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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Post-Election Thoughts

The Scorpion and the Frog

The results of the election did not bring me immediate solace. I’m sure this has been the case for many folks who found it difficult to take off the psychological backpack we have been carrying for so long. In my case, the psychological weight is the product of daily engagement with this administration on various public forums, including having to spend least thrice a week, WEEKLY, for the last four years, in TV stations and radio studios talking about this. In November 2016, when I lost the fight for death penalty abolition and my beloved cat Spade on the week of the election, I made it my mission to be an expert in everything these cartoon villains were cooking up, and every morning I sat up abruptly in my bed, with my first thought being, “it’s already morning in D.C., what has he done today?” Every time I saw an unrecognized number on my phone it was a TV producer or journalist asking me things that I had to cram on. I’ve crawled through information on abominable, underhanded things that I could not have even imagined possible before the last four years. Engaging with this sewer of an administration every day, including weekends, has brought exhaustion and stress into our family life, soured my good humor and my patience at work, and taken a real, measurable toll on my health. Doing upbeat explainers, volunteering, and taking abuse via phone and text from voters has felt like wading through a swamp, and even though I wore my psychological hip waders, I resent and revile this administration for demanding that I set aside my own grief, decency, and decorum, and be constantly on-call to respond to venal, opportunistic excrement. After I gave the explainer on Justice Ginsburg’s replacement process, I could barely get out of bed for a few days.

But the miasma in my soul is slowly dissipating. The first time I felt truly rapturous was when I got a letter from Traci Felt Love, the organizer of Lawyers for Good Government. The letter reminded me of when we started L4GG and brought back the incredible week in which we shut down San Francisco International Airport in reaction to the Muslim ban. It was only then that the magnitude of our success in dethroning this monster started to hit me, and I’ve been slowly digesting it.

One thing that has greatly helped is ignoring the legal pageant of the absurd that Trump is mounting in various courts around the country. I have given myself permission to disengage from all his frivolous lawsuits, antics, last-minute personnel juggling, and desperate cries for attention. In January, no matter what happens in the interim, Joe Biden will be President of the United States. Whether Trump concedes (ya think?), resigns (hmmmm), flees to the Cayman Islands to a mansion with golden toilets (on brand) or is dragged out of the White House in handcuffs (appealing but dangerous), the outcome will be a change in administrations.

It’s useful to keep in mind the story of the scorpion and the frog. A scorpion, which cannot swim, asks a frog to carry it across a river on the frog’s back. The frog hesitates, afraid of being stung by the scorpion, but the scorpion assures the frog he won’t do that: “If I sting you, we’ll both drown, right?” This argument convinces the frog, which agrees to transport the scorpion. Midway across the river, the scorpion stings the frog anyway, dooming them both. The dying frog asks the scorpion why it stung despite knowing the consequence, to which the scorpion replies: “I couldn’t help it. It’s in my nature.”

Trumps are going to Trump. Giulianis are going to Giuliani. McConnells are going to McConnell, with or without us as their audience. It’s far more productive to focus our attention on the upcoming races in Georgia.

Drug Truce

Throughout the country, drug law reform gained more momentum. This wonderful post on the Drug Policy Alliance blog summarizes some of the main reforms, the most impressive of which was Oregon’s approval of Measure 110. The next step in procuring a truce on drugs was always going to be branching beyond marijuana, and for various political reasons that are difficult to explain to people outside California, I expected another state to move in that direction first.

What I find especially thrilling about the passage of Measure 110 is that it could open the door to an important dialogue about the value and benefits of psychedelics. MAPS has been leading the charge on declassifying these important substances and acknowledging their potential to help people with depression and trauma, as well as foster spiritual growth. Little by little, the hypocrisy is dissipating, but it’s going to happen on the state and local level first.

