KE 00:01

Alright. So hi, my name is Katelyn Eng. I'm a first year undergraduate at USC and I'm volunteering with the UCLA COVID Behind Bars project. Thank you for taking the time out of your busy schedule to speak with me today. And so I'll start with the disclaimer. I want to start by explaining how we plan to use the conversation we were 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 a website or other published writing. 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 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.

SM 1:02

Ok, thank you.

KE 1:03

And, yes, so can I just start with having you introduce yourself, your name, your organization and the work that you do?

SM 01:09

Sure, my name is Sara McDermott. I am an attorney at a Munger Tolles And Olson and my general practice is commercial litigation. But I have intentionally built a pro bono practice that is focused on incarcerated folks in California specifically.

KE 01:34

Okay, great. And can you tell me a little bit about the work that you did before the pandemic? And then how you got involved advocating for incarcerated people during the pandemic? Or maybe even before that?

SM 01:46

Sure. So, I mean, before I went to law school, I worked with justice involved youth in Texas. And so when I went to law school, I knew that part of why I was there, and part of what I wanted to do going forward was to advocate for them, um you know, folks in similar situations. So I took a few classes at UCLA along those lines, a couple of Professor (Dolovich) prison classes, and did some research along those lines, published a comment. I clerked for a couple of years after law school, and then ended up at Munger Tolls.

And just from the get go, within the first few months of starting, I connected with another former UCLA student, who had also, you know, worked with Professor (Dolovich), and been interested in prison law. And she at the time was representing a client who was eligible for a youth offender parole hearing in California, pursuant to SB 394. And actually, I think looking back when we first started, SB 394 wasn't in effect yet. So we were looking at Miller resentencing, and then we moved on after that. In any case, I joined her team and started representing this woman who has been my client ever since. I've represented her since I started at the firm. And now that she's eligible for parole hearing, um we're representing her through her parole proceedings. So I began, just was sort of an individual client, you know, wanting to test out this area of the law that I had written about, and see what the practice looked like.

Then in during the pandemic, the very, very beginning, one of the partners who has a good relationship with the ACLU of SoCal, I think he's on the board, circulated a email conflict check, asking if we would have any conflicts representing incarcerated people in, working with the ACLU, in a lawsuit challenging the continued their continued continued incarceration in light of the pandemic. So the idea was to use the writ vehicle in California to go directly to the California Supreme Court and to ask the California Supreme Court to order population reductions in jails and juvenile prisons across the state. As a, you know, as a matter of safety, and you know, the argument was that that was required by the Eighth Amendment and the 14th amendment. I saw sort of the like initial conflict check go around and thought this is exactly the sort of work that I have been wanting to do. You know, it's, it's bigger, it's more impact. It's really ambitious argument it’s very new kind of argument. And so I reached out to the partner and asked if I could join the team. And he said, well, why don't you lead the team? Because nobody else has signed up yet. So I like worked with him to put together a team of litigators. And we we litigated that case, that was the NACDL vs. Newsom, I think. And then there was a companion case, yes, CJ vs. Newsom, I can't remember the organization full names off the top of my head but those are the acronyms.

The Supreme Court did not grant us the relief that we prayed for. But the denial was actually really a helpful denial. They said go back to the superior courts and build your case from the ground up. And the superior courts are directed to treat this expeditiously. It's important to they recognize the importance of these issues. They recognize the importance of speed, and they said come back through those channels if you're not able to get relief. And I'm sorry, this is a long winded answer. But that led to a few additional cases that we did here at the firm. We partnered with ACLU of Northern California on a case challenging the conditions of confinement during COVID in the Tulare County Jail. That's, I believe is it Yubarrah vs. Boudreaux notes, Criswell, C-R-I-S-W-E-L- L. Criswell vs. Boudreau. And that case is has has a consent decree in place and it's being overseen by the court. We had a case up in Alameda, it was the Wilkerson case. I think Wilkerson versus Ahearn, which we settled relatively quickly. We were able to sort of piggyback off some existing litigation to get vaccine relief for folks up there. And then I was also involved in a case down here in Southern California, the Campbell vs. Orange County case. And in that one, we actually managed to obtain an order requiring the Orange County Sheriff to reduce the population of the Orange County jail by half. And that order was entered in December of 2020. And we spent much of 2021 sort of litigating what that meant and what the jail is actually required to do. We eventually litigated that to a final judgment. And that's a companion case to a similar federal case, which is sort of like currently is still ongoing. And so, you know, we were more involved in this in a state court version and that case has been litigated to resolution.

