BREAKING NEWS: Ninth Circuit Stays Vaccine Mandate

Unbelievable and unconscionable. NBC News report:

A federal appeals court on Friday temporarily blocked an order that all California prison workers must be vaccinated against the coronavirus or have a religious or medical exemption.

A panel of the 9th U.S. Circuit Court of Appeals granted a request for a stay of September’s lower court order pending an appeal. It also sped up the hearing process by setting a Dec. 13 deadline for opening briefs.

The vaccination mandate was supposed to have taken effect by Jan. 12 but the appellate court stay blocks enforcement until sometime in March, when the appeal hearing will be scheduled.

It is absurd to deny that a horrifying and preventable catastrophe has played out in California prisons. So far, more than 50,000 people—more than half the state’s prison population – has contracted COVID-19, and 242 people have died. The California Inspector General’s reports, as well as federal and state court findings, reveal a picture of shocking indifference, shortsightedness, and neglect in the California Department of Corrections and Rehabilitation’s (CDCR) handling of the pandemic—complete with irresponsible transfers, an overwhelm of the prison healthcare system, low testing rates, a rumor mill of fearmongering and disinformation, and unreliable data collection.

For a year and a half, advocates for incarcerated people fought in federal court to obtain relief. The lawsuit began as a plea to reduce prison population, which for much of the pandemic hovered around 100% of design capacity. But with the advent of vaccination, and after an uphill battle to ensure that prisoners, like other people living in congregate settings, receive it, the lawsuit’s focus became much more modest: a mandate that correctional staff (the main transmitters of the pathogen) become vaccinated. Despite concerns that prisoners, who have lost all faith in CDCR, would be suspicious of the vaccine, advocacy groups comprised of physicians, family members, and recently released people, succeeded in providing accurate and trustworthy medical information, resulting in high vaccine acceptance rates among the prison population. The picture is completely different regarding prison staff. Throughout the pandemic, correctional officers told incarcerated people that COVID-19 is a hoax and that the vaccine would kill them; neglected to wear PPE in enclosed spaces and mocked prisoners for doing so; ordered prisoners to clean cells of infected people; fed prisoners insufficient, unpalatable food when the pandemic ravaged kitchen workers; and planned a correctional officers’ union event in Las Vegas amidst the pandemic wave of late 2020, which was abandoned only under public pressure. Even as their colleagues ailed and died, many correctional officers persisted in COVID-19 denialism and anti-vaccine sentiments.

The stay is the last in a long series of concessions and placations by government officials to the powerful prison guards’ union. Throughout the litigation, Judge Tigar exhibited remarkable patience and tolerance for bad faith arguments, trying to foster cooperation rather than impose orders and congratulating attorneys for the prison guards’ union for even sitting at the (virtual) table. Then, Governor Newsom—ostensibly, the outspoken architect of California’s science-forward vaccination policy and of vaccine mandates in schools—supported the guards in their bid to evade vaccination (the prison guards’ union reportedly contributed $1.75 million to Newsom’s anti-recall campaign). Attorney General Rob Bonta, who publicly decried the pandemic crisis at San Quentin as an Assemblymember, changed his tune as soon as he took office, and has allowed his employees to defend the prison system’s unconscionable policies. This disturbing pattern offers somber proof that all government branches are paralyzed not only by fear of unflattering optics—the people who should be first in line to be released, elderly and infirm prisoners, are often serving time for serious, violent offenses—but also by the manipulations of the prison authorities and the prison guards’ union. In one case, justice delayed due to these evasive maneuvers was, literally, justice denied: Just a few weeks ago, Judge Howard of the Marin Superior Court found that the ill-fated transfer that started the horrific San Quentin outbreak constituted an Eighth Amendment violation—but offered the prisoners no relief, because the vaccines supposedly “changed the game” to a point that lifesaving population reductions are moot.

But the threat is not moot; currently, there are several active outbreaks in California prisons and dozens of active cases. Studies are increasingly showing that the congregate setting in prisons, complete with flawed ventilation, lack of social distancing, and the rise in prison population, pose continuous risks. Efforts to control prison populations by stopping jail transfers are currently causing massive outbreaks in several county jails. Moreover, the emergence of new variants, such as Omicron, does not bode well for correctional facilities.

The risk extends far beyond the prison gate. For our forthcoming book about the California COVID-19 prison crisis, my coauthor Chad Goerzen and I have found worrisome correlations between prison outbreaks and spikes in cases in surrounding and neighboring counties. We should all know by now that the pandemic is not a zero-sum game, and that viruses do not decide which hosts to inhabit based on arguments of moral deservedness or the California Penal Code. If prisons are allowed to incubate dangerous variants, the risk to you and your loved ones increases.  

