AM 00:00:03

Hello, my name is Alex Mark, and I'm a volunteer with the UCLA law COVID-19 Behind Bars Data Project. I want to start by explaining how we plan to use this conversation that 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 and the general public. And portions may be posted online or discussed in posts on our website or other published writing. I want our conversation to flow freely, and I realized that you may discuss a sensitive topic or mention a piece of information that you later realize would like withheld. If you request it now, at the end of the interview, or later on after further reflection, we are happy for you to review the transcript of our conversation before it is made public and to redact any portions you deem necessary from the transcript and the recording. So without further ado, uh please introduce yourself.

MN 00:00:56

Hi, I'm Michele Nielsen. I'm an associate at Munger, Tolles, & Olson, and I worked on COVID-19 litigation related to Orange County Jail and a little bit, uh Tulare County.

AM 00:01:10

Okay, um, so I want to start by asking, over the past year, year and a half, since the pandemic has started, how would you say your relationship with your clients and your work has –has changed the most?

MN 00:01:26

Um, I mean, I was involved in some prison conditions related litigation prior to the onset of the pandemic. I think that the pandemic itself put a lot of stressors on incarcerated people. Um, not only was their health a huge risk, but they also had fears about, you know, people on the outside, and how their families were being affected. And so, um you know, there's obviously, uh strong emotional, um difficulties involved in the pandemic, in addition to the medical risks. And so I think that inherently finds its way into the attorney client relationship. Um often, you know, we are counselors to people, um in legal matters, but we also sometimes hear about, um you know, what's going on in people's lives to a greater extent than necessarily just the legal issues. Um so I would say, you know, that um the effects of the pandemic were felt as a part of the attorney client relationship. Um, as far as, you know, my relationships outside of, um incarcerated individuals, I think, you know, the pandemic had a similar effect on everyone, um on the outside. And so that also is a –a part of the attorney client relationships.

AM 00:02:46

So you mentioned you had a few, uh you have –you had a little bit of experience representing incarcerated persons before, uh the case you're working on now?

MN 00:02:57

Yeah, so, um, I am working on a case in the ninth circuit right now, um that's related to a denial of medical care, Eighth Amendment claim.

AM 00:03:08

Eighth Amendment claim? And as much as you're able or willing to, um how– can you speak to how much you would say, like the unique experiences of the pandemic have affected the litigation so far? If you're not able to say anything, that's fine, too.

MN 00:03:29

Um, so I mean, in that particular case, the Eighth Amendment claim is not related to COVID-19. Um, it's a separate claim for, um, unconstitutional denial of medical care. Um, and so the pandemic was more of an effect on the client, um who's still currently incarcerated, um than on the litigation itself.

AM 00:03:54

Okay. Okay. Yeah, I think I am following that. Um, do you feel that, um, correctional facilities and just the justice system in general, have appropriately responded to the pandemic?

MN 00:04:13

No, not at all.

AM 00:04:17

Um, what –what do you think, realistically, could have been done differently? Um, either at the outset, or just any point along the way, even now, at this point.

MN 00:04:34

So I think there were basic CDC guidance and measures that should have been implemented in every congregate living facility including jails, prisons and immigration detention facilities. Um, so there are basic things, like providing masks and trying to get N95s or KN95 masks; replacing masks, um when they became dirty or were no longer usable or they got wet; um allowing for social distancing within facilities and housing people in ways such that they could maintain social distancing if they wanted; uh providing cleaning supplies to people who are incarcerated, and, you know, facilitating professional cleanings of congregate and, um you know, common spaces in facilities. Um, you know, in the Orange County litigation, we also –we brought a habeas claim in the hopes of decreasing the population in Orange County jail to allow for social distancing in the facility. So, you know, uh in California, county officials and usually County Sheriff's have authority to release people from jails, um in the instance of an emergency. And so, you know, under our legal theory of the case, this was a public health emergency, and they had the authority to release people. Um, and so there were things they could have done with, you know, moving up release dates a few months earlier than they would have otherwise been; or um considering people for release; or, um you know, releasing people on bail, who they might have otherwise kept detained; um, or reducing bail amounts. There were a variety of measures they could have taken to reduce populations that wouldn't have affected public safety, um in any concerning way. So I think, you know, there was a slew of very reasonable, sometimes affordable measures that could have been taken. And they generally were not, from my impression.

