LJ 00:00

So, hello, uh, my name is Lily Johnson with a UCLA law COVID-19-- um, the, um, UCLA law, uh, uh, COVID-19, uh, behind bars data project. Um, I want to start by explaining how we plan to use the conversation we are 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--future researchers and the general public, and portions may be posted online or discussed in posts on our website or other published writing. I want our conversation to flow freely. And I realized that you may discuss a sensitive topic or mention a piece of information that you later realize you would like withheld. If you request it now at the end of the interview, or later on., upon 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. Um, so yes, feel free, uh, to introduce yourself and I would love to hear, um...

TH 01:17

To-- yeah, I'm Tara Herivel. Thank you, Lily. And it's T-A-R-A H-E-R-I-V-E-L. Um, I'm an attorney in Portland, Oregon. Um, and I am the leader of a team of now 30 attorneys who I founded a project to raise failure-to-protect claims on behalf of prisoners in Oregon and people detained to jail in April of 2020. Um, and we run with funding from the Office of Public Defense in Oregon, and raise individual cases on behalf of prisoners and detainees that challenge the constitutionality of their confinement and [the] DoC’s, or the Department of Corrections’, failure to protect them, or the jail’s failure to protect them from infectious disease like COVID, and in failing to follow the CDC guidelines as outlined in the guidance for correction--correctional institutions and jails. Um, and then also medical claims that are kind of the bread and butter of these habeas cases. These are all state cases, and they started it once--once we wrote the pleadings and distributed them and started getting them distributed to prisons and jails across the state. They have not stopped rolling in. We have about 400 cases now in active litigation across the state.

LJ 02:49

So you said that you started in April 2020. What was your career looking like before that?

TH 02:57

Well, I've been doing prisoner's rights work the majority of my legal career, about 20 years. And so I was doing habeas, and post conviction, and state, and federal criminal defense as a solo practitioner. So-- but I was doing it for my office, and I was just a firm of one. And with COVID, I started working from home, off my kitchen table with my seven year old at home--then seven, now eight--running this project and creating an infrastructure for this legal effort from nothing. And we drew in, eventually about 30 attorneys and now have about 50 doctors that we work with as well who are across the-- across the country. From the Bronx to Oregon to San Francisco to New Jersey, who are assisting us with these cases and serving as our medical experts. So it's a huge sprawling thing. And now I've moved from my kitchen to my son's bedroom, which is where my pandemic office is now, and we have an infrastructure, but it's, it's certainly-- all of it is in flux at all times, and it's extremely dynamic how long this project will be going on. And it changes, it seems, with the weather as COVID, and the threat that COVID is, changes. And so-- um, we're-- I tried to be responsive to that and keep this project going as best I can. But it's-- and it's unclear how long that will be. But as long as there's a need, my hope is that we're able to continue to serve as--as protectors for our clients in these really horrific conditions and I have seen it make impact in a number of different ways, aside from the litigation. Um-- there have been some pretty significant improvements in the prisons, but in our--and our clients are heard and are represented which otherwise, they certainly, they just wouldn't be. These are cases in Oregon that are particular, and pretty unique because in this case type of habeas, which is available in every--everywhere at the state and federal level, it is a, it is an ancient tool that predates the Constitution, it's set forth in the Magna Carta, and it has, at its core, the enforcement mechanism to bring challenges to conditions of confinement that are unlawful. So it's either Eighth Amendment cruel and unusual punishment because of inadequate care, failure to protect, dangerous environment, or it's incorrect sentencing construction by the prison or jail holding somebody incarcerated longer than they should be. We're in that first class of cases, cruel and unusual punishment to house folks in unconstitutionally inadequate and unsafe conditions. So, but in Oregon, what is unique about our habeas statutes and practices that we can--folks can have appointed counsel through an (indigent) defense vetting process, and that's very, very unusual. I don't know of another state, I would love to know of another state that has the same access to counsel. Because it's, um, it's, it's unique. And it's incredibly important, because for prisoners, there's really no other way for them to challenge the conditions of their confinement. And there are such serious issues. as anybody knows who works with prison, or (pretty) people in prison. What happens in prisons is typically without oversight, without examination, unless something so horrific has come to bear that there's a huge lawsuit, but sometimes, you know, not in that case, because you have to have resources to have a huge lawsuit. So these conditions that can be absolutely nightmarish regularly, most often go under cover of darkness. So having the ability to have an appointment of counsel, as somebody who is indigent, is enormous. And until this project, this was a super underutilized tool, most people didn't know about it in Oregon-- attorneys don't know about it. Um, and it was maybe under 100 cases a year were being fought were filed last year, and the year before that, it was probably half as many. And the year before that, it was probably half as many. And I started doing ABS really aggressively in the last six years in Oregon, using this tool, and I started litigating these cases to the point of trial, bringing evidence, getting experts and winning them. And that actually hadn't happened in Oregon. And so these cases started getting real traction and the judges seems kind of no matter where they were on the political spectrum, to be concerned about where they may be sentencing people, um, that it is a safe environment, safe enough, um, that people's incarceration is the punishment and not the conditions of their confinement, or dying from a medical condition that was treatable that they couldn't get care for. And so there has been support-- at least, concern-- from the bench enough to rule in the favor of many prisoners now that this is becoming a more known remedy for prisoners. And having brought these cases now and gotten them across the state... Now there's a hugely improved tool for, um, prisoners to access now that they know it's available. And I expect it will go on after COVID, long after COVID that prisoners now know that there's this tool called Habeas that they can file when they're not being protected or provided just real basic adequate health care.