The Ninth Circuit reasons that anti-vaccination sentiments run rampant among prison guards (we do not know why, as no one has ever systematically surveyed the political views of correctional officers) and assumes (without foundation) that, in the face of vaccine mandates, many might quit their well-paying jobs, leaving our vast prison system understaffed. This scenario was feared, but failed to realize, in many other employment sectors with mandates, where vocal protestations and threats of resignation gave way to vaccine compliance. But even if the threat of correctional officers’ resignations is real, we must ask ourselves why courts and government officials are so stubbornly clinging to the idea of overcrowded prisons as a social good. If it is impossible to hire and retain correctional staff who can provide a standard of care that complies with minimal Eighth Amendment requirements, then it is impossible to incarcerate as many people as we do. We must reckon with the fact that we cannot, lawfully and constitutionally, house more than 100,000 people—a quarter of whom are over 50 years old—if the staff entrusted with their care cannot be bothered to take minimal precautions to protect their captive wards from disease.

A Visit to Tulane

For the first time since Fall 2019, I got on a plane on Monday and flew to New Orleans; Professor Adam Feibelman very graciously invited me to participate in the Workshop on Law and the Economy, and I had the opportunity to present Fester to people who read big chunks of it, including the introduction and Chapter 4. Having recently presented Chapter 6 at Case Western, I’m pleased that the book is beginning to take shape, but I still feel that the story is unfinished.

Part of this feeling comes from my bitter disagreement with Judge Howard’s final ruling in our San Quentin cases, according to which relief is moot because the vaccines “changed the game.” A recent study conducted at a federal prison involved daily testing of vaccinated and unvaccinated residents. It’s a rather small study – 95 participants, 78 vaccinated and 17 not fully vaccinated – but it disturbingly found “[no] significant differences. . . in duration of RT-PCR positivity among fully vaccinated participants (median: 13 days) versus those not fully vaccinated (median: 13 days; p=0.50), or in duration of culture positivity (medians: 5 days and 5 days; p=0.29)”, though “[a]mong fully vaccinated participants, overall duration of culture positivity was shorter among Moderna vaccine recipients versus Pfizer (p=0.048) or Janssen (p=0.003) vaccine recipients.” Since we know this is not the case outside prisons–and with the obvious caution that the study was small and limited in time–we can’t say anything resolutely except feeling some unpleasant doubt about vaccination as the be-all, end-all strategy of contagion prevention in enclosed spaces. It is important and vital, and at the same time, only one piece of the distancing/masking puzzle that curbs infections. This is particularly important with the advent of the Omicron variant, which is already prompting travel bans and ravaging the economy. If Delta is anything to go by, we should be seeing Omicron cases pop up behind bars before too long.

Another reason I feel the FESTER story is unfinished is that I’ve been focusing solely on California in my own work, and it is only now that I’m seeing how the catastrophe of neglect and indifference that played out here is not the absolute bottom. Prison Policy Initiative recently published States of Emergency, wherein they grade the states based on their prison pandemic performance using a multifactor index comprised of population reduction (up to 130 points), infection and death rates (up to 145 points), vaccination efforts (up to 115 points) and basic policy changes to address needs, such as free phone and video calls, masks, and hygiene products (like soap), required masks for staff and mandated regular staff testing, and eliminated medical co-pays. (maximum 115 points). Amazingly, California gets a C-, putting our state at the top of prevention efforts, while most states get an F.

map of U.S. states showing failing grades in response to COVID-19 in prisons

Even more amazingly, the report places us at the top in the category of population reduction, despite the fact that the summer releases involved a “push out the door” to people nearing the end of their sentences, excluded precisely the high-risk people who were most in need of protection, and created no more than a temporary population dip that has now been completely eclipsed.

map showing the distibution in scores awarded to each state based on efforts to reduce their prison populations in the face of COVID-19

You can see in the bottom graph why I find these high marks puzzling. First of all, please keep in mind that the Y-axis in this graph is not zero, which would put the summer dip, that looks huge in this graph, in stark perspective. More importantly, note that we are, again, at over 100% capacity, just as the Omicron variant knocks on our door and current outbreaks are already registered in several CA prisons and jails.


It was interesting to talk about this at Tulane, because Louisiana prisons and jails are notorious; friends of mine are uncovering in-custody deaths and fighting against inhumane treatment of people with disabilities behind bars. What I wanted folks to take away from our conversation was that red states have not cornered the market on myopic frameworks driven by quarantinism and by the myth of carceral impermeability. We had a great conversation and I enjoyed my visit.

