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.  

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

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.

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.

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!

Wear a White Rose

When my students arrived to class today, they were greeted with dozens of white roses--one at every seat. We talked about the election.

Our Muslim students talked about their family's fear. Our African-American students talked about feeling like other Americans see them as less than human. Our immigrant students talked about how they had thought of America as a beacon of hope and diversity, only to wake up to a horrible reality. Our students who are parents talked about the difficulty of explaining what happened to children and giving them hope to go on.

I talked about how months of my work on Prop. 62 - time, talent, energy, verve, money--yielded negative returns: the failure of Prop. 62 combined with the horrifying and worrisome Prop. 66.

We talked about how difficult it is to get up in the morning and gear up for the work we so desperately need in these times.

I shared two things that have been personally helpful to me. One comes from my Buddhist practice, in which one traditional form of meditation involves "touching the Earth for our adversaries." Our adversaries and enemies, formidable as they might be, reprehensible as their actions are, abhorrent as their values are, provide us with an important service: they remind us of our strength, our preferences, our values, and our actions. The opportunity to resist gives us an opportunity to examine and solidify our own intentions about what's right in the world. It is a reminder of things greater than the self, of the impermanence of everything, and of how the mind (of an individual or of a society) has a limitless capacity for love and hate, generosity and greed, valor and fear. Our adversaries remind us to make mindful choices about our own values and strengthen our resolve.

The other one comes from growing up under the shadow of the Holocaust, in a country where upset and frustration and anxiety over the rise of fascism and bigotry comes in a healthy dose every four years since Yitzhak Rabin's murder. What I learned from living in Israel, and from my grandma who fled Frankfurt in the 1930s, is that in times of great crisis and fear lies an immense opportunity to protect and help the persecuted and the downtrodden. It is in times like this that the social advantage, skills, and character of people like Oskar Schindler or Raoul Wallenberg can make a real difference in people's lives. My students are uniquely positioned--due to their education and skills--to help and protect others, some from their own communities and some from other communities that may face perils and threats in the next few years. This means that everyone's marginal utility in the world will grow manifold. Whether it's working a public service job, picking cases, or donating a portion of a comfortable income to the cause of justice and civil rights, they--and you--have the power to make intentional decisions that can have a dramatic impact on your families, friends, neighbors, and fellow humans.

To keep a ritual and symbolic reminder of how much we can do to help, protect, and champion the people and values we care about, I am going to be wearing a white rose on my lapel from now on. The White Rose Society (die Weiße Rose) was a non-violent, intellectual resistance group in Nazi Germany led by a group of students and a professor at the University of Munich. The group conducted an anonymous leaflet and graffiti campaign which called for active opposition against the Nazi regime. Their activities started in Munich in June 1942, and ended with the arrest of the core group by the Gestapo in February 1943. They, as well as other members and supporters of the group who carried on distributing the pamphlets, faced unjust trials by the Nazi People's Court (Volksgerichtshof), and many were sentenced to death or imprisonment.

The group wrote, printed and initially distributed their pamphlets in the greater Munich region. Later on, secret carriers brought copies to other cities, mostly in the southern parts of Germany. In total, the White Rose authored six leaflets, which were multiplied and spread, in a total of about 15,000 copies. They branded the Nazi regime's crimes and oppression, and called for resistance. In their second leaflet, they openly denounced the persecution and mass murder of the Jews. By the time of their arrest, members of the White Rose were just about to establish contacts with other German resistance groups like the Kreisau Circle or the Schulze-Boysen/Harnack group of the Red Orchestra. Today, the White Rose is well-known within Germany and worldwide.

I've been giving away white rose lapel pins all day long, and am happy to send you one, reader, if you email me with your address. Wear it as a symbol of hope and commitment to compassion and action even in dark times.

Grieve as you need, and then roll up your sleeves and let's get to work.

Are You Against the Death Penalty? Good. Then Vote Against the Death Penalty.

It's no big surprise that the Prop 62 campaign, which calls for the death penalty repeal, is working hard to build a coalition across political lines. Because of that, the campaign rhetoric understandably aims at reassuring undecided voters that, even with abolition, they will remain safe; and its two main arguments, the obscene costs ($150 million a year) and the risks of wrongful convictions, are arguments that should appeal to all of us, regardless of our political convictions. But lately I've been hearing from some folks on the very left edge of the political map--progressives and radicals--who are thinking of voting no on 62 for various progressive reasons. If you are one of these people, this blog post is addressed to you.

First of all, friend who cares about progressive causes and criminal justice reform: I hear you. I hear that you are frustrated because you need the system to change at a faster pace and that some provisions in these propositions aren't exactly what you'd hope for, and that you are concerned that if we pass these it'll stall further steps. I hear that the democratic process is not moving things far enough and soon enough for you. I hear that you are giving this a lot of thought and are genuinely concerned about aspects of the proposed reform. I believe you that your dilemma is real. I understand that you are trying to do what you think is best for people in vulnerable situations.

I hope you can hear me when I say that, when you tell me you might be voting to keep the death penalty in place, it really, really frightens me.

I am frightened because I've been thinking, writing, and speaking about criminal justice reform for twenty years, five as a practitioner and sixteen as an academic, and the one thing I learned is this: in criminal justice, the perfect is the enemy of the good. And I am really afraid that in our quest to attain a perfect criminal justice system we might opt out of a crucial step on the way to where we want to be.

