Category: Criminal Justice

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:

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.
Put enormous pressure on Gov. Newsom to modify his inadequate release plan in line with Justice Kline’s recommendations.
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.

litigation san quentin

Let Crime Victims Be Themselves, Not the Moral Curators of Criminal Justice

Today’s papers brought forth two news items that I found fascinating. The first, Heather Knight’s piece in today’s Chronicle, reports of San Francisco D.A. Chesa Boudin’s effort to reach out to crime victims and ask about their priorities for his office. The victims in the article were presented with a preselected menu of five priorities to rank by importance: prioritizing rehabilitation over punishment, providing restorative justice options for victims of crime, increasing alternatives to prison, increasing services for victims of crime, and increasing financial resources for victims of crime.

The victims Knight interviewed were frustrated by the survey, which yielded a very low response rate. One of them said: “There was no option to disagree or to even add a suggestion or comment to what could be included in those five very limited options. . . It’s disappointing and disrespectful to survivors.” Others expressed dismay over the fact that the survey seemed like an effort to distort their perspectives to support approaches such as restorative justice, which they thought “may work for petty thieves, but not for violent criminals.”

The other item was a stunning editorial in the L.A. Times, authored by Polly Klaas’ two sisters, Annie and Jess Nichol, in opposition to Prop. 20. This is especially striking because of the contrast to Polly’s father Mark, who became the face of punitive legislation in California. Mark was the force behind the Three Strikes Law and continued advocating against its amendment in 2012 and against Prop. 57 in 2016.

Annie and Jess don’t seem to share their father’s politics. They write that mandatory minimums, and other punitive laws “were strongly supported by people across the political spectrum and by a prominent voice in our own family. The best known of the mandatory sentencing enhancement laws came to be known as ‘three strikes,’ which aimed to keep people in prison for life after a third conviction for a serious offense.” They continue:

Ostensibly, these laws were meant to prevent tragedies like our sister’s murder from being repeated. Yet many of the people who ended up with life sentences under three-strikes laws were convicted of nonviolent crimes — things such as stealing a bicycle, attempting to forge a check, breaking a church window or using drugs. The laws produced a misguided sentencing system benefiting the prison industry, whose survival depends on large numbers of incarcerated people serving extended sentences.
People imprisoned under three-strikes and other mandatory sentencing laws are overwhelmingly Black and Latino, and they are also often mentally ill or homeless. Over the last 26 years, three-strikes laws have significantly contributed to mass incarceration in the United States and have exacerbated the systemic racism inherent in our justice system.
Up until now, we have been reluctant to insert ourselves into the conversation around criminal justiceout of respect fordiffering perspectives in our own extended family. Polly’s dad worked hard to see that stricter sentencing laws were passed after her death. We love and respect him, and it’s been painful to disagree about something that’s so personal for all of us.
But this is a pivotal moment in the history of our country. This summer, millions of brave Americans have taken to the streets to protest the racism and systemic injustices plaguing our country. Their courage has inspired us to speak out, to join the movement to transform our criminal justice system and build a better legacy for our sister.
As much as those who benefit from prisons want you to believe that mass incarceration makes us safer, the data tell a different story. Decades of research show that the harsh and violent prison environment is deeply damaging and sets people up to fail when they reenter society. On the other hand, rehabilitation — providing skills, services and treatment to incarcerated people — can drastically reduce recidivism rates. Legislators have mostly ignored this fact, claiming that tough-on-crime legislation is universally what crime victims want, but an Alliance for Justice survey found that victims of crime and their loved ones — like us — are twice as likely to favor rehabilitative programming and alternatives to incarceration. Clearly, incarcerating our way to safety doesn’t work.
Thankfully, three-strikes and other extreme sentencing laws have undergone some progressive reforms in the last decade to expand rehabilitation, but an initiative on California’s November ballot called Proposition 20 aims to reverse much of that progress. Proposition 20 is an attempt by the prison industry and its allies to yet again weaponize our fear to expand their profits and their prisons.
Like many other victim advocates, we believe that the resources spent on mass incarceration should be used to reinvest in underserved communities for prevention programs. By providing support, job training and rehabilitative services, we can prevent crime at the local level, help formerly incarcerated people successfully reintegrate into society and make our communities safer.
Proposition 20 would move criminal justice in California backwards. As Polly’s sisters, we strongly support systemic interventions that actually work to lift up our communities and keep people safe.

