Today, Chad Goerzen and I looked at the new numbers from the CDCR tool and laid them over the county numbers from the L.A. Times. A few patterns emerge. First, a lot of testing is being done at San Quentin, but the vast majority of tests are coming back negative. How much we can trust this given the lag between testing date and result date is an important question, but it is at least a little bit encouraging. Second, two places in particular, which had seen peaks and valleys in infections–Avenal and CIM–are seeing infections.
For today, though, I want to point out something striking: Out of the top 15 counties in terms of infection numbers, 12 also have prisons that have seen new infections in the last 14 days. Look at the graph on the top. The picture is incomplete (we need data on detention centers and jails) but it is striking. Without contact tracing it is impossible to tell a causal story, but this correlation should be enough to easily counter the assumption that prisons are somehow separate from the community, or worse, that there’s some trade off between saving lives behind bars and on the outside. The virus doesn’t read the CA Penal Code, nor does it know where the prison gates are. Nor is there an allotted number of infections and deaths and it’s merely a question of who’s more “deserving.” If people behind prison are healthy and taken care of, people in the community are healthy and taken care of, and vice versa.
In J.R.R. Tolkien’s Lord of the Rings, the Balrog is an ancient monster, a relic from times past, who lurks beneath the surface. When the Fellowship of the Ring crosses the Bridge of Khazad-dûm, they provoke the Balrog, who angrily attacks them. Gandalf, the wizard, successfully fights the monster, but at the very last minute, as the Balrog plunges to its death, it flings its whip one last time, capturing Gandalf and dragging him along into the abyss.
The U.S. death penalty in the 21st century is like the Balrog—an ancient monster, a relic from times past, still grasping and lashing its whip even as it approaches its demise. The score, state-by-state, is even: 25 states have retained it, 22 states have abolished it, and three (including California, home to the largest death row in the country) have instated moratoria upon its use. Even in retentionist states, the rate of executions has slowed down to almost a grinding halt, and initiatives to abolish the death penalty frequently appear on the ballot. Paradoxically, as Daniel LaChance explains in his book Executing Freedom, it retains the support of the majority of people even as it loses practical ground. Much like people on death row, most of whom die natural deaths after decades of incarceration and litigation, the death penalty itself is dying a slow, natural death. This is a confluence of several factors: recession-era politics that drew attention to the immense, disproportionate expenditure on capital punishment; the rising prominence of the innocence movement, which shone a light on the widespread problem of wrongful convictions; and the Obama-era attention to racial disparities in criminal justice, among others.
Tolkien is a master storyteller, and he sets up the moment when the Balrog’s whip ensnares Gandalf as poignantly tragic—a sudden, unnecessary reminder that, even at its demise, the archaic still has bite. This is how last week felt. Taken together, the decision in Barr v. Lee and the three executions that followed were a persuasive catalogue of the evils of the death penalty, straight out of the abolitionist playbook.
First was the decision itself, which followed the expected 5-4 pattern. In the spirit and tradition of death penalty litigation in the last few decades, it revolved around what Justice Harry Blackmun referred to in the early 1990s as “tinkering with the machinery of death.” Blackmun could afford a direct, stop-beating-around-the-bush approach to the tiresome and technical minutiae of postconviction litigation, but capital defense lawyers cannot; arguments about human rights and racial disparities have long been futile, for various procedural reasons, and the limits of the sayable on appeal and on habeas revolve around chemicals and number of injections. Justice Breyer’s dissent echoed Blackmun’s distaste with what death penalty litigation has become, remarking, “[t]his case illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishmen[t]’”. Justice Sotomayor, in turn, remarked on the absurdity of doing justice to fundamental questions via “accelerated decisionmaking.”
Then came the three executions, the first sneaking up on the American public while we were sleeping in our beds. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victim’s families to spare him the death penalty. The judicial and executive branches’ trampling of the victim’s requests followed the usual capital punishment theater in which, as Sarah Beth Kaufman explains in her new book American Roulette, prosecutors, governors, and death penalty advocates use victims as a prop, assuming that punitiveness is faithful to their wishes. As I documented in my book Yesterday’s Monsters, in California (as in other states) the voice of victims has been captured by a small group of white, middle-class victims of stranger homicides which, albeit sincere about their own punitive sentiments, do not represent the demographics or wishes of most survivors of violent crime. The first-ever national survey of crime survivors paints a more realistic picture. Twice as many victims prefer that the criminal justice system focus more on rehabilitation than on punishment; victims overwhelmingly prefer investments in education and in job creation to investments in prisons and jails, by margins of 15 to 1 and 10 to 1 respectively; by a margin of 7 to 1, victims prefer increased investments in crime prevention and programs for at-risk youth over more investment in prisons and jails; 6 in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation than lengthy prison sentences. The assumption that the only good victim is a punitive victim does not have a factual leg to stand on.