AM 00:06:31

Right. And do you think that was, um neglect or maybe just COVID denial in general, not taking it seriously? Is it a broader symptom of, you know, the way that our prison system works? I mean, just, can you speak a little bit more to that?

MN 00: 06:50

Um, I think there are a variety of factors that, um, affected this. I would say, there was a lot of, um, politics that played into this. Um, so for example, I think that President Trump's response to the pandemic and downplaying of the seriousness, had an impact downstream on the way that people perceived the seriousness of it. Um, you know, likening it to a flu, when it's actually a much more serious and deadly disease, um I think, had peripheral effects, and people didn't take it seriously enough, as they should have. Um, aside from the politics, I think that it's, you know, how I expected that prisons and jails would respond to, um, some sort of medical threat. I think it's common that in, um, prison and jail facilities, there's a rampant dehumanization of the people who are incarcerated. And they're not viewed as, you know, equal human beings to, um you know, for example, people who work in the facilities or people who are not incarcerated. And so when the argument was that everyone who lives in the facility could get a very deadly disease, I don't think it, um, received the response that it would have, had these been people who were not incarcerated. I’m– I think the thing that was surprising to me was that, um for people who are working in those facilities, they're similarly at high risk. And so it was surprising to me that correctional officers, um, didn't see their own self interest or your own skin in the game. And, um you know, how providing masks to incarcerated people could help their own health and their likely outcomes. Um, so I think, you know, that I chalk up more to some of the political, um and, you know, media coverage and wider discussions that were going on at the time. Um, but I think in general, the lack of concern for the people who are incarcerated is the same lack of concern that you see on a daily basis.

AM 00:09:01

Do you think that there's a way – this is a –a big question, so don't feel like you have to have an answer – but do you think there's a way we could, you know, ever design our –our prisons or carceral systems so it isn't so dehumanizing? Because it seems like one of the root causes of the failure of prisons during the pandemic is this dehumanization.

MN 00:09:24

So, I mean, there are other countries that have models, um, where the incarcerated person is really seen as an equal participant in society, and the goal really is rehabilitation and not punishment or retribution. Um, so for example, I, um, I briefly worked in Germany as an intern and, uh, there was a program they had there for, um, for people who had committed pedophilia. And it was essentially, instead of full time incarceration, the people would go to a facility during the day, like they went to a job and receive intensive therapy and services, and then they would go home at night to their homes. Um, and so the idea there was truly rehabilitate, prevent the behavior from happening again, um, rather than punish the person. It's more to prevent more damage to society from happening, than to, you know, exact retribution for, um, the behavior. So, in that particular program, I think that's one of the most, um, extreme instances of the type of crime that receives different treatment. Um, there's also, you know, just jail facilities that look more like, um –uh you know uh… I don't exactly know how to say it, but like, jail facilities that aren't about, you know, the panopticon, and Foucault's like, you know, constant tracking of people and herding them, you know, more like animals in and out of cells. It's more about, you know, giving people privacy and independent space and focusing on their mental health and the reasons why they may have committed the crime, and, you know, preventing that from happening again by addressing root causes. Um, so it's much more of, you know, just a facility that happens to house people, as opposed to, um you know, locking people up behind bars in a punitive way where inherent in, you know, the spatial arrangement of the place, they're meant to suffer.

AM 00:11:30

Right, I mean, I– this sort of reminds me of the Scandinavian or maybe it's just specifically Norwegian model?

MN 00:11:36

Yeah.

AM 00:11:37

But um, no, their –their prisons are not cages.

MN 00:11:40

Exactly, yeah.

