Newsom Announces Quentin “Scandinavian” Revamp

Big news regarding San Quentin today: Gov. Newsom announced a complete reorganization of San Quentin as a rehabilitation and training center, along the lines of Scandinavian prisons. Nigel Duara of CalMatters reports:

Gov. Gavin Newsom is expected to say that the state will spend $20 million to begin the reorganization of San Quentin State Prison from an institution that houses 3,300 incarcerated people at a high-security site on the San Francisco Bay to a “center for innovation focused on education, rehabilitation and breaking cycles of crime.”  

The new plan would complete the closing of death row and shut a Prison Industry Authority warehouse. The facility would be renamed the San Quentin Rehabilitation Center. 

Some of the larger questions about the reorganization will remain unanswered until the prison’s advisory committee decides them, including which imprisoned people are eligible for the rehabilitation center. 

The new facility will also offer job training, according to the governor’s office, though the advisory committee will have to decide for which jobs inmates will be trained. In prisons in other states that emphasize vocational training, the jobs include plumbing and long-haul trucking. 

The plan for the new facility is modeled on prisons in Scandinavian countries, including Norway, which significantly improved its rate of recidivism from 60%-70% in the 1980s to about 20% today when it began to allow prisoners more freedom and focused its prisons on rehabilitation. 

In those prisons, incarcerated people can wear their own clothes, cook their own food and have relative freedom of movement within the prison walls. That model has taken root in states as disparate as deep-blue Connecticut and deep-red North Dakota. 

Drawing inspiration from Scandinavian facilities is nothing new, and in fact, continues a trend that AMEND SF have begun in partnership with Norwegian prisons. Here’s an interesting report on the CDCR website about a trip some custodial staff took to Norway and what they learned from it. They’ve also brought Norwegian custodial staff to CDCR and to prisons in Washington State to inspire improvements in correctional culture.

It’s important to keep in mind that not all is peachy in Scandinavian criminal justice. In her book Nordic Nationalism, Vanessa Barker highlights the price of preserving a humanist welfare state–gatekeeping against immigrants. Keramet Reiter, Lori Sexton and Jennifer Sumner also wonder about the extent to which the humane and rehabilitative treatment of prisoners in Denmark can be imported to the United States given the difference in political cultures. And, in their fieldwork, they ask and answer some complicated questions about the Danish prison experience:

First, we find that harsh punishment can and does exist in Danish prisons.They are not, after all, uniformly humane; there are scratches in the “polished glass” and certainly reasons to resent the system. Second, the “responsibilization,”which Larson describes (and which, we argue, is fundamental to modern incarceration), can only be enacted through staff and institutional frameworks, which necessarily impose limits on individual freedoms. The particular ways that prisoners and staff describe the negotiation of limits—in the context of both open and closed prisons in Denmark—sheds light on the shortcomings of ScandinavianExceptionalism as both a substantive explanatory model as an ideological agenda that other countries might emulate.

A possible answer to this might be–duh, it’s prison. If it takes you out of your ordinary life against your will, it will involve *some* form of suffering. But I think there’s something else we have to ask ourselves.

I suspect that the energy behind the proposed Quentin overhaul–which, if it comes to fruition, will be overall a welcome development–has a lot to do with the Quentin COVID-19 disaster that we cover in FESTER. Yes, the physical plant at Quentin requires special attention because it is dilapidated and almost 200 years old, and basically allows disease to run rampant. But at the same time, it was no wonder that when CDCR tried to address COVID with transfer policies many people fretted and objected. As we explain in the book, Quentin benefits immensely from its location in the Bay Area, near nonprofits, universities, and a plethora of progressive do-gooders. Which means that, if you want to make parole, this is the place that will offer you the kind of programming and positive reports (“chronos”) that the parole board wants to see. People from all over the state jostle to try and get to Quentin. Investing even more in making Quentin a jewel of enlightened incarceration will make these disparities even worse.

This is not a good reason, of course, not to change things. But it is a good reason to rethink how things are going in the system as a whole. Given what we know about the practicality of population reduction–namely, that you could release 50% of CA’s prison population tomorrow without an appreciable rise in crime if the political good will was there–shouldn’t we try to spread the love toward Susanville and Central Valley, where lifers are parched for programming? And wouldn’t it do wonders for everything prison related–health-care, rehabilitation, the works–if there were overall fewer people in the system? If each prison, individually, were populated to 50% of design capacity, and this were the norm, wouldn’t that free up resources and professional attention to invest in Denmark-izing other prisons beyond the Bay Area?

“Sanctuary Cities” Are Not Biblical Sanctuaries

It’s been a month since I posted here! Life is thick with responsibilities and joys–family, athletics, spirituality, the daily grind of work–and so I haven’t had a chance to come up for air. But I wanted to briefly comment on a recent Chron story that one of my students (thank you!) sent me. It involves an unusual request by San Francisco’s D.A., Brooke Jenkins, to solicit federal cooperation in a matter involving two men accused of (unrelated) heinous crimes who are currently abroad, having fled our jurisdiction: she wants them extradited and tried here in San Francisco.

The simple and accurate response to this is exactly the one that Supervisor Aaron Peskin, often the voice of reason on the Board, voices in the article:

[T]he waiver Jenkins is pressing for is unnecessary, because nothing in San Francisco’s sanctuary city law prevents Homeland Security from apprehending and extraditing the two fugitives so that they can be prosecuted in San Francisco. He added, moreover, that the board would have to approve an ordinance to grant the exception, which means it would have to be debated in committee, subjected to two board hearings, signed by the mayor and set on the books for 30 days before taking effect, in late March at the earliest. 

