TV Review: Murder, Mystery, & My Family

“The British justice system is the envy of the world; but, in the past, mistakes have been made.” So begins every episode of the British series Murder, Mystery, & My Family. It has an interesting, if formulaic, premise: in each episode, a relative of a deceased person who had been convicted of murder (most often hanged, but sometimes imprisoned and later died) seeks to revisit the circumstances of the crime and the trial and, possibly, obtain a judicial decision that the conviction is “unsafe” (i.e., reversible on the basis of a legal error or insufficiency of evidence.) The featured crimes are murders and serious felonies from 1970 and earlier, in which there is a question mark over the conviction.

That the investigation is initiated and driven by a family member, rather than by the legal officials–barristers Sasha Wass, QC, and Jeremy Dein, QC, as well as Judge David Radford–provides a curious emotional hook to the narratives. Even for crimes committed more than a hundred years ago, the relatives begin each episode deeply invested in “clearing the family name”–as if their dead relatives’ crimes can blemish later generations–and become even more convinced of their relatives’ innocence as the investigation progresses. When they speak of their deceased ancestors, they sound like someone testifying for a relative at a sentencing hearing today; in one case, in which several sailors were accused of harassing and raping a woman before driving her to jump off a vessel and drown, the relative referred to one of the sailors, who was hanged before she was born, as “a bit of a lad, but he couldn’t have done this.” Family ties and family shame run deep, and the relatives speak to social historians and crime writers who illuminate some of the period details: why people were having frenzied extramarital affairs shortly after the war, how poverty would have impacted family dynamic, why a doctor’s word about the medication of a patient would matter more than a nurse’s, etc. The relatives also visit the courts and prisons in which events unfolded, invariably exhibiting deep grief and distress when finding a grave or a place of execution.

While this emotional journey unfolds, Wass and Dein investigate the legal aspects of the case. They consult forensics specialists–usually pathologists and ballistics experts–as well as forensic psychologists, who read letters by the victims and perpetrators and opines as to their state of mind. They also take a close look at the court transcript. Their conversations about the evidence are a great display of the ideal roles of prosecutor and defense attorney: Dein zealously searching high and low for reversal grounds, Wass an impartial officer of the court who sometimes agrees with Dein about due process violations but whose prosecutorial lens is unmistakable in her descriptions of events (“and after they got the victim to transfer her estate, they figured they’d bump her off.”) The standard for declaring an historical conviction unsafe, per Judge Redford, seems to resemble the U.S. standard for reversal on collateral review: either a blatant legal error or new evidence that could not have been (and was not) exhausted in the proceedings many decades ago.

In both cases, they face problems of anachronisms and retroactivity. In many of the featured cases, the forensic evidence itself has long been destroyed or lost, and all the experts have to go by are reports written by doctors and scientists who might have been the luminaries of their time, but had to contend with their contemporary methods and technologies (in one memorable episode involving arsenic poisoning, we learn that arsenic occurs naturally in the body, a fact unknown at the time that the victim’s body was exhumed and examined due to uproar and conjecture.) On their face, the reports sometimes show biases (the deceased is said to have been poisoned, when the poison may well have been self-ingested.) In other cases, some forensics remain, but are difficult to analyze because their condition has deteriorated. One is left with the uneasy feeling that hundreds of cases, now final, involving less zealous relatives (and perhaps less made-for-TV facts) could be reversed on the same grounds.

As to the legal grounds, Judge Radford is put in the complicated position of calibrating what counts as due process today with the standards of yesteryear. It’s easier to find legal errors when procedure would have been unacceptable at the time as well as now, such as when the accused was not represented. One example involves the repeated uncovering of what Dein refers to as “police verbals”–unverified paraphrases of what the suspect supposedly said by investigating officers–which seem absurdly unreliable in the face of today’s UK practice of recording all police interrogations. But what about judicial remarks to the jury that would be considered biased today, and merely reflected prevailing values and mores at the time? Many such remarks feature references to gender and class that would have seemed natural and proper to judges in the late 19th century but today are beyond the pale. How Judge Radford dukes this out remains somewhat opaque because, by contrast to the approachable, TV-friendly self-presentations of Wass and Dein, the judge remains in character throughout, and is not part of the debrief at the end of the episode. Nor does his reasoning always satisfy the relatives who, when the conviction is upheld, vow to continue digging into the case.

Anyone interested in legal history, postconviction remedies, and forensics would find this show, despite its contrivances, interesting and well worth watching.

