The California COVID-19 Prison Tragedy, in Four Snapshots

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 a rich array of programming (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.

VON STAICH Request for DePublication by hadaraviram on Scribd

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.

Prisons Must Be Vaccine Priority Sites and Ground Work Must Start NOW

I’m getting a lot of phone calls from journalists about the California Department of Public Health’s COVID-19 vaccination plan, which you can find here in its entirety. The state vaccination plan consists of three phases (see the image below).

Phase 1, during which the state will have a limited supply of vaccines, focuses on critical populations in two subphases:

  • Healthcare personnel likely treating patients with COVID-19 (Phase 1-A)
  • Healthcare personnel likely to be exposed to COVID-19 (Phase 1-A_
  • People at increased risk for severe illness or death from COVID-19 (Phase 1-B)
  • Other essential workers (Phase 1-B)

California has an Allocation Data Team tasked with identifying these critical populations. CDCR is mentioned as one of the agencies whose datasets are going to be reviewed by the Allocation Data Team. Notably, one of the criteria for allocating vaccines is “identifying disadvantaged populations and communities that have been disproportionately impacted by COVID-19 in terms of higher rates of infection, hospitalization, and deaths.” To combat these well-documented disparities, California has developed a health equity metric and is working to improve the collection of race and ethnicity data associated with testing and cases.

Part and parcel of the vaccination plan is an effective communication strategy, which consists of outreach and education. The report explains how communication will be carried out:

With over 4,000 medical providers participating in California’s Vaccines for Children program and over 500 federally qualified health centers in our Vaccines for Adults program, a solid communication infrastructure exists for getting information and program updates to participating providers (program updates are sent electronically and also posted at https://eziz.org/ ). The CDPH Immunization Branch also employs field staff in five regions to serve as liaisons between provider offices and local health departments. These mechanisms, combined with the knowledge and relationships between local health care providers, pharmacies, and local health departments, have already established points of contacts and methods of communication. Additionally, local emergency preparedness programs have established close communication channels with first responder organizations, groups serving vulnerable populations and large employers throughout our state’s diverse counties. Local health departments have also been keeping close track on communities most adversely affected by COVID-19 and many have bolstered their responses to include specific outreach, education and mitigation efforts in those communities, establishing good relationships along that way that are paving the way for COVID-19 vaccine.

We have also been working with the California Conference of Local Health Officers and the
County Health Executives Association of California to define and establish contacts for Multi
County Entities (MCEs). An MCE is a health system that has facilities in more than two California
counties to centrally support local implementation in all of its locations, set policy for all of its
facilities, order and store vaccine, has a centralized pharmacy, and has a demonstrated track
record in immunizing all of their staff. Northern and Southern California Kaiser Health Systems
are the two largest MCEs defined to date. Conversations are continuing to delineate more
MCEs and processes are being created and refined for how these entities will be registered in
our provider enrollment systems for vaccine ordering, allocation, tracking and reporting. MCEs
will become critical partners to immunizing in their communities and will be brought fully into all communication networks and monitoring infrastructures. We will augment these well-established networks with any additional input from our Community Vaccine Advisory Committee.

Successful communication regarding critical population groups will start with clear guidance at the state level. The state will communicate to local health jurisdictions and MCEs about which and when specific critical populations should be receiving the vaccine. The state, in turn, will rely heavily on these local jurisdictions and multi-county entities to communicate directly with the providers for whom they will be approving allocations. The points of contact for these providers will be established through the provider registration process, which is discussed in further detail in Section 5.

Additionally, we will employ various communication methods to reach critical population groups. To communicate out to the groups that will be eligible for vaccination, we will send messages both from the local and state level about which categories of people should be vaccinated and, when. At the local level, emergency operations centers remain activated and will utilize well-established networks for reaching emergency responders and health care personnel. These well-established networks include Public Health and Medical emergency response partners, such as the Regional Disaster Medical Health Coordination and Medical and Health Operational Area Coordination programs. We will rely heavily on these networks as well as on statewide health care associations such as the California Hospital Association, the California Primary Care Association, the California Medical Association, local health care coalitions, and others. We will also rely on the California Immunization Coalition, our CCLHO and CHEAC organizations, EMS organizations (such as the Emergency Medical Services Administrators’ Association of California [EMSAAC] and the EMS Medical Directors Association of California [EMDA]), and many other professional associations. Emphasizing transparency and equity every step of the way, we will engage our Office of Health Equity, Governor’s COVID-19 Vaccine Task Force, Community Vaccine Advisory Committee members and other stakeholders to ensure that our communications are inclusive and that our strategies are in alignment with the best use of the vaccine at any given point in time.