LJ 09:08

He cites the heightened awareness that you were talking about of this resource, um, for those incarcerated. How, um, how do you think COVID has… um, you've been in prison scheme for-- since the beginning of your career. How has the threat of COVID changed how you view prison law, um, and also how, um, how you were feeling towards the administrator judges or public officials and how they respond.

TH 9:44

Well, it didn't change how I view prisons because it really just crystallized the problem that I see throughout my career with treatment of prisoners as being less than human and subject to substandard to hellish conditions. Um, it crystallized, unfortunately. On the COVID claims, we have these cases that are bifurcated, COVID claims, um, medical claims. Now when I say we've gotten success and traction with medical claims, that is different than the COVID claims. Um, I actually have never been so disheartened by the bench as I have in bringing these COVID claims, bringing evidence, sometimes in real time, like having on the video, someone giving medicine to our client without gloves or a mask on, (well), that's one of our claims, and, um, still having the judges, I think, succumb to political concerns, and not weigh in favor of the evidence right in front of them, that our clients are not being supported and not being protected. Um, I, I’ve, we have had such a remarkable demonstrations of failure to comply or even try with the COVID protections and mask mandates as a basic, as a very basic, right in front of the judges faces during these trials, some of them, and had the judges absolutely refuse to even acknowledge what has happened, not even address it in their pleadings. And again and again and again, they don't want to take a position. My experience has been in these cases over and over again, that is truly I think they, they don't want to be the first to rule that DRC has not complied with the real basic adequate protections. Um, and until a judge has done that, it seems that the judges we, our cases have been in front of have been have refused to take that stand in terms of the COVID protections. And I've, I mean, I've seen that and looking at cases across the country, it's been more common for judges to find a way to procedurally default a case out, than to take a square look at the incredible harm that could be prevented and that prisons are choosing not to, or they don't have enough resources, and what do we do about that, um but creating really inhumane conditions where people die. So I-I've been more disappointed, really, by the bench in Oregon than I've ever been in a widespread way, having been in front of so many judges now with claims that are as strong as they can get really and having judges just refuse to step in.

LJ 12:42

That's really disappointing to hear, um, and I can imagine very frustrating on your behalf, um, I also wonder how your communication relationship has been with your clients, um, for the past year, as opposed to before the pandemic of based on lack of visitation, um, also fresh frustration, and things like that.