When the Perfect Is the Enemy of the Good

Amidst my joy about the passage of Prop 17 and the failure of Prop 20–a reactionary law-and-order package–the demise of Prop. 25 brought me some anguish. As I explained elsewhere, all the arguments against the abolition of cash bail were ridiculous except for one, which had superficial appeal: the idea that “algorithms are racist” and that we would end up with “something worse” than cash bail. Aside from the fact that it’s hard to imagine how risk assessment is “worse” than debtor prisons straight out of a Charles Dickens novel, there’s a basic misunderstanding of how algorithms work. I have been explaining and explaining, but for some reason am not getting through to people captivated by woke rhetoric: ALGORITHMS ARE NOT RACIST. They predict the future on the basis of the past. If they have racially disparate outcomes, it’s because they reflect a racist reality in which, for a variety of systemic, sad, and infuriating reasons, people who are treated like second-class citizens in their own country commit more violent crime. The overrepresentation of people of color in homicide offenses and other violent crime categories is not something that progressives like to talk about, but it is unfortunately true–not just a mirage caused by stop-and-frisk in low-income communities. The reasons why more African American people commit more homicides than white people are the same reasons why they are arrested more frequently for the drug offenses they don’t actually commit more than white people: deprivation, neglect, lack of opportunities, dehumanization and marginalization on a daily basis. Solving these problems requires an administration committed to treating its citizenry fairly, not sweeping them under the rug by ignoring predictive tools that show what is actually going on. So powerful is the progressive self-deception that the ACLU, initially a supporter of eliminating cash bail, opted not to have a position on the ballot, because of the optics. I can’t even begin to tell you how many people I like and respect opposed Prop 25 using organizations’ positions as proxy, as if they couldn’t think for themselves. These organizations’ and people’s fears of being perceived as racists by supporting “algorithms,” the bogeymen of the left, was so overpowering that it hijacked the very real possibility to get rid of an actual, real, on-the-ground, in-the-open perversity: the only-in-America notion that people should pay money for their pretrial release.

The counterargument, made by some thoughtful folks, was that rejecting Prop. 25 would lead to a better proposal to abolish cash bail. But this argument exhibits deep ignorance of how political gains are made. Part of why I’m so upset about this is that I’ve already lived through a horrible round of the Perfect-Is-the-Enemy-of-the-Good game. Back in 2016, when we campaigned for death penalty abolition, I had to respond to arguments by progressives who thought that abolishing the death penalty was going to somehow “retrench” life without parole. The preciousness of this view infuriates me. As I explained until I was blue in the face, political progress is made incrementally. You can’t get to LWOP abolition without death penalty abolition. Expecting ballot propositions, which have to rely on broad coalitions, to be tailor-made to one’s exquisitely purist views about the public good is a recipe for disappointment. And, as Gov. Newsom said, the demise of Prop 25 essentially eliminates any possibility, motivation, or energy for getting together the “more perfect” solution to the bail problem that activists are yearning for. So, instead of celebrating the end of cash bail, progressives have yet again been duped into failing their own cause because the compromise wasn’t photogenic enough for them, and the big winner has been the bail bonds industry–you can see in this piece how effectively these scoundrels have coopted wokespeak to keep Victorian debt prisons alive.

Got a Sane Idea? Great! Wrap It in Sane Packaging

Just read a terrific Mother Jones article, which highlights the success of various local initiatives to divert resources from policing to less confrontational alternatives. Beyond my satisfaction with this outcome, I’m pleased with the rhetorical strategy used in these initiatives.

In the aftermath of the killing of George Floyd, many advocates were making proposals that sounded scary, because they were wrapped in odious movement jargon (defund! abolish! dismantle!). Thing is, the proposals themselves were not radical or insane; they were sane enough that even people who were victimized in scary ways could see the logic in them–if they had the background to understand them. Alternatives to policing are not earth-shattering discoveries. Anyone, not just hyperprogressives, who walks around the Tenderloin these days can sense the palpable shift in energy since the arrival of the wise and conciliatory Urban Alchemy folks. All these propositions are doing is rolling back the Nixonian logic, according to which you somehow get more justice if there are more cops, riot gear, and weapons on the streets. We were sucked into this insanity in the 1970s with the LEAA funding scheme, and later in the 1980s with civil asset forfeiture. You could be forgiven for thinking that “defunding the police” is an extreme proposal if you’re not familiar with how police departments used to be run before they became bloated paramilitary organizations.

But the success of this measures was not only rooted in their inherent reasonableness (and cost-effectiveness.) It was rooted in wise, matter-of-factly packaging, which offered positive alternatives to policing that people could get behind. There is an important lesson here for progressives looking for referendum victories, which I very much hope will be learned: packaging matters. Offering people a realistic vision of humane, therapeutic, preventative public safety works better than wrapping sane, totally plausible ideas in flurries of self-righteous performativity. And that means resisting the cultural zeitgeist, which pushes the movement to flood social media with the most preposterous, off-putting jargon, even when proposing things that would appeal to a broad swath of the population.

