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Public Transportation Should Be Free

The COVID-19 pandemic has made it impossible for us to ignore this any longer.

A New York Subway car is seen in New York City.
(Photo by ANGELA WEISS/AFP via Getty Images)

Public Transportation Should Be Free

The COVID-19 pandemic has made it impossible for us to ignore this any longer.


Public transportation is a public good. When transit is the most reliable, convenient, and affordable option, everyone benefits—transit riders pursuing economic opportunity across town, drivers enjoying unclogged streets, and city residents breathing cleaner air. And in cities like Boston, where deep racial inequities are embedded in geographic segregation across our neighborhoods, public transportation is the foundation for economic and racial justice.

But our nation has historically neglected public transportation systems, with inadequate funding leaving low-income communities, people of color, and those living with disabilities without the dependable transportation they need. Every year in Boston, Black bus riders spend 64 more hours on average on stalled buses compared to white passengers, choking off opportunities related to education, employment, personal development, and civic engagement. And these transit inequities are exacerbating environmental injustices, accelerating the climate crisis and disproportionately burdening communities of color with dangerous levels of particulate matter from tailpipe emissions.

The COVID-19 pandemic has made it impossible for us to ignore this problem any longer. Our nation’s public transit is in crisis. To secure an equitable post-pandemic recovery, we must take meaningful steps toward a fare-free transit system. 

Since the start of the pandemic, transit ridership across the country decreased by nearly 70%. This decline in ridership has created a steep financial shortfall for jurisdictions that rely on fare revenue to support their operating budgets. Lower ridership and a general economic downturn have devastated the common financial support systems upon which transportation authorities depend. In Massachusetts, fares from bus and subway riders contribute only 20% of the Massachusetts Bay Transportation Authority’s revenue. Even so, when ridership decreases, budgets soon follow. Earlier this month, the MBTA board approved a package of massive service cuts, including a 20% reduction in subway service and the elimination of evening and weekend commuter rail service system-wide. These changes could result in more than 125,000 people across Greater Boston losing access to high-frequency transit, with a ripple effect on the businesses losing employees who no longer have a way to get to work. 

Boston is not alone. Across the nation, cities have begun making significant cuts in service, reducing weekend and late night service, closing stations, and eliminating bus routes. In Washington, more than 20% of bus routes will be suspended. In Atlanta, more than 60% of bus routes have already closed. New York, the country’s largest transit system, may slash more than 40% of its service

Compounding pre-existing transit inequities, this year’s service cuts have disproportionately harmed Black and brown communities. In a TransitCenter study, researchers found that service cuts in 9 major cities would result in more than two million people losing access to frequent full-day transit. More than half of those stranded would be people of color. These service cuts are particularly short-sighted when we consider that essential workers, the majority of whom are people of color, disproportionately rely on transit to get to their jobs. In Boston and around the country, health care providers, hospital workers, and others on the frontlines of the pandemic will find themselves with longer commutes and skeletal options. 

It doesn’t have to be this way. During this unprecedented crisis, our federal government must allocate enough funding to support and sustain transit agencies and ensure that every person in our community has access to reliable transportation. That is why I joined Representative Ayanna Pressley and Senator Ed Markey in support of the federal Freedom to Move Act, which would invest in the public transportation system critical to low-income communities and people of color and incentivize state and local systems like the MBTA to offer fare-free transit.

The momentum toward fare-free transit is already underway. Nearly 100 cities around the world have abandoned user fees in favor of alternative funding streams that remove financial barriers for public transit riders—including a growing number of cities in the U.S. Last December, Kansas City became the first major American city to have fare-free public transit. Around the same time, Lawrence, Massachusetts did away with bus fares on three downtown routes popular with low-income residents—and saw a 20% increase in ridership as a result. This past summer, the Los Angeles Metro Rail—where fares account for only 13% of the transit system’s operating budget—rolled out an initiative to study the possibility of eliminating all rider fares. And right here in Boston, we’ve been pushing for fare-free transit to promote economic mobility, racial equity, and climate justice, already securing free MBTA passes for all 7th to 12th graders in Boston Public Schools

Cities need the support of our partners at the federal level to pursue transit justice, but unfortunately, the recent Congressional proposal for pandemic relief only allocates $15 billion for public transit agencies—less than half of what the American Public Transportation Association says is necessary just to ensure that public transit agencies can survive. Meanwhile, the Republican alternate includes zero funding for public transit. Neither option gets us anywhere near the future we need to ensure every person has access to safe, reliable and affordable transportation. 

President-elect Joe Biden recently announced his intention to nominate Pete Buttigieg to lead the US Department of Transportation. Mr. Buttigieg would be stepping into this role at a time of tremendous precarity. But this critical time also presents an opportunity for bold and courageous leadership—an opportunity to meaningfully acknowledge the crucial role that public transit plays in our lives. As we enter a new year and a new administration, we must continue to advocate for federally funded zero-fare transit systems across the country, building a foundation for public health, shared prosperity, and justice for all. 

Michelle Wu is member of the Boston City Council and a candidate for the Mayor of Boston.

Brandon Bernard’s Death Sentence Should Be Commuted Immediately By President Trump

A reasonable society does not meet trauma with more trauma in the name of justice.

Brandon Bernard, a person on death row.

Brandon Bernard’s Death Sentence Should Be Commuted Immediately By President Trump

A reasonable society does not meet trauma with more trauma in the name of justice.


This commentary is part of The Appeal’s collection of opinion and analysis.

Too often, the flawed narrative about folks on death row is one of hardened people with no redeeming values. A story that fits neatly in a box but fails to acknowledge the complexity of our humanity and the inherent dignity we all have. The reality is much more complicated. It is the story of people like Brandon Bernard, who was sentenced to death 20 years ago as a teenager. Despite the numerous shortcomings in Brandon’s legal representation at trial, the absence of even a single disciplinary write-up, and his decades of youth outreach work from behind the wall, Brandon is just hours away from being killed, the latest name on the list of people the Trump Administration has cruelly and unjustly scheduled for death in the waning days of this Administration. 

Brandon was just 18-years-old when a group of teens he was associated with stole a couple’s car and murdered them in Texas. But at his trial, his lawyers didn’t explain the minor role he played to the jury and failed to paint an accurate picture of the totality of the chronic abuse and trauma he had endured in his life. Had they done so, he likely would not be facing execution today.

My heart breaks for everyone involved in what occurred that day, especially for Todd and Stacie Bagley and their family, whose lives were changed forever by senseless violence. Those of us appealing for mercy for Brandon do not wish to take away from the pain of that injustice, the fact that Todd and Stacie should be alive today. But we also know that the solution to injustice is not more injustice. Murdering Brandon for his role in the Bagleys’ deaths will only further cycles of trauma and harm.

Although there are many tragic layers to Brandon’s story, they were regrettably not presented at his trial back in 2000. Brandon’s trial attorney failed to tell the jury how remorseful Brandon was, or anything about his childhood, which was marked by poverty, physical and verbal abuse, trauma, homelessness, and chronic instability all by the age of 18. At trial, Brandon’s lawyer said nothing about how he had grown up in a turbulent household with a father who physically abused both Brandon and his mother. 

Additionally, the jury was not informed that at the time of the crime, it was well established that the juvenile brain is still developing well into a person’s 20s, with neuroscientists estimating that for men, that age is 26. Although all five teens involved in the crime were Black, 11 of the 12 jurors were white. This, coupled with the misleading and incomplete information the jury was given about Brandon’s life, deprived him of a fair trial and sentencing hearing.

Even a prosecutor who defended Brandon’s sentence on appeal and a majority of the jurors who sentenced him to death now agree that execution would be a grave injustice. Five of the nine jurors no longer believe the death penalty is necessary in Brandon’s case, citing his lesser role in the crime. Two of the nine surviving jurors from Brandon’s trial have since stated that, had they known anything about Brandon’s past, they would not have sentenced him to die. One prosecutor from his case wrote recently that she believes Brandon’s life should be spared since he was the least culpable of the five teens. Two of the other teens involved were sentenced to 20 years and have since returned home, and according to reports, officials at the U.S. Department of Justice have repeatedly recommended to President Donald Trump that he commute Brandon’s sentence. 

That’s why I am joining activists, advocates, and millions of concerned community members across the country in calling on President Trump to commute Brandon Bernard’s sentence in the name of justice. Brandon’s circumstances are undeniably the result of trauma and our broken criminal legal system. A reasonable society does not meet trauma with more trauma in the name of justice.

State-sanctioned murder is not justice. And the death penalty, which kills Black and brown people disproportionately, has no place in our society. Congress must pass my legislation to put an end to this injustice and finally abolish the death penalty once and for all.

It is our job to do the hard work of breaking cycles of intergenerational trauma so that we can finally start to work toward accountability and healing. Then, and only then, can we achieve true justice.

Ayanna Pressley is the U.S. Representative for Massachusetts’s 7th congressional district.

America Wants Marijuana Reform. Congress Shouldn’t Stand In The Way.

Investing in local communities and rolling back the criminalization of marijuana is exactly what the country needs right now.

Photo by Joe Raedle/Getty Images

America Wants Marijuana Reform. Congress Shouldn’t Stand In The Way.

Investing in local communities and rolling back the criminalization of marijuana is exactly what the country needs right now.


This Friday, my colleagues and I in the U.S. House of Representatives will vote on the Marijuana Opportunity Reinvestment and Expungement Act, which I co-sponsored with a bipartisan group of more than 100 other lawmakers. Passing the MORE Act would mean federally decriminalizing marijuana, allowing states to legalize marijuana on their own, expunging certain past marijuana convictions, and investing in communities negatively impacted by the decades-long “war on drugs.”

While the U.S. House is expected to pass this crucial legislation, we must fight to see it through all the way to the executive branch. Making it the law of the land would not only begin to undo the damaging effects of mass incarceration, but it would also reinvest in communities that have been utterly gutted of their people and resources. According to the FBI, 40 percent of drug arrests in 2018 were for marijuana-related offenses, and most involved simple possession. We must pass the MORE Act not only to restore communities decimated by over-policing and mass incarceration, but to actually invest in them for the future. 

Justice is long overdue for Black and brown communities ravaged by broken windows policing. But this bill is especially important during the ongoing pandemic, as continuing to arrest and incarcerate people for drug use does more harm than good; it ultimately threatens further spreading of the coronavirus in jails and throughout local communities. The Marijuana Justice Act, which I introduced in the House years ago, was the first marijuana reform bill that was centered on racial justice. I’m proud that the provisions of my original legislation are included within the MORE Act, and I’m committed to keeping the communities most impacted by the war on drugs at the center of the reform movement. 

Marijuana legalization was a clear winner in the November election, as one in three Americans will now live in a state with legal marijuana. In red states like Montana and South Dakota; swing states like Arizona; and blue states like New Jersey, marijuana legalization ballot measures were extremely successful, in many cases at levels approaching supermajorities. In every single one of these states–from red to blue, east to west, urban to rural–marijuana legalization far outperformed the states’ Democratic tickets. 

In my state of California, voters overwhelmingly passed Proposition 64 in 2016, which legalized marijuana use. Following its passage, marijuana arrests decreased by 56%, demonstrating the power decriminalization has to curb mass incarceration.

None of this should come as a surprise. We knew the popularity of marijuana legalization and the MORE Act long before November 3rd. Support for these policies has been steadily rising since the 1970s. This summer, polling from Data for Progress and the Justice Collaborative Institute found that when asked about its specific provisions, 59 percent of voters, including a majority of Republicans, support the MORE Act.

The nationwide wins this cycle demonstrate a strong mandate for progressive marijuana legislation, and the chance that this legislation passes the Senate and is signed into law is no longer a pipe dream. The MORE Act has Republican co-sponsors in the House and is expected to receive support from a number of others. Rank-and-file conservatives in red states voted overwhelmingly for legalization. We finally have a strong coalition, transcending party lines, that can help us reconcile the horrific legacy of the so-called war on drugs. 

Investing in local communities and rolling back the criminalization of marijuana is exactly what the country needs right now. Once it is affirmed in the House, the Senate must pass this bill without delay and send it to the President’s desk. Voters nationwide are clearly ready for reform, and it’s long past time for Congress to listen to the will of the people and act on Americans’ support for decriminalizing marijuana.

Barbara Lee represents California’s 13th Congressional District in the U.S. House of Representatives.

We Can’t Restore The Soul Of The Nation With Rahm Emanuel In Public Office

It doesn’t matter whether it’s Transportation Secretary or Assistant to the Transportation Secretary, Rahm doesn’t belong in any of D.C.’s halls of power.

Joshua Lott/Getty Images

We Can’t Restore The Soul Of The Nation With Rahm Emanuel In Public Office

It doesn’t matter whether it’s Transportation Secretary or Assistant to the Transportation Secretary, Rahm doesn’t belong in any of D.C.’s halls of power.


If Laquan McDonald could have three wishes, he wanted to turn back the clock on his life, have enough money to live with dignity, and see his grandmother again. This is what he said to a clinical worker during their meeting, weeks before he was shot sixteen times by Officer Jason Van Dyke. 

Laquan may have faced more hurt and hardship in his seventeen years than many of us experience in our lifetimes, but he was still a kid. A kid who missed his grandmother and dreamed of making a better life for himself.

While Laquan’s family were privately grieving their loss, Chicago Mayor Rahm Emanuel was figuring out how to keep the video footage of Laquan’s shooting from seeing the light of day.

So when I got word that President-elect Biden was considering Emanuel for a Cabinet position, I was hurt. It wasn’t because Rahm and I have differing views on policy (although we do), but because Rahm saw the murder of Laquan McDonald as a political obstacle, a threat to his reelection bid. Instead of seeking justice for Laquan and the people of Chicago, he took the coward’s way out by trying to bury the story. To me, that speaks volumes about his character.

As a father, as an educator, as a Black man in America, I can’t sit quietly by or let this pass. Millions of Americans have marched in the streets, rallied together, registered to vote, in the name of racial justice and an end to police brutality. To respond to this historic moment by appointing Emanuel to any position of influence is an affront to the memories of all those who have been murdered by police.

Even after the footage went public and demonstrations started, Emanuel opposed a federal civil rights investigation into the Chicago police and failed to deliver on civilian oversight of the department. In fact, Emanuel said that police were getting “fetal” in the age of bystander video. Apparently “tough-on-crime” isn’t tough enough for Rahm. 

We can’t restore the soul of the nation with Rahm Emanuel in public office. It doesn’t matter whether it’s Transportation Secretary or Assistant to the Transportation Secretary, Rahm doesn’t belong in any of D.C.’s halls of power.

Losing sight of the people closest to the pain is how we got here. High-priced political consultants can tell you how to bag a billionaire donor, but they don’t know what it’s like to grow up on the West Side of Chicago or in public housing in East Harlem, where I grew up with my grandmother. I’ve known plenty of kids like Laquan, who were failed by a system that couldn’t see past their haircut. We’ve decided that their lives don’t factor into our political calculus. But that needs to change.

If we want our talk about racial equity to be more than just that–talk–then we can’t return to the same well of political operatives and insiders, folks who have benefited from the status quo. Voters turned out in record numbers because they want change. The competing crises of COVID-19, unemployment, and police violence have left us feeling more vulnerable than ever before. But building back better demands better builders: new people with bold new ideas.

I wholeheartedly believe that a Biden administration can deliver for our families and move us closer toward a vision of racial equity. And that means Rahm Emanuel should stay home.

Jamaal Bowman is a former middle school principal and the Democratic Representative-elect for New York’s 16th congressional district.

Biden Must Fix The Broken Executive Clemency Process. This Is Who He Should Select To Lead That Effort.

Rachel Barkow, a respected legal scholar, expert on executive clemency, and former clerk to Justice Antonin Scalia would be an ideal choice to start and lead a powerful new program inside the Biden White House.

Biden Must Fix The Broken Executive Clemency Process. This Is Who He Should Select To Lead That Effort.

Rachel Barkow, a respected legal scholar, expert on executive clemency, and former clerk to Justice Antonin Scalia would be an ideal choice to start and lead a powerful new program inside the Biden White House.


This commentary is part of The Appeal’s collection of opinion and analysis.

There is a moment in Hamlet, when Ophelia is ostensibly going mad (or reacting pretty reasonably to the absolutely maddening circumstances around her) and Claudius asks her how she’s doing. She replies, “We know what we are, but know not what we may be.” And in this one line, poor Ophelia sums up one of the most problematic, intractable inequities in America’s system of justice: what do we do with the fundamental fact that every human being, and accordingly, every human society, is in a near-constant state of change?

Much of the conversation surrounding how we can fix–or dismantle and replace–our deeply toxic criminal legal system has, correctly, focused on what states and counties must do to increase equity, liberty, and success for the most heavily-impacted communities. After all, the US Constitution designates criminal law as, for the most part, a state issue. But the President can still exert a profound influence over the fate of hundreds of thousands of people, and, by example, lead a transformation in the way we relate to past wrongdoing. The President, in fact, holds singularly powerful tools in the law–the often-overlooked, criminally-underutilized power of clemency. 

Clemency is the natural response to the quandary raised by Ophelia. In a nation that sentences people to unconscionably long sentences, wildly out of step with the rest of the world, we have collectively chosen to ignore the fundamental fact that people grow and change. The 24-year-old kid who broke into someone’s garage trying to steal a stereo system is not the same as the 40-year-old man who has devoted himself to learning, gotten a degree and some well-developed technical skills, and wants desperately to return to be a better dad to his kids on the outside. But also, clemency addresses a larger problem within our system: the fact that as a society, our priorities shift, our fears ebb, and the people we are in 2020 are not the people we were in 1994. 

This latter point is perhaps the most significant. Clemency, the Constitutional pardon power of the President to grant release to anyone, and to move faster and with more humanity, flexibility, and intelligence than a creaking legal system disinclined toward retroactive mercy. As Rachel Barkow, law professor, former clerk for U.S. Supreme Court Justice Antonin Scalia, and one of the foremost experts on clemency in America, wrote in 2015

“The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope. Federal prisons are overcrowded and expensive, and hundreds of thousands of individuals are hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different U.S. Attorneys enforce the law.”

In other words, we must work at all levels to transform our criminal legal system. But we can’t neglect powerful, fast tools like clemency. We shouldn’t box clemency away as merely some form of mercy, when in fact it is something much more akin to a high-speed mechanism for undoing the worst impacts of bad, outdated policy and enforcement choices. And yet, we have done exactly that: As Barkow has pointed out, we’ve taken this powerful tool and abandoned it in a dusty closet somewhere in the basement of the Department of Justice. That’s where a brave new Administration must begin. 

Right now, a single person petitioning for clemency must go through seven layers of review within DOJ before their petition might make it before the President. Seven different stages at which a simple “no thank you” ends the chances of turning a life around. This means that not only is the onus on the imprisoned person to make the case for their own release (enough of a challenge even by itself), they must do so repeatedly, persuasively, fighting through a slow and restrictive gauntlet that hampers the greatest power of clemency, which is to broaden the capacity of the executive to act as a check on systemic injustice. 

It wasn’t always this way. Historically, clemency was used frequently, with every president pardoning thousands of people up until the time of President Gerald Ford. Thomas Jefferson pardoned everyone who had been convicted under the Sedition Act, Abraham Lincoln pardoned hundreds of members of the Dakota Tribe, all previously sentenced to death for killing white Americans who tried to take their land. Andrew Johnson pardoned everyone who had been loyal to the Confederacy, which was, of course, thousands and thousands of people. But even more run-of-the-mill pardons were abundant, up until they were cut off and buried under layers and layers of process in recent years. 

As you might expect, this choking process has left clemency in a state of crisis. It is dysfunctional, available primarily to the powerful, and raises only false hopes for marginalized people. But we are standing, post-election, on the verge of tremendous change. Looking to a Biden Administration that, at its core, has indicated a commitment to righting the wrongs of the past and looking for smarter, more human (and humane) solutions. Clemency is a fantastic opportunity for such an administration: fixing clemency in a way that would spur transformative change doesn’t require congress, doesn’t require massive bureaucracy, and doesn’t require anything other than strong executive action–and an executive ready to leverage the unique depths of his own empathy. 

The process is simple: first, the new President Joe Biden must move the clemency process out of DOJ and into the White House, and appoint someone with deep grounding in the topic–and bipartisan credibility–to lead a committee on clemency that would not only build a system to process individual applications faster, but create proactive tactics for finding ways to use the clemency power to undo the worst impacts of bad, carceral law–even for people who hadn’t been able to file for relief on their own. Best of all, this idea isn’t particularly controversial: it was supported during the primary by everyone from Senators Amy Klobuchar to Bernie Sanders, it made it through the Biden-Sanders Unity Taskforce, and it was integrated into the 2020 Democratic Party platform. For context, this makes it significantly less controversial than, say, legalizing marijuana–a policy many, many states are already enacting. 

