Book Review: Karen Morin, Carceral Spaces, Prisoners and Animals

My two biggest research interests–criminal justice and animal rights–come together in Karen Morin’s new book Carceral Spaces, Prisoners and Animals (New York: Routledge, 2018.) Morin, a geographer by discipline, applies insights from carceral geography to both human and nonhuman confinement contexts.

Carceral geography is a growing area of scholarship that examines prisons through a lens of spatiality. Building on work by Michel Foucault and Giorgio Agamben, carceral geographers problematize the overly simplistic notion of prisons as carceral spaces, arguing that prison boundaries are porous and that carceral ideologies of domination through confinement permeate spaces beyond the prison–beyond the formal dichotomy between “inside” and “outside.” Some themes studied by carceral geographers include spaces within prison and how they affect the experience of incarceration (“public” and “private” spaces within the prison; the impact of prison on the body); the interface between prisons and surrounding communities (prison towns, family members, transportation); mobility within and between prisons; and prison architecture and design. Carceral geography is directly relevant to my current research project, which is a book in progress about the COVID-19 catastrophe in California prisons; I rely a lot on the idea of prison permeability, which brings together notions of carceral boundaries, logics of opportunity (for people and for the virus,) insights from situational crime prevention, and miasma theory. In addition to this, I’m deeply interested in animal rights, and am working on a project involving the criminal prosecutions of animal rights activists who break into factory farms to release suffering animals.

In many ways, my interest in liberating nonhuman animals is an obvious extension of my interest in alleviating suffering in prisons. But the comparison is socially fraught from many directions. I often hear prison reform activists and abolitionists criticize prisons for treating people “like animals,” as if treating animals this way is fine; I’ve also heard animal rights activists criticize experimentation on animals, proposing to experiment on prisoners instead (Justin Marceau criticizes the myopic assumptions of the latter phenomenon in Beyond Cages.) I’ve also had to contend with people who find the comparison deeply offensive. Morin is well aware of these emotional and political landmines and writes:

I recognize though that the politics and ethics of making comparisons between racialized and classed human lives and that of nonhuman animals in respective carceral spaces can be problematic and fraught. It is challenging for humans who are embedded in violent, racialized, and criminalized human histories and spaces to not be offended by posthumanist comparisons to animal suffering. As noted above, the category of ‘human’ is contested in any case, and it is important to not move too quickly ‘beyond the human’ without acknowledging the continued exclusion of many human lives from full incorporation within it. And yet thinking particularly about race and animals together is important, precisely because of the way that racialized people have been and continue to be animalized in carceral spaces (Chapter 3). Moreover, the carceral logics of domination are intertwined across human and nonhuman groups. To take one more example, as Deckha (2013b) has shown, animal anti-cruelty legislation has the double effect of selecting certain animals for protection while targeting the behaviors of certain minoritized populations of people as deviant and transgressive. Meanwhile, industrial practices involving the dominant culture – as well as the abuse and killing of most animals – remain immune from critique.

Morin, Karen M.. Carceral Space, Prisoners and Animals (Routledge Human-Animal Studies Series) (p. 15). Taylor and Francis. Kindle Edition.

This avenue is deeply productive, not only because the analogies and similarities are analytically interesting, but because solidarity across movements is essential for success. Morin’s analysis ties together the prison-, agricultural-, and medical industrial complexes, showing the intricate connections between them and the profit logics that underpin them.

Morin’s book proceeds to analyze a series of contexts in which she sees parallel developments between human and nonhuman carceral spaces. She compares execution chambers and slaughterhouses, discussing the notions of “humane” slaughter and of death sentences that are supposedly not “cruel and unusual.” She discusses the intersection of the medical and carceral spaces in the context of medical experimentation. She even asks difficult questions about prison boundaries when discussing zoos and supermax facilities. The book also makes an important contribution to two seemingly unrelated growing literatures: the one about forced labor in prisons and the one about the possibility and structure of labor rights for nonhuman animals. Throughout these topics, Morin shows deep sensitivity to the broader social structures that allow cruelty to persist.

My favorite part is Morin’s comparative analysis of prison towns and cattle towns. She shows how the introduction of an exploitative industry into a “company town” shapes the economy and the tenor of the entire town, without granting much in the way of economic benefit to the town itself (by contrast to the industry that exploits the town.) Morin doesn’t explicitly say this, but a big thing here seems the creation of a municipality that is collectively impermeable to compassion, which I think is a serious issue even when the industry is profitable.

We often talk about dehumanizing conditions in prisons. But perhaps the question is not whether or not we’re all human; the question that should matter is whether we are sentient and whether we suffer. A few years ago I read Michael Dorf and Sherry Colb’s Beating Hearts, which compares the logics of sentience underpinning the pro-life and animal rights movements and finds a way to reconcile them into a cohesive pro-choice and pro-animal perspective. I think there’s a way for advocates and activists to find peace with Morin’s comparison in a way that allows them to support both movements.

Morin admits that she has not analyzed all the scenarios that her comparison speaks to, and I found at least two that I would like to read future works on. The first has to do with the concept of overcrowding. Morin discusses issues of caging in depth, but the book does not delve into the movement toward humane farming and “cage-free” chicken facilities. Now a major selling point for eggs and for pig meats, the notion of no-cage or no-crate is deeply misleading, and some states, such as California, use various parameters to try and measure overcrowding. I’ve seen parallel developments in the context of prison population reduction orders. It’s no big secret that I think the measuring yard used in Brown v. Plata–percentage of design capacity systemwide–was deeply shortsighted, and a more careful calculation of minimal per-person area, as in other countries, would have helped us mitigate the COVID-19 catastrophe we’re experiencing right now.

The second issue I would want to read more about has to do with movement strategy, and with the reform-versus-revolution debate in the prison advocacy community. There is a parallel debate–quite a heated one–in the animal ethics community, between animal welfarism and animal liberation. Movement strategy and tactics, attention to incremental reform, and the use of the criminal justice process to challenge cruelty and obtuseness are relevant to both movements, and I think there’s more room to write about this.

These two issues notwithstanding, the book makes a fascinating read. Unfortunately, Routledge has priced it quite prohibitively, but prospective readers should know that you can rent it from Amazon for a reasonable price.

