AM 00:02

Hello, my name is Alex Mark. I'm a volunteer with UCLA law COVID-19 Behind Bars data project. 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 and the general public. And portions may be posted online or discussed in posts on our website or other published training. I want our conversation to flow freely, and I realize 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 on after further reflection, we're happy for you to review the transcript of our conversation before it is made public and to redact any portions you deem necessary. So without further ado, please introduce yourself.

RQ 00:50

I'm Robert Quackenbush. I'm a staff attorney at the Legal Aid Society Prisoners’ Rights Project in New York City.

AM 00:57

Fantastic. Um, okay, so you were just telling me about how you were using the amicus brief that we filed?

RQ 01:06

Yeah. So we probably in October, we started having real suspicions about the statistics and death counts coming out of the New York state prison system, where the ultimate authority is Governor Cuomo, ultimately. And we decided to put out a FOIL [New York State Freedom of Information Law] request for facility-level data about the extent of testing and COVID infections among prison staff — because we know prison staff are the primary drivers of infection on the inside. And we needed to do this, because the state was not making these statistics readily available, or actually available at all, on their online dashboard — they would not publish these, you know, facility-level statistics about staff infections. And so we put out a FOIL request. And the state denied it, saying that releasing that information about the extent of COVID infections, like, down to the facility level — they claimed that that would endanger facility staff. They haven't really kind of fleshed that out. But the implication is that, you know, releasing statistics about where officers might be sick, alerts the public, and alerts incarcerated people, that that facility might be short staffed and vulnerable to mischief or attack or subterfuge or something like that.

AM 02:39

That's an interesting justification.

RQ 02:42

It is. As the COVID-19 Behind Bars Data Project pointed out in their amicus brief, they decided to support us, they did a nationwide review. It's 28 states and the Federal Bureau of Prisons [which now] proactively make that same information public daily, on their own webpages, without even awaiting a request. So New York is definitely an outlier, so far as I can see in terms of this specific data. And it's not just this specific data. I also saw that the Data Project put out a report card a couple months ago about listing each state's transparency during COVID. And, you know, a lot of states got F's, but New York got an F also. So like a bad F, not like not like an F plus, you know, minus, like an F minus. And so I guess seen in that stream, it's not surprising that they would be denying me this information. But if I got the sense at the time — you know, this was October, we were flirting with a third wave in New York. And we just really got the sense that the state was just trying to drag this out. You know, they will deal with whatever blowback happens when the pandemic is over, in terms of their response and in terms of their transparency. But our real suspicion is that they just want to get through this and not have any additional eyes and ears on what they're doing, at least for now. And, you know, we haven't been able to crack the code. There was a big scandal here in New York, where Governor Cuomo, in June of 2020, basically buried statistics about nursing home deaths. That was very well publicized. And we haven't yet been able to crack the code on prison deaths. We've seen some smoke out there — there's reason to doubt that the death numbers are accurate, especially because most of their death counting early in the pandemic was linked to testing. You were not counted as a COVID death unless you had tested positive for COVID. And testing just wasn't happening, you know, early in the pandemic especially. And at least in New York, if someone dies in state custody, that gets sent to the county coroner. And it's really the county coroner that's responsible for telling the state months later what the cause of death is. They do these big investigations. And so our concern is that there's going to be a lag, you know, it's going to take a while for these county coroners to get their final data and send it to the state. And hopefully the state updates their numbers. But we're anticipating this massive lag, so that whatever the number of deaths are right now in state custody, I think it was — don't hold me to it — a couple dozen. Very plausible it could go up as these numbers kind of flow in from the county coroners. We haven't cracked the code on that yet. You know, we wanted to do with the prisons what another organization did with nursing homes — to kind of blow the roof off. But we haven't been able to do that yet.

AM 05:53

So you brought up the nursing home data. I don't want to focus this too much on one person. But the nursing home scandal did seem really tied to Andrew Cuomo’s political strategy and saving face. How much of the, as you say, “cracking the code” around the prison data do you think has to do with politics, like, whether or not it’s Cuomo or just New York state as a whole? And how much do you think it's just sort of a systemic issue with prison data in general?