Rachel Barkow, of course, would be a very smart choice, as someone whose primary body of work has focused on building a better clemency system, and who has also been celebrated by advocates from across the political spectrum. She’s not only a respected scholar and former clerk to the iconic Justice Scalia, she’s a national policy player who has been through Senate confirmation once already, joining the U.S. Sentencing Commission in 2013. But importantly, her views aren’t limited to the ivory tower–she’s done the actual work of helping people apply for clemency: she and co-author Mark Osler started a “pop up” clemency clinic to help people apply for clemency in 2014. She earned the prestigious NYU Making A Difference Award for that effort–a prize reserved for those who make a lasting, profoundly beneficial impact on the world. In short, she could garner broad support, has deep expertise, is unafraid of smart solutions even when they mean bucking existing, rusted-out norms, and is hard to argue against given her combination of policy and tactical experience, and her history of bipartisan support. 

Leading a team that would not just include but center the experiences of people who had lived through incarceration, and also reserve space for public defenders, civil rights lawyers, and progressive prosecutors who carry a more modern understanding of second chances than their old-school peers, Barkow could hand the President a mechanism for fostering liberty, opportunity and restoration out of the wreckage of our bloated system. She could change the game by building a faster, smarter process. For people who love comparisons, Barkow’s role in the clemency conversation is not dissimilar from the robust academic-yet-tactical power Senator Elizabeth Warren has brought to the conversation around the Consumer Financial Protection Bureau. Tasking Barkow with bringing clemency into the White House would be a little like letting Sen. Warren supercharge the CFPB. 

Instead of placing endless barriers between deserving, promising people and their chance to be heard, or allowing prosecutorial dinosaurs at DOJ to stand between ordinary people and opportunity, she and her committee could fast-track applications and give President Biden an opportunity to be a groundbreaking leader in this area. They could seek out specific areas where we know sentences are too long and out of step with current enforcement priorities and find people who may not have had the capacity to file a petition, but whose sentence is wildly out of step with modern views. It would be especially beautiful to break down the legacy of 1994–and 1990s punitive measures more generally–with this unique and deceptively simple action. 

It’s too late for Ophelia, of course. But perhaps with a fresh strategy on second chances, President Biden can finally codify and recognize both our individual and collective capacity for change.

Police Unions Are Losing The War on Criminal Justice Reform

Law enforcement organizations have long treated mass incarceration as a job creation program. In 2020, the tide began turning against them.

Photo illustration by Elizabeth Brown.

Police Unions Are Losing The War on Criminal Justice Reform

Law enforcement organizations have long treated mass incarceration as a job creation program. In 2020, the tide began turning against them.


This commentary is part of The Appeal’s collection of opinion and analysis.

Law enforcement unions are maybe the most powerful force in politics that most voters never think twice about. By quietly dumping millions of dollars in key prosecutor elections and ballot initiative fights, these organizations manage to affect everything in the criminal legal system’s orbit, usually while flying well beneath the political radar. Police unions are sort of like gravity, if gravity played a significant role in enabling agents of the state to systematically terrorize communities of color without facing meaningful consequences.

In races that take place outside the quadrennial spending bonanzas for control of the White House, these strategic allocations of time and outlays of resources can be decisive in elections, especially since no cohesive pro-reform interest group exists to counteract their influence. (Tight-knit, well-organized police unions can coordinate in ways that the larger but more heterogenous and dispersed coalition of people who favor criminal justice reform cannot.) One recent study found that law enforcement groups have spent about $87 million in local and state elections over the past 20 years, including almost $65 million in Los Angeles alone. At the federal level, their recent campaign contributions and lobbying expenditures approach $50 million, according to The Guardian. 

Such expenditures are savvy investments for police unions, who keenly understand the value of having sympathetic friends in high places. Because prosecutors work so closely with police, they have a strong incentive to develop a friendly relationship with rank-and-file officers, even if earning that trust comes at the price of turning a blind eye to abuse: It is not a coincidence that researchers have tracked the rise of police unions to an increase in on-the-job police killings. In a country where law-and-order rhetoric is deeply embedded in the cultural zeitgeist, if you’re a prosecutor intent on keeping your job, filing charges against the badge-wearing hand that feeds might not feel worth the retaliatory smear campaign that will inevitably follow.

In recent years, however—and especially as a result of the sustained protests of police violence in the aftermath of George Floyd’s killing in Minneapolis—people have grown more attuned to how these organizations bend the criminal legal system to their will and stymie efforts to reform it. A growing number of elected officials have pledged to refuse the support of law enforcement organizations; in California, a coalition of reform-minded prosecutors has been lobbying for a state bar ethics rule that would prohibit DAs from accepting donations from these sources altogether, arguing that prosecutors cannot ethically prosecute police officers if they are receiving the support of their unions.

“The ties that bind elected officials to police unions must be broken,” the Los Angeles Times editorial board wrote in June. “An elected official considering whether to prosecute officers should not be, in essence, on the political payroll of the agency defending the very same people.”

On Election Day 2020 in California, voters delivered police unions a series of resounding defeats that threaten to flip this time-honored paradigm on its head.

In the race for Los Angeles County District Attorney, reform-oriented challenger George Gascón ousted incumbent Jackie Lacey, earning control of a sprawling office that employs nearly 1,000 line prosecutors and retains jurisdiction over more than 10 million people. Lacey was the clear favorite of law enforcement organizations, who spent some $5 million boosting her candidacy and attacking her opponent’s. And for good reason: During Lacey’s eight years on the job, she reviewed more than 250 fatal shootings by on-duty law enforcement officers. She filed charges in one of them.

Occasionally, Lacey’s penchant for lenience extended beyond even that of high-profile police officials. None other than then-LAPD chief Charlie Beck called on Lacey to charge one of his officers, Clifford Proctor, in the 2015 killing of Brendon Glenn, an unarmed, homeless Black man. Lacey declined. “As independent prosecutors, we’re supposed to look at the evidence and the law,” she said. “And that’s what we did.” When the time came for Lacey to seek re-election, it seems that grateful police unions did not forget her choice.

Gascón’s résumé is one that might seem as if it would appeal to law enforcement types: A former LAPD patrol officer who rose to the rank of assistant chief, he also served as police chief in San Francisco and Mesa, Arizona, and as district attorney in San Francisco, before returning to run for DA in the city where he grew up. But Gascón is among the group of prosecutors who have disclaimed the support of police unions, and his campaign pledges include reducing the population of the county’s chronically overcrowded jail system, reopening investigations of high-profile police shootings that Lacey had closed, and declining to seek the death penalty altogether. For the unions, loyalty apparently extends only so far as it will allow their members to evade accountability.

Their efforts echoed those of the San Francisco Police Officers Association during last year’s DA election, when it spent some $650,000 on, among other things, mailers that declared progressive DA candidate Chesa Boudin to be “the #1 choice of criminals and gang members.” These scaremongering predictions were insufficient to prevent the city’s voters from electing Boudin—also a member of the no-money-from-cop-unions coalition—as Gascón’s successor.

Further down the ballot in 2020, California voters rejected Proposition 20, which would have reclassified certain misdemeanor theft offenses as felonies and reduced the availability of parole. (Incidentally, this would have rolled back the reforms of Proposition 47, a successful 2014 referendum co-authored by Gascón.) In other words, Proposition 20 would have resulted in more incarceration for more people for longer periods of time, which is why law enforcement organizations contributed roughly $2 million to the campaign to pass it. 

Police unions also opposed San Francisco’s Proposition E, which eliminated the city’s minimum police staffing requirement, and Los Angeles’s Measure J, which earmarked hundreds of millions of dollars in public resources for non-police community investment. The Los Angeles County Professional Peace Officers Association, which represents sheriff’s deputies, claimed that Measure J would “cripple public safety,” and local law enforcement organizations combined to spend more than $3.5 million fighting it. Both measures nonetheless passed with overwhelming support.

Law enforcement unions reliably oppose criminal justice reform for the simple reason that any attempts to reduce the criminal justice system’s footprint will make police less relevant. (Over the years, they have opposed everything from body camera mandates to the simple requirement that officers wear nametags.) For them, mass incarceration is the world’s most lucrative job creation machine. To justify their lavish spending habits and the generous rules that apply to their conduct, police always frame themselves as a mere half-step ahead of staving off mass chaos, warning that any abrogation of their authority by naive do-gooders will put everyone in danger. 

What this year’s election results demonstrate is that people understand the lies that infuse this narrative, which conspicuously omits from the ledger the staggering human costs that policing imposes on the communities it purports to keep safe. These losses won’t put an end to incidents of police brutality, or any other strain of rot that pervades the American criminal justice system. But they do signal that police unions are likelier to have to answer for their myriad failures, instead of relying on beneficiaries of their largesse to pretend that these failures do not exist.

Jay Willis is a senior contributor at The Appeal.

Coronavirus In Jails And Prisons

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons


For the last six months, we’ve examined the impact of the coronavirus pandemic on people incarcerated in U.S. prisons, jails, and juvenile-detention facilities. Today, we’re wrapping up the project, though it certainly doesn’t mean the crisis is over. The map we’ve been updating weekly with new outbreaks (see below) shows active cases at more than 450 facilities. We have strong reason to believe that the actual number is much higher. 

This project has affirmed what we knew at the outset: too many people are locked up in overcrowded, unsanitary facilities where requests for medical care are routinely ignored. Despite the repeated urging of experts, officials have been reluctant to release even the most vulnerable people in their care, even as deaths mount. 

We conclude the project with a Q&A with Homer Venters, a physician, epidemiologist and expert in correctional health care. Venters was among the first to warn corrections officials that they would face a crisis if they didn’t take early action, and he continues to try to work with facilities to mitigate the ongoing risk COVID-19 poses to prisons and jails. 


The Appeal: Was there ever the possibility of avoiding, or at least mitigating, the large outbreaks we’re still seeing in correctional facilities?

Homer Venters: I think that there were, and still are, many lives that could be saved through more aggressive release efforts. There’s still a lot of ongoing work and a lot of opportunity to be more effective in that area, because so many systems really didn’t make meaningful progress.

There have been some effective interventions for conditions on the inside and many lives can be saved if those are more widely implemented. One of the things that’s taken a while to sink in is that the primary vector for the disease is staff. Addressing that requires a really aggressive approach—not just a daily screening of staff, but also testing routinely and doing evidence-based contact tracing when new cases appear. I continue to find facilities where there’s very little effort to implement contact tracing and where testing is not being conducted on a wide-scale basis. If you’re lacking in both those departments, if there is [a case] uptick in the community around the facility, it will make its way into the detention center.

One of the areas that remains completely unaddressed is the underlying failures of correctional health systems. I’ve been thinking a lot about how much of this is a manifestation of racism and systemic racial inequity. If the CDC comes up with guidelines for how people should be treated and if the local or the state health department has an idea or recommendation about what should happen with COVID care, but then neither the CDC nor the local or state department of health do anything to ensure those things actually happen for incarcerated people, that’s a real unit of racism in our health system.

All these detention settings have ‘sick call’ and that’s the primary way for people to report COVID symptoms and get care. But when you talk to incarcerated people, they routinely tell you that their sick call requests go unanswered, or they have to submit multiple sick call requests just to get a response, or they may get a response that says, ‘Here’s some Tylenol,’ but it isn’t really an assessment or care for COVID. In some cases, those sick call requests get thrown out. And so we have this group of people who, when they seek care for COVID-19, they must use this process to access care.

It’s a system that’s broken. There are lots of other representations of racism in health care in our country, but this is really striking. The voices of the people who are getting sick are being actively disregarded and dismissed. It’s ongoing and it’s systemic.

Early on we saw horrific outbreaks in prisons and jails, like Terminal Island, Lompoc, and Cook County, that got a lot of media attention. That attention has started to fade, but large outbreaks continue. It’s almost like we’ve become numb to those stories. What is it going to take to create real change?

I think there’s a high level of public acceptance for mortality and morbidity among people of color, but especially people who are incarcerated. It just doesn’t move the needle on policy. My hope is that, because we have this fleeting engagement with the CDC and with local and state health departments, [advocates] can force them to recognize how harmful incarceration is. And certainly COVID is a great example of this.

One near-term thing is to figure out whether CDC guidelines are being followed, because generally what happens is the CDC updates their guidelines and local jail or detention administrators say, ‘We’re following it,’ and that’s it. There’s no independent assessment of whether or not that’s happening. We wouldn’t accept that from a hospital. We wouldn’t accept that from a dialysis center. But somehow we think it’s OK to let a sheriff or a department of corrections tell us that they’re doing an adequate job—and my experience is that they’re not. My hope is that we can brow-beat the CDC and state and local health departments into some function that involves, in the short term, assessing the adequacy of the COVID response in these facilities. And, then, in the long-term really start to expand to all the other health problems that people experience during incarceration so that a health department that cares about diabetes outcomes in poor and underserved communities is also thinking about those same outcomes for people who are incarcerated.

Often local officials get angry when COVID-19 infection numbers from a jail or prison are included in a county’s total infection count and they’ll insist that those numbers be removed. Should public-health systems be including these numbers—not just COVID cases, but rates of diabetes, rates of heart disease, so jails are part of a community’s health report card?

I firmly believe that because the role of the health department is to promote health, then it should include people in places that are hard to reach or include outcomes that are harder to improve or control. If somebody is murdered behind bars, the local police show up. But for some reason, we’ve decided it’s OK for local health departments to just not pay attention to the health outcomes for people who are incarcerated.

We really have crafted this in such a way that it leaves [public-health systems] off the hook and leaves everybody who is incarcerated unprotected. If you’re a county health commissioner, or if you’re a state health commissioner, your goal should be to improve the health and understand the health risks for everybody in your community. And that means going into places where you’re probably not welcome, because that’s probably where people are being denied care.

What about efforts to change the physical layout of jails and prisons?

There are some more progressive communities that are trying to have smaller jails where people are spread out and where there’s more space dedicated to meaningful programs and activities. All of that involves fewer people in a larger space. My concern is that where we’re at now, with thousands of deaths [among incarcerated people], most places have made remarkably few changes to facility operations.

I’ve been to prisons, particularly in the South, where you’re still at between 80 and 120 percent of capacity and really not much has been done in a meaningful way to prevent the spread of infection. Some of these states are trying to lower the age at which you can become a correctional officer, or they’re trying to raise the salary of correctional officers to compete with, like, the dollar store. So I don’t really hold out hope for better facility development that improves infection control. My primary recommendation has always been for places to consider high-risk people for release to protect them from dying.

At San Quentin prison, they’ve been talking about moving people from the open-air cells and dorms and putting them into cells with solid doors. Prisoners are saying they don’t want to be moved, even if it could prevent them from being infected. What are your thoughts on this?

I certainly see that. People routinely tell me that they don’t want to report COVID symptoms because they’re going to be put into solitary confinement or be punished or have their property taken away. Those are real concerns. This, again, goes back to the idea that these are systems built generally to be punitive and where there’s a wide tolerance for physical and sexual abuse and medical neglect. So the idea that you can sprinkle in some evidence-based infection control principles is really an illusion. It’s a delusion, actually, because to really be effective at implementing infection control behind bars, it takes trying to engage with the people there. And that’s an uphill battle if, prior to that point, you haven’t bothered to engage with them. In the New York City jail system, which was a very brutal and difficult setting, a lot of our success came from ideas patients gave us. One of the things I usually recommend in my COVID inspections is for health staff to go into housing areas and give an update on what’s going on, but also hear from incarcerated people on what’s working and what’s not working. We still have such a one-way street that’s mostly built on authority and discipline. It makes many infection-control ideas very difficult to implement.

Have any facilities embraced your recommendations?

A lot of these inspections have come with a court order. There are some cases where inspections have led to settlement agreements. My concern is that even when those changes happen, they really aren’t going to be long-lasting. So that’s why I think it’s inexcusable that local and state departments of health and the CDC don’t have a role in figuring out, on an ongoing basis, the adequacy of health care and health responses to COVID, but also other health outcomes behind bars.

In March, Jennifer Gonnerman interviewed you for The New Yorker. Her last question was, ‘If the pandemic is brought under control in most communities, but it is still spreading rapidly inside jails and prisons, what does that mean for everyone else?’ And you said, ‘To the extent that we don’t do a good job in jails and prisons, we will certainly prolong the life of this outbreak.’ Do you still feel that’s the case?

Yeah, definitely. Because we knew that when these outbreaks occur, they can quickly overwhelm local emergency rooms and hospitals. We’ve seen it now multiple times where, when a facility becomes overrun, it really pushes to the brink a local hospital or even a group of hospitals. And there are a lot of places just sitting out there that are targets for COVID.


LaCrosse Independent reporter Ben Prostine takes a look at the recent COVID-19 outbreaks in Wisconsin prisons, which he describes as “not an accident, but a crisis by design.” There are roughly 21,000 people currently in the Wisconsin prison system, nearly 3,300 more than it was designed to hold. Facilities that have seen some of the largest outbreaks, like the prisons in Green Bay and Racine, are more than 33 percent over capacity, Prostine writes.  

San Quentin may see “a second, or even a third surge” in COVID-19 cases if its population isn’t reduced significantly and quickly, KTVU’s Lisa Fernandez reports. On Tuesday, lawyers filed a petition on behalf of 300 people incarcerated in the Northern California prison, which has struggled to control the spread of the virus after a massive outbreak in June that sickened 2,239 incarcerated people and killed 29. More than 300 employees were also infected, and one died. Last month, a state appeals court found that corrections officials acted with “deliberate indifference” by ignoring the advice of medical experts in the early days of the outbreak. The court concluded that San Quentin remains “unsafe” until it reduces its population by half. 

Two men incarcerated at the Jacksonville Correctional Center in Illinois died this week. One was only 35 years old, making him one of the youngest incarcerated people to die from the virus. Officials have not released his name. 

A judge has ordered the federal Bureau of Prisons to explain what steps it’s taking to stop the spread of COVID-19 at Fort Dix, a federal prison in New Jersey. The order follows a petition filed by Robert Edward Whiteside, who is incarcerated there. In the filing, Whiteside claimed people who had tested positive for COVID-19 were moved into his housing unit. As of Thursday, 228 Fort Dix prisoners and 10 staff members had contracted the virus, making it the largest current outbreak at a federal prison.


Each dot on the map represents a correctional facility that’s currently reporting at least two active infections (hover your cursor over a dot to see the facility’s name).

Coronavirus In Jails And Prisons

Researchers with the Covid Prison Project talk about how COVID-19 has opened up possibilities for data collection, a new report shows persistent disparities in L.A. County jails, and Colorado’s El Paso County jail sets a grim state record.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

Researchers with the Covid Prison Project talk about how COVID-19 has opened up possibilities for data collection, a new report shows persistent disparities in L.A. County jails, and Colorado’s El Paso County jail sets a grim state record.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional health care experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the past several months, The Appeal has been examining the coronavirus crisis unfolding in U.S. prisons and jails. Read recent posts.


From the start of the coronavirus pandemic, experts in correctional health care have urged prison and jail systems to collect data on infection rates, testing, hospitalizations, and deaths and to make that information readily available to the public. Some, like California’s Department of Corrections and Rehabilitation, have met the challenge, reporting the number of cases in each of its prisons, almost in real time. Other systems have provided minimal or confusing data. Some have provided nothing. UCLA’s Covid-19 Behind Bars Data Project, the Marshall Project’s coronavirus tracker, and the Covid Prison Project, which provided the data for the National Academies of Sciences, Engineering, and Medicine’s recent report, have sought to fill in the gaps. 

The Covid Prison Project was started by Lauren Brinkley-Rubinstein, an assistant professor of social medicine at the University of North Carolina atChapel Hill and Kathryn Nowotny, a sociologist at the University of Miami. Brinkley Rubenstein told The Appeal that they decided to launch the project after realizing that prisons and jails would be hit hard by the pandemic. “And because these settings have historically been under-resourced and not prioritized for public health interventions, we knew that they would not get the attention that was needed,” she said.

The Appeal spoke with Brinkley-Rubenstein and Nowotny about the data they’ve been able to get, what questions it’s prompted, and what the future holds for their project. The interview has been edited for length and clarity.

The Appeal: Many experts have been pushing for more data from corrections officials, but that doesn’t seem to be moving the needle. What’s been your experience?

Lauren Brinkley-Rubenstein: There are still lots of systems that are not providing enough data, and the data is never disaggregated the way you want it—by race, age, and all that stuff we know is really important. But the fact that this kind of data even exists in real time is very unique. To me, that’s the bright spot. It’s not good; it needs to be better, but there’s been this door that’s opened. They’ve proven that they can do it. They’ve proven that they can report it quickly, and I think there’s real value in that. Now you can say, ‘OK, why is there so much else we don’t know, that we’ve never known about these correctional facilities?’ To me, that’s the one thing that I think about when I think about all the things we haven’t been able to do, all the change that we haven’t been able to make. We’ve proven that data’s important, people want to see it, and they can give it to us. 

An irony has been occurring, which is that the prison systems that provide more data about cases tend to get more attention by the media, and it’s not always positive attention.

Brinkley-Rubenstein: That’s the drawback. When you provide really good data, you run the risk of getting a lot of attention that other places aren’t getting because they haven’t done any testing, so their case rates are low but you know it’s artificial. I think there’s this interesting tension here between pressing for transparency and also using data in a way that it’s sole purpose is not to vilify.

