Similarities and Variations in Legal Responses to COVID-19 in Correctional Facilities

This morning I’ll be speaking, alongside Sharon Dolovich, James King, and Jane Dorotik, about court responses to COVID-19, at an event organized by UCLA Social Medicine. Thankfully, we now have a somewhat fuller picture of how litigation efforts have fared overall, which we can draw on to discuss some similarities and variations.

One of the things mindfulness has taught me is that disappointment depends on expectations. In that respect, to say that correctional policies during COVID-19 have been a disappointment reflects, perhaps, unrealistic expectations from institutions that have been unwieldy and incredibly resistant to change even at the best of times. Perhaps it’s not that unexpected that the giant machine that protects the correctional colossus from reform was overall characterized by delays, evasive maneuvers, reversals of fortune and too-little-too-late gestures. So, if one expected mass releases, the disappointment would be commensurate with the expectations.

Still, there is an objective benchmark against which to measure my disappointment: the problem is not that the releases fell short of being what I hoped they’d be–it’s that they fell short of what was needed to curb the spread of the pandemic. We don’t have to wonder what that number would be; we had assessments of individual institutions with recommendations from physicians specializing in pandemic spread. I think that now, in mid-April 2021, we can safely say that, with respect to releases, courts have failed to provide the relief they should have provided.

We have two great nationwide summaries that support this conclusion. Brandon Garrett and Lee Kovarsky’s new piece Viral Injustice is a survey of COVID-19 correctional litigation outcomes. Garrett and Kovarsky conclude:

Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Brandon L. Garrett and Lee Kovarsky, Viral Injustice

We also have an excellent summary from the Prison Policy Initiative, who concluded that overall the response was “grim”:

Lawmakers failed to reduce prison and jail populations enough to slow down the spread of the coronavirus, causing incarcerated people to get sick and die at a rate unparalleled in the general public.

However, some individual state and local policymakers took steps that stand as an example of how to release a large number of people from prison — a necessary step to ending mass incarceration. And some policy changes made during the pandemic — like eliminating cruel copays for incarcerated people — are ones we need to remember and demand that they be extended permanently.

Prison Policy Initiative, The most significant criminal justice policy changes from the COVID-19 pandemic

I want to throw in a few additional issues that illuminate aspects of these legal responses:

  1. The PLRA, while greatly responsible for suffocating prison litigation, is not the be-all, end-all of the problem. Following Plata v. Newsom closely, I’m not sure how much of the inaction is Judge Tigar’s allegiance to the PLRA framework and how much of it is a culture of conciliatory, deferent approach and valuing “bringing everyone to the table” rather than ordering a solution. Some of this could be down to individual judicial personalities and some of this could be attributed to litigation cultures in different states or even in different counties. I think that our good fortune in the first round of Von Staich was because we were fortunate to get a panel that was deeply responsive to both the humanitarian emergency behind bars and to the geographical argument that the threat would extend to outside communities.
  2. Relatedly, I don’t think that the state vs. federal litigation was the important distinction. Nor was it class action vs. habeas corpus. I think the defining feature of the litigation is the aggressive deference to correctional authorities–giving vague, modest relief knowing that correctional officers and their lawyers can sabotage it.
  3. Generally speaking, and beyond CA, the staff has been the problem–from dragging their feet to actual frustration of purpose (by not testing, not reporting symptoms, and not getting vaccinated.) There has been precious little done to hold correctional officer unions accountable for their colossal leadership failures.
  4. In the absence of releases, there’s been a lot of reliance on bottleneck provisions–stopping admissions from jails, which put the onus on jails to handle their own pandemic issues, often without data and without accountability. The counties have been left to figure things on their own, with dramatically varying degrees of success (see my analysis of this here.)
  5. The advent of the vaccine made a difference, both in terms of state enthusiasm to help incarcerated populations and in the courage of courts. How vaccines played into advocacy and litigation is a complicated story, which Chad and I will analyze more thoroughly in our book-in-progress, #FESTER: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract, UC Press.) In a nutshell, vaccines opened an avenue that allowed courts to avoid grappling with their paralysis regarding releases and recur to a short-term strategy to provide immediate relief from the current pandemic. And even this was not always necessary, given that many states got ahead of the courts and gave the vaccines.
  6. The most notable aspect of the deference/reluctance to do more for prison and jail populations was the prevalence of zero-sum games of deservedness (“grandma before inmates!”), which ignored obvious implications of geography and epidemiology: the idea that people in congregate settings, no matter who they are, face more risk, and that spaces that are jurisdictionally/institutionally set apart from society at large are, in fact, permeable to disease. This is going to be the main premise of #FESTER.
  7. The deservedness argument posed some difficulties in advocacy and organizing: does making the argument that jail populations are largely presumed innocent introduce the deservedness scale, which as Kovarsky and Garrett show was at play in the overall picture of relief? And, how to advocate short-term for vaccination while advocating long-term for releases?

Teaching Crimmigration to Criminal Procedure Students: Lessons from the First Year

My advanced criminal procedure course is, as far as I know, the first and only criminal procedure course in the U.S. to include a crimmigration unit. Following a formative semester as a visitor at Harvard, during which I audited Phil Torrey’s terrific crimmigration course, I decided that this was an essential addition–this blog post, which I wrote at the time, explains why.

At the time, I hypothesized that there were knowledge gaps in immigration, which were not completely closed since the Supreme Court’s decision in Padilla v. Kentucky (2010). I was not the only one; in this piece, Gabriel Chin discusses the professional toll that Padilla advising would take on defense attorneys, who would now have to specialize in immigration law. Even in Padilla itself, Elena Kagan–then the U.S. Solicitor General–spoke about her concerns that an entire cadre of professionals would now need to acquire expertise in an adjacent (and not particularly easy to master) field.

True, Padilla did not require defense attorneys to become full-fledged immigration law experts. It only required them to advise clients of the immigration consequences of their conviction if those were clear. The problem is that one needs to know at least something about immigration law to even identify the appropriate statutes (for example, is the person admitted or not admitted to the U.S.? in the former case, the law is in INA §237; in the latter, in INA §212.) You can’t know whether the answer is clear without understanding what the question is, and that in itself requires expertise. A big part of the wisdom, from a defense attorney’s perspective, is having the basic skills to understand whether the immigration determination is even within the attorney’s wheelhouse.

Since Padilla was decided, public and private criminal attorneys have adopted a wide range of approaches to close the knowledge gap. For the purpose of creating my module, I assembled two focus groups of friends from various areas of practice. Beyond two immigration experts (an immigration law prof and a lawyer at an immigration rights nonprofit) I had three prosecutors, one appellate attorney, three public defenders and two defense lawyers in private practice. Before practice-teaching them the modules I created, I asked them where they got their immigration law expertise. I got quite a variety of answers:

One prosecutor said that their office took immigration consequences into account when charging; they had an immigration unit staffed by experts. The other prosecutor said that the D.A. ignored all immigration matters and instructed them to proceed as if immigration consequences did not exist. Out of the defense attorneys, the appellate lawyer was unfamiliar with the field (this is unsurprising, as appellate lawyers would only rarely encounter it.) The bigger, urban public defender offices had immigration units in-house, staffed by experts. In one rural public defender’s office, one person at the office specialized in immigration law and became the office’s unofficial go-to “expert.” In another rural office, everyone learned a little and called immigration nonprofits when they needed advice. The private attorneys were lost at sea and would use published materials from nonprofits when advising their clients. Everyone professed great ignorance and panic at being entrusted with counseling clients on immigration consequences.

The focus groups conversations convinced me that there is great need to add the basics of crimmigration to criminal procedure courses–at least the advanced bail-to-jail courses that are taught to people seriously contemplating criminal justice careers.