What to make of the juxtaposition of these two items? If nothing else, that crime victims–like everyone else–are a diverse group of people with a range of opinions about their personal experiences and about the policy implications of these experiences. There’s a great 1999 article by Kent Roach titled Four Models of the Criminal Process in which he has not one, but two victim models–a punitive one, which is basically what we’ve had here for decades, and the nonpunitive one, which looks a lot like restorative justice/family circles.

What I see in these new representations of victimization (and let’s not forget to throw in there the backlash against Brandt Jean’s forgiveness and against Christian Cooper’s broadmindedness because, I don’t know, they went through awful experiences and so they owe you something) is an idea I discussed a lot in Yesterday’s Monsters and elsewhere: In this society that won’t offer a quiet, empathetic, nonjudgmental ear to people or care about them unless they perform a spectacle of suffering, your victimization, rather than entitle you to compassion and practical assistance, imbues you with mystical power and moral authority. It matters very much what we call you (victim? survivor?) and it also matters very much what you think about criminal justice, and so people on both sides try to make your feelings about what happened to you into an object lesson. Punitive entrepreneurs rope your feelings, real or hypothetical, into areas that might be completely removed from your consciousness (breathtakingly, Prop. 17 opponents imply in their arguments not only that victims’ feelings about the right to vote for parolees should matter, but that victims even have such feelings at all), and nonpunitive entrepreneurs try to contort your answers to a survey to support a restorative justice agenda.

Of course, this is not all a manipulation done on unwilling victims. California offers plenty of examples who marshaled the horrific tragedies in their families into a career in punitive advocacy, like Dominick Dunne, the Tate family, and Mr. Klaas. But would people feel compelled to take on moral crusades if they were allowed to feel their feelings, be they punitive, restorative, or anything in between, without the additional responsibility of being the state curators of criminal justice policy? What if someone’s feelings about a horrible experience they went through–whatever these might be–were listened to with compassion and care, and they were just their feelings–no more and no less–and were not imbued with a magical ability to sway criminal justice to and fro? Can we maybe hold a bit less tightly the fashionable notion, which permeates all criminal justice discourse, on the left and on the right, that people’s lived experiences are the policymaking gospel, and that expertise, budgeting, prediction, and project evaluation are somehow heartless and evil? Can we give feelings a space to just be what they are–feelings–without forcing them to be something else?

Whose Goons Are These?

‘Help!’ he shrieked shrilly in a voice strangling in its own emotion, as the policemen carried him to the open doors in the rear of the ambulance and threw him inside. ‘Police! Help! Police!’ The doors were shut and bolted, and the ambulance raced away. There was a humorless irony in the ludicrous panic of the man screaming for help to the police while policemen were all around him. Yossarian smiled wryly at the futile and ridiculous cry for aid, then saw with a start that the words were ambiguous, realized with alarm that they were not perhaps, intended as a call for police but as a heroic warning from the grave by a doomed friend to everyone who was not a policeman with a club and gun and a mob of other policemen with clubs and guns to back him up. ‘Help! Police!’ the man had cried, and he could have been shouting of danger.
Joseph Heller, Catch-22

The image above was screen-captured from a cellphone video, which depicts goons from La Familia, a group of pro-Netanyahu goons with ties to the infamous soccer team Beitar Yerushalayim, attacking anti-Netanyahu protester Sedi Ben Shitreet and a Ha’aretz journalist, but you could be forgiven for mistaking them for actual cops. The image below, also from cellphone footage, depicts the Israeli police beating up 71-year-old protester Ami Dayan for no reason whatsoever.

Looking at these horrific images takes me back to 2014, when I visited Israel and first experienced the phenomenon of right-wing goons following peaceful left-wing protesters home and beating them up under the cover of night. There’s something especially vile about this–it triggers my cultural Jewish imagination and takes it to darker times of pogroms and extinctions–and, of course, it creates strong feelings of kinship and compassion with the horrors that BLM protesters experience at the hand of goons like Kyle Rittenhouse and so many of his ilk.

There’s not a lot new to say about this beyond the obvious, but I will contribute this thought: One of the scariest things about fascist regimes is the deliberate blurring of boundaries between government goons and private goons. It’s a two-way process: governmental encouragement and empowerment of private goons, supporting their policies in ways that legitimize them as the executers of oppressive state policy, and obscuring the visibility of government agents as such to appear as private entities and shirk responsibility for violence and abuses of power.