By contrast, he said, “the feds can apprehend these people tomorrow.”

I feel like I need to highlight this because, in my circles and more generally, there seems to be an exaggerated sense of the protections that sanctuary cities or states can afford undocumented immigrants and other noncitizens. It seems we have forgotten the Trump days in which ICE personnel roamed the streets of the Mission looking for potential people to deport and we all had our cellphones at the ready in case someone was nabbed off the streets and needed help. They were not doing anything unlawful; they were doing something meanspirited and cruel, which is a completely different problem. While the federal government and the state of California are two separate sovereigns, they do operate in the same physical territory, a little bit like China Miéville’s book The City and the City. We don’t have to cooperate with them, but we can’t stop them from operating throughout the same geographic space on their own accord.

This has a few important corollaries. First, it is one more example in which the concept of geographic space needs to enter the criminal justice conversation. I have high expectations of carceral geography as a field of study, but I worry that it’s become basically like sociology of punishment with more abstruse jargon and a lot of metaphor, when there’s lots to be said about the practicalities of physical space. In that respect, our forthcoming book FESTER espouses a really pedestrian understanding of geography with immediate practical implications: you can’t treat prisons as if they exist apart from their surrounding counties when a deadly pandemic is on the loose. The same spatial problem, also with eminently practical implications, is present in the sanctuary city context: if you operate in the same space as someone you don’t cooperate with, at some point you will collide, and you’ll have to figure out how to work out the collision (in Miéville’s book, by the way, these situations require a third police force, called “breach.”)

Second, and related, people tend to forget the many points of contact between local and federal justice that cannot be avoided even with the most assiduous sanctuary city laws, and even if everyone on the local level religiously complies with them (some don’t.) Anytime someone is arrested, their fingerprints find their way into a federal database, where they are matched with the people who are here lawfully. If they are not, it’s not particularly challenging to figure out where they are. If local jail authorities will not allow ICE into their facilities (which, under sanctuary state/city laws, is okay), ICE officers can ambush noncitizens who are heading to meet their probation officers and arrest them in the parking lot. ICE holds on people serving state sentences are lawful and, the minute the person exits the state facility, they will end up in the feds’ hands.

The only thing limiting federal intervention is the extent to which the feds are interested in intervening, which is a direct function of presidential policy. Removal rates in the Biden era were much lower than in the Trump era. During the Obama era, they were fairly high, but federal policy emphasized people convicted of serious crimes, whereas under Trump there was the deliberately inflammatory persecution of DACA recipients (some of the most upstanding Americans I know.) Who gets targeted, and how many get targeted, is purely the function of who is president and what they (or their constituents) care about. This is stuff that local authorities can do very little about, given the many interfaces these systems share.

Legal historian Karl Shoemaker, an acclaimed Medieval historian and fellow JSP alum, wrote a fantastic book about the legal and moral rationales behind sanctuary in the Middle Ages and its decline toward the Early Modern period. As Shoemaker explains in the book, during these times, in which ecclesiastic authorities governed the legal universe, claiming sanctuary truly meant escaping any legal responsibility for one’s crime. It is no coincidence that these rationales, which seeped into British common law from ecclesiastic law, faded in the Sixteenth century, with the advent of the idea of a secular state.

The key to understanding the feeble protection that sanctuary state laws offer our noncitizen friends and neighbors is to remember that, back in the Middle Ages (and certainly in Biblical times, whence the idea of sanctuary emerged,) there were no competing secular jurisdictions jockeying for position. What we call “sanctuary” is a far cry from the ironclad religious protection of yore, and would be better described as “noncooperation” with a legitimate sovereign occupying the same physical space. Can the feds find these two men who are accused of heinous crimes, see to their extradition, and hand them over to Brooke Jenkins? Sure. The question is whether they want to.

Free Phone Calls from Prison – And Not a Moment Too Soon

It’s an especially happy new year for everyone incarcerated in California, as CDCR and all county jails gear up to provide everybody phone calls free of charge. This long overdue change was heralded on September 30, when Governor Newsom signed the Keep Families Connected Act, sponsored by Senator Josh Becker and numerous grassroots organizations. I’ve spoken about the importance of this bill on KQED and on KCBS this week (I think both segments will air in the new year) but I wanted to also write here so I can expand on the history and meaning of this change.

As many regular readers know, I’ve been constantly rankled by the well-meant, but shortsighted, push to divest from private prisons. I don’t think private prisons are the ultimate evil in U.S. incarceration (though they are definitely a nauseating symptom); all the horrors Chad Goerzen and I talk about in our new book FESTER occurred in public prisons and jails. More importantly, in reality, whoever pushes for divestment has too naive a perspective on how the market works. Public prisons are all but privatized on the inside. The utilities are privatized. Healthcare is provided by private contractors. Commissary is often essential as supplementation because the food is inedible. Anything beyond “bare life”, as Agamben called it, is monetized. In Cheap on Crime I spent a whole chapter explaining how this came to be: in the last few decades, and increasingly since the financial crisis, the basic conceptualization of incarcerated people has shifted from wards of the state to consumers of services. Accordingly, everything, including the actual stay in jail, is monetized, and costs are rolled onto the “customers.”