RQ 06:27

I would expect a similar course of conduct from most other at least New York governors that I'm familiar with, and the kind of people that we would elect as governor. I don't really see any champions for transparency in the political pipeline. And so I guess I have doubts that this would have turned out too much differently under one of the governor's challengers. There's just a real — there's a real distaste, right, for sticking one's neck out for people in custody. And I'm sure that applies in many places, you know?

AM 07:10

Yeah, I mean, I think that does… it speaks to, of course there are political calculations here. But it speaks to a broader taste, like you said. And I think it's discounting human rights violations for incarcerated people — that is a group of people that we sort of leave out of the human rights equation, the public health equation a lot of the time. So yeah.

RQ 07:38

Yeah, so we're gonna, you know — I will say too, at least our office, we focus on two different jurisdictions: the New York state prisons and the New York city jails. So we don't do too much with the county jails outside of New York City. And really the only local custody we deal with is in the five boroughs of New York City. And I still go back — I was talking with some of my coworkers this weekend, and in the middle of February 2020, I sent an email to my colleagues, and I go back and read it now. I just searched the word “coronavirus” in my Outlook to see what was the first mention of this? And I gotta tell you, it was embarrassing, because this was mid-February 2020, and I'm just, you know, asking my colleagues, “hey, you know, it looks like conventional wisdom is this coronavirus might be coming to America, you know, should we begin our planning? I know that the City Department of Correction developed plans in the 80s for drug-resistant tuberculosis, you know, they probably just have to dust off the plants implement them. So why don't we nudge them, just to see if they've got it together.” And it was so naive, because I just assumed that they had a plan, they just needed to dust it off, you know, read everyone into it and implement it. And it's not just a plan — they had physical infrastructure. Our office near the end of the 80s, as part of our tuberculosis litigation, basically forced the City Department of Correction to build a unit on Rikers Island that was for contagious respiratory illnesses, like tuberculosis, like COVID, you know, with the special ventilation and you know, reverse ventilation and all that. So, that facility is there, it's on Rikers Island. But as tuberculosis wanes, and other priorities replaced it, that facility more or less got converted to administrative segregation for high-security inmates, because just the structure of it, you know, people were very spread out; couldn't have line of sight with anyone else, just the way that the building was structured. And so they converted that facility there to be a cornerstone, basically, of their security apparatus. And they were unwilling, or unable, whatever — they just did not revert it back to its prior use for months and months. And I guess that should have kind of set the stage for me — like, oh, these people are flat-footed; like, they're not going to have that. But I just kept thinking throughout March of 2020, that this plan is gonna come into place at some point. Like they've got this, they've thought about it, they know that this is now The Thing, capital T, capital T, that they're gonna be dealing with going forward. And yeah, my naivete took a while to kind of wash away there.

AM 10:43

I hear that. And I think there was, I can't think of a single sector of society that really had a great plan, or was really prepared in February last year. Do you feel like with prisons, it was like… how much of it do you think was just total under-preparedness? Or was there maybe deliberate indifference in there, too?

RQ 11:06

Well, I mean, those aren't completely separate. I think it was plenty of both. Because at a certain point, they had the knowledge, right, and there was this really interesting synergy, I'm sure it was nationwide, but certainly here in New York — that epidemiologists, and Correctional Health experts, and activists, we were all saying the same thing. Like everyone was saying the same thing: one thing you’ve got to do, you’ve got to substantially reduce the prison population. Nothing else will work. And that kind of unanimity was surprising to me. You don't normally see that in terms of a strategy, you know — a marriage between the movements, and the more institutional ends of it. But it was universal. And they had all the knowledge that they needed at that point. You know, there were plenty of epidemiologists talking about how there's just no other way to prevent this other than what they're doing, other than emptying out the prisons. And the New York city jails did a good job at first. They did do a pretty good job; they did a decent job, putting pressure on other stakeholders that have an interest in it. So getting, it’s a crazy term, but getting the police to only make “necessary arrests.” I mean, that was a term that was thrown around by city government — necessary arrest — which begs the question of these unnecessary arrests they are making. But only do necessary arrests, keep the arrests down. And then you'll prevailing on prosecutors who aren't part of city governments, prevailing on them to be very judicious. And when they ask for bail, be creative when they ask for bail. And the judges, to some extent, were doing their part, delaying sentences — you know, doing things to prevent people from going to upstate custody, where there are more transfers and things like that. So there was some amount of creative thought that went into it at the beginning. But at some point, you need a partner in the executive branch — and we just never got it. And I think that was one of the overall themes I come out of this whole experience with. It was that no matter the creativity of defense lawyers and civil rights lawyers, no matter that, judges and defense attorneys are not well positioned to be the public health response, right? You need a partner in the executive. And yeah, maybe that was just at the beginning I thought that we needed to do this, we were going to do something to substantially lower the jail and prison populations, we were going to do something to shame the governor into doing that, even if it was through litigation. And it never came to pass. And especially, even in the city jails, by June or July of 2020, we started seeing the populations tick back up. And we started seeing population densities in the housing units get more and more full. And so you even got the sense that the city Department of Correction, which, as compared to the state, had taken a more proactive approach, it had more or less giving up on it. They declared victory by more or less July of 2020.