Initial Thoughts for Sherlock Holmes Book

Things that I’m passionate about have always found a way into my scholarship–I’ve written about marathon swimming, redball crimes, and Sherlock Holmes. This last obsession is lifelong: I read my first Sherlock Holmes story when I was 10 (and had nightmares for weeks because of the Adventure of the Cardboard Box), did several pilgrimages to 221b Baker Street, contributed to an annotated version of The Norwood Builder, and marshaled the knowledge I gained through my work with Malcolm Feeley on the history of female crime to create a typology of female characters in Sherlock Holmes stories.

In recent months, as I’ve been running increasingly long distances (in preparation for the Oakland Marathon and other races), I’ve listened to the entire Sherlock Holmes canon again (Librivox treats us to the wonderful renditions of David Clarke and YouTube treats us to the fantastic renditions of Greg Wagland.) This reacquaintance with the stories has made me deeply ambivalent about the social order in Doyle’s universe of crime; Doyle was a man of his time, with opinions of his time (about women, foreigners, people of other races, ethnicities, and religions, occurrences in various parts of the world, the metropole-colony relationship, animals, social classes), many of which have aged very poorly. At the same time, being intimately familiar with the criminological innovations and trends of the 19th century (including an enriching visit to the Museo Lombroso in Turin) has added a deep dimension of understanding and excitement to my enthusiasm about the stories: they reflect an era of immense novelty and discovery at the intersection of science and criminal detection, as well as a deep love of logic and deduction. Beyond that, the magic of the stories is still there: the gothic aesthetic, the marvel at shrewd interpretations, the marriage of forensics with imagination, and the literary trickery.

This has given me an idea: to write a book in which a criminologist (me) takes you, the Sherlock Holmes lover, by the hand, showcasing and explaining themes in the stories. I will set the scientific stage for Holmes’ method through the scientific innovations of the 19th century, introducing you to Quetelet’s statistics, Bertillon’s forensics, and Lombroso’s postmortems; walk you through the magic and horror of evolutionary frenzy, as Darwinian insights become twisted into concerns about atavism and sinister simians; examine the American and Australian colonies as landscapes of wild criminality; talk about the geography of crime in town and country; discuss the roles of ethnic, racial, and religious differences in “othering” and exoticizing criminals; and show how, in a society where classes and “places” were crystallized, class jumping or class transgression can be a crime in itself. Each book chapter will illuminate one of these themes through extensive analysis and quotes from several stories, which should make it fun as a reading companion to the entire canon.

Welcome to 221B Baker Street. Mrs. Hudson will serve some tea and scones; put on your house robe and slippers and enjoy your stay.

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.

Roe Overrule Leak: An Adoptive Mom’s Perspective

So much has been said and written about the Supreme Court’s leaked majority opinion draft overruling Roe v. Wade that I hardly need to elaborate the basics. I’m not a reproductive justice expert, nor am I particularly surprised that this has happened–they are simply doing precisely what they were hired to do, which is to promulgate a theocratic, sex-negative worldview. The reason I add my voice to the cacophony is that I have a somewhat unorthodox, nuanced position on this debate, which hasn’t (I think) been aired yet–that of an adoptive mom.

We adopted our beloved son as an infant from a state that frowns upon abortions. My son’s amazing birthparents’ struggles, dilemmas, and decisions are their private business and I will not air it here or anywhere else. What I can share is that, throughout our happy life together, I have been beyond ecstatic that the world has been blessed with my son, a sparkling star of a boy–bright, empathetic, loving, friendly, kind, athletic, funny, multitalented, spirited, lively. And at the same time, every adoption involves a huge leap of love and empathy, and much pain, grief, and loss adjacent to the joy. There are no hard or fast rules about the roads taken or not taken with pregnancies. The deep regrets of placing a child for adoption, the sometimes unsurmountable hardships of parenting, and the deep regrets of terminating a pregnancy all float in a realm of possibility that I can only imagine, having been raised in a welfare state with excellent sex education and easily available contraceptives. No assumption can be made, as the right makes, that abortion invariably leads to shame and regret (see this remarkable amicus brief on behalf of law professors who underwent abortions and “believe that, like themselves, the next generation of lawyers should have the ability to control their reproductive lives and thus the opportunity to fully participate in the ‘economic and social life of the Nation’.”) Of course, the opposite assumption–that abortion brings you your life back without a trace of regret or sorrow, is also false, and part of the reason many women can’t quite find themselves in the pro-choice milieu is that, in the fierce struggle for women’s rights, little room is left to contain these sorrows and regrets.

The philosophical debate about when life begins is, to my mind, a red herring. For what it’s worth, and this may surprise my lefty friends, on the abstract philosophy point I’m with the pro-lifers: I do believe that a form of life–sentience–begins at conception, and I find that congruent with my sentiments on other aspects of sentience, such as nonhuman animal rights. The problem is that the pro-life right-wingers lose interest in supporting said life from the moment it emerges from the womb, as evidenced by the lack of parental leave, child care, quality early education, and decent, government-funded healthcare for all. They are also not interested in sparing such life from emerging in the first place through comprehensive sex education and widely available contraceptives.

