Portside

The COVID pandemic has thrown a harsh light on long-running medical neglect of incarcerated people and exposed the hold that the prison-industrial complex has on California politics. But even as it has done so, it has made openings for activism by and on behalf of the nearly 100,000 people in the state’s prisons, among whom people of color are dramatically overrepresented.

California’s state prisons are once again in the midst of a COVID-19 crisis. In Winter 2020, cumulative infections among the incarcerated population topped 45,000, and cases reached over 10,000 in a single day. One year later, the highly contagious omicron variant swept through all the institutions, with cases topping 6,000 in a single day. No sooner had that outbreak subsided than a new wave of cases hit. Mid-June 2022 saw more than 1,200 new cases in two weeks. In all nearly 77,000 incarcerated people have now been infected and 254 have died.

Throughout the pandemic, health experts have pleaded with corrections departments across the country to take immediate steps to mitigate the spread of the virus. These have included mass releases, and halts on transfers between institutions, as well as vaccinations and basic safety measures such as consistent masking and testing. Those recommendations have largely been ignored or implemented in name only. Moreover, prison officials have made decisions that have not only failed to contain the disease but have actually led to massive outbreaks.

“What happened here at San Quentin—what continues to happen here, right now—is a violation of our humanity,” incarcerated journalist Steve Brooks wrote in the Sacramento Bee. “When I see the prison buses roll in, full of incarcerated people dressed in orange, in each of our eyes is a vision of death. On this two-year anniversary of the worst outbreak in prison history, I can only say, ‘Here we go again.’”

San Quentin disaster

At the end of May 2020 more than 100 people were transferred from the California Institution for Men (CIM) in Chino, which was experiencing a severe outbreak, to San Quentin in Marin County. They hadn’t been tested for COVID for weeks before the transfer occurred. Some told prison staff that they had COVID-like symptoms as they boarded the prison bus, but they were ignored. Even more people became sick on the long drive to San Quentin—but when they arrived, they were put directly into the general population without being tested or quarantined.

Marin County Public Health Officer Dr. Matthew Willis contacted the administration of San Quentin and asked that the transferred population be tested and isolated in order to avoid a major outbreak that would then spread into the county. Instead of addressing Willis’ concerns, the officials forwarded him a letter that had been used by another institution, stating that the county health department had no authority to direct safety measures at a state prison.

Within a few short weeks, COVID had overrun the entire prison. San Quentin had been offered free COVID testing by UC Berkeley, UCSF, and others, but declined all offers until the outbreak was well underway. When all was said and done, nearly two-thirds of the population at San Quentin—more than 2,200 people, including 91 of the people transferred from CIM—tested positive for COVID, and 28 of them died.

“I can still hear the sounds of incarcerated people kicking on cell doors screaming, ‘Let us out!’ I still see visions of people collapsing on the stairwells because they couldn’t breathe. I can hear the alarms buzzing, the shuffling of boots, the jingling of keys and stretchers hitting the floor, the sirens from ambulances carting off residents,” Brooks wrote.

Malignant neglect

Medical neglect and substandard healthcare in the California Department of Corrections and Rehabilitation (CDCR) were matters of great concern long before COVID. By the late 1990s, the situation was so bad that an incarcerated person died a preventable death on average every six days. In 1997, Marciano Plata, who was incarcerated at Calipatria State Prison, sustained serious injuries while working in the kitchen. The lack of attention and treatment by medical staff exacerbated these injuries, and Plata eventually became part of a federal class action lawsuit filed in 2001.

The U.S. District Court found that the severely inadequate medical care in CDCR violated the 8th Amendment as it pertains to cruel and unusual punishment and ordered injunctive relief in the form of mandating minimally acceptable healthcare in CDCR. In 2005, however, an evidentiary hearing determined that CDCR was not abiding by this ruling, and medical care within the prisons was placed in receivership.

The state’s attempts to appeal this decision failed, and in 2009, a three-judge panel ordered that CDCR reduce its population from 200% to no more than 137.5%. Even though CDCR eventually reached that target, they still held one-third more people than they were built for, and some individual prisons were operating at as much as 150% capacity.

Advocacy and activism

The Plata lawsuit is part of a long history of legal, legislative, and policy advocacy, along with demonstrations and other forms of direct action on behalf of California’s incarcerated population. The COVID pandemic has significantly changed the landscape of these efforts, and at the very beginning of the crisis the level of activism spiked considerably. In Summer 2020 alone, activists from We Are Their Voices and other groups protested at the homes of Governor Newsom and former CDCR Secretary Ralph Diaz, as well as at all of the state’s prisons.