This report, to me, raises a few points that are crucial to highlight at this particular time–and that require immediate action:

Prisons MUST be designated a vaccine priority site because of the nature of the interpersonal interactions.

Everything we know about the pandemic in prisons shows us that the rate of infections is much higher–approximately ten times higher–than the rate in California generally, and that mortality rates–even when adjusted for age–are much higher. Prison staff–correctional officers and prison workers–come in direct contact, and treat, incarcerated COVID patients just like healthcare personnel on the outside. Moreover, incarcerated people have not seen their families and loved ones since early March, when all visitation was halted because of the pandemic. Vaccinating them should be a priority.

Prisons MUST be prioritized because vaccinating behind bars protects everyone in CA.

Moreover, it is imperative to understand the role that prison outbreaks play in the overall COVID picture of the state. As of today, only two CDCR facilities do not have any cases, and numerous prisons have serious outbreaks with hundreds of cases. The analysis we have provided throughout the last months shows a correlation between spikes in CDCR COVID rates and spikes in the surrounding and neighboring counties. Prioritizing prisons as vaccination sites protects everyone in California.

If equity is a consideration, incarcerated people should be first in line to get vaccinated.

The California Department of Health plan rightly emphasizes the need to factor equity in the distribution of vaccines, specifically through the prioritization of communities and race/class demographic groups who have born the brunt of infections and deaths so far. I can hardly think of a category of Californians who have, disproportionately, suffered more from COVID than incarcerated people. Vaccinating them first is not only prudent and worthwhile–it is fair.

At the same time, from a public health standpoint, outreach and education must begin now.

There are three main populations behind bars: incarcerated people, prison workers, and correctional officers. For reasons that I explained here, there is a serious, and understandable, trust and legitimacy deficit that could hinder effective cooperation in getting the prison population vaccinated, which stems from the fact that, for months now, whenever CDCR had an opportunity to earn trust and engender good will, they did exactly the opposite. CDCR have to start working on repairing this fundamental trust breakdown right now. The best way to do it is to drop all appeals, petitions, grandstanding, performative protestations about public safety, and resistance to the idea of releases, and let aging, infirm people go immediately home to their communities. Not only will this help get the pandemic under control much more quickly, it will go a long way toward reversing the understandable sense among the prison population that CDCR is deliberately indifferent to their plight, and thus will contribute to raising vaccination rates.

The other problem I foresee is with collaboration and buy-in from correctional officers. As I explained here, instead of raising the alarm about the health risks to their membership, CCPOA has been throwing millions of dollars at punitive voter initiatives. And as we learned from the Inspector General’s report and saw at the Assembly hearing, CDCR has not taken disciplinary steps against correctional officers who did not wear PPE when engaging with colleagues and with incarcerated folks. This could be the product of a members in thrall to a leadership that has been completely politically captured, Trumper-like COVID denialism among the rank and file, or both. But it needs to be firmly understood that COs who do not wear PPE and/or do not consent to getting vaccinated have no business working at CDCR facilities.

The problems with buy-in from these two populations need to be addressed immediately if there’s any hope of success with a vaccination program. Buy-in is an essential component of public health, and even if the entire prison population is prioritized–as well it should be–the vaccines are only as effective as their distribution in the population as a whole.

I will update this post with newspaper/media outlet articles about the challenges and urgency of vaccination programs in prison throughout the next few days.