Kathryn Nowotny: We can think of it in terms of using data to allocate resources or increase compassionate release. If we have more information about the population and about what health problems they’re facing, for example, then we can use that in evidence-based ways. 

What do we not know that you think is most important?

Brinkley-Rubenstein: We’ve got to have better race data, just because the system is a structural determinant of health that exacerbates racial disparities. It’s a racialized system. The fact that we don’t understand if there are disparities in access to testing, clinical outcomes, who’s getting put in medical isolation that maybe mirrors solitary confinement. We have no idea if there are racial disparities in any of that. I think that’s what we are often most frustrated with.

Has anyone who’s posted that data publicly been willing to give it to you?

Brinkley-Rubenstein: Four states give us some data on race, but in general it’s pretty bad. We have some understanding of cases and the final clinical outcome of death. We have no understanding of intermediate clinical outcomes. Most places are not giving us anything relevant to hospitalizations. A couple of states are giving us statewide totals for the number of hospitalizations, but not by facility. There’s a real lack of information on once people get COVID, what happens? We know if they die, but we don’t know anything else. 

Nowotny: Hospital data, I think, is an underused source because they’re going to have in their electronic health records how someone was brought in and where they were brought from.

Anecdotally you hear about people who return to prison from the hospital and are facing long-term health impacts. Is this data being tracked?

Brinkley-Rubenstein: If it is, it’s unknown to us. We know nothing about that. A lot of states have this category of ‘Recovered,’ but they won’t tell us what that means.

Nowotny: Even something as fundamental as testing is poorly defined by [departments of corrections]. The [COVID-19 in Corrections] Data Transparency Act that was put forward by Elizabeth Warren, Cory Booker, and some other folks would extend to all local jails, state prisons, and federal systems. It hasn’t gotten a lot of traction, but from my perspective, getting that passed would be a huge game changer. 

What are your plans for the project’s future?

Brinkley-Rubenstein: I think we’re going to continue as long as folks continue to give us data. My big idea is to transform this into a national prison data project. Once COVID is under control, I think we’ll try to make the push that there should be more data, in general, and we’ll be the people to categorize it, collect it, analyze it.


In March and April, the number of people incarcerated in L.A. County jails dropped by roughly one-third, the result of early releases and a statewide order to reduce bail for low-level crimes to zero dollars. But a recent count by a group tasked with recommending ways to close the county’s troubled Men’s Central Jail found that the percentages of Black people and mentally ill people in L.A. jails remain disproportionately high. 

“As the pandemic continues, many pre-COVID practices around law enforcement and Court operations have returned and the jail population has correspondingly increased,” says the report, released on Monday by the Men’s Central Jail Closure Workgroup.    

Among the report’s findings:

* Black people made up 29 percent of the L.A. County jail population pre-COVID. They now comprise 31 percent of the population. 

* White people accounted for 15 percent of the pre-COVID jail population; they now account for 12 percent. 

* In the county’s women’s jail, Black women comprised 31 percent of the population pre-COVID. They now make up 34 percent of the population. 

* White women make up 16 percent of the current jail population, a decline from 21 percent, pre-COVID.

The report lays out next steps, which include data analysis to see how many people currently in jail would be better off in a diversion program and whether sentences for certain crimes could be shortened without impacting public safety. 


➤ Early in the pandemic, family members of Hawaiians incarcerated at the Saguaro Correctional Center in Arizona warned that a COVID-19 outbreak was inevitable. For decades, Hawaii has been sending hundreds of people to Saguaro to alleviate overcrowding in its own prisons, but Saguaro, a private prison run by CoreCivic, is at capacity. Mass testing at the facility, ordered last week by Hawaii’s Department of Public Safety, found COVID-19 infections in 382 of the 1,123 out-of-state prisoners, with 73 results pending. 

➤ On Wednesday, New Jersey released more than 2,000 people from its prisons, the result of a new law that allows people who are within a year of release to apply for sentence credits of up to eight months, as long as they haven’t been convicted for murder or sexual assault. At least 1,000 more people will be released over the next several months, reducing New Jersey’s prison population—which was hard-hit by coronavirus—by more than a third

➤ While Tuesday’s election saw many victories for criminal-legal reform, Oklahoma’s State Question 805 wasn’t among them. The ballot measure would have barred prosecutors from seeking sentence enhancements for people who had committed nonviolent felonies and would have allowed anyone serving time on an enhanced sentence to request a sentence reduction.   An analysis of the measure showed that it would have reduced Oklahoma’s prison population by 8.5 percent over the next decade.

➤ Beginning this week, Massachusetts correctional officers whose job duties put them in direct contact with prisoners will be required to take a COVID-19 test; if they refuse, they’ll be sent home, WBUR reports. Testing had been voluntary, but outbreaks at four Massachusetts prisons spurred an agreement between the state’s Department of Correction and the union representing correctional staff. 

➤ A drop in the number of people in the Santa Clara (Calif.) County jail has prompted officials to  halt construction of a new $390-million, 535-bed jail. Instead, the facility will be turned into a treatment center for mentally ill people who are incarcerated. The new plan follows reports that jail guards regularly abuse mentally ill prisoners and were responsible for the deaths of at least two. 

➤ The El Paso County jail in Colorado Springs had maintained a low rate of COVID-19 infections for more than six months, but now holds the record for the largest outbreak in a Colorado correctional facility, Colorado Springs Gazette reporter Lance Benzel writes. The outbreak started around Oct. 26 when eight people tested positive. Now, nearly 700 of the 1,229 people incarcerated in the jail, and 51 employees, have tested positive for the virus. 

 

Our Guide To The Elections That Could Transform The Country

Photo illustration by Elizabeth Brown.

Our Guide To The Elections That Could Transform The Country


Through rigorous reporting, commentary, and a live video show in partnership with NowThis News, The Appeal has covered Congressional races, statehouse races, city councils and county commission elections, District Attorney and sheriff races, and more in the 2020 election cycle.

Up and down the ballot, we’ve focused our coverage on the candidates who are running on the issues that matter most for everyday people: a strong safety net, a safe community, a sustainable planet, and a democracy where every person’s voice and vote matters.

Here’s our guide to the elections that could transform the country:

Coronavirus In Jails And Prisons

An overview of gubernatorial candidates and their stances on decarceration during the pandemic, a new lawsuit argues that Massachusetts corrections officials are ignoring home-confinement requests, and new infections spike at the Fort Dix federal prison in New Jersey.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

An overview of gubernatorial candidates and their stances on decarceration during the pandemic, a new lawsuit argues that Massachusetts corrections officials are ignoring home-confinement requests, and new infections spike at the Fort Dix federal prison in New Jersey.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional health care experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the past several months, The Appeal has been examining the coronavirus crisis unfolding in U.S. prisons and jails. Read recent posts.


Despite early calls for large-scale releases “prisons are releasing almost no one,” according to the Prison Policy Initiative’s analysis of the criminal-legal system’s response to the coronavirus pandemic, which means that many of the governors up for reelection tomorrow have neglected to reduce their state’s prison populations. Below is a list of states with a governor’s race on the ballot and short summaries of where the candidates stand on the issue of decarceration.  

DELAWARE

John Carney (incumbent, D): Early in the pandemic, Delaware’s chief public defender urged Carney to release people who were near the end of their sentences or were suffering from serious medical issues. Carney declined, claiming that state prisons had enough room “to spread the inmates out.” There have been only 28 cases of coronavirus in Delaware prisons since September, but, prior to that, more than 500 incarcerated people tested positive for the virus and 11 died.

Julianne Murray (R): Murray supports tough-on-crime policies that would put more people in prison.

INDIANA

Eric Holcomb (incumbent, R): Holcomb left it up to county courts to decide who would get released from prison. As Side Effects’ Jake Harper reported in July, “very few have done so—even as the number of COVID-19 cases in the prison system surged.” 

Woody Meyers (D): Meyers’ plan for criminal-legal reform includes a pledge to re-examine “who we detain in our prisons and jails, and for how long.”

MISSOURI

Mike Parson (incumbent, R): Parson’s administration hasn’t granted any coronavirus-related releases, has declined to provide information about people who die from COVID-19 in state prisons, and has claimed the state is doing a good job at managing the virus even when infection numbers spiked.

Nicole Galloway (D): While Galloway has laid out a plan for police reform, she hasn’t said anything about incarceration. 

MONTANA

Mike Cooney (D): Cooney is currently Montana’s lieutenant governor. In April, Gov. Steve Bullock issued a directive asking the Board of Pardons and Parole to consider early release for older and medically vulnerable prisoners. As far as Cooney’s position on early releases, advocates for incarcerated people say he wouldn’t meet with them. Cooney, however, told the Montana Free Press that he supports alternatives to incarceration.

Greg Gianforte (R): Gianforte is an investor in CoreCivic, which runs two Montana prisons where more than 260 people have tested positive for COVID-19.

NEW HAMPSHIRE

Chris Sununu (incumbent, R): In April, Sununu told the Concord Monitor that he wasn’t opposed to judges releasing people to home confinement on a case-by-case basis. According to the New Hampshire Department of Corrections, only one prisoner in the state has tested positive for COVID-19.

Dan Feltes (D): A state senator and Legal Aid attorney, Feltes has said that he wants to explore prison alternatives for people who commit low-level crimes.

NORTH CAROLINA

Roy Cooper (incumbent, D): The state’s Department of Public Safety granted early release to 485 people with high-risk medical conditions and granted conditional release to more than 500 others. Still, families of incarcerated people urged Cooper to do more as infections rates climbed. More than 4,300 people in North Carolina prisons have tested positive for COVID-19 and at least 20 have died 

Dan Forest (R): Forest supports tough-on-crime policies and has questioned the recommendations of public-health officials. Most recently, he has held Trump-style campaign rallies

NORTH DAKOTA

Doug Burgum (incumbent, R): In the first few months of the pandemic, North Dakota cut its prison population by 19 percent, garnering praise from the Prison Policy Initiative. Cases in the state’s prisons remained low until a recent outbreak at the North Dakota State Penitentiary. 

Shelley Lenz (D): Lenz hasn’t taken a position on this issue.

UTAH

Spencer Cox (R ): Cox is currently Utah’s lieutenant governor and has said that he stands behind Gov. Gary Herbert. Early in the pandemic, Herbert’s office asked the state Board of Pardons and Parole to consider granting early release to people with 180 days or fewer left to serve. It’s unclear how many people have been released as a result of this request. Last month, the state’s largest prison suffered a surge in infections. 

Christopher Peterson (D): Peterson has not said anything publicly on this issue.

VERMONT

Phil Scott (incumbent, R): Vermont has a tiny in-state prison population, but it sends hundreds of people to out-of-state prisons. In August, nearly every Vermont prisoner at the Tallahatchie County Correctional Facility in Mississippi tested positive for COVID-19. Scott said he accepted responsibility and should have pushed Tallahatchie prison operator CoreCivic to do more. Last month, Scott opted to renew Vermont’s contract with CoreCivic, but said he would explore options for keeping people in-state, including by building a new prison. 

David Zuckerman (D): While Zuckerman hasn’t said anything specifically about decarceration, he told Vermont Biz that the state spends too much money jailing people on parole violations.

WEST VIRGINIA

Jim Justice (incumbent, R): On March 25, the ACLU of West Virginia called on Justice to release people with less than a year left to serve. In response, the state’s Department of Public Safety released 70 people, though Justice didn’t play a role in that decision. On May 28, after an outbreak at the Huttonsville Correctional Center, Justice ordered the mandatory testing of all prisoners and corrections staff, a step most states have failed to take.

Ben Salango (D): Salango, a county commissioner, has gone on record opposing the release of people from prisons and jails


➤ In California, most people in county jails retain the right to vote, but the pandemic has made it difficult for volunteers to register eligible voters and make sure they have election materials. Programs like the ACLU’s Unlock the Vote have found ways around these barriers, CalMatters reports

➤ Prisoners’ Legal Services of Massachusetts filed an emergency motion on Friday, asking a judge to find that the state’s Department of Correction has failed to comply with a court ruling  requiring it to consider release requests from medically vulnerable prisoners who qualify for home confinement. The lawsuit follows outbreaks at three Massachusetts prisons.

➤ More than 50 people incarcerated in the Western Region Detention Facility in downtown San Diego have tested positive for COVID-19.The federal jail is operated by the GEO Group under a contract with the U.S. Marshals Service, and is located just a few blocks from the Metropolitan Correctional Center, a federal Bureau of Prisons facility where 197 people tested positive for the virus in September and one man died

On Friday, the Federal Bureau of Prisons was reporting 58 active cases of COVID-19 at the Fort Dix Federal Correctional Institution in New Jersey. Over the weekend, the number of positive infections grew to 166 and now include Troy Wragg, a 38-year-old whose severe epilepsy confines him to a wheelchair. His wife, Megan Hallet Wragg, told Burlington Times reporter George Woolston that  Wragg is too weak to move his wheelchair and the fellow prisoners who normally assist him are also infected with coronavirus. 

Women Have The Power To End This Presidency

Trump’s presidency began with women marching in record numbers. Now it’s going to end with women voting in record numbers.

Protesters walk during the Women's March on Washington, with the U.S. Capitol in the background, on January 21, 2017 in Washington, DC.

Women Have The Power To End This Presidency

Trump’s presidency began with women marching in record numbers. Now it’s going to end with women voting in record numbers.


This commentary is part of The Appeal’s collection of opinion and analysis.

On Tuesday, the final votes will be cast in the most important election of our lifetime. But that doesn’t mean the fight to save our democracy will be over.

Republicans have seen the writing on the wall for decades. They know their ideas can’t win on their own, so they’ve found their own ways to win. Through a combination of voter suppression, gerrymandering, and the advantages given them by the Electoral College and the Senate, Republicans have consolidated anti-democratic political power and made it possible for a minority to rule over a majority. 

This week, they will try to continue this. They aren’t even trying to hide it. When polls close and the results begin coming in, Donald Trump’s Republican operatives and lawyers will begin calling fraud and falsely claim victory. This time we won’t let them. This time will be different because millions of women are ready to call bullshit and fight back. We will stand with the local election officials who take their responsibility very seriously and who are overseeing the 51 election counts across the country. We will stand with the hundreds of millions of voters who have waited patiently to have their voices heard. We will have their backs.  

Look at how Trump is doing with women in the polls and it will show you the price Donald Trump has paid for his cruelty, corruption, and chaos over the last four years. As the numbers currently stand, Biden’s average lead among women is 25 points. In 2016, there was a 20 point gender gap in voting preference between men and women. This year that number could be 28. This is a huge deal. This is the largest preference gap between men and women in the history of our country. The entire Republican Party will feel the impact. 

The best way to beat a dangerous small block of rich white men is a multiracial, multigenerational mass movement of women who are fired up, fed up, and ready to fight for our democracy. Women are dug in. Women are going to vote out Trump, and we are going to move our country into a better, feminist future, together. This isn’t the fight that we wanted, but it’s the fight we’ve been preparing for. After four years of resisting fascism, we are ready to defeat it.  

We will do whatever it takes, just as we have since millions of us took to the streets, putting our bodies on the line since Day One of Trump’s presidency. We will march, protest, lobby, vote and boycott. Women will decide this election, fair and square. Women will protect our democracy. 

This is the result our Movement has been working for over the past four years. In 2016, millions of people took to the streets in the largest single-day protest in US history. And after the March, women didn’t just pack it up and go home. We organized, we ran for office in record numbers, we voted, and we won. Millions and millions of people are now actively engaged in our democratic process who were not at this time four years ago. 

Right now, our Movement is stronger than ever.

I know we are living through a terrifying, challenging time. We’re sicker, we’re poorer, and we’re scared. We are watching a corrupt and callous president who has sold us out at every turn to protect his Billionaire’s Boys Club. We have watched as they have plotted to undermine our civil rights, making no secret of their desire to overturn Roe. v. Wade, undermine marriage equality, and repeal the Affordable Care Act during an unprecedented global pandemic. None of those moves are even remotely popular with a majority of people in this country. They don’t care. They’ve made it clear they will do what they want. 

We know the actual act of voting in this country is not easy. A small group of people have made it intentionally hard for people to vote, specifically for communities of color. Despite the long lines, and purging of voter rolls, we are still turning out in record numbers to vote. We are showing up, and waiting as long as it takes to make sure that the will of the American people prevails. 

A different future is possible. I believe in it. I know you believe in it too. The record numbers of early votes cast shows it. The enthusiasm we have seen in every single state shows it.  We are going to guarantee that better future by voting. 

Trump wants us to feel demoralized, hopeless, scared. He knows that the only way he can win is if we don’t make our voices heard. Well, it’s not going to work. We won’t let it work. 

We are going to take our lives back from this administration, and we are going to create a whole different future: a story we are all written into. 

We are not helpless — we’re mobilized, we’re organized, and most of all, we’re motivated. We have the power. Women have the power to end this presidency. Women have the power to usher in a new reality. Women have the power to not only protect, but improve, our democracy. 

Trump’s presidency began with women marching in record numbers. Now it’s going to end with women voting in record numbers. For four years, we’ve been resisting those in power. Now, it’s time to take power back. Four years of marching, training, and organizing — it’s all been leading up to this. 

It’s time to finish what we started.

For more than a decade, Women’s March Executive Director Rachel O’Leary Carmona has helped to inspire, equip, and mobilize people to shape the actions and policies that affect their communities. Rachel is a first generation Mexican American, who grew up on the Northside of Milwaukee, Wisconsin. She started her career right after high school as a domestic worker cleaning houses, spending three years doing that work before beginning her college education. 

Coronavirus In Jails And Prisons

A judge dismissed a lawsuit seeking the release of seriously ill prisoners from a facility that is now dealing with a COVID-19 outbreak; despite nationwide calls to shrink prison populations through sentencing reform, only one Election Day ballot measure seeks to tackle the issue; partying corrections officers are blamed for an outbreak at a North Carolina jail.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

A judge dismissed a lawsuit seeking the release of seriously ill prisoners from a facility that is now dealing with a COVID-19 outbreak; despite nationwide calls to shrink prison populations through sentencing reform, only one Election Day ballot measure seeks to tackle the issue; partying corrections officers are blamed for an outbreak at a North Carolina jail.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional health care experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the past several months, The Appeal has been examining the coronavirus crisis unfolding in U.S. prisons and jails. Read recent posts.


On May 4, when the ACLU of New Jersey petitioned a federal judge to grant the release of medically vulnerable people from the Fort Dix Federal Correctional Institution, there were 40 cases of COVID-19 in the facility. Despite declarations from several people incarcerated there, describing debilitating health issues and unsanitary conditions at the prison, on May 27 U.S. District Judge Renee Marie Bumb granted the government’s motion to dismiss the case. In her opinion, Bumb wrote that it seemed as though prison officials had the virus under control. 

Cases at Fort Dix did eventually decline—40 was the peak—and disappear until early October. Since then, the infection rate has steadily increased. The Federal Bureau of Prisons is reporting 58 active cases at the prison, but family members told Burlington County Times reporter George Woolston that they believe the number is actually higher.

Woolston’s Oct. 29 story mentions Troy Wragg, a 38-year-old with epilepsy who’s serving a two-decade sentence for conspiracy and wire and securities fraud. 

Wragg was a petitioner in the ACLU case. When he submitted a declaration to the court in late April, he’d already applied for compassionate release three times. All of his requests were denied. Three of Wragg’s cellmates recently tested positive for the virus, his wife told Woolston, including the man who normally pushes Wragg’s wheelchair.

In his declaration, submitted April 28, Wragg described debilitating seizures that have left him with broken bones and confined to a wheelchair. The seizures wouldn’t be so bad, he wrote, if the prison provided him with the prescribed dosage of his medication; instead he’s forced to ration what medicine he does receive.

“When I have seizures at night, the sound of my bed shaking wakes one of my bunkmates. He

jumps down and holds my head to prevent a concussion, and monitors me throughout the episode to make sure I don’t die,” Wragg wrote. 

Wragg and eight other men share a 430-square-foot room that’s supposed to hold 12. If he were released, Wragg wrote, he’d have a “safe and stable home environment” with his wife and access to care from his cardiologist, neurologists, and psychiatrist.

We have virtually no cleaning supplies,” he wrote of the prison in his declaration. “We are not provided any towels to wipe surfaces down and have to use the four small rolls of toilet paper, which shred easily, given out once a month. Some people use toilet paper they buy off commissary, but many commissary items are often out of stock.”

His wife, Megan Hallet Wragg, told Woolston that sick prisoners were being quarantined on a floor that isn’t wheelchair accessible. She fears that if her husband contracted the virus, he’d be placed into isolation. 

“I’m afraid it would be fatal for him,” she said.


Despite persistent calls by experts to reduce prison and jail populations to mitigate COVID-19 outbreaks, there is only one measure on the November ballot addressing sentencing reform: Oklahoma’s State Question 805. (In California, Proposition 20, if passed, will reverse sentencing reforms.) 