KE 08:27

That's a great, that's, like, so interesting to hear, like how it developed over time, right, and all the different cases that you were able to work on.

SM 08:35

Yeah, and it was really fun in the moment, because when we first started, there was hardly any precedent, there was nothing to cite, you know, you had to go back to cases talking about tuberculosis and try to draw parallels to that. And by the time we were in Orange County, or we were, you know, deep into Tulare, there were other decisions that we had, you know, in cases that we had been involved in in cases that our partners had been involved in, in other cases from across the country, that, you know, there was a more developed sort of a more robust set of law that we could cite to, it was really fun to see that develop in real time and to, to cite to something and know like, Well, I was litigating that a few months ago. And now I'm using the language here and in this new context.

KE 09:26

Ya, that is really exciting to be able to see how like the work you're doing is creating like a lasting impact for future cases as well. How do you think like, how do you perceive like the courts openness to these like new arguments, especially because like COVID was something obviously that created a lot of new precedents?

SM 09:45

Yeah, that’s a good question. And I think it's changed over time. I think when we first started, it was too new and courts just weren't quite sure how to respond. Um and they were sort of all over the place, there were some that were ordering very detailed relief, there were other release orders. And there were some courts that were very hands off and sort of saw this as an area of discretion that the court should not be involved in. I think that there was a sweet spot, so to speak. I don’t know if that's quite the right phrase. Somewhere in like, late 2020, maybe early 2021. When we understood more about the disease, more about COVID-19, we understood more about long COVID, we were starting to have a sense that not only was there an immediate risk to life and health but that there were these long term effects that that could follow people for the rest of their lives. We understood a little bit more about how it was being transmitted.

There was this time I'm thinking about was just we were working with our experts. And it was just starting to be understood that this was something that was airborne, that it wasn't just, you know, if you stayed six feet apart from somebody, you'd be fine. But if you sat in a restaurant, and the airflow worked in a certain way, or in the case of the jails, if you were celled in a in an open air block, with a group of people in the air flow worked in a certain way, everybody could be infected, even if you weren't coming close to a person with the disease. And during that period, I think the courts were more open to relief, I think we understood what was happening, we understood sort of had some better sense of the scale of the disaster. And courts were willing to say, yeah, like, you know, we need to do something, the jails need to do something, as the pandemic wore on, and like the government, at the time, the federal government at the time became more and more callous. And people in the States became more and more callous, and were disregarding their own health.

As vaccines came out, I think it became harder to make the argument that it was cruel and unusual to subject people to the possibility of catching this disease because people were voluntarily doing it all over the country. And I think it was harder. Like the difference is that they were doing that voluntarily and in jail or prison, you don't, you don't get a choice. But I still think it was harder for courts to say, yes, that's, that's cruel and unusual if, you know, some very, very vocal minority of the population thinks it's a totally acceptable risk, and they're willing to take it. And I think we saw we saw courts sort of pulling back and ordering less relief and less comprehensive relief at that point.

KE 13:07

That's really, that's really disappointing. To see the influence.

SD 13:09

Yeah, yeah.

KE 13:11

What would what would you say their stance is now especially as things like people continue being very relaxed about COVID and, like, very unconcerned about it’s spread?

SD 13:25

There, it feels to me like there's a lot less urgency. The Federal companion to the Orange County case is moving a lot slower. And there doesn't seem to be a lot of appetite from the court to move it forward and get it resolved. It starts to feel more like what you usually see with prison litigation, which is litigation that just drags on for years. And, and like it's I think I see less, less willingness to, you know, require the more comprehensive reforms that we were seeing earlier on. I think also there's, you know, a fair amount of feeling that if vaccines are available, that's the answer. You know, there's no risk as long as vaccines are available and people are able to get the vaccine if they want to. Then, you know, at that point, the court, I think, at least what I've seen is the courts are generally have more of an attitude of, well, if people get the vaccine, then they're protected. And if they don't get the vaccine, then that's their choice and, you know, they're taking on the risk for themselves and there's not really much else that needs to be done. It doesn't take into account what we've seen about your vaccine effectiveness and the fact that folks can still get the disease even with the vaccine or that can transmit it, even if they have the vaccine. But I think that that's sort of courts have decided, I mean, again, it just sort of in my experience, the courts see that as the solution. And don't see a need to do much more once that's in place.