In October, other activists welcomed the new CDCR Secretary, Kathleen Allison, with a rally at the department’s headquarters. Then in December, after seeing no efforts to improve the department or bring COVID under control in the prisons, We Are Their Voices took their message to Allison’s home. The pandemic has also spurred responses from groups who were already working on legislative and policy-driven approaches to decarceration. 

“Organizers are moving towards ambitious legislation and campaigns to get people out of prison en masse,” said Woods Ervin, communications director at Critical Resistance and member of Californians United for a Responsible Budget (CURB). “Because of how we’ve already been committed to doing this work, but COVID and the aftermath demonstrated the ways in which when there is an opening, large gains can be made relatively rapidly.”

The system responds

The California State Senate held an oversight hearing in July 2020, and scolded CDCR for causing the outbreak at San Quentin. In November 2020, the Senate Public Safety Committee and the Senate Special Committee on Pandemic Response held a joint oversight hearing, at which legislators again demanded answers from CDCR for its many failures to properly handle the pandemic.

When the San Quentin COVID outbreak began, about 300 incarcerated people began filing writs of habeas corpus to the Marin County Superior Court. One petition that was denied was that of Ivan Von Staich, a 64-year-old at high risk for COVID complications. Von Staich appealed. After hearing his appeal, the court ruled on Oct. 21, 2020 that prison officials had been deliberately indifferent to the suffering of the incarcerated population of San Quentin and ordered the prison to cut its population by at least half.

The court gave CDCR the option to accomplish this through either releases or transfers to other institutions. CDCR opted for the latter, forcibly transferring over 300 people from San Quentin to institutions that were experiencing their own COVID outbreaks. Those who refused the transfers were coerced into signing a document releasing CDCR from liability for their injuries or deaths if they stayed at San Quentin and became infected with COVID.

At the beginning of July 2020, Gov. Gavin Newsom’s administration announced a plan to release about 8,000 people statewide (a mere 7% of the nearly 105,000 people incarcerated at the time).  This plan was reported on extensively in the media and strongly touted by CDCR officials. To the casual onlooker, it sounded like a lot of people. In actuality, it was all optics.

“Most of the people included in the release plan were within six to 12 months of their release date anyway,” said Dr. Hadar Aviram, UC Hastings Law professor and author of Yesterday’s Monsters (University of California Press, 2020) and co-author of FESTER: Carceral Permeability and the California COVID-19 Prison Crisis (forthcoming from UC Press).

Ultimately, about 7500 people were released under the plan. But as soon as intakes from county jails (which have been intermittently suspended throughout the pandemic) resumed, the prison population began to rise once again and now stands at over 97,000.

Since vaccines became available, many advocates and health experts have pushed for vaccinations of both incarcerated people and prison staff as one of the most effective means of stopping the spread of COVID behind prison walls. In August 2021, the California Department of Public Health ordered that all prison staff who work in healthcare settings be vaccinated.

This order applies to nearly all staff at the California Medical Facility (CMF) and the California Healthcare Facility (CHCF), as well as the skilled nursing facility at the Central California Women’s Facility (CCWF) and staff who work in healthcare settings at all other institutions. In late September, Judge Jon S. Tigar, who presides over the Plata vs. Newsom lawsuit, ordered all prison staff in CDCR, along with incarcerated people who wish to have in-person visits or work outside prisons, to get vaccinated or obtain an approved religious or medical exemption.

Every step towards protecting the health of those incarcerated in California’s prisons has met pushback, delay and obstruction—a testimony to the political influence of CDCR, and especially the prison guards’ union.

Prison guards’ outsize political power

The California Correctional Peace Officers Association (CCPOA)—the prison guards’ union—is a political heavyweight in California, with more than $30 million in political contributions over the last five years alone. Last summer, Gov. Newsom gave CCPOA COVID bonuses that amounted to $137 million in state funds just a month after CCPOA donated $1 million to the campaign against the effort to recall him.

When Newsom started handing down vaccine mandates for healthcare workers, school employees, and students, CCPOA got a pass. The governor did institute a mandate for state employees, but it contained an alternative that allowed them to test twice weekly instead. The CCPOA, whose members have refused en masse to get vaccinated, immediately began fighting Judge Tigar’s order. Gov. Newsom backed them up by filing an appeal challenging the order.

On Nov. 27, the 9th Circuit Court of Appeals temporarily blocked the order, pending an appeal that began in March of this year. The appeals court decided in favor of CCPOA, and the mandate was blocked. CCPOA also filed for an injunction against the state health department’s order. It was denied, but the court proceedings caused a delay in implementation of the order and an extension of the deadline for compliance.

