Today, CDCR Secretary Kathleen Allison communicated excellent news. The letter above reads:
To All Loved Ones of Incarcerated Individuals and Valued External Stakeholders,
We have an important update in our response efforts against the COVID-19 pandemic. As most of you know, the vaccine has arrived in California, and it is safe and effective. The vaccine is being made available on a phased basis, and as a state, we are committed to a fair and equitable allocation and distribution process.
To that end, California Department of Corrections and Rehabilitation (CDCR) and California Correctional Health Care Services (CCHCS) will receive our first vaccines allocation as soon as this month, and we are currently working with our public health partners on a distribution plan. The initial focus will be on people at high risk of becoming infected or severely ill from COVID-19, as well as frontline workers.
We will have information on our website, and will update it regularly to ensure we are keeping everyone informed on these efforts.
CDCR and CCHCS have also sent out a similar communication to the incarcerated population and staff. We encourage everyone to accept the vaccine once they are eligible to receive it, and in accordance with the phased distribution approach. These collective efforts will set us on the path to recovery, and will allow us to reduce the risk of COVID-19 in our institutions, and safely reopen to in-person visiting, group programming, volunteering, and other opportunities.
If you have questions please email COVID19@cdcr.ca.gov. We are unable to address questions about specific individuals with this correspondence; however, we value your feedback and welcome your questions about the vaccine program and our COVID-19 response efforts.
In the meantime, we are continuing to ensure everyone is taking every precaution to ensure the safety and wellness of everyone who lives and works in our institutions. We are thankful to the families, friends and loved ones of our incarcerated population, as well as our stakeholders. Your hard work, dedication, and sacrifice this year has not been lost on us, and we are appreciative of all your efforts.
For more information on these response efforts, please visit the CDCR/CCHCS COVID response page. For more information about this project and the COVID-19 vaccine, visit this web page.
Take care of yourselves and take care of each other.
Kathleen Allison Clark Kelso
Secretary Receiver
I received the above in a format that did not have clickable links, but I assume the links take you here and here. I have many questions, which I will email to the above address tomorrow morning, including whether the vaccine is mandatory for staff, whether readiness/buy in questionnaires have been administered, and whether choice to vaccinate will be linked to incarceration conditions. I hope to provide updates soon.
Today we are hearing more rumblings about CDCR’s plans (irrespective of the Von Staich decision, they claim) to transfer elderly, infirm people between prisons.
Where are they going to transfer people to? The graph above, compiled by Chad Goerzen from CDCR data, depicts the rise in new cases just in the last few days. A third of the prison population has been infected so far; a tenth is currently infected; 97 people have died. As of today, twenty-three prisons have major outbreaks (more than 50 cases):
CCI (156 new cases)
CIW (64 new cases)
CMC (180 new cases)
LAC (795 new cases)
SAC (115 new cases)
SOL (129 new cases)
CAC (367 new cases)
CAL (154 new cases)
CEN (419 new cases)
CTF (799 new cases)
HDSP (722 new cases)
ISP (120 new cases)
KVSP (505 new cases)
MCSP (733 new cases)
NKSP (208 new cases)
PBSP (76 new cases)
PVSP (1,213 new cases)
RJD (400 new cases)
SVSP (83 new cases)
SCC (248 new cases)
SATF (593 new cases)
VSP (368 new cases)
A change in strategy is long past due. But it looks like CDCR is taking a page out of Trump’s pandemic prevention playbook, flailing about, transferring people to and fro, hoping that this will go away and arguing in court that “there is no need to act hastily.”
What worries me about this is not just the immediate danger to people. The profound and understandable breakdown in trust between CDCR and the people in its care is going to be the Achilles’ heel of any vaccination strategy. It is essential to understand that releases and vaccinations must go hand in hand. I say this not only to CDCR officials, who might be thinking that the vaccine will obviate the need to release people, but also to activists who obstinately oppose the vaccines because they worry it will weaken the struggle for releases. Without the good will that only releases can create, not only will any vaccine intervention be ineffective, but the problems that fester in the system will increase its susceptibility to the next pandemic.
There’s a new bill, introduced by Assemblymembers Levine and Chiu and coauthored by Assemblymembers Friedman, Gipson, and Stone and Senator Weiner to abolish the death penalty. The bill does not include a retroactive provision to commute current death sentences to LWOP.
The bill will likely pass in the legislature, but because it requires a constitutional amendment it will be on the ballot. This does not have a history of success, as Austin Sarat explains in this book. But since 2016, when we tried this last, six big things have changed, which may improve the odds:
Because of the death penalty moratorium, we won’t be executing anyone else anytime soon – but we’re still footing the bill of death penalty litigation.
