00:03 MX

So hi, I'm just gonna start off with introducing myself and then I'll have you introduce yourself as well. I'm Marena, I am a second year law student at UCLA. I'm in the Public Interest Law and Policy Program. And also volunteering with the COVID Behind Bars Project. I am very interested in both criminal justice reform and prisoners’ rights. In my undergrad, I worked in a men's prison in Michigan, facilitating Creative Writing workshops for three semesters. And now, this past summer, I worked with the Alternate Public Defender in Compton. And I'll be working with the Los Angeles Public Defender this coming up summer so that you know a little bit about me. And then I'd love for you to give just give like a brief professional biography about yourself.

01:00 MB

Sure, I graduated law school from Northwestern, in 1980. And I came to California to work in a large commercial firm, Brobeck Phleger & Harrison, that does mostly corporate commercial complex litigation. I had some interest in civil rights in law school, but didn't really see any good opportunities, and really wanted to come to California. And at the law firm in San Francisco, I did get an opportunity to do some pro bono litigation, including litigation on behalf of a prisoner who had done his own complaint contending that he had been involuntarily medicated and hospitalized against his will, for psychiatric symptoms, and mistreated. The court appointed my law firm and me to represent him and as it turned out, his allegations were quite well founded. And I got deeply into, you know, prisoners’ rights issues. I was interested in the issue of law and psychiatry, I had done some work on that in law school, so this case really raised those issues of involuntary medication and the right to refuse and, but then, as I got into it, I saw that there was also just tremendous issues of the lack of care and abuse of people with serious mental illness in the case. My firm was very supportive and I managed to also connect up with a prisoners’ rights community in the Bay Area to get some assistance on my case. And we ended up with an injunction and changes in the regulations governing involuntary medication and involuntary psychiatric care for prisoners, but I really caught the bug.

We also got a fee award, having won the case. And in that era, there was no Prison Litigation Reform Act, so the fee award was, was pretty serious, market rate, and substantial. My law firm was very conservative and said we don't accept money for pro bono cases. And I said, this is part of the federal civil rights statute to incentivize attorneys to take on civil rights cases, to incentivize defendants to comply with their constitutional duties and to incentivize attorneys representing the state to give good advice and to litigate efficiently. I convinced them to accept the award and added that I would come back and ask for the money for another prisoner civil rights case, which I did.

Soon thereafter, I was approached by the Prison Law Office, which was putting together a coalition of firms to file a case, a comprehensive class action about another prison. My first case involved San Quentin, on behalf of an individual. The case the PLO wanted to bring was a class action targeting CMF, the California Medical Facility at Vacaville. And I convinced the firm-- I think the fee award helped, I convinced the firm to take on responsibility for the class issues involving mental health care. And another firm did medical care and another firm did corrections issues. At that point, HIV was really-- the AIDS crisis was really affecting all parts of society, and was especially bad in prisons. And the policy in the prison was to segregate anyone who was HIV positive, whether or not they had full blown AIDS or any symptoms from everyone else, and not allow any kind of programming or activity, it's basically locked in a unit with people around them dying of AIDS, knowing that they had the same virus with no treatments available.

We added into the case, a claim on behalf of the subclass of incarcerated people who were HIV positive under the Rehab Act, this is several years before the ADA was enacted. And this is one of the first Rehab Act claims in a prison setting. We went to trial after years of litigation—pre-trial discovery, and then it settled during the trail. We entered into a comprehensive consent decree in that case, it's called Gates v. Deukmejian. And it resulted in a multi-year remedial process. And there's lots of, you'll see lots of reported Ninth Circuit decisions in that case.

And from there, we formed another group of firms to do the first statewide case. Before that the model that the Prison Law Office was using was prison by prison cases, sometimes a couple of prisons at a time. But the new model would be to look at a single issue, but on a statewide basis. What we saw in the Gates litigation was that a lot of our clients were receiving good mental health care at CMF, based on the remedy that we had obtained in Gates, but then they were transferred away they received very little mental health care at other prisons. And so we filed a new the new case statewide, Coleman. And Coleman continues today. And that was on behalf of all prisoners with serious mental illness in the system. And that also resulted in years of discovery. It went to trial in 1993 and we got to judgment in 1995. And we're still working on getting the fix done.

So following that model, which was seemed successful, other statewide cases were filed.

During the early stages of the Coleman case, in 1990 , I left Brobeck, where I had been made a partner, and formed a small firm with Sanford Jay Rosen and Andrea Asaro, called Rosen Bien & Asaro. I met Sandy because he was one of the plaintiff lawyers in the Gates litigation.

