At SFPD, All the Double Coils Go in the Same Box

Last week I received a call from a journalist following up an astonishing story: the San Francisco police apparently used DNA evidence collected from a sexual assault survivor years ago to identify and arrest her in connection with a recent, unrelated property crime. San Francisco District Attorney Chesa Boudin was horrified and proceeded to dismiss the charges, but the case continues to make headlines. It turns out that local DNA databases are less heavily regulated than the federal ones, and it is regular practice for the police to upload rape kit DNA to the database–both the perpetrator’s and the victim’s.

My initial reaction to this story was astonishment; it is extremely jarring to consider that someone consents to an invasive and extremely unpleasant forensic examination following one of the most traumatic experiences a person can go through, persevering with it so that the police can catch the person who did this to them, only to find themselves on the receiving end of a criminal prosecution for an unrelated incident. I was also quite astonished at the juxtaposition between the shameful backlog in testing rape kits for the sake of arresting the perpetrators and this overzealous haste to do something with the victim’s DNA. There’s no question in my mind that this is appallingly unethical, but is it also a constitutional violation?

The Fourth Amendment prohibits unreasonable searches and seizures; the first question in every Fourth Amendment analysis is always whether the police activity in question is, indeed, a search. Since Katz v. United States (1967), courts use a subjective and an objective test to answer this question: (1) Has police behavior infringed on the person’s expectation of privacy? and, (2) is this expectation of privacy something that society is prepared to recognize as reasonable?

Until recently, the concept of privacy was practically nonexistent in Fourth Amendment jurisprudence whenever a person disclosed or exposed something to a third party: anything you discard, expose, or share, is fair game, and the risk that the third party will share it with the police is on you. This is true for things you say to a friend (whether or not the friend testifies against you later), the numbers you ring from your home phone, information you share with the bank, the garbage you leave on the curb and, as we recently learned, DNA you share with ancestry websites (which can be used for familial identification, too.) While the collection of forensics for a rape kit is done by a nurse, not by police personnel, under the pre-2018 Third Party Doctrine this should technically not matter; moreover, Sameena Mulla‘s excellent book The Violence of Care shows how much this agonizing process feels forensic rather than medical (and is done by nurses who fully identify with the forensic mission of the rape kit collection.)

But in 2018, the Supreme Court decided Carpenter v. United States, in which Justice Gorsuch expressed discontent with the breadth of the Third Party Doctrine. The Court limited their decision to the exhaustive collection of cell-site location information (CSLI), and explicitly declined to overturn the entire doctrine, but it certainly signals less enthusiasm for the doctrine. The same considerations–extensive collection, intimate information, access to holistic information about the person–are present in the context of DNA use for different purposes than the ones it was collected for, as Annabelle Wilmott explains here. While I don’t think that, at present, the Fourth Amendment forbids what SFPD has done here, I don’t think it will take long for the Justices to curb the Third Party Doctrine in the context of DNA collection–a few additional high-profile scandals like this one, particularly in unsavory, unconscionable contexts such as this one, and there will be massive public distaste for this (consider that the US population is particularly concerned about privacy.)

I do want to push on a few aspects of this narrative, though. When friends told me how appalled they were that charges were filed, I asked them, “would you be as appalled if you found out that the victim’s DNA linked them to a heinous crime, such as a homicide or a sexual assault?” This is not merely a parlor game. We know that many people who commit heinous crimes were themselves victims of serious physical and sexual violence in the past. For some of my colleagues, this possibility would dampen the outrage. The other thing I wondered about was, given that SFPD claims this is standard practice, whether they have a significant yield of crimes solved as a consequence of this practice (and possible other practices of tossing into the crime database DNA collected for other purposes.)

Another policy consideration–that this perverse use of DNA will dissuade victims from submitting to forensic examinations–does not sound serious to me. The exam itself is already daunting and unpleasant enough in itself that any effect this additional story might have on people’s considerations whether or not to submit to it seems to me marginal (this is not a good thing, but it seems nevertheless to make sense.) I also think that this policy argument has the potential to suggest that collecting rape kits is an unqualified good, when Mulla’s excellent book shows that the overzealous enthusiasm about forensics leads to collecting them when they are completely immaterial to the investigation, such as in the many cases in which the rapist is known to the victim and sex itself is not in dispute (but consent is.)