Under Oklahoma’s current law, prosecutors and judges can use prior convictions in sentencing decisions, even for nonviolent crimes. State Question 805 would prohibit prosecutors from seeking sentence enhancements for people who’ve committed only nonviolent felonies. It would also allow people serving time on an enhanced sentence to petition the court for a sentence reduction.  

“There are literally thousands of people in prison for 17 years for shoplifting a laptop from a Best Buy. There’s a guy who got 22 years for taking a lawnmower out of someone’s shed,” Taylor Pendergrass, a senior campaign strategist for the ACLU, told The Appeal. 

An analysis of the ballot measure shows that it could reduce Oklahoma’s prison population by 8.5 percent over the next decade, “not an insignificant amount for a single policy and very much one part of an overall solution,” Pendergrass said.

According to the Oklahoma Department of Corrections, there are currently 16,965 people in state-run prisons. Gov. Kevin Stitt granted clemency to 452 people in early April, but more than half of the state’s 22 correctional facilities are at or near capacity and nine have experienced COVID-19 outbreaks of 200 or more cases.


➤ Public-health officials in Cumberland County, North Carolina, are blaming a coronavirus outbreak at the county jail on a recent barbecue and Halloween party where photos show corrections officers not wearing masks. Several officers in the photos later tested positive and at least one was infected when he escorted a prisoner, who later tested positive.

➤ The American Prospect’s Marcia Brown takes a look at the use of solitary confinement to separate prisoners who’ve been infected with coronavirus. “Prior to the pandemic, the use of solitary confinement was trending downward,” Brown writes. “An estimated 60,000 people were in segregation in state or federal prisons before the pandemic, but that number has ballooned to nearly 300,000. With the third wave beginning and the possibility that people could be re-infected, the perils of solitary confinement grow.”

Incarcerated journalists Kevin Sawyer and Juan Haines (a contributor to The Appeal), write in  The Guardian about a recent mock Presidential election at California’s San Quentin prison, where Haines is a senior editor for the San Quentin News and Sawyer is the associate editor. Their votes might not officially count, but the massive COVID-19 outbreak in June that put the prison on lockdown for months gave the exercise particular significance. Sadly, 1,600 mock ballots mailed to the prison by the organization Solitary Watch were never distributed, so organizers had to improvise. Read the story to find out who won.

In two New York state prisons, the number of COVID-19 cases have spiked in recent weeks. At the Elmira Correctional Facility, at least 242 people have tested positive for the virus, and at the Greene Correctional Facility in Coxsackie, 137 people have tested positive. Three men incarcerated at Greene shared their stories with the Marshall Project. Jermaine Archer, who contracted COVID-19 in mid-October, was quarantined in a solitary-confinement cell. “They strip-searched me, did a cavity search, and they took my personal property,” Archer said. “I had nothing to read, and I didn’t get the mandatory one hour for recreation outside in the fresh air. I was in a large, empty cell filled with stale air and a hospital-style light on me all day. Anybody could mentally break from this because you’re being punished because of your medical condition.”


As part of our ongoing effort to track the coronavirus in jails, prisons, and juvenile-detention centers, each week, we map out corrections facilities that are currently reporting at least two active infections (hover your cursor over a dot to see the facility’s name). We also remove dots for places that are now reporting no active cases of the virus. This week’s map includes 44 new outbreaks, roughly one-third of them jails, and most clustered in areas that are also seeing a rise in infections among the un-incarcerated population. 

A Media Guide For Free And Fair Election Reporting

The media, more than ever, has an important role in preserving our democracy during this election season. The more that members of the media expose false, misleading, or manipulative claims for what they are, the less likely it is for Americans to fall for President Donald Trump’s insidious tactics on and after Election Day.

US presidential candidate Donald Trump is mobbed by the media as he exits New York Supreme Court.
DON EMMERT/AFP via Getty Images

A Media Guide For Free And Fair Election Reporting

The media, more than ever, has an important role in preserving our democracy during this election season. The more that members of the media expose false, misleading, or manipulative claims for what they are, the less likely it is for Americans to fall for President Donald Trump’s insidious tactics on and after Election Day.


This commentary is part of The Appeal’s collection of opinion and analysis.

Allowing President Donald Trump to preemptively claim victory with a national media platform will undermine the democratic process and increase the chance of subversion of the vote. 

Before all the votes have been counted in this year’s 2020 presidential election, it is likely that Trump will claim to have won on November 3. Barton Gellman, staff writer for The Atlantic, recently laid out an entirely plausible scenario in which Trump challenges the validity of the unprecedented number of mail-in ballots, and persuades state legislatures to overrule them, imposing an undemocratic result. Such a situation is possible due — in part — to the unending onslaught of uncertainty, confusion and chaos created by Trump and his allies in the media. 

The Transition Integrity Project, when conducting simulations as to whether President Trump can steal the election, found that there was one single narrative that would ensure he stays in office for another four years: making the American people believe he won, regardless of whether or not he actually did. This places the media as one of the key safeguards against this narrative taking hold.

The Trump strategy to steal the election by either interfering with the tally directly or getting states to send a fraudulent slate of electors to Congress has emerged over the past several months with three main components: suppress the vote, create and amplify a false victory narrative, and file a bevy of lawsuits through courts he has stacked to slow down the counting process and to throw out tens, if not hundreds, of thousands of legitimate ballots. Trump will likely try to manipulate electoral college laws and rules in his favor. 

The media, more than ever, has an important role in preserving our democracy during this election season. The more that members of the media expose false, misleading, or manipulative claims for what they are, the less likely it is for Americans to fall for Trump’s insidious tactics on and after Election Day. Here are some ways the media can help in this effort:

It is unlikely we will know the results of the presidential election on election night, and the media should refrain from giving credence to claims of victory when it is still statistically possible, or even likely, that another candidate won.

President Trump knows that if he breeds chaos, stokes violence, asks for enough recounts, and initiates litigation to stop counting, then he can claim he is the legitimate winner. He will strategically be spending time on traditionally blue counties and cities (which he calls “anarchist cities”), claiming fraud with mail-in ballots which sway Democratic, and asking for recounts in Democratic counties. For example, in Pennsylvania a recount is triggered if any three voters in any county request one. 

If Trump is successful, on the final deadline for tallying the vote December 14th, Democratic counties, particularly those in swing states, will not have been able to count or certify all of their votes, giving an advantage to traditionally red districts in the state. If by December 14th some states have not counted all of their ballots, then the legislature of that state gets to decide which slate of electors to send. If they can’t agree, then per federal statute the governor gets to choose to send to Congress. At the same time, electors in any given state can also vote to send themselves–so essentially one state could have a slate of Republican and Democratic electors. 

More than 28 million ballots have already been requested and another 43 million are set to be automatically mailed to voters. In many key states requests from registered Democrats far outpace those from Republicans. This means that it is very possible that the numbers of votes counted on election night could put Trump in the lead with a “red mirage.” Trump is likely to create a false narrative of victory before the mail-in ballots are counted on November 3rd or shortly after. In fact, he’s already convinced his supporters that victory is inevitable. This kind of November 3rd breaking-news victory narrative before all votes have been counted is likely to be seized upon by his allies and supporters — and even Fox News — and amplified until it sounds like the truth. If the media claims Trump as the victor in any state when a significant number of mail-in ballots have not been counted, they will be complicit in helping an illegitimate election. 

The media has an obligation to communicate to the public that we likely will not know the results of the election on election night. The media has an obligation to announce the winner of the presidential election only if 1) all in-person and mail-in ballots have been counted and neither party has attempted to stop or derail the count; or 2) the remaining mail-in ballots yet to be counted could not make a difference in the outcome.


The media should avoid amplifying fraudulent claims of voter suppression and errors with mail-in ballots to avoid giving credibility to false fears that the election is somehow “rigged.” This likely means refusing to report on these baseless claims.

President Trump’s false claims of voter fraud are being used to disenfranchise Americans with the hope that the public will not trust the results if they show Democratic presidential nominee Joe Biden leading on election day, or if counting ballots results in a shift in the results which favors Biden. In short, Trump will claim that any result other than a Trump win is fraudulent, and giving him a platform to make these claims is harmful to the democratic process.

The way it works is predictable: Trump or his allies find an unsubstantiated story about voter fraud and then it is amplified endlessly on social media as well as through news sites. The effort takes its most prominent form in the President’s own public statements, which relentlessly promote the false notion that voter fraud is rampant. Much of it this year has taken the form of a false narrative about mail-in ballots being unreliable. In September, Trump tweeted: “Sending out 80 MILLION BALLOTS to people who aren’t even asking for a Ballot is unfair and a total fraud in the making. Look at what’s going on right now!” 

In truth, voter fraud is almost nonexistent, with research finding fraud in only .0025% of cases. Notably, the cases of fraud that reach the newspapers do so because they are cases where a fraud was attempted and averted, demonstrating that our electoral safeguards are working well.

Republican leaders have also successfully suppressed the vote by creating strict voter ID laws, purging voters off the rolls, passing “exact match” voting laws, encouraging voter intimidation, closing polling places, engaging in digital voter suppression targeted at Black voters, and creating long wait times at predominately Black precincts. Much as they have in other contexts, conservative lawmakers have weaponized bureaucracy to overcome dissent.

Trump’s narrative of “anything other than me winning in a landslide means the election was rigged” is itself a form of voter suppression, by spreading misinformation and brewing distrust and uncertainty in the voting process en masse. Never in our history have we seen a sitting president and contender for the White House so vehemently communicate to the American people that our democratic process is rigged unless they win and imply that their votes don’t matter. After Election Day in 2016, a race which Trump ultimately won, the president still spread disinformation about voting to counter the news that he lost the popular vote. He claimed that three million undocumented people illegally voted, a statement completely unsubstantiated and, disturbingly, blamed on a vulnerable group. We can only imagine what he will do or say in this race that he may lose or will remain contested for days or weeks.

The poll workers and people working for local boards of elections need the media to support their efforts to ensure every vote is counted. Counting will not be fast or simple, but without the media’s support in exposing those actively working to suppress the count and silence the people, their work could be in vain. They need the media’s help to convey to voters that not only is our voting system is secure, but that the folks working at boards of elections and the polls are doing honest work. We need institutions to call this intentional spreading of lies what it is: voter suppression. 


Republicans — and Trump — have stacked the courts in their favor. The media is obligated to give an accurate report on litigation, both on the merits of the claims and the history of the bench. 

In December, President Trump had appointed 218 Article III federal judges out of the 794 serving on the bench — 28% of the total. This is an extraordinary influence over our country’s federal judiciary.  

On October 19, 2020, in a decision without an opinion, four of the current eight Supreme Court Justices agreed to hear a lawsuit brought by the Pennsylvania GOP to overturn the PA Supreme Court’s decision based on their own state law and constitution. As experts have said, the decision was the biggest signal of our highest court ruling along clear partisan lines. This comes as Pennsylvania is already gearing up to be a highly contested state for counting ballots, expecting it to take days if not weeks to count every vote. 

This is an uncomfortable truth: if either side attempts to delay or derail the count through lawsuits, we might not be able to rely on the law to ensure a free and fair election. Ensuring a fair count isn’t partisan, its pro-democracy.

President Trump’s lawsuits should be characterized as what they really are: an attempt to gaslight the voters of the state and turn over the outcome of the Presidential election by a federal bench filled with Trump appointees.


A majority of voters believe that Trump is trying to steal the election, and it is important that the media takes efforts to ensure that they are not complicit.

Trump stealing the election is not just speculative. It is what a majority of voters believe is happening. New polling from Data for Progress and The Justice Collaborative Institute finds that a majority of likely voters, including around one-third of Republicans, believe Trump will try to interfere with the results of the election, either with attempts to stop the counting of ballots if he has the lead on election night, or by outright voter fraud. Additionally, 45% of voters believe Trump and his campaign would succeed at disrupting the counting of ballots if they were to try. Additional findings illustrate this further:

  • 53% of voters, including 33% of Republicans, believe that President Donald Trump and his campaign will try to commit voter fraud and steal the election.
  • 57% of voters, including 35% of Republicans, believe that President Donald Trump and his campaign will try to stop the counting of ballots if they are ahead based on the ballots counted on election night.
  • 45% of voters believe that if President Trump and his campaign try to disrupt the counting of ballots, they will be successful.

As the above poll shows, most voters in America believe that Trump will not simply rant about a rigged election, but will actually try to rig the election himself. More concerning still: nearly half of Americans believe he will be successful if he tries. Recent Pew Research and PRRI polling suggests the same. 


The media should use its influence and editorial discretion to call out efforts to intimidate voters or stymie efforts to vote, discredit the narrative of chaos spread by President Trump and his allies, and decry any effort to subvert the popular vote by resorting to lawsuits in front of benches stacked by the current administration’s appointees. 

The media should also refrain from announcing a victory for President Trump on election night unless all the votes have been counted. If he claims victory without cause, or based on his unsubstantiated belief that thousands of ballots should be disregarded due to “fraud,” the media should publicly characterize his comments as unfounded and unsubstantiated, and that he is in fact attempting to steal the election.

Coronavirus In Jails And Prisons

The ACLU and other groups sue to free people from the deadliest federal prison; a new study finds that coronavirus-driven jail releases hasn’t caused an increase in crime; and half of people in South Dakota prisons have tested positive for COVID-19.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

The ACLU and other groups sue to free people from the deadliest federal prison; a new study finds that coronavirus-driven jail releases hasn’t caused an increase in crime; and half of people in South Dakota prisons have tested positive for COVID-19.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional health care experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the past several months, The Appeal has been examining the coronavirus crisis unfolding in U.S. prisons and jails. Read recent posts.


Yesterday, several civil-rights groups, including the ACLU, filed a class-action lawsuit against the Federal Bureau of Prisons (BOP) over its handling of COVID-19 outbreaks at the prison in Butner, North Carolina. The lawsuit asks for the release of people whose medical conditions put them at risk of complications or death from the virus.

Butner, a sprawling complex located 30 miles north of Raleigh, holds nearly 4,000 men and consists of four facilities: a medical center, a unit for prisoners convicted of low-level crimes, and two medium-security units. 

According to the complaint, nearly a quarter of the people incarcerated at Butner have tested positive for COVID-19 since the start of the pandemic. Twenty-six have died, more than at any other federal prison.  

The complaint notes that while the number of reported infections has declined from a high of nearly 700 in June, new infections continue at a steady pace, “demonstrating that the virus remains circulating at Butner.” 

“Without action by this Court, more people at Butner will become infected and more people will die,” the complaint says.

It’s the second lawsuit the groups have filed against the BOP alleging that officials have failed to protect Butner’s most vulnerable detainees. In early June, despite a growing outbreak that ultimately claimed 10 lives, a federal judge sided with the BOP, agreeing it had “made reasonable efforts” to control the virus. One of the men who died, John Dailey, was a named plaintiff in the case. Dailey, 62, was a podiatrist who had been convicted of Medicare fraud and sentenced to 27 months. According to a press release announcing his July 3 death, he’d been at Butner since Nov. 5, 2019.

According to a report by the Washington Post, Dailey suffered from lymphoma and had requested compassionate release. His request was denied and a subsequent appeal to the BOP was rejected “because it contained more than one page of addendums, which is beyond the bureau’s limit.”

The Oct. 27 complaint argues that the BOP lacks a coherent testing strategy—meaning the true number of infections at the prison is unknown—and has failed to reconfigure its housing units to allow for social distancing, especially among elderly and medically vulnerable prisoners. And, the filing says, despite direction from U.S. Attorney General William Barr “to expeditiously consider” requests from medically vulnerable people for home confinement or other release,” federal attorneys continue to challenge those requests.


At the start of the COVID-19 pandemic, to allow for social distancing, many county jails released people who had been charged with low-level crimes and limited new bookings to felonies. A recent analysis by the Vera Institute found that, nationwide, there were roughly 200,000 fewer people in jails in June than in mid-March. 

The JFA Institute, a consulting firm focused on criminal-justice issues, analyzed the data to assess whether the jail releases have had any impact on public safety. The study analyzes crimes, arrests, and jail bookings in six counties: Charleston (South Carolina), Orleans Parish, Clark County (Las Vegas), Cook County (Chicago), Allegheny County (Pittsburgh), and San Francisco.

 Researchers found that, beginning in March 2020, there was an overall significant decline in serious crimes reported to law enforcement compared to the previous year. Only Cook County saw a significant increase—followed by a decrease—in crimes, and three counties (Orleans Parish, Clark, and Allegheny) reported small increases.

“The clear conclusion is that overall crime has declined since COVID-19 restrictions were imposed, particularly for the crime of larceny-theft,” researchers conclude, contrary to some media reports that link jail releases to crime spikes. “At the same time, there has been no increase in the aggregate number of violent crimes. With specific regard to murder, the trends are mixed, with some sites seeing increases and others seeing no change.”


➤ At least 143 of the 327 people who work at Michigan’s Marquette Branch Prison have tested positive for COVID-19, forcing the state’s Department of Corrections to bring in employees from other facilities and transfer more than 200 Marquette prisoners. Of roughly 600 men who remain at the prison, all but 45 had caught the virus, the Detroit Free Press reports

➤ In the absence of a national testing strategy, many correctional and immigrant-detention facilities continue to limit coronavirus testing to symptomatic individuals. “In settings where even soap can be hard to come by, the lack of testing has proven to be a disaster,” write Harvard researchers Parsa Erfani, Caroline Lee, and Nishant Uppal in a piece for STAT

Nearly 1,600 people, almost half of South Dakota’s prison population, have tested positive for COVID-19, reports Danielle Ferguson with the Sioux Falls Argus Leader. Cases at the South Dakota State Penitentiary, in particular, spiked over the weekend, increasing from 166 on Friday to 521 today. And at the Mike Durfee State Prison, 698 of 1,022 prisoners have also tested positive for the virus.   

➤ The third installment of Reuters’ multi-part series investigating deaths in jails asks whether decarceration efforts tied to the coronavirus pandemic will put an end to mass incarceration. Some opponents to decarceration, like Fresno County (Calif.) Sheriff Margaret Mims, have argued that mass releases will lead to more crime. Other officials, however, like Dave Mahoney, the sheriff in Dane County, Wisc., and president of the National Sheriffs’ Association, see things differently. Mahoney told reporters that he’s exploring ways to keep his jail population down: “The public is saying, ‘Look … let’s learn from the forced lessons.’”

Coronavirus In Jails And Prisons

A new watchdog report finds ‘inadequate adherence to basic safety protocols’ during COVID-19 outbreaks in California prisons; advocates call on Gov. Cuomo to release incarcerated people and enhance medical oversight; Abbe Lowell says the First Step Act needs a Second Step Act.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

A new watchdog report finds ‘inadequate adherence to basic safety protocols’ during COVID-19 outbreaks in California prisons; advocates call on Gov. Cuomo to release incarcerated people and enhance medical oversight; Abbe Lowell says the First Step Act needs a Second Step Act.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional health care experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the past several months, The Appeal has been examining the coronavirus crisis unfolding in U.S. prisons and jails. Read recent posts.


In June, amid a precipitous rise in cases of COVID-19 in its prisons, the California Department of Corrections and Rehabilitation (CDCR) scaled back rules on face coverings, allowing staff and incarcerated people to remove department-issued masks if they were at least six feet away from another person. A new report by the Office of the Inspector General, which monitors the state prison system, argues that this action was misguided and potentially dangerous: “[T]he department’s relaxed requirements appeared to unnecessarily increase the risk of COVID-19’s spread among the staff and incarcerated population.”

The report, released today, is the second in a series of reviews by the OIG, examining CDCR’s response to COVID-19. California state Assembly Speaker Anthony Rendon requested the reports in April. The first report looked into the prison system’s COVID-19 screening practices.

The OIG found that although CDCR purchased and distributed enough protective face masks for staff and prisoners, and mandated their use, supervisors rarely enforced those rules. Investigators who visited prisons routinely saw people not wearing masks, or wearing them incorrectly. 

During a visit to North Kern State Prison, which was experiencing an active outbreak and had recently announced the death of an employee, “we still observed indifference to the department’s directives,” the report says. “At the prison, with the staff member’s tragic death as a backdrop to our inspection, we expected departmental staff to be vigilant about taking all appropriate precautions to prevent the spread of COVID-19. Instead, we saw the opposite: a significant number of staff members seemed cavalier about the threat of the virus and displayed that attitude by failing to adhere to the face covering policy.”

The OIG now urges CDCR management to implement clear guidelines and impose disciplinary action when the guidelines aren’t followed.

In a response that’s included with the report, CDCR Secretary Kathleen Allison writes that the department “recognizes its responsibility to clearly communicate the importance of adhering to physical distancing and face covering protocol” and “will continue its effort to consistently enforce those policies and procedures.”


In an op-ed for Law360, veteran criminal-defense attorney Abbe Lowell argues that the First Step Act, a law enacted in 2018 to fix federal sentencing laws, needs a “Second Step Act.” The First Step is not being applied equitably, he argues, citing the case of a federal prisoner—the first to die of COVID-19—who received a 27-year sentence for a nonviolent drug charge because he committed his crime within 1,000 feet of a community college.

“The person died a month after a judge denied his First Step application, citing his criminal history where many others released in this same period also had prior offenses,” Lowell writes.