AM 00:11:41

Yes, um, and I think, if we were, you know, ever even culturally to move to a place in the United States where we would design our carceral facilities that way, I wonder if the economic roadblocks, at least, you know, the economic arguments, I'll say, would still stand in the way. Um, because I mean, I think, here, a lot of political arguments often come down to how much we're spending on x. And–

MN 00:12:11

Yeah.

AM 00:12:12

So I'm also curious if like, in your advocacy with, you know, this current litigation or just other COVID litigation you ever encountered, someone trying to make the argument that, you know, “oh, it costs too much to put these procedures in place,” like, you know, “oh, this is going to hurt our bottom line if it was a private prison, or even if it's public, just taxpayer dollars,” something like that.

MN 00:12:34

So I think a lot of the discussions around, um, money often fail to recognize that if you fix the root problem, and prevent recidivism, it's less of a drain financially on society than it is to incarcerate someone. It's actually extremely expensive to incarcerate an individual person for a year, it's more than tuition at a UC University, for example. Um, so if society were to distribute those funds towards rehabilitation and, you know, services to –to address whatever the root causes are, it actually, in the net for that person's life, probably would turn out that there's less, you know, public funding spent on that person. Um, at least, that's been my take over the years. Um, and so I think, you know, leaving aside that piece, that it actually is more financially feasible often to use a different model than what we're currently using, um I think that's a really common argument that, you know, jails and prisons make, um, when you know, justifying their decisions. So, for example, the cost of personal protective equipment becomes an issue or, um you know, the cost of expanding facilities to allow for, um you know, less crowding. So, for example, when there was overcrowding in, um, California's prisons – there still are –there still is – but when it was particularly unconstitutional, um before the ruling in Brown v. Plata, I think, uh, it's highly likely that the prisons made the argument that California can't afford to build more prisons or can't afford to expand the prisons that it has in order to house people in more humane conditions. Um, so yes, I think that is a very common refrain. Um, at the end of the day, though, if society has decided and the laws are geared towards locking people up for a certain amount of time, I think the minimum obligation is that we treat them constitutionally. And so if, um you know, society decides to criminalize certain behaviors, and the net result of that is mass incarceration, then society has agreed to take on the price tag, and it doesn't mean that it justifies treating people as less than human, in my opinion.

AM 00:14:56

Yeah. Uh no, I mean, nothing more to say there. Um, I mean, clearly I –there –um… I agree with a lot of your –your takes and opinions on prison law here, but has any of –have your opinions on prison law changed at all since the pandemic? Or are these, um I don't want to call them beliefs but opinions. you know, just –is this sort of –did you get into this type of work because these are your beliefs or have they shifted and grown since you've became an advocate.

MN 00:15:37

Um, so I was interested in prison conditions issues, um long before COVID-19. So, I wrote my senior thesis in college on reentry issues at Homeboy Industries in downtown LA and gang rehabilitation. Um, I studied anthropology at Princeton and focused on, um, violence and theoretical religion. Um, so you know, that was like a long standing interest of mine. And then I eventually went to law school, um I published a couple of pieces related to prison conditions. Um, and from there, you know, I'm finally in a position where I'm at a firm and able to take on pro bono matters. So I have, you know, worked on these two COVID cases and then, um, the one other conditions case so far. So I think I had existing views on incarceration, um drawn from, you know, academic experience, and then also personal experiences, knowing people who became incarcerated. And so, um, I think the COVID litigation was just a –a natural fit for me. Um, I don't think that my views changed very much over the course of litigation. I think that often, you know, the positions that Orange County, um the Orange County Sheriff, took were what I would expect them to take, um and some of the arguments and dismissiveness and you know, um concern, you know, lack of concern, were predictable. Um, so for example, we had instances, um where, you know, opposing counsel would be in the same room with someone not socially distanced in the height of the pandemic without a mask on. And so, you know, I think that that was what I expected. Um, it's consistent with the –the view that the pandemic and COVID was not that large of a threat, or um not something to truly be concerned about. And so I think, um you know, my overarching views were largely just confirmed, um through working on these cases.

AM 00:17:43

Since you expected them to act that way, have you seen any sort of progress or, yeah, progress in the way that we treat incarcerated persons since you've been involved with this work?