COVID-19 Prevention in Prisons and the Problem of Buy-In

Throughout the last few months, there’s something that’s been constantly gnawing at me and I haven’t had a moment to process in an organized way. I started thinking about this a lot when the AMEND report came out in June, reporting that people at San Quentin were afraid to get tested or report symptoms, lest they be placed in isolation in a death row or solitary confinement cell. And it came up again when I listened to the Assembly hearing on the PPE wearing failure and the commentary about the “physical plant” being “not conducive to compliance.” Then, I thought about it again when I read the AG’s briefs yesterday, detailing all the “reasonable” COVID-19 prevention steps they took. And finally, I felt a sense of despair and futility when I read this well-intended missive from Brendon Woods:

My immediate, gut reaction to the idea of vaccination priority was this: If I were incarcerated in one of the places that experienced horrific outbreaks–or anywhere else in CA, really–why would I believe anyone from CDCR or CCHCS offering me a vaccine, treatment, PPE, quarantine space, transfers, or anything else, except a ticket out of the system? And why on earth would I want to cooperate with anything short of being released? The sense of futility comes from a strong core realization that the trust between the state and incarcerated people is so deeply broken that, even when reasonable steps are being proposed, they’ll be understandably doubted. The long history of being swindled and harmed, especially in the context of healthcare, is so embedded in the system’s DNA, that any prevention or treatment initiative must take into account poor buy-in.

I’m not a doctor or a public health expert, but it seems obvious to me that, when designing a public health response, one important consideration is public buy-in. As this paper explains, effective COVID-19 prevention measures depend, in big part, on an enormous amount of groundwork to foster compliance, including virtual community building, fostering solidarity between high-risk and low-risk groups, and trust building between decision-makers, healthcare workers, and the public. What we’ve seen in the U.S. on the national level is instructive of what happens when the government not only fails to make this effort, but actively stokes the opposite sentiments. I suspect that even a reasonable administration would have had trouble containing the virus in such a big country with deep pockets of ignorance and misinformation, but given the Trumpian legacy of actively creating misinformation and division, this is going to be a huge challenge for whoever runs the COVID-19 response for the Biden administration.

What we’re seeing in CDCR facilities is a crystallized example of this problem. Efforts to implement pandemic prevention methods have to contend with deep mistrust of prison authorities in general, and prison healthcare in particular, which have profoundly painful historical roots. Osagie Obasogie reminds us of the horrific history of harm and deception in prison healthcare in this piece:

As early as 1906, Dr. Richard P. Strong—director of the Biological Laboratory of the Philippine Bureau of Science who later became a professor of tropical medicine at Harvard—gave a cholera vaccine to twenty-four Filipino inmates without their consent in order to learn about the disease; thirteen died. Though this provides an early modern example of using prisoners as human subjects, it certainly was not the last. Twelve inmates from Mississippi’s Rankin Farm prison became test subjects in 1915 to study pellagra—a disfiguring and deadly disease characterized by skin rashes and diarrhea. Though common wisdom at the time suggested that pellagra was a disease caused by germs, Dr. Joseph Goldberger—a physician in the federal government’s Hygienic Laboratory, predecessor to the National Institutes of Health—thought it was linked to malnutrition characteristic of Southern rural poverty. After Mississippi Governor Earl Brewer promised pardons to all participants—an inducement to participate in research that would be intolerable today–Goldberger tried to prove his theory that poor diet caused pellagra by subjecting inmates to what many called a “hellish experiment”: eating exclusively high-starch foods such as “corn bread, mush, collards, sweet potatoes, grits and rice” that caused considerable pain, lethargy, and dizziness. Despite their pleadings to end the study, prisoners were not allowed to withdraw. And, in an early 1920s experiment that was as bizarre as it was gratuitous, 500 inmates at California’s San Quentin prison had testicular glands from rams, boars, and goats implanted into their scrotums to see if their lost sexual potency could be rejuvenated.

But one needn’t go that far back. Nonconsensual sterilization of incarcerated women was still going on as of 2013, when the practice was exposed and excoriated. The Guardian’s Shilpa Jindia explains:

Despite federal and state law prohibiting the use of federal funds for sterilization as a means of birth control in prisons, California used state funds to pay doctors a total of almost $150,000 to sterilize women. That amount paled in comparison to “what you save in welfare”, one doctor told the news outlet.

Against this backdrop, you would expect public health experts at CDCR to bend over backwards to build trust, so as to engender cooperation. Instead, they’ve done exactly the opposite. The most obvious problem, of course, has been the botched transfer from CIM. I can finally put my finger on what seemed so disingenuous in the AG’s brief from yesterday: “[P]etitioners’ attempts to suggest prisoner transfers of any kind are not safe or effective is not well taken.” The irony of taking offense at people’s understandable mistrust after this colossal fiasco is completely lost on them, which I find breathtakingly obtuse.

But the transfer issue is just one of many. Why would prisoners comply with PPE-wearing requirements when they see guards, frequently and openly, flouting these requirements with no consequences? Why would people rush to report symptoms and get tested when the consequence is that they’ll be put in places which they’ve associated, for decades, with punishment and deprivation? Most importantly, given the history of using prisoners as experiment subjects, how could CDCR and CCHCS possibly lay some trust groundwork when rolling out a vaccine, so that people don’t suspect them, understandably, of subjecting them to untested, unreliable treatments?

This is the real crux of the problem. It’s not that “the physical plant is not conducive to compliance.” It’s that the atmosphere of neglect, indifference, and cruelty, and the resulting deep mistrust, does not engender compliance, and at every turn in this situation, prison authorities have moved the compliance needle further out of whack. This problem is a big part of why the only way out is to release people. Whatever other preventative steps the authorities are taking, regardless of their objective usefulness, need to actually be adopted by people on the ground to succeed. Hanging informational posters and handing out masks might work with some fantasy environment in mind, but it doesn’t work with the institutions and people we actually have. And it doesn’t seem like the AG’s office, or CDCR officials, have even begun to comprehend the depth of this problem.

AG Asks Marin Court to Halt Proceedings in San Quentin Population COVID-19 Cases

On the heels of the AG’s petition to the Supreme Court to review Von Staich comes this brief, submitted to the Superior Court that is handling the consolidated habeas corpus petitions of more than 300 people from San Quentin. In the brief, the AG is asking the court to halt all proceedings and stay all orders until the Court of Appeal decision in Von Staich becomes final. Here’s the full thing for you (13 pages of reading); my comments follow.

Respondent's Brief Regarding Effects of Von Staich Decision (1) by hadaraviram on Scribd

In case words like “abeyance” and “remittitur” set your teeth on edge, what this means is that the AG wants the 311 pending cases to go into hibernation until the Supreme Court (1) denies review in Von Staich or (2) reviews Von Staich, issues a ruling (upholding or overturning Von Staich) and that ruling becomes final. In practical terms, we are talking about a possible delay of several months.

What will happen in the meantime? According to the AG’s brief, they are going to spend this time working with the Receiver on the COVID response strategy. This strategy will be based on transfers, not releases, and apparently the AG’s office becomes upset when reminded that their transfers are what caused this mess in the first place: “Obviously, CDCR does not intend to conduct mass transfers of the same kind that were previously unsuccessful.” Thousands of infections and 28 deaths? “Unsuccessful” would perhaps not be the word I’d pick from my thesaurus, but okay. It goes on: “[P]etitioners’ attempts to suggest prisoner transfers of any kind are not safe or effective is not well taken.” Thousands of people sick, dozens dead from a preventable outbreak on your watch that started with a transfer, but heaven forbid your fee-fees might get hurt by mentioning that CDCR doesn’t have quite the flawless track record on transferring people without infecting or killing them.