09:21 MX

And was that the predecessor to your current firm now?

09:24 MB

Yes and at that point, you know, one of the things we we're going to do was prison work, class actions, and we've been able to continue to do that, devote our resources to that. My partner had been involved one of the earliest prison class action cases in California called Toussaint, as part of a coalition with also the Prison Law Office and some other private firms dealing with segregation and segregation policies. So he had experience with with prison litigation and is a nationally prominent civil rights lawyer.

And so after Coleman, we filed Armstrong v. Davis, which was a statewide case—which still continues today on behalf of people with disabilities under the ADA and Rehab Act. The PLO has also brought statewide cases with other firms, the Plata case is medical care, Clark is on behalf of people with intellectual disabilities. And we also did another statewide case called Valdivia, which was on behalf of all California parolees, challenging parole revocation procedures. And then we did a case that we internally called “baby Valdivia”, which challenged juvenile parole revocation procedures. Both those cases, Valdivia and LH are now resolved, through realignment, which took away parole revocation procedures from the Department of Corrections and put it into the Superior Courts.

In 2007, our firm and the PLO moved in Coleman and Plata, to establish a three-judge court and seek a population reduction order due to severe overcrowding in California’s prisons. After years of litigation and trial, the remedy of population reduction was affirmed by the US Supreme Court in May 2011. The there-judge court continues to govern overcrowding in California prisons today.

Criminal justice reform litigation has been a major part of our of our practice and continues to be. ,We have also branched into jail litigation. We have been involved in both individual damage cases in jails and also class actions for medical care, mental health care, dental, everything, segregation in jails. , We have cases currently in Yuba, Monterey, Orange County, San Diego, Alameda, and Santa Clara, and we've also done damage cases in some other counties.

And we have also done some litigation, other kinds of criminal justice litigation, including on behalf of the Prison Legal News [PLN], which is a publisher, that gets censored from a lot of prison and jail systems. And we've also done litigation on behalf of Hawaiian prisoners against private for profit prison providers. We also brought a case against the Nebraska prison system. So criminal justice reform litigation is a big part of who we are. And for me, it has been a highlight of my career. Certainly going to Supreme Court, in the Coleman Plata case was a moment I will always remember. Actually achieving a population reduction remedy was extremely important. And it was that population reduction remedy we turned to when the COVID pandemic hit in 2020.

13:48 MX

Let me stop you just before we transition into the COVID, thank you so much for that really rich history, you've been, you know, on the front lines, clearly of prison litigation for a very long time before it's become even something like in a lot of practitioner and criminal justice reform people's minds. So the purpose of this conversation I have to read, disclaimer, disclaimer statement, and then I'll tell you a little bit about what we're hoping to gain from speaking with you today.

So, our conversation is not legally privileged and we will not keep what you say confidential. We plan to make transcripts and recordings of our interviews available for use by future researchers and the general public and portions may be posted online or discussed in posts on our website or other published writing. I want our conversation to flow freely. And I realized that you may discuss a sensitive topic or mention a piece of information that you later realize you would like withheld. And if you request it or at the end of the interview or later on after future reflection, we're happy for you to review the transcript and redact any portions you deem necessary from the transcript and the recording. So, the key things that I would really love you to touch on today would be the lived experiences of incarcerated people during the COVID pandemic, and when COVID hit prisons and jails, the response or lack thereof by legal and political systems, and then the personal experiences of people like yourself, practitioners, trying to deal with the legal system in a moment of crisis and also to coping with secondary trauma. And then the functioning of the legal system during this time, the mechanisms by which the law answered or failed to answer the demands for intervention by judges and government officials. But besides that, I'm really gonna leave it open to you, we'd really love to hear about how you pivoted when COVID hit and how that changed your practice and your strategy and what happened.

16:15 MB

I'm thinking back to that time period, I think in February, March of 2020. We all we're becoming more aware of COVID without a great understanding, and I think, in talking about what happened, and looking back, I think we all have to remember how ignorant most of us were of how serious an epidemic this would be. And, and, you know, whether it was intentional or negligent, or maybe they too are surprised, you know, the, the lack of communication from at least that I, we all heard from public health officials and the government, and even scientists giving out strange information. Obviously, some of that turned out to be intentional misrepresentation as President Trump has said in some interviews that he did not want to scare people. But, you know, I think we have to put that somewhat in context.