This has been especially notorious in the context of phone call. There is a long and atrocious history of litigation surrounding the dirty deals between government agencies and phone companies, and anyone who has been incarcerated, or who has called someone who is incarcerated, knows what the upshot was. There’s a lot of cumbersome bureaucracy one has to deal with to even create an account with the phone company (I personally spent hours on the phone with GTL trying to set up my account. Their robocalls are not customer friendly, and I can only imagine people despairing of them if they try to call from work or while they try to survive in some other way.) And that’s if people want to be able to accept collect calls from prison. For those who don’t, there’s the issue of accounts of the people inside. While having the conversation, both parties can hear the “dings” charging the money every few minutes (ka-Ching!). The phone calls get disconnected and one has to call again (ka-Ching!) And if it turns out the phone call was disconnected because the account is depleted, you have to deal with that right away (ka-Ching!) True to the logic I explained in Cheap on Crime and elsewhere, singling out the private sector is making a naive mistake. It takes two for tango, and you bet the only reason this extortive system existed for as long as it did was that sheriffs AND phone companies both stood to gain.

Beyond the obvious issue that people in prison don’t tend to be flush in terms of personal wealth, and therefore there’s a class justice aspect to the new legislation, there are a few more, which expand the conversation. The first is that, beyond phone calls, California’s plant is not conducive to keeping contact with families. Our prisons are located in remote, rural counties, and many people’s families live in dense urban areas. If an Oakland family wants to visit their relative, who is incarcerated in, say, Pelican Bay, they have to plan for an 8-hour trip and a night at a hotel. Public transit is nonexistent and hotels jack up the prices. We also don’t offer vacations at home, which many prison systems in the world do. Until recently, when tablets were provided to people for video visits (partly to simplify complex in-person visitation protocols during the pandemic) it was very difficult for people to stay in touch with their families. The phone call costs were just part of this problem.

There is also the fact that contact with one’s family is known to be the main factor in recidivism prevention. One of my main conclusions in Cheap on Crime was that saving money by eliminating rehabilitation programs, reentry efforts, and the like–what I called “tough ‘n’ cheap”–ends up costing more money by driving the “revolving door” phenomenon. When we talk about “justice reinvestment” it really should be exactly that: in order to save, we have to spend in the right places. Whatever we spend in phone bills we will recoup in people who come home to a supportive family and a helpful community and get the help and love they need during the first few years after release, when the risk of recidivism is at its highest point.

Finally, there is the serious problem of knowing what is happening behind bars. Phone calls are essential not only for keeping in touch with the outside, but also for notifying supporters, lawyers, advocates, and journalists about things that happen away from the public eye, where negligence, incompetence, and sometimes downright cruelty and sadism can produce terrible civil rights violations. In the early months of the San Quentin COVID-19 outbreak, prison authorities prevented people from making phone calls, assuming they would infect each other through the phone (we now know COVID-19 is airborne, but at the time, as some of you might remember, this was not yet widely known and lots of folks were obsessing about cleaning surfaces.) Consequently, for several weeks we didn’t know what was going on, and concerns about housing, food, adherence to masking protocols, etc., were high (and, as it turned out, justified.) Chad Goerzen and I talk about this in FESTER (which comes out from UC Press in 2024.)

For all these reasons, I think this is a terrific initiative. I really hope people use it in ways that are beneficial to their reentry and nourishing for their relationships.

Fighting Ridiculous Court Fees – One Piece at a Time

I’m attending the Annual Meeting of the American Society of Criminology and finding many of the talks illuminating and refreshing. It could be that the overall quality of work has improved, or that I make better choices about which panels to attend. Either way, this morning I’m following a series of panels about improving indigent representation, and have just come out of a conversation with the folks who run the campaign to End Justice Fees.

Those who followed the report on Ferguson are not strangers to the problem, but the public at large is likely ignorant of the immense (to the tune of billions of dollars!) toll of court fees and warrants. Even to me–who thought nothing would surprise me after learning about pay-to-stay and the resulting lawsuits–some of the details were shocking. The campaign’s website offers a wealth of information on the different things people get charged for: electronic monitoring, probation (yes, you pay for the pleasure of being monitored!), and–much to my horror–legal defense. Remember Gideon v. Wainwright, the landmark Warren Court case that required states to fund the defense of the indigent? Well, it turns out that, in 42 states, free representation means free for those who pay the fees (three figure amounts that many defendants cannot afford.)

Just like I found out in Cheap on Crime about pay-to-stay schemes, the absurdity of padding the pockets of municipalities and counties by charging the poor, rather than the rich, is in plain evidence. The fees are rarely recouped, resulting in crushing debt that kills the spirit of countless families and does not make up for the deficits. Figuring out the expense of keeping this ridiculous system in place is difficult (I wish someone took this on! I would, but my plate is full), but even though the numbers are elusive, I don’t think it’s outlandish to assume that pursuing lawsuits against hundreds of thousands of people for not paying what, for them, is a lot of money, but for the system is pennies, is not an economically efficient scheme. That this is costly beyond the obvious is evident from yet another horrible data point: in the Alabama Appleseed survey of people with court debt, they found that 38% of respondents had to resort to actually committing a crime in order to be able to pay the court fees (which are sometimes imposed for mere infractions or traffic violations.)

The good folks from End Justice Fees have come to the conclusion that advocacy works better than litigation for eliminating these fees. Here are some of the ground that they’ve made in California, per their website:

  • CA AB 199 makes the balance of any court-imposed costs assessed prior to July 1, 2022 unenforceable and uncollectible and vacates any portion of a judgment imposing civil assessments charged by traffic courts
  • Eliminated 17 additional criminal administrative fees and vacated $534 million in outstanding debt (2021).
  • California’s Families Over Fees Act repealed 23 criminal administrative fees and vacated $16 billion in outstanding debt (2020)
  • California ended the assessment of new juvenile fees (2017) and discharged outstanding fees (2020)
  • Ordinance eliminated local criminal administrative fees imposed in San Francisco (2018)
  • San Francisco made all jail phone calls free for incarcerated people and ended commissary markups (2020)
  • San Diego eliminated fees for phone calls and video visits (2022)

I’m also happy to report that, per their presentation, we are among the minority of states that do not charge people for their own representation which, under Gideon, indigent folks should pay for free.

