AM 00:00:03

Well 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 the conversation we're about to have. Our conversation is not legally privileged, and we will not keep what you say confidential. We plan to make transcripts and recordings of our interviews available for use by future researchers in the general public. Portions may be posted online or discussed on our website and in 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're happy for you to review the transcript of our conversation before it is made public and to redact any portion you deem necessary. So without further ado, can you please introduce yourself?

ST 00:00:53

Sure, my name is Somil Trivedi. I'm a senior staff attorney at the ACLU’s criminal law reform project. I live in Washington DC.

AM 00:01:03

So I first want to ask, back last spring, when things first started to shut down, and everything went remote, how did that really change your advocacy work at the start of the pandemic?

ST 00:01:19

Yeah, well, at the start of the pandemic, I didn't even think that I would be doing this work. I was chugging along doing criminal law reform work in different areas, I was not a prison litigator. I worked around prosecutors and police and sort of the front end of the system, and had, you know, only passing understanding of the law around the Eighth Amendment and prison conditions. But when COVID hit, and it became so clear that folks in jails and prisons were going to be amongst the hardest hit, if not the hardest hit, I and some other ACLU colleagues just sort of jumped in and tried to do what we could.

AM 00:02:07

Yeah. And so do you feel like it felt natural for you to shift into the back end prison side of advocacy? Or did you have to kind of learn the ropes,

ST 00:02:22

A little bit of both, I definitely had to learn the law around prison conditions and jail conditions. But what this project, what this effort taught me the most is how interconnected the whole system is, right? We tend to talk, unfortunately, too much about pretrial detention, or prosecutorial misconduct, or police brutality, or prisons and jails, as separate silos, when it is all extremely connected, and has always been extremely interconnected. And particularly during COVID it was, because we were arguing first and foremost, to get people out, right? To either get them out permanently, or at least temporarily, to thin out the density of these facilities so that you could properly socially distance, right? That was the whole game. Certainly there was mask wearing and hygiene and all kinds of other mitigation efforts that you could do. But at the top of everybody's list, certainly advocates and litigators, was release, whether temporary or permanent. And that required the buy-in of other actors. Sure, sheriffs could do it a little bit on their own. But in order to keep levels down over a sustained period of time -- and we knew COVID was going to be a sustained period of time -- you needed police to arrest fewer people for petty stuff, and you needed prosecutors to find creative alternatives to incarceration, and then you needed sheriffs to buy in. And then you need the judges to buy in. Right? And so it was at once sort of enlightening for me as someone who had dealt primarily with the front end to see how it all worked together, and how there was a vision for how we could do this if all these actors came to the table. Unfortunately, by and large, they didn't, and they took a lot of forcing when they finally did.

AM 00:04:34

Yeah, I mean, it's interesting for you to say that every part of the system was at play here in letting people out. Did you feel like any part, like judges or the sheriffs, or the prisons made it easier, were they all difficult to work with?

ST 00:04:52

Man. Some had some foresight. You know, certain jail systems, like California initially, instituted a zero bail order right? You probably know this. And that made it a lot easier to keep populations down from the outset. Instead of having to release people, they just took fewer people in. That was prescient, by and large. Even in some places where prosecutors are getting creative, the local sheriff didn’t, or vice versa. Certainly judges, especially initially -- when we were filing these emergency cases in April and May of 2020, judges didn't want to hear it. They deferred almost exclusively to the averments of the prison and jail administrators. Even if we had our clients giving first-hand testimony of how horrible things were, in evidentiary hearings, they would simply discount them.

AM 00:06:08

Yeah, I actually ended up talking with a prosecutor at a firm a few weeks ago. Randomly, it was through a networking event. And we had different opinions about compassionate release during COVID. And I was sort of getting an impression from him that he felt like a lot of these petitions were sort of an excuse for people to leave. He didn't use that word, but that sort of impression I was getting. So I'm wondering if you ever felt that way working with the judges or other people?