What to teach

In shaping the curriculum, I consulted with Phil and with my colleague and friend Tally Kritzman-Amir on what to teach. I decided that the students needed to know what what would touch on their criminal practice (and if they wanted to know more about immigration law, they could take a specialized course.) As criminal attorneys they are most likely to encounter crimmigration when advising clients whether to plead guilty or when negotiating charge bargains, so they would need to be familiar with the most popular removal grounds–aggravated felonies, crimes of moral turpitude, and some of the specific removal grounds–and acquire the skill of ascertaining whether a particular criminal conviction satisfies any of these. Many interesting crimmigration topics, including a detailed history of the immigration code, the immigration removal procedure, detention and bond, and immigration protections, were left out of the curriculum. To facilitate learning, I broke the crimmigration unit into three modules:

Module 1: Background to crimmigration (including Padilla and science-based readings refuting the immigration-crime nexus and examining the emergence of IIRIRA and today’s removal grounds); The admissibility doctrine (distinguishing between admitted/deportable and non-admitted/inadmissible noncitizens, defining “conviction” under immigration law, knowing the consequences of these definitions and distinctions); the categorical and modified-categorical analysis (the basic analytical tool the students would be using in Modules 2 and 3.)

Module 2: Aggravated felonies (explaining what generic offenses are., focusing on the categories of “crime of violence” and “trafficking in a controlled substance”, and highlighting the difference between elements of a generic offense and circumstance-specific elements, such as loss to the victim.)

Module 3: Crimes of moral turpitude (explaining the category within and outside the context of immigration, practicing some cases); the specific grounds of drugs, firearms, and domestic violence

The choice to front-load the mechanics of the categorical analysis reflected the fact that, of all the material I teach in the course, this would be one of the most difficult skills to master, in no small part because the federal removal grounds are so thin, vague, and poorly drafted, and state law can so often be overbroad and abstruse. This was also the reason I chose to sequence the entire crimmigration unit after teaching double jeopardy and sentencing. I reasoned that, at this point in the course, the students would have mastered the art (hopefully taught to them in 1L criminal law) of breaking an offense into its elements. Before teaching double jeopardy, I provided them with a prerecorded refresher on elements of the offense, reminding them that this skill matters beyond substantive criminal law. This way, prior to studying the crimmigration unit, they would practice this skill when determining whether two offenses count as the “same offense” for double jeopardy purposes (under Blockburger) and when determining whether a particular fact must be alleged in the charging document and found by a jury beyond reasonable doubt (under Apprendi.) These two topics would also serve as a rehearsal before learning the categorical analysis and make it more comprehensible.

A note on terminology

The first question I faced was what to call the new unit. I automatically gravitated toward the term “crimmigration”, popularized in Juliet Stumpf’s seminal article. The term has gained considerable traction, becoming the title of César Cuauhtémoc García Hernández’s book and eponymous blog. But then I received a thoughtful note from a colleague who explained that, when Stumpf adapted the term, it was being used in white nationalist/neo-Nazi circles with racist and xenophobic connotations. Its portmanteau construction can also be seen as reinforcing a particular set of suggestions about immigration and criminality that we seek to reject–namely, that there is a nexus between immigration and criminality. My colleague suggested the colloquial alternative “crim-imm”, or the clunkier “convergence between immigration control and crime control” (which reflects, quite well, Stephen Legomsky’s wonderful piece about the asymmetric convergence between the two fields.)

My colleague’s comments were well-taken, and I gave them a lot of thought, but finally decided to keep “crimmigration” as the unit title. There’s value in introducing students to the field by the name the field is known, so that if they seek to know more, it’s accessible and available to them. I also think that terminology isn’t static–it changes over time, and there have been multiple examples of derogatory terms being redeemed and put into empowering use by the people they sought to oppress.

Which brings me to the second issue. Immigration law currently uses the term “alien” to refer to noncitizens (here’s a CIS primer on definitions). Several students emailed, feeling jarred by the statutory terminology, saying it sounded “racist” (I think they meant xenophobic or dehumanizing.) I know this sentiment is shared by many, to the point that the Biden Administration is poised to change the term. I confess that I’m not an enthusiastic convert to the terminology obsession, which does not show any signs of abating. I get it–I’m not stupid–words can create reality. But we’re imbuing words with much more power than they have, I think, and this constant cycle of the linguistic washing machine is diverting attention from more important matters. It reminds me of how, as a child, I heard adults around me say “she has a bad thing… they found something…” treating the word cancer as if it was Voldemort. If a horde of dedicated, progressive-minded Biden officials do a “find + replace” function on the immigration code and replace all instances of “alien” with “noncitizen”, but leave all the removal grounds intact and continue to deny basic Gideon rights to people facing permanent banishment from the country, the enlightened terminology is not going to cheer me up. And given that the zeitgeist is all about certifying only the oppressed for speaking about their own oppression, I am happy to tell you that, prior to my naturalization in 2015, I was an “alien” for fifteen years–an alien student, a nonresident alien with extraordinary abilities, a resident alien–and I always found the term humorous and not dehumanizing at all. If foreigners are dehumanized and marginalized in the United States–and they absolutely are–it’s not because of what the INA calls them; it’s because of what we are misled to think about them. Nationalists were not born with the term “alien” at hand. “Alien” means foreign; it was then borrowed to describe extraterrestrial life. Whatever “they” took, “we” can reclaim, for whatever value of “they” and “we.” In class, I use “noncitizen” when I talk (or, when relevant, “lawful permanent resident” or “visa holder”), and “alien” when I’m quoting legislature, and I leave it at that.

What to read

For this course, I use an electronic casebook hosted by ChartaCourse, which gives me great control ver my materials. I assigned a bit of Legomsky’s article, sections from the INA, and some key cases. The selection of cases presented some challenges, though. The categorical and modified categorical analyses, which are the cornerstone of crimmigration, were established in federal cases, Descamps and Mathis, both of which deal with portions of the Armed Career Criminal Act (ACCA.) This presented a dilemma. On one hand, I wanted the students to know that the categorical analysis will come in handy in a variety of federal legal contexts; on the other, I didn’t want to confuse them and muddle the issue by making them read cases that are not about immigration. I opted for omitting Descamps and assigning only the portion of Mathis that explains the analysis.

As to the rest of the cases, I had to be quite selective and a harsh editor. The cases come from various federal courts and from the Board of Immigration Appeals (BIA), and they often involve various issues that pertain to the immigration side of the case, e.g., adjustment of status issues or removal protections. For the limited purpose of criminal practice, the students don’t need to know that. There are also cases that deal with interesting but arcane immigration law sections, and the choice I made was to focus on the common deportation and inadmissibility grounds. I can already see how making the choice to teach these materials will require keeping abreast of the information in a field adjacent to my own with its own precedents, etc., but there are blogs and other good people working on this, and honestly, after Padilla, I do think it’s our responsibility to teach this.

Finally, my materials include one of the best helping tools for criminal lawyers: the ILRC reference table and notes. It is detailed and trustworthy but, as I found, not exhaustive. I’m trying to teach the students not to rely on the table as the be-all, end-all of crimmigration (even though it’s very useful to have on hand) in the same way that I was taught, when I learned statistics, how to calculate F-values and t-values by hand while also learning STATA. There is immense value in doing the exercise by oneself, and I wanted to put people on the path to proficiency.

Crafting problems

Since the second semester of the pandemic, I transitioned my classes to a flipped classroom model: the students receive readings and prerecorded lecturettes in advance. In class, I go over the basics, and the bulk of the time is devoted to solving problems in small groups. Oftentimes, my problems are shaped after real cases. This proved to be a bit tricky in crimmigration. The cases are very complicated and require serious paring down. They are also often BIA cases, which means there are lots of adjacent, ancillary issues to be resolved on the immigration front. This means the hypotheticals need to be carefully edited, and that the ones based on real cases cannot be the first problems that the students solve. I have had to come up with simpler, two-liner problems that the students solve, and then graduate to problems based on recent cases.

