B 00:03

I want to start by explaining how we plan to use the conversation we're about to have. 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 in 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'd like withheld. If you request it now, at the end of the interview, or later, after further reflection, we are happy for you to review the transcript of our conversation before is made public and to redact any portions you deem necessary from the transcript and the recording. And I'm assuming you want the transcript again.

JD 00:47

Yeah. I would love that. Yeah.

B 00:48

Awesome. All right. Um, so I'm Bailey, before to interview, if you want to start just sort of background and sort of your path towards prison law. Yeah.

JD 01:02

Great. Sure. So my name is Jim Davy. I graduated law school in 2015. My career getting to prison law was a little bit indirect, which is to say, my first job out was a fellowship with a labor union, doing workers’ rights, union side labor work. And then I clerked, and my judge runs a reentry court, actually, where I was working with, it was the only pro bono that you can do when you're a clerk because it was non legal work, right? Like we were helping clients re-enter by helping them get paperwork because they had not had, you know, driver's licenses, social security cards, stuff had gone missing while they were incarcerated. And then, helping them get on their feet and other ways, including helping them find housing and jobs and things like that. And I had also been volunteering with a different organization called The Youth Sentencing and Reentry Project, doing mitigation work for former juvenile lifers, to try to help them at their resentencing hearings, because they had all gotten unconstitutional sentences, to help them get sentenced to parole eligible terms and then get paroled out.

So with that background, after clerking the first job that I took was at a nonprofit that did plaintiff side, prison civil rights work. All I did was represent prisoners. In particular, I represented a lot of prisoners in USP Lewisburg, which is in rural Central Pennsylvania. And at the time that I was there, although this is no longer true, it had a thing called the Special Management Unit, which was the waystation between high security in the Federal Bureau of Prisons, and the supermax at Florence. If you were deemed problematic for various reasons—like if you had mental health problems, and it was not your fault—wardens at high security facilities would send you to Lewisburg to this horrible, very restrictive program. And either you would pass and go back to high security, or you would “fail” and go to Florence. And Lewisburg was terrible, for a lot of reasons, including that it was persistent, 23/7 solitary, but with another person in a 55 square foot cell. No mental health treatment, regular use of what they call ambulatory restraints, the name of which is sort of like jumbo shrimp--which is to say, it's ankle, um ankle shackles, leg irons, handcuffs in front of your chest, belly chain, the whole deal for like, days at a time, they would just leave you like. There were class actions about both of those things, which is including one that's still pending. But anyway, after that, I went to a different nonprofit, um, that did more general criminal justice work, but kept doing a bunch of prison stuff on the side. And then during the pandemic I was doing COVID class work in prisons, and ended up leaving that nonprofit to form my own nonprofit solo practice, which does a lot of prisoner work, partly because it’s what I'm interested in and my background. That includes COVID class cases, and also compassionate release, because now that it's just me, I can do some criminal side stuff. And I also do individual prisoner claims on various impact issues that I'm interested in, including dry celling, Hep C treatment, trans care, excessive force, obviously, and other systemic practices that are that are very bad.

B 04:58

Um, so you mentioned sort of forming your own nonprofit during, you know, the or, you know, yeah, amidst the pandemic. Could you maybe speak a little bit more about that decision process?

JD 05:13

Yeah, I mean, it was, yeah. It was interesting. The nonprofit that I was working in, was not very supportive of me doing the COVID prison class actions, because it was, according to my boss—who’s, ultimately, it's his work, so he decides—it was not germane to the mission to be doing the COVID class cases. But I felt very strongly about doing them, especially at the beginning, when it was clear that prisons were maybe the most dangerous place, I mean, prisons and nursing homes, right, were probably the most dangerous places to be anywhere. So I felt very strongly about it and had all of these connections in the prison litigation world, especially in Philly and New Jersey, and just wanted to do them, and so I did them anyway, and then had cases.

And the other thing, which I guess is not fully germane to this conversation, is that I think the pandemic has clarified for a lot of people what they really want out of their life and career. It also introduced a lot of upheaval into like various other things in my life, anyway. And then the third thing is, it has turned out to be not a bad time to start something, in the sense that a lot of the things that make starting a practice very expensive don’t apply right now. I don't pay for office space, I have argued in one, two, three four.. four different states since the pandemic started, from my desk. I have not paid for travel costs, I haven't paid for a hotel, I haven't paid for, you know, whatever. And the people who I like to collaborate with, where normally, I would have to travel to meet them—all that is just do a zoom and whatever, who cares. It has been obviously extremely challenging in a lot of ways and I don't want to downplay that, but in other ways, it has not been a bad time to start it. At least as far as my experience goes.