The rest of the brief is, essentially, a game of Tetris: they argue that they could easily shift people around and move them to other prisons “even (!!!!!) omitting the prisons that are currently at more than 100 percent capacity.” As in, adding people to institutions that are already overcrowded is a viable option (remember the track record?), but we’ll go the extra mile and show the court that we can achieve the desired population reduction by transferring people to facilities that are only at or near 100%.

If you don’t feel like you’re quite disgusted yet, in the last page we are told:

Arguing that [people incarcerated at San Quentin] should not be transferred because it is stressful, their family will be unable to visit, and they will be unable to participate in programs that may support their bid for parole necessarily implies that petitioners view the foregoing factors as mutually exclusive and more important than their need to be free from San Quentin’s alleged unsafe environment. Neither can be true.

Seriously, who writes this stuff? The cynicism drips from “it is stressful.” Implied is the comparison between the “stress” associated with being moved around by the people who brought you the outbreak, and consequently facing possible targeting and violence from strangers in the new facility, and whatever the author of this magnum opus considers “stressful”, like, I dunno, deciding whether to go with vinaigrette or ranch on their side salad. Same thing for families being unable to visit–a serious mental health issue not only for the prisoners, but also for their young children–which is not the same as the family “stress” involved in the government lawyer’s need to balance the time it took them to author this masterpiece with the need to help their kids with their Zoom homework.

But most importantly, the dichotomy the authors are setting up is false, because the AG only presents people with two options: stay in a dilapidated, decrepit facility and face death, or face health risks and other negative outcomes by being transferred. That the Court of Appeal didn’t order them to transfer people doesn’t mean the Court didn’t prefer this strategy. It did, and it said so explicitly at least thrice in the decision, specifying the population of aging and infirm people doing time for violent crime as the key to a successful release strategy. That the authors of this brief don’t see it is emblematic of their inability to truly “see” this population: that’s why, when they reviewed 6,000 cases for release, they only found 44 (!!!!). That to the AG representatives, through their biases and blinders, release is not a viable option, does not mean that it is not the obvious, sane solution to everyone else.

This is infuriating, beyond offensive, and breathtakingly vicious, and I’m at the edge of my seat waiting to see how the Superior Court will respond.

BREAKING NEWS: CA Attorney General Petitions CA Supreme Court in Von Staich

Today was the last day for the Attorney General’s office to petition the Supreme Court for review, and unsurprisingly, they went for it. If you want to read the entire thing, here it is, in its 30-page glory–just be sure you’re sitting first:

VON STAICH Petition for Review w Exhibit – Final by hadaraviram on Scribd

Here are some of the highlights. The petition frames the legal question as follows:

May a court hold that prison officials, facing the challenges of the emerging novel coronavirus pandemic, were deliberately indifferent to an elderly inmate’s medical needs where the evidence showed officials operated under the authority and supervision of a federal Receiver with responsibility over the prison medical system, and consistent with the Receiver’s directives and guidance, undertook a suite of reasonable measures to arrest the spread of the virus, including reducing the inmate population, but had not at the time of hearing reduced the prison’s total inmate population by 50 percent? And may a court on that basis order officials to reduce the total prison population by 50 percent?

In other words, there are two things going on here: (1) they argue that the presumably “reasonable steps” they took were sufficient, and (2) they’re dumping the blame for this on the Receiver.

Of course, the absurdity of this is twofold. First, by their own admission, the Receiver is not the only responsible party here (the petition argues that they share the responsibility with the Receiver.) I suppose they’ve finally found an opportunity to try and throw Kelso under the bus; I assume the Receivership will claim that the prison was deliberately indifferent, the prison will argue that the Receivership was deliberately indifferent–and they will both be right.

But then things get truly. bizarre when the petition moves on to describe the “reasonable actions” CDCR took:

These actions included suspending intake from county jail, canceling visitation statewide, canceling large events and prison tours, distributing fact sheets, posters, and information to the inmate population, mandatory verbal and temperature screening for all persons entering prisons, and limiting movement between prisons, among others.

This is really rich. Wow–they hung posters? Such prescience! Such diligence! Such care for human life! As to “limiting movement between prisons,” we all know that the movement they failed to limit was the actual reason for this catastrophe, so forgive me for not bursting into a standing ovation. The cancelation of visitation is nothing to brag about–they would not have had to punish people in prison and their families if they did what they were supposed to. And as to the “verbal and temperature screening,” they have some nerve continuing the web of deception they pulled before the Court of Appeal, but of course now we know this is all fiction, because of the Inspector General’s first report. Note that they at least had the sense to refrain from lying about their flawed PPE practices, for which they were skewered by the legislature just a few days ago. They also list the release programs, which were insufficient at the time and also turned out to be largely fictional–out of 6,000 cases they reviewed for suitability, they found only 44 (!!!!!).

Again, we are treated to arguments that 50% is too much without the factual evidence that they didn’t bother to provide in the Court of Appeal, including the new information that they “acted under the advice of different experts” of which they said not a peep in the previous proceedings.

The rest of this is essentially a sob story about how unexpected, surprising, and overwhelming this crisis was, which apparently means the standard for deliberate indifference drops–as if we haven’t had evidence since 1918 of how outbreaks can ravage prisons or decades-long experience examining the connection between prison population density and health outcomes in every possible court.

This would be funny, but there’s absolutely nothing to laugh about. As the AG’s office spends its time and money congratulating CDCR for their “reasonable measures”, COVID-19 is ravaging our prison system again. In the last 14 days, the system has seen a whooping 1,474 new cases. There are huge outbreaks at CVSP (222 cases), CTF (269 cases), HDSP (283 cases), and SATF (433 cases.) There are new outbreaks in SOL (9 cases), CAL (49 cases), and CEN (28 cases.) Whatever they claim they’ve done with “limiting movement” is a blatant falsehood: the total prison population is up to what it was 7 weeks ago. The new Covid cases just in the past 2 weeks make up 1.48% of the entire prison population. This is over 6 times the per-capita rate statewide. The dissonance and immorality are breathtaking.

The Supreme Court has 90 days to decide whether to take this up, so now we wait.

The Prison Guards’ Union: Political Capture, Rot, and Risk

Amidst the cries to make profound changes to our incarceration policies, the silence from CCPOA, the prison guards’ union, has been deafening. While SEIU Local 1000, which represents prison workers, has filed a grievance against CDCR for putting their lives at risk, no such steps have been taken by CCPOA.