This Chron story suggests that SF Supervisors are contemplating legislation that would prohibit this particular mishap from happening again, and I worry that, in the haste to react to an unpleasant high-profile incident, the opportunity for a more thorough investigation and regulation of the entire local DNA database business will be missed.

The House Always Wins: Quasi-Judicial Immunity in the Valley Fever Prison Case

This morning at the Western Society of Criminology Annual Meeting I’ll present Chapter 6 of our upcoming book FESTER, which I’ve tentatively titled The House Always Wins. In this chapter we show how, in both federal and state litigation for COVID-19 healthcare, prison authorities and the guards’ union run jurisdictional circles around the prisoners and their advocates, playing forum battles and jurisdictional whack-a-mole. This morning brought in its wings a fresh example of the same situation: on February 1, Judge Tigar (who also presides over the COVID class action Plata v. Newsom) granted the current and former federal receivers of the prison healthcare system (Clark Kelso and Robert Sillen) a motion to dismiss a class action involving the valley fever outbreak of the mid-2000s. Sillen was appointed Receiver on February 14, 2006, effective April 17, 2006, and was fired by Judge Henderson after two years (it later turned out that Sillen and his employees were overpaid to the tune of hundreds of thousands of dollars.) Kelso was appointed his successor on January 23, 2008, effectively immediately, and is still occupying that position.

The installment of the receivership created an uneasy division of labor between CDCR–a state department–and the federally-appointed Receiver, who was now vested with the authority to oversee and manage healthcare in prisons as well as with the powers of an officer of the (federal) court. Here is what happened next, which Judge Tigar quotes directly from the Ninth Circuit decision:

In 2005, California prison officials noticed a “significant increase” in the number of Valley Fever cases among prisoners. The federal Receiver asked the California Department of Health Services to investigate the outbreak at Pleasant Valley State Prison, the prison with the highest infection rate. After its investigation, the Department of Health Services issued a report in January 2007. It stated that Pleasant Valley State Prison had 166 Valley Fever infections in 2005, including 29 hospitalizations and four deaths. The infection rate inside the prison was 38 times higher than in the nearby town and 600 times higher than in the surrounding county. According to the report, “the risk for extrapulmonary complications [was] increased for persons of African or Filipino descent, but the risk [was] even higher for heavily immunosuppressed patients.” The report then explained that physically removing heavily immunosuppressed patients from the affected area “would be the most effective method to decrease risk.” The report also recommended ways to reduce the amount of dust at the prisons. After receiving the health department’s recommendations, the Receiver convened its own committee. In June 2007, the Receiver’s committee made recommendations that were similar to those from the health department.

In response, a statewide exclusion policy went into effect in November 2007. The inmates who were “most susceptible to developing severe or disseminated cocci” would be moved from prisons in the Central Valley or not housed there in the first place. The prisons used six clinical criteria to identify which inmates were most likely to die from Valley Fever: “(a) All identified HIV infected inmate patients; (b) History of lymphoma; (c) Status post solid organ transplant; (d) Chronic inmmunosuppressive [sic] therapy (e.g. severe rheumatoid arthritis); (e) Moderate to severe Chronic Obstructive Pulmonary Disease (COPD) requiring ongoing intermittent or continuous oxygen therapy; and Inmate-patients with cancer on chemotherapy.” Inmates were not excluded from the Central Valley prisons based on race. The Receiver refined the exclusion policy in 2010 and created a list of “inmates who [were] at institutions within the Valley Fever hyperendemic area that [needed] to be transferred out.” The record does not indicate that the 2010 policy excluded inmates from the outbreak prisons based on race.

In April 2012, the prison system’s own healthcare services released a report examining Valley Fever in prisons. The report concluded that despite the “education of staff and inmates” and the “exclusion of immunocompromised inmates,” there had been “no decrease in cocci rates.” The authors found that Pleasant Valley State Prison inmates were still much more likely to contract Valley Fever than citizens of the surrounding county. From 2006 to 2010, 7.01% of inmates at Pleasant Valley State Prison and 1.33% of inmates at Avenal State Prison were infected. By comparison, the highest countywide infection rate was 0.135%, and the statewide rate was just 0.007%. From 2006 to 2011, 36 inmates in the Central Valley prisons died from Valley Fever. Prison healthcare services also found that male African-American inmates were twice as likely to die as other inmates. Each year, about 29% of the male inmates in California are African-American, but 50% of the inmates who developed disseminated cocci between 2010 and 2012 were African-American, and 71% of the inmates who died from Valley Fever between 2006 and 2011 were African-American.

