Roe Overrule Leak: An Adoptive Mom’s Perspective

So much has been said and written about the Supreme Court’s leaked majority opinion draft overruling Roe v. Wade that I hardly need to elaborate the basics. I’m not a reproductive justice expert, nor am I particularly surprised that this has happened–they are simply doing precisely what they were hired to do, which is to promulgate a theocratic, sex-negative worldview. The reason I add my voice to the cacophony is that I have a somewhat unorthodox, nuanced position on this debate, which hasn’t (I think) been aired yet–that of an adoptive mom.

We adopted our beloved son as an infant from a state that frowns upon abortions. My son’s amazing birthparents’ struggles, dilemmas, and decisions are their private business and I will not air it here or anywhere else. What I can share is that, throughout our happy life together, I have been beyond ecstatic that the world has been blessed with my son, a sparkling star of a boy–bright, empathetic, loving, friendly, kind, athletic, funny, multitalented, spirited, lively. And at the same time, every adoption involves a huge leap of love and empathy, and much pain, grief, and loss adjacent to the joy. There are no hard or fast rules about the roads taken or not taken with pregnancies. The deep regrets of placing a child for adoption, the sometimes unsurmountable hardships of parenting, and the deep regrets of terminating a pregnancy all float in a realm of possibility that I can only imagine, having been raised in a welfare state with excellent sex education and easily available contraceptives. No assumption can be made, as the right makes, that abortion invariably leads to shame and regret (see this remarkable amicus brief on behalf of law professors who underwent abortions and “believe that, like themselves, the next generation of lawyers should have the ability to control their reproductive lives and thus the opportunity to fully participate in the ‘economic and social life of the Nation’.”) Of course, the opposite assumption–that abortion brings you your life back without a trace of regret or sorrow, is also false, and part of the reason many women can’t quite find themselves in the pro-choice milieu is that, in the fierce struggle for women’s rights, little room is left to contain these sorrows and regrets.

The philosophical debate about when life begins is, to my mind, a red herring. For what it’s worth, and this may surprise my lefty friends, on the abstract philosophy point I’m with the pro-lifers: I do believe that a form of life–sentience–begins at conception, and I find that congruent with my sentiments on other aspects of sentience, such as nonhuman animal rights. The problem is that the pro-life right-wingers lose interest in supporting said life from the moment it emerges from the womb, as evidenced by the lack of parental leave, child care, quality early education, and decent, government-funded healthcare for all. They are also not interested in sparing such life from emerging in the first place through comprehensive sex education and widely available contraceptives.

All of this has already been said, most eloquently, by others; but the right-wingers have a ready-made answer. “Not to worry!” They cheerfully squeal. “That’s what adoption is for!” Which is where, as an adoptive mom, I need to speak up and disabuse some of the truly ridiculous illusions that our right-wing politicos and fundamental Christian buddies are willing to entertain. Namely, the notion that limiting safe, legal abortion is going to result in a boon for adoption should be patently absurd to anyone who has gone through an ethical open adoption process; the opposite is true.

Adoption professionals recoil from the idea that adoption is about “selling children”, and from here flow multiple ethical and legal limitations on the kind of assistance that adoptive parents can offer birthparents and on the interactions between the party. And yet, beyond the niceties, let’s start with the obvious: in virtually every adoption, as ethical and kind and caring as it is, children pass from poor hands to more economically advantaged hands, with money moving in the opposite direction. This means that birthparents–usually birthmoms–are at a considerable socioeconomic disadvantage, often exacerbated by being typically younger than the adoptive moms.

Forcing women who would otherwise have a (legal, safe) abortion to instead carry a pregnancy to term and place their infants for adoption throws more young women and girls with no bargaining power into the mix–often women and girls who now have to hide their pregnancies from families and boyfriends. It is not difficult to predict that women who are less equipped to carry a pregnancy to term would be the ones seeking abortions, and that requiring them to forego that option will result in pregnancies that are less safe, and therefore in infants that are more difficult to place for adoption. Hiding your pregnant belly from your mom or your friends can result in experiencing your pregnancy under conditions that are bad for you (exposure to smoke, exposure to alcohol, unhealthy diets); having such a pregnancy discovered can result in being unhoused for the duration of your pregnancy; all this instability will surely result in less responsible and consistent prenatal care.