Please allow me to address your concerns one by one.

"If we get rid of the death penalty, aren't we entrenching life without parole? I think life without parole is horrible, and we are affirming it as the upper range of punishment."

You feel that life without parole is a hopeless, soul-destroying punishment, which offers a person no prospect of ever seeing life outside prison. And you feel this is especially cruel for very young people (a big chunk of our prison population) who become incarcerated in their twenties and are looking at a very long stretch behind bars.

You know what? I agree with you. Life without parole is, indeed, an extreme form of punishment. Like you, I am committed to a struggle to bring a possibility of hope--an exit possibility--to any prison sentence.

Unfortunately, we can't start our fight against life without parole until we win our fight against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and with a big base of consensus.

I wish there were a critical mass of Californians of all political persuasions convinced that our criminal justice system needs to be immediately reformed. Not just at the edges, not just for nonviolent inmates, not just for juveniles, but for everyone. But that is not the world we live in. The political reality is that, in order to make change, incremental steps have to be taken. Remember same-sex marriage? That didn't happen overnight. There were revolutionaries calling for marriage back in the seventies, when it was unthinkable. Then, the movement had to regroup, advocate for lesser protections (domestic partnerships, workplace protection). Yes, domestic partnership was less than marriage in important ways. But this is why public opinion changed, between the mid-1990s and the early 2010s. Incremental change is what led to the triumph of that movement. 

For an even more relevant example, see what is happening with juvenile justice. Life without parole for juveniles is horrible, right? And look at how close we are to eradicating it--because in 2005, in Roper v. Simmons (2005) the Supreme Court abolished the death penalty for juveniles. It was the first step in a long series of reforms. In Graham v. Florida (2010) the Supreme Court felt comfortable relying on the same arguments to abolish life without parole for nonhomicide crimes. In Miller v. Alabama (2012) the Supreme Court relied on that logic to abolish mandatory life without parole for all juveniles, and then felt comfortable making that ruling retroactive in Montgomery v. Louisiana (2016). We are now within striking distance of abolishing life without parole for juveniles. None of this would have been possible without Roper v. Simmons.

This is even truer for legislative/public campaigns than for judicial change. To make reform happen, we need wide public consensus--not just an agreement among progressives. We need our conservative and moderate friends to live with the new situation for a while, realize that the sky doesn't fall if punishment is less extreme, and accustom themselves to the idea of further reform. A classic example is marijuana legalization. Recreational marijuana would not be on the ballot--within reach and polling great so far--if Californians of all persuasions didn't have a chance to live with medical marijuana for years and realize that it was not the end of the world. Do you think we would have been here, at this point in time, if progressive voters had declined to vote for medical marijuana, claiming that limiting legalization to medical patients wasn't good enough? Similarly, conservatives and centrists grew accustomed to same sex marriages because they lived with domestic partnerships. They will be willing to consider a reform of life without parole if and when they see that the death penalty was abolished and it didn't lead to a rise in crime rates, a decline in public safety, or any other negative consequences. You and I already know that giving reformed, aging folks a chance at parole is also not a safety risk. But not everyone knows that, and we need our friends across the political map to agree with us. We can't make change otherwise.

I've been studying criminal justice reforms for the last sixteen years. I have not seen a single criminal justice reform that sprang perfectly from nothing. Every change we've seen since 2008--and we've seen plenty, believe me--was the product of incremental, bipartisan reform. This will be no exception. We can't get from A to Z skipping steps along the way. I know you're ready for Z. So am I. But the people whose hearts and minds we have to change so that Z happens--and we can't make it happen without them--need us to go through all the steps so that we can have a coalition. What we want won't happen otherwise.

"We are not really executing people in California anyway, and the delays are lengthy, so our death penalty really is just life without parole, with or without an execution at the end. So what would abolition actually achieve?"

Our peculiar situation in California is that we have about 750 folks in limbo. We could execute them, but through litigation efforts and mobilization we're trying to stall their executions. Being on death row, friend, is not the same as being in general populations. Folks on death row are also in solitary confinement, do not work, and do not have access to the social and educational opportunities available in general populations. Our death row is notoriously dilapidated.

Also, can you imagine living with the uncertainty of whether you'll be executed by the state some day? Ernest Dwayne Jones couldn't. And in Jones v. Chappell (2014), a conservative District Court judge from Orange County agreed with him. Based on sound research on the effects of uncertainty, and the horrible thing it is to live with the prospect of being killed by your fellow men, the judge found the death penalty unconstitutional. We didn't win that fight, even though we tried very hard: the Attorney General decided to appeal, and the Ninth Circuit reversed for technical reasons. But the reasoning behind Jones is sound: it is very different to be a death row inmate than a lifer.

But let's assume for a minute that these two experiences are comparable (after all, we always compare them to each other.) If you really can't see that the death penalty is worse than life without parole, how about a tie breaker? We don't like to talk much about savings in the progressive left--it's an argument that some of us think is designed to appeal to centrists. But we're talking about a lot of money here: $150 million a year, to be precise. If you really have no preference between the death penalty and life without parole, does this obscene waste of money not tip the scale in the repeal direction for you? Think about all the things you care about: education, health care, roads. Is it really a progressive move to keep something happening, in which you see no virtue, and spend this much on it when we could spend it on the things you care for?

