Ninth Circuit Strikes Down Guard Vaccine Mandate

In an unfortunate, albeit not unexpected, decision, the Ninth Circuit reversed Judge Tigar’s vaccine mandate. You can read the decision in full here.

The reasons, in short, are as follows: the judges considered CDCR’s efforts in “making vaccines and booster doses available to prisoners and correctional staff, enacting policies to encourage and facilitate staff and prisoner vaccination, requiring staff to wear personal protective equipment, and ensuring unvaccinated staff members regularly test for COVID-19. . . symptom screening for all individuals entering the prisons; enhanced cleaning in the facilities; adopting an outbreak action plan; upgrading ventilation; establishing quarantine protocols for medically vulnerable patients; and testing, masking, and physical distancing among inmates” sufficiently ameliorative to reduce their misdeed below the threshold for an Eighth Amendment violation and “[a] decision to adopt an approach that is not the most medically efficacious does not itself establish deliberate indifference.”

Chapter 6 of our book, which discusses COVID prison litigation, is called “The House Always Wins.” This decision is a textbook example of the pathologies of prison litigation and why it fails to address problems in real time. It doesn’t even matter whether the litigation is happening on the federal or state level, because the basic problems are the same: the courts focus on the prison setting more than on the law, continuously contort the Eighth Amendment to defend prison administration, and ignore the basic regulatory requirements in the free world, assuming the prison is so different that they don’t apply. In addition, there is an interagency “game of chicken” that stalemates any efforts at providing timely help during an emergency: the natural actors that should quickly intervene in such situations are the governor and the prison authorities. Since neither has any incentive to do anything helpful, and since the people entrusted with the immediate care of the inmates are in a union that has been completely politically captured, the courts have to make noises of stepping in, but dragging their feet means that dynamic situations change and transform long before they have a chance to intervene.

I think that what happened with this Ninth Circuit decision mirrors what happened with the San Quentin litigation. Recall that, back in November, Judge Howard found that the botched transfer from Chino constituted an Eighth Amendment violation, but the vaccines changed the game and rendered relief moot. I suspect that the Ninth Circuit judges were affected by the fact that, due to the new variants and new endemic realities of COVID, the diminishing returns of vaccination mean that the urgency behind vaccinating the guards (which had already begun to fade by the time Judge Tigar decided to act) is far less salient than it was in winter 2021, when their opposition to vaccination was at its strongest and their compliance could have made a real difference. In other words, this is a classic demonstration of how justice delayed is justice denied.

The other issue is the inherent limitation of litigation, which is backwards-looking. In the Quentin case, Judge Howard explicitly said that he did not look to the next variant or to the next pandemic; his job was just to assess the violations of the past. As we see again in the Plata case, this fundamental trait of litigation is unfortunate for dynamic situations because, as Wes Venteicher reports in this morning’s SacBee:

Now another wave could be coming. The corrections depnartment reported its largest week-over-week increase in new cases, measured as a percentage, in the last week of April. New cases increased by 820%, reaching 322 infections from the prior week’s low figure of 35. About 97,000 people are incarcerated in the state’s 34 prisons. The biggest increases in the last two weeks have been at San Quentin State Prison, Pelican Bay State Prison, California Health Care Facility in Stockton, California Medical Facility in Vacaville and Ironwood State Prison in the southeast corner of the state, according to a corrections department infection tracker.

Ultimately, the only way to learn lessons for the next variant, the next pandemic, the next health crisis, is to conclude the obvious: it is impossible to save lives and provide decent healthcare to 100,000 people in California if the people entrusted with their care do not prioritize their wellbeing. Given that we do not seem to be able to attract people who have the prisoners’ best interests in mind to fulfill custodial positions, from the top, through the unions, to the rank-and-file, the only tenable conclusion is that we cannot and should not incarcerate nearly as many people as we do now. This will be the main conclusion of Fester, though we do make many other recommendations.

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.

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.

A Visit to Tulane

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

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

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

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

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

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

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

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

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

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

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

What is the CA Attorney General’s Job?