A birthmom who knows she can’t parent will then search the Internet high and low for adoption agencies, trying to find one with serious social workers and good services. She’ll then go through an intake interview with a social worker, who will ask her about her medical history, prenatal care, and use of alcohol/drugs. I’ve taken classes with other adoptive parents: the medical history is something that can be scary for prospective parents, and birthmoms can, of course, guess this. So, what happens when someone who has not had the resources to properly care for themselves and their baby tries to place said baby for adoption? Would it surprise anyone if this would result in more deceit and evasion when interviewed by adoption agency social workers?

I can see very unhealthy prospects for the adoption market under such circumstances. With the inability to verify pregnancy details, or to provide proper care to prospective moms, unscrupulous lawyers and corrupt social workers might step in with unhealthy incentives, pressure, and coercion–akin to the worrisome trends we see in the international adoption market. This means less safety and trust precisely in a situation that requires an enormous amount of empathy and mutual trust. It means less careful vetting of adoptive parents–the actual people who are to raise and nurture this precious life. And it also means that women who might withstand the pressure and try to parent their kids might have to later relinquish them by court order, or due to other awful circumstances, which throws kids into the traumatizing world of government care at an early age and creates considerable challenges even in the happy cases that end in fostering and adoption. Many people who can become fantastic parents to infants through open adoption might not have the emotional fortitude and resources to address and heal the trauma of older kids. Corollary: Throwing birthmoms into these situations ahead of time by eliminating a safe, legal option, is not a boon for adoption–the opposite is true.

Additionally, if, indeed, adoption is to be the panacea for the problem of sentient life, then we should also care about the life of the birthmom after adoption–in the form of extended services to help heal the trauma, beyond some meetings with a social worker: I’m talking college money, gym membership, grocery money, job seeking support. Of course, all this assumes that Alito et al. truly want birthmoms, after giving the gift of motherhood to someone like me, to land on their feet and “fully participate in the ‘economic and social life of the Nation.” Do they?

The truth is that none of this is really about abstract notions of sentience nor about seeing the abortion/adoption thing as a zero-sum game, because it is patently clear that neither value is being advanced by forcing women to carry pregnancies to term or risk a dangerous back-alley procedure. Friends, here’s what’s going on: Justice Alito and his buddies are simply out to penalize women (the wrong sort of women?) for having sex. That the punishment might extend to other (sentient) people in the equation–a child, adoptive parents, adoption professionals–simply does not enter into their equation. The idea that someone who receives solid, reasonable, science-based sex education should be able to just say yes to sexual activity with whoever they choose, with however many people they choose, in whatever form, in whatever frequency, so long as all are of sound body and mind and consent and respect each other, is anathema to them. They know that legal prohibitions will not deter young people who have been deliberately left ignorant about the functions of their own bodies from having sex. They don’t care. Because they don’t intend to ever pick up the price tag for the many young lives that will later end up in flux, this is a complete externality to them. And that is what is so atrocious here.

What If Everything I Thought About Social Media Engagement Is Wrong?

It’s been a while since I posted here; my two jobs have kept me busy (this semester I’m adjuncting at Berkeley on top of my full-time Hastings position,) as have my family and my athletic pursuits. I successfully completed the Oakland Marathon (see my proud photo with the medal!), am training for several big events this year including the Tiberias Marathon, and we found a wonderful school for our son. I’ve also written three pieces (a book chapter about the persecution of animal rights activists and two papers based on chapters 6 and 7 of Fester) and am working on the fourth (a comparative analysis of approaches to intra-racial crime in Israel and the U.S. through the lens of American Political Development.) All of this means that I’ve had far less patience and forbearance for the vicissitudes of social media.

We’re being encouraged to “engage,” “interact,” and be “relevant” to public discourse through these channels, but this morning I spent some time rethinking the role that my so-called “engagement” has been playing in my personal and professional life. I kept saying that twitter was useful to me in that it put me in touch with very dear people who had important information on COVID in prisons and jails, but now that the fieldwork for Fester is largely finished, I can always contact these good folks via email. I also kept saying that, when I’d retire, as a gift to myself, I’d quit twitter. Why wait?