The logistics of my trip were complicated by a serious and upsetting foot injury; I’m training for the Oakland Marathon and, 9.5 miles into an 11-mile practice run, I tripped and badly sprained my ankle to the point that I can’t put weight on it. If nothing else, the experience taught me is that, much like the Zen koan about the tree, if a person falls to the ground in excruciating pain in Glen Canyon and screams at the top of her lungs, absolutely nothing happens, and the person has to somehow crawl on hands and knees for twenty minutes to get out of the forest and seek help. This has thrown doubt not only on my ability to recover in time to safely train and complete the marathon, but also on my multisport fitness regime in general; whaddya know, it turns out one uses one’s ankles quite a bit when swimming and cycling. I’ve managed to figure out a way to start and stop my bicycle while wearing my immobilizing boot, but it feels a bit scary and unsafe to be out there cycling with this vulnerability, and having three energetic little ones (one human, two felines) at home bouncing around my limbs is warming my heart but making feel brittle and guarded.

As is always the case when traveling, I learned lots of interesting things that have nothing to do with work. I talked to business owners about their tentative plans for Mardi Gras and discovered that, throughout the year and a half that we taught online at Hastings, Tulane held class in person (!!!) by implementing an aggressive testing regime and renting rooms at empty downtown hotels to quarantine students who tested positive at the university’s expense. Ah, what an excellent epidemiology department and a grand endowment can do! But even if we had such resources at Hastings, I think the politics of pandemic management in California (the sanitationist part, anyway) would have impeded us from holding classes in person. And I’m also sure that what looks now, in hindsight, like a great triumph at Tulane (and rightly so), must’ve felt uncertain and stress-inducing to students, staff, and faculty alike.

I also got to hear some jazz, eat extremely well, see a wonderful exhibition at the Newcomb Art Museum, and hobble around the French Quarter in my immobilizing boot. I’m very grateful to my gracious hosts and to the students, who wrote interesting and provocative response papers about FESTER that I’m sure will be useful as I gear up toward a winter of aggressive progress on the manuscript draft.

Health and Fitness Update

Back in July, when I wrote this, I was so touched to receive an enormous amount of support from friends and colleagues; my journey back to health was even featured in this Q&A piece, in which I said:

My health has deteriorated in a serious, serious way in the course of my work. I made a few key decisions during the pandemic, one of which was to put my health first, because that is what allows me to help other people. Of course, I’m speaking from an extremely fortunate place — I don’t have a loved one behind bars, my family is well, and academics largely kept our jobs.

At the same time, if you are fortunate, the temptation is to say, well, worrying about my stress is a bit precious and other people have it much worse. Which is of course true, but stress is real and it can kill you. There is a mounting pressure that results from having multiple conversations every day with people that are telling you about horrific things happening in the world. To keep your own resilience and your own little torch of hope lit so you can speak for them is extremely important.

I’ve taken steps to repair my health and it’s gotten much better. Now, I analyze: What is the optimal contribution I can make in this situation? Which contribution will advance the movement the farthest without making me sick or making my loved ones suffer? Talking for the sake of hearing yourself talk or having a clever soundbite on Twitter is not useful. This is not where the real suffering is happening, and it is not where the real improvement will happen. During the pandemic, many of us learned this is not where we will be of service.

I’m not Christian, but one of my favorite spiritual scriptures is the Prayer of St. Francis: “Lord, make me an instrument of thy peace.” I like to wake up and think, Okay, how can I be an instrument of God’s peace today? What’s the best way for me to do that, without my ego, my stuff, or infighting getting in the way?

COVID has exposed a lot of our failures — the problems in our educational systems, in our healthcare systems, the travesty of how we treat people in our prisons. We have also seen each other’s resilience and compassion.

At the turn of the new year, I got a “Season’s Greetings” postcard from prison on which someone wrote, “Thank you for being our voice. We so appreciate it.” I was happy that people inside know we are trying to help. But I also just thought about the fact that this person is living in what is essentially purgatory, yet he is still extending me kindness and grace. It’s absolutely stunning.

Many of the people leading this movement—for instance, in the Stop San Quentin Outbreak Coalition—have just been released. You would think a person getting out of prison would want to find a place to live, get a job, and start repairing their relationships. Some of these people have been out of society and away from their families for decades. But they immediately roll up their sleeves and work for the friends they left behind. How beautiful is that? You build on that work, and it helps you keep going.

Since I know many of us are on a similar path, trying to put their physical and mental health on an upward trajectory after several very difficult years, I thought I’d demystify my process in case it is helpful to others.