All of this has already been said, most eloquently, by others; but the right-wingers have a ready-made answer. “Not to worry!” They cheerfully squeal. “That’s what adoption is for!” Which is where, as an adoptive mom, I need to speak up and disabuse some of the truly ridiculous illusions that our right-wing politicos and fundamental Christian buddies are willing to entertain. Namely, the notion that limiting safe, legal abortion is going to result in a boon for adoption should be patently absurd to anyone who has gone through an ethical open adoption process; the opposite is true.

Adoption professionals recoil from the idea that adoption is about “selling children”, and from here flow multiple ethical and legal limitations on the kind of assistance that adoptive parents can offer birthparents and on the interactions between the party. And yet, beyond the niceties, let’s start with the obvious: in virtually every adoption, as ethical and kind and caring as it is, children pass from poor hands to more economically advantaged hands, with money moving in the opposite direction. This means that birthparents–usually birthmoms–are at a considerable socioeconomic disadvantage, often exacerbated by being typically younger than the adoptive moms.

Forcing women who would otherwise have a (legal, safe) abortion to instead carry a pregnancy to term and place their infants for adoption throws more young women and girls with no bargaining power into the mix–often women and girls who now have to hide their pregnancies from families and boyfriends. It is not difficult to predict that women who are less equipped to carry a pregnancy to term would be the ones seeking abortions, and that requiring them to forego that option will result in pregnancies that are less safe, and therefore in infants that are more difficult to place for adoption. Hiding your pregnant belly from your mom or your friends can result in experiencing your pregnancy under conditions that are bad for you (exposure to smoke, exposure to alcohol, unhealthy diets); having such a pregnancy discovered can result in being unhoused for the duration of your pregnancy; all this instability will surely result in less responsible and consistent prenatal care.

A birthmom who knows she can’t parent will then search the Internet high and low for adoption agencies, trying to find one with serious social workers and good services. She’ll then go through an intake interview with a social worker, who will ask her about her medical history, prenatal care, and use of alcohol/drugs. I’ve taken classes with other adoptive parents: the medical history is something that can be scary for prospective parents, and birthmoms can, of course, guess this. So, what happens when someone who has not had the resources to properly care for themselves and their baby tries to place said baby for adoption? Would it surprise anyone if this would result in more deceit and evasion when interviewed by adoption agency social workers?

I can see very unhealthy prospects for the adoption market under such circumstances. With the inability to verify pregnancy details, or to provide proper care to prospective moms, unscrupulous lawyers and corrupt social workers might step in with unhealthy incentives, pressure, and coercion–akin to the worrisome trends we see in the international adoption market. This means less safety and trust precisely in a situation that requires an enormous amount of empathy and mutual trust. It means less careful vetting of adoptive parents–the actual people who are to raise and nurture this precious life. And it also means that women who might withstand the pressure and try to parent their kids might have to later relinquish them by court order, or due to other awful circumstances, which throws kids into the traumatizing world of government care at an early age and creates considerable challenges even in the happy cases that end in fostering and adoption. Many people who can become fantastic parents to infants through open adoption might not have the emotional fortitude and resources to address and heal the trauma of older kids. Corollary: Throwing birthmoms into these situations ahead of time by eliminating a safe, legal option, is not a boon for adoption–the opposite is true.

Additionally, if, indeed, adoption is to be the panacea for the problem of sentient life, then we should also care about the life of the birthmom after adoption–in the form of extended services to help heal the trauma, beyond some meetings with a social worker: I’m talking college money, gym membership, grocery money, job seeking support. Of course, all this assumes that Alito et al. truly want birthmoms, after giving the gift of motherhood to someone like me, to land on their feet and “fully participate in the ‘economic and social life of the Nation.” Do they?

The truth is that none of this is really about abstract notions of sentience nor about seeing the abortion/adoption thing as a zero-sum game, because it is patently clear that neither value is being advanced by forcing women to carry pregnancies to term or risk a dangerous back-alley procedure. Friends, here’s what’s going on: Justice Alito and his buddies are simply out to penalize women (the wrong sort of women?) for having sex. That the punishment might extend to other (sentient) people in the equation–a child, adoptive parents, adoption professionals–simply does not enter into their equation. The idea that someone who receives solid, reasonable, science-based sex education should be able to just say yes to sexual activity with whoever they choose, with however many people they choose, in whatever form, in whatever frequency, so long as all are of sound body and mind and consent and respect each other, is anathema to them. They know that legal prohibitions will not deter young people who have been deliberately left ignorant about the functions of their own bodies from having sex. They don’t care. Because they don’t intend to ever pick up the price tag for the many young lives that will later end up in flux, this is a complete externality to them. And that is what is so atrocious here.