B 07:31

Awesome. Yeah. I hadn't even hadn't thought about that. Like, oh, I don't have to rent signage. And yeah,

JB 07:36

Yeah, I argued… I argued a prison case in… it was either late February, early March, I can't remember exactly. But normally I would have had to go to Cincinnati, and I didn't go to Cincinnati. I was wearing a suit and sitting at the desk. Not even—I was wearing a suit from the top up, and like, sweat pants underneath. And before, you could never do that! I didn't have to wake up in an unfamiliar hotel, didn't have to find a place to get weird, shitty breakfast. I woke up like 45 minutes before the argument, had coffee, looked over my notes. It was extremely chill and it went well, you know, nice.

B 08:16

Nice. Um okay, so sort of moving into, like the litigation side of the pandemic. I know you, you filed the class action, or sorry, the habeas in was the FTC Philly. And then Fort Dix.

JD 08:37

Yeah, so I, I did two class actions. The first one got filed, I want to say on like April 1, maybe, was the one against the Federal Detention Center in Philadelphia. The second one that I filed was, I want to say like April 15. It was literally like two weeks later. And it was against FCI Fort Dix in Central Jersey.

B 09:00

Right. And I know we sort of talked about this. But obviously, the sort of situations when you filed were very different in terms of outbreaks having happened Warden statements, and then obviously, the outcomes had been different. In a very just, in a way that I as someone that is very like, is this all BS and just what judges what?

JD 09:21

That is the answer. That is exactly –

B 09:25

So yeah, if you want to kind of walk through that again.

JD 09:28

Yeah, it was very interesting. So we filed the Philadelphia one first. This was two different teams. I'm on both teams, but I'm the only commonality between the two teams. Both teams were law firm, nonprofit, and me, and they were different law firms, different nonprofits. The FDC one was one of the first ones that got filed anywhere in the country. It had, you know, what was considered the best thinking at the time that we filed it. I think a lot of the cases that have succeeded have taken insights from things that were filed earlier and applied them in great ways. And ours, you know, the FDC one is still going. So technically it has hasn't failed, right? But it has not succeeded. One of the things that I'm constantly thinking about is what effect we actually had. And I'm not sure what the answer to that is. I'm confident that the answer is not nothing, because there would be a lot of things that we said, you know, they're not doing this, that's evidence of deliberate indifference, and then they would start doing it not long after. So, I feel fine about that. But we didn't get—the judge never ordered release, the judge never ordered anything like that, which was maybe unrealistic to start out with, but who knows?

Anyway, where I was going was: the contrast between those two cases was very interesting, because at the time we filed the FDC case, the, there had not been a positive test yet. We filed it, citing Helling, which is the case that talks about risk of infectious disease, it doesn't have to happen yet. You can–

B 11:03

Yeah.

JD 11:04

Right. And we filed it. Again, prophylactically. The Dix one, by contrast, at the time that we filed it, had already had a huge outbreak. And there were positive tests, like every single day, and really, really damning stuff had come out of the facility. Maybe a week before we filed, the news entity in New Jersey that used to be the Star Ledger and is now New Jersey Advance Media, whatever they call themselves, published a video that someone took on a cell phone in the facility of a staff member with like a disinfectant pack, walking by a guy on the ground, who had COVID and was debilitated, could barely move, clearly was really struggling, and he just walked by and just sprayed this guy with disinfectant. And it was obviously horrible. It's a horrible video to watch. The newspaper published this, right? Put it online, the whole deal. And so the facts were very, very different.

And to be clear, we also had the benefit of two weeks of seeing what had happened in the Philadelphia one, when we were crafting the complaint. And so I said, oh, in the Philly they made these arguments in the motion to dismiss. Which we won. But I also know that we can avoid those if we plead different facts in this, whatever. And so the complaint, I think it was stronger in a lot of ways because it had two additional weeks of accumulated wisdom and applied experience. And that New Jersey judge just throws it out of court immediately. And it was even stranger to contemplate, because New Jersey and Pennsylvania are both in the Third Circuit. So the law is the same, right? And so for the New Jersey court to cite the same Third Circuit cases and say, ‘Oh, I don't have subject matter jurisdiction over this, that's not, we're not doing that.’ While the Pennsylvania judge said, ‘oh, of course, I have jurisdiction.’

It was just a very weird juxtaposition in a way that I think has mostly highlighted for me the arbitrariness of—and by the way, I'm not even attributing it to the politics of the judges or who appointed them or anything like that. It literally is just whims of judges, right. A couple of things that I've done have highlighte the arbitrariness of judging, right. One of them is the absolutely stark contrast between these two cases that we're talking about right now. But the other is that I've done a bunch of compassionate release motions. And there has been no rhyme or reason between… I've done a bunch of these and I’ve had two granted, I've had several denied. And the one who got out, I don't… he was definitely not the most compelling medical case. He was obviously high risk, but whatever, a lot of people were. I had people who were definitely higher risk than him who got denied, including where the judge just copied and pasted the prosecutor’s opposition and just… that was the order. That judge, by the way, was an Obama appointee, and in fact has denied every single compassionate release. I found out later, he'd denied every single compassionate release motion that landed in front of him. And so the arbitrariness I think is… It has been very stark.

