Tuesday, April 28, 2020

New Domain!

Dear CCC Followers, After 12 years of blogging, California Correctional Crisis is changing domains!
Please bookmark https://www.hadaraviram.com/california-correctional-crisis/ to find all your old favorites as well as new posts about COVID-19 and everything else.

Best,

Hadar

Monday, April 20, 2020

Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It

When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernarke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of "triggers and vulnerabilities:"
The triggers of the crisis were the particular events or factors that touched off the events of 2007-09--the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).
The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction. 
Bernarke's distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons, and that 59 of his fellow prisoners have tested positive. As of today, we've also seen the first positive test in the San Francisco jail system. It's all going to mushroom from here. 

Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?

Think of COVID-19 as the trigger, and think of the disappointing--even shocking--reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.

First, what gets called "health care" in CA prisons really isn't. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon's retelling of these stories here.) 

It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things--diet, especially, comes to mind--was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People's medical complaints were regularly trivialized and disbelieved--not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.

The outcome of the case--reducing the prison population from 200% capacity to 137.5% capacity--was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the "non-non-nons") rather than addressing a full fourth of our prison population--people doing long sentences for violent crime and getting old and sick behind bars.

So, now we face this trigger--COVID-19--with the following vulnerabilities:
  1. We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
  2. We're now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
  3. We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
  4. We have gotten used to doing a "health vs. public safety" equation that doesn't make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can't second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by... introducing private prisons into the mix
Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It's already started. 

And if you wonder whether this can be contained in prisons, well, it can't. Guards don't live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.

What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out--even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.  


Thursday, April 9, 2020

Cause of Death


Source here.

Today I came across this sobering table, which struck me as important not only for the obvious reasons. You'll note that homicide is nowhere in the top-ten list of causes of death for Americans. If you look at the CDC reports for causes of death in 2017 based on vital statistics, you'll see homicide ranked anywhere between #106-108 (interestingly, "legal intervention" is ranked 109.)

Yet, to browse through the list of Netflix and Prime Video shows we are offered to numb our souls from the pandemic experience, you could be mistaken to believe that a much higher proportion of Americans succumb to homicide. And to me, this suggests that the current debate about who to release on the basis of "public safety" is guided more by folk devils than by real concerns.

Assuming that you include people in prison in the overall category of human beings whose lives and health matter (if you don't, thank you for reading this far--we probably don't speak the same language and I hold no hope of convincing you, nor should you hope to convince me), it should be obvious that COVID-19 poses a much greater risk to public safety, broadly defined, than homicide.

Now, releasing people convicted of violent crimes is not really a trade-off between COVID-19 deaths and homicide deaths, given that the folks most at risk healthwise, as I explained yesterday, are old and sick and also happen to have committed violent crime decades ago.

So, if there is reluctance to release the folks colloquially known as "violent offenders"--many of whom would barely have a technical write-up or two for the last two or three decades--it's not really coming from concerns for public safety, is it? It's coming from concerns for palatability and an idea that this is the right time for abstract ideas for retribution.

If I put the state's resistance to do the right thing here together with the mismanagement of homeless populations, it almost seems like, at our time of need, we've simply decided that the bottom rung or two in the American class ladder don't matter. And they do, which makes my heart hurt.

In Tricycle Magazine, Chenxing Han writes so beautifully:

The Buddha is often likened to a physician. He diagnosed the unsatisfactoriness of the human condition and revealed its cause. The Buddha was no doomsayer, however: his teachings were treatments that promised a cure, an ultimate freedom from that which ails us. SARS-CoV-2 is a truth-teaching virus. It has revealed to me a deep well of fear: of my loved ones dying, of dying myself (or, during more mundane moments, of running out of brown rice). More incisively, it has revealed society’s disturbing inequities and gross iniquities, forcing us to confront the truth of how the most vulnerable among us—the poor, the disabled, the unhoused, and the otherwise marginalized—bear the brunt of this crisis.   

What this cruel teacher will teach our state about caring for its most vulnerable wards remains to be seen--hopefully before it is too late.

Tuesday, April 7, 2020

Yes, We *Have* to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins

Manson follower Susan Atkins loses 13th attempt at freedom -- and ...
Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,
James Whitehouse. Photo credit: Ben Margot for the Associated Press.

Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (TL;DR "we are not the appropriate forum for this - go to the original courts.") As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn't.

In the aftermath of putting up my petition to release prisoners, I've been hearing commentary that we should limit the releases to "nonviolent criminals." I use the quotation marks because the definitions of what is and is not "violent" and "nonviolent" is not as clear as people think, and because someone's crime of commitment is not necessarily an indication of their violent tendencies at present, nor does it predict their recidivism.

In Cheap on Crime and elsewhere I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though--as this excellent Prison Policy report explains--is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.

In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.

The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one's health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and therefore far less of a public risk of reoffending than a younger person who's been inside for a few months for some nonviolent offense.

So, if there's any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it's time to look in the mirror and ask ourselves - why?

Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.

So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of "reward" for people who we think are "worthy" or "deserving"?

The correctional system's ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday's Monsters I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins--a devout Christian with a clean disciplinary record for decades--was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.

The Parole Commissioners' treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation "prospect." They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:

For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.