The execution that followed was of 68-year-old Wesley Purkey, who was described by his lawyer, Rebecca Woodman, as a “severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease” and does not understand “why the government plans to execute him.” The debate over Purkey’s mental illness was emblematic of the decades and billions of dollars spent poring over the fitness of elderly, decades-long death row residents, for execution. Reading of Purkey’s execution reminded me of how COVID-19, which is ravaging San Quentin’s death row as I write this, is making a mockery of our state’s well-intended moratorium. More people on death row have died of the virus during this moratorium than have been executed by the state in the entire century, which in itself should raise serious qualms about the ethical validity of the debate whether this or that individual is healthy enough to be killed by their government.
Finally came Dustin Honken’s execution, which offered a grim reminder of the gap between the inexplicable federal enthusiasm for executions and the waning interest of states in the penalty. Honken is the first person from Iowa to be executed since 1963; Iowa abolished the death penalty in 1965. Honken’s lawyer, Shawn Nolan, said, “There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.”
In her dissent, Justice Sotomayor expressed concerns about the procedural framework used to greenlight these three executions, a grant of the federal government’s emergency application, which “inflicts the most irreparable of harms without the deliberation such an action warrants.” But my deeper concern is about the inexplicable zeal that animated the emergency application in the first place. As a deadly pandemic ravages cities and towns, as the American public wakes up to the fragility of human life, the federal appetite for cheapening it by pursuing human-inflicted killings in the name of dated approaches is astounding. That it is in step with the Trump administration’s embrace of old-school punitivism does not make it any less perplexing, nor any less tragic. The Balrog of the death penalty is taking its last steps, but its last whiplash, an echo of what passed as justice in the olden days, stings as viciously as ever.
The sensation of shock, like unsavory gray smoke filling my lungs, making me nauseous with incomprehension, has stayed with me, and seems to have been universal. Dan was so alive–isn’t that what is always said of the dead?–a true, energetic community builder, the architect of Prawfs Blawg, the inaugurator of CrimFest, both of which have outlived him. A loving father to his two young boys, of whom he always spoke with such affection. The nauseating smoke whispered, how? why? who? Theories spread among Dan’s friends and colleagues; blogs were ablaze, picking up the shreds of Dan’s life, looking for some conflict, strife, danger, something that would explain the unexplainable. Underneath it all, unspoken save, perhaps, in the offices of my friends’ therapists, was the uncomfortable but true realization, this doesn’t just happen to someone I know. People living comfortable lives of safety and social advantage, lives that do not grow in the shadow of street violence or require it, were deeply unsettled. If we could only find out why, we felt, perhaps, this senseless thing will make sense; something in Dan’s life, in his relationships and entanglements, would make sense of this out-of-place death.
The mystery of Dan’s murder lingered on, picking up steam occasionally on blogs, for two years. Whenever I met other friends and colleagues of Dan’s, we shook our heads. “We just want to know what happened,” we said. The aching gap Dan left in the professional and social fabric of our trade was lovingly mended by friends who took the mantle of organizing. Then, two years later, we found out. It was sordid, disturbing, the stuff of low-grade cold-crime television shows in which a deep-voiced anchor dramatizes the events. They were Luis Rivera, 33, and Sigfredo García, 34, murderers for hire, and the only plausible connection between them and Dan was the mother of García’s children, Katherine Magbanua, who was dating a rich Florida dentist, Charlie Adelson.
Adelson was Dan’s brother in law. Dan and his ex-wife, Wendi Adelson, had divorced in 2013, and were amidst an ugly custody battle; Dan had won an order prohibiting Wendi from moving to Miami with the children, and filed a motion that would have prohibited Donna, Wendi’s mother, from being alone and unsupervised with the children due to alleged disparaging remarks about Dan. The investigators alleged Magbanua made the connection between the Adelson family and Garcia , that she received a large amount of money from the Adelsons following Dan’s murder, and that Magbanua was the first call Garcia dialed after Markel was murdered.
