Remember this headline? You might have missed it, what with the onslaught of news and scandals. In mid-December, emails made public by the House committee overseeing the government’s pandemic response show that Paul Alexander—who was installed by President Trump in April to lead the HHS’ communications efforts—wrote to his higher-ups multiple times throughout June and July arguing that there is “no other way” to tackle Covid-19 except establishing “herd immunity” by allowing non-risk groups to expose themselves to the virus.
“Infants, kids, teens, young people, young adults, middle aged with no conditions etc. have zero to little risk,” wrote Alexander in a July 4 message to his boss, Assistant Secretary for Public Affairs Michael Caputo, saying “we want them infected” to help “develop herd.”
Similarly, on July 24, Alexander wrote to the Food and Drug Administration’s Commissioner Stephen Hahn, Associated Commissioner for External Affairs John Wagner and numerous top HHS officials arguing that it “may be best to open up the flood zone and let the kids and young folk get infected.”
In the emails, Alexander also acknowledged that the Trump administration was aware its policies would increase the spread of Covid-19, urged HHS staff to release more “positive statements” in support of the administration’s pandemic response and cast blame on scientists like Dr. Anthony Fauci for offering less rosy assessments of the situation, accusing them of trying to “make the president look bad.”
The published emails don’t include the replies from Alexander’s supervisors to his guidance aside from a skeptical—“How can this be researched and proven true or false?”—written by Caputo in response to a claim made by Alexander about herd immunity on a cruise ship.
The HHS has previously disavowed herd immunity, with Secretary Alex Azar in October insisting it was “not the strategy of the U.S. government with regard to the coronavirus,” although the House watchdog pointed out that high-profile members of the administration on multiple occasions echoed the messaging promoted by Alexander soon after his emails were sent.
The agency drew a thick line between itself and Alexander in a Wednesday statement to Forbes, saying “his emails absolutely did not shape department strategy” and emphasizing that he was a “temporary Senior Policy Advisor to the Assistant Secretary for Public Affairs and is no longer employed at the Department.”
I’m quoting this because the idea of herd immunity by infection offers a useful, if grim, lens to look at the status of CDCR infections. Right now, CDCR has 6406 new confirmed cases in the past 14 days, and the overall infection number has risen to 41,449 cases–more than 40% of the entire prison population. All prisons have outbreaks, and 29 out of 36 prisons have serious outbreaks (more than 50 cases.) But in some prisons, the rate of infection is staggering. According to today’s data, eight prisons have had more than 60% of their population infected:
We chose 60% and above because estimates of the rate of infection necessary for herd immunity is estimated by experts to hover between 60% and 80%.
In case you are inclined to see this as good news, don’t. Here’s a primer from Johns Hopkins about herd immunity, which was written in April, when the current infection rates in the U.S. seemed horrendously farfetched. “As with any other infection,” they explain, “there are two ways to achieve herd immunity: A large proportion of the population either gets infected or gets a protective vaccine.” They go on to explain why the former option is not a good idea:
With some other diseases, such as chickenpox before the varicella vaccine was developed, people sometimes exposed themselves intentionally as a way of achieving immunity. For less severe diseases, this approach might be reasonable. But the situation for SARS-CoV-2 is very different: COVID-19 carries a much higher risk of severe disease and even death.
The death rate for COVID-19 is unknown, but current data suggest it is 10 times higher than for the flu. It’s higher still among vulnerable groups like the elderly and people with weakened immune systems. Even if the same number of people ultimately get infected with SARS-CoV-2, it’s best to space those infections over time to avoid overwhelming our doctors and hospitals. Quicker is not always better, as we have seen in previous epidemics with high mortality rates, such as the 1918 Flu pandemic.
It would be tempting to juxtapose the Paul Alexander emails and the CDCR numbers and suggest that CDCR’s COVID-19 policy team have lifted their prevention strategy straight out of Trump’s playbook, but I think that assumes a much higher degree of premeditated planning than what is actually going on, which is chaos. Systemwide, the percentage of infections (more than 40%!) is staggering, but not at a high enough level to provide herd immunity for a minority of non-infected people; institution-wide, this means that CDCR’s explicit party line–transfers, rather than releases as its modus operandi–is likely to backfire spectacularly. Shifting people from places with fewer infections to places with more infections puts their lives in danger and risks transferring the new strain of COVID-19 before the vaccination plan is completed (I will post about how that’s going tomorrow, but for now just know that vaccinations are not underway in the worst outbreak sites and that the priority process raises serious concerns.) Shifting people from places with lots of infections to places with fewer infections, as the so-called “remedy” CDCR has fashioned for the San Quentin disaster, dilutes herd immunity and generates horrific outbreaks like the ones we’ve seen at Avenal, Folsom, SATF, CVSP and other facilities.