On the other hand, we and I mean, I mean, you know, my office personally, and the Prison Law Office rapidly focused on the fact that this was going to be a disaster in the California prison system. And we had already been focusing on the fact that the prison system had managed to achieve compliance with the 137.5% capacity set by the Supreme Court in Plata, and that opinion, came down in March of 2011. At that point, California, had begun slowly to, they'd already begun a little bit of reduction from their maximum, they were approaching, you know, I think 170, 180%, 200% in some prisons of capacity. To get down to 137.5%, it took quite a few years. But, but by the point of the pandemic in 2020, I think they had been in compliance with that level for several years.

And the court, the three judge court, which is jointly a court of the Plata and Coleman cases. And that's the court responsible for the population remedy under the Prison Litigation Reform Act, the three judge Court that said that, just because you're under the cap does not end our jurisdiction, we need to see a durable and sustainable remedy. In other words, we need to see that you have in place population reduction measures that are sufficient to, to keep population in place for, you know, a sustainable period. They didn’t establish the period. We also were seeing a big problem with the remedy, which was, which is that the Coleman class, people who have serious mental illness, had not benefited from population reduction, so that the population of the prison system was more crowded with the seriously mentally ill than it was before. The absolute number of people with serious mental illness at that point, had not changed or had gone up. And their acuity had gone up, meaning that there were more people needing higher levels of care, people were sicker. And that also was causing a deadly cycle of shortages of staff, shortages of beds, delays, very similar to what we had seen leading up to the going to the Supreme Court. We had already raised this with the Coleman court. And with defendants and were talking about, if necessary, going back to the three judge court, for a population reduction remedy, focused on the Coleman class, something that we still may have to do in the future unless, unless this problem is addressed. I won't go into details about any of that because it's sort of a sideshow. But my point was that we were already focused on can we go back to three judge court and get more. And we'd also said to defendants, just because you've met 137.5, doesn't mean that it's constitutional. If you're still not able to deliver appropriate medical and mental health care, and still crowded, you're still well over 100%, which is what the prisons were designed to have, we still may need more adjustments. And so. So now jumping ahead, when we saw and started reading about COVID and that the only response to COVID, since there was no vaccine, and no treatment, would be social distancing, hand washing, and cleanliness,

23:00 MX

Which of course, is impossible in a prison.

23:03 MB

Right. And masks, which, by the way, was ambiguous at that point, you remember, if you can recall, there was, whether it was intentionally or otherwise, the original information did not emphasize mask wearing, it wasn't necessarily airborne. And apparently, that turned out to be an intentional deception, even by the World Health Organization to preserve masks, which were in short supply. But in any event, we suspected that, you know, that airborne was also a problem. And of course, at that point, we all thought that surfaces was a big problem and we had a lot of current information about how crowded and dirty our prisons were. Again, through our cases, through the active cases at that point, which were Coleman, Plata, and Armstrong, we were doing tours of prisons, we had photos of prisons, interiors, we were in good touch with our clients, we had access to medical records--

24:18 MX

So we had that foundation already-- that data already for the foundation of the …

24:24 MB

Exactly. And we also because we had been thinking about what was necessary to go to the three judge court, we had thought about, you know, can we move to amend the existing three judge court orders to achieve additional remedies and, and how should how should that be done? It wasn't something we started from scratch. We'd already been working on that for the Coleman class. And we literally had a draft of that ready that we were threatening Defendants with at that point. So we decided, and this again, this is at a point and looking back strategically, perhaps we moved too early. I don't know. I, it's very hard to second guess what we did then. We correctly anticipate-- you look back at the papers we filed in March of 2020. We moved in Coleman before the three judge court for a population reduction order, to bring the population to a level where the prison population will be able to socially distance and being as safe as everyone else in society. And if you remember, at this point, even President Trump had declared a state of emergency. Governor Newsom had declared a state of emergency: we were in lockdown. Okay. And yet, our clients could not comply. So we felt that there would be again, I think at that point, none of us realized quite how bad this is going to be. I don't know we should have because Italy had already had, you know, tremendous outbreaks and deaths, for example. But, you know, the course of prior coronaviruses, and things had not been that extensive and not been that hard to stamp out. So--

26:57 MX

It is pretty remarkable. In my job this summer, I was listening to some jail calls. And they were from that time, the March 2020. And you hear the men inside the jail saying like, what is what's this Coronavirus? Like, everyone's talking about this, but I haven't seen anything like and they're talking to their family or their girlfriends outside. And then, but interestingly, actually, the men inside the prison, were telling their girlfriends like, this is real, you need to go get water, do you have all your supplies? And the people on the outside are saying, what are you talking about? Like everyone's being normal? This is fine. So it's very interesting to like, listen back to that crucial time period.