All this added up to arrest warrants against García, Magbanua, and Rivera, but not against the Adelsons. Despite repeated efforts to trip them, they have eluded law enforcement efforts at gathering more evidence against them. Rivera turned state witness, García was convicted, and Magbanua, who remained steadfastly silent even in the face of a threat with Florida’s death penalty, won a mistrial (ten jurors voted to convict, two to acquit.) Magbanua is to be retried for the murder. Much as I find it loathsome and distasteful to lionize and sanctify the three apprehended parties to a murder-for-hire because they are “poor people of color,” I can understand and empathize with the sentiments of injustice: the rich and powerful have managed to escape all consequences of their likely actions. Given what we know, what plausible explanation could there be for all this except the Adelsons’ desire to get Dan out of the way? Not one member of the Adelson clan evokes even a shred of sympathy: In a particularly cruel move, Wendi Adelson immediately proceeded to remove Dan’s last name from those of the children and denied them contact with their paternal grandparents. And yet, the police claims not to have cobbled enough probable cause for an arrest.
Thing is, what I think happened and what the law, which requires stringent beyond-reasonable-doubt proof, asserts happened, are two different things. The law does not operate in a vacuum, and people of means have many ways to insulate themselves from incriminating behavior and paper trails. I know many of my friends and colleagues who grieve for Dan hope for justice in the form of criminal consequences for the Adelsons. Much as I fail to comprehend the moral makeup of the Adelsons, I’ve always been pretty clear on the fact that I would not feel even a little bit better about this tragedy if I heard that the police arrested Donna, Charlie, or Wendi. Moreover, I didn’t feel relieved or vindicated when the police waved the threat of capital punishment over Katherine Magbanua’s head. Not only did it not work, in Magbanua’s case, and not only does this use of the death penalty as a bargaining tool create ugly disparities between sentences in abolitionist and retentive states, but I found the whole entanglement with the worst aspects of Florida’s criminal justice system tasteless given Dan’s own scholarly stance against the death penalty. My conversations with many of Dan’s friends and colleagues revealed that they, too, felt like knowing what had happened and making their mind about the culprits was sufficient. What horrors, albeit deserved, could the criminal justice system possibly visit upon the Adelsons that would make us feel better about the grievous loss of our friend?
I’m not particularly surprised that so many people’s grief over Dan’s death didn’t manifest as a desire to see his killers–all of them, including the ones too dainty to pull the trigger–harshly punished. I see the same from families and friends of homicide victims all the time. The first-ever national survey of crime survivors show that victims are far less punitive than Twitter would have you believe.
Not everyone is nonpunitive, of course. The Tate family, whom I discuss at length in my book Yesterday’s Monsters, were instrumental in shaping public perception of what victims want, as was Mark Klaas. I don’t think any of these people has been manipulative or insincere or has not suffered unimaginable pain; I do think, however, that their voices are mistakenly assumed to represent what most victims want, which is not the real picture. Nor is this an illness particular to the conservative right; the fault lies just as much with the folks who wrote fashionable pieces about how Jean Brandt’s act of faith and forgiveness toward Amber Guyger was “problematic” in that it “allowed whites to benefit from black forgiveness”, because some people on the left are apparently so enlightened that they can educate people on how to properly grieve their relatives. I saw the same dynamic in some of the astonishing reactions on Christian Cooper’s sane and measured response to the police investigation of Amy Cooper’s false complaint about him to the police, those accusing him of “performing a disservice” to African Americans nationwide, because apparently (1) everything has to be a performance and (2) the only true path to social justice is through arrests, charges, and convictions.
That this–a reaffirmation of our government’s commitment to a punishment that is, itself, dying a slow death (like many of death row inmates themselves)–is our takeaway from this pandemic, is mind boggling, but I see the same mentality among those wondering why we worry about people on California’s own death row catching COVID-19. Being on death row is hardly a natural consequence of one’s actions, as so many of my colleagues have explained over the years, and so the shrugging of shoulders, accompanied by a more or less crude version of “you do the crime, you do the time” or “we have to make priorities” astounds and perplexes me. As we inch toward November, the urgency of a vote that affirms everyone’s value in the dance of life becomes clearer and clearer. And then, we begin the hard work of reshaping the arc of progress, which has taken a very, very wrong turn.
Lately I’ve been thinking about environmental ethics quite a bit. I came to it through noticing patterns and values in vegan and animal rights groups, and partnering with my brilliant colleague and precious friend David Takacs to put together and teach our environmental criminology seminar has greatly deepened my interests. Early on in our work together, David and I had fascinating debates about animal ethics, in which he expressed an ecocentric worldview, whereas I took mostly a biocentric perspective. I found the logics and contradictions of my own position interesting, particularly in our debate about trophy hunting regulation, which I recounted here. Long story short, I found myself in the complicated, but ethically juicy, place of trying to reconcile my sense that each individual lion’s life is sacred and nothing short of a complete ban on hunting would reflect the purity of this fact with my understanding that the path toward protecting lions as a species and the indigenous communities that protect them might be regulation and the sale of expensive licenses. I still can’t get over the stumbling block that the lions’ lives are not ours to sell. We have created rules and economies that are alien to the way the world runs, and alien to the way in which we used to live in nature.