These problems are going to persist as long as CDCR willfully ignores the obvious solution: release aging, infirm people to the community, where they are safer for all of us.
There’s a really interesting op-ed by Jeff Asher and Ben Horwitz of AP Analytics in yesterday’s USA Today about the 2020 rise in homicide rates. Here’s an excerpt:
The FBI reported in September that murder was up almost 15% in agencies that reported three to six months of comparable data for both 2019 and 2020. But the antiquated national crime data collection and reporting system makes it hard to confidently say what is causing the spike or what can be done about it.
There have been changes over the decades, but crime data reporting is mostly the same today as it was 90 years ago. And the most glaring issues remain: Agencies aren’t required to report data, and those that do report are often not asked to provide data in a way that’s useful. For example, agencies aren’t required to separate assaults during which individuals are shot from other attempted aggravated assaults by firearm. In general, assault-by-firearm cases are massively underreported, severely reducing insight into national gun violence trends.
Efforts have been made to improve collection, but there is still no timely national crime data. The FBI’s report in September was the first time the bureau produced a quarterly summary report.
The FBI also built a website that improves access to raw crime data, and in January the agency will drop the summary reporting system and transition solely to a National Incident Based Reporting System (NIBRS), which will provide a more nuanced look at trends.
The incident-based reporting system categorizes crime into more than 52 offense types, which provide more insight into the types of crimes recorded. But that system, while better, won’t solve all crime data reporting problems. Shootings, for example, will still not be specifically categorized under NIBRS.
It is also unclear how many agencies will participate in NIBRS next year. Just 51% of the participating agencies reported under NIBRS as of 2019. The switch to NIBRS-only doesn’t appear to solve the problem of lengthy delays in reporting crime data to the public.
The 2019 stats, for example, weren’t released until the end of this year.
Even though the FBI data is shoddy (for which, to be sure, there’s no excuse), there are a few things we can learn from this. On Twitter this morning, Asher provided the graph at the top of this post to show that the upward trend is consistent in lots of different towns, and he also has numbers to show that it’s not a Democratic/Republican issue (cities run by both R and D administrations are seeing a rise in crime.) He also showed that the rise in homicides is accelerating over the first three quarters of 2020, refuting one-factor explanations (“this is all about Defund the Police!”).
I’m still (STILL!) grading exams, so I don’t have the bandwidth to do a full analysis on the data (you can download the entire dataset here and be your own hero) but I do have three quick observations to make:
The data provides a breakdown by serious offense, but has a monolithic category of “murder,” preventing us from analyzing different types of murder. Even though it looks like a uniform rise as 2020 progressed, it is not implausible to suggest that the type of homicides that increased during the pandemic lockdown might be different. My money’s on a higher percentage of domestic homicides, and this might be something that can be confirmed by correlating with rapes and assaults. The reasons are obvious–all the risk factors for domestic violence are heightened because of the pandemic and the ensuing financial crisis: stress, proximity to assailant (especially the availability of children and working spouses during the day), unemployment, financial difficulties. It’s also possible that a higher consumption of drugs, more mental instability, and more people in the streets leads to more street shootings. None of this is rocket science.
Articles about the rise in homicides in SF and Oakland highlighted that the incidents involve an overrepresentation of victims of color (the articles say nothing about perpetrators, but homicide tends to be intraracial.) If my theory that Q2 and Q3 largely represent a rise in domestic homicides, it should come as no particular surprise that you’d see higher rates of homicide among the populations that were disproportionately impacted by the pandemic and the prevention regimes (more stress, more unemployment, more financial difficulties, more homelessness, more mental health anguish visited on poor people of color.)
I’m already seeing some lazy takes on Twitter about whether “this could have been caused my mass releases,” to which the easy answer is: What mass releases? The rise in homicides far precedes any releases that were taking place–even to the extent that some places (not CA!) released people, no one was heeding warnings from experts back in March, when the rate of homicides was already accelerating. Moreover, the acceleration is linear, suggesting that if releases in, say, July and August changed things in Q3, they didn’t do so to a particularly pronounced degree that was not predictable by the general trend. Nor is there anything to suggest that the people who were released–in CA, basically folks who would be released anyway due to attrition rates who got a wee push out the door a couple months early–can trigger a trend like this, and for places who did do their due diligence in releasing aging and infirm folks, those are the least likely people to commit crime, let alone homicide.
I’m harping on (3) for a reason. My suspicion is that we are not seeing mass releases precisely because of the fear that the inevitable rise in crime rates as a consequence of pandemic-related criminogenic factors will be linked by lazy journalists and hobbyist twitterers to releases (even though it likely has nothing to do with releases) and backfire in terms of political advancement. This is disappointing, but it is how democracy works, and the first people to suffer are the folks already behind bars–solely for the sake of optics.