Basing the problems on real cases also presented a problem involving the hermeneutics of immigration law. Because removal grounds are so generalized and vague, and because it is difficult to tell, just from looking at a state statute, whether it is divisible or not, there’s an abundance of caselaw, precedent, and courtroom documentation that needs to be looked at to ascertain how to resolve the problem. In the context of a classroom exercise, it is essential that all the information the students need be within the four corners of the problem. So that, too, requires attention in fashioning the problems. And, of course, working through these hypotheticals can be frustrating to the students, because it is ultimately not where the heart of their practice will lie, and it requires them to visit an entire different world of legal meaning-making. Which brings me to the heart of the matter.

The heart of the matter

I think the frustration and incredulity that the students might encounter when studying this material comes from a pretty understandable source: after all, I am essentially teaching them how to twist and turn their main occupation to bypass the perversion that is immigration law. Rather than looking at what a defendant did and charge them with that, they now have to think ten steps ahead, consider what the feds might do, and craft the whole narrative of the case away from the truth if they are trying to avoid immigration consequences.

What mitigates this frustration, though, is the other component at the heart of the matter: I kept banging the same drum again and again in class–the fact that, across all places, crime categories, and legal statuses, immigrants commit less crime than the native born. I usually deeply dislike facile, oversimplified slogans, but in this case there’s robust social science supporting that, and I had to talk about that again and again because the perception of an immigration/crime nexus is incredibly pervasive and very resistant to modification–more resistant than any other myth of immigration. I think the students might feel better about learning how to perform this analysis if they know that the purpose is to prevent situations in which ancillary, collateral consequences eclipse the actual criminal process and frustrate its goals.

Stressing the moral imperative to take this so-called externality into account in criminal lawyering is important for another reason. That the categorical analysis is technical and ignores the facts of the cases creates the risk that class will become a glib game, akin to the fantastical hypos that are often part and parcel of teaching 1L criminal law. The somber, urgent quality that accompanies the perceived domestic crises (the prime example is the relationship between police departments and communities of color) can be absent from this unless personal stories of people are brought forth. And the absurdities need to be highlighted for people to feel that what they are doing is not just an intellectual exercise of overlaying one offense on top of the other, but a valuable effort to save families from falling apart.

Striking the right balance

Toward the end of the third module, I asked my students whether learning this material made them more or less confident about their ability to do this. Responses were mixed (even though they knew nothing about this analysis before taking the unit!). I’m not sure that’s a bad result. On one hand, per Padilla, you want the students to feel empowered to offer this kind of advisory to their clients–it is their constitutional duty. On the other, you don’t want them to be overconfident about their ability to clearly predict the immigration consequences of everything under the sun. In this respect, Padilla is too optimistic about the ability of a criminal lawyer to tell a simple crimmigration case from a complex one. Immigration law is ever-changing, very responsive to the blowing of political winds, and what my students are taught about immigration law might not be good law under a new administration. Rather than have them freeze in panic, I would like to empower them to take action: call an immigration lawyer or a nonprofit and consult. Because this isn’t going to be sustainable for every lawyer/client, I think that ultimately the answer to the problem of advising noncitizen clients should be a combination of two factors: the emergence of law school clinics whose job is to offer Padilla support to public and private defense attorneys, and the establishment of an excellent MCLE credit network that keeps criminal lawyers abreast of pertinent developments in immigration law.

If you are a criminal procedure professor who read this, feels inspired, and wants to teach my bail-to-jail course with my immigration materials, contact me (or contact ChartaCourse.)

Eight Things AG Rob Bonta Could Do for the CA Prison COVID-19 Crisis

One of the most astonishing contradictions of the last year has been the image of various California political leaders as Lefty Heroes of the Resistance while, on the local level, they perpetuate and worsen the COVID-19 crisis in jails. As regular readers know, I have been quite shocked by the tack that AG representatives took in the various COVID-19 cases, playing evasion games with the courts and, quite frankly, defending the indefensible. The dragging litigation in Von Staich is a case in point–after constantly jamming the wheels of the legal machine to the point that effective relief was completely thwarted, they continue to haggle over symbolic victories even as the case goes to the Marin Superior Court for an evidentiary hearing. The AG’s office was instrumental in clinging to the Court of Appeal’s flexibility, declaring upfront that they were going to do nothing until the case went to the CA Supreme Court while people were getting sick and dying, and at the same time, for ostensibly unrelated reasons, threatening (and executing some) transfers that made everything worse than if no remedy at all were available. The shamelessness of the briefs in these cases is nothing new for seasoned prison litigators, but the delay tactics in the face of rapidly changing circumstances reached new moral lows. Plenty to be appalled at on the administrative level of corrections–CDCR’s deliberate indifference, the county sheriffs’ effrontery, BSCC’s incompetence–but it has been more than matched by the heavy legal artillery the AG’s office put forth to justify and legitimize this human rights crime. I was especially appalled to see the overseer of this edifice of legal whack-a-mole, Xavier Becerra, rewarded with–irony of ironies–the health brief, of all things, in Biden’s cabinet. It has been hard to explain to out-of-state friends how these apparent “good guys,” whose appointments are being celebrated as victories for the left and diversity wins, have been architects of horrific atrocities at the state level.

But perhaps winds of change are blowing – time will tell. Yesterday, Gov. Newsom announced his new choice for Attorney General: Assemblymember Rob Bonta of Oakland. Bonta has been hailed as a progressive lawmaker and death penalty opponent. It’s a very worthy appointment for a variety of reasons. But how will this play out in the context of our prison crisis?

I hope we’ve learned enough to realize that progressiveness, in itself, does not guarantee a ticket out of this abyss. It was not that long ago that Jerry Brown, one of our mainstay progressives, fought Plata tooth and nail all the way to the Supreme Court as Attorney General, threatened his way throughout the Plata benchmarks, even as he finally delivered, as governor, with Realignment. Becerra himself was viewed as progressive, and during his confirmation newspapers parroted the many lawsuits he filed against Trump. Governor Newsom, who is known for his progressive agenda, is another example: he has not budged on releases, to a distressing degree. But Bonta might be different, because just a few months ago he was on stage with us at the press conference the #StopSanQuentinOutbreak Coalition held at the San Quentin gate on July 9. This means he is aware of the horror that has transpired here, and that he probably understands that, without meaningful change, the next pandemic will unfold in pretty much the same way unless we make some drastic change in how we perceive and manage prisons and jails.

Here is my advice for our new Attorney General on how to oversee the legal aspects of the prison COVID-19 crisis:

  1. Stop the evasion games. It is unconscionable for the AG’s office to argue, in Von Staich, that the proper forum is the Marin Superior Court; at the Marin Superior Court, that the proper forum is the Federal District Court; and at the District Court, in Plata, that the proper resolution is administrative, not judicial. There is a reason why there are multiple lawsuits against the prison: there has been deliberate indifference. You need to address them where you stand.
  2. Urge your clients to shape up rather than prop up their defense. If all the money spent fighting these CDCR lawsuits were, instead, spent on halfway houses, reentry options, and proper PPE equipment, as well as on attracting high-quality medical and correctional staff, we wouldn’t be in this mess. Part and parcel of being counsel is offering counsel to one’s clients.
  3. Stop shirking and take responsibility. It has been embarrassing to hear AG representatives argue that hanging COVID informational posters and allowing people to tear pieces of t-shirts to cover their faces has sufficiently ameliorated the risks they created by knowingly transferring sick people between facilities. The Eighth Amendment standard has been met. Taking cover under the courts’ deference to correctional facilities, in the face of the shocking devastation of COVID-19, is an embarrassment to the entire state.
  4. Divert legal energy to the question of vaccination mandates for correctional staff. One of the most appalling aspects of this crisis has been the reluctance of staff to wear PPE, get tested, and get vaccinated. It is a badge of shame on CDCR, CCHCS, and CCPOA. If a sliver of the energy spent on justifying their actions in court were spent putting together an airtight legal structure for requiring staff to get vaccinated (or lose their jobs–which is lawful according to experts)
  5. Listen to criminologists and criminal justice experts when they repeatedly explain that holding people aged 50 and older behind bars is a complete waste of money, which does not improve public safety, but rather undermine it by incubating serious diseases behind bars as well as letting people out into a world they left decades ago and for which they are unprepared. My friend Allison Villegas was horrified to learn yesterday that the oldest person in CDCR custody is 93 years old. Ninety-three?!
  6. Exercise some firm leadership vis-a-vis county prosecutors and county sheriffs. A big part of this problem resides with county jails. It may be time to consider a unified correctional system under state leadership, because otherwise atrocities happen throughout the state that we have no control over (and no way of knowing about.) The California District Attorney Association is a disgrace and an embarrassment, and their unrestrained advocacy on behalf of policies that do not do anything but dehumanize and alienate entire populations must be stopped.
  7. Demand better data collection. As I explain in Bottleneck, a big part of the problem is that we don’t actually know what is going on in most counties, nor do the county and state databases interface with each other. This is inexcusable. Imagine how much more smoothly the machine would run if we could contact-trace, follow people to track recidivism and new charges, and project changes in population on the individual and aggregate level for both state- and county-level facilities.
  8. Visit the prisons. Please go inside and see for yourself the disease-promoting conditions in which we hold our fellow Californians. Surely if they let Justin Bieber in (the outrage! families have not seen their loved ones in a year!) they would let in the Attorney General of California, no?