27:40 MB

Yeah, it's hard to imagine. Um, you know, we all thought, by the way, you know, and I think that if you go back and look at the statements, that it was only going to be for a couple of weeks, and then it was going to be gone. You know, and when I remember that, I think the LA mayor might have said, you know, might be to the end of the summer and people were like, oh my god, you can't, it can't be, that's crazy, we can never be locked into the end of the summer. You know, and we had no sense whatsoever of the scope of it. But when I say, did we go too early or not? I don't think we had any choice. We hired experts. And they, you know, it wasn't that hard to, you know, the justification for the state of emergency. The public health data at that point was pretty good. The science was pretty good. Whether it was going to kill, you know, a few people or a lot of people we didn't really know, no one really predicted quite how bad it was going to be. But it was certainly enough we felt for the claim we were making. You know, you are leaving people in crowded, dirty conditions. And also, I think this was the most important point, there is a population in the prison system that is medically vulnerable, aged, medically vulnerable, that everyone agrees are the people who are going to be most likely to be affected by COVID-19. Do something for them. And of course our briefs and photos focused on dorms filled with people on oxygen and using wheelchairs. And I mean, these people are there. These are the people who did suffer and die at a much higher rate. And, you know, I, it's horrible to say that we told you so. But we told them so, you know, I don't think that when I say, did we do it too early? No one had yet died yet in the prisons.

30:34 MX

So you mean had we waited until judges and the public really saw how bad it was and they would take the claims more legitimately?

30:45 MB

I don't know, you know, it's, it's hard to second guess. On the other hand, the terrible outbreaks at CIM and then at San Quentin happened pretty soon thereafter, you know, within a month or so. And that would almost been too late. I mean, so, you know, it's one of these things where, where, you know, you need dramatic, powerful facts to, to make an Eighth Amendment claim. And it's very hard to make a claim, you know, about what may happen, even though the law is supposed to apply to that, you know. You know, cases such as Helling v. McKinney on secondhand smoke, you can say it's a claim, you know, it increases your rate of your likelihood of getting cancer, not a very dramatic claim. Here, you know, we got one of the three-judge court to go our way and not the other two, I won't go into the discussion of the of the three judge court decision denying our motion, but there are a lot of things I think that--

32:11 MX

Just to be clear, when you brought that claim to the three judge panel when COVID hit in anticipation, they completely rejected they said, No, we're not going to even reduced to the minimum of socially, like distancing?

32:33 MB

Well, they didn't. They held that, well first of all it was a two to one, so there was some support there. But there are a whole lot of-- they didn't really deal with the merits of the claim. But they held, you know, I guess was that we can't amend the existing three judge court order in the way you're trying to, because COVID is so different than anything that's happened before. We pointed out that we had put on evidence in the original three-judge court trial, and it existed in the opinion of the three judge court, you know, back in 2008, when they published their opinion, and in the Supreme Court decision in 2011, you can see about infectious diseases, and, and outbreaks and lack of cleanliness that was discussed then. And so we were we argued that, wait, this is part of this is part of that decision. But it was very easy for the court, and I think makes some sense, Well, COVID is so different, no one anticipated something like this. We didn't really think that mattered, you know, you don't have to anticipate each particular disease to have, you know, jurisdiction over it. But anyway, you know, what the three court actually said was, you can't use the procedural mechanism that you're trying to use to get us to order this. You can go back to each individual court and, and show that there's a constitutional violation, that that's not being addressed.

But I want to remind you, as the PLRA says about population reduction, it limits the power for federal court to give a population remedy and here under COVID, that limitation was deadly, not only in our case, but in case after case around the country. That limitation of the PLRA caused multiple lives to be lost, probably hundreds or 1000s of lives to be lost because that is the only remedy that that was going to save lives under the circumstances. It wasn't a matter of bringing in more doctors or more soap, or even masks, you know, it just doesn't work with that level of crowding. And so we did shift a little bit and try to offer the court you know, a sideways “What if you transfer people to a new facility that's outside the existing prison system, but don't grant them freedom.” And so that could be be ankle monitors, some courts have gone with that. But I we even suggested in our briefing empty army bases, empty state hospitals, empty private prisons. I hate private prisons, but I want to save lives. So why not you know, rent this empty space, not release people to freedom, move to reduce density, and start with the medically vulnerable? Move them to safety, move them to, you know-- and I said, this isn't a trick to do decarceration, this is about saving lives now.

