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.

Omicron Is Here, and We’ve Learned Nothing

Let’s cut straight to the chase. Today’s CDCR ticker is showing 1,343 new cases and only three prisons with no cases (one of them is San Quentin, which may be why we are not hearing as much about this as we should.) CDCR has 313 cases, Wasco 285, CIM (which gets battered with every COVID wave) 229, and North Kern 104. Smaller but still worrisome outbreaks are present throughout the system.

Unsurprisingly, the same is happening in county jails: Yesterday, Darby Aono, who is keeping tabs on Santa Rita, reported on twitter that there were 177 cases among jail population and 54 among the staff. And the UCLA COVID-19-Behind-Bars Data Project is reporting spikes in hundreds of prisons and jails nationwide.

The immediate response at CDCR and in some counties (such as San Mateo) has been to suspend visitation. But what about the people who come in and out of prison every day, namely, the staff? The partial vaccination requirement is in place, resulting in 46% of staff still unvaccinated after all this.

To recap, after everything we’ve been through:

  • There have been 53,261 cases of COVID-19 at CDCR, some of which are reinfections.
  • 246 incarcerated people have died of COVID, four of them recently.
  • The prison population is 80% vaccinated. The prison staff vaccination rate hovers around 54%.
  • Our science-minded Governor and Attorney General are supporting prison guards in their efforts to shirk mandatory vaccination even as they mandate the vaccine in all other areas of life, including schools. Their appeal of the order to vaccinate is pending.
  • The Ninth Circuit has reversed the District Court decision and placed a stay upon the vaccine mandate, even as there are now prisons with hundreds of cases.
  • The institutional response, rather than immediately ordering the staff to vaccinate, has been to suspend visitation (which could have been conditioned, like everything else, on showing a vaccination record).
  • Jails are seeing spikes, and the vaccination rates there are much lower than in prisons, for both the population and the staff.

CDCR, CCPOA, and the administration insists that the measures they have adopted (including the partial vaccination requirement) are sufficient, but it turns out that even these partial measures are not being followed. I’ve recently received correspondence about conditions at CMF in Vacaville, where aging and infirm people are housed. CMF currently has, according to the ticker, only two active cases, and given the explosion of Omicron everywhere else, there are particular worries because of the vulnerability of this population. Nonetheless, at the last case management conference of Plata v. Newsom, the petitioners’ attorneys reported a serious lack of enforcement at CMF and CHCF of the Aug. 19 public health order requiring prison staff who work in healthcare settings to have been vaccinated by Oct. 14.

The problem is specifically with contracted staff, who account for 26% of CMF’s overall staff and are only 37% compliant with the public health order. At CHCF, contracted staff account for 17%, and the compliance rate is 61%. Many of those contractors are medical personnel who, as explained above, are interacting with the most ,some of the oldest and most medically vulnerable incarcerated people in the state. When the issue was raised at the conference, the state representatives did not dispute the numbers–rather, they admitted familiarity with the problem–and the conference simply moved on.

What more is there to say? Omicron is here, and we’ve learned nothing.

‘

Ninth Circuit Stays Vaccine Mandate

Unbelievable and unconscionable. NBC News report:

A federal appeals court on Friday temporarily blocked an order that all California prison workers must be vaccinated against the coronavirus or have a religious or medical exemption.

A panel of the 9th U.S. Circuit Court of Appeals granted a request for a stay of September’s lower court order pending an appeal. It also sped up the hearing process by setting a Dec. 13 deadline for opening briefs.

The vaccination mandate was supposed to have taken effect by Jan. 12 but the appellate court stay blocks enforcement until sometime in March, when the appeal hearing will be scheduled.

A horrifying and preventable catastrophe

It is absurd to deny that a horrifying and preventable catastrophe has played out in California prisons. So far, more than 50,000 people—more than half the state’s prison population – has contracted COVID-19, and 242 people have died. The California Inspector General’s reports, as well as federal and state court findings, reveal a picture of shocking indifference, shortsightedness, and neglect in the California Department of Corrections and Rehabilitation’s (CDCR) handling of the pandemic—complete with irresponsible transfers, an overwhelm of the prison healthcare system, low testing rates, a rumor mill of fearmongering and disinformation, and unreliable data collection.