When incendiary terminology is used to explain sane, effective reform, more time is spent debating the terminology and performatively defending it than discussing the policies themselves. People who are put off by the rhetoric are exhorted to “check the website,” “do the work,” and “educate themselves” by folks who do not inspire any desire to engage any further with them or with their ideas. Indeed, one of the dumbest aphorisms of this movement is the classic “it’s not my job to educate you.” It’s nobody’s job to educate anyone else (except, in the case of teachers, their actual students.) But hurling insults and disdain on people, piling nonrequired homework on their backs, hiding good ideas behind performative nonsense, and finding fault in people asking to know what they’re expected to support and vote for, is not particularly likely to induce them to take the trouble to learn somewhere else. Decrying the burden of “unpaid emotional labor,” another unfortunate classic, is also not particularly persuasive. Not everyone needs to dance through their revolution like Emma Goldman, but very few people want to get flogged through it. Corollary: If you call yourself an activist, and you want to bring people to your coalition, yes, it is part of your job to educate them. I’m so pleased that the advocacy for these proposals took a different approach, one that voters could get behind. The result will be safer and happier streets in many U.S. cities.

State Assembly Hearing on COVID-19 Prison Policies

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

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

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

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

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

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

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

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

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

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

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

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

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

“When can you provide me a timeline?”

“How is a week?”

“A week sounds wonderful.”

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

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

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

The Marshall Project Survey and “Programspeak”

The Marshall Project has published the results of a political survey of incarcerated people, and they are extremely interesting. In a previous installment, they refuted the widely-held belief in broad support for Democrats behind bars; the majority of white prisoners would vote for Trump if they could. The current installment, in which the respondents were invited to opine on criminal justice policy, is just as interesting. Among other findings, even though there was a marked racial divide on questions about police violence and support for Black Lives Matter, 64% of incarcerated Republicans supported transferring funds from policing to social programs, by contrast to only 5% of incarcerate Republicans.

I highly recommend reading the whole thing, and have just one comment to make. In the survey, respondents were invited to comment on the kinds of interventions that would have kept them from prison, and they did list some of the “usual suspects”:

But the article then comments that many respondents ascribed the responsibility for their incarceration solely to their own behavior.

This is worth commenting on, because it dovetails with one of my findings fromYesterday’s Monsters, namely, the insidiousness and proliferation of “programspeak.” Programspeak is more than a jargon–it’s a worldview that is propagated in prison rehabilitative programming, all of which is geared toward telling the parole board a story of personal responsibility. At parole hearings, where the concept of “insight” is kind, there is a constant pressure on people to attribute their incarceration only to their own failings, without any allowance for environmental factors.

Now, there is nothing wrong with encouraging people to be accountable, and I think Marxist theories of crime take things too far when they divorce criminality from anything involving personal autonomy; even when choices are very constrained, we see evidence of agency (and to say otherwise is incredibly insulting to the large majority of people from disadvantaged backgrounds who don’t commit crime.) But adults with complex worldviews should be able to account for criminality in a way that does not discount the robust evidence of environmental factors, including poverty, difficult family lives, lead exposure, governmental neglect, lack of educational and vocational opportunities, and understandable, class- and race-based resentments. Unfortunately, this is not how it plays out on parole, where any effort to contextualize one’s personal history prior to the crime of commitment can be interpreted as “minimizing” or “lack of insight.”

This “programspeak” of personal accountability bleeds over to almost all other prison programming. I should know; I volunteered with, and visited, many of them. But it also bleeds out of the prison experience and accompanies people in their lives on the outside. In his ethnographic study of reentry, Alessandro de Giorgi found this self-attribution is so insidious that even after reentry, people blame themselves for not having a roof over their heads or basic groceries to feed their families.

Given the pervasiveness of programspeak, I’m not surprised to find that the folks surveyed by the Marshall Project emphasized their own responsibility. It’s being drilled into them throughout their incarceration. If anything, it’s a miracle that despite this aggressive, programmatic indoctrination, they articulate environmental factors as well. And to the extent that, after everything we know, people still subsribe to this heavyhanded partly-false consciousness, much of it is going to crumble because of the contrast between the consistent pressure on individuals to take responsibility for their actions and the equally consistent reluctance of prison systems to take even a shred of responsibility for what is being done to them, especially in the context of COVID-19.