Putting the Unemployment Prison Fraud in Context

Bay Area newspapers are reporting a first-of-its kind unemployment fraud, in which unemployment claims were filed, and paid, on behalf of prisoners. The latest in the series is this article from the Sac Bee, which purports to explain “How inmates pulled off giant California unemployment scam.” But even having read it, I’m unclear on what exactly happened, and especially on what they mean by “a spider web.” Here’s what we know:

Court records show a handful of inmates contacted friends and relatives on the outside, supplied them with Social Security numbers and other information, and persuaded them to file for pandemic relief on behalf of 30 different inmates. The outsiders had the unemployment payments — in the form of Bank of America debit cards issued by EDD — mailed to them.

“The cards came pre-loaded with upwards of $20,000,” said Sean Riordan, deputy district attorney in San Mateo.

Riordan said the outside accomplices then went to ATM machines and withdrew their pre-arranged cut — usually $3,000 or $4,000 — and arranged for friends or family to deliver the cards to the inmates at the jail. In one case, an outsider was found to have used an ATM in Las Vegas to collect his cut.

“It was thousands of dollars,” Riordan said.

Accomplices arranged for the remaining funds to be delivered to the inmates’ jail accounts, which could be used to buy extra toiletries or other items.

That people commit fraud, behind bars and on the outside, is not difficult to understand, and I’m sure the COVID-related deprivations and difficulties produced the kind of conditions that act as a Petri dish for these kinds of schemes. What I don’t understand is this: to what extent were the people whose names were used in this fraud (the New York Times story names Scott Peterson, convicted murderer of his wife Laci Peterson) part of the fraud? When the article say that people’s “names were used,” was it with or without their consent?

Moreover, how does all of this map onto the bigger picture of COVID relief structures? We already know that CARES Act relief is available for prisoners, because it took a lawsuit to make it happen. I also know from family members of incarcerated people that several facilities are interfering with their population’s ability to complete the claim forms. In one case I heard of, when the family member called the San Joaquin County Jail, they were told the jail would not accept any check if the IRS mails it inside, and that “they [jail staff] don’t care what law was passed.” If this is a widespread problem, as the lawsuit suggests, unemployment fraud scams appear a lot less surprising. What I want to know, though, is whether there’s some connection between the two phenomena, and whether the financial scales of the CARES Act sabotage and the unemployment fraud are on par.

If you, or a family member, are having difficulties with prisons or jails undermining your CARES Act stimulus claim, email me and tell me your story, or post it in the comments.

Essential Readings for CCC3: COVID-19 Meets Mass Incarceration

In anticipation of our upcoming symposium about COVID-19 and mass incarceration, here are a few sources that our attendees might like to read. It’s not an exhaustive list; rather, it focuses on some of the themes we will be covering throughout the symposium.

Prisons, Disease, Medicine

Ashley Rubin, Prisons and jails are coronavirus epicenters – but they were once designed to prevent disease outbreaks, The Conversation, April 15, 2020

Misha Lepetic, Foucault’s Plague, 3 Quarks Daily, March 4, 2013

Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, Harvard Civil Rights–Civil Liberties Law Review 48(1) 2013: 165-215.

Osagie Obasogie, Prisoners as Human Subjects: A Closer Look at the Institute of Medicine’s Recommendations to Loosen Current Restrictions on Using Prisoners in Scientific Research, Stanford Journal of Civil Rights & Civil Liberties 6(1) 2010: 41.

COVID-19 In Prisons

Brendan Saloner, Kalind Parish, Julie A. Ward, Grace DiLaura, Sharon Dolovich, COVID-19 Cases and Deaths in Federal and State Prisons, JAMA, July 8, 2020

Hadar Aviram, Triggers and Vulnerabilities: Why California Prisons Are So Vulnerable to COVID-19, and What to Do About It, Tropics of Meta, July 3, 2020

Hadar Aviram, California’s COVID-19 Prison Disaster and the Trap of Palatable Reform, BOOM California, August 10, 2020

Sharon Dolovich, Mass Incarceration, Meet COVID-19, University of Chicago Law Review Online, Nov. 2020

Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, The New England Journal of Medicine, May 2020

Oluwadamilola T. Oladeru, Nguyen-Toan Tran, Tala Al-Rousan, Brie Williams & Nickolas Zaller, A Call to Protect Patients, Correctional Staff and Healthcare Professionals in Jails and Prisons during the COVID-19 Pandemic, Health and Justice, July 2, 2020

