My Chesa Recall Punditry: The View from Bayview-Hunter’s Point

Last night provided me a unique vantage point on the Boudin recall effort: I was an inspector at a polling station in Bayview-Hunter’s Point, which is a neighborhood with a long history of neglect and criminalization. It is also unique in its demographics: 33.7% African American in a city that is just under 6% African American as a whole. There were approximately 650 registered voters in our precinct. 18 voted by mail and 17 voted in person, for a grand total of 35 voters. That’s 5% of the electorate. Things were somewhat better, but not by much, elsewhere in the city. By stark contrast to the 2020 Presidential election, pre-election mail-in voting in this local election–the third in 2022!–was very low. Our Federal Election Deputy (FED), who came to visit us throughout the day, reported that the polls were quiet and dormant throughout the whole day, pretty much everywhere.

Why does this matter? Take a look at a map published in today’s Chron of the neighborhoods that voted against Boudin:

At first glance, the story appears to be that neighborhoods associated with Asian-American populations tended to support the recall more fervently. This is unsurprising, and only talked about in hushed tones even though I think it is a big part of the story. In the last few weeks I saw concerted, fervent activism in support of the recall from very similar crowds to the ones who drove the SFUSD recall from a few months ago: it’s not all about out-of-town Republican millionaires conning unsuspecting masses into false consciousness. These are pretty much the same parents who resented the performative woketalk from the Board about school renaming and lottery admissions to Lowell. I suspect that some residual energy poured over from the previous recall (which I think was 100% justified) to this one (which I think was not.) The superficial narrative might be that a permissive and forgiving attitude toward prosecuting some people (read: presumably, young African American men) incentivizes crime and victimization (read: toward, presumably, Asian American victims) in the same way that lowering standards and talking about reparations and abolitionism (read: a narrative that supports, presumably, a monolithic African American interest) harms the pursuit of hard work and excellence in education (read: the purview, presumably, of Asian American students and parents.)

This story, which suggests the fomenting of racial animus between these two groups, building on the racial conflict undertones of the previous recall, is not completely preposterous. Most of the people who came to vote in person yesterday at our precinct were African American, and from their conversations, I gathered they all came motivated to vote against the recall. But this assumes that we can understand and generalize trends from a pretty minuscule percentage of San Franciscans. It’s not that the people who live in my beautiful city don’t care about criminal justice administration. NextDoor and other social media outlets are full of people chewing each other’s heads off about whether this or that wave of smash-and-grab, retail theft, or other incident is Chesa’s fault. But how many people care enough about this to put work into reading a hefty booklet and considering their positions on a three-page ballot, in which Prop H was the very last voting issue on the back side of the third page, for the third time in a row in the same year?

Over the years, I’ve returned again and again to Vanessa Barker’s excellent book The Politics of Imprisonment. Barker conducts a three-way comparison of penal politics in three states: California, Washington, and New York, finding that California’s political culture more easily lends itself to punitive experiments because of its polarization and populism. I write about this culture in Yesterday’s Monsters, when I show how politicized and emotion-driven the issue of parole is. In this kind of political environment, where money and strong interests can push something into the ballot as well as foment a well-oiled promotion machine (complete with all the tricks and deceptions we’ve come to expect from the initiative process), it is not difficult to swing the pendulum back and forth, from big reforms to big cancellations, from experiments in jurisdictional shifts to draconian policies masquerading as victim’s rights policies, and everything in between.

Ultimately, I think that what we saw here was just an exercise in manipulating this big machine and effectuating huge change through a relatively small number of voters. Direct democracy can be, and is, too direct when it imposes this burden thrice a year on already exhausted, grieving, anguished, and ticked off people with an empathy deficit from three years of awfulness that followed four years of a different kind of awfulness. In sum, whether or not the small minority who bothered to show up at the polls has false or true consciousness matters much less, sadly, than the forces exploiting the initiative process far beyond the Bay Area.

Would it have made a difference if the entire Bayview-Hunter’s Point electorate showed up en masse and voted against this recall? Of course it would. But after everything we’ve all been through–the impoverished folks in the neglected parts of town disproportionately suffering–we just didn’t have it in us to make yesterday a proud, sparkling moment for people-powered government, and even though it’s not our fault, we will all have to live with the consequences. Increased incarceration and the return of cash bail will not deter violent crime (but people’s attention will wander, and those who supported the recall will stop paying attention). Crime might go up (despite the recall, the supporters will say, or because of the recall, the opponents will say) or it might go down (because of the recall, supporters will say, or despite it, opponents will say) and we will continue to delude ourselves that dumbing down complicated policy decisions, deceiving people with oversimplified campaigns, and seasoning everything with some piquant interracial conflict, is how democracy should work.

