Hadar Aviram

Eighteenth-century prison reformer John Howard was endowed not only with a considerable fortune but with an inquisitive eye and a compassionate heart. In 1777, following his tour of more than one hundred prisons in England and Wales, Howard published The State of the Prisons, which opens as follows:

There are prisons, into which whoever looks will, at first sight of the people confined there, be convinced, that there is some great error in the management of them; the sallow meagre countenances declare, without words, that they are very miserable; many who went in healthy, are in a few months changed into emaciated dejected objects. Some are seen pining under diseases, “sick and in prison;” expiring on the floors, in loathsome cells, of pestilential fevers, and the confluent small-pox; victims, I must say not to the cruelty, but I will say to the inattention, of sheriffs, and gentlemen in the commission of the peace…. The cause of this distress is, that many prisons are scantily supplied, and some almost totally unprovided with the necessaries of life.[1]

The connection Howard made between incarceration and disease was fortified by his later adventures: after a brief stint as prison reform administrator, he returned to his travels, experiencing people’s fear of the plague and finding himself imprisoned at a lazaretto in Venice. Miasma and contagion are not only metaphors for the prison experience: they have been part and parcel of the reality of incarceration, to the point that the architecture of early American prisons was explicitly designed to prevent disease spread.[2]

Recently, at a press conference held in front of the San Quentin gates, Dr. Peter Chin-Hong from the University of California, San Francisco, eerily echoed Howard’s conclusions. Facing the COVID-19 crisis that has ravaged California prisons, and remembering the years-long struggle with valley fever infections in the same prisons,[3] he remarked that “prisons are incompatible with healthcare.”[4]

At the time of writing this particular essay, more than half of the incarcerated population of San Quentin has been infected with COVID-19.[5] There are 8,429 cases of the virus in California prisons—eight times the infection rate in the general state population—and only a little over half of the prison population has been tested. Fifty people have died, twenty-two of them at San Quentin and sixteen at the California Institute of Men in Chino. The crisis at San Quentin, brought about by a botched transfer of untested people from Chino,[6] has provoked outrage from advocates, activists, health care and criminal justice professionals. After the San Quentin press conference, which featured lawmakers and elected officials as well as formerly incarcerated people and loved ones of people directly impacted by the contagion, Governor Newsom announced the upcoming release of up to 8,000 prisoners.[7] Albeit a welcome initial step to alleviate virus-ravaged state prisons, I argue here that the strategy proposed by the Governor and CDCR will not suffice to stop the contagion and save lives.

My analysis places the Governor’s announcement in the context of California’s political culture and its historical struggle with overcrowded prisons and inadequate healthcare. Against a backdrop of decades of neglect, abuse, and iatrogenic disease and death, after pressure by federal courts the state released large numbers of prisoners starting in 2011. This was accomplished primarily via two statutory amendments: the Criminal Justice Realignment,[8] which shifted the responsibility for nonviolent, nonserious, nonsexual offenders (the “non-non-nons”) to the counties; and Prop. 47,[9] which reclassified some common felonies as misdemeanors. The good intentions behind these efforts, however, backfired in creating vague standards for overcrowding and in decentralizing the responsibility for people’s health by placing people in ill-prepared contexts. In addition, the focus on less-controversial categories of prisoners as reform targets, which made them more palatable to the public, ignored robust literature on the risk of reoffending. These well-intended reforms, against the backdrop of the horrors that preceded them and the political culture in which they were implemented, are at the root of today’s prison COVID-19 crisis; moreover, the reforms proposed now echo these flaws, and are therefore insufficient and ineffective to combat the pandemic threat, or offer any kind of comprehensive and compassionate reform.

In other words, not only is the COVID-19 crisis in prison a function of persistent structural, administrative, and persistent cultural-political conditions, but the proposed solution reflects and exploits these same weaknesses.

Context: California as a Populistic, Polarized State

 In her book The Politics of Incarceration Vanessa Barker compares the political cultures of three states: California, Washington, and New York.[10] Barker attributes the different degrees of punitiveness in these three states to their levels and styles of civic engagement and to their political makeup. California’s political culture, which Barker refers to as “polarized populism,” is characterized by great contrasts between right and left, and by an emotion-driven referendum system, which is used frequently by parties with private interests and the ability to fund expensive public campaigns. In contrast to Washington’s political culture, which features a town-hall style deliberate democracy, and to the elitist-pragmatic principles characterizing New York, California’s culture renders it vulnerable to arguments based on high emotional valence.[11] In this environment, “redball crimes”—violent, heinous crimes, which are as rare as they are shocking—have a strong rhetorical pull, which is effectively utilized to introduce punitive voter initiatives,[12] particularly by California’s powerful prison guard union and its connections with victims’ rights organizations.[13] These characteristics prime our state conversations about criminal justice to revolve around, on one hand, a laissez-faire attitude and, on the other, a fear of crime (and so-called “criminals”), and particularly a reluctance to seriously consider nonpunitive reforms to sentencing and incarceration of people convicted of crime—especially “violent crime.”

These tendencies were exacerbated by California’s pioneering transition to a system of determinate sentencing in 1977, which removed the judges’ ability to sentence defendants by using a breadth of considerations and greatly limited the authority of parole boards to set prisoner release dates. Before this reform, California’s prisons, by contrast to Arizona and Texas’ “cheap justice” farm- and plantation-like institutions, were large bureaucratic creatures, driven by ideas of correction and rehabilitation fostered by employees from therapeutic professions who toiled in obscurity within the prison. The transition to a determinate sentencing model shifted the power from these professionals to elected officials: legislators, who responded to public emotions and demands by proposing punitive bills, and prosecutors, who had the power to choose charging offenses. Gradually, felony sentencing in California increased in length, largely due to the creation of sentencing enhancements and aggravating conditions, resulting in the largest prison population in the United States and in grossly overcrowded institutions.