Finally, I know you'd like to see the death penalty go away not only in California, but also in other places. You know where people on death row do get executed? In Texas, for example. Unfortunately, change in Texas is not going to spring to life, fully formed, out of nowhere. We have the biggest death row in the country and have been the vanguard of criminal justice innovation, for better and for worse. Determinate sentencing? Us. Enhancements? Us. The most punitive version of Three Strikes? Yup, we started that one, too. But we can use this power we have, as a huge and influential state, to make changes in other places as well. We adopted Realignment; we reformed Three Strikes; we passed Prop. 47. These things have a ripple effect in other states. We have to make the first step here. The death penalty doesn't take the same shape in all states, but it is abhorrent in all of them. Reform in Texas begins here, with you.

"If we abolish the death penalty, aren't we depriving people of valuable and free legal representation? Only death row inmates get two free lawyers paid for by the state, and that increases their odds of exoneration."

It's true: The California Constitution awards death row inmates two free attorneys to represent them in their appellate and habeas proceedings. But what does this mean in practice? We have hundreds of inmates on death row who are unrepresented and unable to benefit in any way from this constitutional provision.

As of August 2016, 46 inmates are awaiting appointment of both an appellate attorney and a habeas corpus attorney. 310 inmates have been appointed an appellate attorney, but are still awaiting appointment of a habeas corpus attorney. This is almost half of all death row inmates, and there are only 34 attorneys employed by the Habeas Corpus Resource Center. You could do what tough-on-crimes conservatives might do and vote yes on 66, but to actually close the huge representation gap we'd have to train and appoint 402 defense attorneys just for the cases now pending. This is a huge expense, and it would come with the added price tag of speedy proceedings that run the risk of executing innocent people. And that is something neither of us wants (I really hope you're voting no on 66. It's a horrible and draconian proposition.) So, if we're staying with the existing situation, what guarantees of exoneration do we really have?

Ask Shujaa Graham, who spent 16 years in San Quentin for a crime he did not commit. Yes, he was exonerated at the end, but what a huge risk he ran while he was still there! Beyond the horrible conditions, the cruelty, the loneliness, the boredom--an innocent person on death row lives every hour or every day of his life with the fear that the miscarriage of justice that happened to him will be irreversible. For that matter, ask any of the 150 exonerees whether they'd trade what happened to them with a guarantee that they won't be in a situation where the horrible wrong done to them can never be rectified.

"Hey, wasn't there some survey of death row inmates four years ago where they said they preferred to keep the attorneys they have? Why would we oppose something that the inmates themselves support?"

Four years ago, indeed, the Chronicle published a survey with death row inmates who said something like this. But the Chronicle did not disclose the methodology of the survey, nor did it share the questions they were asked. How does one even conduct a valid survey on death row? And how do we know whether the people who asked the questions weren't only those who are represented--and not the hundreds of people who wait, on average, 16 years to even get an attorney so they can begin the proceedings?

Of course we care what death row inmates think. And former death row inmates who have been exonerated have been aggressively campaigning against the death penalty and on behalf of Prop 62. Have you heard a single exoneree publicly praising his good luck in being sentenced to death? Maybe there's a reason for that and we should listen to them.

You know who else is worth listening to? Lifers. I teach lifers in San Quentin and what I hear from them is uniform, wall-to-wall support of death penalty repeal. They think that the death penalty is a massive waste of resources. And, while they yearn for the day we fight against life without parole, they are relieved to be in general population, studying, working, and interacting with others, rather than on death row. Most importantly: they know that we are spending a lot of effort on a policy that affects only 750 people instead of focusing on the thousands of lifers out there. And they know that we can't get to other penal reforms before we make this one happen. You want us to get to the business of reforming LWOP? Great, me too! Let's repeal the death penalty so we can get there sooner - there are no shortcuts that don't pass through death penalty repeal.

"Prop. 62 is mandating that the folks we commute to life without parole work and give money to victims. That's forced labor and I don't support that."

I know how the concept of work in prison makes you feel. It's a grim reminder of how, when we abolished slavery, we threw in a little exception: forced labor is allowed in prisons. It is something that we have come to abhor, because it means that our prison regime perpetuates, in a new guise, abhorrent forms of coercion and racial domination.

But abolishing labor in prisons is not on the ballot. Abolishing the death penalty is.

Some progressive voters bristle at the campaign's emphasis on making lifers work to compensate victim families. You can be forgiven for mistakenly thinking that the proposition "creates forced labor." But that is, simply, not factually true. Section 2700 of the Penal Code, which requires that inmates work, has existed for a very long time, and already applies to everyone on life without parole. Prop 62 doesn't hasn't invented anything new and does not change that section; it would merely apply to a few hundred more lifers--for the simple reason that they would now be lifers, not death row inmates.

The only modification that Prop. 62 would make is increasing to the maximum restitution withholding from wages (not family donations), from the 50% (which is already in effect) to 60%. Is objecting to an increase in victim restitution from wages really a progressive cause you feel proud to fight for? Considering the enormous change we can effect here, this is a fairly small matter to stand in the way.

