Ye Olde Ethical Guide to Vaccination

You guys, I got my first shot on Wednesday! That’s me in the picture with the fabulous pharmacist at the San Jose Walgreens who administered it. I can’t tell you how delighted I am to have gotten it. Hustling for an appointment was a tiresome project, and eventually I decided to trade distance for tenacity and drove out of town. Many places in the Bay Area vaccinate anyone who is lawfully entitled to be vaccinated in their county of residence, and thankfully educators are eligible in San Francisco, which means that, as of March 24, I’ll begin to hold office hours in person (in the open air, masked and distanced.) Hooray!

All around me, lots of questions and conundrums about how individuals fit in the vaccine equity struggle are floating about. Answers about ethics will differ from place to place and person to person. I’m no more an authority on ethics than Laura Schlessinger is on psychology, and Goodness knows the last thing we all need is more schoolmarmishness in our midst. However, in the off-chance you’re interested, my guiding principle in world improvement comes from Peter Singer’s effective altruism, as articulated in his excellent books The Life You Can Save and The Most Good You Can Do. I’m attracted to this philosophy because it makes an enormous amount of sense, and because it reinforces effectiveness over showmanship (as in: unless you have some special skills/qualifications, rather than personally flying out to eradicate malaria, keep your finance job and pay for *two* volunteers to eradicate malaria; if you want more diversity in law school, rather than organizing reeducation camps where privileged people publicly moan and grovel about their privilege, raise funds for scholarships for students from disadvantaged communities.)

I think the ethics of optimal philanthropy translate very well to the vaccine arena, where effective altruism must follow two important principles:

  • Vaccination efforts are, by nature, not a zero-sum game (every person who gets vaxxed, even if it’s not us, benefits us because our odds of getting sick go down); and
  • In a collective effort of this magnitude, there’s an important difference between individual actions and vaccine fairness in the aggregate.

From these two principles, flow the following four rules of thumb:

1. Is it your turn, according to the state/local protocols that govern eligibility wherever you are? TAKE IT. Is it lawful but you need to hustle for it (like click/refreshing aggressively for days or driving a bit farther)? HUSTLE AND TAKE IT. Your shyness/modesty/performative self sacrifice, as in “Others need it more than I do! Save Thyselves!” will not necessarily translate to any positive change in the world, as you have no control over who will get the vaccine in your stead. Your getting vaxxed benefits everyone around you.

1.1. First Corollary: If you think the rules where you live are inequitable, your one-person’s-quest to support a regime that you personally invented and think is equitable by opting out of the game does no one any favors (see above, individual vs. aggregate.)

1.2 Second corollary: Is there a population, group, or community who is being shortchanged by your local government’s plan? Take it when it’s your turn and ADVOCATE for the people who you think DESERVE priority (county jails! county jails! county jails!) Write letters to the editor, call your elected officials, organize a vaccine advocacy group on behalf of that community.

1.3. Third Corollary: Did you take it when it was your turn? LOUDLY ADVERTISE THAT YOU ARE VAXXED and encourage others to do the same when it’s their turn, which helps the collective effort more than your sacrificial protestations.

2. If it’s not your turn, DON’T JUMP THE LINE by engaging in deception (rule of thumb: If you’d be ashamed to admit on social media how you came to get the vaccine, don’t get it.)

3. The only exception to (2) is when you are being authoritatively encouraged to take it to prevent waste. The vaccine is precious and expensive; unrefrigerated Pfizer shots going into your arm are better than unrefrigerated Pfizer shots going in the trash. If outreach into a particular community is unsuccessful, and the word is out to show up at the end of the day to get the leftover doses in your arms (happens a lot in Israel) you are not taking shots away from the community in question; you are saving them from oblivion. By getting vaxxed yourself and publicizing it you are indirectly benefiting everyone, including the community in question.

4. Has someone in your immediate surroundings engaged in deception to obtain their shot out of turn? First, ask yourself whether there might be something you’re not privy to: you don’t know every person’s medical history, preexisting conditions and risks. Assuming you know there’s been ugly behavior, consider the difference between individual behavior and aggregate effects: even their unethical behavior indirectly benefits you and everyone else, and you are in no position to assess whether that benefit exceeds the cost of their deceit. You can stay friends with them, or not, but don’t let resentment about this live rent-free in your head.

Onward! Let’s all get vaxxed and start putting this nightmare behind us.

The Empathy at the End of Diversity

Yesterday, Heather Knight reported about the latest absurdity perpetrated by the San Francisco Unified School District board:

A gay dad volunteers for one of eight open slots on a parent committee that advises the school board. All of the 10 current members are straight moms. Three are white. Three are Latina. Two are Black. One is Tongan. They all want the dad to join them.