I’ve spent the last few months working through Joanna Macy‘s writings and attending two wonderful webinars in The Work that Reconnects. I’ve also been spending a lot of time in nature, experiencing plants, animals, and other natural kingdoms in a reverential and playful context that my pre-COVID life did not have space for. We have grown vegetables and herbs in the garden for years, but now, for the first time, I’m immersing myself in mycology and growing mushrooms (so far from kits, but it’s so interesting nonetheless.) Here’s a great documentary about the marvel of the fungal kingdom:
https://youtu.be/ZGEdHxiWo_Y
The theme that emerges from this work, which is enriching my mindfulness meditation teacher training, is interconnectedness-both as a scientific concept and as an immediate, natural, somatic understanding of relationships, cause and effect, cooperation and responsibility.
It was this sense of somatic interconnectedness that brought me to the animal rights world in the first place. I had been vegetarian for many years, interrupted by a couple of years of eating meat because I believed my endurance swimming practice required it, and then went to see Judy Irving’s marvelous documentary Pelican Dreams. The film’s starting point is a brown pelican, found starved and disoriented on the Golden Gate Bridge; Irving follows Gigi the pelican to a pelican sanctuary, and learns more about their lives on between Catalina Island and the Bay Area. Here’s the trailer:
Along the way, Irving learns that many pelicans sicken and suffocate from large surplus fish parts that commercial fisheries through back in the water. It was then that I realized that the evils of commercial consumption of animal products, and the cruelties of factory farming, were linked to evils to wildlife and the biosphere in ways that I no longer wanted to be part of. In the six years since watching the film, my family (with the exception of the cats, who, as obligate carnivores, did not choose to live with us and do not do well on vegan cat kibble) has shifted to a completely vegan diet. We cook and bake better every day and are very proud of our home cuisine, into which we bring our heritages as well as dishes from around the world, which we pick up from friends and books. My academic work on animal rights, which includes my book in progress on open rescue activism, comes from my deep personal interest in animal ethics.
A lot of the discourse in the animal rights world revolves around anthropomorphizing factory farmed animals, in much the same way that the rest of the world anthropomorphizes pets. I’m not sure that imposing our sensibilities in that way is 100% accurate, but within the limitations of human perception and language, I understand it as valuable shorthand to speak of animal rights. Many friends are shaken (in a good way) when I tell them that chickens can do math and that pigs are amazing problem solvers. But as much affection and love as I have for our nonhuman friends, my deep commitment to veganism and animal rights comes from my gratitude for the natural world as a whole, and from my deep sadness that we have grossly overstepped our place in the interconnected web of life. Animals have to feed on each other; as Peter Godfrey-Smith explains in Other Minds, interacting with each other as predators and prey was an important shift in the evolution of consciousness. But this applies to the overall sense of balance in our ecosphere, in which animals hunt and kill what they can and need to eat and no more. Our bloated, cruel apparatus of animal farming is so removed from that reality that I recoil whenever someone tries to tell me that ordering a plate of bacon or a steak is “natural.” There is nothing natural about how we do this, nothing sustainable; to refer to our horrific food supply system as part of the “food chain” is beyond offensive; and because it is so deeply out of step with everything I believe, the only resort I have is to opt out of it completely.
To be more versed in the scientific and spiritual aspects of natural interconnectedness, I’m doing a lot of wandering, and watching, and growing food, and also reading. Here are some of the books I’m enjoying lately:
Peter Godfrey-Smith, Other Minds: The Octopus, the Sea, and the Deep Origins of Consciousness
Robin Wall-Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants
Sy Montgomery, Soul of an Octopus: A Surprising Exploration into the Wonder of Consciousness
Paul Stamets, Mycelium Running: How Mushrooms Can Help Save the Planet
Peter Wohlleben, The Secret Life of Trees
Peter Wohlleben, The Inner Life of Animals
Peter Wohlleben, The Secret Wisdom of Nature
David Abram, Becoming Animal
David Abram, The Spell of the Sensuous
Chris Johnstone and Joanna Macy, Active Hope
Joanna Macy and Molly Young Brown, Coming Back to Life
John Seed and Joanna Macy, Thinking Like a Mountain: Toward a Council of All Beings
Rachel Carson, The Sense of Wonder: A Celebration of Nature for Parents and Children
As a postscript, I’ll mention that much of the passion behind my work to save lives of people behind bars from COVID-19, and much of my deep outrage about the three federal executions yesterday, come from befuddlement and grief. At a time in which we are seeing so much tragic destruction of human life, it is perplexing and distressing that not all of us awaken to the realization that all life, human and nonhuman alike, is sacred and calls for reverence and protection.