Von Staich Review Period Extended: What Does This Mean?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***

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

CDCR, Don’t Play Tetris with Human Lives

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

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

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

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

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

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

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

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

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

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

Moving Forward Toward Relief for San Quentin Population

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

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

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

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

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

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

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

50% Population Reduction Order at Quentin. What Now?

Now that we’ve had a couple of hours to digest the good news about the population reduction order from In re Von Staich, it’s time to start thinking about next steps. What happens now at San Quentin, in other prisons and jails, and in the courts? Here are some of my initial thoughts on the topic–feel free to share yours.

How can CDCR and Quentin comply with the order? The order is not dissimilar from the Brown v. Plata order: it requires a population reduction, but doesn’t bind the prison to a particular way of achieving it. They could do any number of things. The best case scenario is one in which they heed the Court of Appeal’s strong recommendation to expedite the release of everyone who is over 60 and has done 25 years or more, but I’m not holding my breath. They could also transfer people into other prisons, keeping the aging old-timers inside, in which case they’ll still be in compliance with Von Staich – they’ll be giving the folks inside more room for social distancing. How they can accomplish this without touching the very people they needed to release first but won’t (folks who are sick and have aged out of crime) is largely a numbers game. These folks are about 30% of the prison population, and without even touching this category, it’s dubious that they’ll be in compliance with the order.

Is CDCR going to appeal? What will they argue? Of course they’re going to appeal. Is there any doubt? This process has been saturated in bad faith and obstinacy, and that animus is likely to continue. On appeal, they will likely argue that the decision not to hold evidentiary hearings (as they are holding in the Marin cases and in Plata) was hasty and unfounded, and that their mishandling of the crisis does not rise to “deliberate indifference.” It’s going to be pretty difficult for them to argue that the remedy is excessively burdensome given how much latitude they were given. They only have 15 days to pull together an appeal, so we’ll find out pretty soon. Whether or not CDCR will get a stay from the Supreme Court is another interesting question. If they don’t, they’ll have to work simultaneously on their appeal and on their population reduction strategy. This scenario closely resembles what happened in the late 2000s, when Plata was making its way from the federal panel to the Supreme Court: The Attorney General (then Jerry Brown) fought tooth and nail against the order, while at the same time considering the legislative “fix” that became the Public Safety Realignment (AB 109.)

What does this mean for jail transfers into San Quentin? The opinion itself says that, so far, much of the population reduction that CDCR boasts was achieved via a temporary halt of transfers. This has had the unfortunate effect of exacerbating COVID-19 in overcrowded jails; the horrific outbreaks, isolations, quarantining, and misleading information about Santa Rita is a case in point. This is not a good long-term solution, obviously, but whether or not they will use this as their population reduction mechanism depends on how pressured they are to find a more general solution to COVID in the entire system.

What does this mean for other prisons? I have similar thoughts on this. The decision explicitly says that, if CDCR officials feel that they can’t appropriately guarantee public safety via releases (they can, but okay) they can resort to transfers. The problem–which the decision also flags–is that this whole catastrophe started with a transfer in the first place. Can CDCR be trusted to transfer people out to prisons with no or low COVID numbers in a safe manner–that is, by testing and isolating them? And can they be trusted to cooperate with health officials in the surrounding/bordering counties to guarantee that there’s no corresponding spike in the new country? Their record has been abysmal, but that’s not to say they won’t try.

How is this going to impact Plata v. Newsom? The short answer: it’s not. The litigation in Plata addresses the entire system and is all-encompassing. The long answer is that it’s complicated. The factual findings in Plata might change based on whatever transpires in the aftermath of Von Staich. If CDCR chooses to respond to Von Staich with transfers, and these cause further outbreaks, the scope of litigation in Plata, and the remedy, will change accordingly.

