AuthorAviram, Hadar
PositionHall, In re - AEDPA and the PLRA After 25 Years

INTRODUCTION I. BACKGROUND TO COVID-19 LITIGATION IN CALIFORNIA A. Triggers and Vulnerabilities (1): Background to California's Correctional Healthcare Crisis B. Triggers and Vulnerabilities (2): Brown v. Plata and its Aftermath C. The COVID-19 Crisis in California Prisons E. COVID-19 at San Quentin: The Botched Transfer and Its Effects II. PLATA V. NEWSOM A. Phase I: Tears and Slideshows--The PLRA and the Failure of Population Reduction Remedies B. Phase II: "Couch Money"--The Efforts to Prioritize Vaccination For the Incarcerated Population 590 C. Phase III: Persuasion--The Efforts to Require Staff Vaccination D. Phase IV: The Appeal III. IN RE HALL A. Phase I: Stuck in Superior Court B. Phase II: "We Must Act Hastily"--In re Von Staich at the Court of D. Appeal C. Phase III: "Packed Like Sardines"--the Evidentiary Hearing at the Superior Court D. Phase IV: The Appeal IV. FEAR AND LOATHING: STATE AND FEDERAL LITIGATION COMMONALITIES A. Tolerating Bad Behavior B. Fetishizing Consensus C. Justice Delayed is Justice Denied CONCLUSION INTRODUCTION

In an important recent work, Brandon Garrett and Lee Kovarsky examined the national landscape of COVID-19 litigation on behalf of incarcerated people. Their abstract summarizes their findings:

We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought. Several patterns emerged. Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge--limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes. (1) Garrett and Kovarsky's findings are striking. Universal vulnerability to a dangerous contagion should have produced increased empathy across demographic lines; instead, the pandemic-era poem observing that "we are in the same storm, but not in the same boat" (2) has become widely popular for a reason. It is well known that pandemic suffering worldwide and nationwide has been greater for disenfranchised, disempowered groups along class, race, and gender lines. (3) These deepened inequalities included people in government custody. Even against the backdrop of the pandemic in the United States--83 million cases and nearly 1 million deaths as of late May 2022 (4)--infection, serious illness, and mortality in prisons have been shocking. In California, more than half of the overall prison population contracted COVID-19 and 304 people, 254 of them incarcerated and fifty staff members, have died. (5) When adjusted for age, the prison-to-U.S. COVID-19 incidence rate ratio was 5.0, while the standardized mortality ratio was 2.7. (6) Anyone familiar with the vast efforts made on behalf of people in other congregate settings--schools, (7) nursing homes, (8) cruise ships (9)--and unfamiliar with U.S. prison law and policy, would expect COVID-19 policies to prioritize public health in the form of population reduction, careful testing and contact tracing, and medical isolation and quarantine protocols. Garrett and Kovarsky's findings reveal the opposite trend: a pathological reluctance to reduce custodial populations and a decision-making pattern that reveals considerations of deservedness, or perceived virtue, rather than public health.

How can we understand such findings? Are they the product of legal doctrine that is not conducive to population reduction mechanisms, or of a deeper, entrenched animus against offering incarcerated people humanitarian support even in an emergency? The answer is not dichotomous. As Margo Schlanger explains, (10) the Prison Litigation Reform Act of 1996 (PLRA), (11) which greatly undermines the ability of incarcerated people to litigate, and prevail, against correctional facilities, came about for precisely that purpose: it was part and parcel of the Newt Gingrich era's "Contract with America," passed for the express purpose of hindering prison litigation. Not all of this alignment with prison authorities against institutional actors comes from statutory constraints, though: As Sharon Dolovich explains, (12) despite presumed checks and balances, "the relevant institutional actors" (including courts) "align themselves with the officials they are supposed to regulate, leaving people in custody unprotected and vulnerable to abuse by the very actors sworn to keep them safe." (13) Dolovich ascribes this to a prevalent animus, deeper than the constitutional or legal provisions: "This pattern is no accident. It reflects a palpable normative hostility and contempt toward the incarcerated, an attitude with deep roots in the virulent race hatred endemic to the American carceral project from its earliest days." (14)