The Parole Board refused to release Atkins, arguing that "these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group." Atkins, who had no ability to do anything at all, died alone in prison a few months later.

If this outcome feels okay to you, ask yourself: what's it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death?

Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you?

And if your answer is, "well, they didn't consider that when they killed their victims, right?", I have news for you: The victims are not coming back. They've been gone for decades. It's horrible, and tragic, and we can't fix that. Certainly not with another tragedy.

Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.

Friday, April 3, 2020

Gov. Newsom, Please Release More Prisoners to Prevent CDCR from Becoming a Mass Grave

Dear Gov. Newsom,

Many thanks for your tireless work on behalf of Californians in their hour of need. I can only imagine the multiple emergencies on your agenda and the many proverbial fires you must put out to "flatten the curve" and give our emergency services a fighting chance against the COVID-19 pandemic.

I appreciated learning about your recent commutations, as well as about the plans you have put in place to release 3,500 prisoners from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.

Less than a decade ago, the Supreme Court found healthcare conditions at CDCR so appalling that, every six days, a person behind bars died from a preventable, iatrogenic disease. The Court attributed this massive failure to deliver anything that could be even remotely called "health care" to overcrowding in prisons, and supported the federal three-judge panel recommendation to release approximately 30,000 prisoners. That has somewhat improved the situation, but even with massive efforts toward a turnaround on the part of the federal receiver, we are still seeing woefully deficient healthcare--interminable lines and wait times, people treated in cages in which they have to wait for hours, "group therapy" consisting of a semicircle of cages.

And that's without a pandemic going on.

Gov. Newsom, our prisons are a Petri dish for contagion and disease. It is impossible to provide minimal health care to this many people with a highly contagious virus on the loose.

The Public Policy Institute of California, relying on CDCR statistics, reports that 23% of California inmates are 50 or older. Aging prisoners may be contributing to California’s prison health care costs—now highest in the nation. The state spent $19,796 per inmate on health care in fiscal year 2015, according to the Pew Charitable Trusts. These costs were more than three times the national average and 25% more than in 2010. Moreover, many California prisoners serve extremely long sentences: Approximately 33,000 inmates are serving sentences of life or life without parole. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

Isn't decades in prison enough? How much retribution or deterrence do we still need for people serving sentences of 30, 40, or 50 years, that we must keep them behind bars for longer in the face of a lethal pandemic?

Robust research about aging in prison confirms that people age much faster behind bars than they do on the outside, and they are much more vulnerable to disease--partly because of confinement conditions and partly due to faulty health care.

The scale of releases we should contemplate is in the tens of thousands, not in the thousands. If you do not act now, within a few short weeks, the CDCR will become a mass grave.

Please, don't let the current litigation be the only push to do the right thing. You have done the right thing so many times--as Mayor of San Francisco and as our Governor. The prisoners are Californians, too. They can't vote from prison, but they are your constituents and you must consider their welfare.

Please, act now, before thousands of lives are lost.

Readers, please join this open letter by signing my Change.org petition.

Tuesday, March 31, 2020

Health Measure or Oppressive Social Control?

The 'Splainer: What is a mikvah, and does it have anything to do ...

One of the hottest stories from quarantined Israel is the fierce Haredi (Ultra Orthodox) objection to the closure of mikvaoth (ritual bathhouses.) Almost two weeks ago, Ha'aretz reported:

Another issue of concern is immersion in a mikveh, a ritual bath, especially for women, who must immerse every month under the rules of family purity. 
“The mikvehs for women’s immersion are under constant supervision, so there is no reason to fear keeping the mitzvah of purity properly,” the Rabbinate’s document states. However, “anyone who must be in quarantine must postpone her immersion until she is permitted back out.” 
Indeed, keeping the mikvaoth open is strongly suppported (!) by Israel's health minister Ya'acov Litzman, himself a haredi man. Decrees published late at night confound the Israeli public with contradictory policies: the decree was to close the mikvah for men, but keep it open for women. If you're looking for a patriarchal angle, here it is: women's access to the mikvah to purify themselves after their monthly period is a prerequisite for having sex, and is therefore in the best interest of their husbands. Then, they changed course and reopened the mikvah for men also, apparently under the pressure of Ultra Orthodox groups who wanted to ensure access to this prerequisite for visiting holy sites (in itself a can of worms in the context of quarantine.)

The most recent development is Litzman's insistence to keep the mikvaoth open because "it is inconceivable that people should be allowed to take their dog out for a walk and the mikvaoth will be closed." When Netanyahu said, "what can we do, the virus does not respect religion," Litzman replied, "well, we will."

Setting aside the absurdity of a health minister who apparently does not care for the health of Israeli citizens, particularly those of his own congregation, and who will not use his insider influence to talk the Rabbis into saving their own followers, I was starkly reminded of a similar dark period in history--namely, the tragic days of the 1980s, in which San Francisco was in the throes of the AIDS epidemic and the numbers of the stricken rose every day. Young people were going to funerals incessantly, caring for each other in desperation against an indifferent administration, and waging battle on two fronts - against the disease and against homophobia.