The San Quentin Catastrophe

Megan Cassidy and Jason Fagone, 200 Chino inmates transferred to San Quentin, Corcoran. Why weren’t they tested first? San Francisco Chronicle, June 8, 2020

AMEND SF and UC Berkeley, Urgent Memo – COVID-19 Outbreak: San Quentin Prison, June 15, 2020

Megan Cassidy, San Quentin officials ignored coronavirus guidance from top Marin County health officer, letter says, San Francisco Chronicle, August 11, 2020

Al Jazeera Front Lines, Pandemic in Prison: The San Quentin Outbreak, October 28, 2020

In re Von Staich on Habeas Corpus, A160122, California Court of Appeal for the First District, October 20, 2020

Solutions and Policies

Hadar Aviram, Gov. Newsom’s Release Plan Is Not Enough, San Francisco Chronicle, July 10, 2020

James King and Danica Rodarmel, Gov. Newsom must release more people from prisons to protect Californians and save lives, The Sacramento Bee, July 11, 2020

Jason Fagone, California could cut its prison population in half and free 50,000 people. Amid pandemic, will the state act? San Francisco Chronicle, August 16, 2020

Ruth Wilson Gilmore in conversation with Naomi Murakawa, Haymarket Books, April 17, 2020

Reproductive Justice, Women, and Gender in CA Prisons

Sulipa Jindia, Belly of the Beast: California’s dark history of forced sterilizations, The Guardian, June 30, 2020

Jason Fagone, Women’s prison journal: State inmate’s daily diary during pandemic, San Francisco Chronicle, June 14, 2020

Valerie Jenness, Transgender Prisoners in America, September 5, 2016

AJ Rio-Glick, COVID-19 Adds to Challenges for Trans People in California’s Prisons, Vera Institute of Justice Blog, July 7, 2020

COVID-19 in Immigration Detention Facilities

COVID-19 in Jails, Prisons, and Immigration Detention Centers: A Q&A with Chris Beyrer, Johns Hopkins School of Public Health, September 15, 2020

American Bar Foundation, Impact of COVID-19 on the Immigration System

Carmen Molina Acosta, Psychological Torture: ICE Responds to COVID-19 with Solitary Confinement, The Intercept, August 24, 2020

How to Reduce California’s Prison Population by 50%

Today’s Chronicle features a great article by Bob Egelko, which tries to parse out who is responsible for the San Quentin catastrophe. Getting into the chain of command that made the botched transfer decision might come in handy at a later date, I think, when the time comes to file the inevitable (and more than justified) lawsuit. But, as I said in the article, the time to squabble over who’s at fault has not come yet. Right now we must have all hands on deck, including Gov. Newsom, Mr. Kelso, and Mr. Diaz, making prison releases their absolute top priority.

By now, regular readers of my COVID-19 prison crisis posts know that Gov. Newsom’s plan to release a mere 8,000 people over the course of the summer will not suffice to curb infections, illnesses, and death in prison. You also know that, at least with regard to San Quentin–an antiquated facility that lacks proper ventilation–the physicians at AMEND recommended an immediate population reduction by 50%. But how is it to be done?

The #StopSanQuentinOutbreak coalition, and the Prison Advocacy Network (PAN) have useful, well-researched answers, which are encapsulated in the lovely infographic above. Here are the coalition’s demands, and here’s the PAN page offering legal resources and pathways to release. I want to spend this post getting into the particulars. Before doing so, though, I need to explain a few important things.The Prisoner Advocacy Network has a list of pathways to release.

A lot of the categories in Newsom’s current release plan make sense and show evidence of public health thinking. They are considering age, medical condition, and time left on people’s sentences. The problem with the categories is that they are unnecessarily restrictive, and I think the restrictions can be attributed to two hangups that many people, including well-meaning, educated folks, share about prison releases: the fear that releasing a lot of people is going to be hugely expensive and the hangup around the violent/nonviolent distinction. So let’s tackle these two first.