The crux of the problem, with litigation, is that Bearden v. Georgia, the case often used to argue against punishing the poor for being poor, requires an investigation of means before incarceration–but the practice in many places is to arrest people for the purpose of assessing their means, which is technically a violation of Bearden but municipalities and courts claim is the only practical way to get ahold of the person.

This strikes me as the sort of initiative that decent people of all political stripes can and should get behind. It should yield the sort of coalitions I covered in Cheap on Crime and bring about more justice on an everyday level without slogans. Want to “dismantle” “abolish” “repeal” “defund” stuff? Here’s a good place to start on the ground and deliver immediate relief to people struggling with financial craziness.

SB 731: Record Sealing and Second Chances

A couple of weeks ago, we passed SB 731, which is another round in a set of efforts to give people with criminal records a fighting chance in life, and in the job market in particular. This Vox article (one of their better “explainers”) comprehensively lays out what the bill will do:

If signed, SB 731 would significantly expand automatic sealing eligibility for people who served time in prison. And while people with violent, serious felony records would not be offered the automatic “clean slate,” they could, for the first time, petition to have their records sealed. Virtually all ex-offenders, except registered sex offenders, would now be eligible for relief.

Under SB 731, while landlords and most employers would not be able to view expunged records, public and private schools would still be able to review them during job background checks. Law enforcement, courts, and the state justice department would also still have access to the sealed records, and individuals would be required to disclose their criminal history if asked about it when applying to serve in a public office, among other exceptions. And the law would not apply to sex offenders.

If signed into law, record relief would become available for most defendants convicted of a felony on or after January 1, 2005, if they had completed their sentence and any remaining parole and probation, and had not been convicted of a new felony offense for four years. Advocates originally wanted records sealed after two years, but that version failed to clear the state assembly a year ago.

Rachel Cohen, “California could give more than a million people with criminal records a fresh start,” Vox, Sep. 9, 2022

If you’re unfamiliar with background checks, you’d be stunned by the sheer number of occupations and life transitions that require clean criminal records. It’s pervasive and it has a deeply unsavory racial aspect. David McElhattan of Purdue University found out that, between 1983 and 2013, the number of institutional thresholds where background checks frighteningly mushroomed, and not only that: The rate at which state institutions adopted background checks increased as African-Americans represented larger shares of state criminal record populations. McElhattan also found considerable support for racial economic threat and, to a lesser extent, ethnic economic threat–and only a weak association between background checks and violent crime.

A few years ago, I was part of a statewide effort to give people with criminal records the ability to at least get through the first stage of employment screening, which resulted in the Ban the Box initiative. Not only did we believe this would lead to less discrimination against people with criminal records, but we thought it would minimize employers’ use of criminal records as a proxy for race. I wrote about this experience here, and especially about its aftermath: to my deep disappointment, my colleagues Jennifer Doleac and Benjamin Hansen found out that employers, unable to discriminate against people based on their criminal record, went back to… discriminating by race as a proxy for criminal records. I concluded that race in America has a protean quality that makes discrimination pop up somehow, no matter what we try to do to undo it. This led me to the bitter observation that any effort to curb overt racism (such as in Foster v. Chatman) seems to just drive the racism underground. What prosecutors once did by scribbling notes at the margins of their work product, they probably now do via snapchat.

This doesn’t mean we have to stop trying, and I’m glad we’ll have a chance to see whether SB 731 works as planned. But my problem with the incompleteness of this bill goes deeper than that: like pretty much everything else I’ve been paying close attention to in the last few years, the people left outside this bill are precisely the people who would benefit the most from it, and the surest bets on clean slate proposals. I refer to people released from prison after serving very long stretches of time for, well, violent crime.

As I explained in Yesterday’s Monsters, and as we further explain in FESTER, any time leniency or mercy comes up, politicians and the public are conditioned to create an exception for “violent offenders”, which we imperfectly define as people convicted for violent crimes. For the many reasons that my colleague David Sklansky explains in his new book, it is not always clear what counts as a “violent crime”–and for the reasons my colleague Susan Turner has repeatedly explained, there isn’t really much of an overlap between the crime of conviction and the risk the person actually poses.

There is an excellent reason for this, which I’ve come to refer to as “the age-violence knot”: people who are convicted of violent crimes are sentenced to long stretches–sometimes decades–in prison. Because of that, when they come out, sometimes after numerous hearings, they are much older–and are now an important demographic in California (a quarter of our prison population is over 50.) Tomorrow is my 48th birthday, and I have increased appreciation of the way age changes mentality–and I, of course, benefit from freedom, loving people, resources, an excellent education, a comfortable job, a lot of sports, and healthy nutrition. Imagine what 20-30 brutal years in these areas do to a person’s body and soul. We know people tend to age out of violent street crime in their late 20s; they become far less risky and far more expensive (healthcare-wise) the more they are incarcerated. My fieldwork for Yesterday’s Monsters included visiting places in which parole agents spoke with a lot of respect and care about these aging folks, many of them lifers, as mature, nonviolent, mentoring influences both in the yard and on the outside. These are precisely the people that are already going to face a ton of discrimination in the job market because they’d be fighting for jobs against much younger candidates, and with a complicated résumé to explain. The advantages of giving these folks a leg up are manifold, and the only reason we don’t do it is the murky political optics of “forgiving violent people.” As long as we exclude this group, we’ll continue to miss out on getting the most bang out of the reentry buck, and it’s beginning to feel like I will have to sing this refrain for many more years of my career.