The truth is that crime rates are like the weather. They rise and fall for a variety of reasons, only a few of which we can measure, and most of which have nothing to do with who is in charge. They have very little to do with big punishment trends (though, in localized situations, they do depend on effective police work in solving crime, which is a damn difficult thing to do when the community doesn’t trust the police enough to help.) It takes a real sea change in policy to effectuate changes in criminality patterns. But our megalomanic assumption that we can control crime rates through tinkering with policies will persist, and we will keep tinkering, until no one has any energy left to vote.

I offered a few more thoughts on KCRW here.

June 2022 Election: Blog Endorsements

Back when hadaraviram.com was California Correctional Crisis, I used to offer election endorsements for your consideration, focusing on the criminal justice propositions. This election has offered a grim opportunity to contemplate the probable victory of two seasoned and experienced politicians, whose management of the COVID-19 crisis in prisons has reflected an astounding moral eclipse.

A while ago, I posted an endorsement against Gov. Gavin Newsom’s recall. We were all experiencing collective distress over his reluctance to do anything useful to save lives behind bars from COVID. My reasoning was this: the rest of the ballot was a list of egomaniacal clowns with no political experience, many of whom could not even spell their statements. And, as I said there:

I’m not an idiot, and I do understand the concept of the lesser evil. If you are so warped in single-issue agitation that you can’t see the qualitative differences between Newsom–an experienced and capable politician–and the rest of the lot, you need better glasses.

I wrote that post in August. in November, we found out that Newsom, the champion of science-forward, vaccine-forward policies in schools and everywhere else, thinks that unvaccinated guards are a-ok, and goes as far as to support them in their (devastatingly) successful appeal against a vaccine mandate. It was one of the ugliest examples of justice delayed becoming justice denied, can easily be attributed to the fact that the prison guards contributed $1.75 million to his anti-recall campaign, and has disillusioned me. I’ve come a long way from cheering for the then-Mayor of San Francisco who spoke at my 2005 PhD ceremony, and I’m feeling so full of bitterness and bile over the unnecessary loss of life that, this time around, I offer no endorsement for the gubernatorial position. Vote for whoever you want; Newsom will likely win.

The other person to resent is Attorney General Rob Bonta, who is the darling of all the progressive voting guides. Bonta and his employees are the architects of the prison system’s defense against the COVID lawsuits, both regarding San Quentin and more generally in federal court. Their bad-faith in court appearances and representations, ugly games, and shocking lack of regard for human life has soured me on Bonta to the point that I make no endorsement, even though on paper he is the better candidate of the lot and will likely win. I explain my position in detail here. The short version is this: Bonta thinks that he works for us only when he legislates or creates policy, and that when his office litigates, he is the Tom Hagen of the prison guards. That’s an unacceptable perspective for a public servant.

I try not to be a one-issue voter, but having experienced the COVID-19 prison catastrophe up close it is very difficult to justify voting for Newsom and Bonta. Follow your conscience/calculus.

By contrast to these two, one public official shines as a person of profound understanding and conscientious behavior, and that is Phil Ting. I endorsed Phil’s assembly campaign in 2018 and am happy and proud to endorse him again; his conduct during the COVID-19 crisis was nothing short of exemplary. As Chair of the Assembly Budget Committee, Ting presided over a hearing in which, finally, Kathleen Allison was being asked hard questions about her policies and the way CDCR was handling itself. He has also been very sensitive to issues of parole and one of the only politicians with enough guts and public responsibility to realize that long-term aging prisoners are the best release prospects from both a medical and a public safety standpoint. Vote for him again.

There are two criminal justice issues on the ballot. One of them is the ridiculous Prop D, likely thrown into the ballot to add a prong to the Chesa Boudin recall effort by creating the (false!) impression that the D.A.’s office is not responsive to victims’ needs. There is a long tradition in CA of deceiving the voters to believe that there is a need for a victims’ bill of rights and services, when one has existed since 1982 (I explain all this in Chapter 3 of Yesterday’s Monsters.) Just like Marsy’s Law and other deceptive initiative tricks, this is money allocated to no good cause, creating duplicative services that already exist. The Chron is far too gentle on this. Don’t be swindled – vote NO on D.

Finally, speaking of swindling, you already know my position on the Boudin recall effort. There’s a well-oiled, well-funded machine here trying to roll back important reforms, and exploiting people’s exasperation at the misery and turmoil in town, which are NOT Boudin’s fault by a longshot. Don’t be deceived! Vote NO on H.