Get over the hangup of re-entry costs. You may have read that BSCC is considering offering $15 million to CDCR, and might wonder how we can possibly pay for housing, temporary or permanent, of tens of thousands of people. Of course this is going to cost money; the question is, compared to what. It may shock you to learn that, in the 2018/2019 fiscal year, the Legislative Analyst’s Office estimated that the average cost to incarcerate one person in California for a year was $81,502 – more than a $30k increase since our recession-era prison population reduction in 2010-2011. How much does it cost to help such a person for a year, when their healthcare is funded by Obamacare, rather than by CDCR? Here’s a PPIC report from 2015 detailing alternatives to incarceration. Specifically with regard to COVID-19-related reentries, here’s another great infographic detailing what the needs are going to be. The big one is housing, and there are organizations on the ground that are set up to help with that. Even with transitional housing costs, this does not add up to $80k per person per year.

Get over the hangup of making the violent/nonviolent distinction. I am still seeing lots of well-intentioned folks who read Michelle Alexander years ago tweeting about how ending the war on drugs (with or without the hashtag), or focusing on so-called “nonviolent inmates” is the key to fighting this outbreak. I can’t really fault them for this misapprehension–what I can do is repeatedly present you with facts to correct it.

Take a look at the graph below. It comes from CDCR’s population data points from 2018. You will note that the vast majority of people in California prisons are serving time for a violent offense. Drug convictions are the smallest contributors to our prison population (this is of course not true for jails or for federal prisons; I’m talking about the state prison system.) I know we all love to say “dismantle” these days, but dismantling the war on drugs will do very little to reduce state prison population.

Now, take a look at CDCR’s Spring 2020 population projection. What you see in the diagram below are the reductions in population since 2010, and some projections for the years to come. The two big reductions were in 2011, following the Realignment, and, to a smaller extent, in 2015, following Prop. 47. Both of those propositions diverted drug offenders to the community corrections systems–jails and probation. If you care about the injustices of the war on drugs, your heart is in the right place, but this is simply not the most dire problem we are facing in the context of prison population reduction.

It is easier to talk about drugs and nonviolent offenders, because these are typically categories of people that evoke more sympathy from the press. My colleague Susan Turner at UCI has shown that risk assessment tools, when used properly and carefully, yield dependable predictive results, and these are not correlated with the crime of commitment. Because we were so married to the idea that only nonviolent folks need help and public support, our three major population reduction efforts–Realignment, Prop 47, and Prop 57–missed the mark on getting more reductions for little to no “price” of increased criminal activity. Whenever you see a headline lambasting the Governor or the Board of Parole Hearings for releasing a “murderer,” immediately ask yourself the two relevant questions: (1) How old is this person now, and (2) how long ago did they commit the crime? The answers should lead you to the robust insights of life course criminology: People age out of violent crime by their mid- to late-twenties, and at 50 they pose a negligible risk to public safety. Moreover, what a person was convicted of doesn’t tell you a full story of what their undetected criminal activity was like before they were incarcerated. Take a look at the homicide solving rates in California, as reported by the Orange County Register in 2017–a bit over 50%–and ask yourself whether the crime of conviction is telling you a story with any statistical meaning.

In short, my friend, take a breath, let go of your attachment to the violent/nonviolent distinction, and let’s find some real solutions. The #StopSanQuentin coalition has a more in-depth breakdown to offer. Generally speaking, the legal mechanisms to achieve this reduction were identified by UnCommon Law in their letter to the Governor–primarily, early releases, commutations, and parole. Section 8 of Article V of the CA Constitution vests the power to grant a “reprieve, pardon, or commutation” in the Governor. The Penal Code elaborates and explains the process. Section 8658 of the California Government Code provides an emergency release valve: “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution.  He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.  the Governor has the authority to grant mass clemencies in an emergency.”

To begin, there are some bulk populations which, if targeted for release, can deliver the kind of numbers we need to stop the epidemic. These three populations largely overlap, which might make it easier to tailor the remedies to capture the right people. About half of the CDCR population are people designated “low risk” by CDCR’s own admission. CDCR uses risk classification primarily for housing purposes, and their methodology–as well as their practice of overriding their own classification–have been found by LAO to be in dire need of overhaul. LAO and other researchers believe that CDCR’s use of the “low risk” category is too restrictive, and their exceptions to their own classification come from hangups around issues of crime of commitment. This chart from the LAO report tells a useful story: Most of our prison population is doing time for violent crime, and a quarter of it is 50 and older; given the length of sentences for violent crimes, and the fact that a quarter of CA prisoners is serving decades on one of the “extreme punishment trifecta” of sentences (death, LWOP, or life with parole), it’s not difficult to figure out where the older, lower risk people fit in.