B 15:03

Yeah, like, on the compassionate release front, um, looking at sort of, you know, like Law Review surveys of things, it, it seems like there's such a huge stress on, you know, the safety to the public and things like that. And it's very bizarre hearing that brought up again, and again, when it's also only, you know, only mentioning people over 65 with medical conditions. Is that sort of that, I see that risk of public dislike, you know, the judges having to sort of think, “Will this person do that again?” Do you feel that that's where a lot of this might come in? Or?

JD 15:40

No, I really don't. I think a lot of it actually is just punishment. Like I had a guy, first of all, they're all really old. And if you look at the recidivism stats, as a general matter, that's not how that works, right? They're generally lower risks. But I had this guy who I filed compassion release for that was denied, who had been in the hospital for three days, had COVID that was so serious, again, that he was in the hospital, and is almost certainly experiencing long term, the sort of things that happen to people who have very serious cases of COVID. In terms of breathing even afterward, problems with bodily systems, right. This guy is, I think, 61 or whatever, he's obese, he has other health problems, too, which is why we were even able to file this thing in the first place. Like, what is this? What is this guy gonna do? What is this guy going to do when he gets out?

B 16:47

It's yeah, you've also been keeping him incarcerated? You know, it's not like he's getting the best, like, food and everything.

JD 16:56

Oh no, right, by the way, he's 12 and a half years into a 25 year sentence, right? 50% is the cut off in terms of what the Bureau of Prisons is theoretically supposed to prioritize. The idea that he needs to serve these additional 13 years, for punishment reasons. It's just, you know, I find it very odd.

I think there are huge equity problems with everything about the criminal justice system, for sure. Right. Obviously, having someone throw the power of the state at you is bad, no matter who you are, right. But white collar defendants in general, have great representation, they have more resources, they're not incarcerated, while they're defending their cases are able to assist in their own defense, and are better able to marshal character references for the sentencing, whatever. And I'm not trying to suggest that white collar people should get out and other people shouldn't. First of all, everyone should get out. But second of all, lots of the people who are in on violent things are not ultimately dangerous if they're not in you know, complicated family and life circumstances. Also, if 15 years have elapsed and they've been rehabilitated… But the point is, I did a different one on behalf of a guy who was a white collar guy because he was the named plaintiff for our case that got dismissed and after the case got dismissed we felt so bad, and we've been talking to these people and I was like, whatever I'll do a CR for you. But so he had literally only been convicted of one white collar crime in his life, obviously is not a threat to anyone… got denied, got denied because the judge said ‘oh, I think that would diminish the seriousness of the conduct and blah blah whatever.’ Um, not a threat to anyone and again, I want to be very clear—I'm not saying that like only white collar people should get out. But they already took his license for the SEC or whatever financial thing, he was not gonna go back to doing financial fraud. Literally not allowed to do that anymore.

B 19:39

Yeah, and you know, I'm thinking like, yeah, like the like, oh, now we care about financial harm when it's going on all around us all the time. But when we want to let them out, then we're like, oh, no, that's fine. Wow. So okay, I'll try not to embarrass myself for my federal courts learning. So when you file for habeas for instance, it has to be the 2241 in order for it to be a class action, right?

JD 20:17

Yeah. So 2254 and 2255 are collateral attacks on your underlying conviction. Usually what you do is allege ineffective assistance of counsel and say some substantive right was violated, counsel was ineffective for not protecting it, whatever. And there's all kinds of things that you can allege in that context. But that's about your conviction. Either your conviction in a federal court itself or your conviction in a state or local court. And 2241 is the sort of catch-all provision that in different circuits has been interpreted to encompass different things. Like in the Second Circuit, you're allowed to bring conditions of confinement claims through 2241. In other circuits, you arguably are, and in some you explicitly cannot. So it's, it's a little, it's a little bit complicated, for sure.

B 21:17

And then, um, I noticed, do you exclusively work on federal institutions now, or was that a strategic decision?

JD 21:28

I've previously done other work in Pennsylvania –

B 21:32

Lewisburg–

JD 21:33

Well, no, no, Lewisburg is a federal prison. Like the USP is the United States Penitentiary. A lot of what I was doing was federal prisons, because besides Lewisburg, the Middle District had several—there's Allenwood and there's, whatever. Aanyway, I do a lot of federal prison work, and therefore, have a greater familiarity with that system. But I also have sued Pennsylvania prisons and county jails and things like that. It was a quirk of where I knew clients, and then the Dix one started in part because I was already doing the other one. When there was a huge outbreak there, people reached out to me, and were like, do you want to do this, and that was sort of how that one came about. The FDC was also—sorry, I don't know if I mentioned this before, but I had also previously done a successful class action against the FDC. They basically had this visitation policy that prevented guys who were there from seeing their children if they were not married to the mother of the child. Which a lot of people were not. And so anyway, we sued over that settled, got policy change that we wanted. And so the other nonprofit that was involved in that case, is the nonprofit co-counseling the COVID class case there. We knew a bunch of people there and, and cared a lot about them. And we're very familiar with the facility and the practices and the procedures and the policies and everything.