AM 15:04

So you don't think the city was really much more helpful than the state government then?

RQ 15:10

I mean, I think they were initially, but they didn't hold the line. Still, the housing units are full. And no, they ultimately did not. And both of them, both the city and the state, I have to say, are pointing to the statistics as being proof of the wisdom of their practices. Deaths were comparatively low compared to community numbers. And they're holding up the death numbers as being proof of, you know, the wisdom of their course of conduct, as if luck doesn't exist; as if, like, if they did the exact same thing again, that it would turn out the same way. And a lot of this is just the luck of who is coming into your facility. Not the wisdom of your practices. But who you're allowing into your facility day in, day out, and what kind of screening you're doing for them and things like that. I think in New York, we got lucky. Which is a crazy thing to say, because at one point, we were… it seemed like the national epicenter. But it could have been so much worse, based upon the practices that were being implemented by the city and the state governments.

AM 16:32

So how much do you think social distancing and remote work affected your advocacy?

RQ 16:42

I mean, a lot. It was probably four months before I was able to… it was probably mid-June, or beginning of July, before I was able to have my first calls with people in custody. Just because of the way our phone system works, we have a team of paralegals that act as our hotline, basically. And when we're in the office, paralegals will field the calls and learn what they need to learn for advocacy purposes. And then consult with us, put the person on hold, and come grab an attorney. But it just took forever for us to get our hotline situation set up confidentially, so that such a call that was coming from the jails, coming through these three-way calls, basically, were still confidential. So it just took a while. And the idea of developing a litigation strategy without direct input from your clients, for four months, you know, we really had to rely on… to the extent we wanted to be movement-centered, that was absolutely our goal… it's tough to do that without speaking to your clients, we had to rely a lot on their advocates on the outside. But you know, that's just introducing another filter between my clients and me. And, you know, I trust this particular filter. I trust it, I know a lot of these advocates, and I don't think they're holding anything back from me — but it's still a filter. And I don't like filters between me and my clients. And you know, that's still a problem today. I mean, not enough calls come through, just because of the cumbersome nature of it. And it's really only in the last two or three months that in-person visits have restarted, in-personal legal visits have started.

AM 18:35

Yeah. I mean, your relationship with your clients… Do you feel like… I mean, this is maybe an obvious question, what do you think they lost the most, your clients, from remote work and not being able to interact face-to-face for so long?

RQ 18:56

I think there's some measure of peace of mind. You know, it's not that we have all the answers by any means. But a lot of us in the office have been doing jail or prison work for a long time. And when something weird’s happening in jail or prison, and the client calls us, we can maybe provide some context for why that's happening. You know, if the situation needs to be chilled out, and we think it deserves to be chilled out, you know, we can chill it out. We can provide context, like “actually, this might be happening for XYZ reason.” We certainly could not do that for the first few months of the pandemic. We didn't have the information to provide our clients about what DOC and the State DOC were actually planning to do. And so even if we were able to speak to them in real time, we wouldn't be able to give them that information. But I'm mentioning this because our paralegals, mostly in March, and some in April, were receiving alarming calls from people in custody talking about near-riot situations because of the amount of disinformation, you know, where new guards would be bringing in new arrestees into the housing unit in the middle of the night. And, you know, the guards weren't communicative, or were being dismissive about, like, you know, who is this person? Have you tested him? Has he been screened? Like can’t you put him in, you know, into new admission housing or whatever. And we heard a few versions of this where our paralegals were legitimately scared about, do we alert anyone about this? Is that in our client's interest to alert anyone about this? What sounds like a near riot, or people threatening riots? And that was, I feel, mostly driven by really, really bad information. It was nothing but rumor mill. And, you know, we weren't able to get our words in there. And that was certainly one of the real hurdles of remote work. It remains that way.