Between a quarter to a third of the prison population, depends on how you count: People who have already served a long sentence. This is the time to question the marginal utility of serving a few more years after being in prison for decades. According to the Public Policy Institute of California, About 33,000 inmates are “second strikers,” about 9,000 of whom are released annually after serving about 3.5 years. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Approximately 33,000 inmates are serving sentences of life or life without parole. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

23%: People Over 50. Not only does this population intersect with lower criminal risk and higher medical risk, it also correlated with cost. According to the Public Policy Institute of California and Pew center data they cite, in fiscal year 2015 the state spent $19,796 per inmate on health care–more than thrice the national average.

To this, we can add a few smaller populations, numbering a few thousand each. Let’s start with people on death row and people on life without parole, who have been exempted from pretty much any release valve possible. The Governor has the authority to commute both of those sentences to life with parole today, and this is probably the right course of action anyway, pandemic or no pandemic. We have a moratorium on the death penalty, which means no one is getting executed but we are still paying for expensive capital punishment litigation. Cut out the middle man and shift all these folks to life with parole. I talk about how these three sentences are indistinguishable anyway in Yesterday’s Monsters, chapter 2.

There are also, apparently, a few hundred people still incarcerated who have been recommended for parole and approved by the Governor–coalition members have identified a few dozen in San Quentin alone. If these people have been given the green light to be released, why are they still behind bars? As for people who have been recommended for release and still awaiting the Governor’s authorization, now’s the time to expedite that.

Finally, lifting the offense limitations on people from outbreak epicenters, people with medical conditions, and the like, should expand those numbers considerably, given the significant overlap between crime of commitment, length of sentence, age, and health condition.

My point is that all of this is eminently doable, and there would hardly be any downsides. If we can just let go of the tendency to view only one side of the cost equation, and of our hangup about the nonviolent/violent distinction, we can scale up the proposed release plan to the point that it will be effective. Let me end with this thought: Gov. Newsom announced that the goal is to reduce San Quentin population to close to 100% of design capacity. In a sane world, prisons that are at 100% occupancy are not a goal. They are a starting point.

August 14 Update: Jason Fagone has a gorgeous piece in today’s Chron explaining how we could achieve a 50% reduction today, with negligible impact on public safety.

The “What’s In It For Me?” Angle on COVID-19 Prison Releases

The thing everyone was warning you about has happened: the prisons, incubators of COVID-19, are spreading it to the general population. The Columbus Dispatch, reporting on the Ohio prisons rife with infections and disease, reports:

Marion County’s top health official is urging vigilance as the outbreak of the novel coronavirus in a Marion prison spills into the community.

More than 80% of Marion Correctional Institution’s inmates have tested positive for the coronavirus, as have more than 160 corrections officers and other employees, according to the Ohio Department of Rehabilitation and Correction. Those workers live in Marion County and surrounding counties.

More prisoners might have the virus because although a prison spokesperson previously said that mass testing was completed more than a week ago, spokesperson JoEllen Smith said Friday that only 2,300 tests had been administered. She did not clarify whether that included employees, and the prison has about 2,500 inmates.

Even excluding the prisoners who have tested positive, Marion County has a higher number of cases per capita than almost every other county in Ohio, including densely populated ones such as Franklin and Cuyahoga, according to Ohio Department of Health data.

[Health commissioner Traci] Kinsler attributed Marion County’s high number of cases per capita to the prison outbreak.

The idea of prisons as incubators of miasma is as old as the prison reforms of John Howard. Ashley Rubin has a terrific thread on this on Twitter. As she explains, preventing the spread of disease was at the forefront of the reformers’ interests, and for many thinkers was a metaphor for the spread of crime.