I know that, for many colleagues, twitter can be invigorating, validating, and community generating, but it has not played that role in my life. What I get from the platform is, largely, annoyances, as well as a strange compulsion to explain myself to complete strangers. I feel manipulated by the outrage machine, and there’s a constant sense that there’s a way to really proliferate and enjoy oneself there and I just didn’t get the memo. I also find that the erosion of free speech and civil discourse, which I have valued about my job in the past, are worse on these platforms–it’s a magnified version of the discontents of my in-person job. Rarely have I come across anything original or interesting there, and I can’t think of a single situation in which an idea I saw there contributed to my work. Perhaps some opportunities have come my way via social media, but many more have come through traditional reputational channels. In sum, the net effect on my professional and personal quality of life has been negative, so, why do it?

In any case, I think I’ll come back to writing some longer pieces here more frequently. Blogging has consistently been a good way to generate and develop ideas that later find their way into my articles and books (this is especially true about Cheap on Crime and Fester.) If you’d like to engage, you’re welcome to read here, as I’ll be spending less (possible no) time elsewhere.

If you are an academic who has made a success of their career with little to no social media presence, I would love to hear from you. That is what I want for myself and I’m looking for role models.

At SFPD, All the Double Coils Go in the Same Box

Last week I received a call from a journalist following up an astonishing story: the San Francisco police apparently used DNA evidence collected from a sexual assault survivor years ago to identify and arrest her in connection with a recent, unrelated property crime. San Francisco District Attorney Chesa Boudin was horrified and proceeded to dismiss the charges, but the case continues to make headlines. It turns out that local DNA databases are less heavily regulated than the federal ones, and it is regular practice for the police to upload rape kit DNA to the database–both the perpetrator’s and the victim’s.

My initial reaction to this story was astonishment; it is extremely jarring to consider that someone consents to an invasive and extremely unpleasant forensic examination following one of the most traumatic experiences a person can go through, persevering with it so that the police can catch the person who did this to them, only to find themselves on the receiving end of a criminal prosecution for an unrelated incident. I was also quite astonished at the juxtaposition between the shameful backlog in testing rape kits for the sake of arresting the perpetrators and this overzealous haste to do something with the victim’s DNA. There’s no question in my mind that this is appallingly unethical, but is it also a constitutional violation?

The Fourth Amendment prohibits unreasonable searches and seizures; the first question in every Fourth Amendment analysis is always whether the police activity in question is, indeed, a search. Since Katz v. United States (1967), courts use a subjective and an objective test to answer this question: (1) Has police behavior infringed on the person’s expectation of privacy? and, (2) is this expectation of privacy something that society is prepared to recognize as reasonable?

Until recently, the concept of privacy was practically nonexistent in Fourth Amendment jurisprudence whenever a person disclosed or exposed something to a third party: anything you discard, expose, or share, is fair game, and the risk that the third party will share it with the police is on you. This is true for things you say to a friend (whether or not the friend testifies against you later), the numbers you ring from your home phone, information you share with the bank, the garbage you leave on the curb and, as we recently learned, DNA you share with ancestry websites (which can be used for familial identification, too.) While the collection of forensics for a rape kit is done by a nurse, not by police personnel, under the pre-2018 Third Party Doctrine this should technically not matter; moreover, Sameena Mulla‘s excellent book The Violence of Care shows how much this agonizing process feels forensic rather than medical (and is done by nurses who fully identify with the forensic mission of the rape kit collection.)

But in 2018, the Supreme Court decided Carpenter v. United States, in which Justice Gorsuch expressed discontent with the breadth of the Third Party Doctrine. The Court limited their decision to the exhaustive collection of cell-site location information (CSLI), and explicitly declined to overturn the entire doctrine, but it certainly signals less enthusiasm for the doctrine. The same considerations–extensive collection, intimate information, access to holistic information about the person–are present in the context of DNA use for different purposes than the ones it was collected for, as Annabelle Wilmott explains here. While I don’t think that, at present, the Fourth Amendment forbids what SFPD has done here, I don’t think it will take long for the Justices to curb the Third Party Doctrine in the context of DNA collection–a few additional high-profile scandals like this one, particularly in unsavory, unconscionable contexts such as this one, and there will be massive public distaste for this (consider that the US population is particularly concerned about privacy.)

I do want to push on a few aspects of this narrative, though. When friends told me how appalled they were that charges were filed, I asked them, “would you be as appalled if you found out that the victim’s DNA linked them to a heinous crime, such as a homicide or a sexual assault?” This is not merely a parlor game. We know that many people who commit heinous crimes were themselves victims of serious physical and sexual violence in the past. For some of my colleagues, this possibility would dampen the outrage. The other thing I wondered about was, given that SFPD claims this is standard practice, whether they have a significant yield of crimes solved as a consequence of this practice (and possible other practices of tossing into the crime database DNA collected for other purposes.)