Incredible day: the Orange County Superior Court held today that the Orange County Sheriff, whose COVID-19 prevention incompetence was featured in Barnes v. Ahlman, violated the Eighth Amendment, and ordered the jail to reduce its population by 50%!
Here’s the decision in its entirety; summary follows.
First, the bottom line: The specific petitioners in Campbell receive immediate relief, in the form of release or transfer. For everyone else, the court orders reductions of at least 50% in all dormitories–and if this is insufficient to achieve proper distancing, even further reductions.
The facts paint a horrible picture of the COVID experience at the jail. Not only is it impossible, given the conditions there, for people to socially distance, staff behavior is not monitored when they are away from the facility. Amazingly, staff are not tested unless they request it, even if they display symptoms. The staff is provided PPE but are not required to wear it. Housing decisions do not take medical vulnerability into account. None of these facts, which were backed by statements from medical experts and staff members, were contradicted by respondents with any evidence.
The decision is a pretty straightforward application of Von Staich, which in itself is a pretty straightforward application of Duvall. In other words: Petitioners showed evidence of incompetence accompanied by awareness of the danger to their lives + the Sheriff neglected to challenge the evidence => petitioners win.
I really hope this signals the beginning of the collapse of CDCR’s deceit machine about transfers; I want there to be court decisions in every single CDCR facility and county jail ordering 50% reductions. What we need is a more holistic understanding of the fact that there truly is nowhere to escape to–the entire COVID-19 prevention situation is broken beyond repair, and shifting people around won’t help.
There’s another way in which this matters for carceral permeability: so far, the meager releases from CDCR prisons have not been offset by transfers from jail because CDCR temporarily halted the transfers. The folly of having to obtain these decisions facility by facility is that, from CDCR’s standpoint, the population glut and resulting outbreaks in jails are invisible. This isn’t helped by the poor job BSCC is doing and the low credibility of their data (to the point that upstanding citizens like Berkeley law student Darby Aono have had to step up and collect data on their own.) But it should be obvious to CDCR that, sooner rather than later, the party will have to end, and the outbreaks in jails will require an exit door on that end. Shuffling folks around is not enough: something’s gotta give.
You may recall that the Court of Appeal’s population reduction order in Von Staich did not specify the method by which CDCR should go about population reduction (though it did strongly recommend focusing on people aged 60 and over with 25 years of incarceration behind them.) The order specified that CDCR could choose to comply via releases or transfers. As far as releases, the recent Chron exposé shows that they delivered more or less on what was promised back in July: far too few people, 99% of whom were getting out in a few months anyway, and only 0.8% of whom were COVID-19 risks.
What this indicates–and what the AG’s petition for review to the California Supreme Court indicates–is that CDCR intends to address this crisis almost exclusively via transfers. This is also becoming clearer and clearer in the Marin Superior Court, where Judge Howard, who is presiding over hundreds of habeas corpus petitions from San Quentin, issued the following order:
The gist of the decision is this: Judge Howard is proceeding with fashioning the remedies, as he considers Von Staich “persuasive authority” and despite declarations from the AG that they do not intend to comply until they hear back from the Supreme Court. At the same time, he seems unsympathetic to the arguments against transfers, because the Von Staich decision “provided clear guidance that transfer was a viable remedy.” The AG representatives did state that, independently of the Von Staich decision, they are starting their own transfer initiative, which targets people aged 65 and older. Judge Howard has ordered them to provide a list of the people they are transferring, and the petitioners’ lawyers to compile a list of people who are aged 60 and over and/or have COVID-19 risk factors.
How is this playing out on the ground? You can get a sense from the image at the top of this post. In the last week, per the San Francisco Bay View, people inside–both at San Quentin and at other institutions–have been pressured to accept a transfer out of their own volition, and when they refuse–they are asked to sign the form above, in which they waive any future claims about the risk they face. The form requires them to initial the following statements:
I understand that due to my age, I am at high risk for developing serious complications if I get infected with COVID-19.
I understand that I have one or more medical conditions that makes me high risk for developing serious complications if I get infected with COVID-19.
I understand that COVID-19 could lead to serious complications such as lengthy hospitalizations or even death.
I understand that living in places where individuals are in close contact and physical distancing is difficult to follow, such as prison dormitory [sic], will increases [sic] my risk of being infected by COVID-19.