Lowell argues that despite the new law, too many judges continue to treat sentencing guidelines as mandates when they should instead be exploring alternatives to incarceration. The cost of imprisoning someone—upwards of $33,000 a year, depending on the state—could be spent on rehabilitative programs. 

“Government agencies with penal responsibilities would work with legislatures to reformulate budgets away from bars and guards,” Lowell writes, “and toward employment, training or retraining, and health and psychological programs for an inmate’s future.”


➤ The San Francisco Chronicle’s Jason Fagone and Megan Cassidy explore the dilemma facing California Gov. Gavin Newsom after an appeals court issued an order to cut San Quentin’s prison population by half. The ruling doesn’t require Newsom to release anyone—he could instead choose to transfer 1,400 people, roughly half of the prison’s current population, to less-crowded state facilities. He could also appeal the ruling. “Does he fight the ruling,” Fagone and Cassidy write, “or does he own up to his administration’s mistakes and take the medicine?”

➤ The Montana Department of Corrections continues to report new cases of coronavirus in its largest prison. A week ago, 36 prisoners and 23 employees at the Montana State Prison in Deer Lodge had tested positive for the virus. As of Monday, infections had spiked to 203 prisoners and 75 staff members. The state as a whole has seen the daily number of new infections triple over the last month. 

➤ With COVID-19 infections climbing in New York prisons, advocates for incarcerated people are urging Gov. Andrew Cuomo to approve release requests from elderly and medically fragile people. At the same time, state legislators are asking why Cuomo hasn’t signed a bill, passed by both chambers of the legislature in July, that would give the New York Department of Health the ability to oversee care provided in prison infirmaries. The Correctional Association of New York, one of the organizations pushing for the new law, surveyed state prisoners last year and reported that nearly three-quarters of respondents had been denied medical care.

➤ In Florida, the coronavirus has killed more than 150 incarcerated people. An editorial in Sunday’s South Florida Sun-Sentinel accuses state corrections officials of treating people in their care with “lethal indifference.” “Some states are trying to reduce their prison populations on account of COVID-19, but not Florida,” the editorial argues. “Only the governor can initiate clemency … but [Gov. Ron] DeSantis appears indifferent to the unique threat that the coronavirus has created in prisons.”

Coronavirus In Jails And Prisons

A new report from the National Academies of Sciences, Engineering, and Medicine says decarceration is the only way to get the COVID-19 pandemic under control; the CDC changes its testing guidelines after a Vermont prison guard contracts coronavirus; and our ongoing case map shows more than 60 new outbreaks.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

A new report from the National Academies of Sciences, Engineering, and Medicine says decarceration is the only way to get the COVID-19 pandemic under control; the CDC changes its testing guidelines after a Vermont prison guard contracts coronavirus; and our ongoing case map shows more than 60 new outbreaks.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional health care experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


Nearly eight months after the start of the coronavirus pandemic, the virus is still tearing through prisons and jails. In the last week alone, at least 60 correctional facilities reported new outbreaks. Incarcerated people are five times more likely to contract the virus than the general population and three times more likely to die from it.

Against this backdrop, the National Academies of Sciences, Engineering, and Medicine convened a committee of experts to examine COVID-19’s impact on correctional facilities. The resulting report, Decarcerating Correctional Facilities during COVID-19: Advancing Health, Equity, and Safety, was released this week. It makes a number of recommendations for handling the virus in correctional settings;decarceration, the report concludes, is essential to saving lives and controlling the spread of the virus. Moreover: “Research on recidivism suggests that correctional authorities could decarcerate in a manner that would pose relatively little risk to public safety,” the report argues. 

Bruce Western, a professor of sociology at Columbia University and co-director of the school’s Justice Lab, co-authored the report. He spoke with The Appeal about its findings and recommendations. (The interview has been edited for length and clarity.)

The Appeal: Many of the report’s recommendations are what we would hope prison systems would have already implemented to mitigate infections. Why are so many prison systems so far away from achieving the goals laid out in the report?

Bruce Western: Coronavirus presents a really hard problem, I think, because it makes public health the paramount concern inside prisons and jails. That’s a very different frame from the usual one of security. I think there’s been a vacuum of leadership in responding to coronavirus in general and it’s had all sorts of effects, including on the prison system. In many cases, a lot of correctional administrators simply didn’t have a great idea what to do and weren’t getting great guidance. The idea of decarceration—cutting your population so you can effectively do physical distancing and quarantining and cohorting and so on—there was no real voice for that sort of guidance. 

It seems like there’s little political support for decarceration. Does the committee feel that their recommendations will be implemented? 

We don’t speak directly to managing the political risk. But I think there are ways in the report to think about it. Decarceration, in the sense of the report, really means two things. It means diversion from the front end and release at the back end for people who are already incarcerated. At the front end, there are just enormous reservoirs of discretion to minimize incarceration. But right now, all of the switches are set to incarceration, all of the defaults are set to incarceration. There’s so much incarceration at the front end of the system before sentencing that’s really just sort of gratuitous and habituated, but that sort of luxury of cruelty, you don’t have that under a pandemic. 

On the back end, the way clemency and compassionate release is designed, it’s totally ill-equipped to meet the challenge of a public-health crisis because you have to be able to release people at scale. Medical criteria and medical vulnerability have to be a significant part of the release decision. Normally the original offense, which may be decades old, is revisited in trying to make the release decision. And so what we have is two sort of competing logics over incarceration. One idea is public safety, where the crime that someone committed decades ago is somehow relevant to the public-safety equation. But then, on the other side, we have people in poor health. They have chronic conditions; they’re very vulnerable to COVID-19 complications. There isn’t space in the way in which compassionate release and clemency is currently designed to fully take into account people’s medical vulnerability. And that, I think, requires a policy change and that will be slower. In a pandemic emergency, more weight has to be given to health conditions because you’re creating conditions that threaten public health more generally, and the health of incarcerated people. 

We’ve seen people get really angry when an outbreak in a prison or jail figures into a county’s overall case count. Yet, so often it’s a prison guard or other staff member bringing the virus into a facility. How do you drive home the fact that jails and wider communities are connected?

The pandemic doesn’t draw any distinction between who’s an incarcerated person and who’s a correctional officer. Everyone’s at risk of infection. The whole myth of mass incarceration is that we could somehow build all of these prisons and jails and disappear a whole segment of the population so we wouldn’t have to think about them anymore. But of course prisons and jails are deeply embedded in society and in communities, and the coronavirus has exposed all of the interconnections. This is a hundred percent the biggest challenge now, where the well-being of incarcerated people, who are among the most despised and dishonored faction of our society, is so intimately connected with the well-being of everyone. The public-health challenge is that we have to care desperately about the well-being of incarcerated people. And yet mass incarceration has been built on exactly the opposite—denying the well-being of people who are incarcerated. That’s a challenge, but I see the opportunity it presents as well. Until we get a handle on the problem of coronavirus in prisons or jails, it’s going to be very difficult to get a handle on the virus in society at large. 

One thing that’s been frustrating for a lot of people is getting the data on infections. The report addresses this—the challenge of really getting a grasp on this issue when we don’t truly know the numbers. 

The report has a strong recommendation on data transparency and I think it’s enormously important. It’s partly about accountability. It’s partly about equity. There are a lot of reasons to think that people of color are at a greater risk from the virus inside correctional settings than whites. We don’t know what the data say because that information hasn’t been released by any system, and so we’re completely in the dark on that key issue of equity. And then there’s the whole whole issue of COVID response and pandemic preparedness. Until you can monitor the spread of the virus in granular detail, understand its reproduction rate and how it’s being transmitted through the facility, it’s very difficult to combat it. You need the data in order to do that. 

So what do you do to really push these recommendations and hold people accountable? 

The next step is to really communicate our findings and engage the people who can really make a difference. That means people inside the justice system, police, prosecutors, and judges. A big piece is also trying to inform people who are outside of the system, particularly in the areas of health care and housing. There should be shared responsibility across systems. 

A year from now, do you think we’ll look back and see significant changes to incarceration as a result of COVID-19?  

I think that is one of the really big questions that looms over the whole crisis: Where are we going to be on the other side of this? Are we going to be more deeply entrenched in mass incarceration, trying to separate ourselves from people who we’ve historically marginalized and demonized? Or will the virus reveal to us the reality of our interconnected lives? That’s a key question. We’re at a crossroads. I feel we’re on a knife’s edge: Will we have sort of a breakthrough and retreat from incarceration as the solution to every problem that’s related to poverty and racial injustice in this country? Or will we dig deeper into the hole of mass incarceration? I think we’re balanced right on that knife’s edge right now. 


North Carolina Health News reporter Hannah Critchfield examines why a third of all  COVID-19-related deaths in the state’s prisons have happened in the last month. North Carolina prisons remain crowded, she writes, and prison officials have scaled back testing while continuing to transfer people between facilities. “New outbreaks have been found at [North Carolina] prisons every week since mass testing of all inmates ended on Aug. 8, according to court filings,” she writes.

At least 72 people incarcerated at the Cecil County Detention Center in Elkton, Maryland, and 16 staff members have tested positive for COVID-19 over the past two weeks. The outbreak is the largest in a Maryland prison or jail since the start of the pandemic, the Baltimore Sun reports.

The case of a Vermont prison guard who contracted COVID-19 after 22 short encounters— roughly 17 minutes of total exposure time—with six prisoners has prompted the Centers for Disease Control (CDC) to change its definition of “close contact” with an infected person. Previously, the CDC considered 15 minutes of exposure to be a “close contact.” Now, multiple exposures that add up to 15 minutes trigger the need to be tested. The Vermont case also raises questions about the efficacy of protective gear. While the six prisoners were wearing microfiber cloth masks for some of the interactions, the guard reported wearing a microfiber cloth mask, a gown, and goggles.


As part of our ongoing effort to track the coronavirus in jails, prisons, and juvenile-detention facilities, each week, we map out corrections facilities that are currently reporting at least two active infections—hover your cursor over a dot to see the facility’s name. (We also remove dots for places that are now reporting no active cases of the virus.) If you take a look at the New York Times’ map showing coronavirus hotspots, you’ll notice how closely it aligns with our map, underscoring the interconnectedness of prisons and jails and their surrounding communities.

Coronavirus In Jails And Prisons

A California appeals court orders San Quentin prison to reduce its population by half, the ACLU’s Death by Incarceration project paints a stark picture of COVID-19’s toll, and a new law grants early release to 3,000 New Jersey prisoners.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

A California appeals court orders San Quentin prison to reduce its population by half, the ACLU’s Death by Incarceration project paints a stark picture of COVID-19’s toll, and a new law grants early release to 3,000 New Jersey prisoners.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional health care experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


After being denied parole in 2011 by then-Gov. Jerry Brown, Ivan Von Staich fought back, filing lawsuit after lawsuit against the state of California. Von Staich filed so many lawsuits that he was deemed a “vexatious litigant” by San Francisco’s Superior Court—a person who repeatedly files lawsuits that lack merit. 

But a petition that Von Staich filed in May—alleging that the California Department of Corrections and Rehabilitation (CDCR) was unprepared for a COVID-19 outbreak at San Quentin prison, where Von Staich is incarcerated—may result in the release or transfer of hundreds of prisoners.

When Von Staich filed his petition, there had been no known cases of COVID-19 at San Quentin. He foresaw that the prison’s multiple floors of tiny shared cells, which are connected by narrow walkways and fronted by bars that allow air to pass freely, would likely spur the transmission of the virus. “Protecting oneself from … covid-19 in this open cell is impossible,” he argued.

And, by mid-June, San Quentin was dealing with an outbreak that would eventually infect more than 2,300 incarcerated people and prison staff and cause 29 deaths. 

In a ruling issued yesterday, California’s First District Court of Appeal sided with Von Staich’s claim that corrections officials acted with deliberate indifference by refusing to release people from San Quentin and ignoring the urgent warnings of medical experts. The ruling describes the outbreak at San Quentin as “the worst epidemiological disaster in California correctional history” and argues that the prison will remain “unsafe” until it reduces its population by half. 

The court recommends that CDCR begin its reduction by releasing people serving sentences for violent crimes “who are over age 60 and completed minimum terms of at least 25 years”—like Von Staich. But under current CDCR guidelines, anyone convicted of a violent crime is ineligible for early release, despite research showing that older prisoners who’ve served decades-long sentences are unlikely to reoffend. In an analysis of the ruling, Hadar Aviram, a professor at UC Hastings School of Law, notes that it will unlikely result in the immediate release of any prisoners.

The court’s ruling, however, includes a warning if CDCR fails to act: “Nevertheless we are not without means to expedite the release or transfer from San Quentin of more inmates than are now deemed eligible for release.” 

“As to petitioner Ivan Von Staich,” Aviram writes, “the Court has ordered his immediate release from San Quentin.”


In April, the ACLU launched Death by Incarceration, a database that would tally the number of people who’ve died from COVID-19 in prisons and jails. 

Nearly seven months into the project, the database is sparse, but not for lack of effort on the ACLU’s part. Publicly available information about these deaths is sparse. Some prison systems don’t release anything more than the date of death and the facility where the person was imprisoned. Wisconsin isn’t releasing any information at all.

“We are relying on a system that historically has not given us accurate or timely data,” Dylan Hayre, a justice division campaign strategist with the ACLU, told The Appeal. “The little bits of data we’re able to get paints a really, really stark picture. Imagine if we had full access.”

Crista Johnson, who oversees the Death by Incarceration project, said it’s important to continue to gather this data so that citizens and policy makers can better understand that the national response to the COVID-19 pandemic must include jails and prisons. The virus transmits, freely and rapidly, between correctional facilities and wider communities, so the public-health response must too. 

“We’re beginning to see media more generally shift away from this topic; we’re beginning to see policy makers kind of shift away from it and think that maybe this has been resolved, or that it’ll just kind of fade into the background, and the truth is that it won’t,” Hayre said. “It’s only going to get worse until we deal with this more forcefully.”


➤ On Monday, New Jersey Gov. Phil Murphy signed a law that will allow the early release of more than 3,000 incarcerated people starting Nov. 4. The bill, S2519, awards up to eight months of sentence credits to anyone with a year or less left to serve who hasn’t been convicted for murder or rape. New Jersey’s prison system was hit early by the coronavirus, reporting 49 deaths by the end of June. The state still has the highest rate of COVID-19 deaths among all U.S. prison systems.

The judge who ruled last month that incarcerated people who submitted a tax return in 2018 or 2019 were entitled to receive a federal stimulus check has extended the deadline for filing a claim with the IRS to Nov. 4. The Washington Post’s Michelle Singletary writes that Judge Phyllis Hamilton extended the deadline after the Trump administration filed an unsuccessful appeal. Hamilton also ordered the IRS to mail blank 1040 forms to correctional institutions along with instructions for prisoners on how to fill out the paperwork. 

The number of people who’ve contracted COVID-19 in two Montana prisons increased over the weekend, according to the Montana Department of Corrections (DOC). Now, 50 people incarcerated in Montana State Prison have tested positive, up from 36 on Friday, and the Crossroads Correctional Center is now reporting 255 cases, up from Friday’s 239.

Coronavirus In Jails And Prisons

An outbreak at Montana’s Cascade County jail demonstrates the risk COVID-19 poses to rural communities, the virus has infected nearly 2,000 children in juvenile-detention facilities, and one large Michigan prison is grappling with an outbreak that’s infected roughly one-third of its staff.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

An outbreak at Montana’s Cascade County jail demonstrates the risk COVID-19 poses to rural communities, the virus has infected nearly 2,000 children in juvenile-detention facilities, and one large Michigan prison is grappling with an outbreak that’s infected roughly one-third of its staff.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


The Cascade County Detention Center, built in 1998, has been overcrowded for years. When a COVID-19 outbreak hit the Montana jail in late August, sleeping mats were on “the floor in the day room, in shower stalls, in stairwells, in hallways outside of cells,” New York Times reporters Lucy Tompkins, Maura Turcotte, and Libby Seline write

While cases in the jail are now on the decline, the virus has infected more than 300 people there—including those incarcerated and those who work at the jail. Roughly a quarter of all known cases in Cascade County—where the local hospital’s 27-bed COVID-19 unit is at capacity—are tied to the jail, the Times reports. As a state, Montana has recently emerged as a coronavirus hotspot, with cases jumping from roughly 100 a day in August to now more than 700.

Other Montana correctional facilities are seeing large outbreaks that threaten to overwhelm nearby medical resources. Montana State Prison, in Deer Lodge—a town of roughly 3,000,where the prison is the main employer—is dealing with a growing outbreak. And at the Crossroads Correctional Center in Shelby, another small town, 239 people have tested positive for the virus, according to the Montana Department of Corrections.


Since late March, The Sentencing Project’s Josh Rovner has been tracking cases of COVID-19 in juvenile-detention facilities. According to Rovner’s tally, nearly 2,000 young detainees have been infected with the virus since March 24; roughly 400 of them live in Florida.

“Those who would dismiss the numbers—either because you don’t know any incarcerated kids or because they haven’t yet died—should know that a similar number of staff working in Florida’s youth facilities have contracted the virus,” Rovner wrote in an op-ed for the Palm Beach Post. “The virus doesn’t care whether your uniform reads ‘staff’ or ‘detainee.’ Give it a chance to transmit, and it will.”

Rovner urges Florida officials to reduce the population of its juvenile-detention centers. He points to neighboring Georgia, which has seen two-thirds fewer cases among juvenile detainees than Florida. 

Rovner’s op-ed follows his recent report, Youth Justice Under the Coronavirus, which includes a chart showing that, unlike in jails and prisons, where overcrowding often spurs outbreaks, most juvenile-detention facilities affected by COVID-19 are holding far fewer children than they were designed to accommodate. Los Angeles’ Central Juvenile Hall, for example, has space for 622 but now houses 41. 

“Drops in admissions during the pandemic buttress the long-standing case that youth incarceration is largely unnecessary,” Rovner writes. The fact that so many facilities have scaled back—or even halted—educational and therapeutic programs as well as family visits further underscores the harm of keeping kids locked up amid the pandemic.   

“The juvenile system strives to distinguish itself from adult corrections by valuing rehabilitation over punishment; ending such programming blurs that difference,” Rovner writes.


The ACLU, in collaboration with UCLA’s Prison Law and Policy Program, recently made public its Death by Incarceration tracker, which lists all known deaths in prisons and jails due to COVID-19. Check back on Wednesday when we’ll take a deeper dive into the data. 

More than one-third of the staff at the Marquette Branch Prison in Michigan have either tested positive for COVID-19 or are waiting for test results, Angie Jackson with the Detroit Free Press reports. More staff members at the prison have contracted the virus than at any of the state’s 29 other prisons. “Coronavirus cases are climbing among prisoners as well,” Jackson writes. As of Friday evening, at least 204 of 972 incarcerated people who were tested at Marquette Branch were positive for the virus. 

A new report by the ACLU of Colorado describes efforts to reduce the state’s jail population—to allow for social distancing—as “smart, safe, and thoughtful, with a clear focus on reserving jail beds for people who pose a threat to others.” Before the COVID-19 pandemic, Colorado jails were at 81 percent capacity; they’re currently at 47 percent capacity, though the report warns that some jails have seen a recent population uptick. “We must not accept a return to the ‘normal’ that contributed to making this pandemic so much worse,” the report urges.

Coronavirus In Jails And Prisons

A new report by researchers at Johns Hopkins University warns prisons and jails that ‘changes are urgently needed’ to prevent more COVID-19 outbreaks; Wisconsin continues to struggle with infections inside and outside its prisons; and a new video series shares the tragic story of a wife trying to get help for her husband amid an outbreak at Chicago’s Cook County Jail.

Coronavirus In Jails And Prisons

A new report by researchers at Johns Hopkins University warns prisons and jails that ‘changes are urgently needed’ to prevent more COVID-19 outbreaks; Wisconsin continues to struggle with infections inside and outside its prisons; and a new video series shares the tragic story of a wife trying to get help for her husband amid an outbreak at Chicago’s Cook County Jail.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


A new report by researchers with Johns Hopkins University’s Center for Health Security and Center for Public Health and Human Rights has a dire warning for the U.S. carceral system: make changes now or face more COVID-19 outbreaks in the future.

“The current system and operations of facilities of incarceration are not able to protect incarcerated individuals from COVID-19,” the report says. “Changes are urgently needed to diminish the risk of transmission and provide the standard of care to those who have been infected with this disease.”

Many recommendations in the 33-page report, released Thursday, echo what experts have been saying since the start of the pandemic: State and county leaders need to reduce jail and prison populations with a focus on releasing medically vulnerable people. The report also urges officials to “incorporate the defendant’s COVID-related health risks into decisions related to incarceration, bail, sentencing, and release.”

Some recommendations in the report were spurred by media accounts of jail and prison systems refusing to provide accurate testing data or to make public a facility’s prevention and management plans. 

“Mandate that all facilities report testing schedules and results for incarcerated individuals and staff,” researchers urge. “Require correctional facility administrators to make their plans for prevention and management of COVID-19 in their institutions publicly available, as the San Francisco sheriff’s department and others have done.” 