KE 15:23

I see. Yeah. That's very, like that's very disheartening to hear how it seems like they have found like one answer and there's not much consideration beyond that. How do you think, like taking that into account, it has changed your perspective about how the court system treats incarcerated people?

SM 15:47

I will say, just to backtrack a little bit, I think one case to keep an eye on in that realm is the Plata case, which is back in front of the Ninth Circuit. The Plata receiver had challenged, uh had required that the staff in California's prisons be vaccinated. And that's another case that I was like very peripherally involved in the firm was, was more involved in. They had argument just a couple of weeks ago, I think. And that's a case that I think, will tell us more about whether the vaccines are enough, or whether more needs to be done. And whether vaccines just, you know, available to incarcerated people is enough, or whether more needs to be done.

Um, how did it change? I mean, I didn't go into this thinking that courts were going to do a whole lot for incarcerated people. You know, I have read Turner and all of the other big prison law cases and like I I know what it's like to litigate them. You you win very little very rarely. I thought courts did take the threat very seriously before there was a vaccine. I was I was actually impressed that it felt like everybody understood that this was a unique situation that required unique solutions. I, but I don't think that I think that once that sort of emergency, state of emergency feeling that sort of initial coming together and initial sort of horror of the scale of the pandemic, once that dissipated. I think it's, it's moving more in the direction of business as usual. And the high burdens that folks face in order to be able to get just decent protections, access to, to the basic necessities, in prisons and jails.

KE 18:16

Yeah, I think I think it is really interesting to know, and I think I would say that it's also impressive that they were, at least in the beginning of the pandemic, like responding as if it were an emerge emergency like. Do you have any insight into how effective or how well the rulings were implemented? Like, even if, if the court is ruling, okay, we need to do more to protect the safety of incarcerated populations, like whether that was actually being followed through with on the ground level.

SM 18:49

Um, I can give you just insight into the cases that I was involved in. In the Tulare case that we had. There, the court was relatively hands off, but was willing to enter the kind of rulings, you know, enter the right kind of pressure to encourage the parties to sort of work this out. And we were able to agree to inspections and continued court oversight following the entry of the consent decree. And it's always, always a challenge to defend even the small wins. But I I have this and I've been less involved with that case in more recent months, but my sense is that you know, the court is watching. The court is interested in the inspection reports. The court is interested in making sure that the terms of the settlement are complied with. And if you have very active counsel representing the plaintiffs or the petitioners, then, you know, the squeaky wheel gets the grease, and you can make noise and you can continue to draw attention to the issues.

In Orange County, we had this amazing order, requiring requiring depopulation. And then the court immediately stepped back. It was sort of it was really interesting to litigate and to, to live through because, you know, I don't I'm not casting any aspersions on the judge, I think the judge decided, I entered this really ambitious order. And the sheriff immediately started saying, in the news, we're never going to comply with this order. And to the court, we're complying with it just give us more time we're doing our best we're doing this, we're doing that. And I think the court’s feeling was the, you know, the sheriff can act within his discretion. And if he thinks he can achieve the goal here, which was social distancing, through means other than a 50% population reduction, I'm going to let him do that. And I'm going to give him the time to make the changes he needs to make to do that. Which was frustrating for us, because we thought, hey, this needs to be done yesterday. There was an outbreak during this period and people died. And it was hard to see sort of so much leeway being given during those circumstances. But ultimately, the sheriff was able to move some people around, reopen a facility that had previously they had decided to close. They did end up releasing hundreds of people, which was, you know, a big deal. But, you know, at the end of the day, they were able to achieve some semblance of appropriate social distancing. And, you know, I think the court understood the case law understood the sort of scrutiny that the decision would face on appeal. And felt like, well, that's that's probably good enough. And I probably don't want to get too involved in managing this jail. It's, that's, that's beyond my scope of expertise.