But it’s not just silence: When watching the legislative hearing on COVID in prisons, I was struck by the exchange between Assemblymember Ting and the CCHCS doctor who testified about PPE-wearing deficiencies in the prison authority’s COVID-19 plan. Here’s the bit I’ve been ruminating about. When the doctor was asked about the deviations from protocol regarding mask-wearing, which were plastered all over the IG report, he hastened to clarify that he did not doubt the efficacy of masking for preventing infection. Nonetheless, he attributed masking noncompliance in CDCR facilities to the fact that the masks were “thick, hot, hard to breathe.” The doctor explained that we should “extrapolate” what it was like for people on the outside to wear them for part of the day to people who “are expected to wear them 24/7, 365, because they cannot get away by themselves in a closed room with no one else. It’s a heavy lift. The overwhelming majority of patients and staff are doing a good job – they are not being perfect, they are fallible. Our physical plant is not conducive to people complying.”

Finally, the doctor admitted that the missing piece was the “disciplinary component of what we’ll do with folks who are just not willing to comply. That component is being strengthened and it will improve even more.” Ting wondered why this had not been done previously: “You work for Mr. Kelso, and he has fairly broad authority in this realm. why didn’t you use your authority to ensure everyone was wearing a mask?” The doctor insisted that wearing a mask was “not a choice” and that there was a “firm consistent message from secretary and receiver about our expectations about face coverings. I’ve personally been to 14 facilities since July and reminded staff and patients. There’s been a really clear expectation. The part that was not there was a progressive disciplinary process. I guess we hoped that people would do the right thing.”

This hope is extraordinary, given how CCPOA has been investing its time and money. A story in today’s Sac Bee shows that, instead of fighting for union members’ lives and wellbeing by demanding population reductions and preventative measures, or at minimum instructing them that they should wear masks, CCPOA leadership has been busy… politically and financially backing the punitive ballot propositions that lost last week. The article explains:

The prison guards’ union, through its political committees, spent $1 million to support incumbent Los Angeles County District Attorney Jackie Lacey, but she lost to progressive criminal justice reform advocate George Gascon, a former San Francisco district attorney.

It gave $2 million to support Proposition 20, which would have stiffened prison sentences and restricted parole, but the measure is failing by a 24% margin.

And the union spent at least $1 million to support Efren Martinez, a Los Angeles businessman who lost his race against incumbent Democratic Assemblyman Reggie Jones-Sawyer, chairman of the Assembly Public Safety Committee.

The union also backed some winners, potentially including Dave Min, a Democrat who defeated Republican state Sen. John Moorlach of Orange County.

Even my rudimentary math skills suffice to determine we’re talking about more than $4 million in union money, presumably garnered from union fees. And there are two ways to parse what’s going on here, both unsavory.

The more pessimistic one is that a substantial percentage of the rank-and-file correctional officers are virulent Trumpers, conspiracy theorists, or QAanon nutcases. Perhaps they think COVID-19 is a hoax despite the fact that it has infected and sickened thousands of people behind bars and claimed dozens of lives, including one of their own. And if so, perhaps the same virulent Trumpism makes them happy that their member fees were used to support Trumplike regressive, pre-recession criminal justice policies.

The less pessimistic, but still incredibly upsetting, possibility is that CCPOA members are being taken for a ride by Glen Stailey and his own Trumpian methods, which apparently include financing political ads that put bullseyes on legislators. Stailey is apparently interested in “regaining the union’s once-renowned clout in a changed political environment”–as evidenced by his response to the Sac Bee article about the humiliating and expensive campaign losses:

Through a spokesman, Stailey declined an interview request but responded to emailed questions.

“We’re only getting started,” he said in the email. “We want to build our profile as an active participant in policymaking in California, and working on campaigns is one small piece of it.”

In other words, he’s hoping to drag us all to the house of horrors that his predecessors built.

Because I’m not an idiot, I don’t imagine this blog is particularly popular with CCPOA membership. But in the off-chance that you, dear reader, are a correctional officer, my message to you is: WAKE UP. I don’t hate you, I don’t wish bad things for you, I don’t want you to get sick and die. Stailey doesn’t give a fig about your health and work conditions. Your interests and those of the people you guard are the same. None of you wants to get infected with COVID-19. The way to do this is to safely reduce prison population so that everyone can safely distance, and to be rigorous in wearing PPE and washing hands. Look at the protection your non-CO colleagues are getting from SEIU-1000 and ask yourself whether Stailey and his cronies care about you, or whether they’re just taking your money on an expensive trip to the land of political capture.

State Assembly Hearing on COVID-19 Prison Policies

This afternoon, the California State Assembly held a hearing about CDCR’s management of the COVID-19 pandemic at its institutions. The tone of the hearing was largely set by the recent Inspector General report, which found serious fault with CDCR’s enforcement of proper PPE attire by staff and incarcerated people.

Assemblymember Phil Ting was polite but firm, and consistently held CDCR Secretary Kathleen Allison to answer for the problems at the various facilities. Allison was defensive throuhgout, arguing that the Department has been doing a good job overall monitoring COVID-19 prevention protocols. Ting did not seem to buy this at all, and pointed out numerous ways in which Allison could monitor compliance. He drew the obvious comparison to nursing homes, explaining that the homes were audited through surprise visits. “When I show up for inspection,” he explained, “everyone’s on their best behavior.”

When Allison insisted that there was no systemic problem at CDCR, Ting responded:

The reason we’re having the hearing is. . . far and away, institutionally, these two types of institutions [prisons and nursing homes] created a disproportionate number of COVID cases. Obviously, there’s a lot going against all the prison facilities, because of how people are housed, the crowding, etc etc., but that’s why we are so concerned. There are things out of your control, such as the physical plant, but there are things that are in your control and that’s what we’re concerned about. There were things that could have mitigated, could have reduced the situation, it was not done, and was not done in a systemic fashion. The fact that there’s enough data to show significant inconsistency between institutions shows some systematic failure, in my opinion. I asked the same of the IG, but is this under your purview or under the Receiver’s? You both signed the memorandum.

Ting got a little–but not a lot–more from a doctor working under Receiver Clark Kelso. He asked, “You have people dying in facilities in pretty high numbers. Why do you think they wouldn’t have taken that as a cue to take this seriously?” The doctor replied: “I think what we see in our system mirrors what we see in our country, people in doubt, people in confusion whether masks are helpful or harmful. As you know, this has been a topic of conversation in our political system for some time. What we’re seeing in our institutions is a reflection of the political conversation.”

Ting was having none of it: “You don’t run a hospital, you run a department where freedom was taken away. You characterized as “unclear”. I see it as crystal clear. These are all state employees – why were state employees allowed to ignore what the Governor and the Secretary ordered everyone to do?”

