EY 00:00:01

So I guess you know, just to start, can you just share a little bit about yourself? You know, your name your organization, sort of in the types of cases that you typically work on?

AH 00:00:13

Sure. My name is Alison Hardy. I'm a senior staff attorney at the prison law office.. I have done healthcare related cases for about 30 years. We represent people in class action lawsuits. And we've brought cases in the Department of Corrections in California, in Arizona, and we also sue county jails on healthcare issues.

EY 00:00:47

What are the foremost issues that you see in that area typically?

AH 00:00:52

Well, for the past two years, COVID has certainly been (high)

EY 00:00:58

Right. (laughs).

AH 00:00:58

We brought our case against the California Department of Corrections, back in the early 2000s. And in that case, we sued the entire state over the lack of adequate healthcare in the 35 state prisons. We settled that case in 2003, the state agreed to make a whole bunch of changes. But by 2005, it became clear that they weren't going to be able to implement them, that there was just no way to get those improvements they’d agreed to do through the legislature and through the governor, without some more court action, so we sued and brought a motion to have a federal receiver appointed. And in 2006, the Federal Court placed the entire Department of Corrections health department into receivership. And so that continues to this day, the receiver manages healthcare now, in the prison system. And then in 2007, it became clear that even with a receiver, the healthcare would never reach a constitutional level because of the overwhelming overcrowded conditions in the prisons. So we brought another motion, that in 2009, resulted in a population reduction order that required the department to essentially, over time, release about 45,000 people from the 170,000 that were incarcerated at that point. And that order was upheld in the Supreme Court in 2011. And since then, we have been continuing to monitor to make sure that the receiver is able to upgrade and improve healthcare as necessary. And then, the state is in the process of, of getting control back over some of the prisons; basically, they petitioned to the receiver to ask for the opportunity to run those prisons, certain prisons on their own again, and about half of the prisons were returned to state control. By the time COVID hit and then all, it's called a delegation of authority, all delegations have been suspended through the COVID crisis, and we're just resuming that process now.

EY 00:03:47

Thank you for sharing, oh, I guess, how did you, you know, sort of get involved in advocating for those who are incarcerated, I guess, prior?,you know, obviously, prior to the pandemic, you've been doing this work for a long time.

AH 00:03:59

Yeah. When I was in law school, I did an internship with a firm in San Francisco that had been involved in prisoner rights litigation over the conditions of confinement in segregated housing. And so I started on a project with that in 1986 and 87. And one of the issues that was coming up over and over again at that point was that there were a growing number of people with HIV in the prisons, and they were very poorly treated, they were isolated. They were not getting the only medication that was available at that point, which was AZT and they were just really in abject conditions. I ended up after that experience, getting funding so that I could start up a project in the Prison Law Office to address the inequities for people with HIV who were in the prison. So I did that for about two years here at the office. And then when my funding ended, I joined as a staff attorney, and I've basically focused on healthcare issues ever since.

EY 00:05:29

Yeah, I guess, um, how has that, I mean, obviously, I can assume…but I guess, I guess how has the pandemic affected the types of cases that you work on now?

AH 00:05:41

Well, we spent a great deal of time during the last two years focusing on the Plata case, which is our medical care case. Early on in the case, well, in the pandemic, in the first month or so, we filed a motion to try to get another population reduction. Because it was clear, well, at that point, it wasn't super clear, because we weren't entirely sure about how the disease was spread. But we were very concerned that given the fact that it's incredibly difficult to physically distance when you're in a dorm, that the prisons would become just, tinder boxes for the virus. And so we filed our first motion with what's called a three judge panel, which is the way you have to pursue a population reduction measure. And the three judge panel denied our motion. And then we filed an emergency motion in district court, trying to get some kind of order to mitigate crowding, and that did not prevail, either. Unfortunately, federal law is extremely restrictive on how you can get a population reduction order. And they're very rare. And so unfortunately, that was I think, in April of 2020. And we warned the defendants and warned the court that they were ripe for an enormous outbreak. And at that point, there were maybe 100 cases. And then, in fact, a couple of months later, they transferred a bunch of people from Chino Prison, in Southern California, from a unit that was a huge dormitory filled with elderly people, which we kept saying, “Look, you need to find ways to at least get the most vulnerable people out of the line of fire.” So they piled a bunch of people onto a bus and brought them all up to San Quentin, where they, they have not been all tested within a day of transfer, some of them had been tested two weeks earlier. So a bunch of them had COVID, they brought it to San Quentin, and San Quentin just lit up. And that was one of the really sort of defining moments for California prisons. They lost 29 people in about a month. And it, just, San Quentin is, is a very old prison. And the ventilation is such that the air gets sucked down through the tiers and into individual cells. And there, there's nothing to break up the cells except bars. So it, it just ripped through there. And, it was a disaster.