This boundary blur is merely a reflection of corrupt governments in both countries, in which the state is captured by people who pillage and exploit everything for their sole, selfish benefit and care nothing for the public good. It is only natural that the lack of distinction between their private interests and their government goals will manifest in their choice of goons, in the ways oppressive state-sponsored thuggery is performed in the streets, and in the difficulty their victims face in identifying the responsible parties for violence and bloodshed.

Vote.

When Ya Gotta Go, Ya Gotta Go: Bodily Functions as a Gateway to Compassion

Nothing is worse than to finish a good shit, then reach over and find the toilet paper container empty. Even the most horrible human being on earth deserves to wipe his ass.
Charles Bukowski

Hello, my name is Hadar and I’m a quality-of-life offender.

<Hi, Hadar>

Last week I took our family car to Burlingame for a repair. While the mechanics were working, I took off on a stroll in the town’s beautiful shopping and dining avenue. I had a couple of beverages and some food, and still had some time to kill when I felt the urge to go to the bathroom. Cafés and stores closed their bathrooms to the public, on account of the pandemic, and I was left with no recourse. I walked to the train station, hid in the gravel behind the tracks, and peed. I then walked over to the public park. While there, I needed badly to go again. My experience with San Francisco parks was that they invariably shut down their toilets. I assumed the same was true for this one, so I hid behind a big tree, taking care to be out of sight of the other park visitors, and peed again. Within a few moments, Officer S. Vega of the Burlingame Police called me over, reprimanded me, and became even more upset when I started laughing (“Lady, I don’t understand what’s funny. Children could’ve seen you.”) Turns out there was a bathroom in the park, even though Officer Vega could have understood why anyone would assume there wasn’t one if he were in a more charitable moood (unavailable toilets are the norm, not the exception.) I couldn’t stop laughing–because, really, what more can 2020 throw at you?–as I got photographed, signed paperwork, reported my cellphone number, and was handed a citation without a fine listed (“you’ll be receiving mail from our traffic court.”) My citation reads: Urinating or defecating in a public place. Somehow, that feels unfair: absurdly, I feel outraged at the grouping of urinators with defecators, as if I occupy a more rarified moral sphere than the folks that have to do a number 2, and moreover, I resent the confluence of all public places. Is not a natural spot behind a tree more reasonable than a sidewalk? But that, of course, raises deeper questions.

The issue of public urination remains one of the most insidious aspects of how COVID-19 has reshaped our environment. We have spent our pandemic times in San Francisco County, which exhibited a high level of compliance with pandemic prevention measures. As a consequence, we were full-time workers and full-time parents to our toddler for many months, and the way we coped with this difficult challenge was by spending a lot of time in nature. Park trail bathrooms and water coolers were shut down, and so we did our business in nature.

As stores, cafés, and restaurants have begun to reopen, they have almost invariably shifted to an outdoor service model, offering either only pick-up orders or outdoor dining. Only a handful have opened their restrooms to the public. San Francisco’s public parks, which still feature closed playgrounds (while twentysomethings work out to their hearts’ content in outdoor gyms!) have similarly kept their restrooms closed. This puts people in incredibly difficult situations that have not been discussed at all by politicians and media outlets. It is assumed that bathrooms are dangerous, plague-harboring places. And yet, the inevitable fact remains that people do need to go when they need to go.

Having to cope with this incredible (and silenced) difficulty has been a profoundly educational and humbling experience for me. I’m turning 46 next month and have begun dancing with perimenopause. Consequently, my “holding it in” skills are not what they were, and even when I was more spry I was never a particularly successful camel. On top of that, I’m parenting a young child who hasn’t yet perfected his “holding it in” skills and who sometimes needs to go fairly quickly, so a public restroom with a long line is not an option for either of us, even if such were more widely available. The lack of access to public bathrooms, and even more so, the lack of certainty whether public bathrooms will be available on a particular outing, hampers our lives and our movement in public space in serious ways, and surely we’re not the only ones facing this. I’ve decided to talk about this openly in the hopes that it starts a conversation about the availability of public toilets.

What’s even more remarkable about this challenge is that, while for me and my ilk this is a worsening life condition, for some of my friends and neighbors here in San Francisco this is a living reality–and these humiliating experiences are an opportunity to open a small window of empathy and compassion into the ocean of difficulties that they brave on a daily basis. Much of the reporting about the rising housing crisis in the Bay Area has focused on the horrifying, humiliating solutions that people have to recur to. Two years ago, long before the pandemic was even on the horizon, Heather Knight published this piece, which looked at one neighborhood’s struggle with the realities of dehumanizing existence. The pièce de résistance, if you will, in Knight’s story, was a suitcase full of human excrement found in the neighborhood. Knight quoted one of the residents: “Nobody should have to poop in a suitcase, and nobody should have to find a suitcase full of poop.” But what is one to do when there is no reasonable place to go? How can one toe the line between avoiding legal fines (which, despite the existence of the Community Justice Center, inexplicably end up in traffic court!!!), avoiding health complications from holding it in (there are plenty of people my age and older on the streets), and keeping one’s dignity?