Even if you are uncomfortable with this small increase in restitution, I want to remind you that it is not enough for confirmed progressives to vote Yes on 62. We have to have a majority of Californian voters, and that includes conservatives and centrists. It also includes families of victims that are campaigning against the death penalty. And one of the things that is a convincing argument for them--and not unreasonably so--is that the proposition addresses concerns about victims. Compromising on this point is part and parcel of getting things done in the political reality in which we live. And this is the world in which we have to vote.

"I'm against the initiative process. This, and other propositions, are a flawed feature of California lawmaking. I vote "no" in principle on all propositions."

Friend, I hear you. Every election season it's the same thing: money, deceptive ads, easily manipulated voters, a polarized state. Yes, this is a bad way to make a lot of decisions. For example, this is a bad way to create nuanced criminal justice reform.

But I want to ask you to really think about what's at stake here. The legislature is not going to repeal the death penalty on its own. We know; we tried. Our governor (who is personally against the death penalty) is not going to unilaterally commute everyone's sentences to life without parole. We know; we tried. Our courts cannot get rid of the death penalty. We know; we tried, and we came close, and we failed because of habeas technicalities.

The only one who can get rid of the death penalty in California is YOU.

And compared to other propositions, this one is actually fairly well suited to an initiative process: as opposed to, say, medical or recreational marijuana regimes, parole regimes, registration requirements, etc., death penalty repeal is a fairly simple question, which has a straightforward yes-or-no answer: repeal or retain. This is one of the least objectionable uses of the referendum method.

You have to decide: when you look back at this election, which of your values will you be more proud that you upheld: your concerns about direct democracy, or your opposition to the death penalty?

In Summary

Sometimes, with good intentions, we overthink things, and that leads us astray. Listen to your heart and your common sense. Are you against the death penalty? Good. So am I. For the reasons the campaign highlights, but also for all the traditional, good reasons to be against the death penalty: because it is barbaric, inhumane, risky, racially discriminatory, and obscenely expensive.

Are you against the death penalty? Then vote against the death penalty. 

Vote Yes on 62.

There Is No Right Way to Kill People

Yesterday, the web was ablaze with gruesome news. The execution of Joseph Rudolph Wood took much longer than expected and has created a huge controversy about lethal injection. CBS reports:

Arizona Attorney General Tom Horne's office said Joseph Rudolph Wood was pronounced dead at 3:49 p.m., one hour and 57 minutes after the execution started.

Wood's lawyers had filed an emergency appeal with the U.S. Supreme Court while the execution was underway, demanding that it be stopped. The appeal said Wood was "gasping and snorting for more than an hour."

Word that Justice Anthony Kennedy denied the appeal came about a half hour after Wood's death.

Wood, 55, gasped more than 600 times before he died.

You can go and read more about the execution, but I can already tell you what you'll find: the defense attorney and abolition advocates arguing that the execution was botched, cruel, and horrific; the family and district attorney reminding everyone of the death of the victims; this or that doctor saying that, actually, he wasn't suffering, just "snoring" - interpretations of pain, interpretations of suffering, moral equations, this, that.

But the bottom line--as argued by Austin Sarat as well as by Forbes Magazine's David Kroll, is this: There is no right way to kill people. For all the effort we've made to make the procedure "appear swift and medical" as Kroll said, it still serves no purpose beyond killing people.

Death is suffering. The idea that we can surgically separate death--which is, according to the Supreme Court, constitutional, fine and dandy--from suffering, which is a violation of the 8th Amendment, is ludicrous. There have been botched hangings, electrocutions, gas chamber killings, lethal injections--every year, 3 percent of executions are botched. That everything is sterile and medical, and people were white robes and not executioners' capes and hoods, means it's more difficult to see the difference, but in a way it reveals a deeper truth: that the idea that there's a "clean" execution, done "right", is absurd.

In 1980, Justice Blackmun wrote this in a slightly different context:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

He was so wise. If he could only see the futile tinkering. This chemical, that chemical, one shot, three shots. There is no right way to kill people. Of course many of these people committed horrendous crimes and merciless killings of innocent victims. But do we really want to license the state to achieve symmetry in that department?

If, like me, you're sick of tinkering with the machinery of death, sign my petition to the CA Attorney General not to appeal the recent decision that declared capital punishment in CA unconstitutional. We need 50 more signatures to make it to 500 before tomorrow. Let's make it happen.

Ms. Harris, Do Not Appeal Judge Carney's Decision!

Usually I'm fairly lukewarm about online petitions. They are often targeted at the wrong person, asking them to do something that they should do free of public influence.

Not so with this one.

I started a petition addressing the CA Attorney General, Kamala Harris, and Governor Brown, asking Ms. Harris not to appeal Judge Carney's decision from a few days ago, which found the death penalty unconstitutional because of the delays involved in its application.

You can find the petition here.

I am asking YOU, gentle reader, to sign the petition, and to share it far and wide with your friends. Ms. Harris is an elected public official, and her decisions regarding charging and appealing should take into account the will and priorities of her constituents. Those constituents are you.

