Category: Prison Conditions

Today, the Office of the Inspector General published the first installment in a series of three reports about CDCR’s (mis)handling of the COVID-19 crisis in prisons. The report was commissioned by Assembly Speaker Anthony Rendon and you can read it here, in its 47-page glory. For those of you unfamiliar with the Inspector General, the Office’s authority to review CDCR’s policies and practices comes from the California Penal Code and serves as an important control over correctional operations.

The first report examines CDCR’s screening practices for staff and visitors. Heeding warnings from the WHO and CDC, Governor Newsom instructed CDCR to take preventative measures to prevent the pread of COVID-19 in prisons. As early as March 11, CDCR suspended all visits to the prison–the suspension remains in effect–but continued to allow some essential visitors, including contracted workers, attorneys, and OIG staff, to enter prisons, in addition to thousands of the department’s staff who did so each day. On March 14, the suspension policy was supplemented by a directive to verbally screen all staff and visitors by querying them about signs and symptoms of COVID-19. Later in March, CDCR added required temperature checks to the verbal queries.

Here’s where it’s important to explain something. Every morning when I drop my son off at preschool, and every afternoon when I pick him up, a staff member checks both our temperatures, and asks us screening questions about symptoms, travel, and contact with known COVID-19 carriers. Even though this screening procedure does not detect asymptomatic carriers, it is hugely important, and it is doable, because the preschool only has one entrance. But prisons are more complicated than preschools. As the report explains, most prisons have multiple gates and entrance points, ranging in security level. Administrative offices, warehouses, industries, and other areas are often behind the main gate, but outside of an internal, secured entrance point. Take a look, for example, at this aerial photo of San Quentin. On the top right, you can see structures that are not part of the inner perimeter of the prison, and you can also see that, within the complex, there are multiple buildings with their own secured gates.

People mill about through these multiple gates on a daily basis. The staff, of course, and the essential visitors, come in and out of the prison on a daily basis. In addition, incarcerated people at San Quentin frequently work in the buildings outside the secure perimeter. This brings people across security entrances in daily contact with each other, and requires careful screening at the entrance to each correctional complex.

Unfortunately, the screening policy has not worked out at CDCR. The report summarizes:

Despite the department’s statewide directives that staff and visitors be screened for signs and symptoms of COVID-19 upon entry to prisons, we found that the department’s vague screening directives resulted in inconsistent implementation among the prisons, which left some staff and visitors entering prisons unscreened. Specifically, we found prisons took different approaches to implementing the same departmentwide directive. Some prisons funneled every car to a single screening location, where prison staff conducted verbal and temperature screenings of the cars’ occupants. Other prisons screened staff at certain pedestrian entrances to the prisons. We found that this second approach increased the risk that staff or visitors may have walked into or through other workspaces without having been screened.

OIG staff viewed and experienced these inconsistencies firsthand. During multiple visits by our staff between May 19, 2020, and June 26, 2020, prisons did not screen some of them for the disease’s known signs and symptoms. For example, California State Prison, Sacramento, conducted screenings at an area that cannot be seen from
the prison’s main entrance. In one example at this prison, two OIG staff experienced no delays when walking onto prison grounds; no one screened them as they parked their cars and then walked into the prison’s administration building.

OIG staff’s observations were also supported by staff whom we surveyed at several prisons. To obtain prison employees’ perspectives, we surveyed all staff at seven prisons—more than 12,000 staff members. Staff responding to that survey indicated that the vast majority of them, but not all, had always been screened upon prison entry. Specifically, 5 percent of the survey’s respondents indicated that they had not always been screened as required by the department’s directive. We also learned that the results derived from some staff and visitor screenings may have been flawed. In response to a separate survey that we administered to screeners at five prisons, numerous screeners also identified multiple instances of thermometers malfunctioning during screenings. However, the screeners’ survey responses did not indicate how they proceeded to conduct screenings when they could not accurately obtain temperatures; consequently, it is unclear whether they allowed entry to those individuals. Nevertheless, because the department’s directive lacks instructions on what screeners were supposed to do in those instances, it was possible that screeners allowed some staff and visitors entry without obtaining accurate temperature readings. In addition, according to our review of a sample of screeners’ training records and our survey of screeners themselves, many screeners apparently received no formal training at all concerning their prisons’ screening processes, thus increasing the risk of allowing infected individuals to walk into prison facilities and expose others to the disease.