On July 9, 2020, the #StopSanQuentinOutbreak coalition held a press conference outside the prison gate to draw attention to the medical crisis behind bars. The five weeks that preceded the conference saw the COVID-19 case count in the facility grow from zero to more than a thousand, and when we held the conference, people were already dying. Many people spoke at the conference–family members, formerly incarcerated people, doctors, experts, politicians.

The picture above is from the press conference. On the right side of the picture is then-Assemblymember Rob Bonta, who spoke very movingly and urgently about the need to have Gov. Newsom visit the prison and release people. Bonta’s speech was quoted in the Guardian:

“We are in the middle of a humanitarian crisis that was created and wholly avoidable,” said the California assembly member Rob Bonta at a press conference in front of San Quentin state prison on Thursday.

“We need act with urgency fueled by compassion,” he added. “We missed the opportunity to prevent, so now we have to make things right.”

Fast-forward a year and a half, and Bonta, now California’s Attorney General, is appealing Judge Tigar’s order to vaccinate the guards in CA prisons. The staunch resistance at CDCR and at the Governor’s mansion to the idea of letting old, sick people be released back to their families–purely for optics reasons, as they pose little to no risk to public safety–resulted in a paltry an ineffectual release policy (as I predicted the day it was announced) and, also predictably, in a complete abandonment of the release plan as soon as vaccination emerged on the horizon. Within the activist/advocate community, this presented a problem: while vaccines would slow down, or even end, the COVID-19 crisis, they would not prevent future contagions, which are sure to come given the prison infrastructure, medical understaffing, and chronic neglect and indifference. At the time, when talking to a friend, I said we had to get on the vaccine bandwagon; the fight to save lives now was as important as the fight to save more lives in future years, and we certainly could not afford to let go of the call to make the prison population a top vaccination priority.

Despite some governmental hiccups, and despite the prevalence of ignorant arguments that combined deservedness with medical care, people in correctional facilities educated themselves about the benefits of vaccination and, thankfully, accepted the vaccine at rates exceeding the general population. The credit for this success goes first and foremost to the correctional residents themselves, who had to sift their way through mountains of disinformation from custodial staff and their own mistrust of anything coming out of the authority that caused the outbreak in the first place. It also goes to formerly incarcerated people who encouraged their friends to do the right thing, and to AMEND for targeting correctional populations with excellent, 100% reliable medical advice. It certainly does not go to the government, which deprioritized prisons throughout the process.

More seriously, the staff is still the problem: custodial staff nationwide are still refusing vaccines at mind-boggling rates.

Graph showing vaccination rates among prison staff lagging behind overall rates in nearly all states
Source: UCLA Behind Bars Data Project

In short: Even though the fight to release people is still as urgent and relevant as it was in the summer of 2020, virtually nothing has happened on that front that would make a difference during this pandemic or the next one. Jail populations are back up to pre-pandemic levels; California prisons, which are still overcrowded despite a 18% population reduction, are now responsible for 7 out of the top 10 largest COVID-19 prison clusters in the country.

line graph showing 50 state prison and federal prison population changes from March 2020 to October 2021
Source: Prison Policy Initiative

Against this backdrop–the most important and pressing measure for contagion prevention basically abandoned–the litigation battle lines have been drawn at a much more modest expectation: staff vaccination. As a legislator, Bonta called for the more thorough system fix; as part of the Newsom administration, his employees are defending indefensible arguments and making absurd excuses to shirk responsibility even for the truly modest goal of protecting the lives of staff and incarcerated people.

Bonta/Newsom’s zealous appeal against this modest goal (essentially an incomprehensible support of Trumpist anti-vaccine drivel coming out of the Proud Heroes of the Resistance! or is it?) is even more absurd when compared to the Newsom/Bonta perspective on mandating vaccines in schools, considerably less dangerous settings than correctional facilities from an epidemiological standpoint. Indeed, some anti-maskers are calling Newsom/Bonta to task for forcing them and their kids to vaccinate when they are not imposing such duties in prison (even a broken clock shows the correct time twice a day.) Bonta’s response when a CalMatters journalist confronted him with the hypocrisy? “I have a client” (i.e., CDCR) and “you’ll have to take it up with my client.”