ST 00:06:42

Yeah. The number of compassionate releases should be proof that they viewed them with skepticism. What's really sick about that is that over time we learned that pretty much everybody in the prison system was susceptible, medically, to COVID. Right, there was no question, given the age of the population and preexisting medical conditions. I mean, this was a population that's already more sick and more disabled and older than then the population as a whole. And now you're throwing COVID into the mix. So I agree with your assessment that that's how the federal level was talking about compassionate release -- you know, that's how that's how they viewed it, with a lot of skepticism. But they shouldn't have. If anything, they should have been more solicitous. It was super disheartening.

AM 00:07:44

Right. I mean, how do you think COVID denialism factored into this? How do you think the stubbornness of our system factored into this? Can you speak to those varying factors?

ST 00:08:00

Yeah, those are really good questions. Like when you see, what is this thing called, the Constitutional Sheriffs Movement or what have you, when you have sheriffs around the country who have really, frankly, a hybrid public safety-public health job, they have to run jails, right? That means they're running a large facility full of people, even pre-COVID who have medical needs, who have psychiatric needs, right? Who have behavioral health needs. They're not qualified at all to do this to begin with, and then you throw COVID on top of that. But then you see those same people who are in charge of essentially large medical facilities going out and saying they're not going to enforce mask mandates. What kind of confidence does that give you that they're running a tight ship inside? They're not. So that was scary. And I think in a nutshell, this won’t be surprising to you, but from the outset, definitely the defendants in our cases, wardens, and prison administrators -- and even the judges -- basically treated this as an affront to their authority rather than a public health problem to be dealt with creatively and effectively. They immediately got into a defensive posture and just appealed to the fact that they have authority to deal with this however they want, rather than engaging with us on how they should deal with it. You know what I mean?

AM 00:09:38

Right. And that sounds similar to the way that people treated COVID in general, because it seems like so much of the COVID denialism was about telling someone what they could or couldn't do, and their own autonomy, their authority, or what they wanted to be in control of. So yeah, these issues overlap.

ST 00:09:58

They especially overlap now that we have the vaccine hesitancy, right? I mean, the reason that COVID is going to stick around in jails and prisons even now is largely because guards are getting vaccinated at like a 30% clip, right? And guards are the ones going in and coming out and potentially being vectors for the disease. And so, you know, when you have a certain population outside who is hesitant for perhaps the wrong reasons, and they make up a large percentage of public servants who have these jobs, then you're going to bring that denialism into the setting. Right? And we heard stories, without revealing anything privileged, we've had people inside say, you know, when the guards and nurses are telling us we're not going to take it, and we don't think it's safe -- what are we supposed to do about that? Right? How are we supposed to react?

AM 00:11:00

Yeah, I mean, that’s one of the ultimate forms of powerlessness there. Is there anything legal that can be done there? Or just with advocacy work in general?

ST 00:11:13

Yeah, you know, we have done our best to both keep the legal pressure on with our lawsuits that already existed pre-vaccine -- we've now pivoted the lawsuits to try to, like embrace the sort of indifference, you know, legally speaking. We're trying to establish deliberate indifference. we sincerely believed that they were being deliberately indifferent in how they were getting folks to take the vaccine, which is essentially not educating them, not trying to overcome hesitancy, giving them either misinformation, or at least under-information about the efficacy of the vaccine, and that led to lower uptake rates amongst the population, which, you know, that was an unforced error that we thought could have amounted to legal, deliberate indifference. But certainly, on the advocacy part, we were just begging for facilities. There are groups like Amend at UCSF who created materials for how to educate the prison population, in particular, the or the incarcerated population, on answering questions about side effects, answering their concerns about the government being involved in a vaccination effort. These are all legitimate questions that the detained population had, that smart people who think about this stuff from a public health perspective had developed materials for, and we were begging facilities to just disseminate this stuff. And after a while, I think, they listened, but who knows how many people we lost in the meantime, while they were being defensive?

AM 00:13:03

Which areas in the system did you primarily work in?

ST 00:13:08

I primarily litigated against federal prisons, and local and county jails.

AM 00:13:24

Which areas of the country?

ST 00:13:29

The ACLU as a whole was obviously in facilities all over the country. I brought a case against the Oakdale Federal Correctional Institute in Oakdale, Louisiana, and then was part of litigation teams in Maricopa County, Arizona, in Florence, Arizona, in Orange County, California, and a couple of other places.