How is this going to impact the Marin Consolidated Cases? This is a far more interesting question, because the Marin cases are scheduled for an evidentiary hearing on October 26. One of the fierce battles in Von Staich was over the need for an evidentiary hearing: the AG representative implored the court to “not act hastily” and to find out facts; Justice Kline replied, “yes we do, yes we do, we do need to act hastily.” In the opinion, he wrote that CDCR denied all the allegations made by petitioners, but made no effort to counter them with evidence of their own. One possibility, based on this opinion, is that the attorneys for the Marin petitioners will argue that Von Staich, decided by a higher court, now governs the case, and that instead there needs to be a focus on how CDCR implements the remedy. If the AG representatives argue that they want the hearing nonetheless, that puts them in conflict with Von Staich, even though there’s no formal estoppel (different petitioners.) It’s going to be interesting, for sure.

What should we do next? Well, we need to sit tight and watch what CDCR/the AG’s office does. In the meantime, it is imperative to do the following:

  1. Reach out to CDCR with concrete, sane, practical proposals for a 50% population reduction, such as the ones that Jason Fagone lists in this Chron article.
  2. Put enormous pressure on Gov. Newsom to modify his inadequate release plan in line with Justice Kline’s recommendations.
  3. Embark on a huge education campaign about the catastrophic risks of transfers, such as the ones that brought about the calamity at Quentin in the first place.

BREAKING NEWS: California Court of Appeal Orders 50% Population Reduction at San Quentin

I am thrilled to provide this update: We won In re Von Staich, the habeas corpus case challenging CDCR’s mishandling of the COVID-19 crisis at San Quentin. Justice Kline wrote: “We agree that respondents–the Warden and CDCR–have acted with deliberate indifference and relief is warranted.” Here is an analysis of the opinion.

Justice Kline begins by stating the magnitude of the San Quentin catastrophe. Even against the horrific history of disease and contagion in prisons–including three separate spikes of the Spanish Flu in 1918–the San Quentin COVID-19 outbreak is “the worst epidemiological disaster in California correctional history.” He then highlights the physicians’ urgent memo (published after they visited San Quentin, at the Receiver’s invitation) recommending a 50% reduction of the prison population. CDCR’s response fell far short of this: between March and August 2020 they achieved a mere 23% reduction, “accomplished, in part, by suspending intake at San Quentin from county jails, which has increased the presence of COVID-19 in those local facilities, and is not likely sustainable.”

Justice Kline then rejects the evasive maneuvers employed by the AG’s office, who tried to play jurisdictional hide-and-seek by claiming that the San Quentin litigation effort was somehow “duplicative” of the federal case Plata v. Newsom. First, the court wrote, San Quentin is a particular, antiquated prison with specific problems, which are not the focus of the federal litigation. Second, these habeas cases are designed to ask for temporary relief, rather than the more systematic remedies sought in Plata. Third, state courts are not limited and bound by the PLRA, as federal courts are. And fourth, which I found inspiring, state courts have the duty and competence to vindicate rights under the California Constitution (which, just like the U.S. Constitution, forbids cruel and unusual punishment–albeit worded slightly differently.)

The court also rejected the AG’s office’s delay tactics, asking that the case be moved back to the Superior Court and/or that an evidentiary hearing be held. As Justice Kline explains, the AG’s declarations that the doctors have it wrong and that a 50% reduction is unnecessary were “conclusions the Attorney General has failed to support with any factual allegations contradicting petitioner’s allegations,” which were based on scientists’ and physicians’ declarations–even with testimony from their own prison physicians. Under these circumstances, “the issue before us is simply whether respondents’ disregard of the experts’ conclusion that a 50 percent population reduction is essential constitutes the ‘deliberate indifference’ necessary to sustain petitioner’s constitutional claim. The issue is one of law, not fact.”

Was CDCR’s response to the risk of infection–of which they concede they were subjectively aware–adequate? They established a central command; installed a tent structure; repurposed the chapel and a furniture factory to care for COVID-19 patients; provided PPE to the population and staff; and released 947 people. At the hearing, the AG representatives claimed that the reduction in case numbers at San Quentin was thanks to these efforts.

The Court of Appeal vehemently disagreed. Relying on the analysis of experts, the Court agreed with us that the reduction in cases was not because, but despite, CDCR’s behavior. The decision quotes Dr. Beyrer: “Had San Quentin done nothing, the rates of infection there would have been roughly the same.” And, while the steps the prison took to alleviate the risk were commendable, they were insufficient without the population reduction, which they refused to do.