Ask yourself:

• What can California do for YOU with $150 million in annual savings?
• How much more retribution, deterrence, justice, and fairness are YOU getting from a dysfunctional death row?
• If you are for the death penalty, how do you feel about the rarity of its administration?
• If you oppose the death penalty, how do you feel about joining hundreds of signees that stand behind an argument that seems to make headway where human rights arguments have failed?
• How comfortable are YOU with the prospect of the state making mistakes in death penalty application? Would YOU be okay with the elimination of the post-conviction quality control mechanisms we have in place?
• Finally, are YOU comfortable with the criminal justice energy spent in this state--in time, dollars, public activity--on 724 people, when our correctional system encompasses 170,000 people statewide and locally in whose rehabilitation we could invest?

This is YOUR money, YOUR business, YOUR government. Please ask your government to usher us into the 20th century (not to mention the 21st) and leave Judge Carney's just, fair, and prudent decision alone.

All you have to do is click a bit online and email a few friends, or share on Facebook.

All our Attorney General needs to do is--nothing.

Let's do this.

Rolling Back Realignment

Yesterday, Assemblymember V. Manuel Perez introduced AB 1449, also to be known as the Realignment Omnibus Act of 2014. The bill, if passed, would significantly regress the achievements of realignment and increase overcrowding in state prisons. Here's what it purports to do:

(1) Under existing law, certain specified felonies are punishable by imprisonment in a county jail for 16 months, or 2 or 3 years or, where the term is specified, for the term described in the underlying offense. Notwithstanding these provisions, existing law requires that a sentence be served in state prison where the defendant has a prior or current conviction for a serious or violent felony, has a prior felony conviction in another jurisdiction that has all of the elements of a serious or violent felony, is required to register as a sex offender, or has an aggravated white collar crime enhancement imposed as part of the sentence.

This bill would additionally require a sentence to be served in the state prison when the defendant is convicted of a felony or felonies otherwise punishable in a county jail and is sentenced to an aggregate term of more than 3 years.

(2) Existing law requires that all persons released from prison after serving a prison term for a felony, be subject to postrelease community supervision provided by a county agency for a period of 3 years immediately following release, except for persons released after serving a term for a serious felony, a violent felony, an offense for which the person was sentenced pursuant to the 3 strikes law, a crime where the person is classified as a high-risk sex offender, or a crime where the person is required to undergo treatment by the State Department of State Hospitals because the person has a severe mental disorder. Existing law requires these persons to be subject to parole supervision by the Department of Corrections and Rehabilitation following release from state prison and the jurisdiction of the court in the county in which the parolee is released, resides, or in which an alleged violation of supervision has occurred.

This bill would also require any person who is released from prison who has a prior conviction for any of the above crimes to be subject to parole supervision by the department and the jurisdiction of the court in the county in which the parolee is released, resides, or in which an alleged violation of supervision has occurred.

(3) Existing law, the Postrelease Community Supervision Act of 2011, requires certain inmates released from state prison to be subject to 3 years of supervision by a county agency. The act provides that if the supervising county agency has determined, following application of its assessment processes, that authorized intermediate sanctions are not appropriate, the supervising county agency is required to petition the revocation hearing officer to revoke and terminate postrelease supervision of the inmate. Existing law allows the revocation hearing officer to order the person to confinement in a county jail for a period not to exceed 180 days, among other sanctions. This bill would, if the person has been found to have violated the conditions of postrelease community supervision on 2 or more prior occasions, allow the revocation hearing officer to revoke and terminate postrelease community supervision and order the person to confinement in the state prison for a period of one year.

What this means, in plain speech, is that the definition of "non-non-non" offenses, which now trigger judicial discretion to sentence a person to jail or to mandatory supervision, will dramatically change, sentencing people who received longer prison sentences to state institutions. That may not be all tragic, as many jails are very poorly equipped to handle people who are sentenced for long periods; but many of those folks shouldn't go in for such long sentences in the first place, and this would only solidify that.

It also means that the idea behind realignment, to supervise people locally in their communities, will be rolled back, and state parole will receive some of the power it lost back from county probation departments, some of whom did a stellar job retooling supervision as an instrument of reentry and hope.

This is a very disappointing bill, and for your good deed of the day, please call your representatives in the Assembly and Senate and tell them how you feel.

Know Your Rights Infographic

As a public service, we're sharing today a great infographic made by online paralegals. It's always a good thing to get a refresher on stop and frisk policies and on citizens' rights when encountering the police. Jay-Z's rendition of the Fourth Amendment, while amusing, is inaccurate, whereas this graphic is fairly accurate and useful. The original can be found here. 

TODAY! Assembly Select Committee on Justice Reinvestment Hearing Live!

Humonetarianism and cost-centered criminal justice policies in action: In half an hour, the Assembly Select Committee on Justice Reinvestment will hold a hearing, which you can watch live by clicking here at 10am.

A few words of background: This committee was mentioned a week ago at the hearings about solitary confinement, and it will be examining Gov. Brown's bill to invest $315 billion of my money and yours in private prisons to alleviate overcrowding. Anyone paying taxes in California should pay close attention to these proceedings.

Community Mobilizing Against San Francisco Jail Expansion

Next Tuesday, San Francisco County Sheriff Ross Mirkarimi will be addressing the Board of Supervisors with a request for $80 million to fund construction of a new San Francisco jail. Construction costs are estimated to be at least $300 million--$700 with debt service--altogether.