Much of the media reportage on CDCR’s failures to properly act has focused on issues of testing and cohorting, but screening is a fairly doable preventative policy, especially in places designed to prevent people from escaping. It’s dismaying to see how haphazardly it has been implemented. And, as the report points out, it’s especially distressing when you keep in mind that the testing fails to give anything close to a complete picture: because of the delays in receiving result, a person might contract the disease after taking the test, experience symptoms, and a few days later receive a “negative” result. These gaps can and should be stopped through screening, among other measures, and it is not to CDCR’s credit that they were not.

Yesterday I filed a brief on behalf of the ACLU of Northern CA, and seventeen of my colleagues, in support of the consolidated habeas corpus petitions submitted by dozens of people at San Quentin to the Marin Superior Court. Petitioners are demanding that the Warden of San Quentin release them, because their incarceration is a violation of the Eighth Amendment protection against cruel and unusual punishment.

You can read the brief here:

AmiciCuriaeBriefMarinConsol… by hadaraviram on Scribd

If you thought the travesty of the Chino-Quentin transfer was the absolute rock bottom of prison management, prepare to dig. Today’s Chron reports that Dr. Matthew Willis, Marin County’s top health official, has written a letter to Judge Howard of the Marin Superior Court, in which he documents his efforts to get San Quentin officials to quarantine the incoming people from Chino–to no avail. Megan Cassidy reports:

Dr. Matthew Willis had learned that the 122 prisoners weren’t tested for weeks before they were transferred on May 30. Unless they were “radically sequestered” from the native population, Willis warned, the prison was setting the stage for a major outbreak.

This advice — given in a June 1 conference call with acting San Quentin Warden Ron Broomfield and other high-ranking prison staffers — was the first in a series of public health recommendations to be issued and ultimately dismissed by prison officials, Willis said in a letter to a Marin County Superior Court judge and in an interview Tuesday with The Chronicle.

You’ll want to click on the article and read Dr. Willis’ letter in full, as well as the astonishing letter he received. Prison officials forwarded him a letter written by CDCR’s General Counsel, Jennifer Neill, who wrote, “The State is not an entity under local health officers’ jurisdictions, and thus local health officer orders are not valid against the State.” Neill hadn’t even written the letter to Dr. Willis: she had written it to Kings County’s health officials when they offered advice regarding the horrific outbreak in Avenal. Go ahead, read it for yourself. I put a snippet of it above, to make sure you get the gist of it, but you need to see this with your own eyes.

As the horror settles in the pit of your stomach, let’s break this down:

1. It was always obvious that prison outbreaks are connected to outbreaks in the surrounding counties (this should be obvious to you, too, by now; the virus doesn’t read the Penal Code.) Because of this, traditionally, there was communication between county health officials and the prison on matters of public health, such as the flu vaccine and an outbreak of Legionnaires’ Disease.
2. There had already been an incident in which, rather than heeding advice from the people directly affected by the outbreaks in prison, CDCR decided to ignore the advice and instead jockey for position and squabble about jurisdiction. Outcome: several hundreds of people became infected and a few died.
3. Then, months later, this occurred again. Again, the health official of the surrounding county offered advice. Again, CDCR chose to ignore the advice and instead jockey for position and squabble about jurisdiction. Indeed, they were apparently so pleased with how they had handled the previous incident that they didn’t even bother to write a new letter; instead, they simply forwarded the same letter to the health officials of the new county. Outcome: several thousands of people became infected and a few dozen died.

Friends, this is shocking. If all the previous warnings, all the alarm bells sounded by public health and criminal justice experts, did not suffice to prove that San Quentin officials, and the warden, exhibited deliberate indifference to the lives of the people under their supervision and care, this incident alone should make all of us sick to our stomachs.