Healthcare in California Prisons Before Brown v. Plata

The Supreme Court’s decision in Brown v. Plata (2011),[14] which upheld a federal three-judge-panel order to alleviate prison overcrowding under the Prison Litigation Reform Act of 1996 (PLRA), was the culmination of a decades-long litigation effort on behalf of incarcerated people seeking relief from the abysmal prison healthcare system. This drastic measure was adopted after several less extreme reforms failed, including placing the entire prison healthcare system in the hands of a federal receiver.[15] Despite eating up more than a fourth of the California correctional budget,[16] the healthcare system was a reign of chaos and neglect. Every six days, a prisoner would die from a preventable (sometimes iatrogenic) condition.[17] The case’s namesake was emblematic: Marciano Plata hurt himself in 1997 in the course of working in the prison kitchen and was unable to continue working in the prison kitchen. Unable to get adequate medical attention because of insufficient medical staffing, Plata’s condition worsened to the point that his knee required surgery, which took years to schedule.[18]

Throughout the Plata litigation, California prisons were grossly overcrowded at near 200% of their design capacity. “Bad beds”—triple bunks and makeshift beds in hallways and gyms—were a common sight in the system. These conditions hindered the system’s ability to provide basic healthcare for several reasons. Correctional medical personnel were (and still are) difficult to hire and retain, because of California’s unattractive correctional geography: large institutions in remote, rural locations.[19] Providing for necessities such as housing, clothing, and feeding on such a scale required considerable compromises in quality, making it difficult to introduce preventative health measures.[20] This problem was compounded by California’s increasingly lengthy sentences: as a consequence of repeated “public safety” legislation adding sentencing enhancements, one fourth of the current prison population has a life sentence, producing an aging population in increasingly poor health, which requires more chronic and expensive healthcare.[21] Under these circumstances, registration and pharmaceutical services became disorganized and dated. Even when people were finally taken to medical appointments, they would be required to wait for long hours in tiny holding cages without access to bathrooms. Taking prisoners to medical appointments often required lockdowns, which in turn created more delays and administrative hassles. And the prisoners’ 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. Indeed, by 2006, the Federal Receiver overseeing the prison medical system and the Special Master overseeing the mental health system reported that overcrowding was impeding their ability to effectuate change, and Gov. Schwarzenegger proclaimed a state prison crowding emergency.[22] The link between the severe overcrowding and the conditions of the prison medical system was an important step toward the resolution of Plata. The PLRA, under which incarcerated people and their advocates sought relief, places numerous hurdles on prison rights litigation in general, and on population reduction orders in particular; such orders may be entered only by a three-judge district court, after the panel ascertains that prior attempts to alleviate prison conditions have failed to bring prison conditions into compliance with constitutional requirements, that overcrowding is the primary cause of the violation, and that no other relief will remedy the conditions.

The Era of Plata: Recession-Era Reforms and Their Limitations

The late 2000s were years of transformation not only in California, but nationwide, due to a confluence of events. The advent of the 2008 financial crisis plunged state and local governments into a deep recession, which awakened interest in local budgets, of which correctional expenditures were a considerable share.[23] The realization that incarceration on such a scale was financially unsustainable created the opportunity for bipartisan coalitions at the state and federal levels,[24] dovetailing with the Obama Administration’s focus on criminal justice reform and racial justice.[25] Part and parcel of these coalition-building efforts was the need to focus the proposed reforms on low-hanging fruit, in the form of politically palatable populations, such as nonviolent drug offenders, which received the bulk of reformist attention both from the right[26] and the left.[27]

Against this backdrop, the litigation in Plata hurtled forward, and the PLRA conditions for population reduction were finally met. In 2009, the three-judge panel found overcrowding to be the primary cause of the health care system’s dysfunction and acknowledged that prior attempts to improve the situation had failed. Consequently, the panel ordered a reduction of California’s prison population to 137.5% of system-wide design capacity—admittedly, a drastic population cut that the state would continue to fight tooth and nail all the way to the Supreme Court—but shied away from specifying how the population reduction was to be done.[28] Theoretically, the state could have built more prisons to alleviate overcrowding, but recession-era cuts impeded this course of action; another possibility, relying on private contractors, was blocked by conflicting political interests.[29] In 2011, as Plata made its way to the Supreme Court, Gov. Brown continued the path charted by his predecessor, Gov. Schwarzenegger,[30] and signed extensive legislation that many considered “the greatest experiment” in American corrections.[31] Under the Criminal Justice Realignment,[32] people convicted of “non-non-non” offenses—nonviolent, nonsexual, nonserious—would serve their sentence in county jails, rather than in state prisons. This would internalize the costs of incarceration and eliminate the problem that several scholars have referred to as the “correctional free lunch”: prosecutors asking for, and judges meting out, lengthy prison sentences in county courts, oblivious to the “price tag”—the costs of incarceration, which would be borne by state agencies.[33] Judges were given more discretion regarding sentencing, to alleviate incarceration and, in most cases, the state system’s parole supervision functions were transferred to community probation offices, which would now handle both probation (a sanction, typically viewed as an alternative to incarceration) and parole (post-incarceration supervision).

From State to Counties

The implementation of Realignment meant that tens of thousands of people, who were under the auspices (and financial responsibility) of the state, would now be housed, clothed, and fed at the county level. Many scholars and policymakers who welcomed this jurisdictional shift thought that counties would be better positioned to connect people with rehabilitation and reentry services because of their stronger ties to the home communities of incarcerated people, and that healthcare at the state level was so dire that the counties would surely do better.[34]

But the assumption that jails would be an improvement neglected to consider several factors. The first of these, which law professor Margo Schlanger referred to as the “hydra problem,” was concern about the impact that a decentralized health care system would create, making it more difficult to monitor and implement improvement: i.e., rather than following the health care instructions and practices in one jurisdiction (the state), prison rights advocates would now have to obtain information about conditions and mismanagement in each of the counties as well, and possibly begin new, separate litigation efforts against each county. In addition, there were the inherent limitations of county facilities. Jails, originally built to house people only for short terms (pretrial or for less than a year), were ill-equipped to deal with a population in need of both acute and chronic healthcare. The extent to which counties proved equal to the task varied greatly: while some counties made efforts to prevent incarceration well ahead of the anticipated legislation and court decisions, others, in panic, started building jails[35] or changing revenue structures to roll expenses onto the inmates themselves. Such structure include “pay to stay” jails, in which people pay for their own incarceration (as if they were staying in a hotel) through liens on their post-incarceration earnings, or more opaque practices: monetizing and charging for haircuts, food, and some healthcare services.[36] The gaps in implementation were also reflected in divergent reliance on incarceration among judges in different counties.[37] These divergent patterns were unfortunately exacerbated by the formula for funding the newly burdened county systems, which was initially based on the counties’ respective incarceration rates; this funding mechanism rewarded counties that relied more on incarceration and penalized those who developed alternatives to it, disincentivizing courts, sheriff’s departments, and probation services from investing more in non-carceral options.[38]