More Good News: Bonta Drops State Appeal in Quentin Cases

While I was focus on witness prep for the #SmithfieldTrial, my friend Allison Villegas shared a piece of good news: on Thursday, the Attorney General filed a notice that he is dropping the state’s appeal in In re Hall et al.

To recap what happened: Since the outbreak at San Quentin erupted in late May/early June 2020, hundreds of people incarcerated there litigated, asking to be delivered from the environment of infection, hospitalization, fear, misinformation, neglect, ineptitude, and death that characterized the prison’s response to the outbreak. Our litigation led to the landmark decision In re Von Staich, in which the Court of Appeal ordered that the population at Quentin be reduced to 50% of design capacity (as the physician group AMEND SF recommended.) We later had a reversal of fortune at the hands of the CA Supreme Court, which ordered an evidentiary hearing (a year after the fact, but waves of COVID continued to ravage the prison.) At the evidentiary hearing, things looked even bleaker for the states, as witnesses testifying from Quentin via Zoom revealed layer after layer of what they suffered at the hands of nincompoops, COVID denialists, and a prison administrative system in which the custodial and the medical sides have no understanding of each other. In October 2021, Judge Howard issued a tentative ruling in which he accepted every claim we made about the horrific and unconstitutional abuse that the men were subjected to, and wrote that the Eighth Amendment was violated in no uncertain terms, but… did not give us any relief, because presumably the whole case was “moot” as “the vaccine changed the game for COVID-19 at San Quentin. With a nearly 80 percent inmate vaccination rate, COVID-19 has all but disappeared from inside the prison. Although COVID-19 remains a risk within San Quentin, it appears at present no more than, and perhaps even less than, the risk faced by the community at large.”

This was, in itself, outrageous, and not exactly true even when it was written: the Delta variant began making its way through the prison. Shortly after, we saw the shortsightedness of not getting relief when Omicron swept through the system. To add insult to injury, while the petitioners chose not to appeal the decision (a choice I still feel quite crummy about), a surprising thing happened: the state appealed, even though we actually received no relief!

Back in summer 2020, Rob Bonta, then an Assemblymember from San Mateo, stood shoulder to shoulder with us at the press conference, speaking so movingly about the preventable disaster at Quentin that he was quoted in the guardian. But by March 2021, when he was appointed Attorney General, he apparently forgot all this. At the time, thinking the same person would keep the same conscience, I made a list of all the things he could do to help, and I confess that “refraining from appealing a decision in which the prisoners got no relief only to save the honor of CDCR at the taxpayers’ expense” was not something that even occurred to me needed to be said! But lo and behold, the AG office did appeal the ruling, God knows why, which prompted me to ask what I still think is an excellent question: What, actually, is the Attorney General’s job? Does the Attorney General work for all Californians all the time–including Californians behind bars–or does he become a hired gun when he’s in litigation? Does it make sense to posture as a science-forward, vaccine-forward AG when the time comes to require vaccines in schools, while at the same time becoming the Tom Hagan of the prison guard’s union when they don’t want a vaccine mandate because they are “his client”?

Thursday’s decision to pull this tasteless, tone-deft, and frankly, disgusting appeal, comes two years too late, when it doesn’t make news or waves, but it at least gives back a modicum of decency to an office that showed absolutely none throughout this entire crisis. We write extensively about the AG’s role in curtailing releases and supporting COVID denialists in uniform in Chapter 7 of #FESTER.

Prison-Community Transmissivity Model: COVID-19 Management in Prisons Would Have Prevented Almost 12,000 Deaths in CA

It’s been a very busy week, but an accomplished one: Chad Goerzen and I finished writing FESTER and sent the manuscript off to University of California Press. We are very proud of the book and look forward to the reviews, which are sure to make it even stronger.

Among the many things we do in this book is a model of prison-community transmissivity. Because the correlation between prison and community cases (which we were tracking here throughout the pandemic) is bidirectional, we rely on the Bradford Hill factors for causal inference in epidemiology. Among the tools we use is a counterfactual model, in which we create concentric rings around each of the following: every correctional facility (e.g., San Quentin); every surrounding community (e.g., Marin County); and the wider community beyond. We can add and subtract rings to show the effect of infections in one ring on the others.

Our model shows that, due to the extraordinarily high prevalence of COVID-19 cases inside CDCR facilities, particularly during the year 2020, these facilities had a large influence on their regions, far more than their relatively small population and isolation would suggest. In Marin County, we predict that avoiding the Quentin outbreaks would have prevented 58 deaths, 22% of the COVID-19 deaths; and throughout the states, without the outbreaks in CDCR facilities, we could have prevented 11,974 deaths, or 18.5% of the COVID-19 deaths in California for this period. Furthermore, the outbreaks in San Quentin and CDCR occurred before vaccinations were publicly available and before effective treatments for COVID-19 were developed, making them particularly high impact on mortality.

In the next few weeks, I will give a few talks in which I’ll elaborate on the model and on the other tools we used to expose the experience and roots of what we consider a very serious human rights crime. On September 13 I’m giving a virtual talk at the University of Arizona, and on October 10 an in-person talk at UC Berkeley’s Center for the Study of Law & Society. I’ll advertise these via the Events tab on the blog and would love to see my readers in the audience to discuss what we can learn from this disaster.

Understanding Newsom as a Politician following Injection Site Bill Veto

The harm reduction community is deeply dispirited over Gov. Newsom’s rejection of the proposed safe drug injection/overdose prevention site in Oakland. Marisa Kendall reports for the Mercury News:

Senate Bill 57 would have allowed the two Bay Area cities to become among the first in the country to open facilities where users could bring drugs and consume them in a safe, supervised setting. The bill passed the state legislature this month. But after rejecting the bill, Newsom expressed worry that the law could actually make the drug crisis worse in those three cities.