I think about this also in the context of protests. My parents are only two of hundreds of thousands of people who are rising up in Israel and protesting against corrupt premier Netanyahu, Israel’s “Crime Minister” as he’s now known, demanding his resignation. My folks are in their early seventies; actively participating in the protests, complete with travel to and from the location, can take hours. It’s still very hot in Israel and people need to drink water, and that means they need to pee. The protesters take special care in cleaning up after themselves (and Netanyahu’s neighbors, who understandably loathe him, actually support and welcome them.) When talking about protests and public action, we tend to forget about these hidden but important sacrifices that people make in giving up their comfort and their health to be heard. Can we have a moment of empathy with protesters who are in a public place and really, really gotta go?

Bathroom Battlegrounds by Alexander K. Davis

Alternatively, consider how restrooms became the front line of our gender battles. Alexander Davis’ terrific new book Bathroom Battlegrounds offers a rich political and cultural history of the gender, race, and class segregation that goes into the architecture of places for people to pee, culminating, of course, in litigation over laws like North Carolina’s infamous “bathroom bill”. Regardless of your personal gnosis about predetermination and social construction in gender, can we all agree on the fact that making bathrooms–the place where you confront the lowest and most urgent rung in Maslow’s hierarchy of needs–the battle front on trans rights in dehumanizing and horrible? Can we set values and politics aside and just put ourselves in the shoes of a fellow human being–any human being, be they rich, poor, cis, trans, young, old–who desperately needs to pee and can’t find a safe place to do it? Next time you face these indignities, because of COVID-19 or for any other reasons, can you leap on this as an opportunity to find kinship with others who really, really gotta go in an environment that is hostile to their basic bodily functions?

One of the brightest spots in our urban environment has been the emergence of pit stops on our streets. Pit stops are safe, clean, convenient bathrooms, which also offer opportunities to dispose of dog waste and needles, available to anyone for free. They are maintained and supervised by the amazing people at Urban Alchemy, an organization for which I have enormous admiration and affection. Many of the people who work at Urban Alchemy are formerly incarcerated, and much of their people skills, pacifying, conflict deescalation, and problem solving skills were developed on prison yards. They understand where down-and-out folks come from and what they need, and they find ways to provide it with dignity and respect. They’ve been effectively and peacefully running the Safe Sleeping sites, keeping the area around my workplace friendly and safe, saving lives through the use of Naloxone on a weekly basis, and doing all this without recurring to violence or putting anyone at risk. I cannot begin to tell you what a relief my small-bladdered self feels when I see one of these kind, capable people taking care of a public bathroom and keeping it safe and clean for everyone. We all deserve to go to the bathroom with dignity, and my only wish is that we have a Pit Stop on every San Francisco block.

criminalization homelessness poverty quality of life urban planning

CARES Act Relief for Incarcerated People

The Coronavirus Aid, Relief and Economic Security (CARES) Act provides assistance to hospitals, nonprofits, individuals, and businesses. Among other provisions, the CARES Act provides individuals who earn less than $75,000 annually with a direct payment of $1,200, plus an additional $500 for every qualifying child age 16 or under. Married couples who file a joint return and earn less than $150,000 are eligible for up to $2,400 plus an additional $500 for every qualifying child age 16 or under.

On September 24, 2020, Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California issued an Order certifying a nationwide class of people incarcerated in state and federal prisons, and granting the plaintiffs’ motion for preliminary injunction requiring the U.S. Department of Treasury, the U.S. Internal Revenue Service, and the United States of America to stop withholding CARES Act stimulus funds from plaintiffs or any class member on the sole basis of their incarcerated status.

The Judge’s preliminary injunction further ordered the defendants to reconsider their prior denial of advance refund payments to any person based on incarcerated status within 30 days, whether the denial was based on a 2018 or 2019 tax return, or on claims filed through the IRS’s online “Non-Filer” portal.