Urban Alchemy in the News

SF-based nonprofit Urban Alchemy, which I discussed here and here, is in the news this week. First, there was BBC coverage, and this morning a lengthy investigative story in the Chron. Mallory Moench and Kevin Fagan’s story is interesting and informative, and offers lots of useful perspectives, but does adopt an unnecessarily skeptical emphasis and tone, which rankled me because I work in the Tenderloin and see the transformation it has undergone through Urban Alchemy’s intervention.

In the early pandemic months, the open drug market around my workplace was so brazen and violent that my students feared going out of their dorm rooms at the Hastings towers. Mayor Breed and SFPD tried to resolve the problem by doing police sweeps of the area, which only resulted in new people coming in to deal and shoot every day. At some point I was contacted by a civil rights org, which shall remain anonymous out of compassion, with a well meant, but absurd, invitation to support their lawsuit against gang injunctions with an amicus brief refuting the existence of the drug market. Refuting? I thought. Are you kidding me? Do you have eyes? Do you live or work here? It was a prime example of what I’ve come to recoil from: the refusal, by some quarters of the Bay Area’s delusional left, to concede that crime is real and has real victims and real implications (that’s why I have no patience for armchair abolitionism, by the way.)

Then, our Dean signed a contract with Urban Alchemy, which has them support the area adjacent to the school. This proved to be a complete game changer. The first morning I showed up to work with the UA practitioners surrounding the perimeter of the school I was amazed; the change in energy, the peacefulness, the friendliness, the sense of personal safety, were palpable. I started chatting with some of the practitioners around my workplace, who came from backgrounds of serious incarceration, and found that their personal experiences provided them with just the right interpersonal skills to intervene in complicated situations in the Tenderloin. Finally, someone is doing the right thing, I thought. There are so many occupations in which a background of criminal invovement and incarceration is a priceless resource – and this includes lawyering. Recently, I interviewed people with criminal records who applied to the California bar and wrote:

In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character.

My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage.

To Moench and Fagan’s credit, their piece does represent this view; one of their interviewees explicitly says that looking at justice involvement as an asset, rather than a barrier, is revolutionary. But overall, their reporting exceedingly amplifies the voices of the naysayers above those of the many people who live and work in the Tenderloin who are quietly grateful for Urban Alchemy’s presence in the streets. You’ll be hard pressed to find detail in their story of the many good deeds that the practitioners perform daily, ranging from lives saved with Naloxone (several times a week, I’m told) to skillfully providing my female students a sense of personal safety when walking the Tenderloin in the evening. Several students described how a practitioner subtly positioned himself between them and someone who was getting too close, and how the threatening situation evaporated before it could evolve in unsavory directions. Moench and Fagan give this a passing nod, but their piece fails to properly capture the magic.

This brings me to another observation: There hasn’t yet been a project evaluation for Urban Alchemy’s Tenderloin intervention. Executing such a study would be a daunting task for several methodological reasons. First, there’s no comparative baseline for the intervention. The situation before their intervention was so abnormal that it would be hard to use it as a control, even if data were available. If the comparison is geographic, it would suffer from the usual problems with situational crime prevention: focusing an intervention in a particular geographical zone means that criminal activity is displaced onto adjacent zones, so the two comparators are not independent of each other. If the study is structured as an in-depth phenomenological project (which is what I would do if I were to do this–and a colleague and I are thinking about this), there’s the Star Trek problem of the Prime Directive: researchers or students hanging out in the Tenderloin to conduct observations would, themselves, change the dynamics in the area that they study. A big part of Urban Alchemy’s success lies in the fact that they do things differently than SFPD. They do not rely on surveillance cameras; in fact, they eschew them, and having any sort of documentation would be detrimental to their working model. And people standing in the corner for hours and taking notes would chill everyone’s behavior. Fieldwork here has to be conducted with care.

I have one more observation to offer: I now work in a service profession that requires crowd management and interpersonal intervention (as a city pool lifeguard) and also have multiple years of experience managing crowds in rowdy, inebriated, unusual situations (as a Dykes on Bikes registration volunteer at Pride and at Folsom Street Fair, for example.) The vast majority of people you encounter at these settings are lovely and a delight to be with. But the one or two percent who are decidedly not lovely can really test anyone’s self control. I’m talking about the driver who insists on driving the car into the area you’re trying to cordone off, the slow dude who insists on swimming in the lane with faster people and not letting them pass, or the people repeatedly told (politely) to move to the sidewalk so that they are not run over by trucks who don’t go where they’re told. My experiences are nothing compared to what the Urban Alchemy practitioners encounter every day on the Tenderloin streets. I really wish our reporting on this were sympathetic to the enormous challenges of interpersonal interactions in this very rough patch of our city and more appreciative of how much conflict and anxiety are spared when people who know what they’re doing take the lead.