Another policy consideration–that this perverse use of DNA will dissuade victims from submitting to forensic examinations–does not sound serious to me. The exam itself is already daunting and unpleasant enough in itself that any effect this additional story might have on people’s considerations whether or not to submit to it seems to me marginal (this is not a good thing, but it seems nevertheless to make sense.) I also think that this policy argument has the potential to suggest that collecting rape kits is an unqualified good, when Mulla’s excellent book shows that the overzealous enthusiasm about forensics leads to collecting them when they are completely immaterial to the investigation, such as in the many cases in which the rapist is known to the victim and sex itself is not in dispute (but consent is.)

This Chron story suggests that SF Supervisors are contemplating legislation that would prohibit this particular mishap from happening again, and I worry that, in the haste to react to an unpleasant high-profile incident, the opportunity for a more thorough investigation and regulation of the entire local DNA database business will be missed.

The House Always Wins: Quasi-Judicial Immunity in the Valley Fever Prison Case

This morning at the Western Society of Criminology Annual Meeting I’ll present Chapter 6 of our upcoming book FESTER, which I’ve tentatively titled The House Always Wins. In this chapter we show how, in both federal and state litigation for COVID-19 healthcare, prison authorities and the guards’ union run jurisdictional circles around the prisoners and their advocates, playing forum battles and jurisdictional whack-a-mole. This morning brought in its wings a fresh example of the same situation: on February 1, Judge Tigar (who also presides over the COVID class action Plata v. Newsom) granted the current and former federal receivers of the prison healthcare system (Clark Kelso and Robert Sillen) a motion to dismiss a class action involving the valley fever outbreak of the mid-2000s. Sillen was appointed Receiver on February 14, 2006, effective April 17, 2006, and was fired by Judge Henderson after two years (it later turned out that Sillen and his employees were overpaid to the tune of hundreds of thousands of dollars.) Kelso was appointed his successor on January 23, 2008, effectively immediately, and is still occupying that position.

The installment of the receivership created an uneasy division of labor between CDCR–a state department–and the federally-appointed Receiver, who was now vested with the authority to oversee and manage healthcare in prisons as well as with the powers of an officer of the (federal) court. Here is what happened next, which Judge Tigar quotes directly from the Ninth Circuit decision:

In 2005, California prison officials noticed a “significant increase” in the number of Valley Fever cases among prisoners. The federal Receiver asked the California Department of Health Services to investigate the outbreak at Pleasant Valley State Prison, the prison with the highest infection rate. After its investigation, the Department of Health Services issued a report in January 2007. It stated that Pleasant Valley State Prison had 166 Valley Fever infections in 2005, including 29 hospitalizations and four deaths. The infection rate inside the prison was 38 times higher than in the nearby town and 600 times higher than in the surrounding county. According to the report, “the risk for extrapulmonary complications [was] increased for persons of African or Filipino descent, but the risk [was] even higher for heavily immunosuppressed patients.” The report then explained that physically removing heavily immunosuppressed patients from the affected area “would be the most effective method to decrease risk.” The report also recommended ways to reduce the amount of dust at the prisons. After receiving the health department’s recommendations, the Receiver convened its own committee. In June 2007, the Receiver’s committee made recommendations that were similar to those from the health department.

In response, a statewide exclusion policy went into effect in November 2007. The inmates who were “most susceptible to developing severe or disseminated cocci” would be moved from prisons in the Central Valley or not housed there in the first place. The prisons used six clinical criteria to identify which inmates were most likely to die from Valley Fever: “(a) All identified HIV infected inmate patients; (b) History of lymphoma; (c) Status post solid organ transplant; (d) Chronic inmmunosuppressive [sic] therapy (e.g. severe rheumatoid arthritis); (e) Moderate to severe Chronic Obstructive Pulmonary Disease (COPD) requiring ongoing intermittent or continuous oxygen therapy; and Inmate-patients with cancer on chemotherapy.” Inmates were not excluded from the Central Valley prisons based on race. The Receiver refined the exclusion policy in 2010 and created a list of “inmates who [were] at institutions within the Valley Fever hyperendemic area that [needed] to be transferred out.” The record does not indicate that the 2010 policy excluded inmates from the outbreak prisons based on race.