For a year and a half, advocates for incarcerated people fought in federal court to obtain relief. The lawsuit began as a plea to reduce prison population, which for much of the pandemic hovered around 100% of design capacity. But with the advent of vaccination, and after an uphill battle to ensure that prisoners, like other people living in congregate settings, receive it, the lawsuit’s focus became much more modest: a mandate that correctional staff (the main transmitters of the pathogen) become vaccinated. Despite concerns that prisoners, who have lost all faith in CDCR, would be suspicious of the vaccine, advocacy groups comprised of physicians, family members, and recently released people, succeeded in providing accurate and trustworthy medical information, resulting in high vaccine acceptance rates among the prison population.

The picture is completely different regarding prison staff. Throughout the pandemic, correctional officers told incarcerated people that COVID-19 is a hoax and that the vaccine would kill them; neglected to wear PPE in enclosed spaces and mocked prisoners for doing so; ordered prisoners to clean cells of infected people; fed prisoners insufficient, unpalatable food when the pandemic ravaged kitchen workers; and planned a correctional officers’ union event in Las Vegas amidst the pandemic wave of late 2020, which was abandoned only under public pressure. Even as their colleagues ailed and died, many correctional officers persisted in COVID-19 denialism and anti-vaccine sentiments.

The stay is the last in a long series of concessions and placations by government officials to the powerful prison guards’ union. Throughout the litigation, Judge Tigar exhibited remarkable patience and tolerance for bad faith arguments, trying to foster cooperation rather than impose orders and congratulating attorneys for the prison guards’ union for even sitting at the (virtual) table. Then, Governor Newsom—ostensibly, the outspoken architect of California’s science-forward vaccination policy and of vaccine mandates in schools—supported the guards in their bid to evade vaccination (the prison guards’ union reportedly contributed $1.75 million to Newsom’s anti-recall campaign). Attorney General Rob Bonta, who publicly decried the pandemic crisis at San Quentin as an Assemblymember, changed his tune as soon as he took office, and has allowed his employees to defend the prison system’s unconscionable policies.

This disturbing pattern offers somber proof that all government branches are paralyzed not only by fear of unflattering optics—the people who should be first in line to be released, elderly and infirm prisoners, are often serving time for serious, violent offenses—but also by the manipulations of the prison authorities and the prison guards’ union. In one case, justice delayed due to these evasive maneuvers was, literally, justice denied: Just a few weeks ago, Judge Howard of the Marin Superior Court found that the ill-fated transfer that started the horrific San Quentin outbreak constituted an Eighth Amendment violation—but offered the prisoners no relief, because the vaccines supposedly “changed the game” to a point that lifesaving population reductions are moot.

The Remaining Threat

But the threat is not moot; currently, there are several active outbreaks in California prisons and dozens of active cases. Studies are increasingly showing that the congregate setting in prisons, complete with flawed ventilation, lack of social distancing, and the rise in prison population, pose continuous risks. Efforts to control prison populations by stopping jail transfers are currently causing massive outbreaks in several county jails. Moreover, the emergence of new variants, such as Omicron, does not bode well for correctional facilities.

The risk extends far beyond the prison gate. For our forthcoming book about the California COVID-19 prison crisis, my coauthor Chad Goerzen and I have found worrisome correlations between prison outbreaks and spikes in cases in surrounding and neighboring counties. We should all know by now that the pandemic is not a zero-sum game. Viruses do not decide which hosts to inhabit based on arguments of moral deservedness or the California Penal Code. If prisons are allowed to incubate dangerous variants, the risk to you and your loved ones increases.  