The seven school board members talk for two hours about whether the dad brings enough diversity. Yes, he’d be the only man. And the only LGBTQ representative. But he’d be the fourth white person in a district where 15% of students are white.

The gay dad never utters a single word. The board members do not ask the dad a single question before declining to approve him for the committee. They say they’ll consider allowing him to volunteer if he comes back with a slate of more diverse candidates, ideally including an Arab parent, a Native American parent, a Vietnamese parent and a Chinese parent who doesn’t speak English.

This display of idiocy–complete with two hours of discussing Seth Brenzel’s “lack of diversity” while he sits before them in complete silence–is just the latest antic in the Board’s record of breathtaking performative incompetence, one of the previous episodes of which was the ridiculous quest to rename 44 of San Francisco’s closed schools based on their semiliterate understanding of history through Wikipedia.

Much has been said about these people’s incompetence and recurrence to woke theater in lieu of (what a wacky suggestion) actually helping the district’s children by charting the reopening of schools, but one particular point has caught my eye. The sole commissioner to defend Brenzel–Commissioner Jenny Lam–chose to do so by arguing that, as a gay man, he does bring diversity to the Board:

By denying him the position, we are failing SFUSD’s core values— the promise to value diversity, and to build inclusive school environments for our students and families.  Parents and families deserve utmost respect and dignity.  We also know the challenges faced by LGBTQ students in our schools from bullying to lack of school connectedness and sense of belonging.  

For decades, the LGBTQ community has fought hard for the right to be recognized as parents. As a board we missed an opportunity to reaffirm the humanity of one of our dads.  Seth deserves a fair opportunity— I will work to advance his appointment.

While it is critical to have diversity we must not pit communities against one another. We often say we must remain vigilant fighting against discrimination and hate. I will continue that commitment.

It seems like the only rhetorical currency available to San Francisco officials and pundits is diversity; Brenzel’s defense, as well as his humiliation, uses the same linguistic tropes. Indulge me, then, in a little thought experiment: let’s assume, just for a moment, that the Board had declined the application of a <gasp!> cis straight white man for lack of diversity. And let’s also remember, for a brief moment, that this coveted position is volunteer work on behalf of children. It does not grant anyone monetary benefits, fame, or status; all it means is a burden on a parent’s already-scarce free time amidst a pandemic.

Now, think: How often do you see fathers–any fathers–volunteer for educational leadership? How much have you seen fathers (as opposed to mothers) losing productivity to the pandemic? How many men in your immediate surroundings have made the choice (or accepted the lack of choice) to leave their jobs and tend to their children’s needs and education while their wives kept their positions? Can you think why, in order to appeal to people, a humongous effort needs to be put into imbuing school volunteering with any sort of status, and whether this might possibly relate somehow to the fact that parent volunteers tend to be women? Against this backdrop, wouldn’t it be a positive–even, perhaps, progressive–move to say to a man, any man, of any sexuality, ethnicity, or nationality, applying for one of multiple vacant volunteer positions advancing the wellbeing of the community’s children: “Welcome! When can you start?”

Here was an opportunity to understand that a motivated, good-willed person, does not give of his free time to the community to abuse and belittle other people’s children. Here was an opportunity to drive home the crucially important message that we advance as a community when all our kids advance, and that all parents, of all colors and sexualities, should be invested in the advancement of all children, of all colors and sexualities. Instead, judging from the furious comments of the scores of parents of all colors who responded to the decision, what happened here was exactly what happens when people receive mandatory diversity training: resentment, derision, disengagement. When has bullying, humiliating, and excoriating people who want to help ever worked as effective motivation to continue “doing the work,” so to speak? What, exactly, was the goal here, and how was it accomplished?

I don’t think our diversity aspirations should be more modest. Au contraire, I think they should be bolder. So bold, in fact, that diversity itself should not be a goal. Treating it as such is shortsighted. Diversity is a path that takes us toward a brighter future–one in which everyone can enjoy self-fulfillment and thrive. This takes the understanding of two entwined but distinct truths, which have come to obscure each other in our shrill, shallow narratives: the one progressives get–that people of different backgrounds experience the world in unique and unequal ways because of their identities–and the one they don’t get, namely, that empathy is a human superpower that transcends differences because, at the ember of lived experiences, we all know what it’s like to be disregarded, lonely, misunderstood, dehumanized. A quest for diversity is worthy and important when it advances the cause of empathy, and a caricature of performative wokeness when it stands in the way of empathy, which is what happened here.

