Formerly incarcerated people continue to urge their friends and loved ones behind bars to make the right choice and take the COVID-19 vaccine. Today’s message comes from Arnold Trevino of Insight Garden Program, who was incarcerated for 28 years:
For Ken Hartman’s video, click here.
For 100% credible information about the COVID-19 vaccine from AMEND, click here.
Please watch this awesome short video by Ken Hartman, a freelance writer and author and the Advocacy Coordinator for the Transformative In-Prison Workgroup (TPW.)
If you want to help this project get off the ground, please tweet and retweet. You can use the hashtag #FriendsWantFriendsSafe.
If you are formerly incarcerated and want to help even more, please send me a short video you can film on your phone–make it shorter than a minute, so someone inside might be able to watch it quickly–in which you address the folks you know and care about inside. Be sure that your video includes:
Email me your video to aviramh at uchastings dot edu. I will display it prominently, with a little intro about the specific facility where you know people, here on the blog.
As the first part in the blog’s vaccine education campaign, and following up on yesterday’s post, I’m very happy to offer you a Frequently Asked Questions document created by Drs. Leah Rorvig and Brie Williams with medical/scientific information about the COVID-19 vaccine from a source that 100% wishes you well and you can trust. Drs. Rorvig and Williams are active members of AMEND, the physician organization that issued the memo urging San Quentin to reduce its population to 50% of design capacity. Here goes:
A few weeks ago, when I pushed to prioritize prisons in California’s vaccine plan, I identified two serious problems: historically understandable mistrust of CDCR by the incarcerated population and COVID-19 denialism among prison staff. Earlier this week I participated in an extremely informative call with lawyers, AMEND doctors, activists and advocates, regarding the progress of CDCR’s vaccination program, the upshot of which is: The staff is the problem.
Here’s a quote from an email sent by the excellent Sara Norman of the Prison Law Office:
The State is currently vaccinating people in Phase 1A, which is three million people; they only have about two million doses so far, though, and have only vaccinated about 500,000. Phase 1A includes people in long-term care facilities and some frontline medical workers, which in CDCR means people incarcerated at CCWF skilled nursing facility, CMF, and CHCF (all of which are in the middle of their first serious outbreaks) and some staff at all the prisons. So far, we know that at least 1200 incarcerated people have been vaccinated (first dose). As I mentioned on the call, CCHCS (the federal Receiver who runs health care in CDCR) expects to offer the vaccine to everyone at those three prisons within the next week or two.
Our understanding is that at some point today, the California Department of Public Health will officially post the Phase 1B, Tier Two vaccine eligibility list, which will include all people who are incarcerated. Statewide, there are about eight million people in Phase IB, counting both Tiers 1 and 2. We are told that CCHCS expects to receive vaccine to start its Phase IB work in about 10 to 14 days.
Sara added a few important points in her overview on the phone call. The acceptance rate among incarcerated people was not 100%, but it was quite high; as of Tuesday, 1227 vaccines were offered and only 108 were refused (this is a considerably higher rate of compliance than the rate in the general population.) The PLO spoke to the people who refused and identified some problems with vaccine education and communication, which should not surprise you if you’ve read this post.
The vaccination plan at CCWF, CMF, and CHCF is quite ambitious–they plan to offer the vaccine to every single person at these facilities in the next few days. The challenges they face involve serious nursing shortages. Not only do they need medical personnel to administer the vaccines and care for the sick, but they need to check vitals for the thousands of isolated people twice a day. The strain on the nurses is incredible, but they are forging through with the plan, including exhortations and threats of dismissal from Shereef Aref, the Chief Executive Officer of CCHCS. Paige St. John of the Los Angeles Times reports:
“A refusal to a mandate is insubordination,” Dr. Shereef Aref wrote. “It is not acceptable and it will not be tolerated.”
First refusals will result in a write-up, Arf wrote. “A second refusal will be referred, as a request for Adverse Action, to the Hiring Authority.”
One prison medical worker, who spoke anonymously out of fear of losing her job, said the stress was intense.
“Nursing staff [have] children out of school; to be away 16 hours not including walk time to the parking lot and drive time home could add up to 18 hours a day,” she said. In many cases, both spouses work at the prison. “It’s stressful. There is no such thing as ‘social distancing’ in prison.
“Also, the office staff have masks, but if you go on a housing unit, very few have masks because of the scarcity. … We are confused as to why they seem to have masks for administrative posts.”
She added, “Oh, and an inmate committed suicide yesterday. And two officers committed suicide in March.”