Because the virus spreads in poorly ventilated areas, the report also urges jails and prisons to provide incarcerated people with as much outdoor time as possible and to avoid quarantining people in a way that mirrors punitive solitary confinement. There have been numerous reports about people being confined to cells or dorm-style areas for up to 23 hours a day, sometimes longer, without access to recreational time, showers, or phone calls. 

In a statement that accompanied the report’s release, co-author Crystal Watson, a senior scholar at the Center for Health Security, said jails and prisons need to think, and act, like public-health systems.  

“I hope that not only can we address this during the COVID-19 pandemic, but we can make some systemic changes going forward to make these facilities safer and to be more judicious when we’re incarcerating people,” she said.


Amid reports of rising infection rates in nearly every state, prisons and jails that have gone weeks, even months, with no new cases of COVID-19 are now reporting significant outbreaks. At the Greene County Correctional Facility in upstate New York, at least 94 incarcerated people and 13 staff members have tested positive for the virus. In Connecticut, the Hartford Correctional Center is on lockdown after more than 50 people tested positive for COVID-19 —an outbreak that started with two jail employees.

At the Fremont Correctional Facility in Cañon City, Colorado, widespread testing conducted last week revealed that 74 prisoners and 13 staff members have contracted the virus. Not all test results are back, the Colorado Springs Gazette’s Lance Benzel reports, and corrections officials expect the number of infections to increase.


Since April 2, more than 2,600 people in Wisconsin prisons have tested positive for COVID-19. Half of those infections have occurred in the last three weeks alone. The outbreaks have hit six prisons in the lower eastern part of the state, near Green Bay and Milwaukee.  

While the Wisconsin Department of Corrections (WDOC) has been transparent about the number of cases in its facilities, it’s refused to release information about deaths, prompting the state’s ACLU to file a public-records request this week, asking WDOC to “provide information about the number of incarcerated people who have been hospitalized or died due to the COVID-19 outbreak in the state’s prisons.” The request also seeks information about policies related to quarantining, testing, and the availability of masks.

Wisconsin’s WLUK spoke to a woman whose son is at Dodge Correctional Institution, in Waupun, where 241 people have tested positive for the virus. The woman said prisoners weren’t being told whether they’d tested positive for COVID-19 and symptomatic people weren’t being provided with medical care.   

A WDOC spokesperson told WLUK that its health-care workers are “committed to their patients, that inmates are generally informed if they’ve tested positive, and that at facilities with large outbreaks, all inmates are treated as if they’ve been exposed to the virus.”


➤ Nickolas Lee was the third person to die from COVID-19 in Chicago’s Cook County Jail. Only 42 years old, Lee died alone in a hospital on April 12. His wife, schoolteacher Cassandra Greer-Lee, has since become an advocate working on behalf of incarcerated people. She collaborated with the Coalition to End Money Bail, Chicago artists, and the advocacy organization Zealous to create “132 Calls,” a three-part video series. Narrated by Greer-Lee, black-and-white illustrations capture her desperate attempts to get help for her husband; according to phone records, she called the jail 132 times. 

➤ The Fifth Circuit Court of Appeals has made permanent the temporary halt it placed last week on a federal judge’s order that Texas corrections officials needed to do more to protect elderly prisoners in the Wallace Pack Unit. While the three-judge panel agreed that “the pandemic inflicted a dreadful toll at the Pack Unit,” it also found that “[m]ercifully, positive cases of COVID-19 have plummeted sharply…. The [Texas Department of Criminal Justice’s] preventive measures are working, belatedly abating what had been a perfect storm.” The judges determined that the plaintiffs hadn’t exhausted all possible administrative remedies before filing a lawsuit. 

The ruling the appeals court overturned was a scathing 85-page indictment of how Texas prison officials handled an outbreak at the Pack Unit, which ultimately killed 19 people. The judge, Keith Ellison, accused prison officials of lying, ignoring health experts’ recommendations, and creating what he described as a “human tragedy.” 

➤ Up until this month, there had been only four cases of COVID-19 in Utah prisons. Last week, an outbreak at the state prison in Draper infected more than 200 people, though prison officials said they’d managed to confine it to one cell block. This week, the Salt Lake Tribune reported that the virus had jumped to a second prison block, infecting at least 78 more people and prompting a protest by family members who shared stories from jailed loved ones about lapses in medical care and unsanitary conditions.   

➤ Also in Utah, at the Weber County Jail, a prisoner who tested positive for the virus in July has tested positive again, confirming the potential for reinfection.  


As part of our ongoing effort to track the coronavirus in jails, prisons, and juvenile-detention facilities, each week, we map out corrections facilities that are currently reporting at least two active infections. (Hover your cursor over a dot to see the facility’s name.) This week, we removed several dots for places that are now reporting no active cases of the virus. But new outbreaks  prevailed—this week’s map includes roughly 40 more dots than last week, representing outbreaks in every type of facility we’ve been tracking. 

The Count #6: How We Can Stop Trump From Stealing The Election

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, if President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.

The Count #6: How We Can Stop Trump From Stealing The Election

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, if President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.


Today, we’ll look at:

  • What voters and elected officials can do to stop Trump and his allies from stealing the election.
  • GOP trying—and failing—to keep Texans from voting in a state that is increasingly turning purple.

If you were forwarded this newsletter and would like to subscribe, sign up here.


THE DAILY COUNTDOWN.

  • 18 days until election day.
  • 53 days until the deadline for all ballots to be counted.
  • 59 days until electoral college slates send their votes to Congress.
  • 82 days until Congress counts electoral college votes.
  • 96 days until inauguration day.

HOW TO STOP TRUMP FROM STEALING THE ELECTION

President Donald Trump and his allies have repeatedly spoken about their plans to intimidate voters, disrupt the count of mail-in ballots, and seek favorable election rulings from the Supreme Court. If all of this fails to swing the count his way, Trump will likely try to overturn the election results by having his allies in Republican legislatures send illegitimate electors to the Electoral College.

A new report, “The Count: A practical guide to defending the Constitution in a contested 2020 election,” written by Zack Malitz, Brandon Evans, and Becky Bond answers the question: if a worst-case scenario comes into play, what should elected officials and voters do?


EVEN VOTER SUPPRESSION IS BIGGER IN TEXAS

Texas hasn’t historically been a competitive state in presidential elections, but recent polling shows Trump with only a two point lead over Biden in historically deep red Texas–well within the margin of error.

Despite Texas-sized voter suppression efforts, early voting turnout has already reached historic levels.

  • ALMOST TWO MILLION NEW TEXAS VOTERS — A record 16.9 million Texans are registered to vote in this election, which is 1.8 million more voters than 2016. And 60% of new registered voters are under the age of 25 or people of color. Nearly 300,000 of those people registered in the final two weeks.
  • HARRIS COUNTY SHATTERS RECORDS — More than 128,000 Harris county voters cast ballots on the first day of early voting this week, nearly double the county’s previous record from 2016. The county has also added at least 90,000 previously unregistered voters to their rolls who weren’t new to the county. This may benefit Democrats because unregistered voters are “far less white” in a county that is already less than one-third white.
  • THE #1 SOUTHERN STATE … IN POLL CLOSURES — Since 2012, Texas has led poll closures across the South, with 750 sites shuttered. Across the state, the number of residents per polling place has nearly doubled. In one county, 44% of polling places were closed over a six year period, despite gaining 15,000 residents.
  • ONE DROP BOX PER COUNTY — That’s the new rule in Texas, whether you’re in Loving County with just over 100 residents or Harris County that’s home to Houston and a population of 4.7 million. Somehow, that’s not voter suppression, at least according to a federal appeals court of three judges appointed by Trump. It’s a move that 19 state attorneys general oppose.
  • DOES NOT COMPUTE — Causing extra chaos on Tuesday morning, every single voting machine at 30 early voting sites weren’t working for several hours.

All of this amounts to, as The Count co-host Emily Galvin-Almanza put it, an inspiring effort from Texans telling those in charge of voter suppression efforts to “get stuffed,” and they will be heard.

DO YOU WANT FRIES WITH THAT? — The Texas Republican Party filed a new lawsuit this week challenging Harris County’s drive-thru and curbside voting programs, which were designed to provide safer voting options for any registered voter at 10 locations. That lawsuit was dismissed on Wednesday.


WHAT WE ARE TRACKING:

  • A tracker of mail-in ballots across swing states has been released by ProPublica, in partnership with The Guardian. Voters in North Carolina, Iowa, Georgia, Florida, Pennsylvania, Ohio, Michigan, Minnesota, and Wisconsin have requested 20.2 million mail-in ballots and have returned 7.2 million ballots.
  • North Carolina was the latest state to have long lines when it opened polling stations for early voting yesterday. Even those who arrived before the polls opened reported waiting hours to vote.
  • During a CNN Town Hall yesterday evening, Donald Trump furthered his false claims that there are thousands of ballots being dumped in dumpsters and garbage cans. The moderator Savannah Guthrie asserted, “Your own FBI Director says there is no evidence of widespread [vote-by-mail] fraud.” His response? “Well, then, he’s not doing a very good job.”
  • Defense Secretary Mark Esper has not directly answered or denied the potential of sending troops to polling stations next month. Joint Chiefs Chairman General Mark Milley, however, has said there’s “no role” for the military in deciding election outcomes.

 

 

 

Our Future On the Ballot #5

Heading into the highest-stakes election of our lifetimes, The Appeal launched a newsletter called Our Future on the Ballot, covering insurgent candidates across the country, their elections, and what's at stake.

Our Future On the Ballot #5

Heading into the highest-stakes election of our lifetimes, The Appeal launched a newsletter called Our Future on the Ballot, covering insurgent candidates across the country, their elections, and what's at stake.


In today’s issue, we’ll cover:

  • Breaking news: Allister Adel, Maricopa County’s top prosecutor, flip flops on prosecuting abortion cases.
  • Meet the slate of transformative candidates running to shake up the criminal courts in New Orleans.
  • Plus: Flipping Arizona from Red to Blue, flipping the Supreme Courts in Ohio and Michigan, and more news from around the country.

BREAKING NEWS FROM ARIZONA:

  • Earlier this week, we covered a new polling memo from The Justice Collaborative Institute and Data For Progress, which showed that Maricopa County voters would be more likely to support a head prosector who pledges not to prosecute women for seeking an abortion.
  • The Appeal also hosted a discussion between Julie Gunnigle, the Democratic candidate for Maricopa County Attorney, state representative Athena Salman, and the Executive Director of Arizona’s Planned Parenthood on the issue of criminalizing abortion. Here is Julie Gunnigle pledging on the show to not prosecute a woman for her healthcare decisions:

  • Today, in an article published by The Appeal’s Meg O’Connor, Republican incumbent Allister Adel, who, despite saying multiple times that she would prosecute these cases, reversed her position, telling The Appeal via her campaign spokesperson: “She will not prosecute a woman for their health care decisions.”

A SLATE OF TRANSFORMATIVE CANDIDATES ARE RUNNING FOR JUDICIAL SEATS IN NEW ORLEANS, PLEDGING TO END CASH BAIL AND SHAKE UP THE SYSTEM.

  • JAZZ, JULEPS, AND JAILS. When most people think of New Orleans, they imagine the exquisite sounds of trumpets playing at Jazz Fest, the striking colors and crowded French Quarter streets filled with Mardi Gras revelers, and some of the best food and drink in the world. Alongside these chart toppers is a more dismal ranking as one of the most incarcerated cities in the world.
  • JUDGES PLAY A BIG ROLE IN WHO GOES TO JAIL OR NOT. Judges in New Orleans make decisions on whether a person is locked up before their trial, how long a person will ultimately spend in jail or prison, and whether to saddle a population of mostly impoverished people with exorbitantly high fines and fees. You might not be shocked to learn that the current judicial occupants on the bench, and their predecessors, are some of the architects and biggest proponents of the incarceration crisis in New Orleans. 
  • CHALLENGING THE STATUS QUO. A transformational slate of candidates are running to be one of those judges. Before we tell you about who these candidates are exactly, you should know two things. First, these races often are uncontested in any serious way, meaning that judges remain on the bench forrrrrrrever. According to The Advocate / Times Picayune, the last time an incumbent district court judge lost a re-election bid was in the early 1970s. Second, people who spend their lives representing impoverished and working people—people facing eviction, people facing jail time–rarely become judges. So, multiple candidates running for contested judicial seats in New Orleans, all of whom are people who have spent their career representing vulnerable and working people, is an extraordinary opportunity to create change in the criminal legal system.
  • MEET THE SLATE. There are seven candidates–Derwyn BuntonAngel HarrisSteve SingerGraham BosworthNandi CampbellTenee FelixMeg Garvey–running on a shared platform that includes, for example, largely ending the use of cash bail. Hear from three of those candidates:
    • Derwyn Bunton, current head of the Orleans Public Defenders, told The Appeal that he’s running for judge because of the deep inequality in the criminal legal system:

“This is personal to me. I don’t walk through stores with my hands in my pockets and I don’t do that because as a little boy, I put my hands in my pockets in the grocery store. My mom struck me across the back and told me, ‘Get your hands out of your pockets! You’re a young black boy. People will think you’re stealing.’”

  • Angel Harris has spent her career working on policing reform and on behalf of people on death row and children serving life without parole sentences. She recently joined The Appeal to discuss why she’s running:

“We’re still hearing that New Orleans leads the nation in wrongful convictions. Why is that so? Why not try something new? Why not give everyone equal access to justice? Why not provide alternatives to incarceration? Why not stop the criminalization of poverty?”

  • Steve Singer is a retired Professor of Law at Loyola University who, in the wake of Hurricane Katrina, led the effort to reform and rebuild the Orleans Public Defender’s Office. Steve told The Appeal that he has pledged to reject money from the bail bonds industry that profits from a cash bail system that jails people only because they cannot afford to pay for their freedom:

“My opponent is the candidate that’s been put up by the bail bondsman… They’re one of the largest contributors in Louisiana to judicial campaigns and to state legislators. And the reason they do that is to keep themselves in business.”


THINGS WE ARE TRACKING:

  • Flipping Arizona from Red to Blue. The Appeal’s Meg O’Connor published an article on how Democrats could break the Republican trifecta in Arizona if they successfully flip key seats in the state’s House and/or Senate. Included among these candidates is Coral Evans, the current mayor of Flagstaff, running for the Arizona House’s 6th District, who gained notoriety earlier this year for defying Governor Doug Ducey’s orders to keep public spaces open by becoming the first mayor to close bars, schools, and restaurants. Evans is running on a platform of economic justice, a $15 minimum wage, and adequate funding for childhood and education.
  • Mondaire Jones, the Democratic nominee to represent New York’s 17th Congressional District, was spotlighted in a one-on-one with The Appeal in which he spoke about his plans to bring “big structural changes” to the halls of Congress. He told The Appeal’s Lauren Gill, “There are two primary problems with our criminal legal system and one is systemic racism, and the other is an overreliance on policing as a means to obtain public safety.”
  • Eliseo Santana, a candidate to become Pinellas County Sheriff, the Florida county’s top law enforcement official, joined The Appeal’s Our Future On the Ballot to discuss police accountability and decriminalizing homelessness and mental illnesses.
  • Supreme Flip? As reported by The Appeal, Democrats have the opportunity to flip the Supreme Courts in Ohio and Michigan, which would make a critical difference on gerrymandering, voting rights and other key issues.
  • Shemia Fagan, a candidate for Oregon Secretary of State, was endorsed by The Willamette Week and The Bend Bulletin this week. She was previously endorsed by the state’s largest paper, The Oregonian. As The Willamette Week points out: Fagan has “proven a vocal advocate for expanding access to voting, including prepaid postage for voter registration of anyone who uses the DMV.” Fagan recently appeared on The Appeal’s Our Future On The Ballot.
  • Sarah Iannarone, the candidate challenging embattled Portland, Oregon, mayor Ted Wheeler, sat down with Street Roots to discuss the homelessness crisis and the need to “move beyond the binary of housed neighborhoods and NIMBYism” in thinking about community safety solutions that work for all Portlanders, regardless of housing status. Tomorrow, The Appeal is hosting a candidate forum between Wheeler and Iannarone, at 12:00 ET. 
  • Terra Lawson-Remer, a progressive challenger whose race provides an opportunity to flip the San Diego County Board of Supervisors from Red to Blue. Her Climate Action Plan calls for 90% clean energy by 2030 and using county lands for affordable housing. In a recent interview with The San Diego Union Tribune, Lawson-Remer said that “we sit at the intersection of a climate and housing crisis giving us not only the opportunity, but the responsibility to reimagine a San Diego for the next generation.”

The Count #5: Would SCOTUS Let Trump Steal The Election?

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, if President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.

The Count #5: Would SCOTUS Let Trump Steal The Election?

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, if President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.


Today, we’ll look at:

  • NEW POLLING: Final election results may come later than voters expect — which could allow President Donald Trump to make his biggest lie yet and falsely claim victory.
  • How the Supreme Court, aided by SCOTUS nominee Amy Coney Barrett, could help Trump steal the election.

If you were forwarded this newsletter and would like to subscribe, sign up here.


THE DAILY COUNTDOWN.

  • 19 days until election day.
  • 54 days until the deadline for all ballots to be counted.
  • 60 days until electoral college slates send their votes to Congress.
  • 83 days until Congress counts electoral college votes.
  • 97 days until inauguration day.

NEW POLL: FINAL ELECTION RESULTS MAY COME LATER THAN VOTERS EXPECT.

Presidential elections used to come down to a handful of minutes on a single night where the results are called, the loser concedes, and the winner claims victory. This year, we likely won’t know the election outcome for days, perhaps weeks. And voters are not prepared.

New polling from Data for Progress and The Justice Collaborative Institute found voters are confident that results will still arrive on election night.

  • 47% of likely voters believe they will know the winner of the presidential election on election day.

If voters expect a result on election night, it increases Trump’s ability to cast doubt on the results. Donald Trump has made clear he will contest the results of the election if results are not called for him on election night — he will declare fraud, decry the expected “blue shift”, and set into motion his plan to steal the election. So, while it might seem like good news that over half of Americans are not confident that they will know the election results on November 3rd, it’s actually very bad news. No one should be certain that we will know the winner on November 3rd, and this lack of broad public understanding, plays right into Trump’s plot.

That’s because a focus on election night is a critical part of Trump’s strategy. Despite a group of bipartisan secretaries of state saying this week that election results will take longer this year, Steve Bannon, Trump’s former chief strategist, keeps talking about this as the “game day victory.” On Wednesday he said, “Here’s what’s going to happen: I think 10, 11 o’clock on election night, President Trump’s going to be pretty far ahead, and he’s going to declare that, hey, he’s the winner. ’Cause that’s the real vote, the vote that counts.”

It’s crucial to educate and prepare voters about the likely election result timeline.

Telling likely voters the following three pieces of information decreased by 9% the number who were confident about getting results by election night:

  1. Mail-in ballots take longer to count;
  2. Pennsylvania’s Secretary of State has said not all votes will be counted by election night; and
  3. States that have relied on mail-in ballots in the past often don’t have immediately clear results.

— “[This] just shows the importance of the task that we have, the media has, that our elected officials — at least the sane ones — have to make sure voters are aware of the drawbacks of trying to make a conclusion about an election on election night.” — The Count guest Jason Ganz

  • KEY TAKEAWAY: Trump continues to talk about results being known on election night, even though election officials see that as unlikely. It’s crucial that voters understand this. Trump plans to use expectations of an immediate outcome to undermine confidence in the election results and falsely declare himself the victor. By educating voters about the ballot counting process, more voters will be prepared to wait for final election results.

WOULD THE SUPREME COURT LET TRUMP STEAL THE ELECTION?

There is little stopping Republicans from confirming Judge Amy Coney Barrett to the U.S. Supreme Court, which would form a 6-3 conservative bench. In 2000, the Supreme Court’s controversial Bush v. Gore ruling blocked a hand recount of presidential ballots in Florida, spurring Gore’s concession. This year, the RNC and Trump’s campaign have doubled their legal budget. Fights over which ballots can and cannot be counted will be the most intense political—and legal—fight yet. Some of those legal battles may end up in front of SCOTUS.
  • TRUMP RELYING ON THE COURT — During the first presidential debate, Trump said he was “counting” on the Supreme Court to “look at the ballots.” He has also said that he thinks the election “will end up in the Supreme Court” and that having eight justices is “not good.”
  • HE’S NOT THE ONLY ONE — South Carolina Senator Lindsey Graham, who as Senate Judiciary Chair is leading the charge for Barrett’s confirmation told Fox News, “I promise you as a Republican, if the Supreme Court decides that Joe Biden wins, I will accept the result,” Mr. Graham added. “The court will decide.”
  • WHY SCOTUS MATTERS — In the last few weeks, SCOTUS upheld South Carolina’s witness requirements, allowed Maine’s ranked-choice voting to go ahead, okayed Montana sending mail-in ballots to all registered voters, and could still rule on several more cases, including a ballot deadline case from Pennsylvania. After election day, federal lawsuits or appeals from state supreme courts could end up in front of SCOTUS.