This Article seeks to illustrate the interplay between the legislative barriers to effective humanitarian litigation, as portrayed by Schlanger and others, (15) and the carceral, fear-and-loathing animus permeating the entire system, as portrayed by Dolovich and others. (16) I uncover this interplay in the context of California's COVID-19 prison litigation, focusing on two major cases: Plata v. Newsom, (17) a federal class action involving the entire prison system, and In re Hall, (18) a cluster of consolidated habeas corpus writs brought in state court by residents of San Quentin State Prison. Both cases resulted in an effective denial of meaningful relief to the prison population, and despite this fact, both cases--astoundingly--are currently under appeal by the government.

While both cases revolve around the question whether prison conditions wrought by COVID-19 mismanagement constitute a constitutional violation (in Plata, the U.S. constitutional prohibition against "cruel and unusual punishments"; (19) in In re Hall, the California constitutional prohibition against "cruel or unusual punishment" (20)), the two cases differ both jurisdictionally and procedurally. Plata v. Newsom, a civil-rights class action, was brought and pursued by the legal teams that litigated healthcare conditions in California prisons for the last three decades; as a federal case, it was, and remains, subject to the limitations set in the PLRA. By contrast, In re Hall et al. consists of hundreds of individual habeas petitions brought in state court, where the PLRA has no jurisdictional foothold.

Because of these differences, my analysis shows that, doctrinally, the mechanisms for denying relief to the prisoners varied considerably. In Plata, the initial hesitation to provide relief in the form of population reduction ostensibly resulted from the PLRA's high threshold for relief, and the eventual, much more modest remedy (currently under appeal) skirted the issue of releases or ongoing danger. In In re Hall, the hesitation stemmed from a judicial finding that the advent of the COVID-19 vaccine supposedly rendered relief moot despite the constitutional violations, thereby avoiding releases. The bottom-line comparison I undertake here looks not only at the legal decision--the final product--but also at the process by which the courts arrived at these decisions, and suggests that the fear-and-loathing animus identified by Dolovich has a protean, shape-shifting quality: it contorts itself into the shape of legal limitations and avoidance maneuvers available, respectively, in federal and state litigation. Despite the seeming jurisdictional differences, I show several striking similarities between the two proceedings: a sense that, where occurrences behind bars are at issue, special caution must be exercised with the facts, and deference must be given to prison authorities; a heightened tolerance for dishonesty and bad behavior on the part of government litigants and their legal representatives; overwhelming, and often absurd, preference for, and idealization of, consensus between custodians and incarcerated people in the face of clear evidence of its impossibility; and a misapprehension of urgency and timeliness, resulting in justice denied on account of being delayed. My analysis shows how these factors manifested themselves, respectively, in federal and state courts, and suggests that reforming these respective procedures will not produce real change in prison litigation outcomes.

Part I provides a background to California's COVID-19 correctional catastrophe. I explain the decrepit state of prison healthcare in California and the outcomes of federal litigation to improve it, resulting in the landmark decision in Brown v. Plata. (21) I demonstrate the shortsightedness of the Plata remedy and how it rendered California prisons vulnerable to serious contagion. I also highlight the specific vulnerabilities of San Quentin. This part ends with a description of the COVID-19 disaster, with a special focus on the mismanagement at San Quentin.

Part II turns to the federal litigation in Plata v. Newsom. Here, I delineate the gradual diminution of the plaintiffs' proposed remedy, from systemwide population reduction, through the vaccination of incarcerated people, to a final, much more modest, request: a vaccination mandate for prison staff. During each step, I demonstrate the court's efforts to make government actors (including legal representatives of the prison guards' union) welcome, the judicial tolerance toward bad-faith arguments and positions, and the judge's perceived inability to issue orders or even find Eighth Amendment violations. This part ends with the Ninth Circuit's reversal of the guards' vaccine mandate, a decision emblematic of all that is pathological in prison healthcare litigation.

Part III describes the state litigation in In re Hall and In re Von Staich. (22) Here, I show how the bulk of habeas petitions were halted in the Marin Superior Court, while one petitioner's case made it to the Court of...

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