Emphasizing that he did not want to be misunderstood as doubting the efficacy of masks, the doctor explained that noncompliance could be attributed to the fact that they were “thick, hot, hard to breathe.” He explains that we should “extrapolate” what it was like for people on the outside to wear them for part of the day to people who “are expected to wear them 24/7, 365, because they cannot get away by themselves in a closed room with no one else. It’s a heavy lift. The overwhelming majority of patients and staff are doing a good job – they are not being perfect, they are fallible. Our physical plant is not conducive to people complying.”

Finally, the doctor admitted that the missing piece was the “disciplinary component of what we’ll do with folks who are just not willing to comply. That component is being strengthened and it will improve even more.” Ting wondered why this had not been done previously: “You work for Mr. Kelso, and he has fairly broad authority in this realm. why didn’t you use your authority to ensure everyone was wearing a mask?” The doctor insisted that wearing a mask was “not a choice” and that there was a “firm consistent message from secretary and receiver about our expectations about face coverings. I’ve personally been to 14 facilities since July and reminded staff and patients. There’s been a really clear expectation. The part that was not there was a progressive disciplinary process. I guess we hoped that people would do the right thing.”

This reply, unsurprisingly, led to a scolding by Assemblymember Cooper: “Everyone has been indoctrinated on how we do it, not just for ourselves but for other people. It’s a leadership issue, it starts at the top. Progressive discipline starts at the lower level. That should’ve been going on at the . It’s sad but it’s a failed leadership.”

The hearing then shifted to the testimony of Kim Siebel, Deputy Director of Facility Operations at CDCR, who was charged with explaining the ban on visitations and the paucity of programming. Siebel explained that they defined four opening phases, ranging from the most to the least restrictive, and that sometimes different units or yards within the same prison could be in different phases. At this point, she explained, 46% of the prison system was phase 1 and 54% phase 2, which means there’s only limited out-of-cell programming. She acknowledged that “visiting is an important part, conection with families,” and said that they were “moving onward with developing protocols.” Nevertheless, in their discussions with the California Department of Public Health, they “determined that in-person visiting is not the best solution” and they are “working on a video visiting program” as well as a dedicated email address and free phone calls through their contractors.

The paucity of programming is a big problem, because participation in programming offers incarcerated people good credits, which can hasten their release. And because of the remote location of many California prisons, only some institutions can benefit from the participation of volunteers (this is what made Quentin, despite its dilapidated condition, an attractive place for people seeking rehabilitative programming–it is widely available there, through the effort of Bay Area do-gooders and no thanks to CDCR.) Because CDCR relies so much on volunteer work, the Legislative Analyst’s Office representative pointed out that, in reintroducing programming, CDCR failed to take into account COVID rates and compliance levels in the prisons’ surrounding community. Siebel initially implied that they had taken this into account, then recanted and said that “this is something we’ll want to add.”

Ting lost patience with Siebel’s comments about “looking to expanding” programming. “I’ve been hearing this since I’ve been budget chair,” he said, “and have yet. . . When the department says they are “looking into something” it means they’re not doing it.” Siebel promised: “We can provide a list of what we’re currently doing,” which Ting noted that he appreciated. “What I’m concerned about,” he added, “is what is the Department doing to bring back the programing it already had.” Siebel promised an update “soon”, which did not satisfy Ting: “Soon is not a timeframe for me. I don’t know waht ‘soon’ means to you, so maybe we can set a date.” Unsurprisingly, what followed was an evasion dance:

“We can get you a timeline of what we’ll be looking at, but I need to check with my department and provide a timeline.”

“When can you provide me a timeline?”

“How is a week?”

“A week sounds wonderful.”

The hearing then shifted to public comments. Most of the commentators–Ivana from LSPC, Dolores Canales, Ashley, and others–commented on the havoc that the visitation ban has wreaked on the families’ mental health, particularly around the holidays. Ivana explained, “Families are used to abiding by COVID protocols at school, church, restaurants, work, court, when visiting with extended families, Why couldn’t we follow these going into CDCR?” Ashley characterized CDCR’s response to the hearing as a “livestream of lies and obfuscations. . . Why haven’t people with high risk been released? Why have they been denied parole? Why is CDCR lying about programming? Why innocent people? People in prisons and tier families know how to keep themselves safe.” Dolores Canales mentioned information she received from incarcerated women, whose cleaning supplies are being confiscated. Ashley mentioned a friend with terminal lung cancer who is, astonishingly, still incarcerated amidst all this, and who recently applied for clemency. The last commentator, whose name I didn’t catch, mentioned that prisons in both Florida and New York are now open for visits.

I found the hearing reassuring. It seemed that Assemblymembers Ting and Cooper were nobody’s fools, and they refused to be satisfied with “we’re looking into this.” We need more pressure, continuous pressure, if we want to see releases of people with chronic conditions. We cannot let In re Von Staich go to waste and people’s lives being more at risk via unnecessary transfers than they already are. To wit: There are currently four major outbreaks. CVSP has 290 new cases, CTF has 157, HDSP has 29 new cases, and SATF has a whooping 386. There are new outbreaks–small so far, but they need to be monitored: CAL (7 new cases), CEN (17 new cases), and PBSP (3 new cases).

Disturbingly, if you were hoping that some of these unsavory trends would be reversed via releases, it looks like CDCR is doing exactly the opposite. WSP has increased its population from 1869 on Oct. 4 to 2409 today (and has seen 15 new cases). The total CDCR population is up almost 100 since last week. In short: WE MUST PRESS ON.

Von Staich Review Period Extended: What Does This Mean?

As you see in the image above, the California Supreme Court has extended the 15-day review window for In re Von Staich to 90 days–until Feb. 17, 2021. This gives CDCR more breathing room to decide what they want to do with this decision, and has important implication as to lives inside and additional COVID-19-related legal challenges.

One of the vague aspects of Von Staich was that the Court of Appeal did not give CDCR a deadline for the 50% population reduction. These kinds of orders, especially (but not exclusively) when they are consent decrees, typically come with a period of judicial supervision and a list of benchmarks to reach. In Von Staich, the Court of Appeal left the authority to resolve disputes about the order to the Marin Superior Court, and it seems that Judge Howard is taking up that mantle in the habeas cases pending in his courtroom. Judge Howard originally set the time for a response brief to November 16, under the assumption that by then the Attorney General representative, Denise Yates, would be able to inform the court as to CDCR’s plans. This may or may not happen, though I very much doubt Judge Howard will extend the deadline for the briefs by three entire months.

There is plenty of legal uncertainty, so I don’t have clear answers to some of the obvious questions:

What happens with the Marin Superior Court Cases? As far as we know at this point, the next steps in those cases involve briefs from the lawyers representing incarcerated folks and from the Attorney General’s office. The dates for those briefs were set with the original Von Staich time in mind, and this delay might or might not alter them (though probably not by three whole months.)