AM 21:10

So how soon were you able to quell those rumors or quell the tensions?

RQ 21:15

Well, we stopped hearing about those by about May of 2020. Like in terms of it escalating to, like, near riot type situations. That is a lot. But at the same time, a lot of the stuff never went away, you know? A lot of the distrust — once that distrust was there, except to kind of build it, and they saw nothing, they saw no reason to build that trust with DOC officials. And so, you know, the well was poisoned, and it just doesn't become clean overnight. You know, our clients have a lot of reasons to distrust prison officials, and this kind of reified all of those preexisting reasons. And just as a small, kind of gross thing — maybe it's not small — but it really irritated the hell out of us, we learned that in New York state prisons there’s a company called Corcraft, which is basically the brand name for the prison industries. So prison workers were making desks, making eyeglasses, making things for city contractors — but yeah, they were also making hand sanitizer, which was banned in the facilities. They could not use that for their own benefit. And part of their jobs was to bottle it for use by city governments, public schools, wherever — actually, my gym still has a big bottle of NYS Clean. Like, I could see it, and I don't know how they got it, because they're not a city contractor. And that was just… I mean, that was just foul. You know, they couldn't point to any examples, of course, of this stuff ever being used to set a fire, which is the example that they always use as to why they can't give it out. Certainly no reason why it couldn't be distributed cell side. So, you know, a guard going around with a big jug, like, “everyone stick your hands out of the cell and we’ll give you a couple squirts.” And in the end, you know, we've eventually learned that touch transmission is not as dangerous. But at the time, it really kind of showed priorities, right? That exploitation was not going to stop for five minutes. You know, it just wasn't… they weren't going to skip a beat.

AM 23:51

Yeah. And clearly, they weren't restricting the hand sanitizer, because there were epidemiologists saying, well, they probably won't need it. I mean, yeah. I heard about that story last year. Pretty shocking. Yeah, maybe not surprising. But…

RQ 24:06

There's a lot of that, right? Shocking, but not surprising. A lot of that happened, I feel like, during the pandemic. Everyone just had low expectations for some of these agencies, and they met them, you know? They met those low expectations.

AM 24:22

Not quite related to what we were just talking about, but how long have you been doing advocacy?

RQ 24:31

Well, I started civil rights lawyering around 2009. But from 2009 to 2016, it was mostly damages actions against NYPD and corrections agencies. Not a ton of reform-minded work in terms of, like, seeking injunctions or seeking some kind of systemic reform, because we were mostly doing damages cases where the harm was completed, meaning it wasn't still ongoing. There wasn't a ton of advocacy for us to do, other than suing. Now certainly, you know, when we had clients who were having issues on the inside, we would do what we could. But it was more, like, ancillary to our work rather than core to our work. It was like we had a client and we were trying to do right by him. It wasn't like we had a client in order to do the advocacy; we had the client in order to do the lawsuit. So I wouldn't say that it was all experience with advocacy, those first seven years, it was mostly just do we have a case? But really, since I've started with the Prisoners’ Rights Project in 2018, advocacy has been a big chunk, about a third of our work. There's advocacy, litigation, and lobbying, are the three buckets of things that we do. So for about three years, I would say I've been doing a lot of it.

AM 26:07

And over the past year, which of those three have you been doing more of?

RQ 26:16

Honestly lobbying. Which is something I had never really had experience with at all before. But we had some grandstanding state and city senators, local legislators that, you know, were making noise about doing things. And we had our doubts that when push came to shove, they would actually stand up to the executive, whether it was the mayor or the governor. But, you know, it was too good of an opportunity to pass up. These legislators wanted to hear from us, they said. They wanted to, you know, work with us in order to push the governor and the mayor to do more releases, or whatever. And virtually nothing came of those legislative efforts. There's still some hope that they might have, like, had a 9/11 Commission-style investigation, but let's get real, that's not going to happen. That's not going to happen, you know… there's gonna be another crisis of the moment that kind of overtakes things, in Albany and in the city. So we did more lobbying than was ultimately justified, but it was kind of like, we just didn't think that we could pass it up. These legislators were making overtures to us. And we felt like we had to meet them there.