AM 00:13:55

Yeah, I was hearing from someone else who was litigating in Orange County about the sheriff causing some trouble there by potentially influencing a judge in one of the cases, going on the national news?

ST 00:14:10

Yeah, so I heard you talked to (Karim)?

AM 00:14:18

No, this is someone who works specifically in Orange County. Michelle Nielsen.

ST 00:14:25

Oh, yeah, sure. So I'm almost certain she's talking about the Orange County Sheriff, Don Barnes. So Orange County was actually a pretty great success story after a while. We sued in both federal and state court last year, fairly early in 2020. We got a preliminary -- I'm going to like legally nerd out for a second, so this may not be fun for your listeners -- but we got a preliminary injunction in the federal case, which was then almost immediately stayed by the Supreme Court. That was one of the shadow docket rulings last summer, one of the very few to get up to the Supreme Court, but the Supreme Court stated without an opinion. We got a really great dissent from Sotomayor about why the Supreme Court was in the business of staying a PI on a very fact-intensive preliminary injunction that the district court, you know, had made findings of fact, and that the Supreme Court had no reason to overturn. But, you know, this court is not particularly sympathetic to prisoners’ rights. So they overturned the stay on an emergency basis. But then, in the meantime, we were in state court, against the same jail, but on habeas, and so we were actually seeking to get people out. And in December of 2020, we finally got an order saying that the jail had to create a plan -- Don Barnes, the sheriff, had to create a plan to cut the population by 50%. So that was massive, that was one of the very few orders around the country actually ordering at least the beginnings of a depopulation plan that would truly help social distancing -- that would get people out in numbers, that would actually allow the facility to thin out. Don Barnes, like the next week, goes on the Fox News circuit and says, I'm not gonna comply with this. This is, you know, liberal ACLU, George Soros, the whole talking point bit. And, and, you know, throws the judge under the bus. Actually, now that I'm thinking back to it, it was a lot of doublespeak. It was like, we can't let any of these dangerous criminals out, even though a lot of these folks are in jail pretrial, presumed innocent, a lot of lower level charges. But in any case, he says, “we can't let anybody out, because it's too dangerous. And only I alone can judge the public safety of the release here. But also, I've already let a lot of people out, we've already thinned out the population. So it's okay.” So he tried to have his cake and eat it too, to say he was like the responsible guy who was keeping populations under control. But also if he was ordered by anybody else, to release someone, that someone was too dangerous. You know what I mean?

AM 00:17:34

Yeah. And I mean, was there any ever talk of drawing the connection between him claiming this was for public safety, but also arguing he wanted to create a COVID hotspot in his own county? I mean, it's not safer to have kept incarcerated people in that prison or jail.

ST 00:17:55

Exactly. When it came to advocacy around the case, and when I mentioned that sheriffs weren't enforcing the mask mandate, I mean, Don Barnes was saying, trust me, I know public health, I know how to run my jail, he was saying to the public, this is an infringement on my freedom and whatnot. So knowing that he was in charge there was, like, terrifying.

AM 00:18:28

Yes. I don't have anything more to say about that. I think that speaks for itself. Was there anywhere else you litigated around the country where something similar happened?

ST 00:18:39

That first case in Oakdale, Louisiana was pretty harrowing. We sued in the first week of April, so pretty early on. But by the time we sued like six people that already died. And we drew an extremely conservative judge who dismissed the case on jurisdictional grounds before we even got to have a hearing about our preliminary injunction. And it was on sort of complicated, or it was on jurisdictional grounds. So, you know, we never reached the merits. But even in his jurisdictional ruling, he was very clear and he used these words, that he was afraid of becoming a quote-unquote “superintendent of the jail”. And so when I'm when I'm saying I'm disappointed in judges abdicating their responsibility to create any real guidelines around how jailers do their job, I'm thinking particularly of that opinion, where it was basically this paen into the expertise of jailers, and how it's not our job to get in the middle of this, even though it's your job to enforce the Constitution! We're arguing they're violating the Constitution. They just did not want to hear it. They wanted to defer to these so-called experts, even though they had already let people die! And like, sure, they might be experts on how thick the bars should be, or you know, how to run recreational time, but they're not experts in public health, they're not experts in COVID. And just the failure to hold law enforcement accountable for obvious, obvious failures, was just… and then that was, you know, in April, and we thought, this is going to be a really uphill climb. It’s pretty depressing.

