Gov. Newsom’s prison-release plan is not enough

Hadar Aviram

Opinion // Open Forum 

San Francisco Chronicle 

July 15, 2020 

Original article: https://www.sfchronicle.com/opinion/openforum/article/Gov-Newsom-s-prison-release-plan-is-not-enough-15408726.php

On Friday, Gov. Gavin Newsom and the California Department of Corrections and Rehabilitation announced a plan to release about 8,000 people from California prisons, which, ravaged by COVID-19, have become a medical catastrophe.

It is encouraging that state officials are finally paying attention to advocates and activists statewide, who for months have been publicly warning authorities that, without decisive action, state prisons could become mass graves. Indeed, if this plan saves even a handful of people from illness and death, that in itself is a big blessing.

Upon closer investigation, however, the plan feels like an effort to navigate the tricky terrain between curbing the pandemic and avoiding public controversy. The basics of the plan are as follows:

• 4,800 of the candidates for release are people who have 180 days left and are not doing time for violence or domestic violence or are registered as sex offenders.

• An undetermined number of people would be released if they have a year left on their sentence and are doing time for a nonviolent, non-sexual crime at one of several prisons identified as pandemic epicenters. Those aged 30 and over are immediately eligible; younger people will be reviewed case by case by CDCR.

• CDCR is offering a 12-week programming credit to everyone not on Death Row or serving life without parole who doesn’t have a serious violation on their record since March 1. “Serious rules violations” range from murder to possession of a cellphone. This category encompasses 108,000 people, of whom 2,100 would advance to the point of being eligible for release this summer.

• CDCR defines people as medically “high risk” if they are over 65 with a chronic medical condition, or with respiratory illnesses. Those of them assessed as low risk for violence who are not on Death Row, serving life without parole, or high-risk sex offenders, will be assessed for release on an individual basis.

• CDCR also will assess for release people in hospice or pregnant, and expedite release for people who have been granted parole (including the governor’s approval).

The problems with the plan are fourfold. First, at a mere 6% of the California prison population, 8,000 releases are far too few. Less than a month ago, a medical report by UCSF and UC Berkeley experts recommended that, because of San Quentin’s age and decrepitude, the population there specifically be reduced to 50% of current capacity. Systemwide, according to the latest population count from last Wednesday, 26 facilities are overcrowded, 19 of them at above 120% of their design capacity. Under these conditions, the planned releases will not be nearly sufficient to guarantee basic social-distancing protocols.

Second, it is far too late to use a case-by-case release approach. The time to carefully go over individual files was in early March; at this point, such review is a luxury, and CDCR will have to consider more categorical releases.

Third, the plan is too timid and reactive.

The list of pandemic-epicenter prisons in the plan is already dated; CDCR’s own data reveals new outbreaks at several places not mentioned in the plan. In addition, because of CDCR’s sluggish testing policy, it is impossible to have a true sense of where, and to what degree, the pandemic is still active. The prisons listed in the news release already have a robust outbreak, and releasing vigorously from there, though helpful in terms of treating people, would not help with prevention.

Most important, the plan is too restrictive. It seems to aim to avoid public controversy by focusing on a familiar target population for reform: those serving time for nonviolent, non-serious, non-sexual offenses. Instead of trimming the edges of the state prison population, the governor and correctional officials should take a decisive stand and address the most obvious population from a public health perspective: aging people serving lengthy sentences. A full fourth of the prison population is aged 50 and older. Because of prison conditions and decades-long incarceration, people age faster in prison than on the outside, and therefore have health problems.

Everything we know about life-course criminology confirms that this population has long ago aged out of crime. In short, these older people pose little risk to public safety, while they themselves face enormous risk of illness and death. The public health calculus is simple — the only complication is public ignorance about so-called “violent offenders,” even in the face of a robust, unshakable body of criminal-justice research showing no correlation between the crime of commitment and the risk to public safety.

The governor and CDCR are to be commended for taking steps to mitigate what is now a full-blown human rights disaster, but their plan is far too timid to make the necessary change. Perhaps its architects hope that, by cobbling together palatable candidates for release, the numbers somehow will add up to sufficient pandemic prevention. They won’t.

Activists should be congratulated for applying the pressure that was needed to bring about this move, but must press on until our elected officials produce a real, evidence-based plan, with the potential to stop the virus in its tracks and save lives.

Hadar Aviram is a professor at the University of California, Hastings College of the Law.