Earlier, on August 1, 2020, Lieff Cabraser and the Equal Justice Society filed a groundbreaking lawsuit against the United States Department of the Treasury and Internal Revenue Service on behalf of a nationwide class of people who were incarcerated at any time from March 27, 2020 to the present—that is, people serving a sentence in state or federal prison. The lawsuit seeks to have a court order the Defendants to issue CARES Act stimulus relief to all eligible incarcerated people, or up to $1,200 per eligible person plus $500 per qualifying child.

Lieff Cabraser have put together an easy-to-follow FAQ for you, explaining who is eligible and how to file a claim.

Wonderful Review of Yesterday’s Monsters in the SF Chronicle

I’m very happy to share a great review of Yesterday’s Monsters written by Bob Egelko of the San Francisco Chronicle.

Review: ‘Yesterday’s Monsters’ shows parole system’s flaws in Manson cases

Bob Egelko September 30, 2020 Updated: September 30, 2020, 7:28 am

Susan Atkins, convicted of eight murders as a member of Charles Manson’s “family,” was dying of cancer when she made her 18th appearance before the California parole board in September 2009, after nearly 40 years in prison. Bedridden for 18 months and barely able to speak or move, she remained largely silent while her husband and attorney, James Whitehouse, asked the board to release her to a hospice, which he said he would pay for.

In response, relatives of Manson’s victims recalled the horrors of the 1969 killings. A Los Angeles prosecutor, Patrick Sequeira, called the family a “criminal terrorist organization” and said Atkins “has tried to minimize her involvement in the crime.” The board swiftly decided Atkins “poses an unreasonable risk if released” and denied parole for at least three more years. Atkins, 61, died of brain cancer 22 days later.

The incident is the most graphic but far from the only illustration of a malfunctioning system in “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” by Hadar Aviram, a professor at UC Hastings College of the Law in San Francisco who specializes in criminal law and civil rights.

The state Board of Parole Hearings shows “a clear preference for looking back and discussing the past (rather) than for the future, sometimes astonishingly ignoring terminal illness and old age when discussing future risk,” Aviram writes. And that, she notes, is the opposite of its assigned task of determining whether a prisoner who has served many years for past wrongdoing can now be safely released.

The book is a study, not an exposé — there are nearly 800 footnotes — but its language is everyday and accessible. Discussing inmates’ need to display “insight” into their crimes to be found suitable for parole, for example, Aviram writes, “the Board continuously moves the goal posts.” It’s aimed at two sets of readers, those who care about the workings of the criminal justice system and those with enduring memories of the Manson nightmare (this reviewer fits both categories).

Convicted mass murderer Charles Manson listens to the panel at his 1986 parole hearing in San Quentin prison.Photo: Eric Risberg, Associated Press 1986

It may not be fair to judge any criminal justice process by its response to extremes, and the Manson cases are about as extreme as they come. For reasons that remain unclear — some say Manson wanted to start a race war, others simply describe a cult obsessed with drugs, sex and violence — he ordered seven of his followers, including Atkins and two other young women, to kill nine people in three gruesome attacks in the Los Angeles area in July and August 1969. After the fatal stabbing of actress Sharon Tate, Atkins scrawled “PIG” in Tate’s blood on the front door of the home.

Manson, Atkins and three others were sentenced to death in 1971. But the state Supreme Court overturned California’s death penalty law in 1972, and all death sentences were reduced to life in prison with the possibility of parole; only under the subsequent law, passed by legislators in 1977 and expanded by the voters in 1978, were capital cases made punishable solely by death or life without parole.

Meanwhile, lawmakers and Gov. Jerry Brown, serving the first of his four terms in office, were remaking California’s sentencing and parole structure.

Discussing inmates’ need to display “insight” into their crimes to be found suitable for parole, for example, Hadar Aviram writes, “the Board continuously moves the goal posts.”Photo: Jana Asenbrennerova

Previously, nearly all crimes were punishable by a range of terms — 1 to 5 years, for example, or 5 to 20 — and a parole board that included psychologists and other professionals decided when a prisoner was fit for release. The system came under attack from both the left, as racially prejudiced, and the right, as unduly lenient, and was replaced in 1977 by “determinate” sentences for most crimes — two, four or six years, for example, with the sentencing judge making the choice.

Only “lifers,” those convicted of murder or a few other crimes, such as kidnapping, would now appear before the parole board, after a designated period, to seek their release. And board members were appointed by the governor, who generally chose law enforcement professionals skeptical of claims of rehabilitation.