I think some people wanted this as the, you know, let's, solve all prison problems forever, and decarcerate the prisons. And I mean, that'd be nice. But, but you know, the PLRA does not permit that. But also, there's no way the federal judges, especially by 2020, we had a lot of Trump judges in place in the, you know, both in the Supreme Court and the appellate courts.

So you have a combination of a very restrictive statute, the PLRA and a much more conservative judiciary, not that the judiciary was so great for prisoners, even before that, it wasn't. But it really limited what we were able to do.

37:53 MX

I want to just circle back to a point that I'm hearing you make in this portion of our discussion. And I want you to address, you know, in this situation, we are facing an unprecedented pandemic. Time, of course, is of the essence. So when the panel comes back to you and says, Oh, well, you can go to every single individual court, or that is not going to give you the opportunity to save lives now in this crucial time period. So what would you say? I mean, I'm definitely hearing what you're saying about the limitations of the PLRA. In this instance, should judges have said, well, this is a situation where we are really going to use our discretion, and we're not going to follow to the tee? Or is there a loophole like in the PLRA for like, extraordinary circumstance, like, it really feels like this was the legal system faced with a chance in that crucial time to make changes, and they failed to do so for like procedural reasons.

39:16 MX

I think there was I mean, my personal opinion about this was, you know, there were judges around the country, some judges did order relief, including releases from prisons and jails. In our case, while it wasn't ordered directly, the courts-- filing our motion did result in a tremendous drop in California's population. And so I don't want to minimize that. We didn't get the order from the court, but they used the court as a bully pulpit, and in in defendant’s opposition to our motion. And in subsequent weeks and months in response to pressure from us and the court, various population reduction measures were instituted in California, resulting in a, you know, a large reduction. And, you know, and some density reduction, you know, they did have a program of reducing the density of dorms you know, we feel like it was not anywhere near sufficient. And we said so at the time, but it did result in a population reduction where, and that happened in other states and county jails and other situations too. I do think that there were ways of courts issuing these orders under the PLRA. To my knowledge, just so you know, all those orders were reversed on appeal, the ones that did get issued. And, you know, I think the ones that survived, involved immigration detention facilities where the PLRA didn't apply, and, and then some individual habeas rulings, obviously, people were let out.

I do think there is room, I think that we provided a roadmap where the courts could have issued orders under the PLRA that comply with the PLRA in this circumstance. One thing is that they deferred to the federal public health officials, the guidances, and the Center for Disease Control issued guidance to Correctional Institutes, prisons and jails, that is mush. It had no substance, you know, it left open, you know, tremendous, tremendous flexibility. And, you know, courts are able to say, you know, using CDC guidelines, almost anything a jail or prison did was enough, because it always said, if possible, mask, if possible, you know, reduce density, if possible, you know, do these things, but we know, you can't really do it. And, and so that was a big, again, I'm trying to think of all the factors that hurt. That was one.

Ironically, another factor that hurt our abilities was the fact that society in general, did such a poor job. The information was changed so if you if you try to hold the prison or jail accountable based on something, they can always say, Look, we tried to do X, but then they changed it to Y, you know, which was happening somewhat. I think that was also, you see in the three judge court opinion and a lot of decisions that were issued an embrace of defendants’ strategy of making a long list of all the things they did, and then saying, look at all the things they did, how could they be deliberately indifferent? You know, they, that look, they canceled visiting. Wonderful, they, they canceled all activities. They, you know --

44:28 MX

Which all double edged swords, of course.

44:31 MB

Yes, I mean, they, they did all these things. You know, they distributed some masks, eventually. They, you know, they gave out soap. So, you know, they put up signs, it said, you know, don't breathe, you know, I don't know what. [laughs] So there's these long lists of things. And they said, you know, obviously they did all these things. They can't be deliberately indifferent, and our argument was if there's one thing that they know that they have to do that's actually going to be effective and are not doing it, they could still be deliberately indifferent. And, and so that's one thing we ran up to.

The other thing, though, of course, is even before the PLRA, having a federal court order a state prison system or jail to release people is not easy. And it shouldn't be easy, right? I mean, if you think about it, you know, this person has been convicted of this serious crime, he's gone through all these appeals. And lost, and you're asking me to release him because there's some virus in the air and he's supposed to be released? Where's he gonna go? What's gonna happen? What's the plan? You know, how is that safe? And so that the, the difficulty of that remedy, politically, and otherwise, and I think legitimately, I think that, you know, even before the PLRA, that would be an extraordinary remedy. Yes, there were population caps, and population reduction orders in the past. But they were limited you know, and, and very careful. No one said, you know, empty this prison today. They would say, you know, over this long period of time, you know, must reduce your population.