The Ninth Circuit reasons that anti-vaccination sentiments run rampant among prison guards (we do not know why, as no one has ever systematically surveyed the political views of correctional officers) and assumes (without foundation) that, in the face of vaccine mandates, many might quit their well-paying jobs, leaving our vast prison system understaffed. This scenario was feared, but failed to acknowledge that in many other employment sectors with mandates, where vocal protestations and threats of resignation gave way to vaccine compliance. ‘

But even if the threat of correctional officers’ resignations is real, we must ask ourselves why courts and government officials are so stubbornly clinging to the idea of overcrowded prisons as a social 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 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.

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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.

Tentative Ruling in San Quentin Cases

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.

Parole News & Another Great Review of Yesterday’s Monsters

The COVID-19 crisis is truly driving home one of the main themes of Yesterday’s Monsters: The counterproductivity and cruelty of incarcerating aging, infirm people for interminable periods. I wrote about this on the UC Press blog and have a new piece coming out of the International Criminal Law Review. But better than anything I could write on this is this phenomenal episode of Ear Hustle with Leslie Van Houten, in which her reflective nature and elegant turns of phrase drive home the outlandishness of spending fifty years of one’s life behind bars. I’ve commented on the irony of yet another gubenatorial veto on Van Houten’s release precisely when her prison was experiencing a serious outbreak, and it shows again how the shadow of the past and political hysteria still drive parole outcomes. Highly recommended.

Along the same lines, the new issue of Critical Criminology features a great new review of Yesterday’s Monsters by Rita Shah, author of The Meaning of Rehabilitation and Its Impact on Parole. Here it is, reproduced in its entirety:

Twenty-twenty was a watershed year for conversations around criminal justice reform, abolition, and transformative justice. Calls for change gained public support in ways rarely seen before. The combined ills of COVID-19 and police brutality highlighted issues within the “criminal legal system”Footnote1 of the United States (US) that could no longer be ignored. And yet, one area of the system remains in the background: community corrections. For all the calls to reform or abolish the carceral state, the “Cinderella complex” surrounding community supervision (Robinson 2016) helps maintain these systems as public secrets (Shah 2020). One book published in 2020 that aims to shed light on issues within a part of these systems—parole—is Hadar Aviram’s Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole.

Aviram’s book makes it clear that parole, particularly parole hearings, must be a part of conversations around criminal justice reform and transformative justice, and she uses an unusual case to do so. As Aviram notes in the Preface and Acknowledgments, she never intended to write a book about the Manson Family. Similarly, many of us never intend to read a book about the Mansons. In this case, however, not doing so would be a mistake. Yes, it is a book about the Manson Family. But it is also not a book about the Manson Family. Aviram deftly uses the story and lore of the Mansons as a vehicle to take a deep dive into the very opaque process of parole hearings and release decisions. Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole is also an examination of societal views on violent offenses and an exploration of how assumptions and prejudices about those who commit such crimes haunt the US criminal legal system decades after the fact. “The too long, didn’t read” summary for Aviram’s book is: come for the Manson Family cases; stay for the carceral critique.

Aviram’s book is divided into an Introduction and seven chapters. In the Introduction, Aviram provides the impetus for the book: she notes that violent crimes are a key point of analysis because they often lead to dramatic changes in criminal justice policy; she explains why the Manson Family hearings offer a unique window into how parole hearings operate, particularly given the extensive records available; and she describes the notion of parole as a performative space as a way of framing parole hearings. The following two chapters contextualize the analysis presented in the book. Chapter One provides a fantastic crash course on parole, including its purpose, how the role of parole within corrections has changed over the years, and how the parole system operates, including the administrative side of parole and the parole hearing process, as well as how legal cases impact the process. Chapter Two takes a broader look at the California penal system and examines how the return of the death penalty in the late 1970s, the rise of victims’ rights advocacy, and cases such as those involving the Manson Family sowed the seeds for a trifecta of extreme punishments: 1) the death penalty; 2) life without parole; and 3) life through the constant denial of parole or, what Aviram (2020: 40) calls, “life de facto.” These three punishments, Aviram argues, provide the background for two key themes about parole hearings that are presented in the remaining chapters.