Bifurcation and the Violent/Nonviolent Dichotomy

Related to the “hydra problem” was the fact that the new sentencing and jurisdictional rules applied only to the “non-non-nons,” which were considered an easier “sell” from a public appeal perspective. Realignment was not unique in that respect. Generally speaking, recession-era reforms were characterized by a bifurcation element: they applied to nonviolent offenders and retrenched negative public opinion about so-called violent offenders.

This distinction was based on several empirically unfounded myths, the first of which was that the American correctional predicament was due mostly to the incarceration of non-level offenders. In fact, drug offenders—the recipients of bipartisan sympathies, and justifiably so given the racial disparities in drug enforcement—have constantly been no more than a fourth of the state prison population nationwide, whereas people convicted of “violent” offenses constituted a majority of those in state prisons.[39] In California, especially after the legislative changes in 2011 and 2014, three quarters of the prison population are people convicted of “violent” crimes.[40] A related myth was the perception that violent offenders posed a greater risk to public safety—which, when empirically tested, proved to be untrue.[41] In California, specifically, the focus on the crime of conviction led the legal system to ignore a fourth of the prison population—the people serving the state’s three most extreme sentence: incarceration on death row, life without parole, and life with parole. Because of the rarity of executions in California and the rarity of release on parole, these three punishments merged into an “extreme punishment trifecta,”[42] consisting of decades behind bars. Greatly overlapping with this category were prisoners aged fifty and above[43] who, as a consequence of serving extremely lengthy sentences, had not only aged out of crime,[44] but also incurred disabilities and chronic health conditions. Well-meaning reforms, therefore, calcified public opinion against the people who were wrongly perceived, because of their crime of commitment, to pose risks to public safety while, at the same time, facing increased risks to their own health because of their age and the prison conditions they have endured during their lengthy sentences. California’s aforementioned political culture[45] tends to emotional arguments building on heinous (albeit very rare) violent crimes, and public opinion has been remarkably resistant to the idea of distinguishing between, and extending compassion to, people convicted of violent crimes.

System-Wide Population Reduction

Another well-meaning aspect of the Plata reforms was that the court order required a population reduction in the system as a whole, rather than per individual institution. Part of the vagueness of the order was due to the already-extreme measure of relying on the PLRA to require an enormous state-wide effort. However, the choice of litigation strategy also mattered. By contrast to European and international standards, which measure humane incarceration standards based on a minimal square area per prisoner,[46] the order in California did not go so far as to ensure that each inmate would have adequate space—only that the average inmate in the entire system would. For years after the Plata decision, there was considerable variety in the occupation rates of state prisons, with some prisons still at pre-Plata capacity while others were at capacity or even slightly below. The impact of the decision, therefore, was not inclusive of all inmates.

Crisis and Mismanagement

Against the backdrop of these vulnerabilities—fragmented correctional institutions, rising to divergent standards and accountable to different local governments, a legacy of challenges providing minimal healthcare, uneven occupancy rates, and the perception that public opinion is dead-set against the releases of violent prisoners—came the triggers: the pandemic and a few crucial mismanagement steps by CDCR and by county jails. Some of these problems are evident from CDCR’s own tracking tool, but some we know about only from journalistic exposés—especially the ones pertaining to local jails. As of July 13, CDCR has tested 43.4% of its prison population, but testing rates have widely ranged between institutions. In the first two weeks of July, 55% of the California Correctional Center population was tested, but only 2% of the Kern Valley State Prison were tested, and percentages of tests ranges from 97% at Amador to 11.4% at Chuckawalla. More than half of San Quentin’s population tested positive, with nine deaths since mid-July, most of them being individuals on death row.[47] Bizarrely, if death row isolation, where people are housed in single-occupancy cells, is not sufficient protection from contagion, it is unclear where and how the prison can prevent contagion through social distancing.

The contagion on death row raises unique issues. In 2019, after decades in which the state had sentenced people to death only to see them languish for decades on death row, waiting for legal representation to enable them postconviction litigation, Gov. Newsom placed a moratorium on the death penalty. During these decades—and even now, because the death penalty is still on the books—the state has spent billions of dollars “tinkering with the machinery of death” by litigating minute technicalities of executions, such as the type and number of drugs to be injected.[48] Extensive appellate proceedings have gotten into the minutiae of convicts’ physical and mental health, to ensure that they are healthy enough to be killed by the state. This endless technical litigation seems particularly absurd as hundreds of inmates may face a death sentence via COVID-19. Even those who might secretly harbor the thought that such a sentence on death row might be appropriate would be surprised to know that capital trials are notoriously arbitrary and inefficient, and do not effectively single out “the worst of the worst” for capital punishment.[49] Even to the extent that it is possible to qualitatively differentiate between more or less heinous homicides (our Penal Code does so through lists of aggravating circumstances), who ends up on death row is not necessarily a function of the heinousness of the crime, but rather of the quality of the theatrical spectacle for the jury. The recent jury decision to sentence Joseph DeAngelo, the notorious “Golden State Killer,” to life without parole reflects the pragmatic realization that, with the death chamber dismantled, any meaning attached to a symbolic death sentence, as well as the costly expenditure of time and finances that will flow from postconviction litigation, is unnecessary.[50]

An additional trigger is the mismanagement of transfers between institutions during the pandemic. Reportedly, the outbreak at San Quentin is a function of a botched transfer of prisoners from the California Institute of Men in Chino, the site of a serious (and now almost abated) contagion. The prisoners were not tested before being transferred.[51] This scenario then replicated itself: prisoners from San Quentin, in turn, were transferred to the California Correctional Center (CCC) in Susanville and not tested or quarantined upon arrival,[52] resulting in hundreds of cases, with the infection unabated as of mid-July. While another prison in Susanville, High Desert State Prison, has only seen four cases as of mid-July, testing rates there are remarkably low and it is overcrowded at 154% of its capacity, raising concerns about the possibility of preventing much worse outcomes through social distancing.