Which brings up an important question: What, actually, is the Attorney General’s job? Is the AG wearing two separate hats when supporting legislation/regulation and when litigating? Can the government speak out of two sides of its mouth on, essentially, the same matter of scientific/medical validity? When litigating in court, is the AG no more than a hired gun for a “client” (the government) with no obligations to support what’s right? Does the AG stop working for us when he works for our government? When protecting anti-masker prison guards, does the AG stop being a public official, holding office for the benefit of all Californians, and become CCPOA’s Tom Hagen?

Here are two instructive scenarios from recent CA history. In the first one, then-Governor Jerry Brown and then-AG Kamala Harris were called upon to defend a new amendment to the CA constitution, otherwise known as Prop 8 (“marriage is between one man and one woman”). You may recall their position then: Harris declined to defend Prop 8 “because it violate[d] the Constitution. The Supreme Court has described marriage as a fundamental right 14 times since 1888. The time has come for this right to be afforded to every citizen.”

Let’s recap: The Eighth Amendment guarantees freedom from cruel and unusual punishment, which in the context of prison conditions means that deliberate indifference to a serious health and safety risk is violative of the Constitution. We now have a ruling that having unvaccinated staff at CDCR facilities is a violation of the Eighth Amendment. AG Bonta, why would you defend this in federal court?

In the other instructive scenario, Harris, again as Attorney General, appealed Jones v. Chappell, a federal court decision that held the death penalty unconstitutional because of the delays. At the Ninth Circuit, they prevailed on a narrow, technical ground–the district court had applied a “new rule” at a habeas proceeding (for my explanation of this technical legal point, see here.) On principle, I still maintain that it was wrong of Harris to appeal the decision (here‘s a summary of my position on that matter.) It was an illustration of a tail-wagging-the-dog scenario: Harris walked away from that incident remembered for upholding a technical retroactivity ruling, rather than for dismantling our dysfunctional and monstrous death penalty. But at least there was some doctrinal support for that position.

This is not the case here: we have a ruling that is not only correct (and extremely narrow) on a policy level, but also on a legal level. Bonta and Newsom know full well that their position is morally and legally indefensible. Why, then, are they appealing, and is this a fulfillment of the AG’s ethical obligations?

Moreover, even accepting Bonta’s peculiar distinction between his role in legislation and in “client” representation, even the most zealous and unprincipled gun-for-hire private attorney will have situations in which it will be necessary to sit down with the client and explain that a position that the latter wants to advance in court is untenable (e.g., there’s no hope for an insanity defense because the defendant is sane; there’s no self-defense because there’s ample proof that the defendant shot someone in the back for profit with no provocation whatsoever.) In situations in which the client insists on a particular line of legal argumentation, lawyers who cannot pursue that line with a straight face need to withdraw from representation. It is long past time for Bonta and his employees to have a come-to-Jesus conversation with their “clients” and explain that vaccinating the staff is a minimal, modest expectation, barely enough to pass the already eroded Eighth Amendment standard, and that balking at it is not a move that the AG’s office can support.

BREAKING NEWS: Tentative Ruling in San Quentin Cases; Judge Howard Declares that CDCR Caused“the Worst Epidemiological Disaster in California Correctional History.” Appeal in Plata; Order Blocked in North Kern

This week has seen several important developments in the legal cases associated with COVID-19 in prisons, the most recent of which is a tentative ruling (subject to objections from the parties, of which there are expected to be many) from Judge Howard of the Marin Superior Court in Hall (Von Staich), the case examining the San Quentin COVID tragedy. Here is Judge Howard’s 114-page ruling:

Final Tentative Ruling 10-15-21_AC (1) by hadaraviram on Scribd

The ruling provides a comprehensive historical narrative of the outbreak at San Quentin, starting with the fateful transfer from CIM, and complete with the testimonies of incarcerated and expert witnesses. Judge Howard discusses the ineptitude and mismanagement at San Quentin, from the Warden to the custodial and medical staff; he relays the many rejected offers for help. Notably, when discussing the impact on incarcerated people, the opinion takes special care of relaying the impact of the crisis on mental health and morale (through the testimony of Dr. Kupers and several incarcerated witnesses.) Also to Judge Howard’s credit, he discusses the ancillary punitive aspects of the prison’s response to COVID, which amounted to solitary confinement for many long months.