— “In terms of this question as to whether or not she would recuse herself … Sure, yes, that should happen, but of course she’s not going to do that. Why would she? This is the whole point of the conservative legal movement … Her recusing in this case would be tantamount to surrender and it’s just not going to happen.” –The Count guest Jay Willis


WHAT WE ARE TRACKING

  • More than 128,000 Harris county voters cast ballots on the first day of early voting this week, nearly double the county’s previous record from 2016. The county has also added at least 90,000 previously unregistered voters to their rolls who weren’t new to the county. This may benefit Democrats because unregistered voters are “far less white” in a county that is already less than one-third white.
  • Ballots in California’s fake drop boxes will be counted. The GOP-created boxes are illegal and an investigation is ongoing, but the ballots dropped in them will be treated and counted as ordinary ballots.
  • Georgia’s long early voting lines may remain after a judge ruled that it is not the court’s job to allocate voting equipment to shorten voters’ wait times.
  • Counting of Florida’s mail-in ballots has begun. Florida’s election officials can begin counting mail-in ballots 22 days before election day, which is crucial to manage the huge number of mail-in ballots this year. As a result, the state–despite repeated election snafus–just might “be the shining star on election night,” according to the president of the state association of supervisors of elections.
  • Today is the last day to register to vote in Arizona after an appeals court ruling ended an extension that was set to run until Oct. 23.

The Count #4: Republicans Enabling Trump’s Election Theft

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, if President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.

The Count #4: Republicans Enabling Trump’s Election Theft

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, if President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.


Today, we’ll look at:

  • If the Presidential election comes down to Pennsylvania, Republican voters will trust a call from the GOP-controlled legislature that Trump won even over a contrary call by the state’s election officials and national media outlets, including Fox News.
  • Why Trump must win Pennsylvania, and what that means for his plot to steal the election.
  • GOP hijinks, from fake ballot boxes in California to 12 hour waits at Georgia polling places.

If you were forwarded this newsletter and would like to subscribe, sign up here.


THE DAILY COUNTDOWN.

  • 20 days until election day.
  • 55 days until the deadline for all ballots to be counted.
  • 61 days until electoral college slates send their votes to Congress.
  • 84 days until Congress counts electoral college votes.
  • 98 days until inauguration day.

NEW POLL: ON ELECTION NIGHT, REPUBLICAN VOTERS WILL TRUST GOP-CONTROLLED LEGISLATURES OVER ELECTION OFFICIALS AND NATIONAL MEDIA OUTLETS, INCLUDING FOX NEWS, FOR CALLING WINNER.

There is rising concern that President Donald Trump and swing state Republican-controlled legislatures will attempt to overturn the results of the election by appointing illegitimate Trump electors to the Electoral College. If they do, Congress will be forced to decide between these electors and those certified by the state’s governor.

New polling from Data for Progress and The Justice Collaborative Institute shows Republican-controlled legislatures would have political support among GOP voters to announce their own winner.

  • 70% of likely Republican voters would trust a GOP-controlled state legislature if they were to call the election and send Trump electors to the Electoral College, even if the Secretary of State had already certified that Biden had won the state.

“Partisanship is a hell of a drug.” — Jason Ganz, chief of staff at Data For Progress

That majority support endures in this scenario, even if all the major news networks—CNN, Fox News, and MSNBC—also declared former Vice President Biden the winner. 

  • 61% of likely Republican voters would also trust the Republican-controlled state legislature’s call to send Trump electors to the Electoral College even if major news networks, including Fox News, AND the Democratic Secretary of State of Pennsylvania made the call that Biden had won the presidency.
  • KEY TAKEAWAY: President Trump has been successful in building distrust in the electoral process among base Republican voters. Trump has repeatedly refused to commit to accepting the results of the election, but to steal the election, he would need the cooperation of Republican-led state legislatures. It’s unlikely that Republican legislatures will act to install a democratically defeated Trump in the White House for a 2nd term without support from their Republican base. This polling suggests that Trump has successfully created that support, likely through his rhetoric undermining the legitimacy of the democratic process.

THE KEYSTONE (STATE) TO TRUMP’S PLOT TO STEAL THE ELECTION

Pennsylvania is a crucial battleground state, but this year, election experts say Donald Trump likely can’t win without getting Pennsylvania’s 20 Electoral College votes. In 2016, out of 6 million votes cast, Trump won the state by just 44,000 votes. (In a textbook “blue shift,” Trump’s lead narrowed substantially as Clinton won 58% of the votes counted after election night.)

So this year, the Trump campaign and its allies have launched myriad political and legal fights to challenge everything from where ballots can be returned, to how, and whether, they’ll be counted at all. The situation is so tumultuous, the former Pennsylvania communications director for Hillary Clinton’s 2008 presidential campaign described Pennsylvania’s election season to The Hill as, “Like learning to ride your bicycle in the middle of a hurricane with a crazy person chasing you.”

Here’s a sampling of what’s happening:

  • DEMOCRATS DOMINATE MAIL-INS — Democrats have requested 1.69 million mail-in ballots in Pennsylvania, compared to only 633,000 Republicans, a trend that holds across all early ballots cast in the state.
  • DON’T GET NAKED — The Trump campaign won a case in the Pennsylvania Supreme Court last month that will ensure “naked ballots” without second envelopes won’t be counted. There are concerns that more than 100,000 of those ballots could be invalidated because they didn’t include a secrecy envelope.
  • “ELECTORAL CHAOS” — This is what Philadelphia’s top election official said would be the result if the Republican-controlled legislature didn’t pass legislation allowing these naked ballots to be counted.
  • NO EARLY PROCESSING — Pennsylvania is one of four states that don’t allow officials to begin processing mail-in ballots before election day, which will only slow the count and accentuate the blue shift after election night. Legislation has been proposed—but has yet to pass—that would allow early processing, including opening ballots, checking signatures and eligibility, and preparing for scanning, but not actually counting ballots.
  • “SPECULATIVE” IS ONE WAY TO PUT GOP VOTER FRAUD CLAIMS — A Trump-appointed judge recently said the campaign and RNC had presented a “chain of theoretical events” and their arguments of potential fraud were “speculative.” As a result, the judge refused to deem ballot drop boxes unconstitutional and also allowed a Pennsylvania policy that ballots shouldn’t be rejected if the signature doesn’t exactly match the one on file to remain.
  • THE A.G. IS READY FOR THE LAWSUIT TSUNAMI — The Pennsylvania Attorney General has said Trump’s goal with lawsuits and misinformation is to “sow doubt.” His office has been preparing for an influx of lawsuits on election night, “beginning at 8:01 p.m. when the polls close.”
  • “INTEGRITY” COMMISSION FAILS TO HAVE ANY — Pennsylvania Republicans have dropped their push to create a Republican-controlled, so-called “election integrity” commission. The committee would have had subpoena powers to question election and postal service workers while voting is still happening, raising concerns about interfering with ballot counting. The Democratic governor had called the effort an attempt to “steal the election.”
  • REMEMBER — Oct. 27 is the deadline to apply for a mail-in ballot in Pennsylvania.

“The appearance of impropriety can be just as damning — it affirms a particular narrative — Brandon Evans, Real Justice PAC


GOP HIJINKS, FROM CALIFORNIA’S BALLOT BOXES TO GEORGIA’S POLLING PLACES

Republicans’ election tactics, and their problematic effects on a free and fair election, are already rising to the surface.

In California:

  • BYE BYE BALLOT — A California GOP field director last week tweeted a photo of himself returning his mail-in ballot to a box marked “Official ballot drop-off box.” But despite the label, the boxes, which have been placed all around Southern California by the GOP, are not only unofficial, but are illegal. (The tweet has been deleted.)
  • THIS IS NOT LEGAL — The GOP defended their actions as “ballot harvesting,” a practice that’s legal in 26 states including California where voters can hand their ballots to a designated person to submit. But that’s not what’s happening here. As the Orange County Registrar of Voters told the Orange County Register, what the GOP did here would be like putting up a box outside your house and calling it an “official” mail box to collect other people’s mail.

  • SECRETARY OF STATE INVESTIGATING — The secretary of state’s office received numerous complaints about the boxes, which were placed outside political party offices, gyms, gun shops, and churches. “Operating unofficial ballot drop boxes—especially those misrepresented as official drop boxes—is not just misleading to voters, it’s a violation of state law,” California Secretary of State Alex Padilla told the Washington Post. California’s attorney general has also sent a cease and desist letter to the state Republican Party.

In Georgia: 

  • ENDLESS LINES — Videos filled social media on Monday with hundreds of voters waiting for what seemed like miles at polling stations on the state’s first day of early voting. While it was a federal holiday and voters were socially distancing in line, the record turnout led to reports of people waiting up to 12 hours to vote which could disincentivize voters on the day, and future voters.

  • END RESULT OF SUPPRESSION: These sorts of lines are the direct result of voter suppression. When Republican Governor Brian Kemp was secretary of state, county election officials closed more than 200 voting precincts, and his office reportedly advised officials on how to close those polling stations. We’ve previously covered how the closing of polling sites has left seven counties in Georgia with only a single polling location (the governor, while serving as Secretary of State, also purged half-a-mil­lion vot­ers from the rolls).
  • RACIAL DISPARITY IN WAIT TIMES — Previous research has found nonwhite voters are seven times more likely than white voters to spend more than an hour waiting in line to vote. Why? Because more resources are sent to polling stations in white communities. As Brandon Evans told The Count, this year’s voter suppression tactics by Republicans are nothing new for Black Americans.

“Suppression and the rights of African-Americans to vote has always been on the agenda, while some communities may find this to be a new threshold, for the Black community, this is par for the course.” –Brandon Evans, Real Justice PAC


WHAT WE ARE TRACKING

  • Amy Coney Barrett refused to say whether she would recuse herself from election-related cases if she were confirmed to the U.S. Supreme Court. During the presidential debate, Trump said he expects the court to look at ballots after election day.
  • There could be more rejected ballots than ever before. Voters who haven’t used mail-in ballots before are up to three times more likely to have their ballot rejected for reasons including arriving late, lacking a signature, or being “naked” That’s hugely problematic with mail-in ballot applications skyrocketing across the country.
  • Virginia’s voter registration system went down on Tuesday, the last day in the state to register to vote ahead of election day. The reason? A fibre optic cable was accidentally cut.
  • Fox News launched a so-called “election integrity” project. Reiterating Trump’s own false claims in its internal announcement, the project is “an attempt to push more baseless conspiracy theories and scare the viewers into thinking the election is being ‘stolen,’” a Fox News veteran told The Daily Beast.
  • The New York Police Department has told uniformed officers and even detectives to prepare for deployment for protests over the highly contested election. The staff memo said, “We should anticipate and prepare for protests growing in size, frequency, and intensity leading up to the election and likely into the year 2021.”

The Count #3: White Extremist Groups Pledge To “Poll Watch” For Trump

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens if the 2020 presidential race is too close to call on election night, if President Donald Trump then makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.

The Count #3: White Extremist Groups Pledge To “Poll Watch” For Trump

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens if the 2020 presidential race is too close to call on election night, if President Donald Trump then makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.


President Donald Trump and his allies across the country are already laying the groundwork for their plans to steal the election.

Today, we’ll look at:

  • New Poll: Overwhelming numbers of Republican voters will trust Trump if he calls the election in his favor on election day.
  • White extremist groups pledge to serve as “poll watchers” for Trump to create an atmosphere of violence and chaos.
  • Amherst College law professor Lawrence Douglas, author of Will He Go?, on understanding Trump’s play for absolute power.

If you were forwarded this newsletter and would like to subscribe, sign up here.


THE DAILY COUNTDOWN.

  • 21 days until election day.
  • 56 days until the deadline for all ballots to be counted.
  • 62 days until electoral college slates send their votes to Congress.
  • 85 days until Congress counts electoral college votes.
  • 99 days until inauguration day.

NEW DATA FOR PROGRESS / TJCI POLL: REPUBLICAN VOTERS WILL TRUST TRUMP IF HE CALLS THE ELECTION IN HIS FAVOR.

Trump is building buy-in to call the election for himself on election night—and it’s working. Trump’s three-step process:

  • Step 1: Undermine Confidence In The Integrity Of The Election. From promoting “poll watchers” to the incessant focus on essentially non-existent “voter fraud” to attacks on “fake news,” it is all part of an effort to spur voter distrust in how the winner of the presidential election is declared, and who declares it.
  • Step 2: Prime Supporters To Unrealistically Expect An Announcement of The Winner On Election Day. Trump states repeatedly that the winner of the Presidential election will be known on election day, even though election officials and voting experts believe it highly unlikely that it will be known until at least several days later.
  • Step 3: Recruit Key Campaign and Media Surrogates To Follow These Steps. For example, Tucker Carlson recently said on his nightly show that, “If all the votes are counted in one night, no one will have time to issue rulings to throw out ballots they don’t like. And that’s what judges in Pennsylvania and Michigan want–poll workers to count votes for weeks after election day,” he said. “There’s nothing partisan judges would like to destroy more in the end than a quick, efficient, fraud-free election night. That’s the goal here, make no mistake.”

New polling from Data for Progress and The Justice Collaborative Institute shows Trump’s plan is working:

  • REPUBLICANS TRUST TRUMP TO CALL THE ELECTION — 77% of likely Republican voters would trust Trump if he calls the election in his favor (or for former Vice President Joe Biden); only 14% of Democrats would trust Trump’s announcement of a winner.

FOX NEWS IS ALSO A TRUSTED SOURCE — 70% of likely Republican voters would trust Fox News to call the results of the election, but no other major outlet garnered trust from a majority of likely Republican voters, including ABC, NBC, and CBS with only 50% support, CNN with 42% support, and MSNBC 41% support.

KEY TAKEAWAY — Trump needs overwhelming trust from his Republican base in order to convince Republican-controlled legislatures in key swing states with Democratic governors to take the highly unusual step of sending a competing (and fraudulent) slate of electors to Congress after the state has already been certified for Biden. This polling shows that Trump likely will find that support should he make the call in his own favor on election night.


TRUMP NEEDS TO CREATE AN ATMOSPHERE OF CHAOS AND FEAR TO UNDERMINE CONFIDENCE IN THE ELECTION. ENTER THE WHITE EXTREMIST GROUPS PLEDGING TO “POLL WATCH” FOR HIM.

Chaos and fear serves two purposes for Trump. First, it might intimidate voters into staying home, which could shave Biden margins in key swing states. Second, a general atmosphere of chaos contributes to Trump’s effort to undermine confidence in the election results. That’s why the Republican National Committee is recruiting an “army” of 50,000 poll watchers.

When Trump failed to condemn white supremacy groups during the presidential debate, it heightened fears of voter intimidation and even violence—a hallmark of authoritarianism. Now, white nationalist and far-right wing extremist groups are pledging to join the army of poll watchers.

  • MILITIAS LISTENED TO TRUMP — During the debate Trump not only told poll watchers “to go into the polls and watch very carefully” but also told white supremacy groups such as Proud Boys to “stand back and stand by.” Far-right groups responded almost immediately to Trump’s comments to “stand by.” According to the Washington Post, Trump’s comment led to an “enthusiastic response from known neo-Nazis and right-wing activists,” including from the founder of a neo-Nazi website who interpreted the comments to mean “Get ready for war.
  • CREATING THE CHAOTIC MOMENT — “The chances are really high that we’re going to see militia members, armed groups, or Trump supporters who are armed at the polls,” Cassie Miller, a senior researcher with the Southern Poverty Law Center told the Los Angeles Times. “Not only are these people willing to participate in voter intimidation, but they’re hoping to create this chaotic moment. There’s an unwillingness to accept anything but a Trump victory.”
  • EXTREMIST GROUPS ARE CURRENTLY PREPARING — Devin Burghart, the director of the anti-bigotry organization the Institute for Research and Education on Human Rights told The Guardian that “A number of groups have begun talking about mobilizations on election day and beyond. We’re hearing initial chatter about preparations for 3 November,” and that they expected to see “a lot more activity” after Trump’s comments.
  • TRAINING HAS BEGUN, TOO — Some private paramilitary groups are “planning their own poll-watching operations and are openly training in preparation for the post-election period,” according to Mary B. McCord, legal director for Georgetown Law’s Institute for Constitutional Advocacy and Protection, in The New York Times.
  • THEIR PLANS — The Proud Boys, a male-only, far-right extremist group, has pledged to show up at ballot drop-off locations. This year, Stewart Rhodes, the president of Oath Keepers, has told his group to monitor the polls while armed but to “stay concealed,” while other members have allegedly signed up as official poll watchers.
  • IT’S HAPPENED BEFORE — While some say these groups’ “Bark is louder than their bite,” in 2016, Rhodes told supporters, who are largely former military and law enforcement officers, to go undercover at polling sites and “to go and hunt down, look for voter fraud”. (Oath Keepers is “one of the largest radical anti-government groups in the U.S. today,” according to the Southern Poverty Law Center and has a past and current member list of nearly 25,000 people.)
  • BUT WILL BE WORSE IN 2020 — According to a report from the Giffords Law Center, “It is likely that significant numbers of people will bring guns to polling places under the guise of preventing election fraud.”

“LOSING IS NOT AN OPTION”: UNDERSTANDING TRUMP’S AUTHORITARIAN PLAYBOOK.

Less than a week after Trump’s inauguration in 2016, Lawrence Douglas, a professor of law at Amherst College, wrote a piece in The Guardian about Trump’s inability to accept the 2016 election results—even though he won.

Falsely blaming his loss of the popular vote on “millions” of illegal votes, Douglas wrote, “That same script could be called upon four years from now should Trump lose a re-election bid. Whatever damage candidate Trump could have done to American democracy had he lost in November would pale in comparison to the damage wrought by a sitting president rejecting his defeat.”

Douglas’ recent book, “Will He Go? Trump and the Looming Election Meltdown in 2020,” lays out how Trump could challenge the 2020 election results. As a result, Douglas has an acute understanding of why we should believe Trump when he talks about not accepting election results:

  • TRUMP FOLLOWS THE “AUTHORITARIAN PLAYBOOK” — “President Trump has, in several ways, borrowed from the modern authoritarian playbook,” according to a white paper from Protect Democracy, an organization formed by former senior White House and Department of Justice officials.
  • AUTHORITARIANS HOLD—AND MANIPULATE—ELECTIONS — Under authoritarian rule, elections are neither free nor fair. Vladimir Putin, Turkey’s Recep Tayyip Erdogan, and Hungarian Prime Minister Viktor Orbán, all of whom Trump has “publicly lauded”– fall into this camp and seek to “fix outcomes…through laws and policies that embed unfairness at every level”, according to Protect Democracy.
  • BUT TRUMP LACKS THE TOOLS TO GO “FULL PUTIN” — Trump is what Douglas calls a “weak authoritarian.” Trump’s instincts aren’t any less authoritarian, Douglas told The Count, but Trump lacks the requisite tools authoritarians use to fully fix an election because he has alienated senior members of the military and lost the faith of many in the intelligence agencies. So Trump must rely more on his strategy to suppress votes, challenge results as fraudulent, use the courts, and exploit ambiguities in our laws about how electoral votes are counted.

  • PROMOTING HIS BRAND IS HIS ONLY GOAL — And admitting a loss is not in his brand—let alone his DNA. Even in a clear Biden victory, we should expect Trump to claim fraud, as he did after losing the 2016 Iowa Caucus saying, “Ted Cruz didn’t win Iowa, he illegally stole it.” In a closer election, he’ll use every tool at his disposal to save-face, challenge a loss, and defend his brand. In this respect, for Trump, “losing is not an option.”
  • A LITTLE HELP FROM HIS FRIENDS — Professor Douglas compares the close relationship between Trump and Fox News to “state-sponsored propaganda.” And the end result resembles the effects of propaganda too: “If you spend some time just watching Sean Hannity yourself, and if that were your only source of information in the world, you would probably believe a lot of things that are coming out of that.” Understanding Fox News as a Trump propaganda machine helps to make sense of why the DFP / TJCI poll found that Republican voters trust Trump and Fox News, but basically no one else, to call the election results.


WHAT WE ARE TRACKING

  • Misinformation from Trump has international election observers concerned about the integrity of the U.S. election.
  • Michigan Governor Gretchen Whitmer told CBS’s Face The Nation that her state will announce results when those results are ready to be announced, but will not adhere to “artificial deadlines set by, you know, people with political agendas.”
  • The GOP has set up unofficial ballot boxes that have labels declaring them as an “official ballot drop-off box”—across Southern California. The green metal boxes are against the law.
  • Judges aren’t buying Trump’s “voter fraud” claims. Courts in several states have thrown out challenges by Trump’s campaign and the RNC to make voting easier, including setting up drop boxes for mail-in ballots.
  • Lawsuits in North Carolina have led to confusion over how to resolve issues of at least 6,800 ballots that have already been cast. Nearly 50% of those ballots came from nonwhite voters.
  • If your vote is challenged on election day, try to submit a provisional ballot rather than leaving the polling place without voting, Sarah Brannon, director of the ACLU’s Voting Rights Project, told CNN.