The parole board’s occasional decisions to approve release were made subject to the governor’s veto by a 1988 initiative. A 2008 initiative called Marsy’s Law requires inmates who are denied parole to wait 15 years for their next hearing — five times the previous interval — unless the board finds “clear and convincing evidence” to justify an earlier hearing.

“Yesterday’s Monsters” focuses on a Board of Parole Hearings that is supposed to look forward, not backward. The state Supreme Court underscored that mission in a 2008 ruling that prohibited both the board and the governor from denying parole based solely on the gruesome nature of the crime — though, in a frequently cited exception, the court said the board could consider an inmate’s lack of “insight” into the offense.

Participants in the Manson family hearings, in transcripts quoted in the book, have focused largely on the past — understandably, in light of the events that gave rise to the hearings.

In 2013, Debra Tate speaks about her sister, actress Sharon Tate, who was killed by the Manson family, during a parole hearing for former Manson family member Leslie Van Houten at the California Institution for Women in Chino.Photo: Nick Ut, Associated Press 2013

At one hearing for Patricia Krenwinkel, Aviram says, prosecutor Sequeira declared, “I think if she had true remorse and she truly understood her crimes and the horrific nature of it, she wouldn’t be here at a parole hearing. She would just accept a punishment.”

Relatives of the victims were equally unforgiving.

“There are eight people that lie in their graves who remain unchanged, unrehabilitated, unparoled,” Anthony Demaria, a nephew of murder victim Jay Sebring, said at Krenwinkel’s 2011 hearing. “I beg the board to consider parole for Patricia Krenwinkel only when her victims are paroled from their graves.”

At another hearing, board members asked Krenwinkel why she wasn’t attending drug-treatment programs and shrugged off her explanation that her high-security custody barred her from the nighttime classes.

At a 1981 hearing, the board was unimpressed by ex-Mansonite Bruce Davis’ leadership position with a Christian counseling group in prison. One board member, Aviram notes, said Davis had merely switched his allegiance from “one god-like figure to another.”

When Manson follower Leslie Van Houten appeared before the board in 2013, Aviram says, she had a strong record of participation in prison rehabilitation programs, with a few minor violations, the last one in 1981. The board denied parole on the grounds that she lacked insight into her life before imprisonment: “You need to demonstrate what made you that person to engage in those acts so long ago.”

Three years later, with Van Houten’s record substantially the same, the board recommended her release but was overridden by Brown’s veto, events replicated under Gov. Gavin Newsom in 2019. Steve “Clem” Grogan, a relatively minor participant in the crimes, was paroled in 1985. Manson, denied parole at 12 hearings, died in prison in 2017 at age 83. His other co-defendants remain behind bars.

In 2013, Leslie Van Houten appears during her parole hearing, with her attorney, Michael Satris (left). Parole was denied.Photo: Nick Ut, Associated Press 2013

In one sense, the timing of the 1969 murders spared Manson and his cohorts from more severe punishment. Had they committed their crimes a decade later, some of the Family almost certainly would have been executed, and others would have had no opportunity for parole. And it seems safe to say that few Californians who remember the killings will shed tears at the prospect that Manson’s followers who are still in prison will probably die there.

But that doesn’t contradict the message that Aviram convincingly presents: If the parole system had worked as it was supposed to, based on the law and the policies underlying it, most of the participants in the murders, other than Manson himself, eventually would have been released.

The Board of Parole Hearings, the author concludes, “should not be the arbiter of moral goodness.”

I’d like to have seen a bit more context, comparing these parole decisions to others here and elsewhere, and perhaps some background on the parole board members, sometimes identified only by last names in the book. But as California rethinks the roles of imprisonment and parole in this COVID-19, post-Three Strikes era, “Yesterday’s Monsters” has some lessons for today.

“Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole”
By Hadar Aviram
(University of California Press; 294 pages; 29.95)

Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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Getting Rid of No-Knock Warrants Isn’t Enough

Yesterday we received the news that only one of the police officers involved in the killing of Breonna Taylor was to be indicted–and not for homicide, but for “wanton endangerment” involving shooting toward the neighbors’ homes. Because of the obvious point made by my colleague Frank Zimring in When Police Kill–that the hope to save more lives from police brutality should not be pinned on the criminal process–I want to focus on the question of saving lives, specifically in the context of knock-and-announce. A good starting point is this valuable commentary by my colleague Natalie Todak, who studies policing:

I agree and want to add a few words about how this is not only the fault of police officers, but of the Supreme Court.