This morning brings an interesting story by Megan Cassidy of the Chronicle. The story compares two recent cases in which San Francisco D.A. Chesa Boudin brought charges against officers in shooting cases, suggesting that the officers’ inexperience may have played a role in both cases:
The charges against the two men raise questions about whether new officers are being sent into situations they’re not ready to handle and whether different training, more education or older recruits would produce better outcomes. How juries might weigh the officers’ inexperience is an open question.
On Nov. 23, Boudin announced that he had filed manslaughter and other charges against Samayoa, who fatally shot a carjack suspect, Keita O’Neil, during a chase in the Bayview in 2017. The decision marked the first time a San Francisco prosecutor filed homicide charges against an on-duty officer in modern history.
On Dec. 7, Boudin announced that a grand jury had indicted both Flores and the man he shot, Jamaica Hampton, on assault charges after an encounter in the Mission District last December.
“Both cases involved officers who were new to the job, who were relatively inexperienced, behaving in a way that is a stark contrast from the way that other officers on scene with more experience behaved,” Boudin said in a recent interview. “In any profession, including policing, I think when people are new to the job they’re more prone to make mistakes.”
I wonder whether the relationship between experience and police professionalism is truly linear, and my suspicion is that experience and use of force correlate in a different way.
Here’s what makes me think of this: Seventeen years ago I conducted fieldwork in the Israeli military justice system, where I got to interview dozens of prosecutors about charging and prosecuting AWOL cases. Lots of interesting stuff didn’t make it to theeventualpieces, including a typology of the folks I interviewed by seniority. My impressions at the time were of a u-shaped curve in prosecutorial approaches:
When I interviewed very young prosecutors, they tended to espouse a pretty cynical approach about the AWOL cases. They were likely to discount people’s personal problems and socioeconomic situations and ascribe their absence from service to a manipulative personality and free choice. Accordingly, they tended to ask for harsh sentences.
Folks with more experience–say, in the 5-to-15-years range of experience, were more lenient. They tended to have a more holistic view of the person’s circumstances and expressed more mature approaches toward the solutions–some of them saying that without a comprehensive socioeconomic overhaul the problem of AWOL in the army will not resolve itself. But higher up in the seniority ladder, the high-command folks with 20-25 years of experience expressed sort of a return to the punitive approaches of the young ones–not in the same gung-ho manner, but rather as a bird’s-eye view of what the office policy toward these cases should be.
It wouldn’t surprise me if we saw a similar u-shaped curve correlating seniority/experience with the likelihood of use of force among police officers. Let’s think back of William Muir’s terrific book about police officer personalities. Muir posited four types of police officers’ approaches to their jobs, based on where they are located along two perpendicular axes: interventionist-versus-reactive and professional-versus-personal.
The most salient and critiqued problems with U.S. policing lie in the top left quadrant: folks who are interventionist and see things personally (“enforcers”) excessively relying on use of force (as an aside, I’ll propose that “reciprocators” or “avoiders” – the folks in the bottom left quadrant–can put lives in serious danger, too, but this problem is obscured by the shallow way in which we talk about policing.) But let’s take this a step forward. Could it be that these personality types are not innate, but rather stages in the development of one’s career? Let’s hypothesize:
Why young police officers, who might’ve joined the police force in part looking forward to the power that comes hand in hand with the job, may be more likely to use force is pretty obvious. They are younger (like most of the people they police), whatever deescalation training they’ve received requires maturity, and they are more likely to relent to peer pressure, be less thoughtful about future consequences, or respond intuitively to disrespect.
For many police officers, this might mellow out mid-career; their experiences on the streets might lead them to adopt a “tragic” rather than “cynical” approach toward the human experience (to use Muir’s terminology.) Then, for officers with lots of experience and high seniority, signaling toughness through support for violence would be an important way to appeal to the perceived demand of constituents that they “protect and serve.” Just like with the prosecutors, I expect the penchant for violence to be more intuitive/personal in the early stages of one’s career and more systemic/strategic in the later stages.
I don’t know if this is true, but I do know that, while the most senior folks are typically in management roles, the younger and mid-career folks are on the streets. Moreover, officers with less seniority get the less desirable positions and beats, and nonetheless express more enthusiasm for the job–which might imply that we’re putting people with more enthusiasm for violence and a lesser ability to consider consequences in the toughest places.
If that’s the case, how do we make lessons about deescalation “stick” once the officer is out of police academy? Every year, one of the first cases my criminal procedure students read is City of San Francisco v. Sheehan. I’ve written about this case here and here, and in the latter post I quote this paragraph from the decision:
San Francisco trains its officers when dealing with the mentally ill to “ensure that sufficient resources are brought to the scene,” “contain the subject” and “respect the suspect’s “comfort zone,” “use time to their advantage,” and “employ non-threatening verbal communication and open-ended questions to facilitate the subject’s participation in communication.” Likewise, San Francisco’s policy is “‘to use hostage negotiators’” when dealing with “‘a suspect [who] resists arrest by barricading himself.’”
