VM 00:02

Okay, perfect. So um just to introduce myself. I'm a second year law student at UCLA, and I volunteer with the COVID Behind Bars Project. And I wanted to thank you so much, first of all, for taking the time out of your busy schedule to speak with me today. And I just wanted to start off with a little disclaimer and start by explaining how we plan to use the conversation we're about to have. 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. So portions may be posted online, or discussed in posts on our website or other published writing. But I want our conversation to flow freely and I realize that you might discuss a sensitive topic or mention a piece of information that you later realize you want withheld. So if you request it now, at the end of the interview, or later on after further reflection, we're happy for you to review the transcript of our conversation before it's made public, and to redact any portions that you deem necessary from the transcript and the recording. So, if you’d just like to introduce yourself, your name, organization and the types of cases you're working on?

DF 01:15

My name is David Fathi. I'm Director of the ACLU National Prison Project. And we bring challenges to conditions in prisons, jails, juvenile detention centers, and immigration detention centers. Our goal is to ensure that minimal standards of health and safety and human dignity are maintained in carceral settings and also to reverse the policies and the laws that have given the United States the highest incarceration rate in the world.

VM 01:48

Um so can you tell me a little bit more about work you did before the pandemic, leading up to the pandemic, and in the direct aftermath of the pandemic, how it differed?

DF 01:58

Well, before the pandemic we did a whole range of cases involving conditions of confinement in prisons and jails and other places of detention. Probably the biggest single area of our work was challenges to inadequate health care -- medical, mental health, and dental care. Incarcerated people are a very medically needy population, they typically have not had regular access to medical, mental health and dental care. And so it's a population that has a lot of health care needs, which tend not to be met very well in most prisons and jails. And so the largest single part of our work, again, pre-COVID, was probably challenging inadequate health care. But we have brought challenges over our 50-year history to virtually every condition that could exist in a place of detention: Overcrowding, inadequate sanitation, violence, both between incarcerated people and violence by staff, denial of First Amendment and religious freedoms, denial of accommodations for people with disabilities, any prison conditions you can think of we have probably challenged at one time or another in the 50 years that we've been in existence.

VM 03:24

So you all were kind of challenging the conditions in jails in quote, unquote, perfect conditions. But then when the pandemic created imperfect conditions, what was the difference that you saw in just, it was already a bad situation and the conditions in jails were already bad, but when the pandemic hit, what was the first thing that you all saw?

DF 03:48

Well, we moved very quickly. I believe the national emergency was declared on March 13th. We filed our first case specifically about COVID on March 16, so just three days later, and I think it was actually the next business day because there was a weekend in there. And since then, we’ve filed -- the national ACLU -- I think between 40 and 50 cases, new cases specifically challenging the failure to take adequate protective measures against COVID in prisons and jails and other places of detention. Now, we also brought motions in our pre-existing cases. Cases that were already filed and ongoing. We brought motions, seeking additional protections against COVID, with mixed success -- we’ve had some wins and some losses. But I would say most of what we did, specifically about COVID, was to file this very large number of new cases over a period of just a few months. Many of them, probably most of them, are still ongoing today, two years into the pandemic.

VM 05:01

So you all filed your first COVID related challenge the first business day after the national emergency. How did you all operate that so quickly with a shift to remote work or just so much uh so many questions, so much uncertainty about work generally, and then just the world generally?

DF 05:20

Well, it was a very challenging time. I have never worked harder in my life. And I'm sure that's true of all my colleagues. And I started working at the ACLU in 1990 and I have never seen the organization mobilized the way it was around COVID, not even in the terrible days and weeks after 9/11. I've never seen anything like it, the way the organization came together, not just the National Prison Project, but the ACLU has 14 national projects, Women's Rights, LGBT rights, Reproductive Freedom. I think we have lawyers from virtually every one of those projects pitching in on the COVID cases. It was an absolutely unprecedented effort. So we threw everything we had into the fight to ensure that incarcerated people were adequately protected against COVID.

VM 06:20

And then how do you feel that shift to remote work kind of impacted not your ability, but your approaches to serving your clients and to making these challenges either in coordinating with coworkers or other people in the ACLU or just trying to meet with clients and things like that?