The Prison Law Office personnel were told that other incarcerated people, particularly people who are under inpatient care, were next on the list, and that the plan would roll to other prisons in mid-January, prioritizing people according to a complicated COVID-19 risk algorithm, which highlights the need to target people who are “covid-naive,” i.e, who have not contracted COVID-19 in last 90 days. Among those people, the first to be offered the vaccine are at higher risk due to age, preexisting conditions, or both. Reportedly, no thought is being given to the differences between CDCR facilities who have and have not reached herd immunity the hard way. Nor has there been an effort to prioritize incarcerated firefighters, despite the obvious transmissibility reasons that put them at the top of the list for other vaccines.
But even these are minor problems compared with what is emerging as the most serious problem: the staff. Vaccines have been rolled out for staff at all institutions, prioritizing medical and frontline workers or people who work directly with patients, but generally the plan is to offer the vaccine to all staff throughout January and February. The administration of staff vaccination has been contracted out of CDCR/CCHCS to another organization. So far, 6,700 staff members have been vaccinated, most of them at CHCF and at CMF. However, there is disconcerting evidence of significant refusal rates among staff. Incarcerated people have heard rumors that 40% of staff members are refusing the vaccine. Also, in response to a CDCR survey, about 40-50% reportedly expressed reluctance about vaccination, citing reasons such as “I wanna wait and see what happens.” The people on the call were unsure whether there was any educational campaign targeted at the staff, nor did anyone seem to know whether CDCR, as employer, would condition employment upon vaccination. In case you’re wondering whether terminating vaccine refusers from employment at CDCR would be legal from an employment law perspective, the answer is: yes, it would be.
This distressing information suggests that the problem is not only with CCPOA leadership, who have been far more interested in spending millions on losing punitive voter initiatives than in the health of their membership, but also with the rank and file, where Trump-style COVID denialism seems to have found a solid foothold. Just this week, we had ample proof of what happens when vast ignorance, misinformation campaigns, and fetid ideologies come together, right? To my shock and amazement, in the face of thousands of their colleagues sick and twelve staff deaths, including two in December, prison guards are planning an excursion to… Las Vegas for a board meeting. Wes Venteicher of the Sacramento Bee reports:
The union for California state correctional officers has invited representatives from every prison to gather in Las Vegas for a board of directors meeting even as their institutions contend with surging coronavirus outbreaks.
The California Correctional Peace Officers Association’s board includes representatives from all 35 prisons plus some members who represent officers outside prisons, such as parole agents and officers who work at fire camps.
Also invited to the two-day meeting, scheduled for Jan. 26 and 27 at Caesar’s Palace, are roughly a dozen members of the union’s committees along with retired chapter members, according to a website set up for union members to make travel arrangements.
A dozen state prisons have reported more than 200 new COVID-19 infections among inmates in the last two weeks, and another six have reported more than 100 new infections. More than 2,500 prison employees have reported new infections in the last two weeks and about 13,000 out of 55,000 have contracted the virus since the start of the pandemic.
Most large in-person meetings have been canceled during the coronavirus pandemic due to concerns about creating “super-spreader” events in which an infection may be passed around and then spread far beyond the group when the gathering is over.
California has prohibited most in-person gatherings of more than one household, whether they are held indoors or outdoors, under emergency orders. Nevada permits gatherings of up to 50 people.
Glen Stailey, the union’s president, referred questions to a union spokeswoman when reached by phone Wednesday.
“These meetings are important to the association and its members as it relates to many topics including COVID-19 inside prisons,” CCPOA spokeswoman Nichol Gomez said in an email.
Gomez said the group would follow all Nevada and California state protocols and is “constantly evaluating the situation and will make decisions accordingly.”
Gomez did not respond to questions about how many of the members who have been invited plan to attend, nor did she say whether the members plan to get tested or quarantine before or after the trip.
Note that the quarterly meeting is typically held in Sacramento. Apparently, CCPOA leaders decided that early 2021 was the right time to party. If, as Gomez stated, the meeting “relates” to COVID-19 inside prisons, they don’t apparently mean “relates” as in “aims to prevent.” The risk that Christmas gatherings of COVID-denier staff members may be partly to blame for the horrific infection rate does not seem to have been considered. In the absence of any positive educational or other initiative from their employer or union, the only visible effort addressed at reducing COVID-19 denialism among correctional staff comes from our good friends at Amend SF. In the off-chance that you, dear reader, are a correctional staff member and are reading this and open to persuasion, please, in the name of everything that is holy, watch this and share it widely with your colleagues:
COVID-denialism among staff affects not only the odds of infection among incarcerated people, but also the messaging they receive from staff members. Several people with good friends and loved ones behind bars mentioned that their connections inside have heard correctional officers tell incarcerated people that they can die from taking the vaccine and that COVID-19 is not real.