AM 27:48

Do you think part of the reason why legislatures are not exactly quick to address this is because of the public? Well, do you think the public or legislatures or both view this as kind of a niche issue? An issue only affects, you know, people who are in prison — it only affects certain people, it doesn't really affect everyone else?

RQ 28:11

I don't think there's any way to explain the difference. So the answer is yes, I think that is the difference. But I don't think there's any other way to explain New York's justified reaction to the nursing home scandal, versus the kind of ongoing silence about what had happened in the prisons,

AM 28:39

Exactly.

RQ 28:41

They’re both, you know, whatever. I'm sure there are some retirement homes or assisted living homes that are close to major cities. But by and large, the prisons are not, at least in New York. They are upstate and in western New York, very far from population centers. And so there's some amount of “out of sight, out of mind”. But you know, nursing homes are also pretty far out of sight. I don't see them as I go around the city, for instance. But the fact that they were out of sight was not important, because we could all kind of see ourselves with a family member in a nursing home. Fewer people can see themselves with a family member or a loved one in jail or prison. And of course, that's not because a lot of people are more law abiding than others. You know, a lot of people commit a lot of crimes don't end up in prison. They just do it with a suit on, or they do it, you know, in certain neighborhoods, where there's less eyes on it. So I don't know that there's any other way to explain the kind of indifference — that kind of public indifference — to the jail and prison situation. You know, we use these disparate terms as meaning opposites, like “prison” and “the community,” as if there's a line between them, that they’re separated. And I don't think there ever was an appreciation in the community that the prison was actually part of the community. We send people from the community into the prison. People come from the prison back out. Like, everyone in there is coming out at some point. Some of them are coming out tonight, all the workers are coming out tonight. They're part of the community. And the idea that you can let one corner of the community fester and think it'll just stay there, it's really naive.

AM 30:45

Yeah, it's delusional, I might even go so far to say.

RQ 30:50

Yeah. Because like, you know, cognitive dissonance, right? Like, yeah, you have to think of that, you can't think of the fact that it will come from the prison to the community, because then you have to start thinking of the prison as part of the community. And we can't have that. You have to think of the prison as something else, in order for the system to kind of keep pushing the way it’s pushing.

AM 31:13

How much of that do you think has to do with the fact that in America, you know, our carceral system is … I'm not an expert. This is very rudimentary. But I feel like it's designed to just sort of take people away. That's not a hot take. And I think in a lot of nations, especially thinking Scandinavian countries, it's thought of as a way to sort of, you know, reintegrate someone into the community, to help the community heal. It is still about the community, not about punishment as much.

RQ 31:46

Yeah, you know, in philosophy courses, and in the first year of law school, you learn about all these different rationales for the criminal justice system, right? There's retribution and deterrence and rehabilitation. That's just some egghead stuff, right? Like, out here into the real world, it's retribution. Like that is the goal of the correctional system. Their rehabilitation is just, it's nothing but lip service. These programs are jokes, the programming is a joke. There's nothing about these programs designed to do really anything to help people reintegrate into society, they're concerned with taking some of the rough edges off — like, you know, violence interrupting, and you know, temper and drug treatment, all incredibly important things, but most of which are connected to other ailments, meaning some kind of economic issue or just emotional and mental health issues. Like whatever it is. And there aren't really programs designed to set up to deal with those kind of core issues that people need to have their footing before they get released.

AM 33:17

Yeah, like you said, that was all just egghead stuff. Because I've heard the term, you know, correctional facility, rehabilitative facility. I guess I've always just sort of given at least some benefit of the doubt, but I mean, I've never seen any evidence of any real sort of corrections. I don't even think that word sounds right, necessarily. But yeah, I just think I'm hoping over the past year, the mindset around criminal justice, you know, among the public, will become less punitive. But I guess we'll see. I mean, yeah, do you have any optimism around the declining number of people in prisons and jails, and the movement around progressive prosecutors, and similar trends?

RQ 34:16

I think they're all positive. You know, ultimately, I'm into harm reduction. So I think progressive prosecutors are harm reduction, shorter sentences is harm reduction. It's not the gold standard. It's not what we're looking for. You know, they're still putting plenty of people in prisons and jails, and the correctional system is what it is.

AM 34:48

What do you think we are looking for?

RQ 34:54

I'm sorry, I couldn't hear you.