When Mervyn Silverman, then the Director of Health in San Francisco, decided to close the bathhouses--a hotbed of gay liberation and sexual activity--he encountered vociferous objections from many in the gay community. The New York Times from 1984 reported:

Dr. Mervyn Silverman, San Francisco's Public Health Director, said at a news conference that the 14 establishments ''have been inspected on a number of occasions and demonstrate a blatant disregard for the health of their patrons and of the community.''
He said the establishments were among 30 businesses investigated by undercover health officials since an April ordinance went into effect banning ''unsafe'' sexual activity at sex parlors and bathhouses. The 14 that he ordered closed have not complied with the ordinance, said Dr. Silverman, who has been under pressure from Mayor Dianne Feinstein to order the shutdowns.
The authorities posted closing notices effective at noon on the sex club buildings. If a notice is ignored, the city would go to a judge to obtain a court order shutting down the operation.
Dr. Silverman's announcement came just a week after the department released figures showing an increase in reported AIDS cases in San Francisco, where officials estimate that 15 percent of the city's population of 700,000 is homosexual.
Last month 39 new cases of AIDS were reported, for a total of 723 since July 1981. Eighteen AIDS patients died in September, the department said. According to the Centers for Disease Control, a Federal agency based in Atlanta, 6,122 AIDS cases have been reported throughout the United States and 2,734 of those patients died.
Gay liberation activists considered this a thinly veiled effort to push the community, who had just recently achieved a modicum of acceptability, back into the closet. In the context of a similar debate in New York, the AP reported:

″My generation sees this (opposition to the bathhouses) as endangering hard-fought, hard-won and well-deserved advances. What they don’t realize is that this was before the virus came along,″ said Caiazza, whose West Side medical practice has become more and more devoted to AIDS in the past three years. 
Fascinatingly, there are still people who believe--today, after all those years--that the closure was an unnecessary homophobic move. Gayle Rubin writes:
Proponents of bathhouse closure, such as Randy Shilts, argued that their program was an obvious common sense measure to save lives. They portrayed the debate about closure as one pitting public health against civil liberties. Shilts in particular wrote as if public health professionals were in agreement on the desirability of closing the baths, and that only political considerations were preventing them from doing so. (Shilts 1987)
On the contrary, bathhouse closure, far from being an obvious public health measure impeded by political pressure, was a case of political pressure overwhelming public health considerations. Public health professionals were not unanimous about the necessity or desirability of closing the baths, which stayed open in most other cities. It is ironic that while there are still no legal gay bathhouses within the San Francisco city limits, establishments in nearby municipalities such as Berkeley and San Jose have continued to thrive.
It is arguable that what mattered in the long run was changing behavior, not its location. Closing the baths may have actually impeded the progress of safe-sex education. Even in situations where the ownership did not cooperate, safe sex was spreading, like the epidemic itself, from person to person, through sexual contact, as men would engage each other in discussions of what they were or were not about to do. Wholesale closure eliminated opportunities for sex education along with opportunities for sex. At the baths, the concentrated populations of those at high risk for AIDS provided opportunities for educators to disseminate condoms along with written guidelines for AIDS risk reduction. (Murray & Payne 1988; Bolton 1992)
The social costs of closing the baths were treated cavalierly. Those who pushed for closure appeared to assume that nothing important or good ever happened in the sex palaces. They failed to recognize the baths and sex clubs as important institutions that served many needs within a diverse gay male community. (Brub 1996) The major gay baths had deep pockets and expensive attorneys, and could afford a protracted legal fight. By contrast, many of the leather clubs were relatively small operations in which a dedicated owner had invested most of his capital and a great deal of personal commitment, and they could not afford prolonged litigation. Calls for closure quickly claimed most of the specialized leather, SM, and fisting sex clubs even before any city actions were taken, and as the agitation intensified, most of the men who ran the leather clubs elected to shut down and limit their losses. The wider social and economic fallout from closure was also substantial. While the owners of bathhouses were frequently vilified as greedy capitalists (and some undoubtedly were), the debates never grappled with the importance of the baths to gay male social life or the economic impact of closure on the gay economy.
I vehemently disagree with Rubin: Closing public bathing facilities in the face of a pandemic, whether they cater to the haredi or the gay community, is not a "case of political pressure overwhelming public health considerations." If anything, the vociferous insistence on the opposite policy is a textbook example of precisely that. While it may be true that people who hate haredim or who are deeply homophobic find a measure of schadenfreude in the resulting harm to community morale--and the pain of that should certainly be acknowledged--when saving lives is at stake, we absolutely must do what we can.

It's instructive to read Silverman's aftermath thoughts about the closures, as he laid them out in an interview in 2004:

What was unique here was that people could come there and have multiple partners, as many as 20 or 30 a night. Most men, heterosexual men, could not understand how this was possible, but if you are the recipient, then obviously you could have as many partners as you can tolerate. And if you had 30 partners, and one or more of those partners was HIV positive, there was a good chance, not necessarily every night or whatever, but you were placing yourself at great risk -- unknowingly, of course, in the early years -- at risk for getting infected. ...
The mayor at that time said, "If you save one life, then it's worth closing the bathhouses." At the time that this was going on, it was my feeling that we wouldn't save one life; we would lose many more, because the bathhouses represented 5 or 10 percent of the gay community on any regular basis. That's who frequented those bathhouses. That left you with 90 or 95 percent of the community you needed to reach, because if you could make the bathhouses disappear overnight, you weren't going to make the transmission of this virus disappear overnight. One had to think of the entire community, and how do you reach that community and get a behavior change?
Interestingly enough, before any of the drugs were discovered and out in general distribution, the rectal gonorrhea rate in this city dropped from 100 percent that we had figured that we had before down to 15 percent. There was an 85 percent drop. The reason I bring that up is in the early years, that was what we were using as a surrogate marker. We didn't have HIV identified or the test, so we figured if someone had that, there was a good chance they may have whatever this new disease was. This dropped 85 percent before any drugs, and the reason it dropped was the exposure that the Health Department and working with the gay community had in getting the message out and getting behavior change, a behavior change never seen before.
If you have an obesity clinic, a smoking cessation clinic, a drug substance abuse clinic, where you're trying to get people to stop, and you get a 20 percent success rate, ... you feel you've had a success. We're talking here about an 85 percent drop in rectal gonorrhea. That meant that from a public health perspective, we must have been doing something right.
Had Litzman not been, essentially, a mouthpiece for Rabbis who flout state law and regulation, he could have been a bridge that reaches across the abyss with empathy and compassion for the community's plight. There is still an opportunity to do this, because every day that the mikvaoth remain open is another victory for the contagion. I write this being fully aware of the fact that I'm not on the receiving end of such measures, and that--as opposed to Rubin--I didn't live through the worst of the AIDS epidemic and perhaps that dulls my appreciation for the psychological blow that the closures had on the community. While emergency measures must be taken if lives are to be saved, we can do so as we express sensitivity to people's communities, sense of collective identity, and allegiance to community norms.

There is an additional point that matters a lot. Recently, Cianna Stewart, who worked on the front lines of AIDS prevention in the 1990S, wrote a piece comparing her personal experiences of the two pandemics. She found many similarities between the two experiences, but some important differences:

  • this timeline is much faster
  • this virus is much easier to spread
  • a racist/xenophobic backlash operates differently from a homophobic backlash because while individuals are being racist against Chinese (and perceived Chinese) people, as a society we have a different understanding of how racism is wrong, in contrast to the societally-supported moral outrage against gays and bisexuals which was widespread then and still lingers to this day (it’s also different that now we have a President who is actively stoking the racism where before the Presidents primarily engaged in homophobia and racism by omission)
  • the coronavirus is spread through everyday activities, while HIV is spread primarily (although not exclusively) through vilified behavior and actions veiled in secrecy (for example: it’s generally easy to have conversations with family about wanting to play basketball or hug people, but generally hard to talk with family about longing for unprotected sex)
  • COVID-19 has the potential to spread through families and there are many stories about families in grief about not being able to be with their dying loved ones, in contrast to people getting kicked out of their families for being gay and/or when they contracted HIV (I will note that in the early days of the AIDS crisis there was a lot of fear and misinformation about routes of transmission and some families wanted to be with their dying but were afraid or prevented from doing so)
  • people don’t have to get infected or know anyone who’s infected in order to feel their lives are being torn apart by this pandemic because it already has had a broad economic impact that is likely to get worse, and in the short term is devastating for so many individuals and in the long(er) term may push us into a depression and is likely to restructure our global economy
  • many people in epidemiology circles have been predicting a superflu pandemic like this for a long time and we shouldn’t act like it’s a surprise

To the extent that the decision to close the bathhouses in 1984 is still controvesial, a decision to close the mikvaoth should be consensual precisely because of these factors: the fast spread of the virus, the contagion, and the spread through everyday activities that cannot be stereotyped as prioritizing one group over others.

Mr. Litzman, while it is too late for too many people, it is not too late to save lives in a community ravaged by this virus. Close the mikvaoth now.

UPDATE: Litzman and his wife have both tested positive to COVID-19 and thus forced government officials into quarantine - this after being the only minister refusing to have his temperature checked at the entrance to the Knesset. Israeli doctors are demanding his resignation.

Sunday, March 22, 2020

Israel and the U.S. - Emergency Measures

Political historian Heather Cox Richardson writes a daily news digest titled Letters from an American. In last night's edition, she flagged the story about the DOJ secretly seeking emergency powers. She writes:
In the last two days, we learned that the administration and Republican members of Congress heard dire warnings about the coming coronavirus and continued to lie to the American people, telling us the Democrats trying to alert us were simply bent on undermining Trump. 
We also learned that Trump has refused to use the Defense Production Act, passed under President Harry S. Truman, who used it during the Korean War. This law would enable Trump to demand that American industries produce the medical equipment we currently need so badly. Business leaders say the invoking the law isn’t necessary, and Trump claims they are volunteering to produce what the nation needs in a public-private partnership. Currently there is such a critical shortage of medical equipment that some hospitals are asking people to sew basic masks at home, but today Trump announced that the clothing manufacturer Hanes is retrofitting factories to make masks; it has joined a consortium that is expected to produce 5-6 million masks weekly. 
These two stories reveal the same ideology that would underlay a law permitting arrest and imprisonment without trial: that society works best when it defers to a few special people who have access to information, resources, and power. Those people, in turn, use their power to direct the lives of the rest of us in larger patterns whose benefit we cannot necessarily see. We might think we need medical supplies but, in this worldview, using the government to force individual companies to make those supplies would hurt us in the long run. This ideology argues that we are better off leaving the decisions about producing medical supplies to business leaders. Similarly, we need leaders to run our economy and government, trusting that they will lead us, as a society, toward progress. 
But there is another way to look at the world, one that is at the heart of American society. That ideology says that society works best if everyone has equal access to information and resources, and has an equal say in government. In this worldview, innovation and production come from people across society, ordinary people as well as elites, and society can overcome challenges much more effectively with a multiplicity of voices than with only a few who tend to share the same perspective. To guarantee equal access to information, resources, and government, we all must have equality before the law, including the right to liberty unless we have been charged with a crime. 
For decades, now, America has increasingly moved toward the idea that a few people should consolidate wealth and power with the idea that they will most effectively use it to move America in a good direction. But the novel coronavirus pandemic has undercut the idea that a few leaders can run society most effectively. The administration’s response to this heavy challenge has been poor. And now we know that the very people who were publicly downplaying the severity of the coronavirus were told by our intelligence agencies that it was very bad indeed, and they were sharing that information with a few, favored individuals. Their leadership will literally, and quite immediately, cost a number of our lives.
I was struck by parallels in Israel. Dan Yakir, legal advisor to ACRI (the Association of Civil Rights in Israel) shared an email last night--here's my translation (Dan, I hope I'm staying true to the letter):