As Simon Hill shows in his new book The Proof Is In the Plants, a whole-foods, plant-based diet is optimal not only for your health, but for animal welfare and for our planet. I’ve been vegan for a long time, but in the last few years, what with the stresses of parenting, working full-time, and fighting the Trump Administration on the media almost as a full-time job, I slid toward relying on over-processed, starchy foods. In March 2021, when I awakened to the realization that I deserved a better life, I transitioned to eating exclusively whole foods. I now drink green juice or a smoothie for breakfast, eat a big salad for lunch, and a vegetable stew, soup, and/or stir-fry for dinner. For treats, I enjoy fruit, attractively sliced vegetables, and decaf green tea lattes on oat milk. I found out that I don’t need nearly as much food as I’d been eating. The return to working in person has made this a little more challenging, but it is doable with a bit of planning. We batch-cook beans, lentils, and grains on weekends, and use them during the week in various forms. I especially focus on consuming an enormous amount of leafy greens, which is very easy in smoothies, juices and salads.

The exercise journey started with a daily walk, and in many ways that’s still the foundation of what I do – I walk at least 10,000 steps a day. I gradually tacked on more things; in addition to walking/running every day, I now swim five times a week (Tue through Sat) in various city pools (I’ll sometimes walk to a distant pool and get my walking and swimming done that way) and cycle to work on an e-bike every day (Mon through Fri.) On Saturday I take a Pilates session, which has been complementary and informative, and on Sunday I usually go for a long run. I make my exercise regime a top priority of my day and never let a day pass without doing something, even though pool closures and weather sometimes require revising my plans. If it rains heavily and the pool is closed, I walk inside my house on a cheap mini-stairclimber.

Even though my time has become very limited with the return to in-person classes, I still meditate and listen to calming music before falling asleep. I don’t sleep much (who does with a little kid and a full-time job?) but I try to at least get some refreshing peace of mind in the form of religiously separating work life from home life. I aspire to stop working at 6pm daily and never work on weekends (despite being repeatedly pressured to do so, both directly and passive-aggressively.)

All of this eats a considerable chunk of my weekly schedule, as you can imagine, but I’ve come to see nutrition and exercise as essential steps for keeping the organism in good working order. When I fall off the wagon (a pox on you, Halloween candy!) I feel the consequences immediately, and it motivates me to get back on track.

As to the consequences: The flashier news are that I’ve lost 60 lbs, landing me at my high-school weight; dropped 30 points off my resting heart rate; boosted my good cholesterol and other markers, yielding spectacular bloodwork according to my doctor; and acquired a good muscle mass, agility, and flexibility, which has helped me improve in all the sports I do. Years ago, I used to swim marathons in open water; I found that multisport is kinder on my late-forties body, and my splits in the pool are as fast as they were when I was swimming for hours every day. A month ago I astonished myself with a 2:19:58 finish at a half-marathon. My weakest sport is still the bike, and I’ve had to start small–logging some time in the saddle by commuting on my beloved e-bike. The hope is that I can improve my fitness, and especially my cycling, enough to make myself proud next June at the Escape from Alcatraz Triathlon. But none of these things capture the most important aspect of health improvement, which is the constant, indescribable sensation of wellbeing that imbues my entire day. It is hard to overestimate the exquisite feeling of tackling one’s day with a body humming with healthy vibrations and free of malaise. I feel so good that I always want to feel this way, and I want this for everyone else, too.

As to the mental health piece of all this, it has been a real challenge tuning out some of the less savory aspects of higher education. In many ways this is a wonderful job for me, and the independence and flexibility are precious and valuable. But the climate of higher education has changed, introducing an enormous amount of administrative burdens, duties to contribute to a “shadow curriculum” beyond my areas of expertise, and panics and fears of upsetting or running afoul of campus orthodoxies, which rob me of my peace of mind. None of these trends show any signs of abating, and I have to come to terms with the fact that one of my most treasured aspects of the job–the freedom to say what I think and exchange ideas with people who can respectfully disagree–has eroded to a great degree. I try to remind myself that every job has its discontents and that, overall, I have been very fortunate in getting my career to a place where I can be of service to others, most recently our fellow Californians behind bars battling COVID-19, medical neglect, institutional ineptitude and political indifference. Finding peace and satisfaction at work is my ongoing project for 2022 and beyond, and I find that two things help enormously: being in my body and experiencing nature. These somatic experiences have a unique quality of cutting through intellectual noise and indulgent storytelling, as well as dissolving the ego piece of the whole thing, and provide even more motivation for keeping the exercise piece of the puzzle regular and fresh.

Some of the things that I have found inspiring and helpful on this journey are:

As I’ve mentioned before, if you are struggling with your own health and need a sounding board, hit me up. I’ll be happy to help you come up with a plan that works for you.