DF 06:41

I have to say that remote work worked a lot better than I expected. I feel like we have been able to do our work really quite effectively in this remote setting. And we are still remote at the ACLU. People can go into the office if they wish but I think well over 95% of us are still remote. The one real difficulty was the inability to get into the facilities and meet in person with our clients because for many months, that was just not available. We were just not allowed to, either to go into the prisons in cases in which that had previously been permitted, or even to conduct in-person interviews in the visiting room. And so we had to rely on telephone communication. In some cases, there was video, video link. And again, we did I think surprisingly well. We certainly did better than I would have predicted. But that was a huge disadvantage not being able to go into the facilities. We tried a few times to do remote prison tours with the prison staff person carrying around a laptop so that we could see in the housing units, and we could talk to our clients. But that really didn't work very well. So we did our first post-COVID in-person prison tour last July [2021]. And that was very helpful to be able to go back in physically into the facilities and talk to people and see things with our own eyes.

VM 08:31

Were facilities generally accommodating to the things that you all were trying to get in contact with your clients and seeing the conditions? Like were they readily accommodating phone visits, video visits? Or was it kind of a lot of pushback?

DF 08:46

You know, it was a range. In fairness, this was an unprecedented situation for everyone. And I think certainly prison officials. Even those who were genuinely trying to do their best faced unprecedented and unfamiliar challenges. So to the extent that access was not ideal, it's hard to say how much of that was just the inevitable chaos of COVID and how much of it was, you know, deliberate slow walking and obstruction. I'd say there was probably some of each, but in most cases, we were eventually able to get enough information to litigate the case effectively. There were probably a few exceptions to that. But again, we were able to be more effective than I would have predicted, given the very significant limitations on access that we had to work with.

VM 09:39

Yeah, of course, that's good to hear. Did it, do you feel that it had a significant impact on the way that you all the ACLU built relationships with clients?

DF 09:49

Oh, of course. I mean, it's really very difficult to build a relationship with clients without talking to them in person face to face. You know, we have a lot of mail correspondence with our clients, certainly during COVID, we have a lot of telephone communication. But it's not the same, particularly with new people, and in our 40 or 50 new cases, these were all new clients. In our existing cases, there were people we've known, we'd worked with for years. And you know, if there's an existing relationship, it's a little bit easier to carry it on without the face to face. But if you're meeting someone for the first time, and you're asking them to put their trust in you, as someone they've never met before, it's just a lot easier to do that face to face. And so that was a challenge.

VM 10:43

Yeah, of course. And then at the outset, were facilities overall, um able to have good WiFi connections and good, just general connectivity for you all to be able to communicate.

DF 10:57

No. Well, I would say on the whole, no. These kinds of technical difficulties were really quite common. One of the reasons that the remote tours that I mentioned didn't work very well was the Wi Fi connectivity. I mean, I am no expert. I don't know what the reasons were. But, you know, we kept losing the connection, then we’d lose the sound, and we’d lose the video. So it just, it wasn't very effective. And similarly with video conferencing to the extent that it was made available, or to the extent that prison officials tried to make it available, the technology just often didn't work very well. So we found that the conventional telephone was actually the most reliable form of communication that we were able to have.

VM 12:00

What has been the most surprising thing either positively or negatively just watching corrections administrators, um other public officials’ responses to COVID? I know it was unprecedented and there is some grace to be given across the board. But what was the most surprising thing positively or negatively for you all?

DF 12:21

Well, on the positive side, I am surprised that -- at least thus far, because COVID is not over -- at least thus far, the toll has been less serious than I would have predicted given the perfect conditions that exist in prisons and jails for the spread of communicable disease: a medically vulnerable population, with much higher rates of chronic disease that make people vulnerable to severe illness and death. As bad as it has been, and I certainly don't mean to minimize the toll that COVID has taken in prisons and jails, I am pleasantly surprised that it has not been a whole lot worse. So that's positive. On the negative side, I was really quite shocked, and maybe I shouldn't have been, but I was shocked at how many judges just didn't seem to take this seriously. That were just willing to throw these cases out on a technicality. That just communicated in all kinds of ways that they just didn't think this was that big a deal. Again, I've been doing prison litigation for a long time, maybe that kind of lack of concern shouldn't have shocked me. And there were, you know, there were honorable exceptions. There were judges who really did their best to grant meaningful relief. But I was surprised at how many judges and I was surprised by some individual judges, just the lack of seriousness that they seem to accord to this whole global pandemic. They just, as I said, didn't seem to think it was that big a deal.