I really hope this appointment bodes well for all of us, and my door is always open to do research and offer advice.

News on Vaccines in County Jails

The vaccination protocol in county facilities continues to be sporadic, but there are some good news. First, on March 1, 2021, at the ACIP COVID-19 Emergency Meeting, Dr. Kathleen Dooling (CDC) stated: “Transmission in Congregate Settings, such as prisons, homeless shelters, or long-term care facilities or other, continues to be a challenge. Jurisdictions may consider offering vaccines to all unvaccinated staff and residents at the same time without waiting for eligibility of each constituent group.” Look at the 12:10-12:29 minute mark:

Dr. Dooling’s comment updated ACIP’s previous recommendations to include immediate vaccinations of incarcerated persons regardless of the constituent group.

Then, on March 11, 2021, the California Department of Public Health updated its Vaccine Prioritization Guidelines, mirroring ACIP’s updated recommendation to include all those housed in a high-risk congregate residential setting, such as an incarceration/detention facility.

On March 15, Orange County jails were granted authority from our Local Vaccination Task Force to inoculate their entire population. They also made this fantastic video, which includes testimonies that I was so happy to receive from Ken Hartman, Rasheed Lockheart, and Arnold Treviño a few weeks ago, in order to encourage jail residents to accept the vaccine:

I want to especially draw your attention to what Joe Balicki, the Assistant Sheriff, says at the end, which I think is crucially important. While the decision whether to get vaccinated or not has nothing to do with one’s release (nor should it; public health and deservedness should not mix), it does impact the jail authorities’ ability to reintroduce programming and, hopefully, visitation, which makes everyone’s life inside better, regardless of their date of release. This strikes me as an eminently sensible reason to get vaxxed in any correctional facility, and underscores a point we make in our forthcoming book Fester: vaccination is a group effort, not a solitary zero-sum game.

Which brings me to my next point: My amazing colleague Dorit Reiss, who has been fighting the good fight on vaccines for years, has a fascinating new blog post over at the Skeptical Raptor Blog regarding a lawsuit brought by a correctional officer in New Mexico, which she thinks is meritless and will likely not succeed:

The main argument of the plaintiff, through his lawyers, is that it is illegal to require a EUA vaccine. To bolster that, the plaintiff also argues that a COVID-19 vaccine mandate is preempted by the federal EUA. In addition, the plaintiff, through his lawyers, also alleges that the requirement is in violation of his constitutional right to life, liberty, and privacy. This case is different than most challenges to workplace mandates in that the employer is a public employer, the county, which is also limited by the Constitution. 

The first point to remember is that if we go back to the law authorizing the EUA, it does not speak to state or local authorities at all, nor does it speak to employers. The law tells the Secretary of Health to provide information to recipients. But as the CDC points out, traditionally it’s not the federal government who mandated vaccines.

Basically, the plaintiff – and other supporters of the view that the EUA provision prohibits mandates – are asking a court to determine that a provision directed at the Secretary of Health and Human Services overturns an existing legal framework that allows states and localities to impose rules in the public health – and allows employers to set workplace health and safety conditions – by implication, without addressing them directly at all.

Maybe, but that is an extremely big legal change to make by implication. Employers have a decent argument that this provision is not directed at them, and does not change existing state and local law by implication alone.

Further, the provision itself is ambiguous. It mentions the consequences of declining a product, suggesting that there could be such consequences. Especially outside the Secretary’s orbit. 

Plaintiff also mentions that the employers did not inform him of the risks or benefits of vaccines, but the statute is fairly clear that such information needs to be given by those administering the vaccine. It is not directed at employers per se, and the plaintiff was not getting the vaccine from his employers directly.

What about the quotes from the FDA and from Dr. Cohn? Could the employee not rely on them? Well, not really.

First, the FDA issued a guidance document. Under our Supreme Court jurisprudence, while the law is not as clear as it could be in this area, agency guidance does not always get a very high level of judicial deference; Dr. Cohn’s comment would likely get even less deference: it was an oral comment by an official that, although entrusted with substantial responsibilities (and, because of her capability, intelligence, and integrity, deserving of much personal respect) is not a legal expert, and not in charge of applying the EUA law (the latter is relevant to assessing the level of deference).

Further, the language quoted from the FDA – the preemption clause – does not directly address mandates. It is part of the “Preemption” section of the guidance document, and that section, the document explains, anticipates conflicts of state law if “if states have existing requirements governing the shipment, holding, dispensing, administration, or labeling of unapproved medical products or approved medical products for unapproved uses.”

That’s not about the mandate. This clause is not a good source for arguing that the FDA is prohibiting mandates. In fact, the word mandate does not appear in the FDA guidance. The closest reference in the document is that the document quotes that “the statute requires that FDA ensure that recipients are informed to the extent practicable given the circumstances… that they have the option to accept or refuse the EUA product and of any consequences of refusing..”[the vaccine].

The only operational conclusion from that is the FDA’s recommendation to include this language in the EUA fact sheet that manufacturers prepare for recipients. Again, this is directed at recipients – and manufacturers – not employers.

In other words, while the plaintiff has a colorable argument that the EUA law prohibits mandates, the county likely has a much stronger argument that there is no such prohibition. 

The complaint also seems to me to understate the data behind the vaccines, which draw on clinical trials as large or larger than those used to license vaccines, trials consisting of tens of thousands of people, which found the vaccines very effective and very safe. Experience since, with the vaccines given to tens of millions of people, and supported, for example, by a study with over a million from Israel, supports that.

At this point, EUA COVID-19 vaccines have strong evidence to support their safety and effectiveness.

The plaintiff’s lawyers even tried to coopt the famous case of Jacobson v. Massachusetts,   which upheld a vaccine mandate, by pointing out that it acknowledged that there are limits on the government’s power to limit individual rights for public health. That is true, but Jacobson also approached such limits with some deference to the authorities. 

At any rate, a COVID-19 vaccine mandate like this would easily survive the reasonableness requirement embedded in Jacobson. The county is requiring public servants working in certain positions to get a vaccine with extensive safety and effectiveness data behind them.

Plaintiff is a corrections officer, literally working with a captive population in a congregate setting. Plaintiff is not being held down or forcibly vaccinated and does not face criminal charges if he does not vaccinate.

He is told that if he wants to work with a vulnerable population, he needs to get a vaccine. This is an imminently reasonable requirement, in these circumstances. At least arguably, when the state detains people the state owes them to take basic safety precautions and requiring that the correction officers be vaccinated seems a natural step in the right direction – especially since jails have been part of the relatively high rate of Covid-19 seen among incarcerated persons.

I will add that when the government is acting as an employer, those working for it will inevitably be subject to workplace rules. By taking the employment, the employee is accepting some limits on conduct. While constitutional rights do not disappear, there are limits to their application in their employment context – even freedom of speech can be limited in the workplace when the speech is not about a matter of public concern.