KE 22:47

Did a lot of the cases that you like did a lot of the cases that you were involved in face a lot of backlash from, like people or law enforcement officers who didn't really want to comply with, like, COVID safe regulations.

SM 23:01

Oh, yeah. Yeah. I mean, there was the whole tour that Sheriff Barnes went on in Orange County. Like a full media tour and Fox News and all of the local newspapers and so on talking about how he was never going to comply with the court's order, this was a disaster for public safety, he was going to appeal it all the way to the top. Just, you know, grandstanding about how he would, he would never do this, because he needed to protect the citizens of Orange County, and he couldn't release these people. Now, meanwhile, as far as I know, folks who were released early, so to speak, have I mean, they have not caused problems, there's not been some significant uptick in crime. All of the parade of horribles that he predicted is not come to that not come to pass. But I mean, even in terms of, you know, in every nego-- every settlement negotiation, the subject of mandating vaccines for staff comes up. And, and so I'm, I'm just sort of speaking generally here, you know, not about specific conversations or specific cases, but sort of in my experience that tends to come up. And the response that you tend to hear is the union would never allow it. Like it's just not, you know, mandates are just a step too far. It's beyond the pale. And that's exactly what you see playing out in this Plata case where the union specifically has sought to intervene in the case and is taking the position that the court cannot mandate vaccines for people who work in prisons, despite the fact that I think it's pretty clear that failures to get vaccinated amongst those that population exposes is like a direct vector for exposing the incarcerated population to COVID-19.

KE 25:24

Yeah, how do you kind of grapple with the fact that you're putting all this work to protect, like the rights and the safety of incarcerated people and then for the impact to be kind of limited by people who, like don't agree, or don't have the same priorities? I guess, maybe or like the same safety ideas in mind? Like how do you kind of manage that?

SM 25:51

So your your question is, how to balance sort of our views of, you know, what appropriate public safety would require what the Constitution would require with sort of the intransigence of people involved in in working in the prison?

KE 26:15

Yeah, yeah.

SM 26:19

Um, I think when you, at least to me, when you litigate, you recognize that you're representing a very particular perspective, you're representing your clients and their interests. And, I mean, as I mentioned, I also clerked. And when you're on the side of the, when you're in the position of the judge, when you're with the judiciary, you think about these problems differently. You can't just think about the impacts on one group, you have to think about the other impacts that are being brought to you by other parties, the other implications of your decisions. So to me, my job is to advocate as zealously as possible to do everything I can to represent my client's best interests. I will write the best briefs that I can write, I will do all of the research. I will talk to them and make sure what I'm doing is aligned with their best interests, talk to experts and make sure that what we're recommending is effective. But I understand that, you know, people are positioned differently, and I like rarely agree with their politics, I rarely agree with their positions. But people who work in jails and prisons have a very different perspective than I do, they have, they face different dangers during the day, they have different priorities, they have different values, and I can't really fault them for representing what they think of their best interests, I can strongly disagree with them, I can try to convince them that they're wrong. But you know, that's, it's just part of it is you're going to, you're going to do your best. And you're going to know that you'll never actually achieve everything that you think you should, or everything that you think is just if you can achieve part of it. If you can, certainly if you can achieve most of it. But even if you can achieve part of it, you've done something for your clients, you've made a difference for them. And, you know, that's kind of that's life, that's usually how these things work out.

KE 28:45

That's a really thoughtful perspective. Because I feel like sometimes when I think of these issues, it's it seems mentally draining to, like want to put all this work into a certain mission. And then for individuals to like disagree with it or for I don't know, but that's like, that's a very thoughtful perspective.

SM 29:10

((Participant laughs)). Thank you. I've had I've had a while to think about it. You have to come to terms with it somehow. Because otherwise you can't keep doing this work. You know, you have to find a way to make it, contextualize it and make it sustainable.

KE 29:22

Um, how has communication with like clients or experts changed because of COVID circumstances?