EY 00:09:12

So thinking I guess back to March 2020, I guess you kind of shared a little bit about this, but know from some of the day to day operations of your clinical like daily life working, like how did the pandemic sort of affect that and thinking now as it relates to remote work or relationship with clients and things of that nature?

AH 00:09:30

Oh, it changed everything, because we monitor a bunch of cases. Our attorneys and our investigators are in the prisons all the time. And suddenly we couldn't go to the prisons. It wasn't safe for us. It wasn't safe for the clients. And so we you know, worked with the department to get set up phone calls and tried to stay in touch with our clients and figure out what was happening. And to consistently bring these issues to the court during this whole period, the federal court. Despite the fact that our judge denied our motion, he did express a great deal of concern and interest in trying to figure out ways to mitigate the impact of the virus. So in the early days, we were having status conferences with the judge every 10 days, updating him giving him information about where we were seeing problems. The judge did, ultimately, after the debacle at San Quentin, order the defendants to set aside certain space in each prison to ensure that if there was an outbreak, they could quarantine people immediately rather than having to shuffle people around, which is what happens because prisons are awful. The judge also did put some pressure on the defendants to consider early releases for people who were going to be released anyway, in the next year. And so a lot of people had their terms shortened by a few months, and they were able to bring down the population that way. The judge also expressed a lot of concern aboutthe movement that was happening from county jails to prisons, and the prisons ended up shutting down to intake for months, which helped to sort of slow bringing the virus from all these other counties into the department, which was good. The challenge about that was that the jails were backing up. And so, you know, people were still in danger. And in those settings, they just weren't under the Department of Corrections’ control.

EY 00:12:12

Yeah, were there any key differences that you saw in how the, I guess, the different institutions responded to the spread of the virus within like prisons versus jails? And then responses to that, essentially?

AH 00:12:29

Well, there were a lot of different approaches and you as you might imagine, they came down often on sort of, on political lines. So just in, in San Francisco, the chief physician of the county jail there, wrote a let- an open letter to the DA and the mayor and said, “Our county jail doesn't have the space to properly quarantine and isolate people, we're going to have a huge outbreak unless we rapidly reduce the jail population.” And as a result, Chesa Boudin, the district attorney, made some very drastic policy changes and, and the sheriff's office worked with him and the police department. And they all came to an agreement that far fewer people were going to be picked up. And that they were supposed to cite and release whenever possible, except in violent cases, and the population of the county jail came way down. And so they went from something like 1100 to about 600. And that enabled San Francisco to maintain the spaces that they needed to properly quarantine and isolate people; as a result, San Francisco County jails, the impact of COVID on that jail, was, you know, just very, very minimal. I don't think they- even during Omicron I think the most cases they ever had was 30 people, that was all people coming in, and they did not have any deaths. They had one person go to the hospital out of two years. Then you contrast that to Fresno where for the first for the early months they kept saying “Yeah, no, we don't think that we- we have a real problem. We're not seeing anybody get sick.” And then once in June, when CDCR decided to start taking intake again, they took a bus from Fresno, tested everybody from Fresno, and there was a high degree of infection. And so they went back to Fresno at that point, it was only in June or July that Fresno started testing. And then they realized they had COVID everywhere. And I think, half the prison at one point was infected with COVID, or I mean half the jail in Fresno County. So there was a huge variation in how counties handled COVID. And there, I will say that the CDCR, the Department of Corrections in California was, with the help of the receiver, was very aggressive about getting the vaccination into the, the prisons. To their credit, they worked hard at it. And at this point, over 80% of the people who are incarcerated have the vaccine, and they have been offered it over and over and over again. And they have worked with us to try to offer incentives, we've gone to prisons to talk to people about the virus and the vaccine, and they have worked pretty hard at getting the vaccine available and, and sort of permeating the, the whole, communities and all of those prisons with regard to the incarcerated people. The custody officers are a totally different story. And that's been very challenging.

EY 00:16:40

Could you - can you share more about that?

