Similarities and Variations in Legal Responses to COVID-19 in Correctional Facilities

This morning I’ll be speaking, alongside Sharon Dolovich, James King, and Jane Dorotik, about court responses to COVID-19, at an event organized by UCLA Social Medicine. Thankfully, we now have a somewhat fuller picture of how litigation efforts have fared overall, which we can draw on to discuss some similarities and variations.

One of the things mindfulness has taught me is that disappointment depends on expectations. In that respect, to say that correctional policies during COVID-19 have been a disappointment reflects, perhaps, unrealistic expectations from institutions that have been unwieldy and incredibly resistant to change even at the best of times. Perhaps it’s not that unexpected that the giant machine that protects the correctional colossus from reform was overall characterized by delays, evasive maneuvers, reversals of fortune and too-little-too-late gestures. So, if one expected mass releases, the disappointment would be commensurate with the expectations.

Still, there is an objective benchmark against which to measure my disappointment: the problem is not that the releases fell short of being what I hoped they’d be–it’s that they fell short of what was needed to curb the spread of the pandemic. We don’t have to wonder what that number would be; we had assessments of individual institutions with recommendations from physicians specializing in pandemic spread. I think that now, in mid-April 2021, we can safely say that, with respect to releases, courts have failed to provide the relief they should have provided.

We have two great nationwide summaries that support this conclusion. Brandon Garrett and Lee Kovarsky’s new piece Viral Injustice is a survey of COVID-19 correctional litigation outcomes. Garrett and Kovarsky conclude:

Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Brandon L. Garrett and Lee Kovarsky, Viral Injustice

We also have an excellent summary from the Prison Policy Initiative, who concluded that overall the response was “grim”:

Lawmakers failed to reduce prison and jail populations enough to slow down the spread of the coronavirus, causing incarcerated people to get sick and die at a rate unparalleled in the general public.

However, some individual state and local policymakers took steps that stand as an example of how to release a large number of people from prison — a necessary step to ending mass incarceration. And some policy changes made during the pandemic — like eliminating cruel copays for incarcerated people — are ones we need to remember and demand that they be extended permanently.

Prison Policy Initiative, The most significant criminal justice policy changes from the COVID-19 pandemic

I want to throw in a few additional issues that illuminate aspects of these legal responses:

  1. The PLRA, while greatly responsible for suffocating prison litigation, is not the be-all, end-all of the problem. Following Plata v. Newsom closely, I’m not sure how much of the inaction is Judge Tigar’s allegiance to the PLRA framework and how much of it is a culture of conciliatory, deferent approach and valuing “bringing everyone to the table” rather than ordering a solution. Some of this could be down to individual judicial personalities and some of this could be attributed to litigation cultures in different states or even in different counties. I think that our good fortune in the first round of Von Staich was because we were fortunate to get a panel that was deeply responsive to both the humanitarian emergency behind bars and to the geographical argument that the threat would extend to outside communities.
  2. Relatedly, I don’t think that the state vs. federal litigation was the important distinction. Nor was it class action vs. habeas corpus. I think the defining feature of the litigation is the aggressive deference to correctional authorities–giving vague, modest relief knowing that correctional officers and their lawyers can sabotage it.
  3. Generally speaking, and beyond CA, the staff has been the problem–from dragging their feet to actual frustration of purpose (by not testing, not reporting symptoms, and not getting vaccinated.) There has been precious little done to hold correctional officer unions accountable for their colossal leadership failures.
  4. In the absence of releases, there’s been a lot of reliance on bottleneck provisions–stopping admissions from jails, which put the onus on jails to handle their own pandemic issues, often without data and without accountability. The counties have been left to figure things on their own, with dramatically varying degrees of success (see my analysis of this here.)
  5. The advent of the vaccine made a difference, both in terms of state enthusiasm to help incarcerated populations and in the courage of courts. How vaccines played into advocacy and litigation is a complicated story, which Chad and I will analyze more thoroughly in our book-in-progress, #FESTER: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract, UC Press.) In a nutshell, vaccines opened an avenue that allowed courts to avoid grappling with their paralysis regarding releases and recur to a short-term strategy to provide immediate relief from the current pandemic. And even this was not always necessary, given that many states got ahead of the courts and gave the vaccines.
  6. The most notable aspect of the deference/reluctance to do more for prison and jail populations was the prevalence of zero-sum games of deservedness (“grandma before inmates!”), which ignored obvious implications of geography and epidemiology: the idea that people in congregate settings, no matter who they are, face more risk, and that spaces that are jurisdictionally/institutionally set apart from society at large are, in fact, permeable to disease. This is going to be the main premise of #FESTER.
  7. The deservedness argument posed some difficulties in advocacy and organizing: does making the argument that jail populations are largely presumed innocent introduce the deservedness scale, which as Kovarsky and Garrett show was at play in the overall picture of relief? And, how to advocate short-term for vaccination while advocating long-term for releases?

