Worried about Vaccine Mandates Potentially Causing Prison Understaffing? Guess What Actually Causes Prison Understaffing: COVID-19.

At first glance, today’s COVID-19 numbers for California prisons appear to be a grim reprise of the two previous outbreak waves: thousands of cases, with major outbreaks in several facilities. Clearly, we have learned nothing from the last two years, which led to infections among more than half of the prison population and to 246 deaths; Governor Newsom’s recent reversal of 80-year-old Sirhan Sirhan’s parole bid indicates that politics and optics, rather than pragmatic public health and public safety considerations, are standing in the way of sensible choices. But upon closer inspection, this third wave features another cause for alarm: in addition to the 4,069 active cases among incarcerated people, there are currently 4,570 active cases among prison staff, and in 20 prisons, more than 100 staff members are currently infected.

The reason is not particularly mysterious. Throughout the last two years, California’s prison guards’ union (the CCPOA) led a dogged fight against mandatory vaccination for its members. For many months, the federal district court hearing the case adopted a conciliatory, welcoming approach, appeasing the guards and turning to gentle persuasion methods; these have proven useless in raising the vaccination rates among the staff. Finally, after the COVID catastrophe ravaged prisons (and several months too late to save lives) Judge Tigar ordered a vaccine mandate; the guards, the prison authorities, and Governor Newsom are opposing the mandate and their appeal is pending before the Ninth Circuit.

Whether prison guards refuse to get vaccinated due to indifference, COVID-19 denialism, or misguided politicization of healthcare, is pure speculation. But in their appeal, opponents of the mandate raise concerns that requiring vaccinations might lead to mass resignations of prison guards, which in turn would result in understaffed prisons. 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 vaccination compliance. Indeed, the opponents’ stance is generating precisely the scenario they worry about: it turns out that, when thousands of people are sick at home, prisons become understaffed.

The irony of the situation might be completely lost on prison authorities, but it has an even darker side. Even if the threat of correctional officers’ resignations were real, and graver than the very real understaffing generated by the spike in staff cases, we must ask ourselves why courts and government officials so stubbornly cling to the idea of overcrowded prisons as a public 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, clothe, and feed 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.

Omicron, Sirhan Parole Denial, Academic/Activist Exhaustion: Four Thoughts

  1. Denying parole to aging, infirm people at this moment in time is… maddening. Several journalist friends called me yesterday about Gov. Newsom’s reversal of Sirhan Sirhan’s parole grant. Anyone who has read Yesterday’s Monsters will guess I am not surprised–in fact, I predicted this outcome, which was foreshadowed in his no-on-recall campaign, on this very blog. Just as with Leslie Van Houten’s parole bid, the fifty-year cling to political and optical considerations is jarring: fully rehabilitated people, advanced in years and presenting no risk to society, confined during a time of pandemic spike in prisons, to which they are especially vulnerable because of their age. Maddening but unsurprising. I think I’ve said it all so many times–what more is there to say?
  2. They worried about staff shortages b/c of vaccine mandate. They got staff shortages b/c of COVID. Yes, Omicron in prisons and jails clearly shows that we have learned nothing. But there is one new factor in this wave: a massive infection spike among the staff. Take a look at CDCR’s employee COVID ticker: as of this morning, there are 4,419 staff cases. Most facilities have more than 100 sick staff. Recall that the opposition to Judge Tigar’s vaccine mandate–in CCPOA’s appeal, the Governor’s supporting brief, and the Ninth Circuit’s decision to stay the mandate–was that vaccine requirements could lead to mass resignations and a difficulty in staffing prisons. I’m assuming that the irony of having to staff prisons when the staff sickens by droves is completely lost on everyone, so I feel compelled to flag it: for exactly the reasons CDCR and CCPOA state, it is impossible to run a prison in which wide swaths of the staff knowingly render themselves potentially unable to work. If allowing medically irresponsible decisionmaking among employees is a priority, something must give–and the obvious corollary (I’m so tired of saying this again and again) is: we must incarcerate far fewer people than we do because we cannot provide minimal, constitutionally compliant care for them under current circumstances.
  3. No good deed goes unpunished #1. Everyone in academia is exhausted, worn, burned out, just like yours truly. As in Tolstoy’s opening for Anna Karenina, there are infinite variations to the unhappiness, but the aggregate effect is the same: people trying to keep afloat by teaching their classes and having no bandwidth for anything else. I’m experiencing this on both sides: solicitations to review, to participate in panels, to assess grants, to do this or that, are flooding my inbox and I’m overwhelmed, just like everyone else. At the same time, as the book review editor for Law & Society Review, I’m finding it difficult to get reviewers and, when I do, the reviews arrive late or not at all. I get it. I really, truly do. The effort to keep the giant machine grinding beyond the essential components of the job, in the face of all THIS, is bewildering. It occurred to me that one way to help a little bit would be to compensate (not lavishly, but reasonably) for people’s efforts in this direction. Peer reviewing an article? Cash. Supervising a student’s independent work? Cash. Heavy-load committee? Cash. Panel appearance requiring preparation? Cash. This would be especially wonderful for the folks who are trying to write their way out of adjuncting while teaching at several institutions. Many of us, even in these high-prestige occupations, suffered a financial blow; many of us have spouses who had to quit or restructure their jobs to provide childcare, or have had to do that ourselves. Money is important in itself–it’s how we afford our lives–and it would also signal some recognition and gratitude for our efforts.
  4. No good deed goes unpunished #2. Speaking of lack of recognition and gratitude, this morning’s L.A. Times features the story of Patrisse Cullors, one of the national leaders of Black Lives Matter, who had to quit her position and regain her mental health in the face of threats from without and incessant critique from within that made her life a misery. I’m in a variety of activist scenes because of my work and I know exactly what she’s talking about. There is something very unhealthy, very rotten, in how we manage interpersonal relationships in activist spaces, and the unbearable ease of vomiting negativity and mobbing people on social media is enough to break anyone’s spirit. I would really like to create a sanctuary for exhausted activists and advocates–a place where people can come refresh their spirits and take care of themselves. Our movements for change will not survive if we continue treating each other like trash.