Hooked on Trump: Impeachment, Extremism, and Addiction to Drama

This morning, House Managers are presenting the prosecution’s case at the second impeachment trial of Donald Trump. Much has been said, and will be said today, about the legal strategy they have adopted: laying out a broad narrative of Trump’s elaborate scheme to persuade wide swaths of the American public of his baseless claim that (1) the election was stolen, (2) something must be done to “stop the steal,” and (3) the way to do so is to “fight like hell.” This narrative is designed to address the predicted defense strategy, which will try to undermine the causal link between Trump’s January 6th comments and the pre-planned actions of his supporters.

The prosecution’s case uses videos and screen captures of tweets, complete with a trigger warning for violence and language. I’ve been taken aback by the visceral reaction I’m having to the evidence, and a quick check-in with friends and colleagues reveals that many people feel this way this morning.

The visceral pain is especially acute whenever Trump himself is depicted. His voice is difficult to hear and reading his tweets onscreen is generating somatic upheaval. The distress I am feeling whenever I am exposed to his image or utterances is palpable.

One mindfulness technique especially useful for working with difficult emotions is R.A.I.N. This technique requires recognizing the difficult emotion, allowing it to exist (accepting that it is there, rather than pretending that all is well), gently investigating its quality, and then nourishing oneself with self compassion. Having recognized the visceral pain I feel, I move on to accept that my reality today includes and encompasses this pain. This has important implications for how my day will unfold, as I resolve not to ignore these feelings, but rather to allow myself to sit with them.

When I turn to investigate my emotion, I realize how much it resembles, in quality, the sense of being in the throes of a powerful addiction. Not because we enjoyed our Trump exposure, but because our panic, dread, and horror at the wickedness, corruption, and cruelty that he wrought on a daily basis made us uniquely attuned to his moods. For four years, our circadian rhythms revolved around his whims, tweets, and outrages; we were blown to and fro by the winds of his capricious hires and firings; we woke up with a jolt every morning, steeling ourselves to act, protest, comment, explain, and arrange our lives in a way that protected us and our loved ones as best we could.

In short, we were hooked on Trump.

Thinking about the way in which even those of us who raged and fought against Trump were addicted to the dramatic media cycle he generated goes a long way toward explaining why so many people are not yet feeling the relief they expected to feel after his exit from the scene. Consider what happens when a powerful stimulant/intoxicant is removed from your system. Initially, one experiences deep withdrawal. The sensation of high alert and the compulsion to be attuned to the presence of the powerful substance are hard to shake, and like collective survivors of profound abuse, we are still easily jolted, looking behind our shoulder with suspicion to see if our tormentor will reemerge.

Listen to your sensations, to your fight-or-flight instinct still potent within you. They are telling you that you have been deeply wounded, repeatedly, daily, for years, and that the healing the election brought was superficial. It will take years–maybe decades–to process and heal the trauma.

Also, observe the light your own feelings are shedding on the sensations and motivations of the insurrectionists. They were on the opposite side to yours. If you were yanked by Trump’s chain hour after hour for four years, imagine this powerful sensation of addiction magnified among his lackeys and supporters. Imagine the powerful withdrawal sensations, palpable and plainly on display in the videos depicting their rage during the attack. Imagine what the Twitter deprivation, living without him constantly feeding their life force, is doing to their insides on a daily basis. Consider how much longer the social media ban on him must continue to wean people from such a powerful drug. And consider how this visceral, somatic deprivation played into the insurrection itself. Consider what the way you embody this withdrawal and trauma today teaches you about the sensed reality of the angry, violent people you saw on video. Consider also how this trauma is experienced today by the people whom whose presidency hurt the most.

Now, introduce self compassion into your examination. It is understandable that you feel this way. You and everything that is dear to you has been abused, and your whole reality revolved around protection from the abuse, for a long time. You can tell yourself, “it’s okay; he’s gone.” You can consider whether a cup of tea or a walk might help. You can commit to checking in with other people who may feel this way today.

Take good care of yourselves today. This will take decades to process, but accepting your feelings as they are is an important step.

“Club Fed” and Other Imaginary Destinations

We’ve just finished the second day of the fantastic workshop at Groningen about the spectacle of bringing aging and frail defendants to trial and I’ve found the papers fascinating and generative–especially because they involve case studies from a variety of countries. One of the today’s themes involved the idea of public dissatisfaction with prison conditions perceived to be “too lenient.” It turns out that disgruntlement about people in prison not suffering enough is not a uniquely U.S. phenomenon.