On March 21, 2020, we wrote to the Attorney General and expressed concern about government offices acting without legal authority, sheltered by the coronavirus crisis. For example, this week, the spokesperson for the Ministry of Health shared an announcement that included a variety of prohibitions, such as leaving the house for any nonvital purposes and hosting family and friends, with no basis; the legal office at the Ministry of Health demanded, with no legal authorization, that all Deans of health sciences schools provide a list of their students so they can be drafted if there's a shortage in medical personnel; the Ministry of the Treasury published on its website on Friday instructions to employers about minimizing the number of onsite workers, even though corresponding emergency regulations have not been published yet. 
Most extreme is the Prime Minister, who almost every evening announces new limitations and decrees to the public. He never announces when they will attach. Most of the time, these are instructions with no legal validity and in some cases they are policies that have not yet been solidified and detailed. Ever since the Prime Minister's announcement on the evening of Feb. 19, 2020, the public has been misled to think that a curfew policy is in effect. The publication of the draft regulation in the news outlets has bolstered this [mistaken] impression, but in this case, also, emergency regulation has not been published and its complete articulation has not been completed. 
Against this backdrop, consider the Minister of Security's tweet from a few days ago, in which he encourages senior state workers to act at any price to anticipate the coronavirus: "If need be, knowingly violate the rules!"
ACRI's letter to the Attorney General (in Hebrew) is here.

The whole world, of course, is experimenting with emergency regulation these days. But the striking similarities between the U.S. and Israel in particular are not surprising. In a recent paper, I argue that American influence on Israeli criminal justice policy stems from some similarities between the two political cultures. Drawing on Malcolm Feeley's argument about viewing American criminal justice through the lens of American Political Development, I argue that the U.S. and Israel are best compared to developing nations where criminal justice is concerned:
Looking at both countries through the lens of development theory highlights several relevant similarities. First, both countries have a strong legacy of ethnic and racial conflict, which impacts the composition of the population subjected to criminal justice control. Second, both countries are characterized by high levels of interpersonal violence and, relatedly, a high concentration of guns. In the United States, gun ownership is the outcome of both illegal purchase and permissive gun laws, and in Israel, guns circulating in civilian hands are related to the wide access—legal and illegal—to military weaponry even in civilian spaces. In both countries, fetishization of protectionism and aggressive bravery plays into the culture of interpersonal violence. Third, both countries are characterized by unusual levels of police overreach and brutality, far beyond their Western industrialized counterparts. And fourth, both countries rank considerably higher than other Western industrialized countries in perception of political corruption—in 2018, the United States at 22 and Israel at 34.
The context in which these characteristics arise is, of course, different for the two countries. The United States has a long and difficult legacy of slavery, whereas in Israel the ethnic conflict stems from the Israeli-Palestinian conflict and the Occupation, as well as from ethnic and religious tensions within the Jewish population. Moreover, gun ownership has a very different cultural significance in the two countries, though they both share fear and concern about guns ending up in inappropriate hands. And the differences in scale matter a great deal; it has often been said that “American criminal justice” is not a monolith, as there is considerable difference among state criminal justice policies. Still, on a national scale, the cultural comparisons are striking. The trend of comparison is especially evident when comparing the Netanyahu and Trump administrations’ positions on crimmigration, drug enforcement, severity of punishment, and racial/ethnic discrimination in application of laws. Some manifestations of these policies have been particularly similar: The separation of immigrant children from their families at the American border, widely criticized both domestically and internationally, was reverberated in the incarceration of African asylum seekers at Saharonim prison in the desert, a policy move which similarly provoked international critique. Similarly, the Trump Administration’s enthusiasm for the death penalty for drug dealers, even as the penalty is in its final throes, is echoed by legislative efforts in Israel to make capital punishment a de-facto option --with supporters in both countries making deterrence arguments.