While the decision commends CDCR for some of what they did, ultimately it relies on evidence from both petitioners and respondent to show that, had they done nothing, the rate of infection, disease, and death would have been the same.

The upshot, though, is that Judge Howard denies relief to petitioners due to mootness:

[T]he 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 tha, and perhaps even less than, the risk faced by the community at large.

But even if COVID-19 continues to pose a substantial risk of serious harm, the combination of substantial population reduction, mitigation measures, and most importantly vaccine rollout, to every inmate in the prison shows that Respondent does not “knowingly and unreasonably” disregard an objectively intolerable risk of harm. By offering the vaccine to all inmates, Respondent has responded reasonably and effectively with the best tool available to mitigate the harm. This situation differs from the scenario presented to the In re Von Staich court, where “Absent a vaccine or an effective treatment, the best way to slow and prevent spread of the virus is through social or physical distancing, which involves avoiding human contact, and staying at least six feet away from others.” Here, the vaccine, combined with other measures, allows less physical distance. Petitioners did not carry their burden to show that Respondent continues to unreasonably disregard a known serious risk by failing to take further measures such as further reducing the prison population.

But Judge Howard doesn’t end there. He explains that, even when relief is denied due to mootness, where “a question of general public interest which is likely to recur,” habeas petitioners may seek a declaration of rights in these circumstances, “including where the court may have difficulty ruling on the issue while the controversy is alive, and where it presents important issues of liberty and social interest.” This, he says, is just such an issue. And so, the last five pages of the decision lambast CDCR/CCHCS in general, and San Quentin officials in particular, for their ongoing neglect and for the general conditions of the prison, which are conducive to future contagion. Here is Judge Howard’s declaration:

  1. Respondent caused “the worst epidemiological disaster in California correctional history.” [my emphasis – H.A.] In doing so, Respondent recklessly ignored what it knew then and concedes now – that COVID-19 posed a “substantial risk of serious harm to the health and safety of petitioners.”
  2. Respondent’s conduct that resulted in 75 percent of the San Quentin inmates contracting COVID-19, and 28 deaths, implicates “matters of clear statewide importance” relating to the “efficacy of the measures officials have already taken to abate the risk of serious harm to petitioner and other prisoners, as well as the appropriate health and safety measures they should take in light of present conditions.” (Staich on H.C., supra, 272 Cal.Rptr.3d 813.)
  1. During the 2020 COVID-19 outbreak at San Quentin, Respondent violated Petitioners’ rights under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution to be free of cruel and unusual punishment. Respondent exhibited deliberate indifference to the admitted risk posed by COVID-19, by (a) violating its own rules and procedures when it transferred the CIM inmates to San Quentin, knowing that those inmates posed a risk of introducing COVID-19 into San Quentin; (b) violating its own rules and procedures during the intake and processing of the newly-arrived CIM inmates, in particular by ignoring obvious COVID-19 symptoms, failing to quarantine the transferees, failing adequately to screen them, and failing to test them until after they had already begun to infect the existing San Quentin population; (c) ignoring advice from its own medical professionals and CDC guidance by failing to provide adequate PPE, mixing sick and well inmates, failing to cohort inmates adequately, failing to enforce social distancing, and failing to provide adequate or timely testing; and (d) ignoring Willis/MDPH’s recommendations without any basis other than that MDPH purportedly had no authority over Respondent.
  2. As in Plata, “[n]umerous experts testified that crowding is the primary cause of the constitutional violations.” (Brown v. Plata, supra, 563 U.S. at p. 521.) The evidence shows that compliance with the Urgent Memo’s population reduction recommendation in a timely fashion substantially would have reduced the scope and severity of the COVID-19 outbreak at San Quentin. Respondent knew about the Urgent Memo. It further knew that population reduction could effectively combat viral spread (as evidenced by its own population reduction efforts). Respondent failed to comply with the Urgent Memo recommendation or engage any expert of its own. Without adequate investigation or the benefit of any alternative expert opinion, ignoring the Urgent Memo’s population reduction recommendation constituted further deliberate indifference. Indeed, Respondent had the means at its disposal quickly to comply with the Urgent Memo’s recommendation; instead, it chose to litigate the matter while people died. Respondent has offered no valid argument why it could not have complied with the Urgent Memo’s recommendation. In Plata, in addition to the criteria imposed by the PLRA, the state had to consider an order involving the entire California prison system. The state could not comply with that order simply by moving inmates. It had to either release them or build more space. Here, by contrast, the problem involves only one, antiquated prison, with architectural characteristics not shared by many other prisons in the state system. Respondent contends it would violate “contemporary standards of decency” to release Petitioners prior to the end of their sentences. (Respondent Opp. at pp. 23, 57.) But it could have reduced the population through means other than outright release. Indeed, the remedy ordered by the Court of Appeal in the October 2020 In re Von Staich Order did not necessarily involve releasing any inmates. (In re Von Staich, supra, 56 Cal.App.5th at p. 84 [“To be clear: We do not order the release of petitioner or any other inmate”], emphasis in original.) Instead, the Court of Appeal left to Respondent the most efficient and effective means of reducing the population, considering the variety of factors prison officials must consider. (Ibid.) While release is certainly one option to reduce the population at San Quentin, prison officials had several other options available to them. For example, they could have transferred inmates to a different prison (following all safety protocols). The failure to do so, or at least to make good faith efforts to do so, unreasonably exposed inmates, staff, and the surrounding community to a substantial risk of serious harm.
  1. The failure to reduce the population resulted in other constitutional deprivations of liberty. Because Respondent did not reduce the population as recommended, it effectively consigned hundreds of inmates to unwarranted, unnecessary, solitary confinement. And not just for a day or two. Where Respondent had the ability to move inmates to other facilities or release them, the court can conceive of no argument to support forcing inmates to remain in a cell smaller than 50 square feet, with two bunks, and a cellmate, for virtually 24 hours a day, seven days a week, for months on end. Doing so enhanced the inmates’ exposure to COVID-19. For the duration it lasted, it also amounted to solitary confinement in violation of common standards of decency, with all the physical and mental health effects that result. (6 RT 1206-07.) (See Exhibits 370.011 and 370.012, depicting the solitary confinement cells during lockdown in the “Blocks” at Sec. IV.B.1.a, supra.) Respondent knows about these effects. Its mental health team prepared for them, reported them, and treated them. Simply put, confinement for that long, with another person, in a space so small and foul, implicates “nothing less than the dignity of” humans. (Trop v Dulles, supra, 356 U.S. at pp. 100-101.)
  1. Isolating COVID-positive inmates in the AC contributed to the spread of COVID-19 because inmates fear the AC. Using the AC as an isolation unit disincentivizes candid reporting of symptoms, an essential component of any effective COVID-19 mitigation strategy.

Respondent contends population reduction “involves significant policy questions about public safety and criminal justice” best left to other branches of government. (Resp. Opp. at p. 42.) However, if Respondent insists on continuing to operate an obsolete and dangerous prison that, whenever an airborne pathogen arises, threatens the health and safety of the prison population, not to mention the surrounding community, then Respondent will leave the courts with no choice but to intervene. Moreover, the circular notion that “the operation of our correctional facilities is peculiarly within the province of the Legislative and Executive Branches of Government, not the Judicial” (Bell v. Wolfish (1979) 441 U.S. 520, 548), relied upon by Respondent, assumes the lack of a constitutional violation.