Actual prison conditions, of course, vary widely, not only between countries but within each country. We are often exposed to concerns that prison might be too cushy in the context of people who committed heinous crimes (like the coverage of Norwegian mass murderer Breivik granted permission to receive visitors) or people accustomed to high standards of living (like the debate whether Bernie Madoff will end up in a “Club Fed” facility.) Periodically, I see mainstream news items in the U.S. about Scandinavian prisons, usually comparing them favorably to the U.S. ones; to learn more about those, read this terrific piece by my colleagues Keramet Reiter, Lori Sexton and Jennifer Sumner, or learn of AMEND’s partnership with Norway. Lately I saw some of this play out in social media, with people incorrectly stating that incarcerated people are more protected of COVID infection and death.

The things that tend to provoke uproar often strike me as strange (is it unconscionable for a prison to have pottery classes? A drama club? A gym? A tennis court? A swimming pool?), because I often wonder what people who have never seen a prison from the inside expect incarcerated people to actually do inside all day long for decades. When we talk of truly heinous crimes, any effort to calibrate the punishment to the crime is obviously futile–so what does this even mean?

At least in the U.S., what worries me is that riling against conditions in prison reflects a true poverty of the imagination and a regrettable fear of one’s government. If you find yourself angry that other people “get” free healthcare (should you mistakenly assume that what passes for healthcare in prison actually counts as healthcare), ask yourself: why are you not far more angry at the fact that your government does not provide you with free healthcare? If opportunities for self-improvement, meager as they may be, behind bars upset you, why are you not far more insistent on such opportunities being offered to everyone on the outside, through a much better educational system staffed by much better paid teachers?

Transfers Into CDCR Facilities in October/November Correlate with Spike in Cases

I’ve just finished listening to the California Assembly hearing, which in part discussed the OIG report about the botched transfer to San Quentin. Most of the attention focused on this part, as CCHCS Receiver Clark Kelso (depicted above) blamed San Quentin officials for their part in causing the outbreak (seeing Quentin and CCHCS blame each other is like watching an elegant train wreck.) No satisfying response was given to the question how we can prevent such situations in the future–or at least not ostensibly, unless one listened very carefully to the beginning of the hearing.

In the first part of the hearing, CDCR Secretary Kathleen Allison discussed budgetary aspects of CDCR management in the coming year–particularly the impending closure/transformation of at least two prisons: CCWF and DVI. She also commented on population fluctuations, focusing on population reduction (“lowest levels in 30 years”) and on the bottleneck at the jails.

Because some alert activists noted a recent rise in population at Wasco, we decided to check whether there was a bigger trend here. Chad Goerzen ran the numbers, and what we found may suggest that the mistakes that were made at Quentin are still being made–resulting in increased infections.

First, it wasn’t just Wasco. The graph below shows the change in net CDCR population in the last six months or so. As you can see, between mid-October and late November, CDCR population actually increased.

Between October 4 and November 29, 13 prisons showed a net population increase:

SAC (+3)
CAL (+89)
CEN (+22)
CCWF (+63)
HDSP (+2)
KVSP (+139)
MCSP (+126)
NKSP (+187)
RJD (+41)
SVSP (+63)
SCC (+64)
VSP (+22)
WSP (+749)

Now, recall the serious outbreaks that characterized the fall and winter at CDCR. Without contact tracing, of course, we can’t show that these transfers caused the outbreaks. But here’s what we can tell. The green dots mark the period during which the prison population overall increased:

Now, a granular analysis of outbreaks for individual institutions. By December 7, 2020, the following prisons had major outbreaks of more than 50:

CCI (92)
LAC (795)
SAC (115) 
CAC (367)
CAL (154) 
CEN (419)
CTF (799)
HDSP (722)
ISP (120)
KVSP (505)
MCSP (733)
NKSP (208)
PBSP (51)
PVSP (1213)
RJD (400)
SVSP (83)
SCC (248)
SATF (593)
VSP (368) 
WSP (336) 

The prisons in bold are the ones that had increases in population. In total, 12 of the 13 prisons with population increases suffered major outbreaks by 12/07/20. Furthermore, these make up 12 of the 20 major outbreaks within CDCR at that time. The only prison that did not evince a new outbreak after a population increase was CCWF, which was just at the tail end of a major outbreak at the time (and possibly experiencing some form of herd immunity.)