A couple of weeks ago I posted about the “known unknowns”: the situation in county jails. I don’t think that the cloud of ignorance over infections, illnesses, and deaths in hundreds of facilities (some as big as prisons) is coincidental. I’ve already mentioned the concept of agnotology–the study of culturally induced ignorance or doubt, particularly the publication of inaccurate or misleading scientific data–and I think that, when problems are prioritized, knowledge about them is also gathered and shared.
We have an opportunity to press the Board of State and Community Corrections (BSCC) for some answers, because they have just announced an emergency meeting scheduled for this Thursday, July 16 at 10:00 a.m. At the meeting they plan to decide whether to give $15 million of the total $58.6 million of federal Coronavirus Emergency Supplemental Funding (CESF) to the California Department of Corrections and Rehabilitation (CDCR) to “quickly leverage existing contracts that can provide emergency housing” for individuals being released from state prison due to COVID-19. You can find the full proposal here; the gist of it is as follows:
In May, the BSCC’s CESF application for $58.5 million was approved. In June, the BSCC launched a dedicated CESF email address to seek input on how the funds should be used, established a 30-day public comment period that concluded July 12, and staff committed to sharing those results with the Board at the September Board meeting. In the weeks following the June Board meeting, however, the Administration identified an urgent need to provide housing to individuals being released from CDCR due to COVID-19. As many as 8,000 individuals with less than a year left on their sentences could be eligible for release by the end of August. There is an immediate need for housing to help these people with successful reentry. The Administration has requested a portion of the federal grant to meet those emergency needs.
A CESF award would allow CDCR to immediately leverage existing contracts through the Specialized Treatment for Optimized Programming (STOP) to help with emergency housing needs. The STOP system operates in six regional areas statewide, with offices in LA, San Diego, Sacramento, Marin, San Bernardino and Fresno. Each provider contracts to provide step-down services ranging from residential treatment to recovery and reentry housing at the local level. The proposed funding would provide emergency housing and could cover costs associated with increasing housing capacity and providing quality assurance of housing to ensure safe housing standards are implemented.
The Board will have the opportunity to consider the public comment received to determine priorities for the remaining $41.7 million and take further action at the September meeting. Sixty-seven public comments have been received to date from community based organizations, local governments (both city and county), concerned citizens, public and private organizations, law enforcement, and the faith-based community.
This, in itself, might be a good thing–the money will be sorely needed to cushion the path of so many folks who have been incarcerated in an environment that is an anathema to rehabilitation as they make their first steps in a horrible economy. But we must also be mindful of the fact that we don’t actually know what the situation is in jails, and to what extent these funds are needed to put out local COVID fires on the county level. In any case, if you want to chime in and make your opinions known at the meeting tomorrow, here’s all the info you need to attend the emergency meeting. I’m not sure I can make it, but if I could, my priority would be to comment on the fact that BSCC must be the “responsible adult” and liaise between the counties to create a uniform, informative reporting platform for all the jails in California. We cannot solve a problem we know so little about.