No one knows how COVID-19 will behave in the future. No one knows what effect
Respondent’s efforts to vaccinate the entire inmate population will have in combating any future
outbreak. Petitioners have not – at this time – carried their burden to show current deliberate
indifference warranting injunctive relief. However, the record raises serious questions about
whether Respondent has learned the right lessons from the 2020 COVID-19 debacle at San
Quentin. It continues to operate a prison uniquely situated to allow the spread of any airborne
pathogen, including COVID-19, in a manner seemingly indifferent to the specific characteristics
that resulted in such extensive illness and death just last year. For example, Respondent
continues to double cell prisoners in multi-tiered units with open barred doors, a living
environment that enhances the risk of disease transmission. Respondent also appears intent on relying on the same population spread – as opposed to population reduction – strategy it
employed in 2020. It plans to lockdown double-celled inmates, when necessary to quarantine
them, in the cells measuring 49 square feet that make up the tiered housing units. Depending on
the circumstances, including the severity of any future outbreak, the findings above should cast
significant doubt on the wisdom of those strategies.

***

In the meantime, there have been developments with other cases. On the heels of Judge Tigar’s order to mandate vaccination for prison guards, CDCR published a three-page plan for implementation, which excludes many people from the need to get vaccinated–while at the same time filing a notice of appeal the mandate. This is indefensible, coming from the administration that bills itself as pro-science and pro-vaccine. Simultaneously, a Kern County Superior Judge blocked the vaccine mandate order for Kern County correctional officers – unfathomably, just as North Kern State Prison is seeing a serious outbreak:

Judge Barmann explained his decision: “What I don’t want to do is I don’t want to put somebody in a situation where there’s something that happens to them that truly is irremediable.” As I said on the radio, this language can act as a dog whistle to COVID deniers, because guess what, long-term COVID and death are what’s “irremediable.”

Stay tuned for more developments in all these cases.

Hallelujah! Judge Tigar Mandates Vaccination for Staff, Guards

Fresh off the news: Given the risk from the delta variant–already fueling a massive outbreak at North Kern – Judge Tigar has finally mandated vaccination for CDCR staff (currently, vaccine rates among staff stand at 40%.) Sam Stanton and Wes Ventreicher of the Sac Bee report:

Rejecting opposition from California officials and the state’s prison guard union, a federal judge on Monday ordered the state to come up with a plan in the next two weeks for mandatory COVID-19 vaccinations for guards, as well as inmates who work outside the prisons.

The order by U.S. District Judge Jon S. Tigar in Oakland follows a hearing Friday over the issue and a recommendation in August by the federal prison receiver overseeing medical care that asked the judge to order mandatory vaccines for guards and staff, with some medical and religious exemptions.

“The question of mandatory vaccines is complex,” Tigar wrote in a 22-page order. “In this case, however, the relevant facts are undisputed. No one challenges the serious risks that COVID-19 poses to incarcerated persons.

“No one disputes that it is difficult to control the virus once it has been introduced into a prison setting. No one contests that staff are the primary vector for introduction. And no one argues that testing, even if done on a daily basis, is an adequate proxy for vaccination to reduce the risk of introduction.”

Tigar noted that since the pandemic began in spring 2020, more than 50,000 California inmates have been infected with coronavirus, and at least 240 have died.

His order would require mandatory vaccines for all workers entering California prisons, all inmates who work outside the prisons and inmates who agree to in-person visits. The judge also wrote that the receiver “shall consider efforts to increase the vaccination rate among the incarcerated population, including whether a mandatory vaccination policy should be implemented.”

The California Department of Corrections and Rehabilitation said in a statement that it was “evaluating the court’s order at this time to determine next steps” and did not agree with the judge’s finding of “deliberate indifference” by officials in their COVID policies.

“We respectfully disagree with the finding of deliberate indifference, as the department has long embraced vaccinations against COVID-19, and we continue to encourage our staff, incarcerated population, volunteers, and visitors to get vaccinated,” the statement said. “Additionally, we were one of the earliest adopters of the COVID-19 vaccine, having rolled it out to vulnerable populations and staff at the end of 2020, and have implemented robust response and mitigation efforts against the pandemic.

“We are also actively working to operationalize the recent California Department of Public Health Order and ensure all impacted staff is in compliance by Oct. 14.

“Currently, 76 percent of the incarcerated population has been fully vaccinated, with 57 percent of staff vaccinated and another 4 percent having received at least one dose. And to date approximately 99 percent of incarcerated people have been offered the vaccine.”