Where did the new population come from? We don’t know. What we do know is what Sheriff Growdon of Lassen County said at the CCC conference last Friday: that the population bottleneck at the jails due to the transfer stoppages has caused outbreaks at the jails; that it is incredibly difficult to recruit qualified medical staff in jails located in rural areas; and that educating guards about masking, testing, and vaccinating has been an uphill battle, to the point that he was considering rewarding them financially for COVID compliance. Could an accumulation of these local problems at the county level account for the population rise in the fall and, subsequently, for the outbreaks? We cannot prove this beyond doubt, but we can raise concerns.

Aging, Trials, Accountability, and Justice – International and Domestic

I’ve just attended the first day of a terrific workshop on the aesthetics and visualities of prosecuting aging and frail defendants. The papers are fascinating and take on not only multiple sites of international criminal trials, but also philosophical positions about the value and drawbacks of putting very old people on trial for very serious crimes. Coming to the workshop with what seems to be the only paper on domestic (albeit internationally renown) criminal justice, I found the similarities and differences very thought-provoking.

For one thing, there is a robust body of literature on the complicated jurisdictional, institutional, and thematic distinction between “international” and “domestic” criminal justice (for just one example, here’s an excellent paper in which Shirin Sinnar complicates the international/domestic distinction for terrorism.) What counts as a “mass atrocity” is also complicated to define. The subjects of my paper–the Manson Family members, whom I wrote about in Yesterday’s Monsters–are not that easily distinguishable from some of the perpetrators of international atrocities tried in international courts. The heinousness and notoriety of the crimes in both places is a factor (the Manson murders were internationally infamous) and the setting for the crimes was not dissimilar: young people during turbulent times committing heinous crimes with mob mentality at the behest/out of fear of charismatic and threatening leadership.

Because of these similarities, I was struck by how much my experience studying aging in the CA prison system has placed my opinions outside the cultural norm of international legal scholarship. The first thing that surprised me was the notion that aging and/or frailty do not matter in the context of criminal dangerousness, which stands in opposition to the robust field of life course criminology, which consistently finds that people age out of crime. I obviously don’t reject the idea that aging, frail people can give orders to do horrible things (we’ve just had four years with just such a person at the helm) but I wonder whether, as to people actually committing the atrocities with their bodies, we should reject life course criminology outright as it applies to defendants before international courts (that these people may continue to uphold racist ideologies in old age is deplorable, but uncoupled from the ability to act upon these ideologies it’s less worrisome unless they’re in some sort of power position.)

Another theme that emerged was the question whether “justice delayed”–because the person was apprehended decades after the fact–necessarily decreased the quality of justice. One of the arguments made was that time has led to a reevaluation of some atrocities (e.g., rape was not seen as a genocide strategy for a long time.) I appreciate the logic but am not sure that, in every single instance, the passage of time is going to bring about more justice, or that our current perceptions of justice are universally better than the ones in times past. Nor do I think it’s fair in 100% of cases to impose our current standards of behavior on people who operated in a different contextual realm (I think it goes without saying that, in the rape example, this is valid–but am not sure that subjecting people who committed crimes in the 1970s to the kind of sentencing that became popular in the 1980s and 1990s is fair.) I also have to wonder why the question of innocence/mistaken identity is absent from the conversation.

Some assumptions were made about defendants in these trials–namely, that they were “posers” and that their frailty was a charade. That may be true for some people–a few examples pop to mind–but my experience studying aging in prisons has taught me that these are the exceptions, rather than the rule.

Finally, there was the idea that treating aging people with leniency was ageist and robbed them of their dignity, which is philosophically interesting; generally speaking, placating people rather than engaging them in debate is infantilizing them. But that assumes that the way accountability and punishment is meted is, indeed, an expression of dignity, and I that is the last word I would use to describe the experience of incarceration in the United States.

Given that I don’t really buy a hard-and-fast distinction between international and domestic criminality in these respects, I had to think long and hard about why my feelings on aging on parole (particularly, Susan Atkins’ 2009 hearing and the reluctance to release aging people now because of COVID) differed so much from those expressed in the international scholarship, and I realized that there was one pertinent difference: for the most part, the international conversation revolved around the international law equivalents of Joseph DeAngelo, the Golden State Killer, who evaded justice for decades, and whose spectacle of aging is their first encounter with the criminal justice apparatus. The people I studied had been embodying the experience of being subjected to justice for decades.