Beyond the concerns for people behind bars are the concerns for the effect of prison contagion on the surrounding communities. CDCR confirms 1,243 cases among its staff, 205 of which are at San Quentin. Comparing CDCR data about infections within the prison with the Los Angeles Times statistics[53] for the neighboring counties shows a temporal link between the outbreak at San Quentin and the soaring number of cases in the surrounding community.[54] Similarly, the spike in cases in Lassen County occurred after the outbreak at CCC. In both cases, without contact tracing, it is impossible to provide an airtight causal story; the temporal link, however, raises serious concerns that attempting to incubate the virus in prisons puts the entire community at risk.

The interplay between the prison and the community seems to have finally driven home the point that prisoners reside in the county in which the prison is located for the duration of their incarceration, whether or not they are (or should) being “counted” as such for purposes such as the US Census.[55] Realizing that Lassen County people’s health depends, in part, on health outcomes inside Lassen County’s prisons, Brian and Megan Dahle, respectively a Senator and an Assembly Member for Lassen County’s First District wrote a letter to CDCR Secretary Ralph Diaz asking him “to provide answers on questionable protocols that have led to a surge of inmate #COVID19 cases in Lassen County.”[56] Reportedly, despite arguments about jurisdiction, the prison and county are finally working together to test the prison population.[57] This collaboration is less likely to play out in Marin County, where the identity and livelihood of the community is less tied to its local prison than at Susanville, “Prison Town, U.S.A.”[58]

The concerns about prison outbreaks, at this point, go beyond the extreme outbreaks at San Quentin, Avenal, CIM, and CCI. A careful look at the CDCR contagion data reveals several locations at which the status of contagion is still unclear given the lack of testing and the paucity of information about transfers—what Donald Rumsfeld referred to, in a different context, as the “known unknowns.”[59] In some prisons, the outbreak seems to have reached its peak and abated; in others, it continues unabated. In some prisons, there have been new outbreaks after previous waves had seemingly abated. Some prisons have only a handful of cases; because these prisons, for the most part, have tested only a small percentage of their population, it is impossible to know whether contagion has been contained or the few cases are the beginning of a serious outbreak. And while several prisons have had no cases at all, it remains to be seen whether administrative blunders in the form of population transfers or insufficient staff protocols will introduce the virus into these institutions and their environs.

Finally, there is the matter of another “known unknown”: the situation in California’s county jails. As outbreaks were reported in several jails, notably at Alameda,[60] San Bernardino, Riverside,[61] Fresno, and Tulare counties,[62] the respective Sheriff’s Departments did not provide statistics on infections and hospitalizations on their webpages. Indeed, UCLA’s new data collection project on COVID-19 in correctional institutions led by Sharon Dolovich impressively covers state and federal prisons, but only a handful of jails, because information has been so scant.[63] The five-month delay in obtaining reliable statistics on county jail infections statewide is an important social fact, which undergirds Schlanger’s “hydra problem”: by contrast to CDCR, which provides an informative tracking tool, the fifty-nine counties have had different approaches as to reportage, and even those who report statistics do not do so in a uniform manner. Only as late as five months into the crisis, the Board of State and Community Corrections (BSCC) finally required county sheriffs to provide contagion statistics on jails.[64] The resulting database offers partial information, with no historical or cumulative data.[65] The gaps between official COVID-19 policies as listed on county sheriffs’ websites and the realities on the ground became a matter of public record when the Orange County Sheriff was sued for providing inadequate precautions. After the Ninth Circuit Court of Appeals ordered the Sheriff to enforce social distancing and provide the inmates with soap, the Supreme Court, in a 5-4 decision, stayed the injunction, thus temporarily relieving the Sheriff from these obligations. The decision was surprising, to say the least, because stays are not usually granted when the Supreme Court is unlikely to grant certiorari and reverse the decision on the merits; it was particularly surprising because there was ample proof of substantial harm to the jail population. In her dissent, Justice Sotomayor wrote:

Although the Jail had been warned that “social distancing is the cornerstone of reducing transmission of COVID–19,” inmates described being transported back and forth to the jail in crammed buses, socializing in dayrooms with no space to distance physically, lining up next to each other to wait for the phone, sleeping in bunk beds two to three feet apart, and even being ordered to stand closer than six feet apart when inmates tried to socially distance. Moreover, although the Jail told its inmates that they could “best protect” themselves by washing their hands with “soap and water throughout the day,” numerous inmates reported receiving just one small, hotel-sized bar of soap per week. And after symptomatic inmates were removed from their units, other inmates were ordered to dispose of their belongings without gloves or other protective equipment. Finally, despite the Jail’s stated policy to test and isolate individuals who reported or exhibited symptoms consistent with COVID-19, multiple symptomatic detainees described being denied tests, and others recounted sharing common spaces with infected or symptomatic inmates.[1][66]

Beyond the distressing fact that the county preferred to spend its resources petitioning the Supreme Court for a stay, rather than providing its jail population with adequate amounts of soap, the case raises concerns about the situation in other jails. While it is impossible to make definitive extrapolations from the Orange County example, the divergence between the jail’s “health and safety” protocols per its website and the practices on the ground as reported by the jail populations suggest that the official policies are no assurance that people serving short sentences—and people who are in pretrial detention, and thus presumed innocent—are receiving adequate protections from infection.

StopSanQuentinOutbreak

The Proposed Solution: Case-by-Case Releases of Non-Non-Nons?