AM 00:20:43

It's a big question, but why do you think it's so hard to convince judges to let people out of prison?

ST 00:20:49

Yeah, finality. Right? We have this system that fetishizes finality. And we worry, honestly without basis, that the entire house of cards of mass incarceration will come toppling down if we actually start looking behind what happens to somebody when they're deemed guilty. And so you can't pull at any of those threads, beyond COVID, you can't talk about how many innocent people are behind bars, you can't talk about how we plead out 97% of cases so that, you know, we've exploded mass incarceration, because nobody really goes to trial anymore. You can't talk about cash bail, you can't talk about prison conditions. Because if you pull any one of those threads, this whole thing unravels, and all of a sudden, the whole thing, the lie will be exposed. So I think it's a symptom of a larger addiction to mass incarceration. It's like, hear no evil, see no evil -- as long as we've put these people away, I don't want to deal with them anymore, because then we don't have to deal with how horrific the entire system is.

AM 00:22:05

Okay. Who is dealing with that then?

ST 00:22:11

I don't want to sound like too much of a downer. Lots of us are dealing with it. I think we're making headway, honestly. I mean, prison and jail populations are going down over time, or at least not going back up. And we've managed to do that while overall crime rates -- if you buy that as a metric -- but overall, violence is generally down. Health is generally up, COVID notwithstanding, obviously, and disparities across communities, notwithstanding. But the Brennan Center put out a study across 10 years recently, where 34 states managed to reduce their incarcerated population AND reduce crime. So I think we are having success, slowly but surely. But I think COVID honestly points to the fact that we could have way more, because a lot of places did, despite themselves, and because of advocacy from people like you all at UCLA and everybody else, we're able to reduce populations for a while, right? They instituted cite and summons policies, they stopped arresting for low-level stuff, whatever it took, but some of these places did get jail levels down. Why go back up? Like the sky has not fallen, or at least it hasn't fallen because of that. And so I think there's opportunity there.

AM 00:23:39

Completely. Yeah. And you mentioned the crime rates narrative, which is largely a rightwing talking point or just a mainstream media talking point right now. Right. I brought that up in other interviews as well. But I honestly think it's a positive sign that in spite of that narrative, a lot of voters in the cities, this past year, have rejected the tougher on crime candidates. They've still embraced progressive prosecutors. And it seems like public support for ending mass incarceration is not decreasing. I don't know if it's rapidly increasing, but it seems pretty steady.

ST 00:24:15

Yeah, I couldn't agree more. I think watching Larry Krasner like, mop the floor in his election, particularly amongst communities who fearmongers said we were ignoring because we didn't care about gun violence, which is already untrue -- but if that were true, then Larry Krasner [the Philadelphia DA] would have lost support from Black communities that were that were indeed suffering from an uptick in gun violence. He didn't. And Alvin Bragg [the Democratic candidate for Manhattan DA] didn't. And so I agree. I think we are at a tipping point, where we have an opportunity to show that our reforms are not just more fair, they're not just more in line with the Constitution, they're also better for reducing violence. And I think people are starting to get that, that reflexively calling for tougher penalties and getting tougher on crime every time there's an uptick in violence hasn't worked. And people are open to new ideas.

AM 00:25:27

Yeah. I know much of the public has become more aware of the history of the war on drugs and the policies behind mass incarceration. Do you think if more people became aware of the racism and fear mongering behind that, that more people would embrace these policies even more?

ST 00:25:48

Yeah, I think educating folks has worked, right. So we were talking about prosecutors a minute ago, right? Like seven years ago, most of the country didn't even know what a prosecutor did, much less how impactful they were, much less that you could elect them. Right? People thought they knew what a DA was because they watched Law and Order, but they definitely couldn't name who their own DA was. And now there’s significant movement, and it's movement in the right direction. It's not a panacea, but it's moving. That was largely because, you know, the candidates themselves, but then a bunch of organizers and nonprofits and lawyers started educating people about how important this was.