Carceral Permeability, “Pandemics of the Self” and “Pandemics of the Other”

If you told me before March 2020 that the entire state of California would be atwitter about two dinner parties at a fancy restaurant on two consecutive nights, I would be very surprised–and yet, here we all are, frothing at the mouth about precisely that. First, newspapers broke the story of Gavin Newsom’s large private gathering at the French Laundry in Yountville with friends, socialites, and lobbyists. Then, it turned out that San Francisco Mayor London Breed had some French Laundry of her own to air–she was there at a large gathering the following night.

The outrage and mockery was palpable. There are already two Onion pieces–this one and this one–but perhaps the very best was written by the Chron’s food critic, Soleil Ho. This masterpiece alone is worth my annual subscription to the Chron, and you should read it in its entirety, but for our purposes, here’s one of my favorite paragraphs:

You’re a good, safe person who believes in science, you think as you check your makeup in the mirror. Not like those troglodyte COVID deniers storming retail outlets, demanding to be let in without masks on, banging on glass doors and insisting that they’re important. These are the people the rules are for. You on the other hand know the rules so well — you are kind of in charge of explaining them, after all — that you know specifically, to the letter, why your situation is an exception to those rules.

A couple of days later, I realized why I had so profoundly enjoyed it, when I read John Witt’s new book American Contagions: Epidemics and the Law from Smallpox to COVID-19. Witt draws a useful distinction between “quaratinist” and “sanitationist” state approaches toward contagion and disease. Authoritarian states, he explains, adopt a quarantinist approach: they “exercise forceful controls over the bodies and lives of their subjects, locking down communities, neighborhoods, and cities and imposing broad quarantine orders, often backed by the military.” By contrast, “[a] sanitationist state employs liberal policies designed to eliminate environments that breed disease.” Witt sees the United States as an amalgam of both approaches:

On the spectrum from authoritarian quarantinism to liberal sanitationism, the United States has often occupied two positions at once: one approach for those with political clout, and another for everyone else. America has always been a divided state with a mixed tradition. For middle-class white people and elites, public health policy typically reflected liberal sanitationist values. The law has protected property rights for the wealthy and attended to the civil liberties of the powerful. At the nation’s borders, however, and for the disadvantaged and for most people of color, the United States has more often been authoritarian and quarantinist. American law has regularly displayed a combination of neglect and contempt toward the health of the powerless. But that is not all. Epidemics make visible the ways in which even the ostensibly neutral and libertarian rules of American social life contain the compounded form of discriminations and inequities, both old and new. The most basic rules of American law—from the law of private property to the law of health insurance to the law of employment—structure the social experience of disease and infection.

John Witt, American Contagions, 11-12.

The French Laundry story epitomizes the sanitation/quarantine dichotomy. Yesterday, both Breed and Newsom took to twitter to admonish San Franciscans and Californians respectively to follow our new stay-at-home regime. The response from their constituents was everything you would expect–no one missed a chance to mock the duplicity, especially this business with its exceptional sense of sardonic humor–and I think it’s because Witt’s dichotomy strikes a chord of deep unfairness and inequality with everyone.

I confess that my ire at FrenchLaundryGate does not flow so much from the hypocrisy as from the ostentatiousness–there is something deeply offensive about luxuriating in excess when one’s constituents have no food and no roof over their heads. Certainly, the thought of more than twenty thousand people infected and 88 dead in state custody should have put our elected officials off their dinner. But beyond this, there’s an important point I want to make about prisons, contagion, permeability, and opportunity.