The first key theme, the role of narrative in parole hearings, is brought to light in Chapters Three through Six. Narrative plays a role in these hearings in four ways. First, in Chapter Three, Aviram uses narrative analysis to discuss the various stories that were used to explain the Manson Family murders and how the “Helter Skelter” narrative rose to prominence. Aviram expands this analysis in Chapter Four to show how the “Helter Skelter” narrative impacts the Manson Family’s parole hearings and the story that parole board members expect in such hearings. In Chapter Five, Aviram shows how the desire for a specific story by board members impacts parole hearings for all individuals under consideration, not just the Mansons. Finally, in Chapter Six, Aviram introduces the notion of the “Bardo”— the idea that one’s future is predicated on one’s past—and how it can be used to conceptualize the entire process of release to parole.

The analysis presented in these four chapters echoes an oft-repeated line from Hamilton: An American Musical: “Who lives? Who dies? Who tells your story?” In the case of parole hearings, who tells the story and the narrative chosen is the crux for determining who lives and who dies. As Aviram argues, the key to the narrative for all parole hearings is the notion of insight, which seems to be a stand-in for rehabilitation. Like rehabilitation (see Shah 2017), insight seems be a bullshit term as determining whether one has gained insight or is on the road to rehabilitation appears to be the criminal legal system’s equivalent of “I’ll know when I see it.” But this, ironically, requires insight on behalf of the parole board to know what they want to see and the ability to convey that to the individual being considered. Hence, both insight and rehabilitation raise questions about how success is defined and who gets to define it (see, e.g., Heidemann et al. 2015). These questions become key as the notion of “success” seems to be the basis of the narrative the board is seeking, even if that is not what they call it.

Unfortunately, for the individuals involved in the Manson Family cases, the narrative desired is also impacted by the narrative told about the crimes themselves. As Aviram notes, while the narrative that “stuck” was the “Helter Skelter” narrative, two more sympathetic and arguably more accurate narratives—that of a cult and that of common criminals—also exist. Nevertheless, the “Helter Skelter” narrative is the one used against the Manson Family members. In doing so, the parole board members and the victims and their representatives use the narrative to write a book with a predetermined ending, and no matter what the characters do or what the system allows them to do, the book will end the same way. This is made abundantly clear in the story of one Manson Family member, Susan Atkins, who, while literally on her death gurney, was still denied release for fear of her “dangerousness.”Footnote2

Indeed, adherence to the desired narrative—one that focuses on the ability to build a life in prison as expected by the parole board but one which is often difficult to achieve—reveals a frustrating Catch-22. On the one hand, the parole board requires attending programs, many of which do not exist or are not accessible because of housing and work schedules, and it dismisses the sort of self-led programming individuals participate in to try to meet this requirement. Thus, the parole board’s refusal to acknowledge the reality of life in prison is used to undermine attempts at progress and thus deny release. On the other hand, the parole board chides individuals for not obtaining specific job skills. This can lead to an undermining of parole plans—such as the case of Manson Family member Bobby Beausoleil, who showed evidence that obtaining a well-paying job is possible—which also leads to a denial of release. In other words, the narrative is set, and parole board members utilize their knowledge in ways that ensure the ending they desire.

For individuals seeking parole, the parole board’s preferred narratives also raise real questions about when or even if it possible to become an “ex” or “former,” whether it be offender or incarcerated individual. Individuals before the parole board are made to re-tell their histories over and over again, and the parole board relies heavily on the initial conviction and past infractions, risk assessments, and therapist notes when making their decision. This makes it virtually impossible for those eligible for consideration to ever become more than who they were. The “moral memory” holders present at the hearings—the prosecutors, victims, and victims’ representatives—certainly do not help in creating new narratives about the present or future.