Finally, I’m eagerly looking forward to this coming Wednesday, when I get my second shot of the Pfizer vaccine, and to Friday, when I will hold my first in-person office hours in a year! Here’s hoping that you get yours, too, soon.

Not My Circus, Not My Monkeys

Every week, the incomparable Magi Otsri sends a prompt to aspiring writers with an interesting writing exercise. This week’s exercise involved exploring a forbidden emotion. The example she gave reminded me immediately of a phenomenal piece by early 20th century Hebrew literary giant Gershom Shofman, master of the short story. I couldn’t find an English translation, so I’ll provide my own:

The moralizing poet sat in his room and wrote

an earnest complaint on ‘human indifference’

on the old-new matter of ‘to each his own’

on how one falls in the middle of the street

and no one pays attention.

So he sat and wrote–and was startled; a child’s wail

pierced his ears from the outside, where his children were playing.

Plume in hand he ran to them

alarmed, and a great joy overcame him:

A stranger’s child is crying! A stranger’s child.

I expect all parents are viscerally familiar with the emotion Shofman paints so well in this vignette; I felt it myself as a mom numerous times. Rio was a month old when Chad and I took him to the de Young Museum to take in the Teotihuacán exhibit. Chad wore Rio in a carrier and I ran to the restroom, only to hear Rio’s distinct baby cry (“Laaaaaaa!”) from the next stall. A great fear washed over me, followed with such an overwhelming sense of unmitigated joy and relief at realizing that it was someone else’s baby who was wailing. Only after I gained my bearings did a small stream of shame trickle into my joy, a reminder of the Doctrine of the No Self, of Nonduality, of the Sangha, of all children’s cries being equally important, of the Bodhisattva’s Vow to alleviate all suffering. The shame, like a drop of dark ink in a glass of water, painted my relief light blue.

Only yesterday, at the majestic Dolores Park playground, a child spilled sand onto another child’s shirt. My first instinct was to step in, scold, soothe, intervene; then a voice arose within me, whispering, “neither child is yours,” and I kept my attention on my own child, who was calmly driving his toy dump truck with a few of his friends a couple of feet away.

On the way back home–an exhausted child sweetly sleeping in his car seat behind me–I thought about Shofman and other people’s children. Much of my involvement in criminal justice advocacy and in immigration reform efforts comes from the sense that the many horrors we wreak upon children–sentencing juveniles as adults, housing children in dehumanizing dungeons, the current unaccompanied minor nightmare, Flores and “baby jails”–come precisely from the problem Shofman identified: that we instinctively draw a thick line between our child and other children, and as a society, between “our” children, complete with innocence and compassion, and otherized children, whose childhood is deemphasized and denied. In the last few years, whenever I’ve shown Ken Burns’ terrific documentary The Central Park Five to my seminar students, they have expressed shock at the interrogation footage. “How could she treat them like this?”, they say, “It’s so obvious that they are kids.” Yes, I think to myself, it’s obvious now, but it wasn’t obvious in the mid-’80s; as I explain at the end of Yesterday’s Monsters, the “rediscovery of childhood” happened only in the mid-2000s, when neuroimaging technology acquainted us better with the development of the prefrontal cortex.

Contrast these scenarios, in which we must, societally, intercede on behalf of other people’s children, with the oppressive sense that every public foray into the political speech arena, be it a large campaign or a single tweet, can land one in a deep well of irritation, unpleasantness, and social disharmony. I’ve written about the voracious tendency, fed by social media, to make every story a colossal morality tale here and here. These days, every time some twitter scandal does not involve me personally, my default choice is to opt out. Don’t start anything you won’t enjoy finishing, whispers the invisible owl on my shoulder. Why ask for trouble? Whatever you post will be taken out of context by four people and that’ll be the end of you. The Polish proverb comes to mind: Not my circus, not my monkeys.

Our hero John Lewis implored us to get into “good trouble”–and in the tradition of the Jewish drash, I’ll throw in this interpretation: a necessary preamble is the ability to discern “good trouble” from “bad trouble.” Good trouble is the kind we must get into, for our children, for other people’s children, for all children, human, nonhuman, living, breathing. Bad trouble is the sort your heart and common sense tells you will become worse if you step in it. Which is which–your heart’s beat and the drop of disquiet ink in your glass of peace can tell you, if only you listen to it.

Counties, Follow SF’s Lead and Vaccinate Your Jail Populations!

This morning’s Chron is full of delights. Not only is Mayor Breed moving to make the marvelous restaurant parklets permanent, but our county is expanding its vaccination protocols to include several important populations, amongst which is our jail population! Aidin Vaziri reported:

The city will also open appointments to individuals who live or work in high-risk congregate care settings, including correctional facilities, homeless shelters and residential care and treatment facilities, the Department of Public Health announced Friday. People experiencing homelessness will also be eligible.

“Getting vaccinations to people with disabilities and who have severe underlying conditions, and people who are in congregate settings, is an important part of our efforts to save lives and protect our most vulnerable residents,” Mayor London Breed said in a statement.

This is a key move for the various reasons I explained in my previous post and in my new article. Other counties must follow San Francisco’s lead, and if they don’t, a state mandate must be put in place so that jail populations, which are transient by their very nature and a crucial juncture in the community-to-prison-to-community multidirectional pipeline, do not act as superspreading disease points. Here is what I wrote about vaccinating jail populations:

The advent of the Pfizer and Moderna vaccines opened a new avenue of advocacy on behalf of incarcerated populations. Given the prioritization of vaccinating people in congregate housing settings, such as nursery homes, similar arguments were made in the context of prisons. The same arguments can, and should, be made on behalf of residents of county jails. In California, the concerted effort of advocates and experts led to the classification of people in prison as vaccine priorities, in Tier 1B; despite a disappointing January retraction of this policy, as of February 23, 2021, 40 percent of the prison population has been vaccinated. Despite understandable concerns that incarcerated people might harbor mistrust and suspicion of prison authorities, which would stand in the way of administering the vaccine, the acceptance rate among incarcerated people has been high; refusal rates have only been problematic among the staff.

It is here where, once again, the jurisdictional-mechanistic approach to county jails works to the detriment not only of their residents, but of all residents of the surrounding and neighboring counties: Even before it was rescinded, the California state mandate extends only to state prisons. Counties were left to decide for themselves whether to prioritize their jail populations and, as in other matters, there has been considerable variation. Bay Area counties are ramping up vaccination for their jail populations; Kings and Tulare counties are vaccinating aging and infirm jail residents, while Merced and Fresno Counties have no set date yet to begin vaccination in their jails.

While these variations in vaccine policies could be simply manifestations of supply shortages, they might also represent political pushback in the counties of the sort seen in other states regarding prisons. In Colorado, for example, Governor Jared Polis responded to public pressure by ignoring expert opinions on the urgency of vaccinating incarcerated people for public health and downgraded this population in his plan. The Director of the Center for Bioethics and Humanities at the University of Colorado criticized this decision as guided by “moralistic argument,” explaining that “[i]t’s a very stigmatized population, and there are people who say, ‘They’re in prison, they must have done something terrible, and they don’t deserve a place in line.’”

The prevalence of such “moralistic arguments,” which compound public health priorities with hierarchies of perceived deservedness, might play into the struggle for vaccination in jails. As explained above, 75% of the California jail population consists of pretrial detainees who, of course, are presumed innocent; it is not difficult to imagine an appeal to public policy that distinguishes between these people and the presumably “less deserving” people in state prisons.

Despite its superficial rhetorical appeal, I strongly advise against relying on such an argument. Adopting the organic-geographical perspective that this article proposes implies seeing all incarcerated people in California as part of one porous carceral network, along a continuum that reaches to the outside community. The bottleneck effects of the jurisdictional approach have led to outbreaks; the way out of this quagmire requires accepting the need for population equilibrium and population reductions throughout the entire correctional system, regardless of administration and budgeting levels. Part and parcel of this essential population reduction is opening the jail floodgates, not only through releases to the population, but also as a two-way flow to and from the prisons. Under such circumstances, it is unacceptable to continue mixing vaccinated and unvaccinated populations. Moreover, 25% of the jail population consists of sentenced individuals, many of them for felonies; taking the deservedness argument to its conclusion would lead to the absurd policy of vaccinating only some jail residents and leaving others exposed. Such a policy would be impossible to justify and would have unbearable equity and public health implications.  