B 23:30

Um, I'm, I'm interested in sort of the like, strategy phase, I guess. I, maybe it's because I'm in this studying for finals mode of like, okay, here's the situation, are you going to bring a Bibbins action? Or are you going to go for habeus or that kind of thing? I was just wondering if you could maybe like, speak to that. I don't know exactly the question to ask. But I'm just very interested to hear about that kind of strategizing process in the collaboration between, you mentioned, like, it's a law firm, a nonprofit and yourself. So yeah, I'm interested to hear about that.

JD 24:03

Yeah. I mean, so I'll sort of break that into two. The first is the legal device. And the second is that collaborative aspect. In terms of the legal framing, I think that the reason that we—like all the first wave of cases—went the habeas route. Well, there were a few reasons for it. One of them was that I think we all thought that release was really the only thing. I talked to a lot of people about these cases, and I don't think anyone really thought that getting better sanitization or whatever, or getting masks for prisoners, or whatever was actually going to be effective. There's just no way—by the way, the warden of FCI Fort Dix said, which we quoted him in the petition, right, “It is not possible to social distance in this environment.” I think, everyone, when we were thinking about what we wanted to ask for or needed to ask for, I think we knew that the only thing that you possibly could get that would actually protect people was release. And if you want release, you have to ask for habeas. You can't get released through… sorry, I want to be very clear about the law, you can get released through a regular civil action. But the PLRA has a whole procedure for it. It involves a three judge panel, it involves all kinds of findings, it is not fast. And I don't think anyone wanted to do that. There was a case in California where there already was a three judge panel, because that case has existed forever. And so they were able to go through that device, because it already existed. But the idea of doing a new one somewhere else that didn't already have that going on, I don't think anyone wanted to do that. And so habeas was the way to go. The other thing is that habeas is procedurally quicker in a lot of ways than the PLRA. If you file a civil complaint that has to comply with the PLRA, there's exhaustion requirements. And there's good arguments here that would have been good arguments for excuses to exhaustion based on the emergency and whatever else. But why even fight that, why bother, right? And so, between wanting release, not wanting to deal with the PLRA, not wanting to deal with some of the different defenses that are available? I think a lot of people were like, we're just going to put these habeas petitions together and get into court. And so that's, that's basically how that happened.

The second part of your question was about collaboration with other attorneys. And I think in terms of how that how that went, it was very interesting some ways. One of the things that I have found the most encouraging throughout this was the number of public interest attorneys, including ones who don't exclusively, or always, or mostly do prison work, who were just very, very quick to acknowledge and recognize the danger in what was going on, and so who jumped on lawsuits. And that went very well. With the firms it was an interesting thing, because at the beginning, especially at the beginning of the pandemic, firms didn't really know what their business flow was gonna look like, on behalf of their actual paying clients. And so a bunch of them said oh, yeah, whatever, sure. Pro bono, let's do it. And, in ways that were not half baked, right? They were all in.

Although you know, it was funny, there was a firm that I'm not going to name where they had agreed in principle to co-counsel one of the cases that I'm talking about. And there was going to be a big, important partner who was going to lead it, but who was not following along during the complaint drafting. And two days before it was filed, he was like, ‘Wait, you're asking for release?’ We were like, yes. And he was like, ‘Oh, I can't do that. I can't do that.’ And we were like, oh, okay, we have to find a different firm. This is ridiculous. And so we found another firm with a similarly very highly regarded person who was gonna be the lead partner on it. And said by the way, just so you're clear, we're asking for release. And she was like, ‘oh, yeah, totally. That's the only thing that's gonna protect these people. It would have been weird if we didn’t.’ And we were like, Oh, great, wonderful. And she, I should name her by the way, her name is Caitlin Halligan. She was phenomenal. Brilliant. Is one of the smartest people I've ever encountered. She would be on these conference calls. And was terrifyingly smart. Knew where the weak points were without eve, I don't know, it was terrifying. She mostly doesn't do prison work and anyway, she was phenomenal.