The second key theme, the notion of the “Bardo,” appears in Chapters Six and Seven. As noted above, the concept of the “Bardo” is introduced in Chapter Six as an analogy for how one’s future is dependent on one’s past rather than one’s present. In the concluding chapter, Chapter Seven, Aviram continues this discussion, noting that the “Bardo” is a liminal space between death and rebirth. For the parole hearings, the “Bardo” is “a cycle between hope and disappointment, preparation and hibernation, action and inaction, self-improvement and self-assessment, in which inmates have to participate and lawyers act as ‘hope managers’” (Aviram 2020: 206). This cycle creates a situation where, at least during the parole hearing, individuals eligible for consideration remain stuck in a liminal space, not fully incarcerated but not yet free, both human and yet not-human. While Aviram focuses on parole, the concept of “Bardo” and analysis presented point to two larger issues within the criminal legal system as a whole: 1) the notion of the system as “effective”; and 2) the challenge of reentry to society post-release.

First, the “Bardo” raises questions about how effectiveness is measured by the parole board members and by other aspects of the system. The parole board, as Aviram highlights, focuses on a particular rationale for its decisions: an individual who is being considered for parole and has successfully completed programs and/or met the amorphous requirements the board sets for release are due solely to the successful nature of the incarceration experience. But those who fail—even when the failure is due to the systematic problems of incarceration—fail solely because of their own (in)ability to obtain proper insight and meet the unattainable requirements. In other words, the parole board deeming someone suitable for release is a testament to the idea that “prison works,” but denying release is a testament to the parole board’s role in maintaining public safety. The parole hearings are a classic case of the house always wins. But this faulty logic is precisely the logic that enables the “Bardo” to survive. The liminal space between death in prison and rebirth in society is maintained not through any real notion of making the right decisions, but through the illusion of prisons as a “correcting space” and “public safety” as a catch-all justification for carceral spaces—two terms that arguably create yet another “Bardo” and that help the board members justify their roles.

In reading Aviram’s analysis, I would argue that the notion that the house always wins can also be applied to other aspects of the criminal legal system. For probation and parole supervision, for instance, successfully navigating and being discharged from supervision is due entirely to the effectiveness of supervising agents. Getting revoked, however, is entirely the fault of the individual and a sign of the system maintaining public safety regardless of larger social factors at play. Again, the house wins. For policing, a drop in crime rates is a sign of the effectiveness of policing. A rise in the crime rate is a sign that there is not enough policing. Again, the house wins. In other words, the entire criminal legal system is a “Bardo”—one that holds society in between death (framed in language that evokes fear of crime critiques) and rebirth (framed in the language of public safety). And the language of the “Bardo” is used to maintain and justify the system’s existence and assure its continuation.

The second issue Aviram’s discussion points to is the “Bardo” of parole and reentry, more broadly. Parole, itself, is a liminal space—one that functions as a state-run reentry program: one in which an individual is free but not really free. While on parole, the conditions one must follow and the fear of revocation ensure the individual is constantly aware that he/she/they is/are still held by a sentence of the state and a reminder that the system is designed to uphold the notion that those under supervision are inherently bad and destined to fail (McNeill 2019). Furthermore, collateral consequences continue to impact them (see, e.g., Brisman 2004, 2007; Williams and Rumpf 2020). In fact, unless one’s criminal history is purged completely, all individuals with a record remain entangled in a lifelong “Bardo”: they are both in society but not of it.

Combined, the two themes regarding the role of narratives and the implications of the “Bardo” show that those sentenced to life with the possibility of parole are damned if they do and damned if they do not. Aviram highlights how life with the possibility of parole is, indeed, “life de facto”: it is essentially a life without the possibility of parole, which is, in turn, a stand-in for the death penalty. What emerges is a reminder that the system functions exactly as it was meant to. While Aviram offers suggestions for improving the parole hearing process, the analysis raises serious questions as to whether parole is a system worth saving. Thus, while Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole does not explicitly support abolitionist arguments, it could be used to do so. But that is not its only use. Aviram’s book is also a testament to the value of historical, narrative, and qualitative analysis. Scholars and students wishing to learn more about these methods, about parole, or about how to tackle the behemoth that is the criminal legal system “Bardo” will find this book a useful read.

Many thanks to Rita for this careful read and excellent review–and especially for the useful zinger “the house always wins”, which perfectly captures how parole works and what we need to fix.