Many of the campaigns for releasing prisoners that I’ve seen make the scientifically correct point that, as long as U.S. prisons remain Petri dishes for the virus, nobody’s safe. I want to draw an important distinction between this argument and the equally correct argument that prisoners–better said, people who happen to be in prison during this outbreak–are human beings, too, whose protection from the virus would have to be a priority from a human rights perspective whether or not they endangered others.

I’m wondering whether the former argument is made not only because it is sound (it is) but because of realpolitik. In Cheap on Crime I argued that the post-recession reforms a-la “justice reinvestment”, which led to a decline in the overall U.S. prison population for the first time in 37 years, benefitted from having a morally neutral cost argument, which allowed activists and advocates to break the decades-long impasse between public safety and human rights. It’s quite possible that framing prisoner release as a “what’s in it for me?” argument, rather than an argument on behalf of the prisoners themselves, has more persuasive power, and if so, I’m all for whichever argument gets less people, in and out of prison, sick or dead.

But just so that we get a glimpse of life behind bars, here are some words from Kevin Cooper, an innocent person on San Quentin’s death row (shared with me via email through Innocence Project):

Experiencing COVID-19 on Death Row

By Kevin Cooper

In my humble opinion being on death row with this COVID-19 pandemic raging is like having another death sentence. I can and do only speak for myself in this essay, and I must admit that I am scared of this virus!

I pride myself on not being scared of anything or anyone on death row, not even death itself, because after all this is death row. But this virus is more than just dying, or death. It’s a torturous death, like lethal injection is.

I do all I can to take care of me in here under these traumatic times and stressful circumstances. I social distance, I wash my hands regularly, clean this cage that I am forced to live in­ on a regular basis, and I often ask myself is this enough?

Every inmate who lives next to me or around me to my knowledge is taking care of themselves too. Quite a few still go outside to the yard every other day as we are allowed to do. I went out for the first time two days ago after a month living non-stop inside this cage. I went out to get fresh air.

This unit, East Block, has staff who have been giving us cleaning supplies such as “cell block” which is a strong liquid cleaning agent, and we use that to spray on a towel and wipe the telephone down before each inmate uses the phone. We have been given hand sanitizer for the first time since this pandemic started. It’s a 6-ounce bottle and the writing on it says World Health Organization Formula. The same World Health Organization that Trump just stopped funding…no joke!

We still have not received any mask* though a memo was sent around last week stating that cloth masks were being made to be passed out to inmates but that they have not yet been finished being made. Who is making them? I don’t know.

We people, we human beings on death row aren’t for the most part cared about by society as a whole. That truth makes some of us wonder, including me, do the powers that be truly give a damn whether we human beings who have been sentenced to death by society care if any of us get the coronavirus and die from it in a tortuous way?

In 2004 I came within 3 hours and 42 minutes of being tortured and murdered/executed by the state of California. I survived that, and have worked very hard with lots of great people to prove that I am innocent, that I was framed by the police and that I am wrongfully convicted. To do all of this and, especially to survive that inhumane and manmade ritual of death in 2004, only to be taken out by COVID-19 is something that honestly goes through my mind on a regular basis. Right now, I am free of this virus and I am doing everything to stay this way. But that thought, that real life and death thought of the coronavirus taking my life is always present, especially under these inhumane manmade prison conditions on Death Row.

*On Monday, April 20th, Kevin called to say: I received a cloth face mask today as did everyone here on death row. We are now instructed to use it every time we leave the cell.

Hunger Strike in Calaveras County Jail

Jail
Calaveras County Jail, courtesy
The Calaveras Enterprise.
Chapter 6 of Cheap on Crime dealt with a transition with our perception of inmates–from wards of the state, who need to be clothed and fed and taken care of for the duration of their sentence, to capitalist consumers, whose every need beyond the very bare minimum (and sometimes even the bare minimum!) is monetized. The consumer label, of course, is ironic

Well, the shit finally hit the fan at Calaveras County Jail, where inmates are fed up with the endless monetization of their lives. The Calaveras Enterprise reports:

Seventeen inmates at the Calaveras County Jail have announced their plan to initiate a hunger strike in protest of “outrageous prices” for telephone calls and commissary items including soup and ramen noodles.