Following this report, the Receiver issued another exclusion policy –one that would effectively suspend the transfer of African-American and diabetic inmates to the Central Valley prisons. The state objected, but the district court ordered the prisons to comply with the new exclusion policy.

Hines v. Youseff, 914 F.3d 1218, 1224-25 (9th Cir. 2019)

In Hines, incarcerated people infected with valley fever attempted to sue CDCR officials for mismanaging the outbreak; the lawsuit failed due to qualified immunity. The officials prevailed because they followed the orders of the Receiver. This week’s decision dismissed a similar lawsuit against the Receiver.

The valley fever victims argued, on the merits, that the Receivers were neglectful in their preventative approach; the Receivers countered that, as officers of the court, they have quasi-judicial immunity. The plaintiffs attempted a sophisticated attack on this argument, claiming that the Receivers should not have directed CDCR’s preventative policies, and that their mandate was limited to providing medical care. The argument failed: Judge Tigar found that “prevention of disease is, and always has been, within the Receivers’ jurisdiction.”

Ironically, it is precisely this wide mandate that aided the Receivers’ success in dismissing the case. Because they were acting within their authority, writes Judge Tigar, and because said authority is quasi judicial, they can enjoy immunity. Weirdly, “Plaintiffs do not argue that the other exception to judicial immunity – for actions “not taken in the judge’s judicial capacity” – applies here”—I think that’s precisely what I would have argued in this case, as Sillen and Kelso were acting as medical officials rather than judicial ones.

If this seems overly technical, it’s because it is. As I observe in chapter 6 of FESTER (more to come on that in the next few days), the particular gymnastics of each courtroom failure are less important (albeit technically interesting.) What’s important to observe is that the Byzantine nature of California’s correctional healthcare system, which, ironically, stems from the effort to create patchwork remedies for the system’s own ineptitude, then stands in the way of recourse for this very ineptitude.

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Hat tip to Allison Villegas, who sent me this decision.

Impending Closure of Death Row

A couple of days ago I spoke on KCRW about the announced closure of death row at San Quentin. Here’s the story as it appeared on the KCRW website, followed by some additional thoughts from me:

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Governor Gavin Newsom announced this week a plan to shut down the notorious death row at San Quentin State Prison. The plan would move the prison’s most condemned inmates to other maximum security prisons over the next two years, in an effort to create what Newsom calls a “positive and healing environment” at the Northern California prison. 

San Quentin has the largest death row population in the nation — nearly 700 total. And while California hasn’t executed anyone in more than 15 years, Newsom also signed an executive order imposing a moratorium on executions in 2019. 

The facility was originally a ship, and in the mid 19th century, prisoners themselves built the prison, explains UC Hastings law professor Hadar Aviram. “It’s a dilapidated facility, there are no solid doors, there are bars on the doors, ventilation is terrible. So it’s a facility that was built for 19th century standards. And just because of inertia, we are still incarcerating people in the same condition.”

She points out that the facility is located in a geographically beautiful area surrounded by expensive real estate. “In many ways, [it’s] a waste to have a prison there where people don’t enjoy the seaview and are incarcerated in terrible conditions.”

However, she notes that people currently aren’t being executed due to the moratorium, and since 1978, the state executed only 13 people, and more than 100 died of natural causes during that time. 

“Just during this moratorium that Governor Newsom introduced, more people died on death row from COVID during the horrific outbreak at Quentin than we executed since 1978. So I’m sure that is giving some pause about the utility of the exercise of keeping people there,” Aviram says. 

Because San Quentin is so old, inmates there suffered from coronavirus more than those at modern and well-ventilated facilities like the state prison at Corcoran, she says. Plus, it houses lots of people who are aging and infirm, who were thus already immuno-compromised and vulnerable to the virus.  

Emotional and political reasons may be driving votes

California voters approved a ballot measure in 2016 to speed up executions, and the measure included a provision allowing death row inmates to be relocated to other prisons where they could work and pay restitution to their victims.

Aviram says over the years, there have been several attempts to abolish the death penalty through voter initiaties, but they always lost by small majorities. 