Instead, I propose advocating the vaccination of the jail population by relying on two arguments with organic-geographical appeal. First, it must be clear that the transient jail population poses at least as much risk to the surrounding community as the staff working among the less transient prison population. The reasoning for vaccination in both cases should be the same. In addition, there is a practical consideration that should appeal to counties and municipalities: running a vaccination enterprise at a congregate housing location with permanent medical staff would ease vaccine distribution, help with the dissemination of medical information, and possibly have the ripple effect of generating more vaccine acceptance among family members and friends of people who are vaccinated during the course of their jail residency.

While the project of vaccinating incarcerated populations is worthwhile, it raises the concern that the vaccine would come to be seen as the panacea for all correctional problems. This article’s review of the spillover of healthcare problems from prisons into jails should be a cautionary tale.

My recommendations for remedying the broken healthcare structure in county jails require a paradigm change, which would view jails not through the jurisdictional-mechanistic perspective, but as organic parts of their surroundings and communities. Unifying the administration of prisons and jails in California might be a pipe dream; however, at bare minimum, health care policies should be far better coordinated. Informational databases—not only involving healthcare, but also population shifts—should have seamless interfaces between state and county facilities (an inexcusable oversight in a state with such high technological literacy.) Aggressive efforts at hiring and retaining medical staff should target not only individual facilities, but also local county hospitals with an eye toward serving incarcerated populations as well. Most importantly, health care policies, ranging from preventative healthcare, nutrition and wellness, to emergency care, should start with families and schools, extending into jails and prisons as a continuum. These are crucial not only to curb the current pandemic, but also to prevent the pandemics of the future.

Gov. Newsom and BSCC: The Prison COVID-19 Outbreak Has Calmed Down. You Can Prevent the Next Wave

For the first time in a year, there are some good news for CDCR facilities: As of this morning (see screenshot above) there are only 98 active COVID cases in the system, 90 of which are from the last 14 days. There are no new or major outbreaks in any of the prisons. For the first time in 11 months, CDCR’s case rate (95 new cases per 100k people) is lower than California’s (138 per 100k people.)

This situation is largely attributable to two factors: the vaccination rate at CDCR facilities, which is considerable (as of last month, more than 40% of the prison population had received at least the first shot) and, sadly, the herd immunity reached in some facilities with colossal infection rates, like Avenal and San Quentin (which, by the way, has been rightly chastised by OSHA to the tune of $400,000 in fines).

This reprieve could very well be temporary. This week, the CDCR population grew by 85 people (presumably transferred from county jails.) As Chad and I reported a few days ago, the transfers from jails in October and November correlated with outbreaks: 12 out of the 13 prisons whose population grew (presumably jail transfers) experienced subsequent outbreaks (the 13th facility had a big outbreak anyway.) The concern is that jail populations, whose vaccination process has been uneven and erratic, could restart the pandemic in prisons (and that’s beyond the concerns about the serious outbreaks in the jails themselves.) By contrast to prisons, which are operated by the state, jails are operated by the counties, and there is no state mandate requiring counties to prioritize their jail populations in their vaccination protocols.

I have a new piece on SSRN about the place of jails in the California COVID-19 crisis, which argues that BSCC must become the hero we need at this hour. BSCC must lobby the Governor’s office for a state mandate to vaccinate jail populations on a rolling basis, and put pressure on sheriffs to lobby their own counties for vaccine priorities. Vaccination must be a condition of employment for correctional staff and other jail workers. I hope you’ll read the whole thing, but if you’re short on time, here’s the abstract:

This Article examines a lesser-known site of the COVID-19 epidemic: county jails. Revisiting assumptions that preceded and followed criminal justice reform in California, particularly Brown v. Plata and the Realignment, the Article situates jails within two competing/complementary perspectives: a mechanistic, jurisdictional perspective, which focuses on county administration and budgeting, and a geographic perspective, which views jails in the context of their neighboring communities. The prevalence of the former perspective over the latter among both correctional administrators and criminal justice reformers has generated unique challenges in fighting the spread of COVID-19 in jails: paucity of, and reliability problems with, data, weak and decentralized healthcare policy featuring a wide variation of approaches, and serious litigation and legislation challenges. The Article concludes with the temptation and pitfalls of relying on the uniqueness of jails to advocate for vaccination and other forms of relief, and instead suggests propagating a geography-based advocacy, which can benefit the correctional landscape as a whole.

There are two advocacy angles unique to jails. The first is the transience of jail populations: people can stay in jail for periods ranging from a few days to years. This means transmissivity between jails, prisons, and the community is a challenge. The second, which I offer with some hesitation,* is that 75% of jail residents are pretrial detainees, who under our legal system are presumed innocent–all the folks who are muttering about how people in prison “deserve” to get sick, or “should have thought of this before they committed the crime,” do not have even that horrible argument where jail populations are concerned.

BSCC’s function throughout this crisis was neglectful at best and catastrophic at worst. For months on end, they let huge outbreaks go unrecorded and unaddressed, did not hold sheriffs accountable, and did not maintain data for the public. Even now, their database is shamefully clunky and does not interface with CDCR’s. Many counties are not even reporting their numbers. Now’s the time for BSCC to step up and prevent the next outbreaks.

*The hesitation comes from the fact that innocence or lack thereof, or any other variant of deservedness, should not be conflated with healthcare factors. Convicted prisoners should not be a lower priority because of their guilt.


It’s Okay Not to Know

My circle of Israeli friends is rattled by the exposure of sexual misbehavior by acclaimed actor Erez Drigues, who has now taken some responsibility in a much-discussed interview. Meanwhile, my circle of U.S. friends is reacting to the new documentary about Woody Allen. The ensuing conversation is conflating two separate questions, the moral and the factual one, namely: what my values are and who I believe.

I get why the two questions get conflated. In the New Salem, every news story becomes a morality tale. We incessantly opine on the behavior of strangers, as exposed in cellphone videos or tweets, and then we incessantly opine on the opinions of others. The marketplace of ideas has become the marketplace of moral arbitrage (I’ve recently discovered AITA on Reddit and can attest to the attraction, temptation even, of moral opining as a public exercise.) Moreover, because of the publicity of this opinion fest, it also serves an important performative role: who I support when I have the talking stick becomes a proxy of who I am, leading to destructive mobs and pileups, as John McWhorter explains in his new series about The Elect. This, in itself, is exhausting–the combination of constant condemnation of others and constant vigilance of being condemned is not a good way to live–but it becomes especially pernicious when we deal with things we don’t know for certain.

In Yesterday’s Monsters I wrote about the immense hubris that accompanies the major decision of the parole board in every case, i.e., whether the parole hopeful has exhibited sufficient “insight” about their bad behavior. A big part of this nebulous determination is vested in the question whether the person’s remorse for their past crimes is sincere, and the commissioners, who are very certain of their ability to detect sincerity, are also deeply professionally invested in being regarded as having the skills to tell the truthful from the liars:

During my work on this manuscript, I attended a social gathering in which I met a CDCR employee and a formerly incarcerated journalist. Conversation turned to the question of sincerity, and when I described my findings, the CDCR employee said: “If you were actually in the room, you’d be able to see body language and other nonverbal cues. That’s what the commissioners go on when they assess sincerity.” The journalist chuckled softly and replied, “you know, we saw a lot of people coming up before the board, and we knew what they were about in prison—who was real and who was just putting on a show. And often we would shake our heads when someone we knew was faking it got his date.”