Even if an officer acts contrary to her training, however, (and here, given the generality of that training, it is not at all clear that Reynolds and Holder did so), that does not itself negate qualified immunity where it would otherwise be warranted. Rather, so long as “a reasonable officer could have believed that his conduct was justified,” a plaintiff cannot “avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.” Considering the specific situation confronting Reynolds and Holder, they had sufficient reason to believe that their conduct was justified.
Let’s set aside the qualified immunity problem. What I want to know is: what makes a violent reaction more innate than the nonviolent, deescalating one? And more importantly, how to we engrain the ability to make space for a different choice in what is often a split-second decision?
In mindfulness meditation, we train the mind to identify moments and circumstances in which we are “hooked” and the mind takes us to a knee-jerk response. Tibetan Buddhists call this moment “shenpa.” Pema Chödrön, one of the people I most respect and admire, says this about the need to make space to choose a different reaction:
If we started to think about and talk about and make an in-depth exploration of the various wars around the world, we would probably get very churned up. Thinking about wars can indeed get us really worked up. If we did that, we would have plenty of emotional reactivity to work with, because despite all the teachings we may have heard and all the practice we may have done, our knee-jerk reaction is to get highly activated. Before long, we start focusing on those people who caused the whole thing. We get ourselves going and then at some irrational level, we start wanting to settle the score, to get the bad guy and make him pay. But what if we could think of all of those wars and do something that would really cause peace to be the result? Where communication from the heart would be the result? Where the outcome would be more together rather than more split apart?
In a way, that would really be settling the score. That would really be getting even. But settling the score doesn’t usually mean that. It means I want my side to win and the other side to lose. They deserve to lose because of what they’ve done. The side that I want to lose can be an individual in my life or a government. It can be a type or group of people. It can be anything or anyone I point the finger at. I get quite enraged thinking about how they’re responsible for everything, so of course I want to settle the score. It’s only natural.
We all do this. But in so doing we become mired in what the Buddhist teachings refer to as samsara. We use a method to relate to our pain. We use a method to relate to the underlying groundlessness and feelings of insecurity. We feel that things are out of control, that they are definitely not going the way we want them to go. But our method to heal the anguish of things not going the way we want them to is what Dzigar Kongtrul Rinpoche calls pouring kerosene on the fire to put it out.
We bite the hook and escalate the emotional reactivity. We speak out and we act out. The terrorists blow up the bus and then the army comes in to settle the score. It might be better to pause and reflect on how the terrorists got to the place where they were so full of hatred that they wanted to blow up a bus of innocent people. Is the score really settled? Or is the very thing that caused the bus to be blown up in the first place now escalating? Look at this cycle in your own life and in your own experience. See if it is happening: Are you trying to settle the score?
Acting out of this knee-jerk place of “settling the score” is not unique to cops, of course, but you can see how someone young and inexperienced might have a difficult time making space in their own mind to make a different choice. And indeed, there are already people doing this work and seeing positive results, not only in decreasing burnout and stress but in inviting compassion and a “tragic” rather than “cynical” worldview. This can relate directly to the tendency to use violence. As Jill Suttie explains here, “A stressed-out police officer will be more likely to resort to intimidation or aggression when confronted with ambiguous situations, which can lead to inappropriate or even violent actions.” She cites Oregon police officer Richard Goerling, who leads the training, and who explains this very well:
“Mindfulness opens up the space in which we make decisions—we’re not so linearly focused or so stressed because we are under threat,” he says. “We may still be under threat, but because I’m regulating my stress response and my emotions—anger, fear, and ego, which is a huge problem in our culture—I’m more aware of my options.”
How this relates to career stage is evident from this passage:
Goerling believes that police need this kind of training in emotional health, because they too often get the wrong message about their job and the way emotions play a role in it. Instead of understanding the impacts of stress, anger, or fear, they try to tamp down those emotions or ignore them, which keeps them from understanding the effect of emotion on performance.
“It’s classic compartmentalizing, saying, ‘I don’t let my emotions get in the way,’” says Goerling. “Yeah, right. But what happens if those emotions spike up out of the little box and get in the way, creating problems in the encounter with others?”
Another problem, says Goerling, is that stuffing down emotions can make one more jaded with time, leading to a sense of being inauthentic, emotionally cut off from other people, and depressed. Though originally he rejected the concept of training officers in self-compassion—a mindfulness practice of directing love toward oneself—he later realized how important it was for keeping officers whole, not to mention the positive interpersonal benefits.