I understand that COVID-19 could lead to serious implications such as lengthy hospitalization or even death.
I understand that if I change my mind and decided [sic] to be housed in celled housing, I will submit a 7362 or talk to a health staff to request for [sic] celled housing.
I’m hearing from family members and friends of incarcerated people that CDCR is gearing up toward involuntary transfers at Quentin and elsewhere, which are (and always have been) their prerogative, and so, these so-called informed consent forms are actually obsolete. Therefore, it is now more obvious to me than ever that CDCR is worried about a monetary damages lawsuit, and with good reason–I expect we’ll see one in the not-too-far future. If so, I doubt that these waivers, given the circumstances in which they are being procured, will even come close to providing the kind of defense that CDCR, or the AG, think it will provide.
More importantly, the virus doesn’t attend the status hearings at the different courts, and follows its own agenda, which is–as it always has been–to invade cells and replicate itself, which makes this transfer agenda even more inappropriate. As of three days ago, every single CDCR facility has a COVID-19 outbreak, which raises the question–how do CDCR officials purport to improve the situation via transfers, and where are they going to shuffle people to? The information I got from Solano, and a conversation with a relative of someone at SATF, have convinced me that the same pathologies that led to the spread of the virus in San Quentin are now in evidence in other prisons.
Which brings me again to the point of carceral permeability. The logic of lawsuits and court rules doesn’t conform to the realities of geography. By their very nature, they deal with “cases and controversies”, not with proactive solutions to rapidly evolving situations. Order a remedy in one prison, and by the time it’s fashioned, the outbreak will quell there and spike in other places. Exhibit judicial caution and give prison officials the choice between transfers and releases (which is, after all, what courts are supposed to do–express restraint) and they will make the wrong choices. Thinking about this remedy regarding San Quentin alone is part of the brief, but in terms of the actual problem, it makes no sense to implement the remedy in isolation from what is happening in other prisons.
One of the often overlooked aspects of mass incarceration is that, as Erika Camplin puts it, “we as a nation are effectively feeding around 2 million mouths at least three times over each and every day.” Prison food has always been a problem; we even had a conference about it nine years ago. What I remember from the conference is that the CDCR nutritionist spoke on one of the panels and showed slides of prison meals that looked decent enough; under pressure from audience questions, however, she admitted that the slides were doctored, and then lashed out, “these people are monsters.” The rest of the panelists, most of whom were prison and jail doctors, immediately said, incensed, “that’s a lie.”
The pandemic has let things drop far beneath even that already low baseline. During the big outbreak in San Quentin, kitchen workers became infected and fell ill, which led, for several weeks, to serving the men an extra lunch in lieu of a hot dinner (to make up the missing calories.) We now learn from reports of people inside that the same, and worse, is happening at other institutions.
The email chain in the image above is making the rounds on Twitter; I don’t know who sent it around, but here is the text, reproduced. The printout is stamped as “Pelican Bay State Prison, Security Housing C-8.” The first email in the chain is from a Bryan Price to a Chad Parry, CC’ing a David Barneburg. I looked Barneburg up, and it looks like he’s Associate Warden at Pelican Bay. Price writes:
Hey Chad how’s your night going.
Well as for here, it’s not going to good. The inmate are starting to act out over the food and I don’t blame them. I thought when we cut one of their hot meals like dinner. In the past we have given them two lunches for dinner to make up for the calorie lost. Right now they got six crackers, two cookies, a small bag of pretzels, block of cheese and a drink mix. They also got 1 peanut butter, banana and a jalapeno. It is hard to believe that two of these lunches and the breakfast meal has the calories that is due to them. I the memo it states they will be getting box lunches with fruit, milk and juice.
So my question is, is this right because it does not seem right. The same lunch they saw this morning is the one they got for dinner. Hope there is something we can do. I think it’s going to get really bad really fast around here.
Any help in this matter would be greatly appreciated.
Out of the obvious awfulness of the whole thing, for some reason I find myself stuck on the mystery of the jalapeño. What is someone who can’t cook, and who has no access to vegetables, supposed to do with a single jalapeño? Is it cooked? Canned? Pickled? Frankly, I’m not sure the problem is only or even primarily the calories (snacks, peanut butter, and the “drink mix” probably pack a punch of calories)–the serious problem is the nutritional content, which seems sorely lacking.
Chad’s response:
Hey Bryan, that’s the correct meal. They were supposed to get the extra stuff you mentioned… not sure what is planned for tomorrow.