MN 00:18:01

Um, you know, we did get some relief. And I think when, you know, there's a court who is monitoring or aware of the situation, um or there's active litigation, you do sometimes get some movement and response, um that's helpful. So for example, there was, you know, in –in some instances, we believe they put out a little bit more hand sanitizer, still not sufficient amounts, but sometimes a little bit more, or, um you know, occasionally we could do individual advocacy when we heard about a particular person’s situation. Um, and so every once in a while there were, you know, some small steps that were taken. Um, but overall, I think the, you know, the –the system is not set up such that courts control what prisons and jails do. There's a wide amount of discretion given to officials to administer prisons and jails. And only if you make a very strong legal showing and clear the hurdle of liability, do you ever get to a point where, you know, courts can craft some sort of relief, um or, you know, take on a little bit more of a monitoring role. And so I think, you know, facilities that don't have that, I am afraid to know what's going on there. Um, and I think for facilities that are in active litigation, sometimes it's, you know, minor compliance, um to get past a particular stage of the case and appear to be, you know, following the proper protocols and doing the right thing, long enough that, um the litigation, you know, loses a bit of its bite.

AM 00:19:41

Have you noticed any shift in public opinion a lot, especially in the past year, in terms of how we treat incarcerated persons?

MN 00:19:49

So, you know, Orange County is an interesting example because it's predominantly conservative. Um, I grew up in Orange County and I have friends and family in Orange County, and it was interesting to see that some were staunchly opposed to the work that I was doing and voiced those opinions to me. Um, and so I think, you know, the –it became politicized. The pandemic really became about political allegiances. And in many instances, when people identified as, you know, Republican voters, they, you know, decided to treat the pandemic in a way that they thought the Republican establishment, Republican figures, were treating it. And so um, you know, I –I spoke to some of them in general about their takes on the pandemic. I tried to explain some of, you know, the scientific information that, you know, we were aware of, because of our case. Um, and, you know, because of like, ongoing work on COVID-19 during the pandemic, and, you know, new studies that came out and articles about things like long COVID and sort of the long term health impacts, and, you know, some of the more serious results of contracting COVID-19, like organ failure, and, you know, other major issues that were emerging, um you know, as we learn more about the disease. But I don't think that most people, you know, were –were in a space where they were willing to learn about it. It was more that once they had taken the political position, it becomes difficult to, you know, acknowledge the other side or change your mind. And I think there's a huge, um you know, resistance to people, you know, changing their minds once they've already taken a very firm position. Um, so in general, I would say, I think that, you know, people's views remained fairly constant. And, um you know, there are discussions that can be had when you know someone well, um and, you know, I've had some of those discussions, and every once in a while you, um, can get through to someone, and, you know, help them to see your perspective a little bit better. But, you know, I –I think at the end of the day, it's, um, it's sadly the case that many people, once they've dug in their heels, are not really willing to engage in a constructive conversation any longer.

AM 00:22:14

Couldn't agree more, uh especially when those beliefs become part of someone's identity? Often, I think polarization is really starting to make political ideologies closer to, uh, really how someone defines themselves in some cases, and it's a lot harder to change someone's mind when you're– they see it as changing who they are. Um, yeah, have you… so what about public opinion or perception of just um, advocacy for incarcerated persons in general, beyond COVID litigation?

MN 00:22:52

Um, well, one note on the COVID litigation, um there were ongoing press releases from the Orange County Sheriff during our litigation, some of which I felt completely mischaracterized the litigation. So for example, there was, you know, a release of someone that was unrelated to a change in, um, any sort of release procedure for COVID-19, it was just a standard run of the mill release, and, um, that person ended up, um, reoffending, and that was connected to our COVID-19 litigation, even though there was no factual connection, in one of the press releases. So I think there were efforts, um, to, you know, to control or guide public opinion. Um, the sheriff made multiple public appearances on, you know, television shows and things like that to try and, you know, make the case to the public about what he felt should happen in the litigation. Um, and I think, you know, his efforts are– were, you know, fairly influential, because people in Orange County, um I think, generally looked up to the sheriff and um, you know, saw him as someone who was an expert in the area and understood what was going on. And so I think um, you know, him saying things about how this could affect public safety really made people afraid. And um, you know, that obviously um, is something that affects the perception of the case more widely. Um and, you know, I'm sure, you know, it's something most people in Orange County heard about, and potentially our– our judge may have seen some of that, um that media coverage and some of the articles. And so it's– it's one more avenue where, you know, the litigation is sort of taken outside of the courtroom, and, um you know, is affected potentially by public opinion.