SM 29:32

In some ways, it's easier. My, my client who I represent in parole proceedings, we used to have to travel all the way down to San Diego to visit with her we would wake up at four in the morning, get into our little cars, drive down, meet from you know, nine to 10 or 10 to 11, get into our cars, fight traffic back. It was a whole day affair, it was exhausting. For like a one hour meeting. And now because of the pandemic, they're more willing to set up attorney calls. So I can set up a phone call, every couple of weeks we can get on the phone, we can talk about what we need to, it's just one appointment in my day, I don't have to reserve a whole day to go down there. So, you know, in some ways, it's been really great. You know, of course, on the other hand, it's been years, since I've seen her in person. And that's tough in its own way, it's tough for her. It's, it can make it more difficult to do things like working together on writing, you know, revising writing, exchanging drafts, that can be a lot more different, difficult if you can't just sit down in person. And, you know, it's just always difficult to get access to people. One of the claims that we had in the Tulare case was that the jail was preventing attorneys from speaking with their clients in the jail, they had put in some new protocols that were supposed to be more protective. But the upshot was that it was impossible to get a meeting with your client, impossible to get a call even with your client. And, you know, I think that it's very easy to implement, to, to obstruct attorney client communication in the name of safety. So I mean, we, that was one of the claims that we were able to prevail on and, and we did change that situation, but I'm sure it's happening elsewhere. In terms of the experts, like, it's great, because, again, you can have these virtual meetings, and it's just a lot easier and more efficient. But I don't I don't do a lot of like, court appearances with experts which I know, folks who are really involved in the juvenile system, for example, I'm on a board of an organization who has has like the interests of incarcerated young people in mind. And a lot of the board members and the board and the organization membership are all attorneys who represent young people in these proceedings. And there, you know, the remote thing can be really tricky because is it better to have an expert testify in person? You know does the court credit them more if they can see them? Is it easier to listen to the testimony? And similarly, is testimony from your client or from whoever more effective in person? I think those are more difficult questions. And I've I've been lucky, for the most part not to have to grapple with them.

KE 33:15

How do you think, because of COVID and because there had to be like shifts in how people communicate in shifts in the process, how do you see that changing in the future as maybe COVID becomes even less of a threat?

SM 33:34

It's hard to predict. But I think it's also hard to unring the bell of remote work. I know many courts are still permitting remote appearances, especially for more routine appearances. And it's a heck of a lot easier to appear for me to appear in Sacramento by video conference than for me to have to, you know, fly up last minute, or even not last minute, to enter an appearance in like a status conference or an ex parte application or something like that. So I have a feeling that a lot of that will continue and similarly, you know, I have a feeling that the the prison anyway that at least, you know, the one where our parole client is housed, I think that they like the remote work. It's a lot easier to set up an attorney call and there's a lot less danger of somebody smuggling something in, and for the most part, you can get done what you need to get done. So I I would guess that, you know, while we'll be in person more, there's probably quite a lot of remote work that will continue to happen.

KE 34:59

Yeah, I think it is very interesting to think about how like, because people have to shift so quickly, but how some of it is probably, I guess it has made things more efficient now.

SM 35:09

Yeah. I mean, even this conversation that we're having, I think before, I would have thought, oh, I need to come into the school, and we would have to have this face to face. And instead, I can, you know, hop on, again, hop on in between meetings, I'm doing one thing, now I'm doing this, they'll turn to another right away, and I don't have to, you know, get in my car and drive around. It's just slightly easier to connect in that way

KE 35:55

Yeah, I definitely agree. Another question I have is, um, how has your experience working on these cases and your experience with advocacy relating to prison law changed like your opinion about like the system about prison law in general?

SM 36:00

I don't? Well, I'm not sure. I'm tempted to say that it hasn't really changed my opinion about the system or about prison law, because it's pretty much as complicated and unforgiving as I expected going in. But I, I actually think we got some victories in the course of this litigation that we would not have gotten outside of a pandemic sign of a global emergency. And I do think that in California generally. At least, I have seen a change in the way we think about incarcerated people. Certainly, young people, I think, California has really embraced Graham and Miller. And we've seen some really strong cases coming out of the California Supreme Court, some SB 394, like, really important legislation coming out of the Senate and the House. So I actually have some optimism, that slowly but surely, very incrementally, people see criminal justice issues differently right now than they did you know, at the time that the cases I was reading in law school were decided in the 70s, and 80s. And 90s.