Important postscript: The last few weeks have made the question of school reopening into yet another partisan screeching war lacking any nuance. While we have proof (not unambiguous, because this virus is a shapeshifter when it comes to data) that indiscriminate school reopening without social distancing measures can be dangerous, we also have proof that early education centers (daycares and preschools) that have rigorous sanitation and distancing protocols in place have not contributed to the spikes we are seeing (in fact, many of them were operating for months, for children of first responders, without seeing positive infections.) The most shrill, uncompromising voices for not opening schools come from what some might consider “my” side of the political map, and almost without exception from people who (1) don’t have kids (2) don’t teach kids and (3) don’t work in K-12 school administration. I’m noticing that these posts, invariably strewn with expletives about the selfishness of opening schools, are harvesting “likes” aplenty, because apparently wanting children to be properly educated and socialized, regardless of their class or wealth, is suddenly no longer a progressive priority, and wanting abuse, neglect, and household poverty to be detected and addressed is tantamount to being a loathsome Trumper. There are many good and knowledgeable people in school administration–some of them are good friends of mine–and they report so much uncertainty and efforts to do the right thing, precisely because they are exposed to the downsides of multiple options. There’s complicated choreography and architecture and proper messaging that needs to be done. I don’t have the answer to the difficult questions (and anyone who claims they have the perfect solution is either lying or ignorant), but I will tell you this: everything you’ve seen from me in the last three weeks—TV appearances, radio appearances, newspaper stories, dozens of posts with primary data analysis, this morning’s op-ed in the Chronicle, the open letter, the press conference speech–everything that I have done to try and save lives behind bars–has been brought to you by my son’s preschool, which has been open now for three weeks, and thank goodness for that. To their great credit, they took on an enormous amount of work and created sanitation protocols, symptom checking lines, pick-up and drop-off routines, and rigorous cohorting, so that I can write this post and you can read it. Working parents are part of the economy and part of the community. When we are full-time caregivers for our children, we are excluded from contributing to our communities in other ways. You might want to think of that and square the struggle to stop the prison outbreak with other progressive sensibilities before you exhort your local government to make decisions that lack nuance, ignore externalities (to teachers as well as students and families.) For more on why it is important to say this, read here.
Trump is not the only president to have used his commutation powers in controversial ways. As this excellent NPR piece explains, both Bushes and Clinton were criticized for misuse of their powers, as was Obama for the sheer number of commutations. What is unique about Trump’s pardons and commutations is that, with a handful of exceptions, they were given to people in furtherance of his own personal interests or to people prominently featured on Fox News. Moreover, Trump has virtually ignored the Department of Justice’s Office of the Pardon Attorney, whose function is to parse out the thousands of pardon requests it receives every year and make recommendations to the President. Usually, the President follows the Office’s recommendations, but not in this case, and as Mitch Jeserich and I discussed this morning on KPFA’s Letters and Politics, this means not only that Trump’s business partners and go-betweens are rewarded for their crimes, but also that ordinary people’s petitions are ignored and recommendations about them go unheeded. Trump’s adulation and courtship of celebrities is one contribution to his assault on the rule of law (with the notable exception of Kim Kardashian’s influence on the First Step Act). Combine all of this with Bill Barr’s jockeying of Manhattan federal prosecutors and you’ll find a continuation of the same trends.
One issue that Mitch and I discussed today was the public discourse around Roger Stone’s age and (he’s 67), and the argument that, with the pandemic ravaging prisons, he would be “put at serious medical risk in prison“. Of course age and health condition are valid considerations, but let’s keep things in context. Here’s a breakdown of the federal prison population by age. Close to 20% of them are aged 51 and older. Throw in people aged 46 and above, and you’re at almost a third of the prison population. That’s tens of thousands of people. One person, albeit famous/infamous, is a drop in the bucket, so forgive me if I’m not persuaded by the argument that this reflects sensitivity to public health.
Source: Federal Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_age.jsp
Worried about older people catching COVID-19 in federal prisons? Let them go–not only the ones that are doing time for being presidential go-betweens, but those who are doing time on a Frankenstein-like construction of enhancements and multiplications on nonviolent drug offenses (this is not as much of a thing in state prisons, but it is a huge factor in federal ones).
Speaking of state prisons, the situation at San Quentin continues to be dire. Over the weekend, they’ve seen 204 new cases. Notably, those are 204 positives out of a total of 259 tests, so things are going horribly wrong there. There are also 167 new cases at CCC (reflecting a major testing push), 15 new cases at CCI (hundreds of new tests there, as well as in DVI), 8 new cases at CRC, 5 new cases at WSP, 1 new case at SOL, 1 new case at CAL, and 2 new cases at CHCF (this is particularly worrisome because this Stockton prison houses a medically vulnerable population.)
In short, gentle readers, things are not going well. Stay tuned for updates.
CDCR’s plan for releasing 8,000 explained. It will provide essential relief to some incarcerated people and their families, but it is too little, too late, too reactive, and too tailored to public pressure.
Gov. Gavin Newsom is set to announce that he will release approximately 8,000 people incarcerated inside California’s prison system, in a move that comes amid devastating coronavirus outbreaks at several facilities and pressure from lawmakers and advocates.
Prisoner attorney Donald Specter on Friday said the announcement is expected early this afternoon. Specter, who is the executive director of the Prison Law Office, the organization that represents prisoners in a long-running lawsuit alleging inadequate medical services, said the governor’s office advised of the details.