“Not only are we afflicted, but our families as well,” the inmates wrote in a letter to the Enterprise. “We have made attempts at every other level to have this situation resolved, to no avail. We are hoping that the public can get involved and know the real situation that is going on here.”

According to the inmates, local calls cost $2.91 for the first minute and 41 cents for each additional minute, while long-distance calls cost only 21 cents per minute. A soup from the jail’s canteen currently costs $1.23. They claim that those prices are far higher than those at other California facilities in which some of them have been detained.

Nineteen-year-old inmate Marc Holocker told the Enterprise on Monday that prices have gone up at the jail since he was incarcerated in May, and that his weekly allowance of $20 provided by his family is no longer sufficient to meet his needs. Outside of the telephone calls to his lawyer, which are free of charge, Holocker no longer calls family members, he said, opting instead to spend his money on food items.

Just recently I posted about how the prison food industry is one small, often unnoticed “piecemeal privatization” that escapes the gaze of the anti-private-prison crowd. The awfulness and meagerness of prison food (nutraloaf anyone?) feeds (no pun intended) directly into the commissary business. The phone call gauging is an ongoing scandal, in CA and elsewhere (and that’s before we even ask hard questions about the calls’ privacy). In Cheap on Crime I bitterly commented that people in prisons and jails who review their institutions on Yelp have drawn the natural conclusions about how they’re being treated, and it seems the people striking in Calaveras are taking to more direct action.

Preemptive Move? Reclassifying Possession as an Infraction

Yesterday, Governor Schwarzenegger signed Senator Mark Leno’s Senate Bill 1449, which reclassifies possession of less than one ounce of marijuana as an infraction.

Existing law provides that, except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than $100. This same penalty is imposed for the crime of possessing not more than 28.5 grams of marijuana while driving on a highway or on lands, as specified.

Existing law provides with respect to these offenses that under specified conditions (1) the court shall divert and refer the defendant for education, treatment, or rehabilitation, as specified, and (2) an arrested person who gives satisfactory evidence of identity and a written promise to appear in court shall not be subjected to booking.

This bill instead provide [sic] that any person who commits any of the above offenses is instead guilty of an infraction punishable by a fine of not more than $100. This bill would eliminate the above-described provisions relating to booking and to diversion and referral for education, treatment, or rehabilitation.

A preemptive move against Prop 19? The “civil unions” of marijuana, which are “almost like legalization, but not exactly”? Unclear. It is important to keep in mind, though, that prior to this amendment of the Penal Code, marijuana possession of less than an ounce was a misdemeanor punishable by a fine, a fact that many Californians were not aware of. It is therefore unlikely that this measure will have any impact, positive or negative, on usage patterns and rates.

Skimping on Corrections? How They Do It in Texas


Prompted by our posts about the current dilemmas we face regarding the $1.2 billion cuts, and particularly Matthew Cate‘s recommendations, there’s a thoughtful and interesting post this morning from our pals at Grits for Breakfast. Here’s what Texas has tried to do to reduce its inmate population, and how well it has worked:

Texas pursued some of these same strategies in recent years to reduce its prison growth rate, a result achieved primarily by reducing the number of probation revocations. That was done through greater use of “progressive sanctions” and intermediate penalties for those who violate terms of supervision instead of sending them straight to prison. Secretary Cate’s proposal would apply that tactic to both probation parole. Key to making it work, though, to judge by Texas’ experience, will be boosting supervision resources, either by spending more money to supervise offenders in the community or reducing the length of supervision so officers are watching fewer people. That tactic will surely save money compared to sending the same folks to prison, but as a practical matter it will require additional investments to strengthen community supervision.

Adjusting the property crime thresholds is a strategy Texas has not yet pursued but which is probably justified here as much as in the Golden State. In Texas, theft reaches felony thresholds when “the value of the property stolen is $1,500 or more but less than $20,000,” so the same tactic could be applied here and would also reduce the number of new prison entrants. The $1,500 level was set in 1993 when the “state jail felony” category was created (essentially a fourth degree felony), and it’s never been adjusted for inflation.