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 Latest on COVID-19 in Prisons and Jails

Lest anyone think that the COVID scourge is gone from California prisons, this morning’s ticker shows 351 active cases, 62 of which are at San Quentin. There are also, at the moment, 261 active cases among employees.

My coauthor Chad Goerzen has created a model of prison-community transmissivity, the basic features of which we will present in a future post here in the blog and in our forthcoming UC Press book Fester. For now, I can share that we are able to point to a number of deaths in the community (counties neighboring CDCR facilities) that we can causally attribute to the prison outbreak. Our efforts support and bolster a prior nationwide report by the Prison Policy Initiative (authored by Gregory Hooks and Wendy Sawyer) to a similar effect, though our model, which is local, can show direct causality and geographical ties. This is important to us because of the misguided zero-sum mentality that accompanied much of the community thinking about COVID – a “better them than us” sentiment that reflects lack of basic understanding of how prisons work, how viruses work, and how both of these factors can affect the surrounding community.

In other news, Aparna Komarla of the COVID-19 in Custody Project reports a worrisome, but utterly unsurprising, issue: the Sacramento sheriff refuses to discuss vaccination rates among his staff:

The first health order was issued in July 2021 and requires surveillance testing for unvaccinated correctional officers. The second order was issued in August 2021 (latest amendment was in February 2022) and mandates vaccines and boosters for a small group of non-medical officers working in the jails’ healthcare settings (ex: staff working in jail clinics). If the sheriff’s office in Sacramento is implementing and monitoring compliance with these orders, a record of vaccinated and unvaccinated employees must exist. But they insisted in their responses that no such records were available. 

Our most recent public records request for the staff vaccination rate, however, received a different response. We were told that the Sacramento sheriff’s office is implementing and complying with the CDPH’s July 2021 health order, but they would not release their vaccination rate as it violated the employees’ medical privacy rights. 

“The Sheriff’s Office strongly values our employees’ privacy and is concerned with the risk of unlawful data collection regarding employee medical data,” read their response. They cited California Government Code 6254(c.) and 6255, which give public agencies the right to not release files that are an unwarranted invasion of personal privacy. 

Their response is egregious for two reasons. One, it contradicts their previous stance that no records of the staff vaccination rate are available. And two, since we asked for the vaccination rate of the entire office and not the vaccination status of each employee, no one’s privacy would have been compromised. An aggregated vaccination rate (ex: 60% of employees are fully vaccinated) reveals nothing about the identity of those who chose to or chose not to get vaccinated. 

Further, if medical privacy was a legitimate barrier, then the sheriff’s offices in AlamedaSanta Clara and San Francisco counties would not have been able to provide their vaccination rates. The Sacramento Sheriff’s response is unreasonable to say the least, and it illuminates a pattern of evading data transparency despite their legal obligations.

To me, this is one more reminder of a principle I talk about in Bottleneck (soon to become chapter 4 of Fester): the ineffectual nature of whatever powers the Board of State and Community Corrections (BSCC) can assert over sheriffs. In addition to the many examples I cite there of county sheriffs not reporting COVID data at all (especially before August 2020, when the BSCC issued a request, but quite significantly even after), Aparna Komarla and her staff reported that, even when things are going on in jails, there is no effort to help others learn from positive examples, and that, as late as January 2022, the Sacramento Sheriff was hiding case rates at his facility. It should be obvious why in jails, which are closer to the community and have a more transient and temporary population (more community transmissivity and less community solidarity) and lower population vaccine rates, the staff vaccination rates should be a source of serious concern.

It’s true that, with the new variants and with diminishing returns of protection from the vaccine and boosters, this is a problem that cannot effectively be fixed now: the damage is already done. But the resistance to disclose the information is telling because vaccine rates (reflecting attitudes toward vaccination) are also bellwethers of other sentiments among staff. I’ve already written elsewhere about the paucity of information about the political views of prison and jail staff, and about the question whether the antivax campaign in this population reflects just that–antivax sentiments–or something bigger, like Petri dishes of Trumpism, virulent antiestablishment sentiments, or complete political capture of custodial staff unions. I think it’s really important to know who exactly we are dealing with here, because these are people entrusted with the care of vulnerable populations who get no sympathy from the public and, consequently, there are few checks on their attitudes and behavior. If the sheriff won’t provide these checks, or report about the situation, no one else will be able to effectively ensure that people are punished according to the California Penal Code and not according to the COVID-denialist whims of the guards.

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.

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

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