“The unlimited number of safe injection sites that this bill would authorize — facilities which could exist well into the later part of this decade — could induce a world of unintended consequences,” he wrote in a veto message. “It is possible that these sites would help improve the safety and health of our urban areas, but if done without a strong plan, they could work against this purpose.”

Newsom added that he is instructing the secretary of Health and Human Services to convene a group of city and county officials to discuss overdose prevention strategies and how to implement a more limited pilot program.

This is a great disappointment, but not a big surprise. Kendall ties this position to Newsom’s possible presidential candidacy:

The move comes amid mounting speculation that Newsom might be eyeing a presidential run. And while it’s unclear whether those ambitions played into his decision, rejecting the bill likely will only help him on the national stage, where the majority of voters would likely balk at the idea of facilitating drug use, said Claremont McKenna College political science professor Jack Pitney.

“There’s a solid policy rationale for the veto,” Pitney said, “but politically, he’s dodged a potentially big problem.”

I have a few thoughts to offer about this observation. For many years–since my graduate school days in the early 2000s–I liked Newsom and believed in him, though I always knew that a politician is a politician, not the messiah (some of the Obama disappointees fell into that trap.) I admired his administration’s bold moves to the point that I was delighted to be considered for his penal code revision commission and sorely disappointed not to have been picked. In hindsight, though, not working for this administration was a blessing. I can’t imagine being able to help the people at San Quentin as much or in the ways that I did if I felt bound by loyalty to the Newsom administration.

Watching Newsom, Bonta, and others handle the executive and judicial aspects of the COVID-19 crisis was sobering. In Chapter 7 of our forthcoming book FESTER (the manuscript is due with UC Press this week!) we make the following observations about Newsom:

[T]he Governor’s [paltry COVID-19 release] program was overly sensitive to public backlash, and featured the classic hallmarks of the age-violence-risk paradox. Bifurcation—applying early releases and good time credits only to nonserious, nonviolent, nonsexual offenses—was in evidence in every category on the plan, despite the lack of correlation between the crime of commitment and risk to public safety. At first blush, such kowtowing to public outcry would seem uncharacteristic of Newsom, whose political path, from his early days as Mayor of San Francisco, featured bold, high-profile moves to advance progressive values and objectives, which he presented as doing the right thing no matter the backlash. His move to legalize same-sex marriage in California—the subject of ferocious litigation that culminated in a Supreme Court victory—was perceived by some, at the time, to be political suicide. Similarly, his moratorium on the death penalty was criticized for not reflecting the wish of a small but consistent majority of Californians. In both of these cases, Newsom correctly read the political winds, and his predictions proved true; his self-styled image of an idealistic pioneer was boosted by the fact that his executive decisions preceded wider societal shifts. But Newsom’s reluctance to release people convicted of violent crime reflected age-old wisdom in California politics that, even in the bluest of counties, it is not a wise political move to flout entrenched fears of violent crime. Reflective of the justifiability of this concern was a disparaging story in the Los Angeles Times about Newsom’s plan titled, “California is releasing some murderers due to COVID-19. Some say it should free more.” After a barrage of phone calls from Coalition members, the newspaper changed the headline, but the content, which rehearsed tired tough-on-crime tropes from the Reagan administration days, remained unaltered: the writers chose to interview crime victims who, while entitled to their personal opinions, were neither the statewide curators of victims’ perspectives nor qualified to offer broad insights on emergency healthcare policies. They also mentioned, without a shred of irony, Willie Horton.

. . .

Three examples of such aging, low-risk people drive home the extent to which age-violence-risk paradox was part of the Newsom administration’s calculus. Twice during the pandemic, the parole board recommended parole for Leslie Van Houten, born in 1950 and housed at California Institute for Women (CIW.) Van Houten had been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what appear, in light of her exemplary prison record, pure political spite. Van Houten has maintained a clean disciplinary record, participated in a variety of laudable programs, and incessantly excavated her psyche to show “insight” to the Board. She participated in the Manson murders when she was 19 years old, manipulated and sexually exploited in a setting that, with today’s #MeToo sensibilities, might have shed a completely different light on her involvement.

As one of us has explained elsewhere, the Manson family cases shine a light on the question of redeemability, featuring people who have clearly done their utmost to undergo, live, and exude transformation but whose notoriety stands in their way. But van Houten’s two last hearings featured an additional consideration: the parole hopeful was over 70 years old and CIW, where she was housed, was experiencing an outbreak just as she was denied parole.

Another notorious member of the “Class of ‘72’”—the 107 people condemned to death whose sentences were commuted to life with parole after People v. Anderson—was Sirhan Sirhan, who had assassinated Robert Kennedy. At the time of his COVID parole hearing, Sirhan was 77 years old. The Chronicle’s Bob Egelko forecasted his parole bid:

“Anybody that has ever walked into my office, you have to walk by photographs of Bobby Kennedy’s funeral procession, those famous train photos,” the governor said, according to a transcript provided by his office. “The first photograph, the only photograph you will see in my office is a photo of my father and Bobby Kennedy just days before Bobby Kennedy was murdered.”

At the time of Sirhan’s parole bid, Newsom was facing a recall election in which he had everything to lose, and absolutely nothing to gain, from releasing Sirhan. As Egelko explained, Newsom’s leading opponents in the recall, all of whom were well to his right politically, would seem equally unlikely to approve Sirhan’s parole. Moreover, any decision to release Kennedy’s murderer would surely become a flash point in the 2022 governor’s election.