AM 00:24:50

Um, I'm kind of shocked actually to hear that about the sheriff. That's– that's ridiculous. Um, I mean, I'm not surprised that, you know, that happens. But yeah, I mean, I– I was asking about public opinion more generally too just and how maybe policy positions have changed too. But, um, the fact that public opinion so directly influenced your case, too. It's– it's pretty unbelievable. Um.

MN 00:25:27

Yeah, I mean, who knows to what extent or if it influenced the actual case itself, but it was definitely something that was going on concurrently with the case. And, you know, there were Orange County Register articles and things like that discussing the case. So, there– there was public spotlight and attention to what was going on.

AM 00:25:47

Yeah. Um, how much of it, like public perception, do you think comes from this moral panic about bad guys roaming the streets and not being able to, like, break away from these myths we have about incarcerated persons in crime? And, um, I don't know, it just seems so persistent. It seems like, since the latter half of the 20th century, people, um especially in more conservative areas, are just very fearful, and– and cautious about sort of this– this mystery, criminal? I mean, that's just sort of a caricature on being let out. And it's clearly– it's false and unjust. But do you feel– I mean, do you agree, do you think that's just sort of this, I don't know, panic people might have?

MN 00:26:49

I think it's related. So you know, in our particular case, we were, you know, litigating over a jail. And I think people don't often understand the difference between a jail and a prison. And so, you know, for example, someone can be issued a bench warrant and end up in a jail for unpaid parking tickets or really, you know, not dangerous, potential offenses. And so I think, um you know, when I talk to people in Orange County about their fear, related to releases, for example, they often didn't realize that not everyone who was incarcerated, was accused of, you know, an extremely violent crime, like, you know, the– the image they often said was, you know, rapists and murderers are who are in our facilities, and they didn't understand that the vast majority of people were not accused of those crimes. And also um, I think there was a general lack of understanding, um that people who are in jail are still innocent. They have not gone to trial, they may not have committed the crime at all. Um, and so you know, these are people that may be vindicated when they get to trial, and may just not be able to afford bail, um for example. So I think that lack of understanding that these are not convicted people, you know, there are some people in, um our county jail that have been convicted and are post conviction, but for many of the people in the jail, um they are pre conviction, and pre trial. So um I think that just the lack of understanding of where people are in the criminal process, and what facilities are associated with that, you know, contributes to the idea that if anyone leaves the jail, that they must be a huge public safety risk. Um that said, I think there are plenty of people post trial, who had convictions who also were not public safety risks, um or who may have been, you know, convicted of nonviolent crimes, or, you know, who may have been incarcerated for so long that the risk of recidivism or the likelihood of, you know, an additional violent crime is much lower. You know, there are other factors that would make it such that, you know, many of the people in the jail could have been released, in my opinion, and not um affected public safety. Um but I think there were, you know, misconceptions about what the population was that we were looking at, who– who it could be and what sorts of underlying behaviors or potential crimes were at issue, and then also where people were in the criminal process.

AM 00:29:23

Yeah, I mean, I was definitely getting at just narratives based in misconceptions, and how that– that really influences your work and influences, uh prisoners rights, um. And it's just interesting to me how it seems like there's a lot of stubbornness of people to– to not hear the facts much of the time around incarcerated persons, around um pretrial detention, and the really disproportionate amount of nonviolent violent offenders that are, you know, often the subject of this litigation. Um, so, yeah, I mean, I– I'm curious if you've ever done any litigation outside of Orange county?