KE 37:39

That is great. I think that's great that there can be something good or like a shift that can come out of the pandemic. So do you think it definitely makes or do you think that COVID has, in a way, like established a better precedent for how incarcerated people are treated or?

SM 37:59

Well, I think the shift in California was pre COVID, although I do think that COVID has caused people to change may have caused some people to change the way they think about what it means to be incarcerated. Because it's one thing to say, while somebody you should be punished for your crime, you should be locked up. It's another thing to recognize that like exactly what it means to lose those liberties. And it doesn't just mean you can't watch the TV you want or eat the ice cream that you want for dessert, which I think is sort of simplistically how some people think about it. But it's like you can't make decisions about your own health. You can't take actions to protect yourself, or you maybe can't take actions to protect your loved ones. If you're, as we saw, in some cases exposed in prison, to this disease, released without a test without any way of knowing your status, moving in with your loved ones because that's the only place you have to go and then exposing them. I think it just, it gave us anyway, the opportunity to make arguments about what it really means to lose that liberty and also the ways in which prisons are not isolated. They're not just entities unto themselves, but they are part of the broader community, inevitably, because COs are coming in and out because people are being released, people are being moved around because nurses and doctors and other important staff have to come in and out of the building. Community members come in and out of the building. So you know, I do think it allowed us to at least start that conversation and maybe convince some people that this is a community issue. It's not just issue for individual bad people.

KE 40:05

Yeah. Do you think that there are lessons that the general population should take away on the impact of the pandemic behind bars?

SM 40:14

That's certainly one of them. I really think this highlighted even for me in a way that I didn't fully grasp before, that you cannot just banish people from society and wipe your hands and move on, like, these people are here. People who are incarcerated live in our communities, they are connected to us many, many ties, many ways you might not even realize and we have to, like, take care, right? Well, we have to find a way to address that part of the community. Otherwise, we expose the whole community to risk and we make the whole community more vulnerable.

KE 41:05

Yeah, that's a really good point. Um, I'll ask one more question, since I know we're coming up on time. Um, in what ways have your feelings about your role as a lawyer and advocate shifted as a result of your work during the pandemic, if they have?

SM 41:23

Um, I mean, I certainly got quite a bit of experience during the pandemic, because of this work. And so in some ways, I've, I've just personally grown as a lawyer doing this work. It's, it's really hard work. And it requires a lot of ingenuity. And I think it's, it's helped me to grow and be an advocate more broadly. And I also think it is made clear to me the importance of this sort of work for the sustainability of my practice, and sort of how I don’t know, how to, like, deal with trauma in a way that is constructive and like sustainable to be like, perfectly honest. Like I don't, I think I learned a lot about how in times of extreme trauma like this, having having a task, even if it's a small task, even if you think it's not gonna make a huge difference in the long run. And I think we did end up making a huge difference for a lot of people, but just having something to work on and focus on helps take away those feelings of powerlessness. I like have been very skeptical of litigation as a project for change. I think it is not as effective as a lot of us would like to believe. I think that there are lots of other maybe more, more effective ways to achieve change. But it does make a difference. And like, I was reminded of that, during this work that like, there are hundreds of people in Orange County who got to see their families who might not have otherwise. And there are, you know, folks who are medically vulnerable in Alameda who got their vaccines or, you know, people in other places who made it through, they might not have otherwise. And certainly they got some measure of safety and comfort as individuals. So.

KE 43:56

I think I hold the same skepticism so it's really it's like really amazing to hear how, like the work that you've done has been impactful to the communities and to people who are incarcerated. So it's, that's really great to hear.

SM 44:10

But it's yeah, it's tough. It's like, it's both not enough and also meaningful for the people involved. So I guess it has to be both somehow.

KE 44:21

Okay, well, thank you so much for your time. I really appreciate the opportunity to interview you and hear about the things that you've been able to do during the pandemic and forward.

SM 44:30

Yeah, thank you so much for the opportunity. It was great to chat with you. I appreciate it.

KE 44:34

Okay, have a great rest of your day.

SM 44:37

You too. Take care. Bye bye