On July 10, a day after activists and elected officials held a press conference before the San Quentin gate, Gov. Newsom announced impending releases of 8,000 people. In the heels of his announcement, CDCR issued a press release detailing the plan.[67] The plan closely resembles the strategies adopted in 2011 and 2014 to trim the prison population: it focuses on the relatively less controversial moves of hastening the release dates of people sentenced for nonviolent crimes who are nearing the end of their sentences. More particularly, the plan consists of the following steps:

  1. Release 4,800 people with 180 days left on their sentences, who are not serving time for violence or domestic violence, nor are to register as sex offenders.
  2. Release an undetermined number of people with a year left on their sentence for a nonviolent, nonsex crime, who are incarcerated at an outbreak epicenter: San Quentin State Prison (SQ), Central California Women’s Facility (CCWF), California Health Care Facility (CHCF), California Institution for Men (CIM), California Institution for Women (CIW), California Medical Facility (CMF), Folsom State Prison (FOL) and Richard J. Donovan Correctional Facility (RJD). Those aged 30 and over are immediately eligible; younger people will be reviewed case-by-case by CDCR.
  3. A 12-week programming credit (hastening the date of release) to all those not on death row or serving life without parole who don’t have a serious violation on their record since March 1. “Serious rules violations” while in prison range from murder to possession of a cellphone. This category of those who have no serious violations since March 1 encompasses 108,000 people, out of which 2,100 would advance to the point of being eligible for release between July and September.
  4. Case-by-case assessment for release of people aged over 65 with a chronic medical condition or with respiratory illnesses, who have been assessed as low risk for violence and who are not on death row, serving life without parole, or high-risk sex offenders.
  5. Individual assessment for release of people in hospice or pregnant, as well as expediting release for people who have been granted parole (including the governor’s approval.)

The plan, regardless of its particulars, is an important first step. For the individuals who will be released, the plan could spell relief from illness and death; the gradual release schedule, albeit not ideal from a pandemic prevention perspective, offers a silver lining that might allow some people to better plan their future on the outside, especially against the backdrop of a terrible economy. Nonetheless, it is woefully insufficient to stop the virus in its tracks, for four reasons: it is too modest, too late, too reactive, and too restrictive.

First, the overall number is far too modest. 8,000 releases—a mere 6% of the current prison population of approximately 125,000—would not allow prison healthcare officials to institute appropriate social distancing measures. In some institutions, the need to release massive numbers of people is even more pressing. In mid-June, a team of physicians specializing in prison healthcare published a report about a site visit to San Quentin,[68] in which they recommended that, due to San Quentin’s age and decrepitude, the population there specifically be reduced to 50% of current capacity. Many of the problems are not endemic to San Quentin: according to the July 8 population count,[69] 26 facilities—24 for men, 2 for women—are overcrowded beyond design capacity. Nine facilities are overcrowded above the 137.5% Plata standard (had the standard been applied to individual prisons, rather than systemwide), and ten more are overcrowded above 120% of their design capacity. Under these conditions, releasing a total of 8,000 people will not even nearly allow the kind of social distancing necessary to halt pandemic spread.

Second, the plan relies heavily on individualized, case-by-case evaluations. The time to take such careful measures has long passed; for months, criminal justice scholars issued warnings of prison contagion, to no avail.[70] Given the spread of the epidemic, CDCR must resort to triage measures, which approach people in broader categories of age and risk.

Third, the plan is reactive to the point of being already dated at its publication. The list of prisons that CDCR prioritizes for releases, published on June 10, already overlooked new outbreaks at several prisons. Moreover, the plan excluded places in which the pandemic had seemingly abated, even though testing levels were partial and unsatisfactory, and did not provide a true sense of pandemic activity. The prisons listed in the press release already are already ravaged by a robust outbreak, and releasing vigorously from those particular locations, while helpful in terms of treating people, would not help with prevention.

Finally, and perhaps most importantly, the plan’s restrictions on categories for release echoes previous efforts to curb unfounded public backlash at the expense of actual facts and public health. The release plan targets, yet again, a version of the “non-non-nons”: nonserious, nonviolent, nonsexual offenders. Before and after the 2011 and 2014 releases, prison scholars in California and elsewhere conducted robust research on risk assessment and have concluded time and again that there is no correlation between the crime of commitment and the risk to public safety.[71]

The choice to focus, yet again, on “non-non-nons” is particularly worrisome in the current crisis because it stubbornly evades addressing the most obvious category of people for release: people who have been serving lengthy sentences for violent crimes committed decades ago. As robust literature on life-course criminology shows,[72] people age out of violent street crime by their mid- to late-twenties, and by the time they are fifty years old, pose virtually no public safety risk; indeed, parole officers repeatedly express a preference for working with former lifers because they are such a low-risk population.[73]  This category, which constitutes a quarter of the prison population,[74] is an ideal target for release: they do not pose significant risk to public safety and, at the same time, they face enhanced risk to their own health and, by extension—if the virus is incubated in the prisons—to the health of others if they remain incarcerated.

Conclusion

It is hard to contemplate the grim picture in California’s prisons and not feel frustration with the lack of progress since John Howard indicted prisons of being incubators of disease in 1777. Whether the COVID-19 crisis in California prisons can be attributed to “cruelty” or “inattention,” a question that did not matter to the horrified Howard, is one that might matter in litigation, but at this point it suffices to say that much of it was preventable and foreseeable. The well-meaning champions of Plata can hardly be blamed for seeking a remedy that seemed, at the time, to address a systemic ill; but against the backdrop of prison conditions and of the limitations of the Plata remedy, state authorities should have acted as early as March to release people from prison and alleviate overcrowding, particularly in antiquated, decrepit facilities. The late and tepid reaction in July reverts to our state’s characteristic approach to crime and punishment. California’s populistic, polarized political culture has led elected officials, time after time, to seek solutions that raise as little controversy as possible—and time after time, such solutions have proven inefficient. This time, too, officials might be hoping that, by cobbling together palatable candidates for release, the numbers will somehow add up to sufficient prevention. Unfortunately, they won’t.

The Governor must make use of the many “levers” that open prison doors at his disposal. In a universe of moratorium, it is not beyond imagination to commute all death sentences, and all life without parole sentences, to life with parole, and speed early release policies, commutations, parole hearings, and resentencing. It is imperative to let go of concerns about the optics of releasing people who, decades ago, were sentenced for violent crime, and to follow risk assessments that prioritize aging and failing health.