Kim, anything we can do to improve upon this meal? The fellas aren’t enjoying it much…
Thank you
Several family members and friends chimed in the relevant twitter thread. One person reported that she received a letter from someone at VSP who reported that “they are receiving 8 tablespoons of food per meal.”
I’m unsure whether this is garden variety incompetence or pandemic-related; the dinner shortage mentioned in the first email suggests the latter. This is pure conjecture, but the numbers of infected staff have shot up, which could explain kitchen worker shortage. I’m also unsure who leaked this printout; it features pretty feeble efforts to mask people’s names, but not their emails, so the names were easily readable.
Today feels like we’ve crossed a new threshold of horror: As of this morning’s update of the official CDCR ticker, every single CDCR facility has a COVID-19 outbreak. Every single facility has new cases from the last 14 days. There are currently 4,763 active cases in custody. So far, 24,716 people–more than a quarter of the current prison population–have contracted COVID-19 behind bars, and 93 people have died in 17 facilities.
Numerous prisons are seeing major outbreaks (more than 50 new cases in past 14 days): CCI (92 new cases), LAC (198 new cases), SAC (103 new cases), CAC (174 new cases), CEN (319 mew cases), CTF (393 new cases), HDSP (464 new cases), KVSP (92 new cases), MCSP ( 469 new cases), NKSP (77 new cases), PBSP (51 new cases), PVSP (699 new cases), SATF (937 new cases), and VSP (339 new cases). There are new outbreaks at CIW (37 new cases–a third recurrence!), CMC (38 new cases), SOL (34 new cases), CCWF (3 new cases), DVI (11 new cases), ISP (12 new cases), RJD (3 new cases–the last prison to see an outbreak), SVSP (27 new cases), SCC (16 new cases), and WSP (22 new cases–a recurrence.)
All facilities have staff cases. So far, 7366 prison staff members have contracted COVID-19 behind bars; 1722 of these are new cases and 2121 are still deemed “active cases.” Ten staff members have died.
Big facilities have cases. Small facilities have cases. Overcrowded facilities (20 prisons are still over 100% capacity!) have cases. Facilities under, but close to, 100% capacity have cases.
I look at this and think of the Attorney General’s stance in the Plata, Von Staich, and Hall et al. cases. “We can safely transfer people; your suggestion that we cannot is not well taken.” Transfer them where?
Nor is testing a silver bullet; it merely helps the analysis after the fact. Mule Creek, which features 469 new cases, has tested 95% of its population. Testing itself, without decisive action, is a diagnostic, not a prevention mechanism.
An acquaintance at Solano prison managed to send me a missive through a common friend. I’ve removed his identifying information, and this is what is happening there:
Current conditions at CSP-SOL
Complaints: 1. Buses have arriving with inmates from prisons where known positive coronavirus cases have been documented.
2. CDCR are not quarantining these inmates as they arrive, exposing the entire housing units to potentially dangerous viruses.
3. CSP-SOL is currently experiencing an outbreak
4. C/O’s are working double shifts some of them, going from an infected building to a non-infected bldg exposing inmate population to higher levels of probable infection.
5. C/O admitted that a staff member was covid positive a d thus potentially started the spread/outbreak.
6. Inmates have been forced to move from one to another to facilitate work assignments or receive a CDCR RVR115, for refusal or asking for a job change.
These issues and there are more, are some of the things the guys want the public to know.
We are given the proper PPE’s (only received them 2 days ago, before that we only had inmate-made masks), it’s just a mess.
And in the face of this, California Attorney General Xavier Becerra, who has been presiding over the state’s outrageous, self-righteous responses to this plight, is rewarded with a cabinet seat–the health seat, in the name of all that is holy?
Something is rotten in the state of California. Rotten throughout, from top to bottom. In today’s post I juxtapose for you four pieces from the last couple of days, which illuminate just how much trouble we’re in.
Scene 1: The SATF Horror and the Geography of Prison Remoteness
Throughout the summer, the public gaze was laser focused on San Quentin. There was a good reason for this; at 2,239 cases and 29 deaths, the outbreak at Quentin was the worst COVID-19 outbreak in the nation and the worst medical prison disaster in the country’s history. But as has been the case throughout this ordeal, once attention turns somewhere, the government’s or anyone else’s, the virus has already found opportunities elsewhere. By the time the litigation surrounding the Quentin catastrophe matured into an order and started moving toward fashioning remedies, the pestilence metastasized elsewhere–whether through a careless employee or a botched transfer, we won’t know. The CDCR population infection count shows numerous large outbreaks, to the tunes of hundreds of people, in prisons located in rural areas. Jason Fagone’s recent Chron story turns the focus to the Substance Abuse Treatment Facility (SATF) in Kings County, the largest prison in the state, which is operating at 128% of capacity. Not only is the outbreak there horrible, and has already claimed lives, but the conduct of prison authorities there seems absolutely appalling:
In just the past two weeks, 713 men in custody at SATF [now 851 – H.A.] have tested positive for the coronavirus, according to CDCR’s web tracker, and as of last week, 150 staff members were infected. Half of the facility’s 4,400 prisoners have caught the virus since August. Three have died.