MN 00:30:18

Uh so– jails and prisons? Yeah. Um so I worked just a– a tiny amount on, um a case my firm also had related to, um Tulare County Jail in California. Um and then my other, uh Eighth Amendment case is not a California case, it's in another state.

AM 00:30:40

Where's Laird County?

MN 00:30:42

Oh Tulare? It's in like, Central– Central California, it's inland.

AM 00:30:48

Okay. Have you noticed any difference in like, either how the system operates, or the public in– between Orange County and Tulare or in the other state you're working in?

MN 00:31:03

I don't think I was involved enough in the Tulare litigation to know for certain, but from what I, um picked up from my work on that case, I think there was, you know, a similar resistance to implementing, um you know, basic public health measures in that, um facility. So I– my perception was that it was fairly similar. Um I think, you know, in terms of my other case, um it's, you know, almost the same kind of attitudes. This case was not about COVID-19 but it's similarly involved, um you know, denial of fairly, you know, routine, standard medical treatment. Um so I think, you know, in that case, the decision of that, um facility and that system to not provide the medical care, um is, you know, fairly consistent with the same dehumanization theme that we've seen all along.

AM 00:32:07

Yeah. Sorry, I just forgot my question. But um–

MN 00:32:14

That’s okay.

AM 00:32:15

Do you feel that, um, the way that prisons are able to get around the Eighth Amendment, much of the time, is largely just because people tolerate it, meaning the public tolerates it?

MN 00:32:36

Um, I think it's the legal standard, and that people trust in the legal system to use the right standard. And so, you know, the standard of deliberate indifference is a really high bar as far as proving the intent. And um, you know, I personally think it– it should be a lower standard. Um you know, whether you intended to cause someone's death or not, um at a facility, you were still responsible for their care. And so, you know, failing to act, you know, like gross negligence, for example, um to me seems like something that, um you know, should be available, um in a lawsuit, you know, that should be enough to give rise to some sort of relief to ensure it doesn't happen again to someone else. Um and so, I think people generally perceive, um you know, prisons and jails in the legal system as– as ensuring that a minimum level of, um you know, care, and, you know, basic human needs are met in the system. And I think that's a misperception. I think that the constitutional standard is very high. And it's a difficult bar to meet, you know, even if there truly was deliberate indifference, um distilling that down under litigation to get proof of it can be a challenge. Um and so I think the– the system doesn't necessarily, um provide that baseline level of humane treatment that people expect that it does. Um so, you know, it's sort of twofold. I think, there's this trust in a legal system to, you know, uphold the values of the society, and then the society, um when it doesn't function that way, doesn't necessarily want to dig in or, you know, be self reflective and realize that that's not what's happening. Um so, you know, in my opinion, I think it– it would be much better if we had a different legal standard, um and if Eighth Amendment jurisprudence had developed a little bit differently. The other thing that I ran into was people not realizing that the Eighth Amendment existed or that there were constitutional provisions that, you know, affected how we can treat people once they're incarcerated. Often people–

AM 00:34:58

When you say people– Sorry. Which people? Didn't realize

MN 00:35:01

Just people in my general life in Orange County.

AM 00:35:04

Oh

MN 00:35:05

Um so I don't live there anymore. But, um you know, when people would talk to me about these issues, um so it's members of the general public. So often they would say things like, but, you know, people in a jail or prison don't have any rights. You know, I'd say no, they do have constitutional rights. And they would say the Constitution doesn't say anything about that. And I would explain, no the constitution does say, there's a lot– a provision about this.

AM 00:35:29

But explicitly.

MN 00:35:30

Yeah. And so I think there's this, um you know, often there's just a lack of education around these issues. And people have the mentality of sort of, once we lock someone up and throw away the key, they've lost all, you know, privileges of being a member of our society. Um and that may include being treated, you know, humanely and, you know, having things like medical care, food and housing, that's, um you know, not cruel. Um, I think people just generally, um don't necessarily understand the legal landscape. But, you know, once you point out that there is an existing legal framework for prison conditions and jail conditions, then, um you know, if someone's already educated to that point, then I think it often becomes about their trust in a system that well, this– they must be doing the right thing then and I don't need to worry about it any longer, or concern myself or, you know, educate myself further or advocate or, you know, take any further steps.

