.

Gomez said the group would follow all Nevada and California state protocols and is “constantly evaluating the situation and will make decisions accordingly.”

Gomez did not respond to questions about how many of the members who have been invited plan to attend, nor did she say whether the members plan to get tested or quarantine before or after the trip.

Note that the quarterly meeting is typically held in Sacramento. Apparently, CCPOA leaders decided that early 2021 was the right time to party. If, as Gomez stated, the meeting “relates” to COVID-19 inside prisons, they don’t apparently mean “relates” as in “aims to prevent.” The risk that Christmas gatherings of COVID-denier staff members may be partly to blame for the horrific infection rate does not seem to have been considered. In the absence of any positive educational or other initiative from their employer or union, the only visible effort addressed at reducing COVID-19 denialism among correctional staff comes from our good friends at Amend SF. In the off-chance that you, dear reader, are a correctional staff member and are reading this and open to persuasion, please, in the name of everything that is holy, watch this and share it widely with your colleagues:

COVID-denialism among staff affects not only the odds of infection among incarcerated people, but also the messaging they receive from staff members. Several people with good friends and loved ones behind bars mentioned that their connections inside have heard correctional officers tell incarcerated people that they can die from taking the vaccine and that COVID-19 is not real.

In the face of this problem, and the dearth of efforts by CDCR to quash this ignorance, I have two proposals. The first involves health officers in all cities and counties surrounding prisons in California–people like Dr. Matthew Willis, Marin County’s top health official, who tried to stop this disaster and were sidelined and ignored. This is your moment. Please organize and liaise not only with the prisons in your respective counties and demand that they condition employment upon vaccination. Tell them that there is now quantitative data, some of which comes from our original research and some from the work of others, to show the impact of their neglect on your communities. These COVID-19 deniers among the staff are endangering you and the people who live in your county. Please get involved, as there is not a moment to lose.

The other proposal is mine, and its logic is simple: If the staff won’t do their part to protect incarcerated people, we need to raise the vaccination rate among incarcerated people as close to 100% as we possibly can. And so, dear reader, if you are a formerly incarcerated person–especially if you’ve only recently been released and you still have some good friends inside–I need your help. I can also use help from family members and loved ones of incarcerated and formerly incarcerated people. Please send me a short video you can film on your phone–make it shorter than a minute, so someone inside might be able to watch it quickly–in which you address the folks you know and care about inside. Be sure that your video includes:

• a bit of info about yourself: your name, anything you’d like to share, where you were incarcerated, and when you were released
• why you care about COVID-19 in prison: your worries and fears about your friends getting seriously sick
• explicitly state that you plan to take the vaccine when it is offered to you, and why
• encourage your friends to do the same when the vaccine is offered to them
• express compassion and empathy for the concerns and uncertainty they may have and counter it with solid facts and with your love for them

Email me your video to aviramh at uchastings dot edu. I will display it prominently, with a little intro about the specific facility where you know people, here on the blog.

Thank you very much for your collaboration–let’s save as many lives as we can together. As Rabbi Hillel said almost two millennia ago: If I am not for me, who will be for me? And when I am for myself alone, what am I? And if not now, then when?