One day last week, when prison staff tried to move a new man into an empty spot in Meyer’s eight-man cell, he got nervous, he said in an interview via JPay, a prison email service. Days earlier, another man sleeping mere feet away from Meyer had developed COVID-19 symptoms and was removed by staff, and Meyer suspected that his new cellmate might also be infectious. Meyer approached the officers’ station and complained, saying he didn’t want to be housed with a potentially contagious person. That’s when he was handcuffed, Meyer said.
Two days ago I talked with Sam Lewis of the Anti-Recidivism Coalition about the possibility of a vaccine for incarcerated populations, and one of the points he brought up was the proximity of San Quentin to white, wealthy Marin County. I think Sam was right to say that Quentin receives an inordinate amount of attention, but I suspect race and class play into this situation in ways that have more to do with political culture, proximity, and opportunity. Quentin is extremely close to the Bay Area, where all kinds of do-gooders like me have easy daily access to the prison; if there’s no traffic, it takes approximately 35 minutes to drive to Quentin from my house. Given that, for decades, prison programming has been slashed–most recently, this was one of the negative effects of the recession–the availability of a cadre of academics and activists as volunteers produces aricharrayofprogramming (go ahead, click on each link, and I could offer more.) Because parole hearings emphasize programming and encourage people to talk in “programspeak”, and because of the paucity of programming elsewhere in the system, people are desperate to come to Quentin and avail themselves of these opportunities as much as they can if they ever want to be approved for parole.
By contrast, California’s other large prisons are located in rural areas, mostly in poor towns that were persuaded to accept prison siting and become a “company town” because of the promise of jobs. These places are not squeaky wheels, and for Bay Area or Los Angeles do-gooders they are difficult to access. For example, during the Pelican Bay hunger strike, my students had to drive 8-9 hours to visit the strikers, which implies huge barriers for visitors without the means to drive or stay at a hotel. These places are not “squeaky wheels”, and it’s quite difficult to get the programming “grease” there. Also, it means that the voices raising serious concerns about the outrages that happen in these rural prisons are far less amplified by voices of high-profile, concerned progressive politicians.
Scene 2: Inaction Figures
The Chronicle is on a roll, continuing with a hard-hitting, data-intensive piece by Nora Mishanec. Mishanec managed to obtain a demographic breakdown of the thousands of people who were released by CDCR since Newsom promised 8,000 releases by the end of the summer. It’s not summer anymore, of course, and even when the plan was proposed it was already underwhelming–too little, too late, too piecemeal, and too restrictive. I am sorry to say that this sad excuse for pandemic relief played out exactly as I had predicted, and please believe me that I take no pleasure in having been 100% right.
This graphic from the Chron story gives you an idea of who was released and who was not. Take a look at the circle in the top left. The vast majority of people who have been released had only months left on their sentence back in early July. It is now early December, and these folks would have gotten out by now anyway–they just got a wee push on the way out the door to hasten their release. This is something that happens all the time in California prisons, pandemic or no pandemic: every month thousands of people churn in and out of the system, the folks whose sentences have ended to be exchanged for folks coming in from jails (The population reduction here is artificial, and stems from the halt of transfers from jails–but the carceral apparatus as a whole is bursting at the seams, and of course now the jails are seeing their own COVID-19 horrors and are grossly over-capacity. Something’s gotta give, and there are already jail lawsuits.) Only 0.8% of the people who were released were deemed “COVID high-risk medical”, when a full quarter of the population on the eve of the pandemic was people aged 50 and over.
Why, you might wonder, are so few of the people who got released in the over-50 bracket (1,390 out of 7483)? The answer is in the bottom right. People convicted of violent crime who, unsurprisingly, serve longer sentences and, also unsurprisingly, are older because of it, are underrepresented. Those are also the folks at highest risk of contagion and serious complications. But this plan was not designed with public health in mind–it was designed to avoid headlines like “Newsom Releases Murderers, Yikes.” And so here we are.