AM 00:36:28

Do you think with the rise in progressive prosecutors being elected, that the public is starting to distrust the system, as it stands?

MN 00L36:38

Um, so you know, living in LA, with the, uh, new election of George Gascón, I think, you know, people are aware that there's a transition going on from Jackie Lacy to George Gascón, but I don't know that, you know, the public perception has really, you know, caught up or is really paying much attention. You know, there's a huge, you know, there's a push against George Gascón already, and some of the measures he's tried to implement. And so there are, you know, people in the general public that are, you know, starting to pay attention to these issues and understand that a transition is underway, and some of them are opposed to the transition. So, you know, it's getting some attention. Um I think, you know, the Black Lives Matter movement brought more attention to police brutality issues, which is sort of related to these questions of prosecution and changing, you know, prosecutorial, um you know, prosecutorial agendas and prosecutorial, um you know, priorities. So, for example, you know, getting a more progressive prosecutor who might actually prosecute a police officer who, you know, kills an unarmed black man. Um so there are, you know, changes that are happening, I think it's, um more on the public's radar because of the Black Lives Matter movement. And because of some of these changes in the elections, I– I think um, the Black Lives Matter movement contributed to getting these progressive prosecutors elected, or at least in LA County. My sense is that a lot of the, you know, grassroots work that Black Lives Matter did, um affected the election for prosecutor in LA County. I know I personally got calls related to that prosecutorial election before the votes were cast, um you know, from grassroots organizations. And so I think, um you know, society is slowly becoming aware of it. And I think they're, um slowly starting to realize that a lot of the criminal justice system really is shaped by prosecutorial discretion, and there's very wide discretion. And prosecutors can make dramatically different charging decisions or non-charging decisions in the same case. Um and so, you know, over time, I hope that people will, you know, start to understand our criminal justice system a little bit more, and there'll be more, you know, discussion of it in public spaces. But, um so far, I– I see sort of, in– in LA County, a lot of the same knee jerk reactions, um where it's coming from a place of fear over the changes that are, you know, being implemented or that a prosecutor is seeking to implement. Um and so I, you know, I think it's similar to the way that people reacted to the idea of detainees in Orange County Jail being released during the pandemic to allow for social distancing. It's the same sort of fear that, um, you know, the public will not be as protected as it should be. Um when, you know, we have, I think, pretty strong examples and evidence that less prosecution and less incarceration often leads to better social outcomes for not just the incarcerated person but the community as a whole. So for example, Gascón was in San Francisco before he came to LA County, and there was not a– an, you know, insane outbreak of violent crime during his time there. Um so I– I think it's often a– an unfounded fear.

AM 00:40:10

Hm. Yeah and– and just like we had the protests last summer, I think we could be in a wave of backlash right now. Um, I worry, at least and especially with narratives around, I mean, media narratives really, around rising crime rates that are, I think, you know, inaccurately attributed to either new policies around policing or the pandemic, or both. And from everything that I've looked into, it's– it's just unclear why, um violent crime may be on the rise in some cities. But I’m curious if you've, you know, if this narrative, either backlash to the protests or, you know, increasing violent crime rates has influenced your litigation at all?

MN 00:41:02

Um I think it's always there in the background, for example, when people were reading articles about, um about our case in Orange County. Um you know, I– I don't know that characterizing it as a rise in crime is necessarily correct, it would depend on the location, and overall, we've seen a large drop off in violent crime since, you know, in the last, like, 50 years or so. Um and so, you know, a small uptick maybe isn't necessarily–

AM 00:41:30

Yeah, I think– I should correct myself. I'm not trying to frame this question around sort of a small uptick from well, 2019 to present day. I'm more talking about the fact that the question is framed that way. Uh it's kind of meta. But, um, rather than emphasizing that statistic, I'm asking, is the fact that I think the media is– is starting to emphasize that statistic a lot, erroneously, a lot of the time, has that narrative seeped into your work at all?