AH 00:16:41

Sure. The prisons are obviously, very insulated communities. And if you can keep the virus out, there aren't a lot of opportunities for it to come in. But it comes in because of staff. And so the, the rate of vaccination among staff was pretty low back last fall, or last spring, when it was available to everyone, the vaccination rate was under 50%. And so, we raised this with the judge and Receiver in our case, and eventually the Receiver asked the court to order all people who work in the prisons to get vaccinated. We endorsed this request And the judge agreed and issued that order in the fall. The state immediately appealed that order. And so while Governor Newsom issued orders that people who work in other congregate living facilities and hospitals and skilled nursing facilities, that those people all have to be vaccinated, he actually appealed the order to the Ninth Circuit requiring that custody officers be vaccinated. And you know, Governor Newsom gets, gets a lot of contributions from the prison guard union. And that really is the only thing that distinguishes the prison guards from people who work in other congregate living facilities. So that's very disappointing. The- that case is going to be argued in the Ninth Circuit next week. And that, you know, where we're asking the Ninth Circuit to order that they all be tested. I mean, I'm sorry, vaccinated.

EY 00:18:51

Earlier, you were you mentioned, you were talking about like the different, you know, data reporting, or like rates of vaccination, rates of COVID cases. And so obviously, data from these facilities plays a huge role in what we know about what's happening, I guess, like how easy or difficult has been to get accurate data on like, different measures as it relates to COVID, and those who are incarcerated?

AH 00:19:18

Well, with the CDCR, it's been pretty easy. They set up a website that tracks, number of cases for incarcerated people, cases for staff, and trends and deaths. And so their data is, is really easy to get a hold of. I happen to know people who work at the county jail in San Francisco, so I get pretty accurate data from them. In Fresno, I have a case against them. And so they have to provide me with data. So it really depends on whether you have an avenue to get it or not, I don't know that the public can get terribly accurate information there. I think there is a website that was started by some students at UC Davis, and I can't remember what the website is, because frankly, the, the data is not very good. They have, you know, taken upon themselves to try and reach out to various jurisdictions, various counties to try to track what's happening with COVID. But since there's no sort of standard mechanisms for getting that information and getting it regularly, I don't trust their data. Yeah,

EY 00:20:42

Yeah, anecdotally, has been very hard to get data.

AH 00:20:47

Yeah. Have you not? I mean, I'm sure you've seen the CDCR websites that I have.

EY 00:20:52

Yes, that I have, that's actually very nice visual, it's easy to understand.

AH 00:20:57

Exactly.

EY 00:20:59

-and track. Yeah. Yeah. Um, I guess sort of the next set of questions are more on the pandemic’s impact on like your view of the system. And I should note that we're nearing the halfway mark. But at any point, if you have to go, just please cut me off and just say like, this is-

AH 00:21:16

Sure I can stay on till 2:45.

EY 00:21:18

Okay, that should be perfect.

AH 00:21:22

I'm sorry. You said the impact of COVID on,

EY 00:21:25

On your view of the system. So I guess, like, what has been? or what have you been most, you know, maybe distressed or impressed, right? What has surprised you, as you've sort of watched different departments of corrections or people around, the legislative aspect, I guess, respond or fail to respond really, to the impact of COVID?

AH 00:21:46

Well, I think sort of globally, what COVID has taught me and I, I'm hoping it's taught other people is that we now live in an era where we understand how deadly pandemics can be. And given that knowledge, I think that we have to completely rethink how we incarcerate people and the numbers that we can incarcerate. The receiver gave a speech at the legislature, I don't know, six, eight months ago, where he said, if the virus were designing its ideal environment to grow and thrive, it would design a prison. And that, you know, the way that we have set up our carceral institutions ensures that it's impossible to keep them safe from a pandemic. And given that, I think that we have to understand that to continue in this way of packing people into poorly ventilated spaces, where they have no privacy and very little, little control over their surroundings is deadly. And so, I hope that we are able to use this as a lever and a wedge to make the case that for public health reasons, the number of people that we are packing into these buildings has to be drastically reduced. It also makes clear, it's extraordinarily expensive to put people in these institutions. And when you staff them properly, it's even more expensive. And during the pandemic, currently, at this point, a lot of the prisons continue to be quarantined, because staff continue to have the virus. And when you're quarantined, that means that you're not going to your job, you're not going to your educational programs, you're not going to visiting, all of the programs shut down. That’s in part because they're quarantining you, it's also in part because they don't have enough staff to take you from point A to point B, because their staff are all sick. I think we just have to radically re-envision what's actually possible, given the post pandemic world that we live in now.