Scene 3: Insult to Injury
If they’re not laboriously and efficiently going over people’s files and releasing grandparents back to their families, what, pray tell, are state officials busy doing? I’m so glad you asked: The best and brightest at the California Attorney General’s Office are busy not only petitioning the California Supreme Court to review the population reduction order in Von Staich and jamming the wheels on hundreds of habeas petitions, they are petitioning the court to depublish the decision itself. Yes, you heard it right. Dozens dead, tens of thousands infected, and the most pressing order of business is to obliterate from bureaucratic memory that there were compassionate, humane, knowledgeable judges, who recognized a human rights crime when they saw one, and acted accordingly.
You are incredulous? I get it. So was I. Here’s the whole thing for you to read.
What more is there to say about this? At every junction, when the opportunity emerges to do the right thing, these folks are doing the exact opposite. We are going to pay dearly for this concerted cruelty when the time comes to get buy-in for vaccination (that is, if anyone there might ever see prisons for what they are, which is confined, crowded spaces, and actually prioritize “murderers, yikes.” Want to know why it is important to vaccinate? here’s my op-ed in the Chron about this.) By the time the vaccine comes to the prison gate, people will not believe CDCR that it is in their benefit to take it, and while I find this awful and deeply disappointing, I deeply understand where the suspicion and resentment come from.
Scene 4: No Bad Deed Goes Unrewarded
What is going to happen to all these folks, who have worked so hard for months to keep aging, infirm people languishing behind bars, vulnerable to the pandemic? Gosh, I’m so glad you asked, because California’s AG Xavier Becerra, whose signature decorates everything you’ve seen defending CDCR in courts since March, is being tapped for a position in the Biden cabinet.
Look, I’m not a member of the no-lesser-evil brigade, and in November I cheerfully and without reservations voted for Democrats, even Democrats who have deeply disappointed me, because the alternative was to keep a despotic, sociopathic, semiliterate career criminal in office. For four years I was a vortex of disdain for the repertoire of cruelties of the Trump Administration, and I’m thrilled the people I voted for won. Elections are a buffet at a roadside motel, not a personalized meal. But when you’re handling what we call a “Big Bad” in TV tropes, the other side automatically becomes “the good guys,” and critique of them is muted, or at least softened–even when the courageous leaders of La Résistance forget about the burden of proof or flip-flop about the death penalty. I suspect it won’t be long before we forget how Monsieur et Madame Blanchisserie Française, the delectable taste of Yountville gastronomy still fresh in their mouths, proceeded to close our children’s playgrounds with not a shred of medical evidence connecting them to outbreaks. I get it. We’re grownups, politicians are politicians even when they are generally on the right side, and people should not be expected to be perfect. But I’m frustrated that the nature of California politics creates the illusion that we are a blue, progressive state, in the face of everything that has been going on.
Why is it that we appear so blue when our prisons are such a horror show? My colleague Vanessa Barker offers a convincing explanation. By contrast to the East Coast, or even the Pacific Northwest, California’s political culture is both deeply polarized and populistic. Our red counties, which are, after all, where most of our prisons are, are deeply red; jails there are run by red sheriffs and prisons by red CDCR officers. A lot of decisionmaking happens on a local level. Even when a prison is located in a blue county, such as San Quentin in Marin, prison officials refuse to collaborate with county health officials, citing jurisdiction. Moreover, we tend to legislate our criminal justice arena via referendum, which creates a lot of the horrors that I recount in Chapter 2 of Yesterday’s Monsters: a salience of a particular class of victims as the moral interlocutors of criminal justice, inflammatory rhetoric, and a lot of money backing up fear and hate.
The consequence of this is that our elected officials, who are so right on so many things (immigration, healthcare, climate action) are so often so wrong about criminal justice. Some of what we have going on is so deeply ridiculous–to name just one example, moratorium on a death penalty that should have been abolished eons ago, and because of populist stubbornness we can’t reap the huge economic benefits of abolition–and it is difficult to explain to lefty friends on the opposite coast how come people who appear to be such heroes on the national stage act in such villainous ways on the local stage.
This week, I recommend that you keep your gaze on some of the newest outbreak sites. Beyond SATF, there are also serious outbreaks in PVSP (643 new cases), HVDP (473), MCSP (416), CTF (284), and VSP (298). Dozens of other facilities have “only” dozens of cases. The only CDCR facility with no cases at present is RJD. The death toll systemwide has risen to 90.