“This whole notion of self-compassion is huge,” he says. “It doesn’t take long in this business before you pretty much dislike everyone around you, and then you begin to dislike yourself, and then you wonder why the grizzled police officer seems to have no affect and seems to be the classic asshole cop.”
“Being tough means investing in ourselves, in actually loving people and wanting to serve them, and in feeling all of our emotions—being able to say that I’m angry, I’m disgusted, I’m sad, I’m joyous,” Moir [El Cerrito’s Chief of Police] says. “What’s remarkable to me is that my officers are seeing it: Between stimulus and response there lies choice.”
The cops in Suttie’s story were nearing retirement, and while this stuff is useful to anyone at any age, I really hope that these skills become a key part of training new police officers at the academy. There’s nothing to say that younger, newer officers can’t learn these skills–children as young as 3 can be taught to meditate (my 3-year-old son can do a 10-minute body scan before he falls asleep.) Mindfulness training for police officers should focus not only on formal meditation, but also on go-to instantaneous practices–even something as mundane as feeling your toes inside your shoes for a brief fraction of a second can bring one back into the body and offer a choice out of the whirlwind of the mind. And, teaching these skills as part of police academy gives people tools for life that they can later use throughout their career, and which can help with their personal lives as well.
The last few days have seen key developments in all three major COVID-19 lawsuits against CDCR. On the San Quentin front, the California Supreme Court granted CDCR’s petition for review… but this is not necessarily bad news, just complicated. I’ll start by providing the decision in Von Staich and the order in the Marin cases, and follow up with commentary. Here’s the grant of petition for review:
The Attorney General seeks review of the judgment of the Court of Appeal, First Appellate District, Division Two, which found that prison officials have been deliberately indifferent to the health and safety of prisoners at San Quentin State Prison during the COVID-19 pandemic. The court ordered officials to remedy the constitutional violation by designing a plan to reduce the population of the prison to 50 percent of its June 2020 population, through either additional releases from custody or transfers to other institutions.
The questions raised by the petition are undoubtedly substantial. The health and welfare of individuals in the state’s custody during the pandemic, and the appropriate measures for their protection, are matters of clear statewide importance. As the Court of Appeal explained, “[t]he Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution both require correctional officials to provide inmates adequate medical care” and prohibit prison officials from being ” ‘deliberately indifferent to the exposure of inmates to a serious communicable disease’ [citation].” (In re Von Staich, filed opn. at p. 18.)
The Court of Appeal ruled on the basis of the documents submitted and oral argument, without holding an evidentiary hearing. As the case now comes to this court, it appears that there are significant disputes about the efficacy of the measures officials have already taken to abate the risk of serious harm to petitioner and other prisoners, as well as the appropriate health and safety measures they should take in light of present conditions. For this reason, we return the case to the Court of Appeal with instructions to consider whether to order an evidentiary hearing to investigate these matters before judgment is pronounced. (See People v. Duvall (1995) 9 Cal.4th 464, 482-483, 485.) As we have repeatedly advised in other cases raising similar issues, the matter should be resolved as expeditiously as is consistent with sound adjudication, given the exigent and evolving circumstances concerning COVID-19.
The request for judicial notice is granted.
The petition for review is granted. The cause is transferred to the Court of Appeal, First Appellate District, Division Two, with directions to vacate its decision and reconsider the cause in light of People v. Duvall, supra, 9 Cal.4th at pages 482-483 and 485, the Attorney General’s Return to the Order to Show Cause at pages 13-19, and the supporting Memorandum of Points and Authorities at pages 32-38. (Cal. Rules of Court, rule 8.528(d).)
Here’s what’s going on. Von Staich was decided on the basis of a case called People v. Duvall, which clarified how habeas corpus cases should be heard in court. Under Duvall, when someone petitions for habeas corpus and claims that the government is holding them under unconstitutional conditions, the government must provide a return that “allege[s] facts tending to establish the legality of petitioner’s detention. . . The factual allegations of a return must also respond to the allegations of the petition that form the basis of the petitioner’s claim that the confinement is unlawful. . . In addition to stating facts, the return should also, “where appropriate, … provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.”
The Court of Appeal in Von Staich relied on a fairly straightforward application of Duvall. Because the AG representatives of the San Quentin warden did not actually present evidence showing that the prison authorities’ behavior was appropriate, all the Court was left with was the AMEND report, which stated that no appropriate social distancing could take place unless the prison population were to be reduced to 50% of design capacity. The return did not provide any contrary medical opinion. The Supreme Court seems to disagree with the Court of Appeal, finding that the “significant disputes about the efficacy of the measures officials have already taken” to ameliorate the Quentin catastrophe, an evidentiary hearing might be warranted. As a consequence, the actions taken by the Marin court toward relief for the hundreds of San Quentin petitioners have been frozen until the Court of Appeal determines whether to hold an evidentiary hearing to examine whether the steps taken by the prison authorities can undermine the findings of “deliberate indifference.”