Mirkarimi, who faces reelection in 2015 after a controversial arrest and reinstatement, argues that the new jail will be necessary when the seismically vulnerable Hall of Justice, which houses 828 arrestees, will be demolished. But opponents believe that existing facilities are underused, and that not all detainees awaiting trial need to be behind bars. Even law enforcement officials question the need for new construction.

If you are concerned about spending public money to build more jail space, call your supervisor and email to express your concerns.

On Gov. Brown's Desk

Gov. Brown signing a bill. Photo
courtesy the Examiner.

The legislative session has ended, and many criminal justice bills are on Governor Brown's desk, awaiting his signature or veto. Here are some of the important decision already made, or about to be made, at the gubernatorial office.

There is a whole lot of gun control bills. This legislative session, no doubt influenced by the Sandy Hook tragedy, included many bills to prohibit certain types of ammunition, outlaw the sale of fixing kits to create assault rifles, ban open carry, and require certification and licensing. The NRA has issued a call to its members to oppose all of these bills.

There's also AB 105, proposed by Gov. Brown himself, and signed a few days ago, which will spend $315 million of your money and mine on contracting with private jails. This is part of Brown's campaign to circumvent the Supreme Court order to reduce population; as BeyondChron pointed out time and again,  Brown's stubbornness on prisons and general punitive old-school approach to incarceration is difficult to reconcile with his otherwise progressive positions.

Happily, not all news are bad. Brown has signed SB 260, which will give juveniles incarcerated for lengthy periods of time a right to appear before the Board of Parole Hearings to demonstrate their suitability for release after serving at least 15 years of their sentence. This bill may affect the fate of as many as 5,000 California inmates.

Still awaiting gubernatorial approval is SB 649, which would convert all simple drug possession offenses in California into wobblers, allowing for their prosecution as misdemeanors. Ironically, approving SB 649 may work well in conjunction with AB 105, in terms of the monetary savings and inmate diversion that will result from it.

Also sent to the governor's approval is AB 218, otherwise known as Ban the Box, which prohibits asking job applicants about their criminal records until it is established that they meet the minimum qualifications for the job.

Also notable, SB 569, if signed by the Governor, will require the police to videotape all police interrogations of juveniles accused of murder. Why only juveniles? Why only murder? Presumably, you have to start somewhere, and the risks of procuring false confessions are greater with juvenile suspects. Even this partial requirement has police officers bristling, though I can see benefits to the police in the sense that proper interrogations can no longer be grounds for lawsuits or public upheaval.

If any of the bills to be signed is close to your heart, and you'd like to tell the governor, please do so!

Mailing address:
Governor Jerry Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814

Phone: (916) 445-2841
Fax: (916) 558-3160

Email here.

Ashker v. Brown: Solitary Confinement Lawsuit Seeking Class Certification

The struggle against long-term solitary confinement continues even after the end of the hunger strike. A group of inmates is suing Gov. Brown and CDCR, hoping for an injunction to end gang validations, confinement based on flimsy evidence, and solitary confinement for long periods of time. They did not get a preliminary injunction, but the motion to dismiss was denied as well.

In the lawsuit, the inmates bring up two types of constitutional arguments:

Due Process arguments, addressing the process by which people are placed in solitary confinement indefinitely. One can end up in solitary confinement for a defined period of time, for a violation of prison rules; this lawsuit addresses a different category of cases, in which people are classified as gang members based on problematic and scant evidence and placed in solitary confinement with no end in sight. If the court accepts this claim, it will order an overhaul of CDCR regulations regarding gang validation.

Eighth Amendment arguments, addressing the physical and mental health risks involved in confining human beings in segregated conditions for more than ten years. There is a solid body of evidence regarding the horrific and irreversible impact of spending dozens of years in a small cell by oneself for 22.5 hours a day, with no human contact, on a person's body and psyche (see fact sheet). If the court accepts this claim, the best case scenario is a cap on using solitary confinement for periods exceeding ten years.

The first step in court is to have the lawsuit class certified under Federal Rule 23. What that means, in legal parlance, is that the lawsuit becomes a petition on behalf of a group of inmates, rather than the individual petitioners. With regard to the due process argument, the appropriate class consists of all inmates who are in solitary confinement for an indefinite period following a gang validation process. With regard to the Eighth Amendment argument, the appropriate class consists of anyone doing time in solitary for more than ten years. Here's the petition for class certification.

Under Rule 23, the inmates will have to prove that they are too numerous a group to litigate individually, and that the representative inmates bringing the suit are adequate representatives with claims that are typical to the entire group. This has been a problem in the past sometimes, when inmates brought up common law questions that would require individually-tailored legal responses. It does not seem that this is the case here. What the petitioners are seeking is a change in validation policy and a cap on confinement length, a remedy that would address the concerns of the entire class. So, the petition for class certification seems to have a fairly good chance. As to the merits of the suit, we'll continue following it.

Interested in attending the oral argument? 

When: Thursday, Sept. 26, 2013 at 2:00 p.m.
Where: Oakland Courthouse, Courtroom 2, 4th floor, 1301 Clay Street, Oakland, CA, 94612 before Chief District Judge Claudia Wilken.

The Center for Constitutional Rights wants people to attend the hearing. If you plan on showing up, do your best to arrive 30 minutes to one hour early, in order to go through security. Everyone will need a current form of identification in order to get inside the building.