As I think I mentioned here, Chad Goerzen and I are working on a book about the COVID-19 prison catastrophe. Our analysis introduces a concept we call carceral permeability: the idea that prisons should be viewed, analyzed, studied, and managed with a deep understanding of their spatial embeddedness in the communities surrounding them. That prisons are permeable and their gates are porous should be obvious: various people (correctional officers, prison workers, volunteers, visitors, tourists), things (money, goods, factory raw material), and intangibles (tax money, critique) pass through the membrane on a daily basis. Some of these exchanges are rooted in the basic functions of prison as an institution and an economical unit; others vary based on transparency.

This, as we explain in the book, is obvious to carceral geographers, situational crime prevention criminologists, and epidemiologists, but not to politicians: Prisons are still governed and managed through a very literal (and very mistaken) understanding of Erving Goffman’s concept of the total institution. Politicians and the public–at least, not the parts of the public that come into contact with prisons through work or through loved ones inside–think about prison at the entry (police dramas) and exit (public safety risk) points, and at no time in between. This is precisely what underpins the philosophy of incapacitation, widely regarded since the 1980s as the most accessible goal of punishment: put people behind bars and they will not endanger the community. This perspective has led to prisons being praised by some as spaces that incapacitate dangerous people by keeping them away from “the outside” and critiqued by others as spaces that remove people from participation in civil society (temporarily or permanently, with severe racial and class disenfranchisement implications.)

The problem is that prisons don’t work like that. Every day, there’s an enormous amount of boundary crossing, dynamics, and mobility within prisons, between prisons, and between prisons and the surrounding communities. The potential for disease to freely enter and exit prisons was obvious long before germ theory was developed–disease transmission to the community worried John Howard in State of the Prisons, which was written in 1777.

How is this relevant to Witt’s thesis and the French Laundry brouhaha? Because it looks like policymakers’ understanding of transmissivity, pandemic management, and restrictions–sanitation versus quarantine–differs for people behind bars and for other people. This lack of imagination is not surprising given that prisons embody the epitome of quarantine. But it is, perhaps, surprising to learn, from Witt and from prison historians Ashley Rubin and Michael Meranze, that this was not always the case. In the late 18th century, Mississippi (like a number of other states) even made special provision for removing prisoners when disease broke out in jails.

Things seem to have changed around the time of the civil war, when prisons were in the process of deep transformation. Antebellum prisons included mostly white people. Gradually–partly as prisons supplanted slavery as the main regime of racial oppression–the approach toward contagion in prisons changed from sanitation to quarantine. Witt reports that, “[w]hen smallpox broke out in Washington, D.C., in 1862, the Medical Division of the Freedmen’s Bureau blamed freedpeople. Healthy and infected freedpeople alike were forced into crowded, unsanitary prisons and tented communities, where disease raced through the population.”

You know what this reminds me of? David Garland’s distinction, in The Culture of Control, between “criminologies of the self” and “criminologies of the other.” Mainstream criminology predominantly addresses ‘criminology of the other’, which considers criminals as intrinsically different from law-abiding citizens; it focuses on particular risk groups, such as immigrants, drug users or youths in deprived neighborhoods, which it presents as threats to the existing social order. The criminology of the other aims to produce theoretical, empirical and practical knowledge that will allow better control of risk groups or render them less harmful for the average citizen. In doing so, this criminology delivers expertise that further excludes and controls the poor and marginalized; it becomes a technology of social exclusion and thus significantly advances dualisation in society.

By contrast, ‘criminology of the self’ considers those who commit crime as normal people. The person who offends is one of us, someone who, because of circumstances, has ended up in a position that caused him to act illegally and to harm others. It could have happened to any citizen. The answer to the risk that any of “us” will commit crime is to manipulate the physical environment to create rational disincentives to commit crime.