You’ve all seen the knock-and-announce rule in action on your TV screens, every time a cop in a police drama loudly yells: “Police! Open up!” What you might not know is that the knock-and-announce rule has ancient roots in common law. In Miller v. United States, officers without a warrant knocked on the door of Miller’s apartment and, upon his inquiry, “Who’s there?” replied in a low voice, “Police.” Miller opened the door, but quickly tried to close it, whereupon the officers broke the door, entered, arrested petitioner and seized marked bills which were later admitted as evidence against Miller in a drug case. The Supreme Court held that “[t]he common-law principle of announcement is embedded in Anglo-American Law” and that Miller’s arrest was unlawful because the police broke in without first giving him notice of their authority and purpose.

The reason for this is obvious. In Wilson v. Arkansas, the court explains: “[A]nnouncement generally would avoid ‘the destruction or breaking of any house … by which great damage and inconvenience might ensue’.” And in Hudson v. Michigan, Justice Scalia expands:

One of [the interests protected by the knock-and-announce requirement] is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. Another interest is the protection of property. Breaking a house (as the old cases typically put it) absent an announcement would penalize someone who “ ‘did not know of the process, of which, if he had notice, it is to be presumed that he would obey it … .’ ” The knock-and-announce rule gives individuals “the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry.” And thirdly, the knock-and-announce rule protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the “opportunity to prepare themselves for” the entry of the police. “The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.” In other words, it assures the opportunity to collect oneself before answering the door.
J. Scalia (Op. Ct.), Hudson v. Michigan (2006)

Granted, in some cases there may be an advantage in hurrying in, because otherwise the police knock on the door can prompt the people inside to destroy evidence–especially in drug cases. But this advantage needs to be weighed against the drawbacks of violence: to mention just two possible scenarios, the police could be making a mistake and trashing the wrong person’s house, or the people inside might mistake them for a rival drug crew and shoot them. Because of these drawbacks, in Richards v. Wisconsin, the Court hesitated to create a special “felony drug exception”, exempting officers from the knock-and-announce rule in all drug cases. They explained:

We recognized in Wilson that the knock and announce requirement could give way “under circumstances presenting a threat of physical violence,” or “where police officers have reason to believe that evidence would likely be destroyed if advance notice were given . It is indisputable that felony drug investigations may frequently involve both of these circumstances. . . But creating exceptions to the knock and announce rule based on the “culture” surrounding a general category of criminal behavior presents at least two serious concerns.
First, the exception contains considerable over generalization. . . not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence.
Second. . . the reasons for creating an exception in one category can, relatively easily, be applied to others. . . If a per se exception were allowed for each category of criminal investigation that included a considerable–albeit hypothetical–risk of danger to officers or destruction of evidence, the knock and announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.
J. Stevens (Op. Ct.) Richards v. Wisconsin (1997)

But it’s unclear who the real winner in Richards was. Even though the Court refused to create a blanket exception, the opinion did open the door to special circumstances in which the police might decide not to knock (because of exigent circumstances.) Many of these situations overlap with the exception that the state of Wisconsin sought (and didn’t get.) So we were left with police discretion as to whether to knock and announce or not.

Soon enough, this developed into a practice in which officers anticipated the need to enter without knocking and asked for a carte blanche from the magistrate signing the warrant to do so (so as to cover their asses in case their judgment is questioned at a later date)–and that in itself invited all kinds of shenanigans, such as inventing nonexistent informants to obtain the warrants.

The final blow to the knock-and-announce rule came in Hudson v. Michigan. The main remedy in cases in which the police obtain evidence in violation of the Fourth Amendment is, typically, the suppression of the evidence under the exclusionary rule: the prosecution can’t use it in their case-in-chief. But gradually, the post-Warren courts saw this as a steep price to pay: “the criminal goes free because the constable has blundered.” Because of that, in Hudson, the Court introduced a cost-benefit analysis: The evidence will only be suppressed if the benefit of deterring the police from the undesired behavior exceeds the cost of allowing a guilty defendant to “walk away on a technicality.” Hudson involved a situation in which the police did not knock and announce, and Justice Scalia took the exclusionary rule of the table, arguing that it was not the right fit. While the knock-and announce rule, he said, protected the right of people to be calm and collected when answering the door, it had “never protected. . . one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” Justice Scalia proceeded to say that the exclusionary rule is no longer necessary:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