In the face of this problem, and the dearth of efforts by CDCR to quash this ignorance, I have two proposals. The first involves health officers in all cities and counties surrounding prisons in California–people like Dr. Matthew Willis, Marin County’s top health official, who tried to stop this disaster and were sidelined and ignored. This is your moment. Please organize and liaise not only with the prisons in your respective counties and demand that they condition employment upon vaccination. Tell them that there is now quantitative data, some of which comes from our original research and some from the work of others, to show the impact of their neglect on your communities. These COVID-19 deniers among the staff are endangering you and the people who live in your county. Please get involved, as there is not a moment to lose.
The other proposal is mine, and its logic is simple: If the staff won’t do their part to protect incarcerated people, we need to raise the vaccination rate among incarcerated people as close to 100% as we possibly can. And so, dear reader, if you are a formerly incarcerated person–especially if you’ve only recently been released and you still have some good friends inside–I need your help. I can also use help from family members and loved ones of incarcerated and formerly incarcerated people. Please send me a short video you can film on your phone–make it shorter than a minute, so someone inside might be able to watch it quickly–in which you address the folks you know and care about inside. Be sure that your video includes:
Email me your video to aviramh at uchastings dot edu. I will display it prominently, with a little intro about the specific facility where you know people, here on the blog.
Thank you very much for your collaboration–let’s save as many lives as we can together. As Rabbi Hillel said almost two millennia ago: If I am not for me, who will be for me? And when I am for myself alone, what am I? And if not now, then when?
In case the horrific damage Trump and Trumpism have done to our democracy was not obvious from the horrendous crimes in plain view of the last few days (or the last four years, including human rights crimes masquerading as policies) today we have evidence on the local level of how deeply the notion that democracy can be purchased and toyed with has resonated with some Silicon Valley dolts. Not that these people needed Trump’s encouragement to think of San Francisco as window dressing for their lives, and of all of us as “local color” providing a picturesque setting for their VC deals. But today really takes the cake with an idiotic fundraiser, organized by this guy, who seems to think that his claim to virtue–being ridiculously and ostentatiously rich in a city where other members of the human race have to starve, defecate, and die in the streets–is a proper substitute for actual criminal justice expertise.
This initiative comes in the heels of a horrific tragedy–a fatal car accident that claimed the lives of two women. The man behind the wheel, Troy McAlister, was intoxicated and driving a car he had stolen from a date. Because Chesa Boudin ran on a progressive prosecutor platform, the focus is on prosecutorial missteps that led to McAlister being free: before this recent crime, he had been headed toward trial in late 2018 on two counts of second-degree robbery in connection with a 2015 holdup in a San Francisco store. Boudin’s office “referred these cases to parole because we believed there was a greater likelihood of him being held accountable and having the kind of intervention that would protect the public and break this cycle of recidivism.”
Since I know something about parole, I can explain that there are two ways in which people on parole end up back in prison: either they commit a new crime, for which they are prosecuted and tried (this can take months, if not years) or they commit a parole violation that lands them back in prison. Oftentimes, there’s an overlap. While some parole violations are technical and trivial, others amount to new crimes. It is not unreasonable to think that a parole violation route will be more efficient than a new prosecution, though things have somewhat changed in terms of the implications. Before the Schwarzenegger Administration’s parole reform, parole violators pretty much automatically ended back in prison, even for very minor violations–resulting in a prison population comprised of 50% of the people doing time not for new crimes, but for parole violations. The reform, aimed at alleviating the obscene 200% overcrowding in the system, aimed to give parole agents more discretion and a range of intermediary sanctions before throwing them back in the slammer, depending on discretion and on how severe the violation was and how risky the person was judged to be.
Like any situation involving risk prediction, when deciding whether to remand a person to CDCR or use an intermediary sanction, parole agents could be right or they could be making one of two types of mistakes. False negatives are situations when the person is assumed to not be much of a risk but then commits a new crime (such as McAlister). False positives are situations where a person is kept behind bars, mistakenly perceived as a release risk, when had they been released, they would not have committed a crime. Obviously, we only hear about false negatives, not false positives, because they appear to be penalty-free. But false positives also have a grave price. As of today, 133 people have died of COVID-19 behind bars. Most of those people were aging folks, who are largely assumed to have aged out of crime, and who would have posed no danger to the outside world had they been released (which would have saved their lives.) Their illnesses and death, in turn, resulted in infections, illnesses, and deaths in the communities surrounding the prison. It’s just that our society is not particularly inclined to value the harm and price paid by these people and their families as we value the lives on the outside. But any time we make a judgment call about risk, we might be making either mistake. And that means that some mistakes, which are horrible, and tragic, and senseless, and enraging, cannot be prevented. This is a horrible truth to live, but it doesn’t necessarily indicate that there’s something systemically wrong at the prosecutor’s office or at the parole agent’s office. It indicates that someone made a horrible mistake.