The judge acted after Receiver J. Clark Kelso submitted a 27-page report last month warning of “enormous risks” to the prison population because of the delta variant and noting that only 40% of the state’s correctional officers statewide are fully vaccinated.

In Friday’s court hearing, Kelso added that 11 correctional staffers have died from COVID-19 since his report was issued in August.

A lawyer for the state prison guard union argued against such an order, telling the judge that he did not believe the judge had the authority to issue such an order.

“This is uncharted territory that we’re in in this proceeding,” said Gregg Adam, arguing for the California Correctional Peace Officers Association. “There is no precedent for a court ordering employees to be vaccinated in order to keep their job under any circumstances.”

The union represents about 28,000 state correctional officers and pledged to members last month that it would fight mandatory vaccination orders. The union hasn’t opposed the current regimen, which allows unvaccinated officers to submit regular COVID-19 test results in lieu of proof of vaccination.

“We’ve undertaken an aggressive, voluntary vaccination program and we still believe the voluntary approach is the best way forward,” union president Glen Stailey said in a prepared statement emailed Monday by spokesman Nathan Ballard. “We are looking into our legal options to address this order.”

A Prison Law Office attorney representing the inmates who argued for the order said Monday that the judge’s decision was a “terrific” victory for keeping prisoners safe.

“It provided a very clear, factual basis for the decision,” attorney Rita Lomio said. “It was issued timely, just one business day after the argument Friday, and it adopts the receiver’s recommendation completely.

“It’s pretty much everything we could have hoped for.”

Lomio noted that the order does not set a deadline for the state to come into compliance with the order, instead mandating the receiver and prison officials submit a plan for meeting the requirements of the order within the next two weeks and include a deadline in the plan for when staffers must be vaccinated.

“That’s one area where we’re going to have to continue to monitor to make sure that poor implementation doesn’t gut the mandate,” she said.

Here’s the order in all its glory. Importantly, Judge Tigar fashions the mandate as the remedy for an Eighth Amendment violation, finding that CDCR has acted with deliberate indifference regarding the health and safety of incarcerated people. This is a big victory for incarcerated people, their families, advocates, and lawyers who have fought for this for almost two years.

It’s very late in the game – I wish we hadn’t wasted so many precious months on gentle persuasion efforts at people who cannot be swayed – but it’s better than never. The timing is appropriate – the worrisome North Kern outbreak has been linked to a staff member. Stay tuned for reports on compliance or lack thereof.

Newsom’s Captive Supporters: COVID-19, Sirhan Parole, the Recall, and the Illusion of a Blue State

Tomorrow, the Californians who have not yet voted by mail will participate in yet another recall election. I’ve already spilled enough pixels explaining why I voted no, and why you should do the same. But I do want to say something about the deep ambivalence that prison activists and advocates probably feel around this election. People can and should contain multitudes of contradictions and complicated opinions.

Over the weekend, Bob Egelko of the Chronicle wrote this interesting and insighftul piece about Sirhan Sirhan, now 77 years old after five decades in prison for the murder of Robert Kennedy. Sirhan was recommended for parole by the board,, which means that his case is now on Newsom’s desk. And as Egelko explains (with a little assist from Stanford’s Bob Weisberg and from yours truly), the political calculus is heavily rigged against Sirhan:

“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.”

Newsom’s leading opponents in the recall are well to his right politically and would seem equally unlikely to approve Sirhan’s parole. And 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.”

Egelko is right on the money, as was Jonathan Simon in Governing Through Crime: it is an asset to left-wing politicians to position themselves as tough-on-crime where their supporters have no leverage. This is especially true in California which, as Vanessa Barker explains, is a populist, polarized state. The only two discounts on that front have been recession-era fiscal concerns and riding a popular racial justice wave in progressive cities. And keep in mind that Sirhan is not alone: the entire “Class of ’72′”–the folks whose sentences were commuted after People v. Anderson, including the Manson family members–has been reviled for decades. After the return of the death penalty, the weakening of the parole system, and the politicization of the whole process, the prospects of release for anyone who could peel centrists off the left base became dim. Egelko explains why:

The law allowing the governor to veto parole decisions was passed after courts rejected Gov. George Deukmejian’s attempt in 1983 to block the parole of William Archie Fain, who had served 16 years in prison for murder and rape in Stanislaus County. The Legislature put Proposition 89, a state constitutional amendment, on the ballot in 1988 and it was approved by 55% of the voters.