Demonstration on Aug. 30, 2020 demanding mass releases of incarcerated people due to high COVID rates. Photo courtesy of No Justice Under Capitalism (NJUC).

Judges are not exempt

Deference to the CDCR extends beyond the governor’s office through his administration to the courts. CDCR appealed the San Quentin ruling to the California Supreme Court. In late December 2020, the Supreme Court delayed the ruling and ordered the appeals court to consider having an evidentiary hearing to further examine the issues.

In addition, the Attorney General’s office continued to do everything in its power to undermine the legal process, playing what Dr. Aviram called “jurisdictional Whack-a-Mole.” Whether at the Superior Court, Appeals Court, or federal court “they’re saying this is not the right forum for this litigation, and the judges are politely listening,” she said.

The November 2021 ruling from the appeals court provided no justice for the San Quentin population. While Judge Geoffrey Howard maintained the finding of deliberate indifference on the part of CDCR, he failed to order any relief measures, claiming that the dangers to the population had been mitigated by the availability of vaccines and the prevalence of vaccination at San Quentin.

In a further slap in the face to the San Quentin population, State Attorney General Rob Bonta filed an appeal in January 2022 on behalf of the state, disputing the finding of deliberate indifference on the part of CDCR. Bonta, who spoke out publicly against the cruel conditions at San Quentin as member of the State Assembly, is now aiding the state in its attempt to wipe the slate clean. On January 22, however, a San Francisco federal district court denied CDCR’s request for qualified immunity in the first of several civil rights lawsuits against San Quentin that will now go forward.

At the beginning of the pandemic, Judge Tigar pleaded with CDCR and Newsom to grant mass releases. As time went on, however, and it became clearer and clearer that the standard of deliberate indifference had been more than met, Tigar refused to take any substantive action. His approach at every Plata hearing has been to try and gently persuade and cajole CDCR and CCPOA to take the necessary steps to protect the dignity and safety of those in their charge. He has insisted on waiting for all the parties involved to come to a mutual agreement. At hearing after hearing, he has refused to issue orders that could save lives, though he has admitted that there are actions that are within his power to take.

Taking advantage

This deference from the courts and the state has given CDCR license to sidestep accountability for safety measures in its prisons with no fear of consequences. This is evident in prison staff’s refusal to comply with testing, masking, and vaccination requirements and the administration’s failure to enforce these requirements with the prescribed disciplinary measures, or to even keep current data about compliance and enforcement.

Staff compliance rates on testing protocols were below 60% at some prisons, including CMF, CHCF, and San Quentin, attorneys for the incarcerated population revealed in a Feb. 14,2022 case management statement for the Plata litigation. California Correctional Healthcare Services (CCHCS), the office responsible for overseeing healthcare within CDCR, has made recommendations to bring improvements and accountability to the process, but CDCR has refused to implement them in a timely or efficient manner.

There is a similar disregard for mask mandates among prison staff. According to a report by the Office of the Inspector General, staff routinely refused to wear face coverings, and prison administrators did not take any adverse action against them because “these were adults”. Guards even feel secure enough to admit to reporters, albeit anonymously, that mask mandates are flagrantly ignored at their workplaces. “Most officers hate wearing them,” a guard at the California Rehabilitation Center (CRC) told CalMatters. “Most don’t wear them correctly, or if they do, it’s only around the administration.”

Similarly, while prison guards still resist vaccination in large numbers and remain only 73% fully vaccinated and 41% boosted, even those employees who are subject to the public health order are still not being held accountable for their vaccination statuses. According to CDCR, 100% of Division of Adult Institution (DAI) staff at CMF were compliant with the order as of January of this year, but that number included 108 staff who had pending or granted medical or religious exemptions. 

As of January 2022, 877 employees systemwide had a pending or approved religious exemption. More than 150 of those were at CHCF, whose staff have had the most COVID infections out of any prison during the entire pandemic. While staff who are granted religious or medical exemptions are free to go about their jobs with no repercussions or limitations, incarcerated people who obtain these same accommodations are still barred from in-person visitation. (This despite the fact that vaccination rates among California’s incarcerated population far outstrip both those of prison staff and the rest of California’s population. The incarcerated are fully vaccinated at a rate of 81%, while the rest of the state is only 71% vaccinated.)