I think the same mechanisms are at work in the creation of emergency legislation. The same vulnerabilities and predatory governing techniques are at work in both countries, and they fuel fantasies of despotic governing, for which the global health crisis provides the perfect cover. It's not that the measures themselves are unreasonable; if adopted through proper parliamentary process, many of them make sense in the current crisis. My concern is that disturbing precedents to proper governance are made in both countries, whose poisonous effects will remain with us long before the virus is abated.

Saturday, March 21, 2020

Coronavirus and Criminal Justice Compendium

General
No need to wait for pandemics: The public health case for criminal justice reform
California Coalition of Women Prisoners Syllabus on Coronavirus and Corrections

Crime Rates
Concerns about layoffs leading to rise in crime rates
Some police say crime down during COVID-19 fight
INTERPOL warns of financial fraud linked to COVID-19
The Virginia Coronavirus Fraud Task Force

Compilations of State Responses
Justice Collaborative: COVID-19 (Coronavirus) Response & Resources
The Appeal: The Coronavirus Response: Spotlight on State & Local Governments 

Bay Area Jail Releases
San Francisco Releasing 26 Jail Inmates To Help Stem Coronavirus Spread

SF Marijuana Dispensary Debacle
San Francisco cannabis dispensaries win reprieve from coronavirus shutdown order
Confusion Plagues Bay Area Cannabis Industry Over ‘Essential’ Designation

Drug Addiction Therapy and Response
DEA COVID-19 Response Page
Safe Injection Sites: Coronavirus Underlines Why They Make Sense
AA Response to COVID-19

Policing
D.C. Cops Balance Bravado and Caution During COVID-19 Pandemic
SFPD Response to COVID-19

Prisons
This Chart Shows Why The Prison Population Is So Vulnerable to COVID-19
What Coronavirus Quarantine Looks Like in Prison
Tracking Prisons’ Response to Coronavirus
As COVID-19 Measures Grow, Prison Oversight Falls

Experiencing and Fixing Miscarriages of Justice
What It’s Like to Be Freed from Death Row During the COVID-19 Pandemic
Amidst Coronavirus Pandemic, Darrill Henry Wins a New Trial, But Must Wait in Prison
Alabama halts pardon, parole hearings due to COVID-19

Wednesday, February 19, 2020

Body-Worn Cameras in Prison?


I just got off the phone with a person who is serving a long sentence in a CA prison (I will keep the person's details to myself to preserve their anonymity.) The person heard my KPFA interview about Yesterday's Monsters and some of the reforms I suggested resonated with them. They had some reform ideas of their own, which struck me as interesting and important, and I promised them I would float them to the criminal justice reform community, and here's the most obvious and interesting one: Why not require that correctional personnel wear body-worn cameras in prison?

It's certainly an idea whose time has come; I've looked at a few correctional gear websites and the technology exists. Problems with privacy and technology quality now have solutions. More importantly, everybody wins. I think it's an easy sell to the correctional community: look at this CorrectionsOne article from 2014, before the technology became ubiquitous in police departments around the country. Prison guards might be well served to rely on the proven effects of the technology in improving the behavior of the incarcerated people they interact with, as well as addressing false accusations of brutality and avoiding lengthy and costly litigation. Incarcerated folks could use them to pursue redress in cases of physical or sexual assault. Moreover, footage captured in the course of an incident leading to a disciplinary write-up (115/128 in CA) could be used to explain the circumstances of the write-up to the prison authorities and/or to the parole board. In short, everyone wins. 

The privacy concerns that are often raised in the context of police-worn cameras are largely mitigated in a prison environment. Prisons are already equipped with cameras (apparently woefully antiquated ones compared to the capabilities we have now) and people do not have what the law recognizes as a reasoanble expectation of privacy in prison (e.g., Samson, Florence). 

Cops, Cameras, and CrisisAili Malm and Mike White have a wonderful new book out about body-worn cameras for police officers. They review the scientific evidence we have on the impact of body-worn cameras on policing quality, use of force by and against the police, behavior toward the police, complaints (true and false), etc., and offer some helpful policy guidelines for how to regulate the use of cameras. The thorniest issue, I think, is how the footage gets used. Prisons would require careful regulation of the footage use and access to it--even more so than in the police context, because the access to technology to see, let alone use, the footage is so asymmetric. But that something is difficult doesn't mean it should not be done. If it's something that is likely to improve behavior in prisons and prevent violence and abuse, it should be in everyone's benefit to implement it. 

I'd like to hear from you, readers, what you think about this idea. What do we know about current camera coverage of prisons? What gaps are there in the factual accounts of narratives about encounters between prisoners and guards that cameras could fill? How much would it cost to fit the entire correctional staff at CDCR with cameras and to process and store the footage on the cloud? Most importantly, are there any drawbacks to this idea that my correspondent or I might not have thought about?

Sunday, February 9, 2020

Release Party for Yesterday's Monsters

Hi, Dear Readers! My new book Yesterday's Monsters: The Manson Family Cases and the Illusion of Parole is out from UC Press and I am inviting you to celebrate!



When: Wednesday, March 11

Where: Manny's, Valencia & 16th

What:

In 1969, the world was shocked by a series of murders committed by Charles Manson and his “family” of followers. Although the defendants were sentenced to death in 1971, their sentences were commuted to life with parole in 1972; since 1978, they have been regularly attending parole hearings. Today all of the living defendants remain behind bars.