A few important items from the last few days:

Democracy Now! devoted an episode to the San Quentin COVID-19 disaster, including conversations with folks on the inside, as well as Ella Baker Center’s State Campaigner James King, commenting on the structure of Quentin and why it is incompatible with healthcare:

Today at 1pm, the #StopSanQuentinOutbreak coalition is hosting a virtual press conference on FB Live, featuring updates on the situation in prison, the Plata v. Newsom litigation, and the habeas corpus cases that have been consolidated at the Marin Superior Court. FYI, I am authoring the brief on behalf of amici curiae the ACLU of Northern California and twenty of my colleagues, criminal justice and corrections experts. I will post the brief in full here after it is filed.

The first article based on data collected by the UCLA COVID-19 Behind Bars Data Project is out from JAMA, showing that the the adjusted COVID-19 mortality rate in the prison population is 3.0 times higher than would be expected if the age and sex distributions of the US and prison populations were equal.

Finally, my article California’s COVID-19 Prison Disaster and the Trap of Palatable Reform is out from Boom California and offered free to the public on Boom’s open access platform. I decided to publish with Boom, rather than with a paywalled academic journal, because I think it is crucial for anyone in CA who is looking for background on this crisis to learn the background and understand why the proposed solutions are inadequate. Please share widely with your networks.

I’m noticing public attention wavering away from the San Quentin disaster, and my concern is that the slowing down of the contagion has lulled people into a false assumption that the prison is doing what it should and conquering this challenge. Lest you believe this, let’s talk about what’s happened in other places. Avenal (pictured above) is a case in point. As in previous posts, Chad Goerzen and I are using CDCR’s own data, from the COVID-19 tracking tool.

The outbreak in Avenal happened early on in the pandemic, and was probably one of the most severe outbreaks before the transfer from CIM to Quentin. Avenal’s casualties were among the first behind bars, too. At the beginning of June, most tests were coming in negative, and prison authorities probably thought that the outbreak had abated. Then, in mid-July, case numbers started climbing up again.

Another example is CIW, pictured below. Note the alarming numbers in early May, the decline in testing (and in cases! in late May and in June, and then the spike in numbers of cases in mid- to late-July.

There are other examples of apparent abatement followed by a resurgence of the outbreak. Here’s the data for CMC, where initially there were only a handful of cases. As opposed to other prisons, you can see that CMC continued to test people periodically, on a weekly basis, even when they had no contagion, and the in late July they caught a new wave with dozens of new infections.

Here’s the picture for Corcoran, which seems to have had three waves of outbreak. You’ll note that one of them followed the ill-fated transfer from Chino. Corcoran did test a lot of people in early July and found no infections, but toward mid- to late-July we’re seeing infections again.

Finally, here’s a more ambiguous resurgence in LA County State Prison. Note that this prison was conducting very few tests between the two waves, so what they are seeing from early July onward could simply be a consequence of the increased testing.

What can we learn from this, particularly from the examples of Avenal and CIW? The obvious takeaway is that a serious outbreak does not protect a prison from a recurrence. There are numerous reasons for this. The jury’s apparently still out as to the extent to which recent infection and recovery effectively inoculate a person against a recurrence. It seems that people who get reinfected are less contagious, but this is highly dependent upon their medical condition and environmental immunosuppression (and there’s no absolute certainty that the person was actually reinfected after recovery, rather than just continuously sick or just expelling dead cells.) If, indeed, reinfection is possible–whether or not to the same contagious extent–then a mere staff member who gets takeout on the way home could restart the cycle. But this is exacerbated by the renewal of prison transfers which, I believe, start again today. We now know, because (or, actually, despite) the scant reporting from BSCC, that several jails are hotbeds of COVID-19, with dozens, and sometimes hundreds, of infections. The slow drip of people out of state prisons is going to be offset by the incoming bottleneck of people from jails, and one can only hope against hope that they’ll bother testing people on both ends of the transfer this time.

In short, keep your eyes on the human rights crime. It’s slowing down not because we are succeeding, but because the virus is succeeding. And state officials–at the Governor’s mansion, at the prisons, at the courts–are not doing enough to stop it in its tracks.