Here’s where Garland and Witt meet: Sanitationism is an epidemiological response to “criminologies of the self.” We address people as rational, like ourselves, deserving of health as well as civil liberties, and we twist and turn to procure good will and buy in, reasoning with people as much as possible. Quarantinism, on the other hand, is an epidemiological response to “criminologies of the other.” We assume that people are irrational, dangerous, impossible to reason with, so we lock them up, contain them, and assume “we” (the outside community) are safer from “them” (the people behind bars) when we lock them up.

Everything we know about how prisons work, and how contagion works, explains why quarantinism is a losing strategy. I’ve been telling TV anchors and journalists for weeks now that we are far less endangered by a 60-year-old man with a chronic condition living quietly with his family in the community, as he is wont to do (people age out of crime in their 20s) than we are by the exact same man incubating a dangerous virus behind bars. Quarantinism is not only bad for epidemic containment: it’s produces other negative outcomes, too. It’s no coincidence that it’s so popular to refer to prisons themselves as “criminogenic.” Public health scholar Ernest Drucker wrote a whole book relying on this metaphor, but I bet most of the people who use it–for example, to suggest that prisons breed criminality–don’t even realize that they’re drawing an analogy between medical contagion and criminality.

So here we are now–applying quarantinism, the epidemiological equivalent of Garland’s “criminologies of the other” because of indifference to the plight of the people we “other” and because of our laziness in understanding that “they” are actually not at all separate from “us.” The question is: Can the public outrage about FrenchLaundryGate, which, when examined closely, is all about the hypocrisy of the sanitation/quarantine duality, will wake Gov. Newsom from the prison impermeability dream and help him and his staff wake up to the fact that “the carceral” is porous and that there is no “other”?

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

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

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

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

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

Ostensibly, these laws were meant to prevent tragedies like our sister’s murder from being repeated. Yet many of the people who ended up with life sentences under three-strikes laws were convicted of nonviolent crimes — things such as stealing a bicycle, attempting to forge a check, breaking a church window or using drugs. The laws produced a misguided sentencing system benefiting the prison industry, whose survival depends on large numbers of incarcerated people serving extended sentences.

People imprisoned under three-strikes and other mandatory sentencing laws are overwhelmingly Black and Latino, and they are also often mentally ill or homeless. Over the last 26 years, three-strikes laws have significantly contributed to mass incarceration in the United States and have exacerbated the systemic racism inherent in our justice system.

Up until now, we have been reluctant to insert ourselves into the conversation around criminal justiceout of respect fordiffering perspectives in our own extended family. Polly’s dad worked hard to see that stricter sentencing laws were passed after her death. We love and respect him, and it’s been painful to disagree about something that’s so personal for all of us.

But this is a pivotal moment in the history of our country. This summer, millions of brave Americans have taken to the streets to protest the racism and systemic injustices plaguing our country. Their courage has inspired us to speak out, to join the movement to transform our criminal justice system and build a better legacy for our sister.

As much as those who benefit from prisons want you to believe that mass incarceration makes us safer, the data tell a different story. Decades of research show that the harsh and violent prison environment is deeply damaging and sets people up to fail when they reenter society. On the other hand, rehabilitation — providing skills, services and treatment to incarcerated people — can drastically reduce recidivism rates. Legislators have mostly ignored this fact, claiming that tough-on-crime legislation is universally what crime victims want, but an Alliance for Justice survey found that victims of crime and their loved ones — like us — are twice as likely to favor rehabilitative programming and alternatives to incarceration. Clearly, incarcerating our way to safety doesn’t work.

Thankfully, three-strikes and other extreme sentencing laws have undergone some progressive reforms in the last decade to expand rehabilitation, but an initiative on California’s November ballot called Proposition 20 aims to reverse much of that progress. Proposition 20 is an attempt by the prison industry and its allies to yet again weaponize our fear to expand their profits and their prisons.

Like many other victim advocates, we believe that the resources spent on mass incarceration should be used to reinvest in underserved communities for prevention programs. By providing support, job training and rehabilitative services, we can prevent crime at the local level, help formerly incarcerated people successfully reintegrate into society and make our communities safer.

Proposition 20 would move criminal justice in California backwards. As Polly’s sisters, we strongly support systemic interventions that actually work to lift up our communities and keep people safe.

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

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

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