VM 14:12

To what extent do you think that was caused by the fact that the judges weren't actually physically seeing the conditions. Like I know, you all try your best to go into the facilities and everything but judges, for the most part, don't actually go in and see it to the extent that you all do.

DF 14:28

I think that's probably a factor. But again, COVID was something that wasn't limited to the prisons. It was worse in the prisons, but it wasn't limited to the prisons. And so I would have thought that, you know, many people knew someone who got sick, some people even knew people who got very sick or died from COVID. So I would have thought judges would have felt a little bit more empathy with incarcerated people who were sitting ducks, utterly unable to take any steps to protect themselves from this deadly disease. And I was surprised, as I said, that so many judges just didn't seem to think this was a matter of particular importance or urgency.

VM 15:16

Yeah, that is unfortunate, because I think, to some extent, you can understand that judges don't understand the feeling of being in prison. But everyone, all of a sudden understood the fear of COVID. So that is unfortunate that they didn't act with any kind of urgency, some of them.

DF 15:33

I would have thought that this would be a time when there would be a feeling of “we're all in this together.” If there was such a feeling, it didn't always translate into a judicial willingness to grant relief.

VM 15:48

And I know you've been working in prison law for some time now, but did the past couple of years and the ongoing pandemic um change how you think or how you advocate for rights behind bars or just prison in general?

DF 16:05

That's a good question. I don't think it's changed my approach significantly. I have been doing this for a very long time. I started in 1990 as I think I mentioned, and I have always felt a unique obligation to incarcerated people who, unlike the rest of us, are completely prevented from taking any steps to protect themselves from, you know, whether it's COVID, or other diseases, or environmental hazards, they are really at the mercy of their captors. And so COVID was just another example, albeit an extreme and egregious example, of the kinds of threats that incarcerated people face every day. So it didn't really seem qualitatively different to me. If anything, it reinforced my dedication to serving this population, but other than that, I can't think of any real changes that it made in me or the way I think about or do this work.

VM 17:15

Are there any particular lessons or thoughts that you think society generally um should kind of take from the impact the pandemic had on incarcerated persons? Or do you think that there is still kind of a wholehearted divide between the general population and incarcerated persons that they're kind of unable or unwilling to take a lesson from it?

DF 17:41

Well, I think the lesson that should be taken is that we are all in this together. We are all connected. And particularly when you're talking about contagious disease -- the virus doesn't respect the prison walls. And if it's in the prison today, the staff will have it tomorrow. And the staff's family and the community will have it the day after that. And there was certainly evidence that jails and prisons and particularly jails, given the high turnover, were epicenters of COVID, not only for those who live and work in them, but they were vectors of spread into the community. And so I think that is the message that should be taken away from this, that we are all in this together. And that we cannot be indifferent to the fate of incarcerated people, even if all we care about is our own health and safety. Sadly, it's not clear that that lesson has been learned or at least widely learned. But I think this is really a very clear illustration of the fact that there is no iron curtain drawn between prisons and jails and the rest of society.

VM 18:55

Um so there was obviously like, a correlation between surges and outbreaks in incarcerated populations and surges in the general public. For what reason do you think people kind of reject the connection? So like you said, it should be kind of we're all on this together. If there's a huge surge at this president site, or at this jail, especially, it'll reflect in the community. But why do you think that's something that was hard and still is hard for people to understand.

DF 19:25

I mean, I can speculate. I think that prisons and jails for the vast majority of the population are just out of sight and out of mind. People don't think about them. And certainly at a time when there was so much else on people's plates and on people's minds: People losing their jobs, losing their homes, getting sick, having loved ones get sick, having to figure out how to homeschool their children, I just think that the situation in prisons and jails was not top of mind for most people. And that's understandable. But, again, I think it's a lesson that we ignore at our peril.