If you told me before March 2020 that the entire state of California would be atwitter about two dinner parties at a fancy restaurant on two consecutive nights, I would be very surprised–and yet, here we all are, frothing at the mouth about precisely that. First, newspapers broke the story of Gavin Newsom’s large private gathering at the French Laundry in Yountville with friends, socialites, and lobbyists. Then, it turned out that San Francisco Mayor London Breed had some French Laundry of her own to air–she was there at a large gathering the following night.
The outrage and mockery was palpable. There are already two Onion pieces–this one and this one–but perhaps the very best was written by the Chron’s food critic, Soleil Ho. This masterpiece alone is worth my annual subscription to the Chron, and you should read it in its entirety, but for our purposes, here’s one of my favorite paragraphs:
You’re a good, safe person who believes in science, you think as you check your makeup in the mirror. Not like those troglodyte COVID deniers storming retail outlets, demanding to be let in without masks on, banging on glass doors and insisting that they’re important. These are the people the rules are for. You on the other hand know the rules so well — you are kind of in charge of explaining them, after all — that you know specifically, to the letter, why your situation is an exception to those rules.
A couple of days later, I realized why I had so profoundly enjoyed it, when I read John Witt’s new book American Contagions: Epidemics and the Law from Smallpox to COVID-19. Witt draws a useful distinction between “quaratinist” and “sanitationist” state approaches toward contagion and disease. Authoritarian states, he explains, adopt a quarantinist approach: they “exercise forceful controls over the bodies and lives of their subjects, locking down communities, neighborhoods, and cities and imposing broad quarantine orders, often backed by the military.” By contrast, “[a] sanitationist state employs liberal policies designed to eliminate environments that breed disease.” Witt sees the United States as an amalgam of both approaches:
On the spectrum from authoritarian quarantinism to liberal sanitationism, the United States has often occupied two positions at once: one approach for those with political clout, and another for everyone else. America has always been a divided state with a mixed tradition. For middle-class white people and elites, public health policy typically reflected liberal sanitationist values. The law has protected property rights for the wealthy and attended to the civil liberties of the powerful. At the nation’s borders, however, and for the disadvantaged and for most people of color, the United States has more often been authoritarian and quarantinist. American law has regularly displayed a combination of neglect and contempt toward the health of the powerless. But that is not all. Epidemics make visible the ways in which even the ostensibly neutral and libertarian rules of American social life contain the compounded form of discriminations and inequities, both old and new. The most basic rules of American law—from the law of private property to the law of health insurance to the law of employment—structure the social experience of disease and infection.
John Witt, American Contagions, 11-12.
The French Laundry story epitomizes the sanitation/quarantine dichotomy. Yesterday, both Breed and Newsom took to twitter to admonish San Franciscans and Californians respectively to follow our new stay-at-home regime. The response from their constituents was everything you would expect–no one missed a chance to mock the duplicity, especially this business with its exceptional sense of sardonic humor–and I think it’s because Witt’s dichotomy strikes a chord of deep unfairness and inequality with everyone.
I confess that my ire at FrenchLaundryGate does not flow so much from the hypocrisy as from the ostentatiousness–there is something deeply offensive about luxuriating in excess when one’s constituents have no food and no roof over their heads. Certainly, the thought of more than twenty thousand people infected and 88 dead in state custody should have put our elected officials off their dinner. But beyond this, there’s an important point I want to make about prisons, contagion, permeability, and opportunity.
As I think I mentioned here, Chad Goerzen and I are working on a book about the COVID-19 prison catastrophe. Our analysis introduces a concept we call carceral permeability: the idea that prisons should be viewed, analyzed, studied, and managed with a deep understanding of their spatial embeddedness in the communities surrounding them. That prisons are permeable and their gates are porous should be obvious: various people (correctional officers, prison workers, volunteers, visitors, tourists), things (money, goods, factory raw material), and intangibles (tax money, critique) pass through the membrane on a daily basis. Some of these exchanges are rooted in the basic functions of prison as an institution and an economical unit; others vary based on transparency.
This, as we explain in the book, is obvious to carceral geographers, situational crime prevention criminologists, and epidemiologists, but not to politicians: Prisons are still governed and managed through a very literal (and very mistaken) understanding of Erving Goffman’s concept of the total institution. Politicians and the public–at least, not the parts of the public that come into contact with prisons through work or through loved ones inside–think about prison at the entry (police dramas) and exit (public safety risk) points, and at no time in between. This is precisely what underpins the philosophy of incapacitation, widely regarded since the 1980s as the most accessible goal of punishment: put people behind bars and they will not endanger the community. This perspective has led to prisons being praised by some as spaces that incapacitate dangerous people by keeping them away from “the outside” and critiqued by others as spaces that remove people from participation in civil society (temporarily or permanently, with severe racial and class disenfranchisement implications.)