In addition, consider the dire developments for our friends behind bars before the Supreme Court’s grant. Recall that the Von Staich decision offered CDCR the choice between releases and transfers, urging them to consider releases of aging, infirm people. CDCR proceeded to abuse the discretion it was given to cook up a “remedy” that turned out worse than no remedy at all: as of a week ago, CDCR was still taking active steps to move people out of San Quentin, where the outbreak has abated (for now), to places like RJD and VSP, which experienced horrific outbreaks to the tune of hundreds of cases. Even in the face of realities on the ground–an outbreak in every single prison, a third of the entire prison population infected, a ninth of the entire prison population experiencing an active case, 104 deaths–they were going to shortsightedly confine their energies toward begrudging formal compliance that actually endangered people even more (in addition to the obvious contagion risks, I’ve received emails from folks inside expressing real fears of retaliation from people in the prisons to which they were to be transferred.) Meanwhile, flying in the face of the obvious public health priorities, the folks who should have been first in line to be released were at the very end of the line. This new development buys us more time to push for releases.
The last point is crucial, because the big legal case involving the entire CDCR apparatus, Plata v. Newsom, took a drastic turn in our favor yesterday. At the oral argument, Judge Tigar was exceedingly critical of CDCR’s handling of this crisis. He mentioned a conversation he had with Dr. Elizabeth Linos of the Berkeley Goldman School regarding a much-needed cultural change inside CDCR–a shift in approach from making demands (which Tigar referred to as a “sledgehammer” approach) toward emulation and leading by example, going as far as expressing doubt that the new CDCR policy to ensure testing compliance–and any measures taken by CCPOA, the prison guards union–went far enough, given the existence of significant “pockets” of noncompliance among the staff. Judge Tigar became visibly emotional as he discussed his visits at CMF, mentioning that Gov. Newsom called him and expressed a desire to tour CMF as well. Judge Tigar discussed in detail several people he had met behind bars, including a man in his 90s and a man who became eligible for parole in 1993. He displayed pictures of several people who had died of COVID-19 behind bars, speaking at length and in detail about Eric Warner, 57, an amputee, reformed Christian, and volunteer, and about Sergeant Gilbert Polanco, 55. When speaking of Mr. Warner’s passing, Judge Tigar had to stop to wipe his tears.
Judge Tigar then made a lengthy and forceful plea with Katheleen Allison to consider releases, stating that the time had come for that remedy and giving Gov. Newsom is support in this effort. Judge Tigar used the term of art “deliberate indifference”–a term indicating a finding of Eight Amendment violation–several times–even though he said that it had not been technically met, but explicitly said that CDCR’s behavior will fuel further lawsuits. The upshot of the hearing was the following order:
The order requires the parties to brief Judge Tigar on the physical possibilities to create quarantine and social distancing (including, for example, the existence of solid doors), as well as on the extent to which pandemic prevention guidelines might have changed during the course of the litigation. The situation on the ground makes it plainly obvious that what is needed here is an all-encompassing solution for the entire prison system; while state courts should be the vanguard of safeguarding Eighth Amendment rights in prisons, their jurisdiction is limited to their counties, and we are simply no longer in a situation in which this makes geographical sense. The thing to do now is push aggressively for releases and for early, effective, and broad vaccination behind bars, and to bring Plata to a successful and effective conclusion.
Today, CDCR Secretary Kathleen Allison communicated excellent news. The letter above reads:
To All Loved Ones of Incarcerated Individuals and Valued External Stakeholders,
We have an important update in our response efforts against the COVID-19 pandemic. As most of you know, the vaccine has arrived in California, and it is safe and effective. The vaccine is being made available on a phased basis, and as a state, we are committed to a fair and equitable allocation and distribution process.
To that end, California Department of Corrections and Rehabilitation (CDCR) and California Correctional Health Care Services (CCHCS) will receive our first vaccines allocation as soon as this month, and we are currently working with our public health partners on a distribution plan. The initial focus will be on people at high risk of becoming infected or severely ill from COVID-19, as well as frontline workers.
We will have information on our website, and will update it regularly to ensure we are keeping everyone informed on these efforts.
CDCR and CCHCS have also sent out a similar communication to the incarcerated population and staff. We encourage everyone to accept the vaccine once they are eligible to receive it, and in accordance with the phased distribution approach. These collective efforts will set us on the path to recovery, and will allow us to reduce the risk of COVID-19 in our institutions, and safely reopen to in-person visiting, group programming, volunteering, and other opportunities.
If you have questions please email COVID19@cdcr.ca.gov. We are unable to address questions about specific individuals with this correspondence; however, we value your feedback and welcome your questions about the vaccine program and our COVID-19 response efforts.