And so anyway, all to say, in general I was encouraged. The firm that worked with us and that is continuing to do the Philly case with us has been great. The partner there on that case is someone who used to be a criminal side AUSA and you know, has put a lot of people in prison, and now is like, ‘Oh yeah, of course this is super dangerous. This is ridiculous.’ We were like, yes, great, thank you. The way that people responded generously, quickly, to recognize exactly what was going on was one of the things that actually has been really heartening about this as opposed to a lot of the other things which have been much less heartening. Including, basically every government entity that I have encountered.

B 30:32

Maybe if you wanted to sort of cover that flipside of the people that you're sort of arguing against in these situations, when it seems so obvious that, you know, this is the only option.

JD 30:44

Yeah, I think that the things that have made me the most upset, angry, frustrated, you know, whatever you want to say, is the way that the government and the courts have responded to a lot of this stuff. I think that there was a window at the beginning, where things were extremely chaotic, everyone afraid even on the outside, people were afraid to go to the grocery store, people were like, afraid to touch surfaces, people didn't really know what was going on. And there was a brief window, I think, where courts were maybe willing to do things. Or at least some courts, because there were courts even at the very beginning that were like, no, no, fuck these prisoners, whatever. But, I think that that moment passed, and a few things happened. One of them was that the Supreme Court made very clear that they were not going to tolerate release, especially wide scale release. And then the other thing that happened was, I think, a lot of judges and government attorneys defending these suits settled into working from home, settled into getting their groceries delivered, settled into wearing masks, able to mostly protect themselves, whatever. And as a result, the appetite for doing anything at all just declined a lot.

I say that both in the class cases, and also in the compassionate release sense. The compassionate release, I've seen a lot of compassionate release denials that I just find morally reprehensible. Ones where I can trace the denial of home confinement on the part of the BOP, ones where I can trace the home confinement denial directly to death. For example, I represent the estate of a guy who died at Fort Dix. He was in his late 50s, like 58 years old, he was obese, had hypertension, had had a stroke in BOP custody, three years previously, he had kidney disease, and had a laundry list of high-risk conditions. Had only six years left to serve on a sentence. It was a drug thing. So it wasn't even a violent crime, but a thing that probably within a few years will not even be illegal, right. He had had a very strong home plan. We had family members that he had maintained extremely strong ties with, and generally he was the ideal candidate, right? Get this guy out of the prison, right. Home confinement was denied. It was denied. Compassionate release was denied. And then he died. And that's, it's not even that you have to connect a bunch of dots. It's like, dot, dot, line. Right. Just cause and effect. I will be very, very curious to know if anyone involved in this on that side, how they think about that. If they feel like they have blood on their hands. I'm probably never going to know.

I mentioned the other one, the guy who went to the hospital but didn't die, right? Like the AUSA, the AUSA in that case, after he got back to prison from the hospital, opposed the compassionate release on the basis that because he had already had COVID, they didn't need to release him because he wasn't going to get it again. Which by the way, first of all, that’s not necessarily even true. But even if it were true, he had it so badly that he was in the hospital. And, you know, I don't know, how do you sleep at night? I don't know. Like, I sleep at night because I'm on the right side of this. But I don't, I don't know.

B 35:28

Yeah, was that where the chaplain called too, the sort of, yeah, the level of –

JD 35:35

Oh, yeah, the disregard for families. I will tell that story again, I keep forgetting that I've told you stuff that wasn’t recorded. Okay, let me let me rewind. The thing that has even still surprised me a little bit in terms of how bad it has been, is the way that prison systems have just been completely cruel to family members on top of prisoners, right. The, the guy who died was in the hospital on a ventilator for about three weeks before he passed away. His family had been accustomed to talking to him every single day. And then one day just stopped hearing from him. They heard from another prisoner, that the guys thought he had been taken to a hospital, but they could never get that officially confirmed. They called the prison every day repeatedly trying to get any answers whatsoever. Just got stonewalled. The first they heard was a doctor at the hospital calling the guy’s daughter who was his power of attorney, asking if she wanted them to resuscitate him, because he was in organ failure. And that was the first that they, I think that was the first that they heard. They didn't get to talk to him. They didn't get to say goodbye. They didn't get to visit him. They didn't get to FaceTime, nothing like that. And instead had to say, ‘Oh, my God, yes. Fucking resuscitate him.’

B 37:18

It was a it was a doctor, not even like, yeah, no,

JD 37:21

Right. And then the other case was also cruel but the opposite problem. Which is to say, this guy got taken to the hospital, he was in the hospital from December 22 to December 25. Just to give you a sense of the dates to situate this in the family's life. I get a call on like, the 23rd, because the client’s family on the outside had gotten a message left for them from a person who identified himself as a chaplain, but didn't say what he was calling about. And he asked them to call him back but didn't leave a phone number. And so they, and me, perhaps understandably, thought that this guy had died, and that a chaplain was calling to notify the next of kin. It took me over 24 hours to finally get someone on the phone who could explain what was happening. And it was that he had gone to the hospital and was still alive. And when I—a person who had spent many hours thinking that this client was dead, and was like, losing it—said to the guy, “Hey, maybe if you identify yourself as a chaplain, and the person has not died, you should say that, because by the way, people will think if you say that you're a chaplain, you're calling about a family member, that you're, that you're calling to tell them that the person is dead. Maybe you shouldn't do that.” He was like, “Oh, yeah, I guess I could see, I guess I could see how someone would think that.” And I was like, you're a horrible person. I mean, I didn't say that to him. But it was one of the most absolutely enraging and horrible interactions I've ever had with any entity of the United States government.