Through inquiries, polls, and conversations with people, she says she realizes: “People are voting for the death penalty largely for emotional, sentimental, political reasons. They are more in love with a fantasy of having a sentence that’s reserved for the worst of the worst, and can deter people.” 

She describes death row in California as “basically a more expensive version of life without parole that costs us $150 million a year.”

She adds, “It’s probably a good idea to think of the death penalty as undergoing the same process as some of the people who have been sentenced to death, which is rather than an execution, the death penalty is going to die a slow natural death itself, just from disuse and from this gradual dismantling.” 

However, some district attorneys continue asking for the death penalty in capital cases, though the state doesn’t execute people anymore, as they hope the governor might revive the policy, Aviram points out. However, she says, “I think that because of the national trends … it is extremely unlikely that it’s going to come back.”

Newsom’s reimagining of prisons and what’s missing

When the governor says a “positive and healing environment,” Aviram says this means a life where inmates find meaning and usefulness (do some jobs). 

But this doesn’t completely eliminate the death penalty, she says. “Because there is still one very big and expensive piece of the death penalty that is still with us — and that’s death penalty litigation.”

“We have this facility where people are sentenced to death and are still litigating themselves post-conviction, and that litigation is actually the lion’s share of the expense. So it’s only really going to go away if and when all of those sentences are commuted, and these people are no longer litigating their death sentences at the state’s expense. So that is the missing piece.”

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Some more thoughts: First, it’s been interesting to follow the fanciful, but often idle, talk about the real estate potential of Quentin. Readers who have been to Quentin know how beautiful the village is and how glorious the waterfront vistas are. There are plans to close four prisons, but no definite plans for Quentin. Any prospects of selling that land are to be viewed with ambivalence. On one hand, what a waste to have a prison so close to the water, without windows to enjoy the view – a place that combines suffering with beauty. On the other hand, it would be a terrible loss for the folks housed at Quentin, dilapidated and dangerous as it is, to be strewn about prisons in remote locations in the state, far away from the progressive energy of volunteers and rehabilitative programming richness of the Bay Area that people so desperately need for making parole. In my wildest fantasies, we close Quentin down, transform it into a resort/retreat for nonviolent communication and community healing, rebuild with huge ceiling-to-floor glass walls overlooking the ocean and gorgeous walking trails, and offer all the men well-paying jobs running the resort.

About the money: I predicted much of this demise, based on national trends, in Cheap on Crime, and still think that the deep decline of the death penalty is in no small part due to the financial crisis of 2008. The fact that we still spend a sizable pile of money on death row, despite the moratorium, is not surprising, and shows that the disingenuous efforts to save money via Prop 66 didn’t fulfill their purported purpose. In 2016, when giving talks about this, I used to draw the triangle of home improvement; write in its three corners: good, fast, and cheap; and tell people, “you can have two.” We can’t compromise on having a “good” death penalty (one in which there are no constitutional violations and factual mistakes), and so, it cannot be fast or cheap. The big savings will only roll in when we get rid of the litigation piece.

There’s no better proof that the death penalty is on its last leg than the fact that Joseph Diangelo, the Golden State Killer, was sentenced to life without parole. If not the most notorious and heinous criminal in the history of California, then who? And the logic in Diangelo’s case applies to everyone else–why the death penalty? So they can continue litigating at the state’s expense and die a natural death? Whose interests does this serve?

About the actual job of relocating death row people to other prisons/general population: this is going to be a complicated and delicate job, and my fear is that it will be entrusted to folks who are not tuned in to the complexities. They would be moving people who have been effectively “at home” in solitary confinement in unique conditions, many of them for several decades, into facilities with much younger people and a very different energy. There could be animosities and alliances that are difficult to predict and go beyond crude racial/gang affiliations. This is true, generally speaking, for every prison transfer (long time readers remember the fears and concerns surrounding CDCR’s plan to comply with the landmark decision in Von Staich through transfers to other facilities); in the case of the death penalty, there are other factors, not the least of which is the unique combination of notoriety and frailness of the people to be transferred.

There’s also the question whether dismantling death row, what with its symbolic hold over the Californian imagination, slows down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole), does the effort to abolish the death penalty lose its steam? The uphill battle for activists will be to spin this development to argue that the death penalty has been defanged beyond its utility; now that we’re left with only its negative aspects (to the extent that some people think it has advantages) it’s time to stop hemorrhaging state funds for incessant litigation.