And, and I think one thing that, that made it difficult for us was, again, we thought it was going to be short and sweet, but horrible, you know, short and horrible, and, you know, that we didn't have time for a long, gradual remedy. So then what we're really asking for? And, you know, and we, we dodged that a little bit in our papers. We didn't ask for a specific number or nor do we put out a plan, we said, reduce the population to a sufficient level where people can socially distance just like other citizens. What does that mean? Where are they going to go? You know, and, and, by the way, at the same point, and this was part of the defense that was raised. At the same point, all the social service agencies were shut down. All the reentry agencies were shut down. You know, our clients who did get out, they couldn't get an ID from DMV, because it was shut down. And DMV said, you know, you can do it online. They didn't have computers so that plan didn't work for parolees.

47:48 MX

They don’t know how to use the internet. They don't--

47:50 MB

Yeah. So is that dangerous for society? Yes. Is it dangerous for people getting out? Yes. And we had to argue, and we had, you know, we had internal debates, too. Is this Is it better for our clients to be released to the street? And I didn't have a doubt about that. Yes, it's better to be released the street, At least you have a chance to live than to be in a crowded prison, you know. But, um, it's not an easy call. So I think that this is an example of where, you know, I think, you know, I think as we look at look back, and I'm glad your project is doing this, the level of crowding, and the inadequacy of the services inside of prisons, you know, became evident. You know, during COVID. San Quentin ran out of food, and they had no way of making food you know, during the crisis, they had to contract from an outside contractor to bring food in. The basic inability to provide a safe environment, there was nothing to do. You mean moving beds around? I think I think somebody in one of our briefs said, you know, it's like moving chairs around on the deck of the Titanic with what we're doing in terms --

49:25 MX

This is a topic I would love for you to go into really what it was like in the for the lives of your clients, yeah.

49:31 MB

Well, again, I think, you know, again, I'm not the best person to speak about this and hopefully you'll speak to some people who were inside who have been out and or can still speak to you from inside because I think, I know that I can't really imagine exactly what it was like. But I have spoken to a lot of people who've been inside both during the, during the time of the of the worst outbreaks and since. It's the idea that you're between a rock and a hard place.

First of all, if you actually had information and there was very little information for anyone, but certainly inside they had less reliable information. The only source of information was a source that they didn't trust, the prison system and the prison medical system. I learned more than I knew before that there was access, a certain number of people have TVs, and radios, and are able to access the same kind of public information that we do, you know, from news sources and things. And then those people become conduits of information, reliable information inside or different information. But, but again, the information was pretty frightening at that point for everyone. And when you're when the only information, reliable information you're getting both from inside and out, is telling you to do things that are physically impossible to do, it is an extraordinarily horrifying and frightening experience.

I think something else that that we all forget about is that many people inside have family members and loved ones on the outside. And they were cut off from visiting, from mail, and from phone calls. And we did a lot of fighting, to even get phone access back. And that took a long time. Long time-- months. Okay? And, you know, the prison officials said look, the phones are a source of contagion look, you know, people are lining up and they're using the same phone and, and we argued it is critical that they have some communication with their family and loved ones. They were worried about us not about themselves, a lot of them were frightened about their own family and friends and loved ones. And, and the being cut off was also horrible. The watching people die around you or didn't know if they died, but seeing a man down and being shipped off. And then learning that people had died. I spent a lot of time, as we all did, you know watching what happened at both CIM and at San Quentin, it was extraordinarily difficult. Again, people being hospitalized, loved ones not being notified of people in the hospital, or people ill.

There are several cases-- family members that I dealt with who the first thing they learned about their loved one was that they were dead. And others that learned that their loved one was in a hospital but were unable to visit or communicate. And remember that happened to free people too. Again, something I think that was cruel, unnecessary, but in the pandemic, you know, decisions like that were made, hospitals were stretched, they couldn't handle another risk of someone coming in. They couldn't handle another phone call. They couldn't handle another FaceTime. And, you know, to me that's you know, the ultimate deprivation where you don't get to say goodbye. You don't get to have any kind of closure with your, with your loved ones.