B 39:09

Yeah. Yeah. I mean, like, nice restraint to not say that because, you know,

JD 39:19

Yeah, I think that one of the other things that makes that situation especially cruel and complicated, is that you have to stay on good terms with these people. Because they're gatekeeping access, right? Like if I want to get a legal call with this client when he gets back from the facility—although by the way, I didn't get a legal call with him for over a month because when he got back from the facility, they put him in isolation quarantine, returned from hospital quarantine, wouldn't let him have access to a regular phone or even a legal call. And obviously didn't have his own writing materials, so he couldn't write back to me. So I had emailed him through CorrLinks, I had written him a letter, I tried to set up a legal call, and I wasn't able to talk to him for a month. But the point is, these people control all the access, right? And so you can't even have the normal human reactions that you normally would have. You cannot have the deeply human reaction of like, What the actual fuck is wrong with you? Because then you're not gonna be able to talk to your client. Right? And, like, imposing that additional indignity on families and attorneys and other advocates is, yeah, it's shitty.

B 40:46

Yeah. Um, I mean, I guess Yeah, like, as I personally have, you know, worked on my mental health throughout the years and going into this area of such just like horrific, you know, human on human treatment, or callousness, or what have it. Um, you know, obviously, bringing it home with you, whether you like it or not, and have to sort of deal with it or things like that. I was just curious how, as an attorney advocate, you've kind of dealt with that or seeing people deal with it, that kind of thing. Whatever you feel comfortable sharing.

JD 41:23

All right, deal. Sorry, say–

B 41:26

I, you know, the, you're fighting a, it's a David and Goliath kind of system. And you lose, right.

JD 41:33

A lot. A lot.

B 41:39

Right? And sort of, yeah, I'm just kind of curious. How you cope, how you see people in your field coping, if it's even possible to cope, stuff like that. Yeah.

JD 41:46

Yeah therapy. I mean, the answer is therapy. I'm not speaking for other people when I say that. But I have a really excellent therapist, who I like very much. Without that, I don’t… there's a ton a ton a ton of secondary trauma during this work generally, right? Even pre-pandemic, knowing the clients were suffering horrible indignities and civil rights violations. And on top of that, even if you sued on their behalf, you aren't necessarily going to be able to protect them from retaliation or ultimately even get a good result for them because of all kinds of things. All the reasons that the prison system, the prison litigation system is slanted against prisoners. That's already been true, even pre-COVID. The COVID, I think, has made it a lot worse in part because, again, a lot of us have had clients die. A lot of us have had clients go to the hospital, not know what's going on. And it's extremely, extremely stressful, and traumatizing to deal with that. Again, if not for a good therapist, I don't know.

B 43:17

I wonder, do you think the conversation around prison or just incarceration in general, is going to change in response to COVID? Will this be an opportunity to open people's eyes? Are you seeing that at all? Or?

JD 43:40

I wish the answer was yes. But I kind of don't think so. One of the things that I have found, especially disheartening about this is that… well. So one of one of the things that has happened in a lot of towns, cities, rural areas where there are prisons, is that there’s an outbreak at a prison, because of course there is. And then there's a huge number of infections in the community surrounding it. Because the COs are going in, and they’re getting it, of course. Because it's just as dangerous to them. You're not protected because you're a CO, you're just a human who is subject to infectious disease. So they get it, they bring it out. Huge, huge infection in the community. There's a great example of this at FCI Loreto, which is in western Pennsylvania. It had an outbreak earlier this year, or late last year, time is fake, you know, whatever. I can't remember exactly when, you could look it up if you wanted to. There was 750 plus people at a facility that held 850 people who were simultaneously positive, it was just like, huge outbreak, everyone got it. That's the deal. Shortly thereafter, there was a huge outbreak in the community of towns surrounding it, which is, again, rural Western Pennsylvania. So it's pretty obvious to anyone looking where that came from. And I think the thing that I found very disheartening about that is that if ever there was a time to recognize that all of us are interconnected! My liberation is bound up in yours, my freedom is bound up in your freedom, right? How safe I am depends in part on how safe other people are. Right? And the obvious application of that is that if congregating people like that poses a danger to everyone, and people don't need to be incarcerated, they shouldn't be incarcerated. Even if I didn't think that as a matter of morality and ethics, I would think of it self-interestedly to protect myself, right? No, none of that. None of that. All these people say, hey, of course, keep them incarcerated.