“I’d be shocked if Newsom didn’t reverse” the parole board’s decision, said Robert Weisberg, a Stanford criminal law professor. Although the governor would have to explain why he believed Sirhan still posed a threat of violence, Weisberg said, he would most likely be “responding to a public view that this guy’s crime was so heinous that he shouldn’t be paroled.”

Predictably, Newsom vetoed Sirhan’s parole and, perhaps hoping to win political points while facing a recall election, took the trouble to pen an op-ed about it in the Los Angeles Times:

“Kennedy’s assassination not only changed the course of this nation and robbed the world of a promising young leader, it also left his 11 children without a father and his wife without a husband. Kennedy’s family bears his loss every day. Millions of Americans lost a unifier in a time of national turmoil and grief, just nine weeks after the assassination of the Rev. Martin Luther King, Jr., and four-and-a-half years after the murder of Kennedy’s brother, President John F. Kennedy.

“Yet, after decades in prison, Sirhan still lacks the insight that would prevent him from making the kind of dangerous and destructive decisions he made in the past. The most glaring proof of Sirhan’s deficient insight is his shifting narrative about his assassination of Kennedy, and his current refusal to accept responsibility for it.”

The language in Newsom’s op-ed echoes the concept of “insight”, which parole researchers broadly agree is a deliberately opaque, vague term used to justify denials based on the now-prohibited consideration of the heinousness of the original crime. Kathryne Young explains that “insight” is. Kristen Bell identifies the same obfuscation with regard to juvenile parole hearings. And Rita Shah, in a review of my previous book Yesterday’s Monsters, pithily explains that “Like rehabilitation, insight seems be a bullshit term as determining whether one has gained insight or is on the road to rehabilitation appears to be the criminal legal system’s equivalent of ‘I’ll know when I see it.’”

But the absurdities in Van Houten and Sirhan’s cases pales in comparison with the continued incarceration of Gerald Albert Oates who, at the age of 94, is the oldest living person incarcerated at CDCR. After a parole denial in 2018 because, unbelievably, Oates is still categorized as “high risk” by CDCR,[8] he remained incarcerated throughout the COVID-19 crisis, apparently surviving the Newsom Administration’s project to identify priorities for release. Oates’ case highlights the extent to which the calcification of fear and loathing of so-called “violent offenders”, wrought by the age-violence-risk paradox, stood in the way of making parole decisions that made sense, practically and medically.

There you have it: a politician I used to respect and admire. Over the course of the last few years, I have come to realize that his true gift is his keen sense of smell for where public opinion will be two weeks from now, appearing as a maverick when pushing initiatives that he knows will shortly enjoy wide public support. Because he knows that people addicted to drugs in the streets and people languishing in overcrowded prisons (1) don’t vote and (2) don’t matter to voters, he can afford to continue running California as if their lives don’t matter at all.

Last comment: Whatever Newsom is doing is playing out marvelously in California, where a recent poll shows him a reelection shoe-in (long-time readers will recognize his opponent, Brian Dahle, an old-skool law and order guy who opposed the recent prison closure in Susanville.) But it might not earn him as many points as he hopes in less-blue pastures on the national stage; he’s not getting any love for this on Fox News, where they can see right through it (even a broken clock shows the right time twice a day.)

LSA 2022 in Lisbon!

Hello, Everyone! Today I’m heading out to Lisbon, Portugal, for the annual meeting of the Law & Society Association. At the meeting I will be quite busy, participating in five panels:

Wednesday, July 13, 8:15-10:00am Lisbon time: Criminal Law. I will comment on three groundbreaking papers on topics ranging from the politics of self defense to the criminal responsibility of AI entities.

Thursday, July 14, 10:15am-12:00pm: Politics in and of Punishment. I will comment on papers examining public opinion, punitivism, and political machinations in punishment.

Friday, July 15, 2:45-4:00pm: Emotional Labour of Conducting Research. A topic near and dear to the heart of anyone doing work in and about correctional facilities, I will comment on papers unpacking the emotional toll of researching complicated settings (my comments will highlight, among other issues, secondary trauma, and provide some practical mindfulness and wellbeing tips for advocates and activists as well as journalists and interviewers.)

Saturday, July 16, 12:45-2:30pm: Punishment’s Nuance: Looking at Incarceration and Parole in New Contexts and Perspectives. I will present Chapter 3 of my forthcoming book with Chad Goerzen FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster, which surveys the pains of COVID imprisonment. Ashley Rubin will comment. The other papers of the panel are well worth hearing.

Saturday, July 16, 4:45-6:30pm: Contrasting penal trends across the Global North and the Global South III. I will comment on four papers by criminologists and social historians on the political economy of punishment across borders, and will center my remarks on the malleability of the concepts of “developed” and “developing” countries (a topic I discussed here.)

All of my panels, including locations, are listed in the event tabs of the blog. I’ve already read most of the papers I’m commenting on, and the quality is outstanding!

As the outgoing co-organizer for CRN 27, Punishment and Society, I also plan to attend our informational/social meting Wednesday (13 July) from 12:10 to 1:10 (location TBD for CRN members.) 

I am also the book review editor for Law & Society Review (until the end of 2022) and happy to discuss your new publication and how to celebrate it in our flagship journal. And, as a member of the LSA Publications Committee, am at your disposal if you want to discuss the open call for a new LSR editor-in-chief.

I do not have a Portuguese SIM, and my responsiveness to texts throughout the day will depend on internet availability. The safest way to schedule something with me is through my email (messages to this website end up in the same inbox, so you can do that, too.)