The problem is that prisons don’t work like that. Every day, there’s an enormous amount of boundary crossing, dynamics, and mobility within prisons, between prisons, and between prisons and the surrounding communities. The potential for disease to freely enter and exit prisons was obvious long before germ theory was developed–disease transmission to the community worried John Howard in State of the Prisons, which was written in 1777.
How is this relevant to Witt’s thesis and the French Laundry brouhaha? Because it looks like policymakers’ understanding of transmissivity, pandemic management, and restrictions–sanitation versus quarantine–differs for people behind bars and for other people. This lack of imagination is not surprising given that prisons embody the epitome of quarantine. But it is, perhaps, surprising to learn, from Witt and from prison historians Ashley Rubin and Michael Meranze, that this was not always the case. In the late 18th century, Mississippi (like a number of other states) even made special provision for removing prisoners when disease broke out in jails.
Things seem to have changed around the time of the civil war, when prisons were in the process of deep transformation. Antebellum prisons included mostly white people. Gradually–partly as prisons supplanted slavery as the main regime of racial oppression–the approach toward contagion in prisons changed from sanitation to quarantine. Witt reports that, “[w]hen smallpox broke out in Washington, D.C., in 1862, the Medical Division of the Freedmen’s Bureau blamed freedpeople. Healthy and infected freedpeople alike were forced into crowded, unsanitary prisons and tented communities, where disease raced through the population.”
You know what this reminds me of? David Garland’s distinction, in The Culture of Control, between “criminologies of the self” and “criminologies of the other.” Mainstream criminology predominantly addresses ‘criminology of the other’, which considers criminals as intrinsically different from law-abiding citizens; it focuses on particular risk groups, such as immigrants, drug users or youths in deprived neighborhoods, which it presents as threats to the existing social order. The criminology of the other aims to produce theoretical, empirical and practical knowledge that will allow better control of risk groups or render them less harmful for the average citizen. In doing so, this criminology delivers expertise that further excludes and controls the poor and marginalized; it becomes a technology of social exclusion and thus significantly advances dualisation in society.
By contrast, ‘criminology of the self’ considers those who commit crime as normal people. The person who offends is one of us, someone who, because of circumstances, has ended up in a position that caused him to act illegally and to harm others. It could have happened to any citizen. The answer to the risk that any of “us” will commit crime is to manipulate the physical environment to create rational disincentives to commit crime.
Here’s where Garland and Witt meet: Sanitationism is an epidemiological response to “criminologies of the self.” We address people as rational, like ourselves, deserving of health as well as civil liberties, and we twist and turn to procure good will and buy in, reasoning with people as much as possible. Quarantinism, on the other hand, is an epidemiological response to “criminologies of the other.” We assume that people are irrational, dangerous, impossible to reason with, so we lock them up, contain them, and assume “we” (the outside community) are safer from “them” (the people behind bars) when we lock them up.
Everything we know about how prisons work, and how contagion works, explains why quarantinism is a losing strategy. I’ve been telling TV anchors and journalists for weeks now that we are far less endangered by a 60-year-old man with a chronic condition living quietly with his family in the community, as he is wont to do (people age out of crime in their 20s) than we are by the exact same man incubating a dangerous virus behind bars. Quarantinism is not only bad for epidemic containment: it’s produces other negative outcomes, too. It’s no coincidence that it’s so popular to refer to prisons themselves as “criminogenic.” Public health scholar Ernest Drucker wrote a whole book relying on this metaphor, but I bet most of the people who use it–for example, to suggest that prisons breed criminality–don’t even realize that they’re drawing an analogy between medical contagion and criminality.
So here we are now–applying quarantinism, the epidemiological equivalent of Garland’s “criminologies of the other” because of indifference to the plight of the people we “other” and because of our laziness in understanding that “they” are actually not at all separate from “us.” The question is: Can the public outrage about FrenchLaundryGate, which, when examined closely, is all about the hypocrisy of the sanitation/quarantine duality, will wake Gov. Newsom from the prison impermeability dream and help him and his staff wake up to the fact that “the carceral” is porous and that there is no “other”?
Tomorrow at noon I’ll be talking with Sam Lewis from the Anti Recidivism Coalition (ARC) about the imperative to prioritize incarcerated populations as recipients of the COVID-19 vaccine – for the sake of all of us.