The next bit is especially interesting. The AG boasted that they managed to bring the prison population down to a bit more than 100%. Of course, as Justice Kline writes, in a facility such as San Quentin, full occupancy cannot allow for the social distancing needed to fight the pandemic. He quotes extensively from AMEND’s urgent memo, which detailed conditions in specific areas of the prison, notably North Block and West Block, showing that the combination of crowding and high-risk people was unsustainable. What interests me most about this is the extent to which the AG’s office and CDCR have become habituated to the toxic perspective according to which having their prisons 100% is a desirable end, rather than an unhealthy point of departure. We’ve had bloated prisons bursting at the seams for so long that we seem to think that a full prison at “only” 100% is fine.

The opinion then hits the nail on the head: as I explained elsewhere, the release plans are specifically designed to exclude people serving time for “a violent crime as defined by law” when such people are approximately 30% of the prison population. The AG argued that this is reasonable policy, because they, as opposed to the physicians who authored the memo, have to take into account public safety. To that, the Court has two replies. First, the prison authorities may resolve the Quentin problem not just through releases, but through transfers (though the court does mention that a botched transfer is what started this catastrophe in the first place. Second, and more importantly, even from a public safety perspective, lifers are the most obvious target population for release: they don’t pose public safety risks because they’ve aged out of crime, and they themselves face a heightened risk for COVID-19. Justice Kline writes: “Exclusion of lifers and other older prisoners who have committed violent offenses and served lengthy prison terms is also difficult to defend, given their low risk for future violence and high risk of infection and serious illness from the virus.”

Justice Kline spends several pages citing robust legal, sociological, and medical materials to show the folly of excluding lifers and strikers from release programs. He refers not only to steps taken by the CA legislature, but to the robust literature on life-course criminology, which constantly finds age a significant factor in desistance. Despite their authority to order the release of aging people who committed violent crimes, and statistics about prison demographics that they themselves provide, the AG’s insistence on mostly ignoring this category of obvious release candidates “render[s] it doubtful whether a 50 percent reduction in San Quentin’s population could soon take place.”

This behavior by prison authorities satisfies the “deliberate indifference” standard; they conceded they knew the risk, and they are recklessly failing to take the necessary steps physicians recommended, while not providing any factual justification. The continued use of spaces in which people sleep in close proximity “is not merely negligent, it is reckless”–and “the recklessness is aggravated by respondents’ refusal to consider the expedited release, or transfer, of prisoners who are serving time for violent offenses but who have aged out of a propensity for violence.”

As to petitioner, Ivan Von Staich, the Court has ordered his immediate release from San Quentin. Von Staich was recommended for parole on October 16, but the Governor can weigh his case for four months, and in the meantime he must be released or transferred to a different facility. In addition, the Court agreed that the habeas corpus process allows them to extend relief to similarly situated people. However, the Court opines that “it would be inappropriate to order the release of prisoners we considerd vulnerable even if we thought we had the power to do so in this proceeding.” The Court raises three concerns in this respect: one, that medical vulnerability is a question of “scientific facts, not law”; two, that they are unsure whether they can extend relief to people who did not file a habeas petition; and three, that the appropriate social distancing via releases/transfers can be created not only by transferring vulnerable prisoners out of San Quentin, but also by releasing other people in sufficient numbers to allow for social distancing or the remaining prisoners.

“Nevertheless,” writes Justice Kline, “we are not without means to expedite the release or transfer from San Quentin of more inmates than are now deemed eligible for release.” These means are provided by Section 1484 of the California Penal Code, which allows the Court such course of action. The Court cites numerous California cases that involved injunctive relief through Habeas. By this authority, the Court orders CDCR to bring the CDCR population down to 50%–“no more than 1,775 inmates.” The Court leaves the manner of doing so in the hands of CDCR, though Justice Kline does offer, as possibilities, “expanding eligibility for the two expedited release programs currently limited to inmates not serving sentences for violent offenses to inmates like Petitioner, who are over age 60 and completed minimum terms of at least 25 years.” Note that, despite the Court’s conciliatory words that CDCR is free to achieve the population reduction in whichever way they like, the decision discusses at length the fact that ignoring aging people serving long sentences for violent crimes is what stands in the way of achieving the desired reduction. The order specifically mentions the criteria above (over the age of 60 with 25 years incarceration) and also makes reference to the need to speed up the Elderly Parole Program.

Because of the need to act rapidly to save lives, the decision becomes final in 15 days, and the Court refers the parties to the Marin Superior Court for future disputes.