AM 00:26:37

Switching gears here, but how do you feel like your relationship with your clients changed during the pandemic?

ST 00:26:45

That's a good question. Like I said, before the pandemic, I didn't do prison conditions work. But, I had clients in other spheres who were impossible to get in touch with -- that was incredibly difficult. And then when we brought these cases, I'm sure you've talked to people who have all described how impossible it was to get in touch with folks. And how facilities went on lockdown, and they limited in-person visiting, and they limited attorney-client phone calls. It was really, really hard. And at the same time, when it was so fast-moving and so scary, you really needed to be in touch with your client, who was incarcerated, like on a day to day basis, because they could get sick any day. You couldn't. So I don't know, it has definitely taught me to stay in touch. Right? Just do it more. Especially, you know, for an impact litigator, frankly, and I know you've talked to all kinds of folks, but you know, real talk -- sometimes, when you do impact litigation, it's obviously not direct services. You can go periods of time without being in touch with your client, because the case is just sitting in discovery, and there's nothing much to mention. But you never know what's going on in their life. You never know what tragedy could hit, and just staying in touch is important.

AM 00:28:23

Yeah. What else do you think you've learned over the past year, professionally and otherwise, about being an advocate?

ST 00:28:32

That’s a good question. That no matter how bummed you were about the work you were doing, it could always get worse. I don't mean to go out on a negative note, but, man. COVID was hard. And it's obviously coming from an extremely privileged place to say it was hard on the lawyers, it was obviously infinitely harder on our clients, and then just people in general who didn't have the protections that we did. But I mean, to try to end on a positive note, to watch this community of people, many of whom were like me that hadn't done this work before, but many of whom had done it their whole lives, come together this quickly to avert a crisis was pretty inspiring. So I'm pretty up on our community's ability to fight under wretched circumstances. So that, you know, that gives me a lot of hope.

AM 00:29:35

That's terrific to hear. That's really heartening. So you said end on a positive note, I am still here for 30 more minutes if you want to talk but if you have to go that's fine.

ST 00:29:48

Um, yeah, I don't. I guess that that felt like a closing question. But we can close. Okay, yeah, I think I can think of some vignettes that will help you out. I don't know if you want to tell me, like, two more minutes on the project and what you’re looking for?

AM 00:30:09

Sure. I'll let you know when I have my final question -- that will come soon. But generally, we're trying to figure out how litigators and people working against the criminal legal system operated during the pandemic, because if this were to happen again, and it's certainly possible it will, we want to have records of what it was like for people to be advocates then. So yeah, for my final question, then, what advice would you give to someone in your position were this to happen again?

ST 00:30:59

I would say, develop your litigation, advocacy, and communication strategies simultaneously. I think in a crisis, litigators often jump to litigation. And of course, that's sort of necessary in a certain way, right? We can jump in and file for a TRO and be in court the next day. So that's important. So we did that. But I think this required so much rapid education about not only the pandemic, but how it would hit people in jails and prisons. And in a certain sense, this is a perverse way of saying it, but they were competing with other groups of people who are also ravaged by the pandemic. And so, to get the attention of lawmakers and public officials to care about how their sheriff was treating these, you know, throwaway human beings, frankly, was very difficult. So I think, not that we didn't do a good job necessarily, but I think we did the best that we could. My takeaway would be these things are multifaceted. And it's really important to be attacking from every possible angle all the time.

AM 00:32:37

Make sense to me.

ST 00:32:39

Yeah. All right. Well, man, thanks for doing this. This is a really fantastic project. I mean, COVID Behind Bars has been awesome this whole time. But this is this is pretty great that you're documenting.

AM 00:32:50

Yeah, no, it's been really rewarding and satisfying for us too.

ST 00:32:55

So let me know. You know, if you want anything more, or when you when you have a transcript ready, I would love to just look it over to make sure I didn't say anything privileged or stupid, or both.

AM 00:33:11

I can mark that we have a sheet with all the interviews we're recording. I'm gonna stop the recording now.