It is equally essential to make a concerted effort to dramatically ramp up testing, so as to test as close to 100% of the prison population as possible. The muddled picture of infection needs to clear up considerably before the points of contact between prisons and the community can accurately be pinpointed and further transfer fiascos avoided. For a voluntary testing program to be effective, it is crucial to communicate that no retaliatory or negative consequences will stem from testing positive—and that includes refraining from the use of death row and solitary confinement cells, which carry terrifying connotations, for the purpose of medical isolation.[75]

Prison authorities must also exercise extreme caution when transferring people between facilities. No transfers must be made to institutions that have no active cases. Similarly, messaging and instructions to staff must take into account their crucial role in prevention.

Finally, county jails are a hidden but important dimension of the COVID-19 challenge. Counties must liaise with CDCR and install matching tracking tools for each county jail.

Where the blame lies, and whether it is cruelty or inattention, matters less than the pressing need to overcome this crisis; mostly, it is paramount to understand that prisons are not separate from the communities in which they are located. Prisons are part of the community, and prisoners are members of the community, and prevention strategies must see them as such.

Notes

[1] John Howard, The State of the Prisons in England and Wales, with an Account of Some Foreign Prisons (1977), cited in Andrew Barrett and Chris Harrison, eds., Crime and Punishment in England: A Sourcebook (London: UCL Press, 1999), 173.

[2] Ashley Rubin, “ Prisons Were Once Designed To Prevent Disease Outbreaks,” Honolulu Civil Beat, April 27, 2020, https://www.civilbeat.org/2020/04/prisons-were-once-designed-to-prevent-disease-outbreaks/.

[3] Kerry Klein, “California Prisons Fight to Reduce Dangerous ‘Valley Fever’ Infections Among Inmates,” KQED, February 15, 2017, https://www.kqed.org/stateofhealth/291413/california-prisons-fight-to-reduce-dangerous-valley-fever-infections-among-inmates.

[4] Dr. Chin-Hong spoke at San Quentin on July 9, 2020. Abené Clayton, “‘Make things right’: criminal justice officials urge California to release prisoners amid Covid-19 surge,” The Guardian, July 9, 2020, https://www.theguardian.com/us-news/2020/jul/09/california-governor-urged-release-prisoners-coronavirus-surge.

[5] California Department of Corrections and Rehabilitation, Population COVID-19 Tracking, accessible at https://www.cdcr.ca.gov/covid19/population-status-tracking/.

[6] Megan Cassidy and Jason Fagone, “Coronavirus tears through San Quentin’s Death Row; condemned inmate dead of unknown cause,” San Francisco Chronicle, June 25, 2020, https://www.sfchronicle.com/crime/article/Coronavirus-tears-through-San-Quentin-s-Death-15367782.php.

[7] Jason Fagone , Megan Cassidy and Alexei Koseff, “Newsom to Release 8,000 Prisoners in California by End of August amid Coronavirus Outbreaks”, San Francisco Chronicle, July 10, 2020, https://www.sfchronicle.com/crime/article/Newsom-to-announce-8-000-new-prison-releases-15399956.php.

[8] Public Safety Realignment Act (AB 109) (2011).

[9] California Proposition 47, the Reduced Penalties for Some Crimes Initiative (approved Nov. 2014).

[10] Vanessa Barker, The Politics of Imprisonment How the Democratic Process Shapes the Way America Punishes Offenders (New York: Oxford University Press, 1999).

[11] California’s culture can also be seen as somewhat overlapping the punitive politics of what Mona Lynch refers to as the “sunbelt: Mona Lynch, Sunbelt Justice: Arizona and the Transformation of American Punishment, Palo Alto: Stanford University Press, 2009. It alsoshares some characteristics with Florida’s culture: Heather Schoenfeld, Building the Prison State: Race and the Politics of Mass Incarceration (Chicago: University of Chicago Press, 2018).

[12] Hadar Aviram, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (Oakland: University of California Press, 2020).

[13] Joshua Page, The Toughest Beat: Politics, Punishment, and the Prison Officers Union in California (New York: Oxford University Press, 2011).

[14] Brown v. Plata, 563 U.S. 493 (2011).

[15] Joe Infantino, “California Turns a Corner in Effort To Regain Prison Health Care Oversight”, California Healthline, October 15, 2015, https://californiahealthline.org/news/california-turns-a-corner-in-effort-to-regain-prison-health-care-oversight/.

[16] The most recent CDCR budget, totaling $13.4 billion, devotes $3.6 billion to healthcare. California Public Safety Budget 20-21, http://www.ebudget.ca.gov/2020-21/pdf/BudgetSummary/PublicSafety.pdf.

[17] Adam Liptak, “Justices, 5-4, Tell California to Cut Prisoner Population,” New York Times, May 23, 2011, https://www.nytimes.com/2011/05/24/us/24scotus.html#:~:text=A%20lower%20court%20in%20the,Plata%2C%20No.

[18] Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New York: The New Press, 2014).

[19] Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Oakland: University of California Press, 2006).

[20] Emily Widra, “Incarceration shortens life expectancy,” Prison Policy Initiative, June 26, 2017, https://www.prisonpolicy.org/blog/2017/06/26/life_expectancy/.

[21] Heather Harris, Justin Goss, Joseph Hayes, Alexandria Gumbs, “California’s Prison Population,” Public Policy Institute of California, July 2019, https://www.ppic.org/publication/californias-prison-population/#:~:text=Criminal%20Justice-,California’s%20Prison%20Population,system%20was%20built%20to%20house.

[22] Jennifer Warren, “State Prison Crowding Emergency Declared,” Los Angeles Times, Oct. 5, 2006, https://www.latimes.com/archives/la-xpm-2006-oct-05-me-prison5-story.html

[23] Hadar Aviram, Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment (Oakland: University of California Press, 2015).

[24] David Dagan and Steven M. Teles, Prison Break: Why Conservatives Turned Against Mass Incarceration (New York: Oxford University Press, 2016).