AM 34:55

I said what are you looking for then?

RQ 35:01

I mean, ultimately, I'm an idealist. I'm not ready to give up the idea that jails and prisons are unnecessary. And I don't know the path from here to there, you know, and that's always the toughest thing. It's easy to dream up the future. But building a bridge from here to there can be extremely difficult. And how much pain are you willing to inflict on people as you get from here to there? But you know, I'm all in favor of progressive prosecutor types and, you know, thus far, it remains to be seen how effective that is. I've been fascinated over the past couple years seeing how some people's attitudes about incarceration are changing, from the President of the United States on down. I've been surprised to hear, in the last couple years, some people being open to reform-type stuff. But that's, you know, that's not coming from within, right? That's coming from the pressure without, from folks that are advocate types, you know.

AM 36:18

What do you think about… I mean, this is such a speculative question, but a world without prisons and jails? Do you think we've seen that anywhere else around the world or ever even in the United States, but in a different time?

RQ 36:41

Honestly, not that I can really think of right now. But as I think about jails and prisons, one thing that's helpful for me to remember is that basically, solitary confinement, for example, was seen by the Quakers as a liberal reform. It was reform over the death penalty for everything, right? A lot of things are packaged in reform language. New York City, two years ago, passed a multibillion-dollar plan to tear down the Rikers Island facilities, and then in their place build six new jails closer to the courthouses in the different counties. There's a real lack of imagination. And it was an opportunity for rethinking how we're going to be doing this. And it was a missed opportunity. Because ultimately, right now, the whole thing is if you build them, they will fill them. They're going to build these kind of state-of-the-art, new jails, without the kind of population reductions that we would want.

RQ 38:13

I'm all about kind of, if we're going to be confining people… so you know, one of my beats on the city jails is really boring things like fire safety and heat wave stuff — like not the most exciting stuff, but kind of core issues. And part of me thinks, you know, if you build these new facilities, that means fire safety really won't be an issue. It'll be modern. Same thing with air conditioning, you know — it'll be air conditioned, you won't have to worry so much about the older folks and the folks on psychotropics and things like that. And so I'm all in favor of that kind of harm reduction. But it also means growing the carceral system, it also means pouring billions of dollars into the department budget, which will become the new kind of, for lack of a better term, the new norm, so that anything less than that is a… you know, [unintelligible] gonna complain about budget cuts after this massive infusion. So I have a real concern about these kinds of infusions of harm reduction to build the system. And I'm still in favor of… it's a tradeoff. And I feel like it's this type of thing that we sometimes ask people about in job interviews, that tension between… for someone to talk about the tension between abolitionism and the kind of work that we primarily do, which is just conditions of confinement work. So not even questioning the fact of incarceration, just kind of dealing with the reality of it. How do you reconcile those two? And it's an interesting interview question, because it gets people talking about their philosophy, but it happens to be like a real-world problem, you know? We had to throw in a lot with, are we supporting this no new jails plan? Are we supporting the close Rikers plan? And it makes a lot of people, myself included, really think hard about what we believe our goal is. And how imaginative could we really be. The no new jails people, there was a group of people like yes, close Rikers and don't build the new jails. I mean, really just going hard. They kind of emerged in the last few months of the campaign, the Close Rikers campaign, and it was not a world that we ever really considered in terms of… you know, we're almost like these institutionalists, we've been around for 50 years, doing these prison cases. We’re functionally part of the prison system, because like, they kind of…

AM 40:53

Yeah, I was gonna say that…

RQ 40:55

We’re part of institutional reform, or we’re part of the one of the institutions that's supposed to, you know, that's in the pipeline. It was the same feeling I had when I was a public school teacher before law school, you know — you could do your own individual work well, but you're part of a system and you know, it, like… you know you're not doing right by the individuals there.

41:18

Yeah. I and many people here considered working with the public defender's office. And a lot of the people I know have said the reason is because they want to fight against the carceral system. And yet, I can't help but notice that if you are working for the public defender, you're still part of the system in a sense. And yet, there's not really another good option there. I mean, there are other options, but you're kind of always part of it, if you're litigating. And I think that tension is always there. And it's… if you're an advocate, it just seems like there's not ever really a great option. And so you're really just having to choose what's the best path, the best choice in the moment we're in now.