What happens with Von Staich? Are they actually going to petition for review? We don’t know. It is possible that this extended timeline gives CDCR time to align forces to release people (the good scenario) or to transfer them (the bad scenario.) But even if they formally comply with the order (see more on this below) they might have another motivation to petition for review. Before long, CDCR will likely be facing multiple civil lawsuits, including for wrongful death, and the lynchpin for those would be the Eighth Amendment violation: deliberate indifference to the health and safety of people inside. The monetary risk alone (having to pay damages to incarcerated people and to family members) is likely to prompt them to try and challenge the Eighth Amendment finding, even if they comply with the remedy.

While we wait to see if CDCR petitions for review, are they still under obligation to comply with the order? This is a good question, and I’ve spoken to lawyers involved in the different lawsuits to figure out an answer. I was under the impression that CDCR has to ask the Supreme Court for a stay pending review, without which they’d have to work on the petition and on the remedy simultaneously. But people who know more about this stuff are telling me that the Von Staich opinion is not binding until the petition for review is denied or until the timeline for review expires.

Finally, here are a few things to watch out for. Given yesterday’s OIG review, it looks like CDCR deceived the Court of Appeal into thinking that, except for population reduction, they did take “commendable” steps to prevent contagion. It turns out that is not the case: CDCR was astonishingly lax in enforcing proper use of PPE inside its facilities. For more on this, see here. In addition, it’s worth pointing out that there are new outbreaks, including several serious ones, in other facilities (SATF comes to mind – close to 200 cases overnight with only 25% of the population tested) and it is therefore crucial to pay attention not only to where people are being transferred from, but also to where they are being transferred to.

A third thing to watch out for is CDCR activity in San Quentin that could put them formally in the court’s good graces but in fact exacerbates the health risks–for example, erecting more tents outside and keeping people in them in close proximity, while the inside of the facility itself appears to be in compliance with social distancing protocols. These are things to document carefully, as they will have bearing on any further litigation on this issue, whether before the Marin Superior Court or before the California Supreme Court.

New OIG Report Contains Scathing Critique of CDCR’s PPE Protocol

On August 17, the Office of the Inspector General issued a report severely criticizing CDCR for its lax gatekeeping and symptom-checking practices. Today sees the publication of a new report, which addresses CDCR’s astonishingly lax PPE protocols.

Here’s a longish excerpt from the executive summary. I wanted to abbreviate, but decided it was best to let it speak for itself:

Beginning in March 2020, in an attempt to mitigate the spread of COVID-19 among its staff and incarcerated population, the department issued multiple statewide memoranda establishing its expectations and requirements regarding PPE, face coverings, and physical distancing. In April, to ensure its staff and incarcerated population had access to face coverings, the department purchased and distributed cloth face coverings manufactured by the California Prison Industry Authority and required that staff and incarcerated persons wear them in the prisons at almost all times. Although the department has since revised some of its directives, requirements governing the use of PPE, face coverings, and physical distancing remain in force as of October 2020

Despite nationwide shortages early in the COVID-19 pandemic, we found that the department was generally able to maintain supplies of PPE for its staff. Early in the pandemic, the department activated an operations center, which the department tasked with coordinating its efforts to respond to the COVID-19 pandemic. The operations center played a key role in evaluating and redirecting prisons’ PPE inventory as necessary. Our observations and interviews with staff at five sampled prisons suggest the department’s efforts in obtaining and distributing adequate supplies of PPE to its prisons were mostly successful. During our visits to those five prisons, we reviewed the prisons’ PPE inventories and spoke to various staff throughout the prisons, including those in the prisons’ health care clinics. During our visits, we generally observed staff in health care areas wearing appropriate PPE, and staff members we interviewed consistently stated that they had access to appropriate PPE, with just a few exceptions during the pandemic.

In addition, since April 2, the department has purchased more than 752,000 cloth face coverings produced by the California Prison Industry Authority, and by April 9 had delivered more than half of those face coverings to prisons for use by staff and incarcerated persons. The department generally appeared to be successful in distributing the face coverings to staff and incarcerated persons. During multiple routine monitoring visits, our staff rarely observed departmental staff or incarcerated persons who did not clearly possess face coverings.

However, although the department distributed face coverings to its staff and incarcerated population, and the department issued memoranda communicating face covering and physical distancing requirements, we found that staff and incarcerated persons frequently failed to follow those requirements. As part of our customary monitoring activities that occurred between May 19, 2020, and July 29, 2020, our staff frequently reported observing departmental staff failing to comply with face covering guidelines during our staff’s multiple visits to 23 of the department’s 35 prisons. For example, during a visit to one prison, the Inspector General and Chief Deputy Inspector General observed multiple prison executives improperly wearing face coverings during a meeting that also included the prison’s warden, who did not attempt to correct the noncompliance.

Our observations were also supported by the departmental staff we surveyed at several prisons. To obtain prison employees’ perspectives, we surveyed all staff at seven prisons—more than 12,000 staff members. Of the departmental staff who responded to our survey, 31 percent reported they had observed staff or incarcerated persons failing to properly wear face coverings. Regarding physical distancing, 38 percent of the staff who responded to the survey stated they had observed staff or incarcerated persons not complying with physical distancing requirements.

The frequent noncompliance by staff and incarcerated persons was likely caused at least in part by the department’s supervisors’ and managers’ lax enforcement of the requirements. Despite the department’s then-Secretary’s statements during a legislative hearing on July 1, 2020, asserting that the department was enforcing its face covering requirements, and despite a memorandum the department issued on the same day, stating that it was vital for staff to adhere to face covering directives, we found that the department’s enforcement efforts have been very limited. In fact, based on records provided to us by five sampled prisons, prison supervisors and managers had taken just 29 actions—over a period spanning seven months—for noncompliance with the department’s face covering or physical distancing requirements.

One of the five prisons, California Institution for Men, provided no documentation of any disciplinary actions, and another of the five prisons, San Quentin State Prison, provided documentation of just one action. We found that almost all the actions that supervisors and managers took were instances of verbal counseling or written counseling, the lowest levels of the progressive discipline process. We also found that supervisors’ and managers’ failure to enforce COVID-19 requirements was not limited to the five prisons. Our staff reviewed every formal request for investigation and punitive action for the entire department since February 1, 2020, and we found that hiring authorities statewide only requested formal investigations or punitive actions for misconduct related to face covering or physical distancing requirements for seven of the department’s more than 63,000 staff members. We find that number surprisingly low, given the prevalence of noncompliance observed by our staff and by the departmental staff we surveyed.