In April 2012, the prison system’s own healthcare services released a report examining Valley Fever in prisons. The report concluded that despite the “education of staff and inmates” and the “exclusion of immunocompromised inmates,” there had been “no decrease in cocci rates.” The authors found that Pleasant Valley State Prison inmates were still much more likely to contract Valley Fever than citizens of the surrounding county. From 2006 to 2010, 7.01% of inmates at Pleasant Valley State Prison and 1.33% of inmates at Avenal State Prison were infected. By comparison, the highest countywide infection rate was 0.135%, and the statewide rate was just 0.007%. From 2006 to 2011, 36 inmates in the Central Valley prisons died from Valley Fever. Prison healthcare services also found that male African-American inmates were twice as likely to die as other inmates. Each year, about 29% of the male inmates in California are African-American, but 50% of the inmates who developed disseminated cocci between 2010 and 2012 were African-American, and 71% of the inmates who died from Valley Fever between 2006 and 2011 were African-American.

Following this report, the Receiver issued another exclusion policy –one that would effectively suspend the transfer of African-American and diabetic inmates to the Central Valley prisons. The state objected, but the district court ordered the prisons to comply with the new exclusion policy.

Hines v. Youseff, 914 F.3d 1218, 1224-25 (9th Cir. 2019)

In Hines, incarcerated people infected with valley fever attempted to sue CDCR officials for mismanaging the outbreak; the lawsuit failed due to qualified immunity. The officials prevailed because they followed the orders of the Receiver. This week’s decision dismissed a similar lawsuit against the Receiver.

The valley fever victims argued, on the merits, that the Receivers were neglectful in their preventative approach; the Receivers countered that, as officers of the court, they have quasi-judicial immunity. The plaintiffs attempted a sophisticated attack on this argument, claiming that the Receivers should not have directed CDCR’s preventative policies, and that their mandate was limited to providing medical care. The argument failed: Judge Tigar found that “prevention of disease is, and always has been, within the Receivers’ jurisdiction.”

Ironically, it is precisely this wide mandate that aided the Receivers’ success in dismissing the case. Because they were acting within their authority, writes Judge Tigar, and because said authority is quasi judicial, they can enjoy immunity. Weirdly, “Plaintiffs do not argue that the other exception to judicial immunity – for actions “not taken in the judge’s judicial capacity” – applies here”—I think that’s precisely what I would have argued in this case, as Sillen and Kelso were acting as medical officials rather than judicial ones.

If this seems overly technical, it’s because it is. As I observe in chapter 6 of FESTER (more to come on that in the next few days), the particular gymnastics of each courtroom failure are less important (albeit technically interesting.) What’s important to observe is that the Byzantine nature of California’s correctional healthcare system, which, ironically, stems from the effort to create patchwork remedies for the system’s own ineptitude, then stands in the way of recourse for this very ineptitude.

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Hat tip to Allison Villegas, who sent me this decision.

Impending Closure of Death Row

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

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

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

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

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

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

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

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

Emotional and political reasons may be driving votes

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

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

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

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

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

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

Newsom’s reimagining of prisons and what’s missing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Omicron Is Here, and We’ve Learned Nothing

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

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

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

To recap, after everything we’ve been through:

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

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

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

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

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Meaningful Ways to Support Animal Liberation through Criminal Law

Happy Return of the Light to all my readers! I hope the lengthening days and multifaith holidays of light are giving you some hope, even in the face of some difficult challenges we face (I’ll talk about some of the newest developments regarding COVID in prisons in my next post.)

I’m using this post as a way to organize my ideas for a new chapter in an anthology about animals as victims of crime. One of the most common advocacy paths in animal rights has been an effort to enhance the statutory structure of cruelty to animal laws: creating more offenses, raising sentences, and pursuing prosecutions. As Justin Marceau explains in Beyond Cages, this agenda–which hopes to change the lives of nonhuman animals for the better–tends to target, most of the time, a demographic that is already suffering in serious ways: impoverished people trying to take care of their pets (as I explained elsewhere, the landmark decision State v. Newcomb, in which the Oregon Supreme Court found that removing a dog from the household and testing his blood is not a “search” under the Fourth Amendment, involved precisely that scenario.)