42:12

I could not possibly agree more. I, you know, I guess I keep waiting — especially early in my career, I kept waiting for the project, or the case that was conflict free; that, you know, was precisely the way I see the world. And that case never came to be, especially when I was doing damages cases. You know, I had bought into this rationale that damages cases are part of the movement, because, you know, you keep squeezing the city, and eventually, they're gonna look at their bottom line — like, “oh, maybe we should change our practices to avoid all these payouts.” But I did it long enough to see that that never happens, that all of these payouts were part of the cost of keeping things exactly the same as they were. And it became difficult to see how that was really serving anything. You know, I did wake up in the morning feeling good about going to work and helping people, mostly poor people, get some wealth redistributed to them. I was all about that. And ultimately that was enough to keep me motivated to keep going back to work and feeling good about what I was doing. But it was not ideal. Like, it was not me. You know, I was not making the world that I was imagining. You know, I was not being that change. I don't know how I could be that change with this law degree because that's a system unto itself. But it just made me think of that.

AM 43:54

When you entered law school, did you want to become a lawyer for this reason?

RQ 44:02

No. Well, not for criminal defense or civil rights specifically. This is a very much a moment in time, but I entered law school in 2006. This was after, you know, the Iraq and Afghanistan wars had been going on for five years. No end in sight, just a couple years after the Abu Ghraib prison scandal, the torture there. I got into law school with the idea of doing international human rights. I think a lot of people did, but you know, you find out pretty quickly there's just not a ton of jobs there, as interesting as it was. So I kind of pivoted to what I see as a sibling or at least a cousin area of the law. Yeah, so it wasn't precisely what I went to law school for, but I don't think it was too, too, too far off. It's not like I'm doing business law or, you know, commercial.

AM 45:07

Not at all. No. This is not a follow up to that. But earlier you mentioned heat waves. Got me thinking. So, you know, this project is about the pandemic, your work right now is about the pandemic. And one of the reasons that we want to interview advocates and collect this data is to prepare for a pandemic happening again. But it seems to me that there is also a risk of climate change becoming a huge systemic risk for the carceral system. And so I'm wondering, especially with what happened in Oregon and Washington last month, have you have you ever thought about that, specifically — how, you know, natural disasters, more heat waves, could affect the criminal justice system and the carceral system?

RQ 46:04

Yeah, I mean, I've certainly thought about the heatwave context. But really, honestly, it's only in the last couple years that I've thought about it in terms of like, oh, this is gonna get worse. This is, like, part of a continuing trend, instead of just kind of one-off heat waves, that kind of naturally happen. You know, back in the, gosh, late 70s, my office filed a case that I'm still litigating. And one of the things it dealt with was heat conditions, the New York City jails on high heat days. And there was eventually this detailed remedial scheme that we got the court to order imposed on the department that requires them on intake to identify medically vulnerable people because of medications they take or medical conditions they have, and designate them as heat sensitive. And then in advance of high heat days, they're all supposed to be moved to air conditioning, with very limited exceptions for security overrides when people are too dangerous to move, whatever that means. And, you know, it's one of these situations like the Voting Rights Act, like we're seeing, it worked so well that you had to get rid of it. And that's precisely what happened, it worked well. And people were protected. And as soon as people were protected, the city was like, see, we don't need this order anymore, and they moved the court to terminate it. And because it was working, we could not prove an ongoing continuing violation of federal law. So that requirement was ditched. And to their credit, the department has more or less kept the skeleton of that remedial order in place. But we hear that system breaking down left and right — like, it looks fine on paper, but on high heat days, there's only so many AC units to go around. And there's other competing interests, right? You have COVID separations, you know, certain houses are being used for COVID purposes. You have de facto gang houses, certain houses are really just for, you know, certain gangs. And so plucking some from here and there and throwing them, mixing them into an air conditioned unit is challenging. So even if you could deal with heat on its own, I don't know how you deal with heat in combination with these other things that all impact housing locations. Because there's always gonna be finite space, unless we're going to build massive jails, which is not a good idea, because they will eventually fill them. So at least as Rikers Island, my hope is that those facilities are gone in a few years. And new ones are, well, my hope is that those are gone. And it's likely that the city will build new ones with… at least the current designs or, you know, state of the art and all that crap. But the state prisons, upstate, they're, I mean, they're not building air conditioning, and they don't have any air conditioning. And it's a little further north, so it's not as pressing, or it's not as hot as it is in the city sometimes, but really only by few degrees. And these buildings are ancient — I mean, some of them are 100 years old, and they just trap that heat in, so I do worry about that. I don't know. It's not really helpful just to say air conditioning will solve everything because those places are not going to install air conditioning. And we have an aging prison population, which makes them more vulnerable to heat exhaustion. So I do worry about it. it's a little off my radar in terms of like a global, as like a direct priority, but kind of sliced narrowly the heat wave stuff is extremely dangerous. And that's another situation where the city points to the lack of deaths as proof of their fantastic policies. You know, sometimes they just get lucky.