In addition to reading the hearing transcripts, I watched some video footage of the hearings. If there was a telling nonverbal dimension to the inmates’ demeanor, I did not discern it. The footage left me unable to determine whether the remorse they expressed—often tearful and quiet—was genuine. Given the commissioners’ backgrounds, it is hard to imagine what psychological tools or expertise they possess that would enable them to detect the sincerity of the inmates. This is especially worrisome given the universal tendency to overestimate our lie-detection abilities. In a recent experiment, police officers and ordinary citizens were presented with videotaped confessions—some true, some false. The officers expressed more confidence in their ability to detect false confessions. The study found that police officers did worse than the ordinary citizens in distinguishing between true and false confessions.

In other words: There is robust empirical evidence to support the fact that we are very bad at detecting sincerity–and those who are most sure of their lie-detection skills make the most mistakes. Even lie-detection professionals like Paul Ekman, who stand by their ability to detect lying via facial micro expressions, agree that untrained professionals fail miserably at detecting lies.

Most of the time we do not have incontrovertible proof about incidents we did not ourselves witness (and sometimes, not even about incidents we did witness)–so we fill in the gaps with our values and world views, as work by the Cultural Cognition Project confirms. This is especially true in cases of sexual misbehavior, in which the factual question of the probability of truth-telling has become inexorably linked to whether one is pro-women or anti-women. Much of the discussion in the Drigues and Allen situations, as in many others, revolves around the likelihood of false complaints. Statistics that have no solid empirical grounding are banded about. In her book Unwanted Advances, Laura Kipniss cites Edward Greer’s law review article, in which he tries to figure out where the statistics about the rarity of false complaints come from. Kipniss retells Greer’s journey:

The 2 percent false rape allegations has been a huge article of faith among campus activists (and Title IX officers, I suspect), so frequently quoted that no one bothers to ask where it came from—until a legal scholar named Edward Greer published a rather gripping statistical whodunit in 2000, about his attempts to track down the source of the stat. His first discovery was that though the 2 percent figure was endlessly cited, every single citation ultimately led back to Susan Brownmiller’s 1975 book, Against Our Will: Men, Women and Rape. Yet Brownmiller’s notes provide a rather obscure source for the figure: a speech to the New York Bar Association by an Appellate Division judge named Lawrence H. Cooke, delivered in 1974.

Greer contacts Brownmiller: where did this information about the (now-deceased) judge’s speech come from? Brownmiller cooperatively combs through her decades-old files—Greer credits her with being “a very meticulous and organized writer”—and sends him a copy of the judge’s photocopied speech. The speech quotes the “Commander of the New York City’s Rape Analysis Squad” as having determined that “only about 2 percent of all rape and related sex charges are determined to be false.” But what was the judge’s actual source? Greer wonders. Was there some sort of official report or press release? Greer contacts the then-judge’s former law clerk, who cooperatively contacts a few other clerks who worked on the judge’s talk twenty-plus years earlier. None recollects any report.

Greer speculates that the judge may have been quoting a newspaper report, and he sets about trying to locate it, combing through local and national papers. He eventually finds a New York Times Magazine article titled “Rape Squad,” published two weeks after the judge’s talk, about a New York City police squad involved in a rape statistic–gathering operation. This squad was exclusively composed of police, however—trained in judo, not social science, notes the Times reporter. Though Greer can’t find any press release on the squad, he does manage to establish that the Times reporter happened to be a friend and neighbor of Brownmiller’s—she’s mentioned in Brownmiller’s memoir (Greer really is an amazing researcher). Were Judge Cook, Brownmiller, and the Times reporter all drawing on the same unknown source? Brownmiller gets a little defensive when Greer presses her on it.

The answer may be “lost to antiquity,” Greer finally concludes dejectedly, though what he’s established with certainty is that the famous 2 percent statistic, what one feminist scholar calls a “consensus fact,” derives from a single police department unit over forty years ago, and there’s no other published source for it.

It looks like, at minimum, we can’t fetishize these statistics. And at the same time, any effort to resolve things at the value level–such as the “transformative justice” gymnastics that are now so popular in the sex-positive community–inexorably boils down to the credibility question, much as one would like to circumvent that question or paper over it with jargon.

So how do we decide who we believe? At least in the Kavanaugh/Blasey-Ford faceoff, I recurred to what I know of my own experience to fill in the blanks (and wrote about it here.) Because Blasey-Ford (who is a complete stranger to me) and I come from the same milieu–we dress similarly, live similarly, talk similarly, do similar things for a living–I assumed that her cost-benefit calculus would be similar to mine, and I can tell you that I would have absolutely nothing to gain, and everything to lose, from making public claims of sexual victimization. Because this is so obvious to me, I would never make such claims unless (1) they were 100% true and (2) a civic matter of crucial importance was at stake. I imputed my calculus to Blasey-Ford whom, again, I don’t know from Adam, but I maintain that my extrapolation was probably more accurate than Trump’s: When Trump claimed that Blasey-Ford had accused Kavanaugh out of fame-seeking, that told me that he understood nothing about Blasey-Ford and her milieu, and it also taught me volumes about Trump and his milieu (and why someone like him would falsely accuse everyone on the planet on the regular.)

I assume that the range of opinions about Drigues, Allen, and countless others are an extension of the same principle. People’s worldviews inform their perspectives on whether they can imagine themselves falsely complaining, and they impute their perspectives to complete strangers. People who are like us couldn’t possibly fabricate a complaint, right? Because we are good! But those other people, on the other side of the political/social/cultural divide, they are nothing like us, and so it’s easier to imagine them lie. Either way, we are engaging in a subjective imagination feat: we can never know for certain whether a stranger in some scenario we read about in the news has the same cost/benefit calculus as us.

Another issue that I’ve noticed is the fact that my support or rejection of someone’s version of the events says something about me generally, or more particularly, about how I plan to live my life onward. This can be especially complicated when the accusation of a celebrated artist brings up the discomfort of enjoying a person’s art while suspecting that they did something atrocious. Because we now have moral edicts about finding flaws in artistic creations in the aftermath of discovering bad things about their creator,s some might choose to disbelieve the accusations of the artist so that they can continue to enjoy the art (disclosure: I adore Woody Allen’s movies and Louis C.K.’s comedy.) This problem is especially palpable when the suspect’s creation is co-shared with people who are still revered, or even who are themselves his accusers, as in the case of Joss Whedon and Buffy. If we could give each other a break from the moral sanitation process–the cleansing of the public square from any artifact whose creator has been suspected of being offensive–people might be less married to their defense of the creator.

Which brings me to the grim conclusion: Friends, we’re going to have to accept the fact that, on countless occasions, we will hear conflicting versions of the same incidents and we’ll have no way to determine for certain which is the correct version (or, as I learned in my military public defender days, that two people can walk away from the same incident with disparately different experiences and be both telling the truth.) For those of us who have to determine credibility and plausibility (judges and jurors) living with this difficulty is a part of life, for a career or for a particular trial. Also, when someone we know is the accuser or the accused, we’ll be called upon to stake our faith in them (I can tell you that, when I worked as a defense attorney, it was very important to our clients that we believe them.) The rest of us might have to learn to accommodate the somatic discomfort of Not Knowing.

Where does the discomfort come from? In the legal system, reasonable doubt should resolve itself in favor the defendant (I say “should” but things are more complicated than that.) But in your own heart, you don’t live “in the legal system.” If you don’t know what happened, it doesn’t support either of the versions. You are just living in groundlessness and doubt. This creates a tension within you that you feel you must resolve–and yet you can’t, not completely. I suspect that much of the conviction on both sides comes from the fact that everyone just wants to get rid of the dissonance already, so they sound more resolute than they are. But a big part of aging, for me, has been learning that I know much less than I think I know. It turns out that, unless you are a factfinder or put in a situation that requires your personal allegiance, you are allowed to say “I don’t know,” take a breath, look within yourself at how it feels not to know, and learn to live with it. And that’s okay.