In addition to inadequately enforcing its face covering requirements, the department perplexingly loosened those requirements at the same time it reported increasing numbers of cases of COVID-19 among both its staff and incarcerated population. Despite the increasing cases of COVID-19 in its prisons, the department sent memoranda on June 11 and June 24 relaxing face covering requirements for staff and incarcerated persons, respectively. The updated requirements allowed staff and incarcerated persons to remove their face coverings when they were outside and were at least six feet away from other individuals. Considering the volatile nature of a prison environment, the potential increased difficulty in enforcing the updated requirements, and the possibility that the virus could be spread even when people maintained a distance of six feet from others, the department’s relaxed requirements appeared to unnecessarily increase the risk of COVID-19’s spread among the staff and incarcerated population.

As of October 7, 2020, the department has reported the deaths of 69 incarcerated persons and 10 staff members due to COVID-19. Considering the risk that individuals without symptoms can spread COVID-19, and considering increasing evidence from the scientific community that face coverings are effective in slowing the spread of COVID-19, it is essential that the department’s staff and incarcerated population consistently wear face coverings whenever there is a chance they may come into close contact with other individuals. However, unless departmental management clearly communicates consistent face covering guidelines that are enforceable, and effectively ensures that its managers and supervisors consistently take disciplinary action when they observe noncompliance, the department will continue to undermine its ability to enforce basic safety protocols such as wearing face coverings and practicing physical distancing, thereby increasing the risk of additional, preventable infections of COVID-19 among its staff and incarcerated population.

After last week’s demonstrations of bad faith, I thought nothing could astonish me further. But what’s amazing about all this is that, throughout our litigation efforts in Marin County and in Von Staich, CDCR argued with a straight face that population reduction was unnecessary because they did such a good job distributing PPE and keeping protocols–and were then praised in the decision for doing so! Justice Kline wrote:

Respondents’ contention that the measures they have taken constitute a reasonable response to the risk posed by COVID-19 misconstrues the petition. Petitioner and the scientists he relies upon do not say the measures respondents took to combat the outbreak of COVID-19 at San Quentin are unreasonable in and of themselves, but only because they are unaccompanied by a dramatic reduction of the prison population, which is a sine qua non of any reasonable remedial effort. The target of the petition is not what respondents have done but what they refuse to do. None of the commendable steps respondents have taken to contain the spread of COVID-19 will be effectual, petitioner and his experts maintain, unless considerable room is made for inmates to physically distance themselves from one another effectively because, in the absence of a vaccine, physical distancing is now by far the most effective way of limiting transmission of COVID-19.

Except, as we now find out, the steps they boasted about taking, which the Court was misled into thinking were actually taken, were far from commendable! And in fact, could be “unreasonable in and of themselves.” You could bring a brand new deliberate indifferent lawsuit just on the basis of the OIG findings, without even getting into their resistance to reduce the population.

Just as one example of the rampant bad faith, here’s an image I screencaptured from the OIG report. It depicts a staff meeting at CSP-LAC which took place on June 3, a few days after catastrophe struck at San Quentin–and a whole month after CSP-LAC itself saw a serious outbreak.

Unsurprisingly, after the infection was already thought to have abated at CSP-LAC, there was a second outbreak.

It is especially unconscionable for me to read about the reluctance of prison administration to enforce mask wearing via punitive means–not because I think punitive means actually help (I’ve written plenty about why they are counterproductive) but because they have such a voracious appetite for handing out complaints, 115s, and 128s, at every occasion. When I worked on Yesterday’s Monsters, and when I read Kitty Calavita and Valerie Jenness’ book Appealing to Justice, I was dumbfounded by some of the silly minutiae that people got write-ups for (and then had to explain away, decades later, at their parole hearings.) It is astounding that a system that has an appetite for writing people up for having a quarter (yes, $0.25) in their pockets on a plastic spoon (miswritten as a knife) is so shy about penalizing its own staff (and the prison population itself) for not wearing masks.

All this is making me realize how right Peter Chin-Hong was when he said, at our June 9 press conference, that “prisons are incompatible with public health.” He’s now in good company: the American Public Health Association has issued a declaration that indicts the entire system for its contribution to social ills. As regular readers know, I’m not a great fan of sweeping slogans, but strip the declaration of all the tiresome jargon and you get to the bottom of the issue: it is outrageous to subject people to a system that makes all of us worse off, even at the lowest rungs of Maslow’s Hierarchy of Needs.

***

I also have a loosely-related coda: Twitter is awash with festivities over Governor Newsom’s amicus brief in McDaniel, in which he argues that ““California’s capital punishment scheme is now, and always has been, infected by racism.” If that is so, I call on Governor Newsom to account for the fact that more than twice as many people have died of COVID-19 at San Quentin during his moratorium than were executed in the entire state of California since the reinstatement of the death penalty in 1978. The number of death row COVID casualties equaled the number of pre-moratorium executions as early as June 29. If the death penalty is such a disgrace to the Governor–and I agree, it is indeed–why are people still dying on death row, in larger numbers, and why are we still paying for it? The key to this problem is obvious, it’s in the Governor’s hands, and it has nothing to do with amicus briefs. All of these sentences, as well as LWOP sentences, could be commuted today.

CDCR, Don’t Play Tetris with Human Lives

In her 2018 book Building the Prison State, my colleague Heather Schoenfeld provides a retrospective of the incarceration explosion in Florida. The root of the problem–the situation that facilitated the astronomical growth in Florida’s correctional apparatus–was no other than Costello v. Wainwright, a prisoner’s rights case that focused on remedying prison overcrowding.

To understand what happened in Costello we must keep in mind that Florida’s population grew by two million throughout the sixties. That, in combination with an actual rise in crime and the emergence of new, Nixon-sponsored policing techniques, meant that between 1968 and 1972 the prison population grew by 31 percent. This resulted in the horrors and indignities of overcrowding with which we are very familiar in California.

Civil rights attorney Toby Simon, who represented the prison population in Costello, wanted to pursue change–but so did the prison warden. Wainwright was amidst a modernization project, and saw the overcrowded and outdated facilities as hurdles in his path to implement more rehabilitative programming behind bars. Finally, in 1979, a consent decree was reached: Judge Scott ordered a population reduction, and left the method to the state’s discretion. Since the entire Florida system was overcrowded, Wainwright was unable to reduce overcrowding by moving inmates from facility to facility. He had two available courses of action: releasing prisoners (via good behavior or parole) or increasing capacity (via building more prisons.) The consent decree gave equal weight to both strategies.

You can guess what happened: the consent decree gave discretion to the wrong people at the wrong time, and the choice was cynically exploited. Politics in Florida took a decidedly conservative turn, and in the ensuing law-and-order atmosphere, releasing inmates was a non-starter. More prisons were built, and the ensuing outcome followed the classic line from Field of Dreams: “If you build it, they will come.”

Throughout the book, Schoenfeld emphasizes that the disastrous outcomes of the implementation of Costello could have been avoided. I’m not sure I’d go quite that far; I worry that implying that civil rights attorneys have to take into account the cynical exploitation of vaguely decided victories could have the undesirable effect of discouraging them from pursuing remedies for the prison population. But here’s where I completely agree with Schoenfeld: the combination of judicial remedies open to discretion and interpretation with bad-faith actors looking for loopholes because of concerns about political expedience and posturing can be, and indeed has been, poison.