Omicron Is Here, and We’ve Learned Nothing

Let’s cut straight to the chase. Today’s CDCR ticker is showing 1,343 new cases and only three prisons with no cases (one of them is San Quentin, which may be why we are not hearing as much about this as we should.) CDCR has 313 cases, Wasco 285, CIM (which gets battered with every COVID wave) 229, and North Kern 104. Smaller but still worrisome outbreaks are present throughout the system.

Unsurprisingly, the same is happening in county jails: Yesterday, Darby Aono, who is keeping tabs on Santa Rita, reported on twitter that there were 177 cases among jail population and 54 among the staff. And the UCLA COVID-19-Behind-Bars Data Project is reporting spikes in hundreds of prisons and jails nationwide.

The immediate response at CDCR and in some counties (such as San Mateo) has been to suspend visitation. But what about the people who come in and out of prison every day, namely, the staff? The partial vaccination requirement is in place, resulting in 46% of staff still unvaccinated after all this.

To recap, after everything we’ve been through:

  • There have been 53,261 cases of COVID-19 at CDCR, some of which are reinfections.
  • 246 incarcerated people have died of COVID, four of them recently.
  • The prison population is 80% vaccinated. The prison staff vaccination rate hovers around 54%.
  • Our science-minded Governor and Attorney General are supporting prison guards in their efforts to shirk mandatory vaccination even as they mandate the vaccine in all other areas of life, including schools. Their appeal of the order to vaccinate is pending.
  • The Ninth Circuit has reversed the District Court decision and placed a stay upon the vaccine mandate, even as there are now prisons with hundreds of cases.
  • The institutional response, rather than immediately ordering the staff to vaccinate, has been to suspend visitation (which could have been conditioned, like everything else, on showing a vaccination record).
  • Jails are seeing spikes, and the vaccination rates there are much lower than in prisons, for both the population and the staff.

CDCR, CCPOA, and the administration insists that the measures they have adopted (including the partial vaccination requirement) are sufficient, but it turns out that even these partial measures are not being followed. I’ve recently received correspondence about conditions at CMF in Vacaville, where aging and infirm people are housed. CMF currently has, according to the ticker, only two active cases, and given the explosion of Omicron everywhere else, there are particular worries because of the vulnerability of this population. Nonetheless, at the last case management conference of Plata v. Newsom, the petitioners’ attorneys reported a serious lack of enforcement at CMF and CHCF of the Aug. 19 public health order requiring prison staff who work in healthcare settings to have been vaccinated by Oct. 14.

The problem is specifically with contracted staff, who account for 26% of CMF’s overall staff and are only 37% compliant with the public health order. At CHCF, contracted staff account for 17%, and the compliance rate is 61%. Many of those contractors are medical personnel who, as explained above, are interacting with the most ,some of the oldest and most medically vulnerable incarcerated people in the state. When the issue was raised at the conference, the state representatives did not dispute the numbers–rather, they admitted familiarity with the problem–and the conference simply moved on.

What more is there to say? Omicron is here, and we’ve learned nothing.