Relying on nearly fifty years of parole hearing transcripts, as well as interviews and archival materials, Hadar Aviram invites readers into the opaque world of the California parole process—a realm of almost unfettered administrative discretion, prison programming inadequacies, high-pitched emotions, and political pressures. Yesterday’s Monsters offers a fresh longitudinal perspective on extreme punishment.

Book reading, signing, parole reform, food, drink!

RSVP HERE!

Tuesday, January 28, 2020

The Prefrontal Cortex Strikes Again: Bill to Raise Age for Trying Juveniles as Adults to 20

The Sac Bee reports:

A California lawmaker argues that 18- and 19-year-olds aren’t mature enough to do prison time if they break the law, and so she has submitted a bill that would treat them like juveniles.
“When teenagers make serious mistakes and commit crimes, state prison is not the answer,” said bill sponsor Sen. Nancy Skinner, D-Berkeley. “Processing teenagers through the juvenile justice system will help ensure they receive the appropriate education, counseling, treatment, and rehabilitation services necessary to achieve real public safety outcomes.”
Skinner's proposal is the last in a series of legislative and judicial changes reflecting what I referred to, in Yesterday's Monsters, as the "rediscovery of childhood." Since the early 2000s, our understanding of childhood and its implications as to accountability has undergone a dramatic scientific, legal, and social transformation. Recall the miscarriage of justice depicted in Ken Burns’ documentary The Central Park Five, in which five teenagers were accused, and wrongly convicted, of assaulting Trisha Meili in New York’s Central Park in 1985 and leaving her for dead. 



Current audiences bristle at the tough prosecutorial interrogation of children, but the newspaper headlines of the day (as well as rabid ads and media appearances by a younger Donald Trump) depict the youngsters as a “wolf pack” of “superpredators.” This case was no outlier: prompted by the media frenzy over the crack epidemic,  young criminal offenders, particularly African Americans, were regularly dehumanized, their age denoting danger rather than mitigation or rehabilitative potential.

However, the early 2000s, new brain imaging technologies enabled neuroscientists discover that the prefrontal cortex, which is responsible for the ability to delay gratification, exercise emotional regulation, and resist pressure, continuously grows well into our mid-twenties,  which explains impatience and rash decisions by teenagers and adolescents.



These developments first permeated the legal field in Roper v. Simmons,  where the Supreme Court struck down the death penalty for minors as unconstitutional. The court found that juveniles to be immature and irresponsible, more vulnerable to peer pressure, and possessing a “more transitory, less fixed” character. These differences “render suspect any conclusion that a juvenile falls among the worst offenders”, and therefore, from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.” 

The decision in Roper energized petitioners serving lengthy sentences for crimes committed when they were minors, and other landmark decisions followed. In Graham v. Florida,  the Supreme Court struck down life without parole for non-homicide offenses committed by juveniles, citing similar rationales, and explaining that the aims of punishment do not support such a harsh sentence for crimes other than homicide. Subsequently, in Miller v. Alabama,  the Court invalidated, for juvenile offenders, sentencing schemes under which certain murder convictions yielded mandatory life without parole sentences, finding that such schemes “preclude a sentencer from taking account of an offender’s . . . chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. . .  And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.”

Miller did not explicitly state that it would apply retroactively, to the many inmates already serving lengthy sentences under sentencing schemes that violated Miller. One such inmate was Henry Montgomery, convicted of the murder of a police officer when he was sixteen years old; at the time Miller was decided he was already in his late fifties, still serving time in Louisiana’s notorious Angola prison. Montgomery appealed his sentence,  arguing that Miller should apply retroactively.  Under constitutional doctrine, as established in Griffith v. Kentucky and in Teague v. Lane,  defendants whose cases are final face an uphill battle in reopening their cases in light of Supreme Court landmark decisions. They must convince the court of one of the following three arguments: first, that the landmark decision does not announce a “new rule,” but merely interprets prior precedent; second, that the “new rule” is substantive, rather than procedural, in nature; or third, that the “new rule” is a “watershed rule of criminal procedure,” of such seminal importance that justice requires it to be retroactively applicable.

In Montgomery, the Supreme Court was convinced of the second argument. It found that the Miller rule, according to which mandatory life without parole schemes could not apply to juveniles, was a substantive rule—a rule that “rendered life without parole an unconstitutional penalty for a class of defendants because of their status”, and therefore should apply retroactively. The Court was less decisive about the appropriate remedy, and Justice Kennedy opined that parole hearings might be a suitable forum for raising the age argument. 

 Before the Supreme Court announced its decision in Miller, a large California campaign waged by criminal justice nonprofits and human rights organizations yielded SB 9,  which required holding a judicial resentencing hearing for all juveniles serving life without parole. Subsequently, California lawmakers also adopted SB 260,  which expanded the access to resentencing hearings to juveniles serving other extreme sentences, short of life without parole. SB 260 was later amended by SB 261, further expanding the resentencing hearings to those who were under 23 years of age when committing the crime. This amendment better reflects neuroscience developments, according to which the prefrontal cortext continues to develop well into one’s early twenties. In this respect and others, California is ahead of the rest of the nation in acknowledging the contribution of youth to crime.  A subsequent bill signed into law in 2017, SB 394, set the date for the first opportunity for a hearing by a minor at 24 years of incarceration.   All of these developments, particularly in CA, explain the logic behind Skinner's proposal.