AB 2730 Proposes a Prison-Release Continuum

Good news! AB 2730 (Villapudua) is on its way to the California Senate. The gist of the proposal is:

This bill would would, subject to appropriation by the Legislature, create the California Antirecidivism and Public Safety Act pilot program for the purpose of providing opportunities for job training and work experience to individuals during incarceration to ensure their readiness for employment upon release from incarceration. The bill would require the California Department of Corrections and Rehabilitation to establish and implement a 5-year pilot program under which individuals sentenced to state prison, and scheduled to be released to parole or postrelease community supervision within 2 years, would be eligible to participate. The bill would require the pilot program to provide for the housing of the program participants in a community campus setting. The bill would require program participants to have access to evidence-based programs suitable for serving their rehabilitative, workforce training, and education needs, as specified. The bill would require the department, on or before March 1, 2027, to submit a comprehensive report to the Legislature that evaluates the effectiveness of the pilot program, as specified. The bill would repeal these provisions on January 1, 2028.

The idea is nothing new from a global perspective. As Cal Matters’ Nigel Duara explains, it is inspired by Scandinavian prisons, but I vividly recall working on precisely this sort of thing alongside Israel’s Prisoner Rehabilitation Authority in the late 1990s and early 2000s. I’m not sure how the program works now or how well it is funded, but back in the day the idea was this: ninety days before any incarcerated person was to be released, representatives of the Authority would meet with them and come up with a release plan that involves housing and employment. The Authority partnered with an assortment of diverse entities on the outside–agricultural enterprises in Kibbutzim, Yeshivot looking for students, big construction contractor firms, and lots more–and tailored an employment plan for each person. They made sure the person started receiving orientation and training before being released, and the prospective employers were briefed on how to make people feel welcome. They also sponsored a wide variety of housing initiatives, including subsidized housing that partnered two university students with one formerly incarcerated roommate.

It is also nothing new from an historical perspective. One of the most well-known prison reformers, Alexander Maconochie, was Warden of Norfolk Island (see image above) in the mid-19th century and introduced a points system that rewarded good behavior with gradual freedoms and skill acquisition. He transformed a horrific penal colony into a success story and ended up being a victim of his own success, removed from office by law-and-order folks who didn’t like hearing that the prisoners had toasted the Queen’s birthday with alcohol.

Here are some thoughts on what is and is not in the bill, which is a very general one-pager:

Who is in the program? The bill states that, at least during the five-year pilot period, the participants will be chosen by the warden or his/her designate. The criteria are not specified in the bill. I worry that this means that wardens concerned about optics will exclude long-term prisoners who could most benefit from a good introduction to the outside world.

How long does the program last? It looks like the prison is budgeting for the last two years of one’s sentence,

What job skills are provided? The Cal Matters article mentions truck driving, which means leaving prison with a Class A commercial driving license (a great asset on the job market.) But I wonder if CDCR shouldn’t also look at programs it already offers to very few people and consider vastly expanding them. Two examples of programs that produce a 0% recidivism rate (!) are carpentry and marine technology, and our incarcerated firefighter program could also use a considerable expansion. I’m also not entirely clear whether this is only about the provision of jobs or also about actually connecting people with openminded employers, so that they can have a guaranteed job on day one. This is how it’s done in Israel and should also be done here, given the mixed blessing of Ban the Box.

What else does someone need before they go into the outside world? According to Alessandro de Giorgi’s work–money to survive and a place to live. The main problem people face in the first few months on the outside is abject poverty. And since this program doesn’t provide any extra funding, I wonder how we can accomplish that.

If there’s no money, how can prisons make this happen? While rehabilitative prison programming, which now relies mostly on volunteers, is quite uneven in quality, some programs, such as Alliance for CHANGE, already provide useful, pragmatic training for reentry, including training on how to use smartphones and the Internet, as well as budgeting, managing outside bureaucracy, and the like. CDCR should approach this in a collaborative way, seeking to scale up what is being done in these volunteer programs for the benefit of the whole prison. What this also means is that, if the quality of incarceration has to improve, the quantity has to be decreased, and the best way to do that is to incarcerate fewer people for shorter periods. Presumably, if this program works and its graduates are less likely to get back to committing crime, it should pay for itself.

What about staff/guards? CCPOA has, perhaps surprisingly, lent its support to this project, telling CalMatters that the guards have front-row seats to everything that doesn’t work: programs that have “no correlation to the needs of the communities to which inmates will be released” and housing scenarios that produce “pressures […] from fellow inmates [that] can be too great to keep to the straight and narrow.” They know that “[p]rison politics can often be inescapable when programs and housing are delivered in the same environment as those who have no intention of improving themselves” (and one only wishes they were so enlightened when it was time to get vaccinated.) But I also think that, in separate transitional housing, CDCR should seriously consider hiring, training, and placing differently.

How to assess the success of the project? This is a very tricky issue. If the folks who enter the program are selected by the warden, rather than randomly assigned to the program, then an experiment with randomized experiment and control groups is impossible, and much of the success of the program may rely on self-selection. So, even if the pilot cohort will be successful, this will raise serious questions about the ability to scale this up to the entire prison population. Whoever is doing this evaluation study will have their work cut out for them (I don’t think it’ll be me, but we’ll see.)

What about the politics of this? Will it pass through the Senate? I don’t know. Everything is policitized these days, even things that shouldn’t be. It should be everyone’s goal, from the staunchest law and order fanatic to the bleedingest of progressive hearts, that less recidivism is good for everyone: taxpayers, potential victims, you name it. There is no reason this should get anything less than enthusiastic support from all quarters; the question is only whether the reallocation of CDCR’s budget will be done in a way that sets this up for success.