In one of the suits, we called the union representing the correctional officers in advance because there was a different lawsuit where the COs and the prisoners filed suit as co-plaintiffs against the facility, because they were both obviously subjected to the risk that was happening. It was in DC. And first of all, yes, obviously, they face the same risk of harm, they're in the same congregate setting. And by the way, the Court took that case very seriously, I think in part because they couldn't just dismiss it as, ‘Oh, this is just fucking prisoners, doing their thing and suing us,’ right? The COs joining? It brings a different dimension to the lawsuit that I think, changed how it got looked at. And so we thought, oh, we should do this too. We got in touch with the union that represents the COs at the facility. And the person that we talked to—and this is a direct quote, I will never forget it, which is why I can say it's a direct quote—said “no CO will ever help any prisoner file a lawsuit.” Direct quote. And we said, well, not just help prisoners file, you would also be in it, you guys will also get stuff if we prevail, you will also be protected. This would be good for you. And they wouldn't even give us the time of day. They had even filed an OSHA complaint, which was good and detailed, and so we thought they might be open to it. They had filed an OSHA complaint about the threat of COVID in the facilities, and the risk t workers like COs and other staff. Occupationally, the occupational risk of getting COVID, because the BOP was not doing anything to protect them. And so we thought maybe they'll maybe they'll do it. No. We just attached the OSCA complaint to ours. And we're said obviously the COs think this is a big problem, here it is, FYI. But they wouldn't sign on.

Sorry to rewind all of this. The whole reason I brought this up was, if ever there was a time where people would have recognized that, hey, maybe we should care about this for even self-interested reasons, that would be it. And that did not happen. I don't know, I increasingly think that we are making progress slowly but surely in police accountability stuff on the outside. I've been cautiously optimistic about that. Not related to the pandemic, obviously. I think it's just been building for a variety of reasons that are like not germane to this conversation. But at some point, I hope that it extends to people who are incarcerated. At some point, I hope that when people talk about excessive violence and force by law enforcement officers, the greatest category of that—which is in prisons—will actually get folded into the same conversation. And I don't know, we'll see. I'm not holding my breath on that.

B 49:40

Right. It's, yeah, it's been a very I, I'm curious, has, I mean, obviously, now we're in the vaccination period and things. But have you seen the sort of litigation surrounding COVID in carceral facilities change in terms of, okay, they're definitely not going to give us, you know, releases, we should start asking for this or just kind of curious.

JD 50:10

I think once people realized that they were not going to get released—or that if they were it was going to get reversed and launched into the sun—I think people did start modifying what they wanted. Some people have done incredible work. I want to be very clear, I've just been so impressed. I have so much admiration for all the other people that are doing this work, so many people have just absolutely killed themselves over the last year working ridiculous hours to be able to do this. And a lot of people have gotten really, really good results, right. Whether it's, for example, a district court in Oregon ordered vaccination, a court in New York ordered access to vaccines, right–-

B 50:54

New Jersey, weirdly good with like ICE facilities,--

JD 50:57

–yes. People have gotten good results. I think we talked about this previously.. But I think that people have done really, really good work on the front end of the system. The whole incarcerated population has declined, in part because people have been really good arguing against incarcerating people pretrial, who don't need to be incarcerated pretrial. That’s led to some natural attrition, that work has been incredible. People have done incredible work in the compassionate release context. I think that’s one of the really good things to come from this. The compassionate release process had been expanded and structured in a way that would make it useful in the First Step Act, but had not been used that much, because that was only passed a year and a half before the pandemic or whatever. And so there was not a lot of law on the subject. So many really great advocates have done incredible work to expand compassionate release, in service of protecting people with COVID and getting high ris people out. That's going to have positive effects long after the pandemic.