For those of you who can't make it, the CCC blog will cover the oral argument.
___________________________
Thanks to my colleague Morris Ratner for our conversation about class certification.

Ban the Box Needs Your Help!

Cheauvon, and other honest and accountable formerly incarcerated people who are looking for work and want to take responsibility for their lives, need YOUR help!

AB 218, otherwise known as the Ban the Box initiative, would prohibit state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications.

The bill failed on the Senate Floor yesterday by a vote of 20 to 16, but was granted reconsideration. Which means there is something you can do to make things right. It's the last day of the Senate session and this is an opportunity to pass this important bill.

Call one of these senators (highest priority are Senators Pavley and Roth):

Fran Pavley: Phone: (916) 651-4027 District 27 incorporates and maintains the eastern portion of Ventura County, which includes the cities of Simi Valley, Moorpark, Thousand Oaks, Agoura Hills, and Westlake Village. It also includes the coastal area extending from Leo Carrillo State Beach to Malibu and on to Topanga Canyon. Additionally, it captures the communities of Calabasas, West Hills and a portion of Santa Clarita in Los Angeles County. It maintains the coastal mountain range and watershed. This district reunites the cities in Eastern Ventura County above the Conejo Grade and combines them with communities in the greater Santa Monica Mountain area and the western San Fernando Valley along the Highway 101 and 118 corridors.

Richard Roth: Phone: (916) 651-4031; District 31: Riverside County including the Cities of Corona, Eastvale, Jurupa Valley, Moreno Valley, Norco, Perris and Riverside, Fax: (916) 651-4931

Hannah-Beth Jackson: Phone: (916) 651-4019; District 19 Santa Barbara County and a portion of Ventura County.Santa Maria, Buellton, Solvang, Goleta, Santa Barbara, San Buenaventura, the Santa Clara Valley (Santa Paula, Fillmore, Piru) and Oxnard, Port Hueneme and Camarillo on the southeastern border. Agricultural nexus between the Santa Clara Valley, Oxnard plains, and the Santa Maria area.

Jerry Hill: Phone: (916) 651-4013; District 13; Atherton, Belmont, Brisbane, Burlingame, East Palo Alto, Foster City, Half Moon Bay, Hillsborough, Los Altos, Los Altos Hills, Menlo Park, Millbrae, Mountain View, Pacifica, Palo Alto, Portola Valley, Redwood City, San Bruno, San Carlos, San Mateo, South San Francisco, Sunnyvale, Woodside and parts of unincorporated San Mateo County and unincorporated Santa Clara County.

Here's a suggested script for your call:

“I live in the Senator's district and I support AB 218. I want to urge the Senator to pass this bill. This bill is important to our community because ... ”

• “it will help reduce recidivism.”

• “it will increase public safety by making sure people with records have a chance at being employed.”

Use your own words and reasons.

If the idea is to make folks with criminal records contributors, rather than burdens, on the economy, the way to do it is to at least not make it impossible for them to find work. DO SOMETHING TODAY to help them.

Hunger Strike, Day Six: 7,667 Inmates on Strike, CDCR Threatens Repercussions

Reuters Los Angeles reports:

The California Department of Corrections and Rehabilitation confirmed that 7,667 inmates in 24 prisons and one out-of-state unit had missed nine consecutive meals, the benchmark used by the state's prison system for recognizing a hunger strike. 

That is well below the 12,421 inmates out of a total prison population of more than 130,000 that officials had confirmed were striking on Thursday in an what the Los Angeles Times said marked the largest prison hunger strike in California history. 

California prison officials have threatened to impose disciplinary measures on inmates who take part in what the prison system has termed as illegal "mass disruptions." 

Officials have not specified what privileges could be taken away from inmates, but on Friday they said visitors would be allowed into state prisons as usual this weekend. They said the prison system was not negotiating with the strikers.

While 7,667 is a lot less than the original 12,421, it is important to keep in mind that it is also more than the number of strikers in any of the previous strikes. Obviously, the folks who continue the strike are the folks that are most committed to achieving its goals; we have no breakdown by institution, but it is probably reasonable to assume that SHU inmates have the least to lose.

What can you do?

1. Many people still don't know about the hunger strike. Make it a topic of conversation this weekend.
2. Join the human rights pen pal program and cheer up a hunger strikers with letters from the outside.
3. Donate to support the folks helping and visiting inmates at Corcoran.

Thoughts on Standing, Or: Why Should I Care About PRISM/mass incarceration/the Hunger Strike?

Recently, many Californians rejoiced at the news that the Supreme Court, in Hollingsworth v. Perry, would not hear conservative arguments to preserve the discriminatory Prop 8 because of lack of standing. The happiness was because of the combined effect of the decision with another decision handed that day, U.S. v. Windsor, which found the federal Defense of Marriage Act unconstitutional. The bottom line is that same-sex marriage, in the states that recognized it (now thirteen and the District of Columbia, with the addition of CA), is fully federally recognized. Nothing has changed in states that have not recognized same-sex marriage, and there are still many battles to be fought on those fronts; but some happy outcomes in the area of immigration are already happening.