VM 20:06

Um, so do you think that your role kind of shifted a bit during the pandemic in regard to being one of the few people that incarcerated populations already having minimal contact with outside people? Do you think that your role shifted with being even more of a minimized population that was able to visit and speak with them? Do you think that you had a larger role I would say?

DF 20:32

I think the importance of our role as a watchdog, as a form of oversight, did increase during COVID, simply because when prisoners were no longer able even to have visits with their family, the role that that we played as a conduit of information out of the prisons, but also into the prisons, became more important. A large part of what we did in some of these cases, was simply mail in to as many prisoners as we could, in some cases literally everyone in the facility, basic information on how to keep yourself safe to the extent that you can during COVID, because one of the things we found was that many prisons and jails were doing a completely inadequate job of providing this basic information. So we said, okay, this is at least something we can do, we will mail to all 2,000 people in the Clayton County Jail this information on how to keep yourself safe. So I think that was important. I think the communication in the other direction was important to the extent that we were able to have some insight into what was going on in these closed environments at this very critical time. So I think yes, the role that we try to always play as a form of oversight, as a watchdog, I think was even more important at the height of the pandemic.

VM 22:07

That's interesting. Of course, they wouldn't be able to get information as readily, but you would think that people in charge would kind of explain more so the dangers of the pandemic and kind of every all the information we were privy to, that was not being communicated,

DF 22:22

You would think. But in many places, we found that that was simply not being done. And you know, there are geographic variations, of course, but there are very high levels of vaccine resistance and general COVID skepticism among correctional staff. And so I think that probably played a role in their failure to really take the pandemic seriously and to take what everyone would think of as absolutely basic, minimal steps to keep people safe.

VM 23:00

Ya, that's unfortunate. Do you feel like having work remote days had a really huge impact on your, both your professional and your personal life because I know that um the ACLU was able to switch to remote work quickly, as you said, but having your work being inside your home, while convenient, did that have a negative impact on your personal life?

DF 23:23

You know, I think it was probably easier for me than for most people. I've been doing the job a long time, I know how to do my job, I have a pretty good-sized comfortable house with a nice place to work. So I think it was it was fine for me. I do feel bad and I had real concern about younger people, newer people who might not feel as confident about their knowledge of the job and what to do. People who live in small spaces who don't have a place to work in their apartment. So yeah, it was fine for me, but I do recognize that I occupy a very privileged position that is not shared by everyone and I do recognize that it was very difficult for many people. I also don't have children that I was trying to homeschool while doing my job. Again, that is a tremendous challenge that I didn't have to deal with.

VM 24:21

Yeah, of course. Um, yeah. So we're kind of leading towards the wrap up, but is there anything else that you would like to share about your experience working during the pandemic and even as it's ongoing, that you'd think it'd be important for people interested in this information to know.

DF 24:39

I mean, it really was a unique time in my 30 year career in the area of prisoners’ rights. As I said, I have never worked harder in my life. It was very difficult in many ways. Obviously not as difficult as for incarcerated people, but to hear the very realistic and well-founded fear and anxiety of our clients, and not really be able to do much in the moment, that was very difficult. To have to choose which facilities we're going to be able to bring suit at, knowing that we cannot sue all 50 state prison systems and the hundreds if not thousands of local jails. That was a very difficult decision to make, because it felt like we were making, and perhaps we were making, life or death decisions. We're going to try to save these people, but not these other people over here. And that was a very difficult and painful decision. But I felt privileged at a time when so many people felt unable to do anything, felt paralyzed by conditions and circumstances. I felt privileged that I was in a social position where I was able to try to do something to make things better. How effective I was, how effective all of us were, is open to discussion. But I feel very fortunate that I was in a position to at least try to do something to help other people at this critical time.

VM 26:31

I'm glad that you were able to participate in that work and obviously help in whatever ways that you were able to and I want to thank you again for taking this time to meet and discuss this because this will be information that's super helpful to the project. So I'm going to stay on for a bit just to save the recording. But again, thank you for being with me.

DF 26:50

My pleasure. Thank you.

VM 26:53

Have a good day.

DF 26:55

Bye.

VM 26:56

Bye.