This is important, because the embodiment of justice matters. It’s not just about how much time has passed; it’s about how it passed. By contrast to corporeality (the relatively unmediated materiality of the body,) by embodiment I refer to the body as a vehicle or medium of social agency (e.g., as related to spaces and contexts that surround it, specifically the carceral space.) When a person’s body is on display at a parole hearing, the body itself is a meaningful social fact in five ways:

  • An aging body is a nonverbal reminder of time that has passed since the offense was committed–more specifically, the contrast between the youthful, violent body at the time of the offense and the aging body present in the room.
  • Moreover, an aging body evinces the impact of decades of prison life on the body (the embodied evidence of the action of “justice”)
  • Because, as I explain at length in Yesterday’s Monsters, performance is a key factor on parole, the body is also a physical container for expressions of insight/remorse (this is why a commissioner telling a large black parole applicant “you seem angry” is a response to embodiment.)
  • Because parole is, at least in part, a site of prediction of the parole applicant’s prospective future on the outside, the body is also a site of prediction of work prospects, healthcare needs, etc.
  • Finally, the very presence of the parole applicant’s body is often explicitly contrasted to the absence of the victim’s body–particularly by the prosecutor and the victim’s next-of-kin.

The impact of this embodiment–a body evincing a life under carceral authority, as opposed to a body allowed to age freely on the outside–cannot be overstated, and can go a long way toward explaining why I saw things differently at today’s workshop. To the workshop participants’ great credit, they could see the important difference between the trial’s role of accountability and social processing and the question of subsequent punishment for someone old and frail.

Federal District Court Orders Vaccination of Entire Oregon Prison Population Population: Plata Court Must Do the Same Immediately

This afternoon, Dr. Peter Chin-Hong of UCSF and I participated in an event hosted by Eastern State Penitentiary, as part of their Searchlight series, on vaccinating incarcerated populations. Here is the full conversation:

A couple of hours after we finished the show, we got word of a fantastic development: federal litigation on behalf of incarcerated people in Oregon ended in a big human rights victory. Magistrate Judge Beckerman just ordered the Oregon Department of Corrections (ODOC) to vaccinate all state’s prisoners–12,900 people–as if they should have been vaccinated last month; in other words, to place all of them in 1A2 tier. The hearing ended with Judge Beckerman memorializing the 41 lives lost in Oregon’s prisons during this pandemic. Read the opinion in full here. A few highlights that are crucially relevant to the California scenario:

Our constitutional rights are not suspended during a crisis. On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless. Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody.

The Eighth Amendment imposes an obligation on Defendants to protect the people in their custody because they cannot protect themselves. . . Courts have also long recognized that prison officials have an Eighth Amendment duty to protect inmates from exposure to communicable diseases.

Plaintiffs’ recent evidence demonstrates that individuals in ODOC custody continue to lack the means to protect themselves from exposure to COVID-19 and, in some cases, risk being disciplined in attempting to do so.

Defendants argue that “it is reasonable and important to vaccinate correctional workers before AICs because they are a primary source of infection.” Defendants contend that, due to limited vaccine supplies, Oregon has reasonably determined that the most effective means for slowing transmission is first to administer the vaccine to ODOC staff and contractors.

The Court is not persuaded. First, Defendants’ argument is belied by their own Vaccination Plan. Defendants Allen and Governor Brown have included in Phase 1A individuals living in (1) “Residential care facilities”; (2) “Adult foster care”; (3) “Group homes for people with intellectual and developmental disabilities”; and (4) “Other similar congregate care sites.” This is evidence that Defendants are aware of the high risk of COVID-19 exposure and infection to individuals both working and living in a congregate setting, and aware of the importance of vaccinating both populations to protect against infection. AICs also live in a congregate care setting, yet they have been excluded from Phase 1A. Indeed, ODOC initially assumed that AICs must be included at this priority level “because ODOC has previously been classified as a congregate care setting by OHA[,]” which is why ODOC mistakenly began vaccinating AICs. In light of this recognition of the risks to those living in a congregate care environment, and the risk of those working in a correctional setting, the exclusion of AICs from Phase 1A supports a finding of deliberate indifference on the part of Defendants.

Additionally, while Defendants are aware that ODOC staff and contractors are the primary source of transmission of COVID-19 within ODOC facilities, they are also aware that only an estimated fifty-five percent of ODOC staff and contractors will elect vaccination. As of January 29, 2021, ODOC had administered 1,500 doses to eligible staff and contractors, for a vaccination rate of approximately thirty-four percent. Thus, even assuming that vaccinated correctional officers cannot spread the virus to AICs (an assumption public health experts have not yet endorsed), vaccinating only one out of every two or three correctional staff is inadequate to stop the spread of COVID-19 in the prisons. Simply put, Defendants are well aware of the risks of serious harm to both correctional staff and AICs and have chosen to protect only the staff.