Moreover, our attention to particular instances of false negatives blur their overall context. Every fatal traffic accident that happens in San Francisco, of which there are dozens every year, leaves a deep wound of grief in its aftermath. Many of them are as preventable as this one. And the vast majority of them never make the news, because they don’t involve parolees, which is why we deal with them through initiatives such as Vision Zero, rather than through hatchet jobs against our elected officials.
So why are we making this horrific tragedy into a cause célèbre? Because there are political hatchets being forged, such as this “astroturf fundraiser” (as my friend Chris Johnson called it), about which there isn’t much to say that isn’t obvious. However, obscene wealth seems to make people impervious to the obvious, so here it is: It turns out that we have a magical and effective mechanism in the United States for holding prosecutors “accountable to the people.” It’s called voting. The people wanted a progressive prosecutor and, should they be displeased, they can elect someone else. Voting comes in pretty handy in procuring accountability, because it is available to people who have less money than Mr. Calacanis. The funny thing is that, throughout the last decades, because of aggressive fearmongering propaganda, voting regularly and reliably produced aggressive prosecutors who almost singlehandedly drove our mass incarceration crisis. Now, we’ve been through the 2008 financial crisis, and the Obama administration, and the horrors of Trump and a second recession, and the American public has apparently come to the conclusion that they are ill served by this sort of prosecutorial policy, and so they are choosing something else.
Mr. Calacanis knows this, of course. He and his ilk have been more than happy with this system as long as the hoi polloi reliably voted for the kind of prosecutors they like, but democracy doesn’t suit them quite to the same degree when the plebeians want social services, relief from cash bail, a wrongful convictions unit, and humane jails. So when he claims to speak for “the people,” he is not championing you and me–he’s championing his rich buddies, whose favorite pastime is to abuse and exploit California’s delicate democracy and treat it as a playground for their contemptible ideologies and ridiculous experimentation. This is not a particularly original move. Calacanis is merely following in the footsteps of several folks just like him, like the wealthy guy who gave us Marsy’s Law (which we have to blame for having so many old and sick people behind bars, denied parole in the face of COVID-19 for no logical reason) or the clown who wanted to split California into six states. It should also come as no surprise that these folks believe that investigative journalism, just like democracy, is something you simply buy with Silicon Valley money–even though we have excellent investigative journalists at the San Francisco Chronicle who are all over this story and are not for sale.
Look, I’m not an idiot. I know that politics-for-sale is festering throughout this great nation, and I cling to my youth in Israel, where that was not the case to this depraved degree, mostly for sentimental reasons. I know that the social democracy in the Old Country breathes no more, but its memory and ethos live on, and I have daily proof that even that faint memory works better than than the corrupt, unbridled capitalism of the U.S., in the form of people from my age cohort in Israel posting pictures of having received the vaccine I can only dream about. I remember being physically nauseated when I read the Mueller report, partly because it gave me a window into the lives of oligarchs who think nothing of buying caviar for $30,000. Mr. Calacanis and his buddies are obviously not as rich as their Russian counterparts (that must sting,) but they’re trying to play the same game. And it is universally loathsome, regardless of whether the perpetrators wear ostrich jackets or Patagonia fleece vests.
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:
CVSP 96%
ASP 92%
CRC 91%
SQ 81%
PVSP 71%
CIM 70%
SATF 68%
FSP 62%
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.
The FBI has used the Uniform Crime Reporting Summary Reporting System, which was created in 1929, for the past nine decades. There are about 18,000 law enforcement agencies in the United States. Only a bit more than 16,000 of them reported monthly crime figures last year in eight relatively broad categories that the FBI aggregated and published. This annual collection system is shoddy. Some agencies don’t report data every year and others report incomplete data.
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:
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 the eventual pieces, 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).)
The request for depublication is denied.
Votes: Cantil-Sakauye, C.J., Corrigan, Liu, Cuellar, Kruger, Groban and Jenkins, JJ.
And here’s the order in the 311 Marin County cases:
122420 Order Staying Further Proceedings & Vacating Individual Orders by hadaraviram on Scribd
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.”
This is not necessarily a bad development, for several reasons. First of all, it is dubious that CDCR, and the AG, could put on any convincing evidence to show that the measures they took, short of releasing people, adequately put them out of “deliberate indifference” territory. Their own doctors are horrified by what they are doing and have said on the record that they want nothing to do with the transfers. Their claims about other precautions, such as screening and wearing PPE, have now been refuted by two Inspector General reports, and they have been excoriated by the legislature for not rising to that level. Only this week did they show any signs of enforcing proper protection on their own staff (so, even the ameliorating steps they claimed to have taken, which the Court of Appeal found “commendable”, turn out to be fictional.)
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:
gov.uscourts.cand.76.3523.0 (1) by hadaraviram on Scribd
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.
Here it is – only nine months too late:
Mandatory Employee Testing and Non Compliance Accountability 12-21-20 by hadaraviram on Scribd