TH 13:07

Yeah, um, before I speak to that, though, I do want to say, um, we've had great I, I removed, I helped to be removed our cases from direct litigation on the COVID claims, because we were getting no traction to a judge who is I think, a great judge, and who is receptive to these claims, who is now hearing them in settlement posture for compliance. And so we we. uh, removed remove those cases from the counties they were in across the state for, for clients who had sign up with this agreement, and got them under the jurisdiction of another court, who will, who we are now, we are working within compliance efforts now in a kind of different, much more focused, much more favorable posture for them. So I was able to find a way to, to kind of remedy or at least offer an option to what we were experiencing. So I just wanted to say there was, that is a success. You know, we were able to find a judge who really really cares about these cases and is willing to work incredibly hard to help resolve them in a, in a fair and just way. So back to the question, how are they communicate? Oh, they're miserable. I mean, our clients are miserable, they haven't seen, they cry about not having any visits from loved ones in over a year from having been in the most terrifying environment of their lives. You know, seeing people become incredibly sick right next to them, seeing people die. Um, so it's incredibly distressing for them. I think this is a hugely traumatizing period for everybody. But I mean for somebody who's trapped in the environment they're in, like a prison context, that's, that's beyond so it's, it has been horrible, horrible for everybody.

LJ 15:08

I, um, I wonder if you feel comfortable on maybe speaking with some, um, about conversations that you've had with your clients, whether you're litigating something with regard to COVID, or just in general, um, and how you feel your role as an attorney, and as an advocate has to shift if you feel there was any shift. Um, I know we have spoken to people who have said they would have to tell people what was going on outside of the jails and prisons and just if you've had any experience with that.

TH 15:44

Sure, I mean, that's kind of common, though. Uh, because there's such a vacuum in prisons, the information that they receive about anything at any given time is really limited. I think the way it really comes up, though, is like the vaccines. Um, there's been so little information provided to people about the vaccines. And in Oregon, it was court ordered in the federal court, um, that vaccines had to be implemented for prisoners. And so the Department of Corrections hadn't really done apparently any preparation for that. And they didn't have any information ready, readily available to be providing people to make the decision about the vaccinations. So people started, you know, having their family members, Google vaccinations, what's up with that, and of course, that brought back like, all kinds of nonsense, and you can get, you know, you can die if you get it at the wrong time, you can get diseases and so people were not wanting to take the vaccine, because they were such a, they didn't trust DOC, and they weren't getting information from DOC, and the relationship is so broken. Um, so we were sending in information about the vaccines, and even the Department of Corrections asked us to provide like, an informational letter, which is like, no, you're, you go do that, it's your job, that information exists, and you need to be liable for it, not us. Um, so it's been just a, a, in that way that's like, kind of classic. Um, they don't know what's going on outside, there's this real kind of petri dish of information, and, um. there's a lot of fear and anxiety. And so and that's, that is not an environment, that's, that's going to be conducive to making informed decisions. Um, so, but that's, I mean, that is just that's inherent in the prison environment.

LJ 17:48

Um, I would like to also, going back to the very beginning, I know you said you started working as an attorney one at your kitchen table. Um…

TH 17:59

Mhm

LJ 18:00

And I want to hear more about how you've grown, um, grown this initiative, brought people in, also saying starting April 2020, kind of how you foresaw, uh, how long this was going to last, how long this would be an issue in prisons. Um, I'm curious about how, you know, you went about all that.