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Today I’m at the Annual Meeting of the Western Society of Criminology, speaking about FESTER. My panel starts at 8:15am island time in the Waianae room – come say hi!

Los Angeles Times Op-Ed: California’s blocked vaccine mandate for prison guards is public health idiocy

I have an op-ed in this morning’s Los Angeles Times about the shameful, hypocritical appeal of the Plata vaccine mandate. I’m reproducing it here:

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California’s correctional facilities in January saw an alarming third wave of infection that brings an urgent threat.

The first wave, during the spring and summer of 2020, saw disastrous infections starting at the California Institution for Men and leading to cases in most residents at Avenal and San Quentin. The second wave, during the winter of 2020, saw outbreaks across all prisons with thousands of active cases. More than 66,000 infections have occurred to date, and at least 246 incarcerated people have died of the virus.

But this third wave features another cause for alarm: As of Jan. 28 there were 4,337 active cases among prison staff, with this surge seeing faster spread for that group than at any other point in the pandemic.

With staff moving freely in and out of these facilities, they have been agents of contagion in prisons and their surrounding communities. Data that I collected with independent researcher Chad Goerzen, as well as a report published by the Prison Policy Initiative in December 2020, show considerable correlations between prison COVID spikes and outbreaks in nearby counties and indicate that staff are primary drivers of this trend. And despite all these risks, they still are not required to get vaccinated.

After the federal receiver in charge of California’s correctional healthcare system pleaded for a vaccine requirement, U.S. District Judge John Tigar finally ordered one in September — only for Gov. Gavin Newsom, otherwise a staunch vaccine supporter, to side with the corrections department and the guards’ union in opposing the mandate. Their appeal is still pending with the 9th Circuit, and at this point there is no general requirement that prison staff become vaccinated.

The main concern of opponents of the mandate is that it might lead to mass resignations of guards, which in turn would result in understaffed, unsafe prisons. Yet in other sectors with mandates, such as schools and government offices, vocal protestations and resignation threats gave way to vaccination compliance. Indeed, the opponents’ rejection of a vaccine mandate is creating the reality they warned of: As of last week, 21 prisons each had more than 100 infected staff members, who then could not safely show up for work.

The irony of the situation might be lost on prison authorities, but it has an even darker side. Even if the threat of correctional officers’ resignations over a mandate were real, and graver than the very real staffing problems generated by the spike in staff cases, why do government officials so stubbornly support overcrowded prisons? Exposing incarcerated people to a serious virus with no means to protect themselves from unvaccinated staff members — amid other health order violations in prisons, per multiple reports — violates their 8th Amendment rights.

For the sake of public health, the state should withdraw its appeal of the court ruling on the mandate for prison guards, and Newsom should stop supporting the guards’ resistance, in accordance with his position on vaccination at other congregate spaces.

Ultimately, to protect California’s prison populations and everyone in surrounding counties, not only from this pandemic but from others in the future, we need to confront the larger truth: If it is impossible to retain enough correctional staff to provide propercare for our incarcerated population, then we cannot incarcerate as many people as we do.

We cannot, lawfully and constitutionally, house, clothe and feed more than 100,000 people, many of them aging and sick, if the staff cannot be bothered to take minimal precautions to protect those people from disease.

California needs a lasting policy of releasing inmates — shown to be an effective intervention to reduce COVID cases — taking into account criminologically and medically relevant factors such as their age and health conditions. (When only 7,600 people were released from California’s prisons in summer 2020 as a COVID mitigation measure, fewer than 1% were in a medically high-risk category; most were younger people about to be released anyway.)

One cliché of the pandemic has been that “we are all in the same storm, but not in the same boat.” This is true both behind bars and on the outside. Requiring prison staff to be vaccinated, while reducing prison populations through targeted release, protects everyone’s interests in the years to come.

Hadar Aviram is a professor at UC Hastings College of the Law and participated in the San Quentin COVID-19 litigation as counsel on behalf of ACLU of Northern California and criminal justice scholars. She is the co-author of the forthcoming book “Fester: Carceral Permeability and the California COVID-19 Correctional Disaster.”

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The LA Times has been good to our struggle this week; over the weekend, it published a phenomenal op-ed by incarcerated journalist Juan Haines about the astonishing appeal of the Quentin case.