At SFPD, All the Double Coils Go in the Same Box

Last week I received a call from a journalist following up an astonishing story: the San Francisco police apparently used DNA evidence collected from a sexual assault survivor years ago to identify and arrest her in connection with a recent, unrelated property crime. San Francisco District Attorney Chesa Boudin was horrified and proceeded to dismiss the charges, but the case continues to make headlines. It turns out that local DNA databases are less heavily regulated than the federal ones, and it is regular practice for the police to upload rape kit DNA to the database–both the perpetrator’s and the victim’s.

My initial reaction to this story was astonishment; it is extremely jarring to consider that someone consents to an invasive and extremely unpleasant forensic examination following one of the most traumatic experiences a person can go through, persevering with it so that the police can catch the person who did this to them, only to find themselves on the receiving end of a criminal prosecution for an unrelated incident. I was also quite astonished at the juxtaposition between the shameful backlog in testing rape kits for the sake of arresting the perpetrators and this overzealous haste to do something with the victim’s DNA. There’s no question in my mind that this is appallingly unethical, but is it also a constitutional violation?

The Fourth Amendment prohibits unreasonable searches and seizures; the first question in every Fourth Amendment analysis is always whether the police activity in question is, indeed, a search. Since Katz v. United States (1967), courts use a subjective and an objective test to answer this question: (1) Has police behavior infringed on the person’s expectation of privacy? and, (2) is this expectation of privacy something that society is prepared to recognize as reasonable?

Until recently, the concept of privacy was practically nonexistent in Fourth Amendment jurisprudence whenever a person disclosed or exposed something to a third party: anything you discard, expose, or share, is fair game, and the risk that the third party will share it with the police is on you. This is true for things you say to a friend (whether or not the friend testifies against you later), the numbers you ring from your home phone, information you share with the bank, the garbage you leave on the curb and, as we recently learned, DNA you share with ancestry websites (which can be used for familial identification, too.) While the collection of forensics for a rape kit is done by a nurse, not by police personnel, under the pre-2018 Third Party Doctrine this should technically not matter; moreover, Sameena Mulla‘s excellent book The Violence of Care shows how much this agonizing process feels forensic rather than medical (and is done by nurses who fully identify with the forensic mission of the rape kit collection.)

But in 2018, the Supreme Court decided Carpenter v. United States, in which Justice Gorsuch expressed discontent with the breadth of the Third Party Doctrine. The Court limited their decision to the exhaustive collection of cell-site location information (CSLI), and explicitly declined to overturn the entire doctrine, but it certainly signals less enthusiasm for the doctrine. The same considerations–extensive collection, intimate information, access to holistic information about the person–are present in the context of DNA use for different purposes than the ones it was collected for, as Annabelle Wilmott explains here. While I don’t think that, at present, the Fourth Amendment forbids what SFPD has done here, I don’t think it will take long for the Justices to curb the Third Party Doctrine in the context of DNA collection–a few additional high-profile scandals like this one, particularly in unsavory, unconscionable contexts such as this one, and there will be massive public distaste for this (consider that the US population is particularly concerned about privacy.)

I do want to push on a few aspects of this narrative, though. When friends told me how appalled they were that charges were filed, I asked them, “would you be as appalled if you found out that the victim’s DNA linked them to a heinous crime, such as a homicide or a sexual assault?” This is not merely a parlor game. We know that many people who commit heinous crimes were themselves victims of serious physical and sexual violence in the past. For some of my colleagues, this possibility would dampen the outrage. The other thing I wondered about was, given that SFPD claims this is standard practice, whether they have a significant yield of crimes solved as a consequence of this practice (and possible other practices of tossing into the crime database DNA collected for other purposes.)

Another policy consideration–that this perverse use of DNA will dissuade victims from submitting to forensic examinations–does not sound serious to me. The exam itself is already daunting and unpleasant enough in itself that any effect this additional story might have on people’s considerations whether or not to submit to it seems to me marginal (this is not a good thing, but it seems nevertheless to make sense.) I also think that this policy argument has the potential to suggest that collecting rape kits is an unqualified good, when Mulla’s excellent book shows that the overzealous enthusiasm about forensics leads to collecting them when they are completely immaterial to the investigation, such as in the many cases in which the rapist is known to the victim and sex itself is not in dispute (but consent is.)

This Chron story suggests that SF Supervisors are contemplating legislation that would prohibit this particular mishap from happening again, and I worry that, in the haste to react to an unpleasant high-profile incident, the opportunity for a more thorough investigation and regulation of the entire local DNA database business will be missed.

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.