TH 18:23

Well, it was a super steep and painful learning curve in the middle of a pandemic, with, as a single parent, by the way, with a really small kid not going to school. And nobody providing care or education except me, trying to create this thing off my desk, um, with a, a across the state, it was extremely stressful. Honestly, it was, um, not great for a while. And it's, I mean, it's not a fun thing to do. It's, it's been an incredible challenge. I've never managed people like this, I've never worked with this many people, I've never created like protocols for people to need to follow. And, um, you know, at the same time creating this project that didn't exist, and I don't know if it exists anywhere. So, I mean, it's been really exciting. But it's required, everything I have, I mean, I've, I, my feet are ruined from standing 10 to 12 hours, six to seven days a week since April. Um, you know, it's, it's taken a heavy toll and in the middle of a pandemic, where I've got, you know, I have needs too and I have a kid who has needs and, um. it's and we're all isolated. So it's been hardcore. It's been really hardcore and not I mean, there's nothing that's, it's been exciting in the sense that I've seen what we've been able to achieve, and, you know, part of my goal with creating this project was to spur interest in prison litigation for attorneys who maybe had not, um, who I'm sure had not been exposed to that because there's just no prison litigation in Oregon that's coherent, or centralized, there's no, you know, prison litigation office, there's no San Quentin Prison litigation office, there's no ACLU prison project, there's nothing. It's just, you know, a handful of attorneys who might do prison cases here and there, but there's no infrastructure for prison litigation here, historically. And so my hope was that this could be kind of the nub of that, um, that could thrive enough that it would become that for Oregonians, and, in who were incarcerated.

LJ 20:47

So you spoke about how, uh, prison litigation was, there's more of an awareness about prison litigation now and that the resources in Oregon specifically, um, do you think there are any other lessons or things that can be learned from this pandemic, in terms of, um, representing, uh, prisoners?

TH 21:15

Oh, there's a ton. Um, I mean, what this pandemic revealed is nothing new, it's that we have a, it simply exposed and revealed what was already broken in our prison system in Oregon, and the lack of insight or oversight and insight, um, the lack of, uh, advocacy generally, there is a great deal more now, though, I just offered testimony in a hearing for a pilot project at the women's prison to provide healthcare advocates to get better access to healthcare for, um, for every prisoner as medium or serious, um, serious medical conditions while incarcerated. And that's, that's a huge deal. And the representative who is sponsoring that legislation came to it through her work as a ICU doctor. Um, and also with the issue of COVID in prisons and being motivated by the really, I mean, just the depravity of what was going on here and the total lack of protection. Our death count is, is not as it's, it's high for our proportion of our population of prisoners, um, and it's significantly higher, for example, than, in Washington state, we had like 42 deaths in a population of almost 13,000 prisoners. Washington State had 10 in a population of at least a couple 1000 more prisoners than than we have. Um, and just everything about protection and advocacy, or just at a very basic level was rolled out really slow, if at all, and only occurred because there was, it was reactive to litigation here. So that did spur people, um, like this representative Maxine Dexter to want to focus, her advocacy and her position and platform to focus on this population. So there are, there are moments like that that are very significant and could lead to long term change.

LJ 23:26

Do you think there's any ways that you've changed, as an attorney, as the, in the way that you represent your clients? And then also a follow up to that, do you think there's a way that you've changed personally, in approaching your work? You mentioned a single mother to a young son, is there changes that this pandemic and working from home has shifted how you see your work and your advocacy? So the two parts there. Professionally, and then as a person.

TH 23:56

Hm, well, professionally, it's kind of, it's just what I've been reaching towards, and in a culmination, in a larger way than ever before. So it's, it's an extension of the path I've been on for a couple decades. Um, and in terms of personally, I mean, I think we're all changed in this time. I don't think any of us are quite like we were. Uh, it's hard for me to say because I'm inside of it. I can't, I don't have insight. I'll have to get back to you in a few years when this chapter of the apocalypse is over. ((interviewee chuckles)) But I have never been so tested, um, professionally. I, it's, some of the biggest I mean, personally and professionally, this has been monumental too ((interviewee sighs)) It's, I don't know the word, it's not thrive, it's not survive, it's not endure, but it's kind of a little bit of all of that. And to also step up and say this is, this is the thing I have to give in this moment, um, I did, um, what I have been surprised about was how incredibly difficult it was to keep that focus. Um, because this is an innovative program and a few other things that has not been seen before in this state. It's been, the pushback’s been significant, and it from directions I did not expect. So that part's been the most surprising to me, I think, um, I have a lot of skills, I hope I have skills now that I didn't have before. I think, I'm definitely not at the place I was when I started, uh, in terms of being able to work with a huge group of attorneys and doctors and coordinating and creating systems that are coherent, um, to navigate between those groups and the clients, of course, and then the systems of getting into court. Um, I'm definitely, I think I have more refined skills than I did at the beginning, which were pretty raw, and I was kind of like, I will run at the wall. Now I will, bam, you know, and just like that's the wall, gonna run at it. And that goes on, like that works for so long. And then you really got to kind of refine your practice or you just, you're in pain all the time. So I definitely had to find some other tools besides just straight up running at the wall, um, that I hope will transfer into other work that I get to do in the future.