Incarcerated people pay the price

Since the beginning of the pandemic, incarcerated people and their loved ones have suffered the consequences of the state’s negligence. During the first wave, in-person visits were suspended for over a year, and rehabilitative programming was almost completely shut down. During the Winter 2021 Omicron wave, the entire prison system was on lockdown again for five weeks. Advocates also report many of the same safety violations and human rights abuses that ran rampant during the first wave of outbreaks.

“There are folks that I’m talking to who have been sent to the hole for quarantining, and you have so many of the same issues that are happening that led to outbreaks–including transfers, including CO’s working in one area of the prison that’s quarantined because there are positive cases and then working an overtime shift in another area that’s supposedly not on quarantine because they don’t have any cases,” said Isa Borgeson, outside fellow with the Ella Baker Center for Human Rights and  coordinator with the #StopSanQuentinOutbreak Coalition.

“It’s really just a very disgusting reality of what folks are going through. We’ve talked about how putting someone in solitary confinement when they’re sick with COVID is not acceptable, and yet it’s still happening over again.” In addition, incarcerated people have had little access to showers and recreation, food portions are even smaller and less nutritious than they were before, and thousands of cancer screenings and chronic and critical healthcare appointments have been delayed by staff shortages.

Weary activists persist

The ramifications of COVID in CDCR and the long fight to hold them accountable are also being felt by activists and loved ones on the outside. “I think people are falling apart because they’ve been on for so long,” said Hadar Aviram. who was in attendance at the last #StopSanQuentinOutbreak Coalition meeting in early January 2022. “People are beat,” she added. “People were sobbing on the last meeting. People were venting, and it was hard to see.”

Trying to balance the increased stress and workload associated with these heightened risks with the continued decline in mental and emotional energy is a very difficult process for many activists. But groups like CURB and Critical Resistance, who are working on policy and legislative advocacy, are looking for people to get involved.

“There is so much work to do, and we always welcome new folks to do it,” said Ervin. “Even though the landscape is complicated, folks are fighting. There is a lot of really good work in motion, and it’s just a matter of plugging people in to the work that resonates most deeply with them.”

With the state and the courts stonewalling most of the attempts at justice and relief for the incarcerated, one of the last hopes in the legal arena may be an aggressive campaign around federal Section 1983 lawsuits. These suits are used to challenge unconstitutional conditions within prisons. This type of lawsuit is what CDCR fears the most and would make a significant impact if filed en masse.

Dramatic direct action, with its potential to attract media, also has a roll to play. “Why can’t we occupy the prison grounds?” said Judy Greenspan, longtime prison abolitionist and writer for Workers World. “Why can’t we have a protest, and we say we’re going to stay here, and we’re going to pitch tents, and we’re going to stay here until you bargain fairly with people inside or until you bargain fairly with the community that wants better conditions for the people inside?”

Inside-outside strategy

Persistent and aggressive organizing by advocates on the outside could be reflected by those on the inside, who are closest to the issues and ultimately have the best knowledge and insight into their own needs. “I think if we stepped up the organizing on the outside, that would inspire the people inside,” said Greenspan. “And the movement on the outside would definitely benefit from an uptick in the overall progressive movement.”

So many groups, from those fighting for racial justice, disability rights, and LGBT+ equality to those advocating for environmental and economic justice, are already fighting for many of the same things incarcerated people and their loved ones are trying to achieve. Yet there remains a lack of awareness among many in those groups of the ways in which their members and their issues are disproportionately impacted and exacerbated by the prison industrial complex.

“I really do think that this movement has to link up with a broader fightback,” said Greenspan. “The COVID pandemic gives us that opportunity because there’s so many people in motion right now on COVID… There’s so many things happening that I think we have to link up with that broader human rights movement and bring the issues of the people inside.”

The COVID pandemic has not only raised the stakes but also exposed the malignant neglect of incarcerated people’s health in ways that no other crisis has ever done. There may never be another chance like this to elevate and fight for the rights of the incarcerated population.

“If we manage to mount again the kind of campaign that we had in summer 2020, that might be helpful,” said Aviram. “And more pressure in the public arena, more op eds, more making people aware of this. Whatever we can do to make people aware. More studies that we can get out about how if people in prison get sick, then you and yours also get sick because of the way the virus is transmitted in and out of facilities.”

If the fires of activism from the beginning of this crisis were relit and pressure reapplied in multiple, consistent, and innovative ways, there is still a chance to stop the state-sponsored violence against incarcerated human beings and secure justice for those whose lives have been lost and forever altered by years of abuse and oppression.

Olivia Campbell lives in Sacramento. She is passionate about journalism, legal research, and legislative advocacy. She uses her skills in these areas to help her in her life's mission to abolish California's prisons.

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