My views on the punitive animus behind so-called progressive movements are well known; in the last few years, I have been alarmed by the amount of mobbing, vindictiveness, and shrill calls for Draconian punishment in the guise of seeking social justice, and this regrettable phenomenon shows no sign of abating, even as more and more people are vocal about how fed up they are with it and how, again and again, it targets the wrong people. More prosecutions deployed against the low-hanging fruit of poor people, as opposed to against the vile factory farm industry, are not the way to go. But there are several ways in which we can support animal liberation through criminal law tools.

The first thing we should consider is what “victim status” actually means–legally, culturally, and symbolically–when said victims don’t actually “use their voice.” Rather, a variety of spokespersons try to assume the role of speaking for the animals. This reminds me, to some extent, the ways in which the parties in a homicide trial try to bring forth the decedent’s perspective, which is of course tragically missing from the trial–but at least there they can rely on the decedent’s history, what they might have said or done when alive. This is not something we can do for animals, though we can and should be enlightened about the extent to which animals can and do suffer, physically and psychologically. Nonetheless, I don’t think that it’s useful to think of the problem of serious crimes against animals through the common formulation of criminal law’s importance for victims–getting “justice for A” by “punishing B.” What would “justice” mean to a nonhuman victim? In one of the most recent conversations about crime survivors and criminal justice, the high-profile trial of Brock Turner, much of the conversation revolved around Chanel Miller’s victim impact statement. What would be the equivalent of such a statement on behalf of an animal? And, more importantly, what would it mean to a nonhuman animal if there were ways to present their perspectives in court?

As you can tell, I have serious doubts about using the “justice for A by punishing B” framework even for human animals, but it seems pretty clear for me that, for nonhumans, symbolic victories of this nature are meaningless. It seems to me that the goal of pro-nonhuman-animal criminal law reform should be making actual, practical headway in animal liberation as well as in animal protectionism. Because of this, I propose the following avenues for reform:

If seeking status for animals in criminal law, we should emphasize ways in which this status actually promotes welfare for animals–such as recognizing harm to animals as “harm to someone” to provide animal rights activists and open rescuers the necessity defense. I think that the common law definition of necessity already supports this interpretation and urge courts to clarify it.

We need to develop better ways to help folks who participate in animal exploitation and abuse as part of a cultural tradition that is important to them (I’m thinking of Katie Young’s ethnography of Hawaiian cockfighters, but Passover lamb slaughter rituals and the U.S. traditional consumption of turkey during Thanksgiving would also count) interrogate their own assumptions about the personhood/sentience of the animals. These questions can be very difficult to explore and we need to find ways to make inroads in these sorts of situations. This also matters when looking at criminal defendants clearly suffering from mental illness, such as animal hoarders, who often believe they are caring for the animals they abuse. Insights that go against the grain of cultural traditions and mental health landscape are very difficult to develop in the context of an adversarial trial, where one is already antagonized by the very fact of being a criminal defendant.

In the area of companion animals, one way to prevent prosecutions before they even happen is to provide people who live in poverty dignified ways to care for their animals, which would be good for the humans as well as the nonhumans. Expanding on the work of Paw Fund and Pets of the Homeless is crucial, as is the financial assistance program of the San Francisco SPCA.

It is surprising how little attention is given in conversations about animals in criminal law to the exploitation of animals in law enforcement. We talk about the racial symbolism of using horses to quell protests for humans (see here also) but not nearly enough about the appalling aspect of involving these horses in human conflicts in this brutal manner (so much of human warfare has relied on animals–you’d think this would be a topic of conversation already.) Contrary to what activists may think, one conversation here does not have to come at the expense of another. This conversation has to go beyond labor rights for police animals (a great example of animal personhood that actually has practical importance!) to questioning their use in the first place.

In Beyond Cages, Marceau proposes shifting the prosecutorial focus from impoverished individuals to corporations; I understand where he’s coming from and empathize with his perspective, though I think that this proposal suffers from the same problems as many anti-carceral proposals: they don’t go far enough–merely expanding the population of “defendants we care about” and leaving the last bastions of carcerality (corporations, rich people, white supremacists, cops) in place. Instead, I think it is wiser to let go of the criminal framework even for corporations, choosing instead to pursue civil liability strategies involving monetary damages, which can potentially incentivize changes in industry standards. The threat of civil action can go hand in hand with the kind of business incentives that Leah Garcés discusses in her book Grilled and Bruce Friedrich promotes at the Good Food Institute.

Does any of you have other ideas for ways in which criminal law can promote animal liberation without the punitive/carceral focus?