Advocating for Prison Vaccination Should Not Be a “PR Nightmare”

In the aftermath of the upsetting removal of prison populations from Tier 1B of vaccination in CA, and the horribleness of the Colorado debate over vaccinating in prisons, come more unscientific blends of public health and deservedness. Another version of this is the nauseating “inmates-before-Grandma” soundbite from Wisconsin. And today, we hear that Tennessee has scheduled its prison population last in line, because a state advisory panel tasked with deciding in what order residents should receive the COVID-19 vaccine, which acknowledged that prison populations were high-risk, concluded that prioritizing them for inoculation could be a “public relations nightmare.” Kimberly Kruesi and Jonathan Mattise of the Associated Press report:

Documents from the meetings of the Pandemic Vaccine Planning Stakeholder group, did, in fact, stress the importance of the general public seeing that inmates “are people” who should be treated as “part of the community” and “if untreated they will be a vector of general population transmission.” Yet the documents concede that providing the vaccine to inmates would result in “lots of media inquiries.”

The panel comprises roughly 40 public health agencies, lawmakers, health care coalitions, emergency management and other organizations. Because it serves in an advisory capacity it is not required under Tennessee law to meet publicly, and no audio recordings of the meetings exist, according to the Department of Health. The AP obtained the meeting notes through a public records request.

According to the documents, the group first met, virtually, on Sept. 22, before vaccines were available. Tennessee’s incarcerated population came up during that meeting, when the committee talked about populations that may have been overlooked.

“Understand it would be a (public relations) nightmare but a possible liability to the state,” states one document, which is not attributed to anyone by name.

Later, in December, when the group met to discuss moving up certain age groups, as well as teachers, inmates were once again considered.

“If we get hit hard in jails it affects the whole community. Disease leaves corrections facilities and reenters general society as inmates cycle out of their sentencing,” the document reads, adding that when inmates get the disease “it is the taxpayers that have to absorb the bill for treatment.”

Ultimately, corrections workers and jailers were bumped up to one of the earliest slots, alongside first responders. Meanwhile, inmates remained in the last eligible group. Even now, senior inmates who may qualify under the state’s age qualifications are still not getting immunized.

I’m not only disgusted, but puzzled. Do people in Tennessee (and Wisconsin, and Colorado, and apparently now California) not understand (1) how prisons work or (2) how contagion spreads? Chapter 5 of our book-in-progress Fester: Carceral Permeability and the California COVID-19 Prison Disaster relies on modeling, some our own based on primary data and some developed by others, to show that tackling the outbreaks in prisons should be a priority not just from a humanitarian standpoint, but also from a sheer selfish perspective.

Consider the graph above, which shows infections over time in three groups of California counties: Counties with prisons in them, counties within 20 miles of prisons, and counties farther away. The waves of infection are clearly visible, not only in the sense that more distant counties have fewer cases, but also in that the outbreaks there occur later.

Consider also this more general graph of CDCR infections and overall state infections:

Image

Our data shows that peaks in state infections closely follow (by “closely” we mean, a delay of about 14 days) peaks in prison infections. We can also show that the number of CDCR facilities within a given county correlates with the infection rate in the county:

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Over the last few days, people of various political persuasions have talked with me about this, making some variation or other of the argument that “taxpaying, honest folks should be first in line.” Rather than launching into schoolmarmish scolding of their morals (tempting as it was), all I did was show them these three graphs. Vaccinating “inmates-before-Grandma” does not mean “inmates-at-the-expense-of-Grandma.” Eliminating Petri dishes for the virus is beneficial to everyone.

The Empathy at the End of Diversity

Yesterday, Heather Knight reported about the latest absurdity perpetrated by the San Francisco Unified School District board:

A gay dad volunteers for one of eight open slots on a parent committee that advises the school board. All of the 10 current members are straight moms. Three are white. Three are Latina. Two are Black. One is Tongan. They all want the dad to join them.

The seven school board members talk for two hours about whether the dad brings enough diversity. Yes, he’d be the only man. And the only LGBTQ representative. But he’d be the fourth white person in a district where 15% of students are white.

The gay dad never utters a single word. The board members do not ask the dad a single question before declining to approve him for the committee. They say they’ll consider allowing him to volunteer if he comes back with a slate of more diverse candidates, ideally including an Arab parent, a Native American parent, a Vietnamese parent and a Chinese parent who doesn’t speak English.

This display of idiocy–complete with two hours of discussing Seth Brenzel’s “lack of diversity” while he sits before them in complete silence–is just the latest antic in the Board’s record of breathtaking performative incompetence, one of the previous episodes of which was the ridiculous quest to rename 44 of San Francisco’s closed schools based on their semiliterate understanding of history through Wikipedia.

Much has been said about these people’s incompetence and recurrence to woke theater in lieu of (what a wacky suggestion) actually helping the district’s children by charting the reopening of schools, but one particular point has caught my eye. The sole commissioner to defend Brenzel–Commissioner Jenny Lam–chose to do so by arguing that, as a gay man, he does bring diversity to the Board:

By denying him the position, we are failing SFUSD’s core values— the promise to value diversity, and to build inclusive school environments for our students and families.  Parents and families deserve utmost respect and dignity.  We also know the challenges faced by LGBTQ students in our schools from bullying to lack of school connectedness and sense of belonging.  

For decades, the LGBTQ community has fought hard for the right to be recognized as parents. As a board we missed an opportunity to reaffirm the humanity of one of our dads.  Seth deserves a fair opportunity— I will work to advance his appointment.

While it is critical to have diversity we must not pit communities against one another. We often say we must remain vigilant fighting against discrimination and hate. I will continue that commitment.

It seems like the only rhetorical currency available to San Francisco officials and pundits is diversity; Brenzel’s defense, as well as his humiliation, uses the same linguistic tropes. Indulge me, then, in a little thought experiment: let’s assume, just for a moment, that the Board had declined the application of a <gasp!> cis straight white man for lack of diversity. And let’s also remember, for a brief moment, that this coveted position is volunteer work on behalf of children. It does not grant anyone monetary benefits, fame, or status; all it means is a burden on a parent’s already-scarce free time amidst a pandemic.

Now, think: How often do you see fathers–any fathers–volunteer for educational leadership? How much have you seen fathers (as opposed to mothers) losing productivity to the pandemic? How many men in your immediate surroundings have made the choice (or accepted the lack of choice) to leave their jobs and tend to their children’s needs and education while their wives kept their positions? Can you think why, in order to appeal to people, a humongous effort needs to be put into imbuing school volunteering with any sort of status, and whether this might possibly relate somehow to the fact that parent volunteers tend to be women? Against this backdrop, wouldn’t it be a positive–even, perhaps, progressive–move to say to a man, any man, of any sexuality, ethnicity, or nationality, applying for one of multiple vacant volunteer positions advancing the wellbeing of the community’s children: “Welcome! When can you start?”

Here was an opportunity to understand that a motivated, good-willed person, does not give of his free time to the community to abuse and belittle other people’s children. Here was an opportunity to drive home the crucially important message that we advance as a community when all our kids advance, and that all parents, of all colors and sexualities, should be invested in the advancement of all children, of all colors and sexualities. Instead, judging from the furious comments of the scores of parents of all colors who responded to the decision, what happened here was exactly what happens when people receive mandatory diversity training: resentment, derision, disengagement. When has bullying, humiliating, and excoriating people who want to help ever worked as effective motivation to continue “doing the work,” so to speak? What, exactly, was the goal here, and how was it accomplished?

I don’t think our diversity aspirations should be more modest. Au contraire, I think they should be bolder. So bold, in fact, that diversity itself should not be a goal. Treating it as such is shortsighted. Diversity is a path that takes us toward a brighter future–one in which everyone can enjoy self-fulfillment and thrive. This takes the understanding of two entwined but distinct truths, which have come to obscure each other in our shrill, shallow narratives: the one progressives get–that people of different backgrounds experience the world in unique and unequal ways because of their identities–and the one they don’t get, namely, that empathy is a human superpower that transcends differences because, at the ember of lived experiences, we all know what it’s like to be disregarded, lonely, misunderstood, dehumanized. A quest for diversity is worthy and important when it advances the cause of empathy, and a caricature of performative wokeness when it stands in the way of empathy, which is what happened here.