I'm about to file a compassionate release that’s not based on COVID at all, for a guy who was a juvenile lifer in a state facility. And while he was in the state facility—an adult facility as a fucking 18 year old, right, he was in long term solitary, had the typical mental health impacts of that. Growing up and being an adolescent and in a men’s facility is very, very bad, right? Anyway, he did a thing that they construed as an attempt to escape and so prosecuted him separately for that. And I'm oversimplifying a little bit, but so he said, ‘Oh, I'm already serving life, I don't care, I'll take a plea deal, who cares?’ Pled to 10 years, consecutive to the life sentence, in 2000, right. He has since gotten his life together, has taken all these programs, has all these advocates on the outside that he works with about prison reform, trying to help other people, got college credits at Villanova, is unbelievable. Everyone loves him. He's great. Miller and Montgomery happen, and he got resentenced to an immediately parole eligible sentence, went in front of the parole board and made a strong case, based on rehabilitation, everything else, got paroled. But he has this federal sentence hanging over his head, so he gets paroled to start the federal sentence of 10 years. And so in theory has to serve ten more years. We're going to file a compassionate release motion for him based on extraordinary and compelling circumstances on the basis that number one, juvenile lifer, number two, long term solitary, number three, the purpose of, of Miller and Montgomery would be defeated if he was forced to stay incarcerated. And also, by the way, since he was sentenced to 10 years, he's actually served 20 years, so maybe let's chill a little bit. And let's let him go. That wouldn't have been possible, if not for advocates in the context of COVID going to all these circuits and getting circuits, every circuit to have addressed it has now said, district courts are allowed to define extraordinary and compelling for the purpose of compassionate release however they want. And that was because all these cases went up in the context of COVID-19. It's going to help guys like this guy that I was just talking about, because we're going to be able to go and say, this is of course extraordinary and compelling, let this guy out. That's only because of the meaningful work and a lot of really important successful, precedent-setting things that have happened.

B 55:22

Do you, I'm, I'm, you know, stuck in this, like, Are we, are we moving towards an age of pandemics? Like, you know, is this going to happen? Again, that kind of thing? Do you feel like prison or the system or whatever I don't even know, I'm so pessimistic about but like, have they been put on notice or taken steps that were a, you know, another pandemic to occur, they would not be able to get away with some of the things. Do you believe that that's happened or no?

JD 55:55

I think that if there's another pandemic… Look, the people who do this work are never going to stop, right? We're creative, we're indefatigable, we will come up with something, right, we will do something. But no, I don't know. Because the thing that I keep coming back to is, they wouldn't even take protective measures out of self interestedness. If you're not even willing to do that, why would I have any faith? Why would I have any faith in you to do the right thing in a future circumstance that's very similar? I think we talked about this last time. Even before the pandemic, I had gotten to: actually prisons are bad, we shouldn't have them. This has only cemented that. They're literally death traps, right? That is what they are during a pandemic. Also generally, but especially during a pandemic. And–

B 57:19

it's like, Yeah, there's a virus in the box with the them… yeah

JD 57:24

Yeah, on that subject, I'm just going to detour for a second to tell this other ridiculous story. The FDC kept saying it didn't have any positive cases. It became pretty clear that they for sure did have positive cases. They just weren't testing for them. They did this very circular thing to justify not testing: They said, oh, well, because no one has it… they set up a quarantine unit in the front, where you would wait, if you came in off the street. It’s a pre-trial facility, so people are cycling in and out all the time. But they said, if you come in, we'll put you in quarantine, we will test you when you get there, at the door. You’ll be in the quarantine unit for 14 days, and then we'll test you again at the end of quarantine. And then if you test negative at the end of quarantine, we'll move you into gen pop. So their theory was that because it's this incredible quarantine unit, they couldn't possibly have it in the behind the quarantine unit, right? By the way, not testing COs and staff when they come in, right. They were doing the temperature checks, which we now know are pretty bullshit. And they were asking staff to self-identify whether they had symptoms or not. They took the position that legally they could not test staff because of medical privacy. Which… wild.

But the point is, this thing started happening where people would test negative at the door, and they would test positive at the end of quarantine. And we said, Okay, this obviously means that it's in the facility. Like, obviously, that is what this means, unless you're arguing that every single one of those people had a false negative at the door, and also had an exceptionally long case that still would test positive 14 days later. Other than that, it's definitely inside the facility. They said, no, no, no, no, that's not what's going on. We kept trying to get the court to order testing, the court wouldn't do it, whatever. They threatened to appeal if the court ordered testing, which they probably would have won, which is I think one of the reasons the court didn't do it. But the point is, they only got caught because they tried to transfer someone out of general population to a different facility. And that person has a positive on the way out. And so we said, okay, under your own contact tracing protocol you have to test that person's cellmate and other people. And they all tested positive. And then they had to test everyone, and like 40% of the people got positive tests. Which is to say nothing of all the people who definitely had it in the months before they had to do that. Who had already had it and therefore wouldn't test positive. I'm sure everyone there had it. But the point is… what was the point of this? Why did I start?

B 1:00:29

Yeah, I mean, that they would deny its existence, even as it was undoubtedly affecting the staff, you know, saying it's not here, then you can't be telling your staff it's here, or you know, or you are, in which case, that's a whole other problematic, like, no knowledge power kind of dynamic.

JD 1:00:46

I don't know. Maybe we were talking about the virus in the box. And that was maybe about it, because of course, it was in the box. Yeah. No matter how you define the box, and no matter what smaller box you put in the front of the box, it's in the box, right?

B 1:01:03

Oh, wow. Well, I mean, I think we've definitely, I can't think of anything we haven’t covered last time. And I don't take up too much of your time. I definitely think I'll go ahead and stop the recording.