“We certainly appreciate the effort from the administration to reduce the prison population,” Specter said. “We still remain concerned that there’s not enough space, especially in places like Vacaville and Folsom to house people safely if the virus gets into those institutions.”
Across state prisons, 2,286 inmates were confirmed to have active cases of the virus and 31 had died as of Friday morning, according to California Department of Corrections and Rehabilitation. Staffers with active cases of the virus totaled 719.
Specter said the releases will come on a rolling basis, and they’ll include both people who were scheduled to be freed soon as well as people at high risk for serious complications if they contract the virus.
Those bound for releases include about 700 people from high-risk prisons like San Quentin, Folsom and the California Medical Facility, Specter said, as well as people who are in hospice and appropriate for release. State prisons have about 6,500 people who are high risk medically for COVID-19 and low risk for recidivism, he said, “and they’re going to start releasing some of them.”
The move will expedite the governor’s review for people who were granted parole, which can traditionally take about six months, Specter said.
Prison officials announced Thursday night that they would provide 12 weeks of credit to every inmate eligible for release who had not been found guilty of a serious rule violation between March 1 and July 5. The policy, adopted because prisons have shut down their credit-earning programs during pandemic, could benefit as many 108,000 people.
With the reduced sentences, about 3,100 inmates would reach their earlier possible release date, officials estimated, with those releases set to begin Aug. 1.
Too few and too late, but it’s a start. The advocates, activists, and elected officials are making a difference. We must press on to stop this human rights crime.
CDCR seem to have taken a page out of Trump’s pandemic prevention book: They slowed down testing in San Quentin, the epicenter of the prison pandemic. We found a big push in testing in late June shortly after the San Quentin disaster broke into mainstream media. Indeed, a high percentage of the tests came back positive. Even though cases were still rising, around July 3, testing came to a grinding halt–and the few tests that were still coming in were coming in positive. The correlation we found between cumulative testing and cumulative cases is 0.99. The correlation between new testing and new cases is 0.7. In other words: The more people you test, the more people come out positive. If you’re seeing abatement in the numbers of infected people, it does not necessarily mean fewer infected people. It could mean, and actually does mean, less testing.
Yesterday, on July 9, we held a press conference at San Quentin to draw attention to the conditions inside the prison. We invited Gov. Newsom to participate, but he did not attend. His absence was glaring, as one of the demands of the protesters is that he at least make the effort to visit the prison and see the conditions with his own eyes.
You can read about the press conference in the Guardian, the Chron, and the ABC News website. It was incredibly moving to hear from mothers and spouses of people on the inside about the desperation of their loved ones. James King, state campaigner for the Ella Baker Center who is formerly incarcerated in San Quentin, shared a letter from a friend of his currently behind bars that truly conveyed the horror of dealing with this pandemic. Shawanda Scott spoke of the loving home she has waiting for her son. These testimonies undercut the myth that no one is waiting for those afflicted on the outside, and that, as James said, “the minute they are released… tens of thousands of families will be here at the gate to welcome them with open arms.” Adnan Khan of Re:store Justice spoke very movingly of the tendency to dehumanize people in prison. Dr. Peter Chin-Hong from UCSF spoke of the history of contagion in prisons (“prisons are incompatible with health.”) It was terrific to have legislators with us: Marc Levine, who has been on top of this from the very beginning, Scott Weiner, Ash Kalra, and Rob Bonta were with us. Public Defenders Brendon Woods and Mano Raju, and San Francisco District Attorney Chesa Boudin, also came to lend support. And, it was amazing to hear from Eddie Zheng, and from more family members of people incarcerated at San Quentin, at the open mike section.
What really inspired me was that the families spoke without spite or rancor. They said they were not interested in blame, only in saving their loved ones from illness and death. My mentor Malcolm Feeley, who started the ball rolling on this by emailing me a couple of weeks ago saying “I’m so pissed”, said that this is the new victims’ rights movement: the victims of the state’s indifference.
Co-organizing the press conference was inspiring. There is no way a single organization or demographic could’ve put this thing together on their own. It took a diverse coalition of talent and experience, united by our passion to save people and put an end to what is probably the worst medical scandal in prison history. I am so grateful to my co-organizers–most of whom put an enormous amount of effort into this and stayed behind the scenes. They are an amazing group of people and I hope we can keep up the pressure on Gov. Newsom to do the right thing.