Yesterday, in a 5-4 vote, SCOTUS stayed a lower court’s preliminary injunction that required the Orange County Sheriff to implement certain COVID-19 safety measures. The decision, Barnes v. Ahlman, is brief, with only Justice Sotomayor writing for the dissent (what a superb law-and-society Justice she is–and a fantastic writer.) Before delving into the decision, it’s worthwhile looking at the BSCC reports for the OC, which I’ve placed above. Now, the webpage claims that they updated it yesterday, but it also claims that the numbers we’re seeing are for the week between 7/19 and 7/25, which is adds to my impression that BSCC reporting, which is already woefully late to the game, needs considerable improvement if it is to be informative. For what it’s worth, during that week–and things might’ve exponentially spread since then–the OC jail system had at least 17 cases and had tested less than 10% of their population. Moreover, Justice Sotomayor writes that “[a]t the time of the District Court’s injunction, the Jail had witnessed an increase of more than 300 confirmed COVID–19 cases in a little over a month.” You wouldn’t know this from the BSCC page, because for unfathomable reasons they don’t report cumulative cases, nor do they provide the data they had before the dashboard was created. I really hope that the COVID-19 Behind Bars Data Project will be able to obtain better information, including cumulative and historical numbers–apparently the numbers exist, because local newspapers were reporting on them weeks ago–but I’m not holding my breath. In any case, putting together Justice Sotomayor’s summary and the BSCC data points to a worrisome situation: they’ve had hundreds of cases and they are currently doing hardly any testing, which could explain why they numbers seem small.

Anyway, back to the decision. Justice Sotomayor refers to the decision to stay the injunction as “extraordinary.” Ordinarily, the conditions for granting a stay require (1) a “reasonable probability” that SCOTUS will actually grant certiorari to hear the case, (2) a “fair prospect” that SCOTUS will subsequently reverse the decision on the merits, and (3) “a likelihood that irreparable harm [will] result from the denial of a stay”. None of these apply here: the Ninth Circuit ruled on clearly established law–it found ample proof of “deliberate indifference” because the jails were forewarned about this months ago and knew the risks–and, even if the Eighth Amendment is not grounds enough for relief, there is an alternative claim under the ADA. Therefore, odds that SCOTUS will hear this case and reverse are slim. Worst of all, the “likelihood of irreparable harm” is obvious from the facts, described in “dozens of inmate declarations”:

Although the Jail had been warned that “social distancing is the cornerstone of reducing transmission of COVID–19,”
inmates described being transported back and forth to the jail in crammed buses, socializing in dayrooms with no space to distance physically, lining up next to each other to wait for the phone, sleeping in bunk beds two to three feet apart, and even being ordered to stand closer than six feet apart when inmates tried to socially distance. Moreover, although the Jail told its inmates that they could “best protect” themselves by washing their hands with “soap and water throughout the day,” numerous inmates reported receiving just one small, hotel-sized bar of soap per week. And after symptomatic inmates were removed from their units, other inmates were ordered to dispose of their belongings without gloves or other protective equipment. Finally, despite the Jail’s stated policy to test and isolate individuals who reported or exhibited symptoms consistent with COVID–19, multiple symptomatic detainees described being denied tests, and others recounted sharing common spaces with infected or symptomatic inmates.

That the Sheriff’s Department gets to benefit from a pattern of recklessness and obfuscation is sickening in itself, but what’s really sickening is that even as I type this, more cases are preventable. What kind of public official spends their times and resources fighting an order to implement sensible precautions, instead of actually implementing them? BSCC’s feebleness is all over this, starting with the flimsy data collection effort and continuing with these disturbing practices at the county level. The other thing that nauseates me is that there’s no reason to assume that everything is tickety-boo at the other jails, and we now need to expand our list of “known unknowns” at the county level to actual practices of the ground. We can’t make definitive extrapolations from this OC example without knowing more, but if the OC “inmate health and safety” is just a facade, there’s no assurance that other jails are following their own COVID-19 protocols.

As I’m collaborating with a legal effort that might help some people at San Quentin get home, safe(r) from the raging pandemic, members of the #StopSanQuentinOutbreak forwarded me this video, which was broadcast on yesterday’s news. Will you just watch this, please, and answer me–what kind of world is this?