There are important differences between California and Florida, and between the situation in the post-Costello 1980s and the post-Von Staich scenario we have now. But there is an important similarity, and it is this: Population reduction orders that offer the correctional apparatus the option between releases and something else pretty much guarantee that the correctional apparatus will scramble to do the “something else.” In the situation we’re facing now, we’re not going to build new prisons (I think), so instead, in the next few days, we are likely to see CDCR playing a lot of Tetris with human lives.

I would like to caution as emphatically as possible against this course of action. It’s obvious from the decision in Von Staich that this is not what the Court wanted. The opinion didn’t go on and on about elderly, infirm people who have done decades in prison for violent crimes for no reason at all. Would it really hurt so much to consider this? What would be the downside?

Honestly, this is what I think truly worries CDCR officials. As California gradually reopens, we are bound to see somewhat of an uptick in street crime. Crime rates in California, as elsewhere in the nation, are at their lowest rates since the 1960s, and they were further impacted by COVID-19, because the need to shelter in place changed the opportunity structure for committing crime. There are considerably fewer burglary and car break-in opportunities with everyone at home and vigilant in their neighborhoods. Violent crime (with the exception of stress-exacerbated domestic violence) is also down.

It strikes me as a pretty solid prediction that, as the state continues to reopen, these numbers will reverse themselves to a small degree–regardless of who and how many people are released from prison. But there is the very real concern that the media might foment public hysteria about rising crime rates and tie them causally to releases. You will recall that the same thing happened after Realignment (hysteria, no corresponding rise in crime), Prop. 47 (hysteria, no corresponding rise in crime) and after Prop. 57 (hysteria, no corresponding rise in crime.)

Against the tendency to do the political expedient thing, the only thing to do is to exhort our state officials to be responsible adults and rein in CDCR’s appetite for playing Tetris with human lives. The most tragic outcome of Von Staich might be a choice to round up the young and healthy folks and transfer them, untested and unsequestered, to another prison, where this catastrophe could play out again. Even if we get lucky, and it doesn’t, it leaves the older, more infirm people in a facility that is ill-equipped to serve their health needs. What we need is a tribune who will do the right thing and stop this predictable-but-counterproductive pattern from playing out. I think Gov. Newsom can be that tribune, and I urge him to exercise his power to make real, lasting change.

Moving Forward Toward Relief for San Quentin Population

Yesterday’s Court of Appeal order in In re Von Staich has reverberated in the media: SF Chronicle, more SF Chronicle, ABC7, KTVU, CBS5.

Today, the ramifications of Von Staich started seeping into other legal proceedings on behalf of incarcerated people. Evidentiary hearings were scheduled for this coming Friday in the Marin Superior Court consolidated cases pending before Judge Howard. But the Von Staich opinion upended this, because the Court of Appeal found that the question of deliberate indifference was a matter of law and could be determined on the basis of the evidence submitted by the Von Staich team.

At today’s case management conference, Judge Howard vacated the evidentiary hearing, now rendered moot by the appellate decision, and scheduled expedited briefing for the habeas petitioners and for CDCR. Unsurprisingly, the Attorney General representative said that they were not going to know (read: reveal) what their strategy is until they run out of days to appeal Von Staich, so the judge took that into account when scheduling the briefs, saying, “”we would all like to know what CDCR wants to do, but we can’t come to a screeching halt until you make your decision.”

Other issues emerged that revealed the underlying tensions between the Von Staich decision and where petitioners and respondents, respectively, ultimately want to be. For one thing, some (but not all) of the petitioners in the Marin cases belong to the group that the Court of Appeal singled out in its decision–60-year-olds who have been incarcerated for 25 years or more. For another, the last thing petitioners want (and the last thing any of us needs) is for CDCR to transfer people. In light of this, Petitioners’ lawyers asked that their clients not be transferred; CDCR, predictably, objected, and Judge Howard explained that he could not order such a thing without knowing the particulars of each person, nor would such an order be in the spirit of Von Staich, which explicitly gave CDCR the option to transfer people to solve the problem.

This is not merely a procedural issue: Petitioners’ lawyers are worried about the tragedies that could result from CDCR opting to solve the problem they have by playing Tetris with human lives. There are at least three reasons why this would be a horrible idea. First, which should be obvious by now, the San Quentin catastrophe is itself the result of a botched transfer, so CDCR can hardly marvel at being mistrusted with transfers given their track record. Second, moving people between facilities might be an immediate solution for CDCR as they face judicial wrath about their indifference and ineptitude, but it merely postpones (and likely hinders) a solution for the statewide COVID problem pending in the federal case. Keep in mind that, in addition to the Quentin mess, Plata v. Newsom addresses numerous serious outbreaks in other facilities, including reinfections, hospitalizations, and deaths. And third, the careful balance CDCR has been trying to strike (falling far short of a 50% reduction mark) has been achieved largely through a temporary halt on transfers from jails, but the jails are now bursting at the seams and experiencing their own serious outbreaks. In other words, something’s gotta give if this pattern of obfuscation and cosmetics continues.

Another astounding moment came toward the end of the conference, when the lawyers asked the judge to allow them to continue speaking with their clients on the phone. Even after everything we’ve seen from the AG and CDCR in the last few months, I was still stunned to hear the AG representative demanding that the judge limit the phone hours to ten (the judge settled on 15.) Whenever I wonder what’s driving this behavior, which so often crosses the line from obfuscation and petulance into bad faith territory, I remind myself that we haven’t even begun seeing the litigation consequences of the San Quentin disaster, and that inevitably, CDCR will be facing an enormous civil suit, which they will likely lose. This could mean considerable monetary damages in addition to the injunctions we’re seeing now and could explain a lot.

As I think about the next steps, I realize how similar this situation is (on a particular institutional scale) to what we saw on a statewide scale in Plata between 2009 and 2011. Jerry Brown, then the Attorney General, fought the decision tooth and nail all the way to the Supreme Court. But as Governor (elected in 2010), he addressed it in a more sensible manner, coming up with a release strategy. This is the time for Governor Newsom to step in, be the responsible adult that he is, and expand his expedited release plan to include the category of people that the Court of Appeal singled out: people aged 60 and older, incarcerated for 25 years or longer. Swift executive action along sane, reasonable lines could reduce the temperature of this whole thing far below the boiling point and save lives that might be lost or irreparably harmed if we wait for briefs, oral arguments, and bickering about transfers. Governor Newsom is the one who stepped into the fray in 2004 when our friends and neighbors needed to get married, and is also the one who moved forward to dismantle the death chamber. He needs to put on his battle gear and do the right thing for all of us once more.