The Court finds that Plaintiffs have demonstrated a substantial likelihood of success on the merits of its Eighth Amendment claim as applied to the Vaccine Class. The Court therefore enters the following preliminary injunction: Defendants shall offer all AICs housed in ODOC facilities, who have not been offered a COVID-19 vaccine, a COVID-19 vaccine as if they had been included in Phase 1A, Group 2, of Oregon’s Vaccination Plan.

Maney et al. v. Brown (2020)

I hardly need to tell regular readers of this blog that all of this applies, to the letter, to the situation in California. Here, too, the waffling about vaccinating incarcerated populations, and the policy of offering vaccines to the staff has backfired. As I explained elsewhere, the staff is the problem. Incarcerated people are complying at impressive rates, whereas staff’s compliance rates have been dire.

According to information I received from the Prison Law Office, as of of January 25, 2021, 8,349 incarcerated persons have been offered the vaccine. Approximately 84% of those patients accepted the first dose of the vaccine and approximately 99% accepted the second dose. Of those offered, COVID-19 naïve patients aged 65 or older accepted dose 1 of the vaccine at a rate of over 90% and dose 2 at a rate of over 99%; COVID-19 naïve patients with a COVID-19 weighted risk score of 6 or higher accepted dose 1 of the vaccine at a rate of over 90% and dose 2 at a rate of over 99%; and COVID-19 naïve patients with a COVID-19 weighted risk score of 3 or higher accepted dose 1 of the vaccine at a rate of approximately 86% and dose 2 at a rate of over 99%. 

Here’s the scenario, staff-wise: As of January 25, 22,068 CDCR and CCHCS employees (or approximately 35% of employees) have been given the first dose of the COVID-19 vaccine. Of these, 2,289 staff have received both doses of the COVID-19 vaccine.  Approximately 20% have had the disease. The reason for this reluctance, as well as the reluctance to wear masks, get tested, etc., has been the subject of much consternation at the Plata conferences, but beyond praising CCPOA’s counsel for showing up and making a video, little has been done to demystify this situation and provide a solution. For what it’s worth, today I learned from Dr. Chin-Hong that they are finding low compliance among nursing home staff as well, which is distressing.

We also have reports of vaccination at the federal prisons at Terminal Island and Lompoc, where about 20% of incarcerated people have been vaccinated, and several county jail systems where vaccination programs have been rolled out – San Francisco and Contra Costa in particular. Other jail systems are lagging behind.

In other words, the importance of vaccinating incarcerated people rises because of the low rates of cooperation from staff. The Oregon arguments are valid here, too. The Plata court must follow suit with a universal vaccination order, before more lives are lost.

OIG Releases Scathing Report of CDCR’s Botched Transfer from CIM to Quentin, Corcoran

In the heels of its two previous reports (see 1 and 2), and just in time for Round 2 of litigation in In re Von Staich (to assess whether an evidentiary hearing is required to modify the original order) comes the much-anticipated Part 3 of the Office of the Inspector General’s review of CDCR’s (mis)handling of the COVID-19 disaster. The report, which you can read in full here or peruse the fact sheet, is a scathing narrative of how CDCR botched the transfer from CIM in Chino to San Quentin and Corcoran prisons, bringing about the worst prison medical disaster in the United States. The report does not mince words: It is titled California Correctional Health Care Services and the California Department of Corrections and Rehabilitation Caused a Public Health Disaster at San Quentin State Prison When They Transferred Medically Vulnerable Incarcerated Persons From the California Institution for Men Without Taking Proper Safeguards.

The executive summary reads as follows:

Our review found that the efforts by CCHCS and the department to prepare for and execute the transfers were deeply flawed and risked the health and lives of thousands of incarcerated persons and staff. Insistence by CCHCS and the department to execute the transfers and subsequent pressure to meet a tight deadline resulted in the California Institution for Men ignoring concerns from health care staff and transferring the medically vulnerable incarcerated persons, even though the vast majority had not been recently tested for COVID-19. With outdated test results, the prison had no way to know whether any of the incarcerated persons were currently infected with the virus. According to email conversations that we reviewed, a California Institution for Men health care executive explicitly ordered that the incarcerated persons not be retested the day before the transfers began, and multiple CCHCS and departmental executives were aware of the outdated nature of the tests before the transfers occurred.