Even before the ballot measure, convicted murderers were seldom paroled, even after decades in prison. The board has historically approved their release in less than 10% of the cases, and in some years less than 5%, leaving the others to continue serving life sentences.

Gov. Pete Wilson overruled the board about 30% of the time. His successor, Gov. Gray Davis — who declared, soon after his election, that “if you take someone else’s life, forget it” — vetoed all but six grants of parole, just above 1% of the total approved by the board. Gov. Arnold Schwarzenegger rejected about 70% of the board’s parole decisions.

The trends shifted under Gov. Jerry Brown, who overturned the board only about 20% of the time, and so far under Newsom as well.

And warnings of the dangers of paroling convicted murderers do not appear to be supported by the evidence: Between 1995 and 2010, 48.7% of all former prisoners in California went on to commit new crimes after their release, but among the 860 prisoners convicted of murder who were paroled, only five — 0.58% — had been jailed or imprisoned again, according to a report by the Stanford Criminal Justice Center.

“You age out of violent crime,” said Hadar Aviram, a law professor at UC Hastings in San Francisco.

But while Newsom has overseen the court-ordered reduction of the prison population, now at lowest its level since 2006, and has proposed closing two state prisons by 2023, Aviram — author of the recent book “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” — said Newsom’s response to the proposed parole of a Charles Manson follower was a likely indicator of his future decision on Sirhan.

The parole board has repeatedly recommended release of Leslie Van Houten, who was convicted of taking part in two of the Manson family’s Los Angeles-area murders in 1969, when she was 19. While Van Houten has a clean prison record and has earned college degrees behind bars, Newsom said in November that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying” — his second veto of her parole, after two similar decisions by Brown.

“The gubernatorial veto was introduced in 1988 anticipating precisely this scenario,” Aviram said. It was a “power shift,” she said, from “professionals,” such as psychologists and prison counselors who advise the parole board, “toward the limelight of sensationalized, politicized coverage” and changed outcomes.

The upshot of all this: I feel quite bitter. In the last few weeks I’ve seen the people who have ample cause for resenting Newsom–the people whose family and friends are behind bars, facing risk of illness and death because this administration wallowed and waffled on releases while at the same time vigorously defending medical atrocities, indifference and ineptitude in court–unequivocably and firmly doing the right thing, voting “no” on the recall and encouraging everyone they know to do the same. I resent that they are being put in this position. I resent that we are all being put in this position. I resent that a politician whom I deeply admire for what he has done for same-sex marriage and death penalty abolition takes the easy and expedient way–again and again!–whenever someone behind bars is concerned. I resent that incarcerated people and their families are always the sacrificial lambs in these left-versus-right California tumbles, because the right-wing candidates are perceived as much worse. I resent that the incentive structure is always stacked against releasing old and sick people from prison–even though there is compassion and redemption to be gained and nothing to be lost from a public safety perspective. I resent that the people doing the hardest activist work stand to gain absolutely nothing–no sympathy, no consideration, no concessions, no compassion, no fairness–from doing the right thing for everyone else.

In sum, if you feel resolute and at the same time awkward about your “no” vote, you’re not alone. You’re part of a captive support contingent for blue politicians in California–some members of which are literally captive. It is possible to accept that anyone on the replacement list–particularly Larry Elder–would be disastrous as governor, and to respect and admire Newsom as a capable and experienced politician, while at the same time deeply resent the fact that, once again, urgent human rights issues–true life-and-death matters–have been swept under the rug.

How to fix this? Abolish the gubernatorial veto. Diversify parole boards. Change parole from a wacky card game with no rules, which the house always wins, to an instrument of true hope and transformation. But none of this will happen before tomorrow. So, we will dutifully vote “no”, because we are not single-issue dolts, and continue to await the change that never comes.