This turns out to be untrue. Not only do structural police reforms have mixed outcomes at best, monetary damages are completely meaningless because police officers are indemnified and police departments insured to the hilt. But the real outrage about this decision is the logic that the exclusionary rule has excelled so much in educating police officers about the rights and wrongs of the Fourth Amendment that it’s not necessary anymore. To support this argument, Scalia cited Samuel Walker’s book Taming the System, which showed that the exclusionary rule was an essential component in the reduction of constitutional violations. When Walker heard that Scalia cited his book, he was incensed, and wrote a hilarious-but-irate op-ed in the L.A. Times, titled, “Thanks for Nothing, Nino.” Walker explains:

[Scalila] twisted my main argument to reach a conclusion the exact opposite of what I spelled out in this and other studies.
My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court’s interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.
Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.
The ideal approach is for the court to join the other branches of government in a multipronged mix of remedies for police misconduct: judicially mandated exclusionary rules, legislation to give citizens oversight of police and administrative reforms in training and supervision. No single remedy is sufficient to this very important task. Hudson marks a dangerous step backward in removing a crucial component of that mix.
Samuel Walker, “Thanks for Nothing, Nino,” Los Angeles Times, June 25, 2006

There are now numerous efforts, through litigation and legislation, to outlaw no-knock warrants at the state level. But doing this will not remove the problem. All it will do is forbid the judge from kosherizing the police decision to enter without knocking–a decision that they will still be allowed to make, with no consequences, under Hudson v. Michigan. As long as the Supreme Court does not overturn this decision, the discretion in the field will still be available–and given the post-Warren Courts’ tendency to give officers in the field, making decisions based on “totality of the circumstances”, the benefit of the doubt, the problem will not go away. Not only is Breonna Taylor’s death the fault of the entire policing profession, it is also the fault of the Supreme Court’s lopsided cost-benefit analysis, and I dread to think about the people who will continue to pay the price for these misguided practices.

It’s Not Over: Alarming Rise in New Cases in CDCR

To read CDCR’s response briefs in the Marin cases and in Von Staich, you could think that the pandemic is dwindling in prison. The opposite is true: the last two weeks have seen a spike in new COVID-19 cases in CDCR. The graph above is based on the daily CDCR data (Chad Goerzen and I code them daily.)

Here are a few other things we’ve learned:

Overall number of cases since the beginning of the pandemic stands now at 13,155 – nearly 14% of the total institution population, which as of Wednesday of last week was 95,886. This is a bit misleading, as some of the people who became infected have been released. But even with the higher population before the releases, this is a shocking percentage. By comparison, the rate of all-time infections for the entire state is 2009 per 100,000 people (approximately 2%). People in prison have been seven times as likely as people in the state to contract COVID.
COVID-19 is more lethal in prison than outside prison. Statewide, we’ve had 38 deaths per 100,000 people; in CDCR, more than twice that: 60 deaths for slightly less than 100,000 people. And this is before adjusting for age.
If you look only at the new spike in cases in the last 14 days, infection rates are even worse in prison. In CDCR facilities, it’s 17.6 per 1,000 people; in CA, it’s 1.3 per 1,000. For reference, at its peak, the CA infection rate was 3.3 per 1,000.
Generally speaking: My mentor and friend Malcolm Feeley made a shocking rough calculation. If we totaled up the population in archipelago of America’s prisons and considered them a country, both the number and rate of COVID-19 infections and deaths would place this “prison country” in the top twenty five percent of all countries in the world in terms of both absolute number of cases and deaths, and rate of deaths. By Malcolm’s rough count, this would put the “prison country” at around number 53 in over 200 countries.

We’ve also learned where the worst new outbreaks are:

FSP (Sacramento) – 585 new cases in 14 days
ASP (Kings) – 260 new cases in 14 days
CRC (Riverside) – 269 new cases in 14 days
CVSP (Riverside) – 182 new cases in 14 days
SATF (Kings) – 148 new cases in 14 days
VSP (Madera) – 77 new cases in 14 days

As you can see, this clusters mostly around Kings and Riverside Counties, which are, respectively, #2 and #14 in new cases per the L.A. Times counter (whether there’s a correlation, and what the timing is like, is a complicated question.) The biggest spike in new cases is in Imperial county; we should note that Riverside County prisons are located almost on the border with Imperial county.

This trend is more generalizable. Here’s a snapshot of our coded data, in order of outbreak seriousness in counties. You’ll see a correlation, to the tune of 0.588 (pretty good!) between outbreak in the county and an outbreak at a prison located either in the county or in a neighboring county near the county border.

As I’ve explained before, we’re not telling an airtight causal story here. All we are doing is dispelling the notion that locking people up is somehow keeping the surrounding county safe.