LJ 29:58

And so we discussed how this will be used possibly for research purposes, (unintelligible) like archives, um, different narratives and historical purposes. Is there something that you think society in general, even beyond the legal community, should know about being an attorney working, um, to advocate for, um, those incarcerated and prisoners rights in general, during the pandemic. That there's something that you think, either, whether it's a story or just something that you've been thinking of, should people should be aware of that may be surprising, or just something you need to push again?

TH 30:40

Well, I mean, the thing to me about this experience in the pandemic, if there is one lesson, it's that we're all interconnected. You know, what happens in China impacts what happens in Europe, impacts what happens in New Zealand, impacts what happens in in Portland. And so given our incredible interconnectedness, uh, you know, that's the place to focus. And with prison, there's always, there's always this, us and them, this, they have done something very bad, so you know, they deserve x, there's always kind of a proportion of folks who feel that way. But if you just look at a really practical level, prisoners are going to come out, and they're going to come back into our communities. And, um, staff are, you know, they're the vectors at this point for the disease, they are going to come in, bring it back into the prison, come back to their communities, bring it back into the community. This is part of that interconnectedness. And if we could look at our, at our systems, and at our communities as interconnected, then we could start approaching in a way that's mindful and coherent, um, how to approach such a massive Game Changer like, like the Coronavirus and the permutations that will continue to take. And so I think that interconnectedness in the face of feeling the most isolated, being the most isolated at the same time that we are so interconnected and that's the reason we’re isolated, is an incredible message and metaphor. And it's also a very specific condition. And once we can accept and say, we are all truly interconnected, and my, my mask-wearing impacts you and your family, and people never see or know, maybe even in other countries, the sooner that we can get to that place where we accept and move from that, that space of being interconnected and having our fortunes interwoven, the better we will be, just, for all of us.

LJ 33:01

Um, now, you mentioned, uh, this is something, uh, curious (about), you said that you mentioned, uh, you work with women's prisons, and also men's prisons.

TH 33:11

Mhm.

LJ 33:11

Obviously, very different environments already, um, and with different needs and resources, but how do you think the, uh, pandemic has impacted those communities differently? If, if at all.

TH 33:29

Well, if at all, I mean, I think what I see from, and this is true of all women, or most women, women, when hurt and traumatized, take it inside, turn it against themselves. Men, when hurt and traumatized, turn it outward, and, uh, turn it outward. So that is the same here. That's the reaction, everybody is experiencing pretty significant trauma, whether you've got COVID, or you and you now have, you know, affects your long hauler, or you don't know what you're going to live with for the rest of your life from COVID, or from being unprotected, and from being in an environment where you weren't cared for. You know, those all have very, very deep tethers with a population who are largely, overwhelmingly people who come from trauma and abuse. And so we're how they were going to carry this with them in their lives, there's nothing good about it. Um, I don't, I think it's another level of trauma to sustain. And however it's expressed, whether it's outwards or inwards, and whether it's kind of gender based, you know, classic, um, expressions of, of pain and trauma. It's, it's, it's definitely sustained by everybody who's been incarcerated in this period.

LJ 35:04

Um, as we're starting to wrap up, is there anything that you, I mentioned anything you want on the record, is there anything else that you want to say? Kind of going into, before this conversation was like, oh, I want to talk about this or anything like that. I want to make sure nothing's missed.

TH 35:23

Um, I think we covered a lot. Thank you.

LJ 35:28

Yes, no, thank you so much for your time. I will end the recording.