As an aside, because Yesterday's Monsters is about parole hearings, I'll say that these developments did, eventually, find their way into the parole hearing room with the parole grant recommendation for Leslie van Houten in 2016, in which the Board anchored its decision in the new understanding of youth:

Your choices that you made in your life at an early age based on the belief system that the family was over when there was a dissolution led you to a lifestyle of drugs, running away, unplanned pregnancy, the abortion, anti-establishment philosophy of the times. You exhibited these hallmarks of youth at the time of the crime as compared to adults, lack of maturity, underdeveloped sense of responsibility, leading a reckless, impulsive lifestyle. So that was 261. That was what the Supreme Court has ruled on, and that is on point with the case factors we see before the Panel here today, so the great weight played a role. Your age played a role.  

 It remains to be seen whether attention to youth significantly reforms the parole process. Recently, Beth Schwartzapfel observed that parole boards find ways to thwart the Court’s decision in Montgomery, arguing that long-term inmates who committed their crimes at a young age have not yet developed “insight.” The outcome is “a wave of lawsuits from those who claim parole officials are undermining their new constitutional obligations.” 

This is especially true in California, where political considerations might lead the Governor to reverse release recommendations, thus retaining political good will and protecting the gubernatorial office from public backlash. Notably, Governor Brown reversed the Board’s recommendation and denied Van Houten’s parole.

Nevertheless, it is telling that the Board—albeit more politically insulated than the Governor—felt comfortable recommending the release of a high-profile inmate on the basis of age, a fact widely known from the time the crime was committed but only recently considered. This development bodes well for other inmates, and specifically for members of the Manson “family,” whose young age was a deciding factor in their involvement with Manson in the first place. 

Monday, January 27, 2020

Progressive Prosecution Meets Organizational Discombobulation: Chesa Boudin and the Case of the Police-Citizen Mutual Violence

Let's start with the important stuff. My wonderful students have established an excellent new journal, the Hastings Journal of Crime and Punishment (HJCP). Issue no. 1 is already out, including my essay about how Jeff Sessions hasn't managed to destroy the Cheap on Crime trend. But more importantly, we're holding a terrific daylong symposium titled Progressive Prosecution in the Carceral State. Join us on Feb. 7 at UC Hastings! RSVP via this link.

Progressive prosecution has been an exciting trend, especially because of the recent tendency to talk about the contribution of county prosecutors to mass incarceration. But expecting the election of a professed progressive official at the top of the pyramid misses out on important institutional dimensions that could stand in the way of progressive reform.

Take, for example, the recent San Francisco hullaballoo. Our recently elected District Attorney, Chesa Boudin, is in conflict with our police union over his decision to withdraw charges against Jamaica Hampton, a man who, in a violent altercation with the police, allegedly attacked the cops with a vodka bottle:
Alex Bastian, the spokesman for the district attorney’s office, said the case was set aside to avoid conflicts between two separate investigations — one being the internal officer-involved shooting case and the other being the criminal allegations against Hampton.
“Both cases are still under investigation,” Bastian said. “We don't want one investigation to interfere with the other. We are looking into developing a policy to avoid conflicts in cases where multiple investigations are ongoing.”
Bastian on Sunday disputed Scott’s characterization that charges against Hampton had been withdrawn, saying that he was never formally charged. The district attorney’s office filed charges in December but Hampton had not been arraigned.
Hampton, 24, was originally booked on charges of assault with a deadly weapon, assault upon a police officer and threats to an officer after videos from police body cameras and surveillance footage showed him hitting an officer with a vodka bottle and then being chased through the intersection at 23rd and Mission streets.
The police union is demanding federal intervention but, save for their dissatisfaction with the D.A.'s decision, I'm not sure what would be the basis for that. This is a violent incident against municipal police in an area not governed by federal law. Proximity to a school might throw some federal jurisdiction into it, but it's not a drug case, so I'm not sure whether that would avail the police union.

But even if there were parallel federal jurisdiction here, there are a few bigger issues. According to the Petite policy, the feds do not interfere with cases charged and adjudicated in states unless these proceedings leave an important federal interest unvindicated. True, there are no formal charges here, but can we really say anything here calls for federal intervention? Politically, sure, but legally? One argument that can be made on Boudin's side (and hasn't been highlighted by his spokesman) is that incidents of mutual violence between police and citizens tend to end with charges against the citizens, rather than against the police, and that these often serve as fig leaf for the police. Crazy examples abound (even though the Hampton case might not be the textbook example of this, there nonetheless is a problem.) This supports the notion that it is better to wait for the police investigation to play out and then take that into account when making a decision about pressing charges.

More importantly, is this the harbinger of things to come in terms of obstacles for implementing Boudin's vision for a progressive San Francisco? Boudin has already fired several prosecutors and, as the Hampton incident shows, will face pushback from cops and judges, as well as from his own subordinates. Progressive prosecution is a great study of how the organizational culture of lower courts would respond to someone elected for the very purpose of jamming the wheels of the giant machine.

Want to learn more? Join us at our Feb. 7 symposium. Chesa Boudin will be there, as will other progressive prosecutors from around the nation, scholars, policymakers, and activists!