MN 00:42:11

Um, not directly. So I think it, you know, played into the way that people will read, for example, the press releases from the sheriff or the way they perceive public appearances by the Orange County Sheriff. So I think, you know, that framing, um, may influence the public's, um you know, views on some of the cases related to COVID-19 litigation. Um but I don't know that there was any sort of, um you know, direct instance where that framing, um, made its way into the litigation or, you know, affected any of the publicly filed briefs.

AM 00:42:54

Right, because, but as you said, it is a small uptick, if it's even statistically significant. It still seems like, anytime there is maybe a justification for limiting reforms that we're possibly seeing taking place, people will latch on to that justification. And so if they see this statistic, they're going to look at it and say, here's evidence why we need to slow things down, why we need to wait for reform. And it just seems like another, uh, roadblock, that that could be in the way at least this year. Um but also, possibly not. I know, Larry Krasner was just– he won the primary in Philadelphia. That's a progressive prosecutor that has, uh stayed strong in that city, or maintained strong support. So yeah, I mean, I don't want to be pessimistic, but it– I just have been hearing more and more of that talk.

MN 00:43:54

Yeah, I think it definitely will play a role in sort of the politics of, um you know, the changing nature of prosecution. I think there is much more of a push to get progressive prosecutors in– into those positions than there has been in the past. Um so, yeah I agree with you. I think we're going to hear more and more about it.

AM 00:44:17

Um so I have one last question. What do you think the biggest lessons– are the biggest lessons society should take from the pandemic regarding the way we treat incarcerated persons?

MN 00:44:32

Um I think, you know, from, in my personal opinion, and from my perspective, that, um people often want to punish people who are incarcerated to such an extent that they miss the fact that they're even sometimes hurting themselves in their own communities. Um and so there's such a prevailing drive to, you know, apply a retributive lens or to dehumanize incarcerated people. That, even when you appeal to their own self interest, they sometimes cannot, um, see your point. And so for example, you know, if everyone in Orange County Jail had contracted COVID-19, and many of them did, um and then everyone who worked in Orange County Jail had contracted COVID-19, and got home to their families at night, they could have spread the infection much more quickly through the wider Orange County community. They're also, you know, third party contractors in and out of the jail on a daily basis. And so there were a variety of people who are not incarcerated who could have contracted COVID-19 in the facility. Um and, you know, some of them may have, and we do know that some of the staff did. Um and so I think, you know, if your feelings of wanting to punish people are so strong that you can't recognize that you're going to make your entire community sick, or many of the people in your community sick, including your own friends and family, um due to that drive, um then it's truly a blind spot. And, um I would hope that the lesson would be to take a step back and try and recognize what's best for the entire community, um as well as incarcerated people, and that sometimes, um you know, I– I personally don't think that, you know, you need this justification to treat incarcerated people at, you know, baseline level of– of constitutional conditions. But, you know, for people who, um you know, are, I would say, blinded by the retributive aspects of the criminal justice system, um for– for that group of people, I think that, you know, sometimes you need to just take off the blinders and recognize what is best for you personally and the people around you, and that sometimes, that thing that is best for you and the people around you and your community is also related to treating incarcerated people better. Um and just because it's treating incarcerated people better does not mean that it is something that should not be done from a political or ideological standpoint. Um and so I would hope that that, um you know, message comes out of– of this litigation a little bit. That, you know, perhaps the people who worked in the jail who contracted COVID-19, um you know, that their families and their community recognize that they may have been safer, had, um had the jail responded appropriately, in the beginning of the pandemic and throughout the pandemic. Um that said, I, you know, I personally think we should treat incarcerated people humanely and, you know, not allow a, you know, a– a deadly disease to spread through the facilities, um unchecked, or virtually unchecked, regardless of the impact on the wider community. Um but I think that is a potential argument or narrative that could hopefully come out of these cases and may help to, you know, change the way that people focus so much on the retributive aspects of incarceration.

AM 00:48:13

100%, 100%. Alright, uh I'm gonna stop the recording now.