In the meantime, we are continuing to ensure everyone is taking every precaution to ensure the safety and wellness of everyone who lives and works in our institutions. We are thankful to the families, friends and loved ones of our incarcerated population, as well as our stakeholders. Your hard work, dedication, and sacrifice this year has not been lost on us, and we are appreciative of all your efforts.
For more information on these response efforts, please visit the CDCR/CCHCS COVID response page. For more information about this project and the COVID-19 vaccine, visit this web page.
Take care of yourselves and take care of each other.
Kathleen Allison Clark Kelso
Secretary Receiver
I received the above in a format that did not have clickable links, but I assume the links take you here and here. I have many questions, which I will email to the above address tomorrow morning, including whether the vaccine is mandatory for staff, whether readiness/buy in questionnaires have been administered, and whether choice to vaccinate will be linked to incarceration conditions. I hope to provide updates soon.
Today we are hearing more rumblings about CDCR’s plans (irrespective of the Von Staich decision, they claim) to transfer elderly, infirm people between prisons.
Where are they going to transfer people to? The graph above, compiled by Chad Goerzen from CDCR data, depicts the rise in new cases just in the last few days. A third of the prison population has been infected so far; a tenth is currently infected; 97 people have died. As of today, twenty-three prisons have major outbreaks (more than 50 cases):
CCI (156 new cases)
CIW (64 new cases)
CMC (180 new cases)
LAC (795 new cases)
SAC (115 new cases)
SOL (129 new cases)
CAC (367 new cases)
CAL (154 new cases)
CEN (419 new cases)
CTF (799 new cases)
HDSP (722 new cases)
ISP (120 new cases)
KVSP (505 new cases)
MCSP (733 new cases)
NKSP (208 new cases)
PBSP (76 new cases)
PVSP (1,213 new cases)
RJD (400 new cases)
SVSP (83 new cases)
SCC (248 new cases)
SATF (593 new cases)
VSP (368 new cases)
A change in strategy is long past due. But it looks like CDCR is taking a page out of Trump’s pandemic prevention playbook, flailing about, transferring people to and fro, hoping that this will go away and arguing in court that “there is no need to act hastily.”
What worries me about this is not just the immediate danger to people. The profound and understandable breakdown in trust between CDCR and the people in its care is going to be the Achilles’ heel of any vaccination strategy. It is essential to understand that releases and vaccinations must go hand in hand. I say this not only to CDCR officials, who might be thinking that the vaccine will obviate the need to release people, but also to activists who obstinately oppose the vaccines because they worry it will weaken the struggle for releases. Without the good will that only releases can create, not only will any vaccine intervention be ineffective, but the problems that fester in the system will increase its susceptibility to the next pandemic.
There’s a new bill, introduced by Assemblymembers Levine and Chiu and coauthored by Assemblymembers Friedman, Gipson, and Stone and Senator Weiner to abolish the death penalty. The bill does not include a retroactive provision to commute current death sentences to LWOP.
The bill will likely pass in the legislature, but because it requires a constitutional amendment it will be on the ballot. This does not have a history of success, as Austin Sarat explains in this book. But since 2016, when we tried this last, six big things have changed, which may improve the odds:
Because of the death penalty moratorium, we won’t be executing anyone else anytime soon – but we’re still footing the bill of death penalty litigation.
Incredible day: the Orange County Superior Court held today that the Orange County Sheriff, whose COVID-19 prevention incompetence was featured in Barnes v. Ahlman, violated the Eighth Amendment, and ordered the jail to reduce its population by 50%!
Here’s the decision in its entirety; summary follows.
First, the bottom line: The specific petitioners in Campbell receive immediate relief, in the form of release or transfer. For everyone else, the court orders reductions of at least 50% in all dormitories–and if this is insufficient to achieve proper distancing, even further reductions.
The facts paint a horrible picture of the COVID experience at the jail. Not only is it impossible, given the conditions there, for people to socially distance, staff behavior is not monitored when they are away from the facility. Amazingly, staff are not tested unless they request it, even if they display symptoms. The staff is provided PPE but are not required to wear it. Housing decisions do not take medical vulnerability into account. None of these facts, which were backed by statements from medical experts and staff members, were contradicted by respondents with any evidence.
The decision is a pretty straightforward application of Von Staich, which in itself is a pretty straightforward application of Duvall. In other words: Petitioners showed evidence of incompetence accompanied by awareness of the danger to their lives + the Sheriff neglected to challenge the evidence => petitioners win.
I really hope this signals the beginning of the collapse of CDCR’s deceit machine about transfers; I want there to be court decisions in every single CDCR facility and county jail ordering 50% reductions. What we need is a more holistic understanding of the fact that there truly is nowhere to escape to–the entire COVID-19 prevention situation is broken beyond repair, and shifting people around won’t help.