In addition to the department transferring the medically vulnerable incarcerated persons despite outdated tests, prison health care staff conducted verbal and temperature screenings on multiple transferring incarcerated persons too early to determine whether they had symptoms of COVID-19 when they boarded the buses. As a result, some of the incarcerated persons may have been experiencing symptoms consistent with COVID-19 when they left the prison. The risk of placing some symptomatic incarcerated persons on the buses was exacerbated by another inexplicable decision approved by CCHCS executives to increase the number of incarcerated persons on some of the buses, thus decreasing the physical distance between them, and increasing the risk that the virus could spread among the incarcerated persons and staff on the buses.

Once the incarcerated persons arrived at San Quentin, nursing staff immediately noted that two of the incarcerated persons arrived with symptoms consistent with COVID-19. Nonetheless, the prison housed almost all of the incarcerated persons who arrived from the California Institution for Men in a housing unit without solid doors, allowing air to flow in and out of the cells. By the time the prison tested the incarcerated persons for COVID-19, many of those who tested positive had been housed in the unit for at least six days. The virus then spread quickly through the housing unit and to multiple areas throughout the prison. The prison’s inability to properly quarantine and isolate incarcerated persons exposed to or infected with COVID-19, along with its practice of allowing staff to work throughout the prison during shifts or on different days, likely caused the virus to spread to multiple areas of the prison. According to data the department provided to support its COVID-19 population tracker, by the end of August 2020, 2,237 incarcerated persons and 277 staff members became infected with the virus. In addition, 28 incarcerated persons and one staff member died as a result of complications from COVID-19. In contrast, Corcoran, likely because it is a much newer prison consisting mostly of cells with solid doors, experienced a much smaller outbreak. An animated graphic displaying the progression of the COVID-19 outbreaks coursing through the various housing units at San Quentin and Corcoran after the transfers had been effected can be viewed on our website at www.oig.ca.gov.

Our review also found that when staff became aware of the positive test results shortly after the incarcerated persons arrived, both prisons failed to properly conduct contact tracing investigations. According to San Quentin, there were too many positive cases over a short period of time to conduct contact tracing. In addition, Corcoran staff failed to identify any contacts other than those living in cells adjacent to those of the incarcerated persons who tested positive. By failing to thoroughly conduct contact tracing, the prisons may have failed to alert some close contacts of the infected individuals, increasing the risk of further spread of the virus.

The report determined that the COVID-19 tests for almost all of the 122 men who were transferred to San Quentin were more than two weeks old by the time of transfer:

The report reproduces emails of directors and administrators within CCHCS who explicitly denied the staff’s requests to test the men before the transfer:

One nurse administrator documented the fact that two people on the bus were already symptomatic but were ordered to go on the bus anyway:

Symptom-checking was conducted too soon to be useful:

After a devastating section recounting how CCHCS administrators opted to transfer people in the bus without social distancing because “the benefit of a more rapid move in this specific situation appears to outweigh the risks” (p. 39), the report covers ground we already know–the failure at Quentin to properly isolate the newcomers. The report does not go into the interaction between the Marin county officials and the prison officials, which make the picture even bleaker. It also explains why a similar calamity did not occur at Corcoran: “Compared with San Quentin, Corcoran is a modern prison with a design better suited for quarantining and isolating incarcerated persons. Because the prison’s housing predominantly consists of cells with solid doors, Corcoran was able to place all arriving incarcerated persons in cells with solid doors. Doing so likely significantly reduced the spread of the virus at the prison, as only two of the 67 incarcerated persons who transferred from the California Institution for Men contracted the virus after the transfer” (p. 42.) Against this backdrop, the location chosen to house the newcomers seems even more disturbing–the report includes images of mesh doors in the South Block unit, also known as the Badger unit.

One aspect of the report that seems especially important is the repeated reference to the fact that the prison authorities were aware of the risks they were taking. The email chains reproduced in the report are truly damning in terms of their evidentiary power. This matters because prevailing in a lawsuit about prison conditions requires not only negligence, but a higher standard known as “deliberate indifference.” This requires proving that authorities were aware of the risk they were creating and decided to act anyway. Seeing how this awareness permeated all levels of command within CDCR/CCHCS offers proof of deliberate indifference, and it is hard to think, given the actions of the prison once the newcomers were there, that they could show anything in mitigation.

Obviously, this has crucial legal ramifications for Von Staich, Ruiz, Hall, and beyond, so CDCR/CCHCS have issued a joint statement, according to which they “disagree with the information” in the report. This is nonsensical. One can disagree with an opinion, but to “disagree” with information? The information is either true or not true, and in this case it’s rather obvious it’s true, as the emails are screenshot and reproduced verbatim in the report. We know what happened, we have obvious, factual truth that they knew and chose to disregard the risk, and no milquetoast “disagreement” is going to change that.