EY 00:24:43

Have you, as a result of some of the cases that you've been working on like, have you seen any of that sort of more material for Yeah, materially play out into how-

AH 00:24:55

No, not yet. (laughs.) Yet and I think that it's gonna take time, and it's gonna take, working with legislatures and politicians to just demonstrate like, here is the case, this is what this is what has happened in the last two years, it is not morally acceptable to continue these models, because we have too much knowledge now we know what damage will happen. And, you know, now we're, thankfully seem to be in a period of remission for a little bit where Omicron has died down and, and people are not dying. And that's, that's great, but there's no guarantee that that's going to settle in. And you know, presumably, well, I'm sure that this is true, basically, in all of the carceral institutions. Most of California's prisons are at least 30 years old, their, their ventilation systems are aging, and we found in many cases are not able to without doing dramatic changes to the ventilation system, they're not able to use the super thick filters that are recommended for hospitals and places where you have high numbers of people in congregate settings. So you know, given that you can't retrofit them and make them safe, you just have to put fewer people in them.

EY 00:26:33

Have you seen any changes result, I guess, to health care practices within the facility, like as they responded to the virus, like maybe broader changes in how access to healthcare is administered or accessed.

AH 00:26:50

Not, not radical changes and there certainly was, during the height of the pandemic, there was a much higher degree of reliance on telemedicine, because they just couldn't get people to go inside. And if people went inside, they got sick. So, they did set that up and use that more. But telemedicine has already been part of a lot of these settings. They just, you know, amped up the usage.

EY 00:27:25

Last few questions, which are, you know, I guess, in what ways have your feelings about your role as a lawyer and advocate sort of shifted as a rule of working through the pandemic on these types of cases?

AH 00:27:38

Well, I think it just it comes back to the, what I've been talking about, which is that I think that we have to rethink the very premise of, you know, keeping tens of thousands people behind bars, I think that it's not safe, and we have to reconsider who we’re putting there. And you know, it is it's very challenging, because thanks to Bill Clinton back in the 1990s, there is this federal law that, called the Prison Litigation Reform Act that drastically restricts the availability of prison release orders. And so it's a big hurdle. But I think that as, as litigators, we really need to come together and try to figure out how to get around it, because it's, it's not tenable, the situation that we have now.

EY 00:28:49

You know, lastly, and sort of interrelated, I guess, what lessons will you take away personally and professionally from the past two years?

AH 00:28:56

Oh, gosh, that's hard to say. I mean, it's been a really, really exhausting two years. It has, certainly the first year of the pandemic, we were working every day, trying to figure out ways to slow things down, trying to put up roadblocks, trying to stop the CDCR from letting in more people, trying to get sheriffs to reduce and incorporate cite and release that San Francisco did yeah, I don't know. It's gonna take a while to sort of process; it's been devastating. And I am grateful that now that Omicron is sort of receding that we are finally starting to go back in and see our clients again, because it has been really difficult to sort of maintain that human connection with people that we're representing when, you know, they're yelling at us from a central phone with all kinds of craziness happening around them, and they've got 15 minutes to talk to us. And, so often we have to tell them no, I'm sorry, the judge didn't go with that, he didn't follow, follow through. We're not going to get all of the staff vaccinated yet. But we're still fighting. So it certainly has highlighted the, the necessity of being able to communicate and, and actually be on the ground and observing our, our client's situation, because it's been very difficult to, to advocate and continue that, that that relationship while we're so separated.

EY 00:31:11

Right, when, when were you able to go back into facilities?

AH 00:31:16

Well, we're starting now. And during this period, our office, we were suing Arizona as well, Arizona’s Department of Corrections. And we had a trial in November and December. And so because we were in trial, we just we had to go to prisons, to see our clients. So that's really when we started going back in, but in California, we've held off because of Omicron. And Omicron just engulfed the CDCR so quickly. We're just starting to return. I think we've got two tours next week. And from then on, we're going to be in prisons.

EY 00:32:06

Yeah, that's all the questions that I have, I guess, is there anything else that you think is important to share that we haven't had a chance to touch on yet?

AH 00:32:13

No, I think we've covered a lot. So I think I think this vaccination issue is critical, and am really hopeful that the Ninth Circuit will, will be persuaded and act quickly. Because it is true that Omicron is receding, but there's no doubt in my mind that there will be more waves and so this is our opportunity to get everybody vaccinated so that the next wave will be much less potent. I mean, that- I'm sure you've looked at the wave of how Omicron hit CDCR, and it was it was as big as the first wave, it was enormous. Yeah.

EY 00:33:07

Well, then I will eagerly be following that. I’ll stop the recording now.