It was also extraordinary to see the kinds of decisions that people inside were making and why they were making them. Like all of us were making decisions during COVID that might not been rational, but dealt with certain of our needs, you know, I need to go outside and take a walk, you know I need to see this person, even if it's from a distance, I need to take this particular risk. And there was a point where we determined that, you know, one of the big problems with San Quentin, and other prisons is that they had no cells with solid doors. They have bars on the doors. And so the only place in San Quentin to isolate was a segregation unit, called the Adjustment Center, which by the way, was built in the 19th century and is a horrific place. Many prisons--

55:57 MX

Basically solitary confinement,

56:00 MB

It is solitary confinement, and it was solitary confinement, and many prisons were faced with that same problem. From a public health perspective, isolating people in in cells without doors, is not isolating them, which is what happened in San Quentin. For the people from CIM, they quarantined them in a place where they had open cell doors. Once we determined, you know how-- we knew how dangerous dorms were, and no, no one really argued with us about that, but they just they, they reduced the density the dorms a little bit. And then they said, that’s all we're going to do. And the courts wouldn't push them further on that.

But then we focused on isolation and quarantine. And again, these two problems: one, if the only place to go in solitary confinement and if that's what you think is going to happen to you, if, if you tell the nurse what your symptoms are, then you're not going to tell the nurse what your symptoms are. And by the way, this is this is characteristic of-- it's not just COVID. You know, when you talk to incarcerated people, you know, infectious diseases have swept through prisons, you know before this, and, again, for some of the same reasons, you know, if I reveal that I have this, they're gonna move me away, they might move me to another prison. Who knows what's going to happen. And the unknown is quite scary when you figured out a place to live, you have a house, no matter how terrible it is, it's your place, you have a celly, you're tolerating each other, your

58:10 MX

You have relationships in the prison already,

58:13 MB

You have programs and activities, whatever, if you're at San Quentin, you have a lot of programs and activities. People, we have people that were given opportunities to transfer to prisons, with safer environments, COVID wise, who refused. And luckily, we were listening to them, but they basically said, I'll take the risk. I don't want to go and be locked away, somewhere, you know. And even if it was not segregation unit, it was, you know, locked unit in another prison, you know, with solid doors, but not a segregation unit. To go to a new environment to a new area, to be away from a place with rich programs and activities and good staffing like San Quentin. People preferred to take the risk. And again, you know, I represent my clients. There's some things you know-- that was hard for me,

59:25 MX

It definitely presents a conflict in what you were trying to litigate versus their personal feeling.

59:32 MB

And more than feelings. I mean, you know, don't they have a right to refuse

59:34 MX

Of course, of course. Yeah.

59:39 MB

And they, I mean, I think they had legitimate reason for it. But it was very hard to know that some of them might die as a result of that. And you know, I think the other thing about COVID and we still have this problem now with the vaccine compliance is it still kills, you know, a small percentage of the people who are infected, right? Most people who are infected don't die. And most people who are infected, don't even go to the hospital. You know, medical, you know, public health officials will still say it's one of the most serious diseases we've ever had in world history. But, you know, for the average person say, Yeah, you know, you know, 98% of the people don't have that serious of an impact. So I get it. So what, you know, and of course, the problem, of course, is that you spread it to others, and that and that, you know, people who do get ill, you know, especially if they're medically vulnerable, you know, die at a high rate, and much higher than other diseases. But still, it's still not that great a percentage, and I think our whole country has fallen for that problem, which is why we have, you know, the highest rate of COVID infections and deaths, you know, in the world, including third world countries, which is pretty remarkable, considering our knowledge, information, wealth, medical system.

But I think that that same philosophy also, you know, inhibited what happened in the prisons, too. And I think it's still a problem with the correctional officers. We're at 50%. And some prisons at only a 30% vaccine compliance right now. They say, look, we've had it, we lived through the worst stuff, we've been infected, we've been, you know, don't force me to do something I, you know, I've, I've seen, it's not so bad. Anyway, so I think. So. This is all long answer the question, to what it's like on the inside, I think the other thing that--

1:02:16 MX

I just want to let you know, we have about 10 minutes left.

1:02:19 MB

We actually-- I don't have much time left, maybe I need to end soon, too. But I would also say that the other part of what happened on the inside, that we're still seeing the consequences of and again, happen on the outside too. But even worse on the inside is the deprivation of normal medical care, mental health care, exercise, education, work, socialization. We were we were all isolated, and have been isolated and still isolated to some extent. But we had computers, telephones, apartments, houses, outdoor activities, tremendous, tremendous abilities. And still we have very high rates of mental illness, very high rates of extra deaths and ailment, cancers and heart disease because of, you know, delayed medical care and screening-- tremendous consequences in society. We're still seeing that in the prison system, which has not come back anywhere near normal. Because of the staff infections, the prisons remain highly quarantined. Every time a staff member gets sick, they track exactly where the staff member went and all those units are put on quarantine and all the programming is cancelled, which should be happening in society, but we don't do contact tracing in society. We were American, we don't do that stuff. That's science.