There’s another way in which this matters for carceral permeability: so far, the meager releases from CDCR prisons have not been offset by transfers from jail because CDCR temporarily halted the transfers. The folly of having to obtain these decisions facility by facility is that, from CDCR’s standpoint, the population glut and resulting outbreaks in jails are invisible. This isn’t helped by the poor job BSCC is doing and the low credibility of their data (to the point that upstanding citizens like Berkeley law student Darby Aono have had to step up and collect data on their own.) But it should be obvious to CDCR that, sooner rather than later, the party will have to end, and the outbreaks in jails will require an exit door on that end. Shuffling folks around is not enough: something’s gotta give.
You may recall that the Court of Appeal’s population reduction order in Von Staich did not specify the method by which CDCR should go about population reduction (though it did strongly recommend focusing on people aged 60 and over with 25 years of incarceration behind them.) The order specified that CDCR could choose to comply via releases or transfers. As far as releases, the recent Chron exposé shows that they delivered more or less on what was promised back in July: far too few people, 99% of whom were getting out in a few months anyway, and only 0.8% of whom were COVID-19 risks.
What this indicates–and what the AG’s petition for review to the California Supreme Court indicates–is that CDCR intends to address this crisis almost exclusively via transfers. This is also becoming clearer and clearer in the Marin Superior Court, where Judge Howard, who is presiding over hundreds of habeas corpus petitions from San Quentin, issued the following order:
The gist of the decision is this: Judge Howard is proceeding with fashioning the remedies, as he considers Von Staich “persuasive authority” and despite declarations from the AG that they do not intend to comply until they hear back from the Supreme Court. At the same time, he seems unsympathetic to the arguments against transfers, because the Von Staich decision “provided clear guidance that transfer was a viable remedy.” The AG representatives did state that, independently of the Von Staich decision, they are starting their own transfer initiative, which targets people aged 65 and older. Judge Howard has ordered them to provide a list of the people they are transferring, and the petitioners’ lawyers to compile a list of people who are aged 60 and over and/or have COVID-19 risk factors.
How is this playing out on the ground? You can get a sense from the image at the top of this post. In the last week, per the San Francisco Bay View, people inside–both at San Quentin and at other institutions–have been pressured to accept a transfer out of their own volition, and when they refuse–they are asked to sign the form above, in which they waive any future claims about the risk they face. The form requires them to initial the following statements:
I understand that due to my age, I am at high risk for developing serious complications if I get infected with COVID-19.
I understand that I have one or more medical conditions that makes me high risk for developing serious complications if I get infected with COVID-19.
I understand that COVID-19 could lead to serious complications such as lengthy hospitalizations or even death.
I understand that living in places where individuals are in close contact and physical distancing is difficult to follow, such as prison dormitory [sic], will increases [sic] my risk of being infected by COVID-19.
I understand that COVID-19 could lead to serious implications such as lengthy hospitalization or even death.
I understand that if I change my mind and decided [sic] to be housed in celled housing, I will submit a 7362 or talk to a health staff to request for [sic] celled housing.
I’m hearing from family members and friends of incarcerated people that CDCR is gearing up toward involuntary transfers at Quentin and elsewhere, which are (and always have been) their prerogative, and so, these so-called informed consent forms are actually obsolete. Therefore, it is now more obvious to me than ever that CDCR is worried about a monetary damages lawsuit, and with good reason–I expect we’ll see one in the not-too-far future. If so, I doubt that these waivers, given the circumstances in which they are being procured, will even come close to providing the kind of defense that CDCR, or the AG, think it will provide.
More importantly, the virus doesn’t attend the status hearings at the different courts, and follows its own agenda, which is–as it always has been–to invade cells and replicate itself, which makes this transfer agenda even more inappropriate. As of three days ago, every single CDCR facility has a COVID-19 outbreak, which raises the question–how do CDCR officials purport to improve the situation via transfers, and where are they going to shuffle people to? The information I got from Solano, and a conversation with a relative of someone at SATF, have convinced me that the same pathologies that led to the spread of the virus in San Quentin are now in evidence in other prisons.
Which brings me again to the point of carceral permeability. The logic of lawsuits and court rules doesn’t conform to the realities of geography. By their very nature, they deal with “cases and controversies”, not with proactive solutions to rapidly evolving situations. Order a remedy in one prison, and by the time it’s fashioned, the outbreak will quell there and spike in other places. Exhibit judicial caution and give prison officials the choice between transfers and releases (which is, after all, what courts are supposed to do–express restraint) and they will make the wrong choices. Thinking about this remedy regarding San Quentin alone is part of the brief, but in terms of the actual problem, it makes no sense to implement the remedy in isolation from what is happening in other prisons.