[25] Barack Obama, “The President’s Role in Advancing Criminal Justice Reform,” Harvard Law Review 130/811 (2017), https://harvardlawreview.org/2017/01/the-presidents-role-in-advancing-criminal-justice-reform/.

[26] Dagan and Teles, Prison Break.

[27] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010). For a critique of Alexander’s excessive focus on drug crimes, see James Forman, “Racial Critiques of Mass Incarceration: Beyond the New Jim Crow,” New York University Law Review 87/101-150 (2012).

[28] Coleman v. Schwarzenegger, NO. CIV S-90-0520 LKK JFM P, Plata v. Schwarzenegger, NO. C01-1351 THE, Three Judge Court Opinion and Order, August 4, 2009, http://cdn.ca9.uscourts.gov/datastore/general/2009/08/04/Opinion%20&%20Order%20FINAL.pdf.

[29] This was not so much out of a principled resistance to private entrepreneurs, but due to fierce objection on the part of California’s prison guards’ union, which protested against a prison built by a private company on speculation: Page, The Toughest Beat, . In 2013, the state did, however, enter a contract to operate this speculative prison, the California City Correctional Center (CAC). Christine Bedell, “Cal City Prison to House State Inmates,” Bakersfield.com, October 25, 2013, https://www.bakersfield.com/news/cal-city-prison-to-house-state-inmates/article_41af12cd-3acf-5a21-9485-30b7ce8af4cb.html.

[30] Joan Petersilia, “A Retrospective View of Corrections Reform in the Schwarzenegger Administration,” Federal Sentencing Reporter 22/3 (2010): 148-153.

[31] Charis Kubrin and Caroll Seron, eds., The Great Experiment: Realigning Criminal Justice in California and Beyond, the Annals of the American Academy of Political and Social Science 664/1 (2016.

[32] Assembly Bill 2019.

[33] Franklin Zimring and Gordon Hawkins, The Scale of Imprisonment (Chicago: University of Chicago Press, 1991), 211; W. David Ball, “Defunding State Prisons,” Criminal Law Bulletin 50 (2014): 1060-1089.

[34] Margo Schlanger, “Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics,” Harvard Civil Rights-Civil Liberties Law Review 481 (2013): 165-215.

[35] Alex Emslie, Julie Small, Lisa Pickoff-White, “Realignment 5 Years On: Counties Build Jails for Inmates With Mental Illness,” KQED—The California Report, September 29, 2016, https://www.kqed.org/news/11107949/realignment-5-years-on-counties-build-jails-for-inmates-with-mental-illness#:~:text=Realignment%20aimed%20to%20satisfy%20a,nonviolent%20or%20non%2Dsex%20offenses.&text=It’s%20been%20about%20a%20%242.5%20billion%20windfall%20for%20jail%20construction%20in%20California.

[36] Michael Carona, “Pay-To-Stay Programs in California Jails,” Michigan Law Review First Impressions 106/104 (2007).

[37] Magnus Lofstrom and Brandon Martin, “ Public Safety Realignment: Impacts So Far,” Public Policy Institute of California, September, 2015, https://www.ppic.org/publication/public-safety-realignment-impacts-so-far/.

[38] David Ball, “Tough on Crime (on the State’s Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates—And Why it Should,” Georgia State L. Rev. 28 (2012): 987-1084.

[39] John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York: Basic Books, 2017). The only setting in which this is not true is the federal prison population, which is approximately one tenth of the national prison population.

[40] “Offender Data Points: Offender Demographics for the 24-Month Period Ending December 2018,” California Department of Corrections and Rehabilitation, p. 11. https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/01/201812_DataPoints.pdf.

[41] Susan Turner, “Moving California Corrections from an Offense- to Risk-Based System,” UC Irvine Law Review 8 (2018): 97-120 (2018).

[42] Aviram, Yesterday’s Monsters, 38.

[43] Harris et al., “California’s Prison Population.”

[44] The relationship between age and crime is one of the most stable findings of life-course criminology. For a useful summary see Marc Mauer, “Long-Term Sentences: Time to Reconsider the Scale of Punishment,” The Sentencing Project, November 15, 2018, https://www.sentencingproject.org/publications/long-term-sentences-time-reconsider-scale-punishment/.

[45] Barker, The Politics of Imprisonment.

[46] Holly Cartner, Prison Conditions in Romania, Human Rights Watch (1992), 8. Eric Goldstein, Prison Conditions in Israel and in the Occupied Territories, Human Rights Watch (1991), 29.

[47] Cassidy and Fagone, “Coronavirus Tears Through San Quentin’s Death Row.”

[48] Hadar Aviram and Ryan S. Newby, “Death Row Economics: The Rise of Fiscally Prudent Anti-Death-Penalty Activism,” Criminal Justice 28 (2013): 33-41.

[49] Sarah Beth Kaufman, American Roulette: The Social Logic of Death Penalty Sentencing Trials (Oakland: University of California Press, 2020); Paul Kaplan, Murder Stories: Ideological Narratives in Capital Punishment (Lanham, MD: Lexington Books), 2012.

[50] George Skelton, “In California, the Death Penalty is All but Meaningless: A Life Sentence for the Golden State Killer Was the Right Move,” Los Angeles Times, July 2, 2020, https://www.latimes.com/california/story/2020-07-02/skelton-golden-state-killer-capital-punishment-death-penalty#:~:text=In%20California%2C%20the%20death%20penalty,in%20Sacramento%20on%20June%2029

[51] Cassidy and Fagone, “Coronavirus Tears Through San Quentin’s Death Row.”

[52] Staff, “COVID-19 Outbreak Infects Inmates, Staff at Susanville’s Two Prisons”, Lassen County Times, June 26, 2020, https://www.lassennews.com/lassen-cares-hosts-facebook-event-thursday/.

[53] Los Angeles Times Staff, “Tracking the Coronavirus in California,” continuously updated in the Los Angeles Times, https://www.latimes.com/projects/california-coronavirus-cases-tracking-outbreak/.