So in the prison system, you know, I mean, it's good that they do that, it’s saved a lot of lives and by the way incarcerated people survived COVID infections at a much higher rate than Californians in general. Three times the rate. So they're infected at five times the rate, which reflects the crowding and the conditions. But their survival rate is substantially higher. Again, that's because of the ability to quarantine, isolate, and to have nurses check on-- every everyone who is COVID positive has nurses check on them twice a day, check the temperature and oxygen levels. In society, if you get COVID, they tell you to stay at home and good luck. Right? Okay, so anyway, it's so, but that consequence of denial of activities, medical care, mental health care is still going on there. It's a tremendous deprivation and you know, and it's going to take, I don't know what the consequences are long term. Again, I do the mental health side, I think it's, it's going to be terrible for a long, long time. The prisons are understaffed, even more now than before. So, even when a place is not on quarantine or isolation, there aren't enough custody or medical staff or mental health staff to deliver services. It's a real crisis, and continues there. And again, I think it's out of the public eye, as usual. But, you know, while we didn't get the population reduction order, we did get very intrusive and extensive monitoring of everything else that goes on in the prisons, for medical, mental health care, and disability, so that we know exactly what's going on. The courts are pushing all the time issuing orders. And, you know, unfortunately, they're just some of these things can't just be solved by a court order. But um--

1:06:36 MX

That's my last question, just because I think it's so important. What are the takeaways for you, for practitioners? What are like, the priorities, the lessons that we learned that we should be doing? Like right now? What are what is the next move for practitioners? What are the biggest lessons learned, like, moving forward? I think something you had mentioned earlier was that you can't-- it's very hard to do claims on what may happen in the future. And but, of course, that's just my last question for you.

1:07:12 MB

It's like, well, I think now we now it's easier, unfortunately, you know, for the people who've died. Because I think now we have to say that, what is your planning for the next pandemic, because everyone is saying it's going to happen again, and COVID is not over, but there'll be other, you know, you know, variations and mutations of the of the virus, and there'll be new viruses like this. And, and it's foreseeable enough that the prison systems should be planning for it. That might mean that we really actually go back to having some sort of same levels of crowding, you know, what is safe and appropriate.

It may mean that there have to be better systems for screening, better systems to ensure that there's enough quarantine and isolation space, that's not perceived as punitive. So that people can cooperate with that. We need to make sure that prisons and jails have emergency plans for earthquakes, for floods, for power outages, as we, as they become more common and unexpected. They're going to happen, we know that we have our first storm of the year in California, in Northern California this weekend. And it was the worst storm in 27 years. That's expected now, right? I mean, this is going to continue to happen. We don't have normal things anymore.

So since there are people locked up, you know, we have to push the systems on this and say to courts and state officials, what is your plan for this now? If you're going to continue to incarcerate people with who are medically vulnerable, or 80 or 90 year olds, what's your plan? I just like, we're saying that, I hope we're going to not forget about nursing homes now that this has passed and go back and say this is not okay. What your staffing level was at wasn't okay, your emergency preparation wasn't okay. You know, people died in New Orleans, not from the most recent hurricane that hit but because the power is out for two weeks, and there was no air conditioning and elevators so people were literally stuck you know, in their upstairs apartments, elderly people and they died. That, that that can did happen, you know with COVID in prison where people never even knew people had infections. And, and so I think that's an area to focus on. What is the safe level of a prison and jail? What is your plan for contagious diseases, because they're coming? What's your plan for emergencies? For disaster natural disasters? They're coming, you know, power sources, we now know that our power is not reliable in United States, right? You know, so what's your plan for having no power? It can't just be for three hours or five hours. You know, I think that one thing I'd like to see from this is that there are some people who should not be incarcerated because it's too expensive and too difficult. You know, when people are 75/80 years old, it's very expensive to take care of them and difficult, especially in a prison setting, you know, why the fuck are we keeping them there? You know, and what use is it to society? And, and maybe that can be something we use to reform our sentencing and parole laws, that someone should be looked at a little more seriously about their risk of death if they're incarcerated.

1:11:18 MX

Well, thank you so so much, it was an honor to speak with you and learn about your wealth of knowledge in this field. So really, thank you and I will let you know when this is all like uploaded and recorded. I'm not sure the entire plan, but really, thank you so much. It was an awesome--

1:11:41 MB

Nice to meet you too, Marena. Bye bye. Take care.