AM 50:26

It's very true. No, that's interesting. I mean, I hope there are people working on this now about how to prepare for climate change, adapt prisons and jails to it, but I don't know.

RQ 50:40

Yeah. I will say to too, it's been a while since I went back and looked at it. But I remember in 2012, when Hurricane Sandy was approaching New York, there was a lot of hand wringing — appropriately, I thought, because of the flood map, the evacuation maps...iIf you're in Zone One, you have to evacuate zones or whatever… the Rikers Island facilities weren't in any designated any zone. They didn't have any designation, they were just blank, they weren't designated. And, you know, that seemed to me to be just a real problem and really kind of emblematic. I mean, one thing that we're going to be dealing with no matter how much air conditioning you have is, you know, these rising sea levels. So we have Rikers Island sitting on a landfill outside of LaGuardia Airport, in the East River. You know, you drive around Rikers Island after a lot of rain, there are some areas that are really tough to get through. It's a problem.

AM 51:45

There’s a ticking clock there.

RQ 51:48

Yeah. That's precisely what it is. Yeah.

AM 51:52

One final question. What lessons do you hope the country or society took from the pandemic behind bars?

RQ 52:05

Well, with apologies, I feel like it's related to an earlier theme I mentioned, that prisons and jails are part of the community, there's not a hard line between them. Community members work in the prisons, and people who live in the prisons will one day come out, and they're gonna be part of us. And they might be coming out, you know, 15 years from now, or they might be coming out in the teeth of the next pandemic. And how do we want that person to be reintegrated into society? Do we want them to be healthy? Or do we want them to be sick and a risk to the broader community? That’s in terms of COVID, that's in terms of their mental health, that's in terms of job skills, when they get out. It's easy to look at COVID in isolation, but one of the themes I think about a lot is that COVID was one of the things to be concerned about, not necessarily the thing. Just meaning that we have a lot of work to do to see people in prisons and jails as part of us. And I think that caring for people and taking their concerns seriously about COVID-19 should have been such a given, but it wasn't. And I feel like part of the reason, part of the wall, was this idea that people in prisons are different than us, and that their problems can't be our problems, because I'm not like him. I'm not like her. So it was my hope. And I guess it remains my hope that part of the theme, or part of what we had seen before the pandemic, of at least some people's eyes being opened about long term incarceration and punitive sentences, what does America get out of that? I hope that that introspection continues, but also with an eye towards, we had an opportunity during COVID, to show that we understood, and we just didn't take it. But, you know, so many of these… early in the pandemic, the state prison system asked us to create a list of medically vulnerable people, our clients, and send it to them as if this wasn't in their possession already. It was a time-wasting exercise, but one that we couldn't pass up. They're asking us for this list of medically vulnerable people. So let's go through all of our records and find out all of our people — it basically made us stop work for two or three days. But what the entire experience was, I was going through these lists of medically vulnerable people, like, this person has no business in prison. No business in prison. You know, this person has eight months left — no business in prison. These are drug-driven offenses — no business in prison. And I was just struck by that, going through this list. They weren't just medically vulnerable because of COVID. They just had no reason to be in prison in that context to begin with. Just because, well, what good is it doing? You know, especially the 60-year-old dude who has been in prison for 25 years? He's not going to commit the crime that he committed before. It's just not going to happen. It just never happens. So I hope more people are reflecting on that. And you know, hopefully, whenever this is over, we come out more humane than we started. You know, it's not clear that that's going to happen, but that's what I got to keep hoping — that, you know, the 20s will be a decade of slightly more compassion than the one before. You know, all I can do is really kind of cross my fingers on that.

AM 56:21

I hope so, too. All right. Well, I'm going to stop the recording.