[54] Hadar Aviram, “Are Outbreaks in Prisons and Surrounding Counties Correlated?” July 20, 2020, https://www.hadaraviram.com/2020/07/20/are-outbreaks-in-prisons-and-surrounding-counties-correlated/; Hadar Aviram, “CA Prisons as COVID-19 Incubators: Data Analysis,” July 5, 2020, https://www.hadaraviram.com/2020/07/05/ca-prisons-as-covid-19-incubators-data-analysis/.

[55] For more on the question of counting prisoners and its impact on voting, see Tim Henderson, “Counting Prison Inmates Differently Could Shift Political Power to Cities,” Stateline, Pew Center on the States, January 2, 2019, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/01/02/counting-prison-inmates-differently-could-shift-political-power-to-cities.

[56] Megan Dahle for Assembly Facebook Page, post dated June 26, 2020, https://www.facebook.com/voteMeganAD1/posts/843803776144240.

[57] Staff, “Prisons Cooperate with Local Officials in COVID-19 Testing,” Lassen County Times, June 26, 2020,

https://www.lassennews.com/prisons-cooperate-with-local-officials-in-covid-19-testing/?fbclid=IwAR3uWyG1kqltM2qARI29oGUbHdnBlxkv3AGQCupgzdNhMh3tMRtJrSuyDvk.

[58] Prison Town, USA [film]. PBS, 2007; dir. Katie Galloway, Po Hutchins.

[59] Donald Rumsfeld, Department of Defense Briefing, February 12, 2002, quoted in David A. Graham, “Rumsfeld’s Knowns and Unknowns: The Intellectual History of a Quip,” The Atlantic, March 27, 2014, https://www.theatlantic.com/politics/archive/2014/03/rumsfelds-knowns-and-unknowns-the-intellectual-history-of-a-quip/359719/.

[60] Angela Ruggiero, “Record Numbers of Coronavirus Cases Reported at Santa Rita Jail,” San Jose Mercury News, July 16, 2020, https://www.mercurynews.com/2020/07/16/biggest-outbreak-of-coronavirus-reported-at-santa-rita-jail/.

[61] Rich Tarpening, “Coronavirus Cases Increase in Both San Bernardino and Riverside County Jails,” KASQ Channel 3, June 27, 2020, https://kesq.com/news/2020/05/09/coronavirus-cases-increase-in-both-san-bernardino-and-riverside-county-jails/.

[62] Anthony Galaviz, “Positive Tests in Tulare County, Death at Avenal Prison Add to Coronavirus Inmate Toll,” The Fresno Bee, June 27, 2020, at: https://www.fresnobee.com/news/coronavirus/article243850527.html.

[63] See https://law.ucla.edu/academics/centers/criminal-justice-program/ucla-covid-19-behind-bars-data-project.

[64] Letter from Linda Penner, Chair of BSCC, to Sheriffs and Chief Probation Officers, July 15, 2020, https://www.documentcloud.org/documents/6989449-COVID-19-Data-Dashboard-BSCC-7-15-2020.html.

[65] BSCC, “COVID-19 Data Dashboard,” http://www.bscc.ca.gov/covid-19-data-dashboard-landing-page/.

[66] Barnes v. Ahlman, 591 U.S. ___ (2020) (J. Sotomayor, Diss.), 3.

[67] Press Release, “CDCR Announces Additional Actions to Reduce Population and Maximize Space Systemwide to Address COVID-19”, California Department of Corrections and Rehabilitation, July 10, 2020, https://www.cdcr.ca.gov/news/2020/07/10/cdcr-announces-additional-actions-to-reduce-population-and-maximize-space-systemwide-to-address-covid-19/?fbclid=IwAR2RDYnBij0JyG-fIyZTLTwInzvZFeFe27s8FTZn-vZQZwKMHk04-yBLZw8.

[68] Sandra McCoy, Stefano M. Bertozzi, David Sears, Ada Kwan, Catherine Duarte, Drew Cameron, Brie Williams, “Urgent Memo–COVID-19 Outbreak: San Quentin Prison,” AMEND: Changing Correctional Culture and UC Berkeley School of Public Health, June 15, 2020, https://amend.us/wp-content/uploads/2020/06/COVID19-Outbreak-SQ-Prison-6.15.2020.pdf.

[69] California Department of Corrections and Rehabilitation, Weekly Report of Population As of Midnight July 8, 2020, https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/07/Tpop1d200708.pdf.

[70] Margo Schlanger and Sonja Starr, “Four Things Every Prison System Must Do Today,” Slate, March 27, 2000,

https://slate.com/news-and-politics/2020/03/four-steps-prevent-coronavirus-prison-system-catastrophe.html; Sharon Dolovich, “Every Public Official with the Power to Decarcerate Must Exercise That Power Now,” The Appeal, April 20, 2020,  https://theappeal.org/every-public-official-with-the-power-to-decarcerate-must-exercise-that-power-now/.

[71] For a summary of this body of literature see Susan Turner, “Moving California Corrections from an Offense- to Risk-Based System.”

[72] Robert Sampson and John Laub, “Life-Course Desisters? Trajectories of Crime Among Delinquent Boys Followed to Age 70,” Criminology 41 (2003): 555-592.

Caitlin V. M. Cornelius, Christopher J. Lynch, and Ross Gore, “Aging Out of Crime: Exploring the Relationship between Age and Crime with Agent-Based Modeling,” Society for Modeling and Simulation International, 2017.

[73] Aviram, Yesterday’s Monsters, 134.

[74] Heather Harris, et al., “California’s Prison Population.”

[75] See the physicians’ caveat about this regrettable practice in McCoy et al., “Urgent Memo – COVID-19 Outbreak: San Quentin Prison.”

Hadar Aviram is Professor of Law at UC Hastings and a frequent media commentator on politics, criminal justice policy, and civil rights. She is author of Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment (UC Press, 2015) and Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (UC Press, 2020) and her blog, California Correctional Crisis, covers criminal justice policy in California. She served as President of the Western Society of Criminology and on the Board of Trustees of the Law and Society Association, and is currently the Book Review Editor of the Law & Society Review.

Copyright: © 2020 Hadar Aviram. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. See http://creativecommons.org/licenses/by/4.0/

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