A few people asked me to post my speech, so here it is:
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Hello. My name is Hadar Aviram and I am a law professor at UC Hastings. I am the author of an open letter to Governor Newsom asking him to release people from prison to save lives. I speak here on behalf of more than 400 of my colleagues [now closer to 500–H.A.], who signed the letter: criminal justice experts, prison law experts, public health experts. We are asking Gov. Newsom to do what he knows, in his heart of hearts, is the right thing.
An old Cherokee story tells of a wise grandfather and his grandson. The grandfather says, “Son, within each of us there is a battle between two wolves. One is evil. It is hatred, greed, arrogance, malice. The other is kind. It is compassion, love, empathy, and truth.” The grandson asks, “Which wolf wins?” The wise grandfather replies, “the one you feed.”
If Gov. Newsom were here, I would ask him which wolf he wants to feed. But he is not. Where is he? When people are getting sick and dying in droves, where is he? When buses transport people from prison to prison without testing and quarantining them, where is he? When people who test positive and negative are thrown together without care, where is he? When there is no retesting, where is he? When people get no medical treatment beyond checking their vitals, where is he? When people are terrified to report their symptoms out of fear that they will be thrown in death row or in solitary confinement, where is he? When we don’t even know what’s going on in jails and juvenile facilities because they are not reporting numbers, where is he?
I know that many people secretly think that lives behind bars are worth less than lives on the outside. Some of this ignorance comes from the panic and cabin fever of the pandemic. I would like to explain to them that prisons are part of the community, and that people in prison are members of the community. I should know; I ran the numbers. Infection rates in Marin county spiked after the outbreak in San Quentin. Infection rates in Lassen county spiked after the outbreak in prisons in Susanville. Saving lives in prison is a priority because it protects everyone, people behind bars and people on the outside. By contrast, incubating the virus in prisons endangers us all and makes all our prevention efforts futile. You asked us to do our part. When will you do your part, Gov. Newsom? Which wolf do you want to feed?
The people behind these gates are serving sentences under the California Penal Code. They were not sentenced to abuse, neglect, and illness. They were not sentenced to chaos and ineptitude. They are in the custody of their government, and with this great power comes great responsibility. So, Gov. Newsom, which wolf do you want to feed?
Newspapers have been making distinctions between so-called “violent” and “nonviolent” people. I am here to tell you the facts. The facts are that a quarter of the California prison population are people aged 50 and older. These people do not pose a risk to public safety; rather, they themselves face risks because of their age and deteriorating health. My colleagues and I have studied California crime rates for decades and found no correlation between the crime and commitment and the risk of reoffending. The public risk here is not from imaginary crime, but from the very real possibility that our prisons are turning into mass graves. So, Gov. Newsom, which wolf do you want to feed?
We’ve had to release people from our bloated prisons twice recently: in 2011 and in 2014. Both times, there was fearmongering, and there were stories in the media. We let out tens of thousands of people. We know what happened because we crunched the numbers: Crime rates stayed low. Violent crime did not rise. There was no increased risk to public safety. So, Gov. Newsom, which wolf do you want to feed?
The virus is tearing through Death Row, and the irony is that California has a moratorium on the death penalty. For decades, we litigated to the tune of billions of dollars how to kill people in a way that was not “cruel and unusual”. We were even careful to examine whether people were healthy enough to be killed by the state. And so, when you put the moratorium in place, Gov. Newsom, we applauded you for doing the right thing for California. How does that feel now, when more people have died during this moratorium than we actually executed in the entire century? Which wolf do you want to feed?
Moreover, we know for a fact that some of the people behind these gates, whom you are sentencing to death via Covid, are innocent. They are behind bars because of mistaken eyewitnesses, coerced confessions, and hidden exculpatory evidence. So, Gov. Newsom, which wolf do you want to feed?
And we know that crimes are not just a matter of choice. They come from a confluence of factors, such as poverty, neglect, deprivation, abuse, racial discrimination, persecution, food deserts, lead poisoning, necessity, mental illness, substance abuse, pain and hurt and suffering. The virus doesn’t take sides. The virus doesn’t decide who “deserves” to get sick. So, Gov. Newsom, which wolf do you want to feed?
In 2005, at the UC Berkeley ceremony in which I received my Ph.D., you, then Mayor of San Francisco, were the commencement speaker. You spoke of your decision to allow people to marry the person that they loved. And you said that it is important to do the right thing, even if it’s politically risky, even if you face press backlash, even if people are not ready for it. History has smiled on your bravery. We applauded you for your courage. Now is just such a moment. History is being written, right now, behind these gates. You know the right thing to do. Trust your own goodness. Trust your own courage. Trust your own compassion. Bring them home.