But what did the Court really say about Prop 8? Rather than reaching the decision on its merits and expressing a clear opinion about the proposition's constitutionality, the Court found that, when a state government is unwilling to defend one of its laws, private citizens cannot do so in its stead--not even when said citizens were pointed to by the government as possible ideological and financial stewards of this law. The dissenters, I'm sure, would come to different conclusions on the merits, but the opinion of the court is based on what Chief Justice Roberts and others consider principles of sound government. This is particularly interesting in the context of a neopopulist, direct democracy system like the one in California, in which legislative impasse requires that ideologically controversial laws be taken up by the voters.

The five Justices were very cautious not to attach value judgments to their no-standing decision, but we are free to think whether such meanings exist. Usually, the test for standing has to do with whether the party in question has a stake in the matter before the court. And it could be argued (albeit with little help from the text in Hollingsworth) that a no-standing argument is a broader statement against the notion that same-sex marriage somehow affects--in injury or otherwise--people who are not same-sex couples. The little graphic below, which made the rounds on the social networks in the last few months, is an expression of this interpretation of lack of standing: That gay people can now marry has no injurious effect on the institution of marriage itself, so no one but the government can argue against it.

But on further thought, this interpretation of standing is not the deepest or most interesting stance on the matter. After all, that same-sex marriages may proceed in California, now with full federal backing and support, does have an effect on everyone in the state, in the sense that we all live in a more just and egalitarian society, that has taken an important step in furthering civil rights. This is why organizations such as the ACLU of Northern California have a stake in the decision, if not as official parties then at least as amici. This is not, however, a matter of technical legal standing, but rather one of moral standing; when some of us don't get our civil rights, it affects all of us in a variety of ways.

What does all of this have to do with the hunger strike? I have recently had a chance to interact with various progressive audiences, only to find out that they were unaware of the hunger strike that begins tomorrow in Pelican Bay, Corcoran, and possibly other prisons. Those who knew, vaguely, about the strike, were not well informed about the inmates' five core demands and of CDCR's new protocols' failure to address them. Very few people know that Christian Gomez, an inmate at Corcoran, died during the previous hunger strike. Very few people know that the strike galvanized agreements across races and gang affiliations. My grave concern is that, like its predecessors, this strike will receive little publicity, and the illness and possible death that might result will remain unknown and unexamined. And this is because I think we all have standing on this matter. Not in the strictly legal sense, but in the sense that treating our fellow human beings, Americans, Californians, in inhumane ways does have a detrimental effect on how we all treat each other.

What keeps us unaware of prison conditions, why do many of us feel that we lack "moral standing" on incarceration conditions? Some of this has to do with misinformation. Mainstream media does not cover incarceration frequently, though the financial crisis has begun to change that insofar as expenditures on corrections affect our wallets. Still, since incarceration does not affect everyone equally, many of us are likely to familiarize ourselves with its evils through the increasing number of new TV shows about prison (such as the new Orange is the New Black,) which will likely not tell us anything of social or political value. Even shows that purported to offer some critique of the system left its basic tenets unexamined. Moreover, prisons themselves are distant from the consciousness of those not directly affected. The disparate effect of incarceration is exaggerated by institutions like Pelican Bay and Corcoran, which are far away from major urban centers and very difficult to get to, and by the worrisome prospect of even larger, more isolated institutions.

But one should be informed, and one should care, because incarceration and segregation regimes do affect all of us  First of all, one in a hundred Americans is behind bars, and one in 36 is under some form of correctional supervision. That person could be you. While I think articles like this one are somewhat facetious--the people targeted by technology laws are unlikely to be the critical mass of inmates in California prisons, for a variety of reasons involving race, class, and enforcement priorities--those are still vast numbers of lives touched by the experience of imprisonment. But at least one must acknowledge that the vast numbers of incarcerated people mean that the experience of incarceration touches many, many lives, such as those of 2.5 million children with parents behind bars. If that child is not you, he or she is your future neighbor, coworker, and fellow citizen. Most people behind bars will, one day, be released, and it is to the benefit of all of us that they have some chance of reintegration because we all have to interact with each other, even when someone we don't know crosses our path in our gated community.

Second, even if your life has not been touched by incarceration, the dehumanization of your fellow citizens may eventually spill over to the way your government sees you. This is why the recent discoveries about phone surveillance cannot be brushed away with the supposition that, if one is not a terrorist, one is not affected by PRISM. Approaches toward human rights, surveillance and social control tend to be imported and exported across systems and institutions, and not caring about other human beings' conditions of confinement may infect conditions in schools and other places.

Third, there is the persistent question of how much all of this costs us. Even if this system could be stomached from the humanitarian perspective, is it financially viable?

And finally, there is a serious moral argument. Do you want to be part of a society that locks up people for many years, sometimes decades, for 22.5 hours a day, waking them up frequently so they get little to no sleep, with no human company whatsoever, abysmal medical care, and very poor food? Do you feel comfortable subjecting others to this regime based on partial and faulty information, particularly reports of some people on others to receive a reprieve from this same system? Do you believe tattoos and rumors to be a fair indication of gang affiliation, enough to place a person in this system for years? And do you feel comfortable with the possibility that we might have made a mistake and subjected an innocent person to years of horrific torture?

If not, stand with the hunger strikers tomorrow. Because you have moral standing.