Coronavirus In Jails And Prisons

How a collaboration between scholars, public health officials, and the Wayne County jail has kept COVID-19 in check; the California prison with the most coronavirus cases kept prisoners working despite the outbreaks; two counties report spikes in infections among juvenile detainees.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

How a collaboration between scholars, public health officials, and the Wayne County jail has kept COVID-19 in check; the California prison with the most coronavirus cases kept prisoners working despite the outbreaks; two counties report spikes in infections among juvenile detainees.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


Detroit’s Wayne County jail was an early coronavirus hotspot. Over three weeks, starting in late March, the jail’s commander, two doctors, and a sheriff’s deputy all succumbed to the virus, which ultimately infected more than 300 people, most of them employees. 

Researchers from Wayne State University’s Center for Behavioral Health and Justice, who had already worked with the jail on programs for mentally ill and drug-addicted prisoners, approached the sheriff’s department and county officials about working on a mitigation plan and toolkit.

The goal was clear, said the center’s director, Brad Ray: “How do we do this right? We don’t want anyone else to die.”

The first step was to implement a testing program, but WellPath, the jail’s contracted healthcare provider, argued it was outside the scope of their contract. In May, the Michigan Justice Fund provided emergency funding to test everyone in the jail. To ensure testing could continue, county officials obtained a judge’s order and the county’s public-health department hired two disease-intervention strategists to conduct testing and contract tracing in the jail.

The goal is to test everyone booked into the jail. If someone initially refuses a test, they’re placed into quarantine. A disease-intervention strategist documents the reason for refusing the test and follows up with the person a few hours or a day later to see if they’ve changed their mind; each person is promised a paper copy of test results. According to a report that accompanies the toolkit, the jail “has been able to reach 100% compliance with testing.”

Ray and his team plan to present the tool kit, which also includes recommendations for staff testing and discharge planning, to other Michigan jails.

“Clearly reducing the jail population is the number one thing you can do to mitigate it,” Ray told The Appeal. “I heard things like, ‘It’s a waste of time, they’re all going to lie to you.” Jail churn was another barrier to contact tracing—many people leave the jail before they get their test results. So Ray and his team set up a system for the disease intervention strategists to do contact tracing during intake via a simple form. None of the information on the form is shared with law enforcement. 

“If a test came back positive, we’d have this information,” Ray said. “We’ve had pretty good success with the contact tracing.” 

Since the toolkit’s been implemented, only about 1 percent of the jail’s population has tested positive for COVID-19. 

Ray and his team plan to present the tool kit, which also includes recommendations for staff testing and discharge planning, to other Michigan jails. 

Tyler Logan, a project coordinator with the Center for Behavioral Health and Justice, who worked on the toolkit, said collaboration between jails and county public-health departments is key to keeping COVID-19 in check.

“Because relationships have been established between key systems, Wayne County is better positioned to handle future public-health emergencies and outbreaks,” Tyler said.


In California, prisoners can work in factories that, in normal times, produce things like furniture, textiles, and road signs, and pay workers pennies an hour for their labor. During the coronavirus pandemic, the L.A. Times’ Kiera Feldman reports, California kept its prison factories running.

“The factories brought together inmates who were housed in different units, heightening the risk of spreading the virus to other areas inside the prisons,” Feldman writes.

Feldman details how the furniture factory at Avenal State Prison was repeatedly shut down and reopened amid COVID-19 outbreaks. According to the California Department of Corrections and Rehabilitation, Avenal has seen at least four major spikes in infections since mid-May. Nearly 3,000 people at the prison, which currently houses 3,500 and is 20 percent over capacity, have contracted the virus—more than at any other California prison. 


Since Sept. 29, six children incarcerated at the Fairfax (Virginia) Juvenile Detention Center have tested positive for COVID-19. The Washington Post’s Justin Jouvenal reports that Fairfax County officials didn’t publicly disclose the outbreak until three staff members contacted him to express concern that kids weren’t being provided with masks and that classes at the facility continued after the outbreak. Two of the staff members told Jouvenal that one child was hospitalized.

Half of the 32 children at Bay Pines Center, a juvenile-detention facility in Escanaba, Mich., and 13 staff members have tested positive for COVID-19. The children are being quarantined in their rooms. “If they leave their rooms, they must wear an N-95 mask, a face shield, a gown and gloves,” writes WLUC reporter Kendall Bunch.

Since the start of the coronavirus pandemic, thousands of people have been released from New York’s Rikers Island, yet the jail’s use of solitary confinement has increased. Over the first six months of 2020, roughly 13 percent of the 7,200 people incarcerated at Rikers Island spent time in solitary confinement, a higher percentage than each of the last three years, New York Times reporter Jan Ransom found. The union representing Rikers Island’s corrections officers told Ransom that more people at the jail are getting into fights and need to be punished. But research shows that solitary confinement does little to curb violent behavior. According to a 2019 report, “A Blueprint for Ending Solitary Confinement in NYC Jails,” a more effective approach is to provide opportunities for “intensive human engagement and programs to address the reasons for the separation and prevent future violence or harm.”

 

Our Future On The Ballot #4

Heading into the highest-stakes election of our lifetimes, The Appeal launched a newsletter called Our Future on the Ballot covering insurgent candidates across the country, their elections, and what’s at stake.

Our Future On The Ballot #4

Heading into the highest-stakes election of our lifetimes, The Appeal launched a newsletter called Our Future on the Ballot covering insurgent candidates across the country, their elections, and what’s at stake.


In today’s issue, we’ll cover:

  • Maricopa County, Arizona, voters want a county prosecutor who will pledge not to prosecute women for seeking an abortion. Challenger Julie Gunnigle made that pledge. The incumbent, Allister Adel, refused to do the same.

  • Plus: Flipping the Arizona legislature from Red to Blue; marijuana legalization on the ballot in four states; TX Congressional candidate Julie Oliver whips out the whiteboard to breakdown healthcare costs; and more news from around the country.


A WOMAN’S RIGHT TO CHOOSE IS ON THE BALLOT IN ARIZONA.

  • A STARK CHOICE — In Maricopa County, Arizona, which has a population of 4.5 million people and includes Phoenix, America’s 6th most populous city, the race for County Attorney pits an incumbent prosecutor, Allister Adel, who has said she has an “ethical and legal obligation to enforce” laws criminalizing abortion, against a challenger, Julie Gunnigle, who has said she would not prosecute a woman’s healthcare decisions.

  • ROE V. WADE IN THE BALANCE — As confirmation hearings continue for Amy Coney Barrett, it is all but certain that there will soon be a 6-3 conservative majority on the U.S.  Supreme Court. The composition of the Court strongly suggests that Roe v Wade, the landmark case protecting a woman’s right to choose, is at risk of being overturned. That’s particularly frightening in Arizona, which still has extreme laws on the books that criminalize abortion and restrict access to contraceptives.

  • NEW POLL — A new polling memo from The Justice Collaborative Institute and Data for Progress, finds that a bipartisan majority of Maricopa County voters — 71% of Democrats and 51% of Republicans — would be more likely to vote for a prosecutor who pledges not to prosecute women for seeking an abortion:

  • IN HER OWN WORDS — Here is Julie Gunnigle, who while at Notre Dame Law School, had Amy Coney Barrett as a professor, talking about what this Maricopa County Attorney race means for reproductive rights:

  • CURRENT PROSECUTORS AGREE WITH GUNNIGLE — Over 40 elected county prosecutors and state Attorneys General recently signed an open letter, organized by Fair and Just Prosecution, expressing concern over a wave of attempts by Republican-controlled legislatures to pass restrictive abortion laws even with Roe v. Wade intact. Pledging to use their discretion to not prosecute women for their health care decisions, these elected prosecutors wrote:

“Not all of us agree on a personal or moral level on the issue of abortion. And not all of us are in states where women’s rights are threatened by statutes criminalizing abortion. What brings us together is our view that as prosecutors we should not and will not criminalize healthcare decisions such as these – and we believe it is our obligation as elected prosecutors charged with protecting the health and safety of all members of our community to make our views clear.”


THINGS WE ARE TRACKING:

  • Marijuana Legalization On The Ballot: The Appeal published an examination of ballot initiatives in Arizona, New Jersey, South Dakota, and Montana that would legalize marijuana for recreational use. Only Arizona’s initiative would directly tackle racial justice and invest in communities harmed by drug enforcement laws.

  • Eliseo Santana: Running for Sheriff. Pinellas County Sheriff candidate Eliseo Santana joined The Appeal to talk about his bid to become the Florida county’s top law enforcement official:

  • Turning Arizona Blue: The Appeal’s Meg O’Connor explores Democrats’ opportunity to break the Republican trifecta in Arizona for the first time in more than a decade, if they successfully flip two House seats and three Senate seats in next month’s election.

  • Primary Challengers Shaking Up Democratic Politics: In a recent episode with The Appeal, three insurgent candidates primarying sitting establishment Democrats in Minnesota, New York, and Oklahoma legislative races discuss how and why the party establishment is failing to meet the needs of working and vulnerable people.

  • Endorsement Alert: Kara Eastman, a social worker running to represent Nebraska’s 2nd Congressional District, was endorsed by Black Omaha leadership yesterday. Eastman’s Racial Justice Plan calls for systems-level changes like the implementation of universal healthcare, investing in Black and Brown communities, and demilitarizing the police. Meanwhile, her opponent, Rep. Don Bacon, refused to acknowledge the existence of systemic racism in a recent debate.

  • Endorsement Alert: The Austin American Statesman endorsed congressional challenger Julie Oliver, a lawyer and healthcare expert, who, as a teenage mother, relied on Medicare.

  • Speaking of Julie Oliver: She has 20 years of healthcare finance experience, and over the weekend, explained with a whiteboard and marker how to lower property taxes and provide medical care for all. Watch it here:

The Count: Trump’s Plot To Steal The Election

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.

The Count: Trump’s Plot To Steal The Election

The Count is a daily newsletter and live show from The Appeal and NowThis, focused on what happens in the scenario that the 2020 presidential race is too close to call on election night, President Donald Trump makes good on his promise to not accept the election results, and what we can do in the 77 days between election day and the inauguration to uphold our democracy.


President Donald Trump and his allies across the country are already laying the groundwork for their plans to steal the election.

Today, we’ll look at:

  • The Republican plan to treat established voter trends as fraudulent.
  • Election night and how Trump wants to stop the ballot count and claim victory.
  • Loopholes in the Electoral College system that allows Republican legislatures to support their preferred candidate when results are unclear—and their plan to make results unclear.

If you were forwarded this newsletter and would like to subscribe, sign up here.


THE DAILY COUNTDOWN.

  • 22 days until election day.
  • 57 days until the deadline for all ballots to be counted.
  • 63 days until electoral college slates send their votes to Congress.
  • 86 days until Congress counts electoral college votes.
  • 100 days until inauguration day.

TRUMP’S PLAN TO STEAL THE ELECTION HAS THREE PARTS.

Earlier this year, President Trump said the quiet part out loud, admitting that reforms designed to spur more people to vote, including increased early voting and mail-in voting, would harm him and the GOP: “you’d never have a Republican elected in this country again.” That’s why longstanding GOP voter suppression tactics such as closing polling locations, voter roll purges, and overly-restrictive voter ID laws aimed at restricting access to the ballot have only intensified this election cycle.

But there are three unique strategies that Trump plans to use to try to steal the election after votes have been cast. Those are the strategies that we are focused on today.


STEP 1: FALSELY CLAIM THAT THE “BLUE SHIFT” IS FRAUDULENT.

  • WHAT IS THE “BLUE SHIFT”? — Over the last two decades, votes counted after election night tend to be from Democratic voters, meaning that the election day count understates the actual percentage of votes that the Democrat candidate received in the election. Academics have dubbed this phenomenon the “blue shift,” and it is thought to be driven by the fact that Democratic voters are more likely to cast both provisional and mail-in ballots, which often take longer to process and count.
  • NATIONAL MAIL-IN VOTING INCREASES — In states that record this data, Democratic voters have already returned 1.4 million mail-in ballots in early voting, but only 653,000 Republicans have done so, which forecasts the potential of a “blue shift” again this year.
  • PA MAIL-IN VOTING INCREASES — In Pennsylvania, a crucial swing state, Democratic voters have requested mail-in ballots at a rate of 3 to 1 over Republicans. There could be as many as 10 times more mail-in votes in 2020 than in 2016. State law prohibits these from being processed until election day. These are signs pointing to a “blue shift” in Pennsylvania this year, a key swing state in the Presidential election.
  • “BLUE SHIFT” IN PA FOR MORE THAN A DECADE — Since 2004, the blue shift has resulted in every Democratic presidential candidate receiving over 22,000 votes in Pennsylvania between election night and the final results. Given the increased mail-in voting numbers this year, it’s likely that trend will not only continue but intensify in this election.
  • RECENT “BLUE SHIFT” IN AZ — In 2018, Republican candidate for the U.S. Senate Martha McSally was up by 15,403 votes after Election Day. However, after all of the ballots were processed and counted, McSally ultimately lost to Democratic candidate Kyrsten Sinema by 55,900 votes.
  • TRUMP PLAYBOOK: “BLUE SHIFT” = “BLUE STEAL” — Trump will mislabel this pedestrian phenomenon as fraud. Indeed, Steve Bannon, President Trump’s former chief strategist, is literally on a cross-country media tour, spreading the false idea that Democrats are trying to “steal this election from President Trump’s game day vote” and that the “blue shift” is actually the “blue steal.”

“They keep referring to the election as like game day … like this is a football match, as opposed to a decision regarding the future of our nation. They’re trying to convince people that the one true vote count happens on Election Day, which is completely divorced from the reality of how people are voting and what is necessary to count like all of the millions of votes in this nation.”—The Count co-host Emily Galvin-Almanza


STEP 2: STOP COUNTING VOTES AS EARLY AS POSSIBLE.

  • TRUMP WILL USE THE “RED MIRAGE” — If Trump and the GOP are leading in key swing states on election night, because the disproportionately Democratic mail-in votes are counted after Election Day, then Trump will use this “red mirage” to declare victory early and call for the ballot count to be halted, under the guise of preventing fraud.
  • TRUMP’S DONE THIS BEFORE — In 2018, in line with the “Blue Shift” phenomenon, Democratic candidates in Florida started making large gains in both a U.S. Senate and a gubernatorial race during post-Election Day counting (though neither candidate ultimately won). President Trump tweeted: “The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible-ballots massively infected. Must go with Election Night!”
  • MEDIA COVERAGE OF ELECTION NIGHT PLAYS INTO TRUMP’S HANDS — Because the media covers election night like it’s the Super Bowl, and each network desires to be the first to call a winner, Americans have become accustomed to election winners being called on election night, even though there may be millions of votes left to count on election night. But this practice, and the public expectation it creates for knowing the winner on Election Day, could feed into Trump’s strategy of calling the race for himself on November 3rd, and then claiming that any post Election Day counting is fraudulent.
  • THE GOP STRATEGY ISN’T JUST BLUSTER — In 2000, Al Gore won the popular vote but needed Florida’s Electoral College votes to take the presidency. George W. Bush’s campaign sued to stop a hand recount of ballots, and the U.S. Supreme Court ruled in Bush’s favor. The lawsuit bypassed the will of the voters, as a final analysis found Gore had actually won the most votes in Florida.

STEP 3: BYPASS THE WILL OF VOTERS BY SENDING FRAUDULENT SLATES OF TRUMP ELECTORS TO CONGRESS.

  • SENDING FRAUDULENT ELECTORS — Traditionally, the candidate who receives the most votes in a state has their slate of electors sent to vote for them to Congress. Typically, that slate is selected by the governor. But state legislatures can also send electors. And there’s no clear mechanism that stops legislatures or governors from sending electors to support their candidate.
  • THIS COULD LEAD TO THE NIGHTMARE SCENARIO — A Democratic governor, based on vote totals, could select electors that will cast their votes for Biden. But if that state has a Republican-controlled legislature, lawmakers, citing “fraud” in the aftermath of a “red mirage” on election night could select a separate slate of electors that would support Trump. This scenario is most worrisome in Michigan, Pennsylvania, and Wisconsin–three crucial swing states with a Democratic Governor and a Republican-controlled legislature.
  • COMPETING ELECTORS — On Dec. 14, these two slates of electors — the official set from the Democratic governor and the fraudulent set from the Republican-controlled legislatures — would meet separately and cast their electoral votes for the two competing candidates, and send those competing votes to Congress.
  • ELECTORAL COUNT ACT IS FAMOUSLY INCOHERENT — It’s up to the newly elected Congress—not the current Congress—to count the slates of elector votes on Jan. 6. There are multiple scenarios that could play out in Congress, and we will dive into them in future newsletters. For now, let’s just say one thing clearly: The 1877 Electoral Count Act, created to resolve such disputes, is famously incoherent and legal scholars disagree over how to interpret it and whether it’s even constitutional.
  • PRESIDENT NANCY PELOSI? — If there is still no clear winner by Inauguration Day, on January 20 the House Speaker, Nancy Pelosi, becomes acting president. Pelosi is reportedly preparing for these scenarios, including how to respond to Republican legislatures sending their own slates of electors.
  • COMPETING ELECTOR SLATES HAS HAPPENED BEFORE… — Preceding the passage of the Electoral Count Act, the 1876 election between Democrat Samuel Tilden and Republican Rutherford B. Hayes saw three states send rival slates of electors to Congress. Because no law at the time addressed the question of how Congress should resolve this kind of dispute, the count was settled via a closed door meeting of a 15-member commission, after which Democrats ultimately agreed to accept Hayes as president in exchange for a withdrawal of federal troops from the South and an end to Reconstruction.
  • …AND IT CAN HAPPEN AGAIN — The 1876 election shows how important it is for the Democratic party, and Democratic members of Congress, to deny illegitimate Trump electors. As The Count co-host Alana Sivin said, “if the Democratic party isn’t strong we could end up with policies that really hurt people. You know in the election of 1876, the true winner allowed himself to get strong-armed into getting rid of civil rights for Black Americans.”


TRUMP’S PLAN TO STEAL THE ELECTION CAN BE STOPPED.  

In future newsletters, we will interview experts and dive deep into the mechanics of how to prevent a stolen election. For now, though, remember this: The single best and most effective way to ensure a fair and free election–and increase the odds of avoiding this whole nightmare scenario–is massive voter mobilization and turnout. An overwhelming margin of victory, especially in key swing states, will drastically undermine any attempt to steal the election away from the will of the voters.


WHAT WE ARE TRACKING

  • Republicans are spending $20 million on litigation, which is twice as much as Democrats’ are spending this year, and an unprecedented level of legal costs for an election cycle. The RNC is involved in 40 cases so far.
  • Trump’s voter intimidation rhetoric is so strong that Republican poll watchers are being reminded in training tapes to “behave yourself” and to not literally challenge every ballot. But in Montana, training tapes included attacks on mail-in voting by Democrats and the need to “monitor neighborhoods.”
  • Facebook is also not impressed, and has banned content that promotes voter intimidation and military-style language when talking about poll watchers. Last month, Donald Trump Jr. called for followers to “enlist” in an “army for Trump” and become poll watchers.
  • Rational fear over panic. Ed Kilgore wrote for Intelligencer about the need for “rational fear” rather than panic over Trump’s plan to steal the election. He also made the point that he’d “feel much better if we were hearing a chorus of Republican elected officials and conservative opinion leaders sharply rebuking the president’s war on voting by mail and distancing themselves from any post-election effort to contest the results.”
  • Justified Fear. The fear seems justified when we’re reminded that wargaming of the election turned up street-level violence in almost every scenario. The only situation that escaped this fate? A landslide for Biden.
  • So far 5.5 million people have voted early. That’s an astounding 73 times more than at this point in the 2016 election.

Coronavirus In Jails And Prisons

A ’freedom fighter’ reports from the San Quentin prisons on Twitter, the Fifth Circuit Court of Appeals reverses a ruling made to protect elderly prisoners, and a class-action lawsuit seeks $400 million from the state of Delaware for ignoring basic COVID-19 precautions.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

A ’freedom fighter’ reports from the San Quentin prisons on Twitter, the Fifth Circuit Court of Appeals reverses a ruling made to protect elderly prisoners, and a class-action lawsuit seeks $400 million from the state of Delaware for ignoring basic COVID-19 precautions.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


In his Twitter bio, he describes himself as “Freedom fighter. Incarcerated human being reporting from inside of a prison with a contraband cell phone. Trapped in a petri dish.” As COVID-19 tore through California’s San Quentin prison in June, @RailroadUnderg1 documented the outbreak—alerting followers about its beginnings when the California Department of Corrections and Rehabilitation was denying there were any cases—and his own bout with the virus.

“‘Immune compromised’ taped onto the cell doors of the elderly people in here. I didnt have the heart to tell them that a sign isnt gonna stop the virus. #COVID19 #LockdownFailed,” he tweeted on June 23.

On July 8: “3 days of being curled into a ball fighting off the worse sickness of my life. The hardest part was having to tell my family and hearing them cry. If i didn’t have a cellphone they would’ve never known i was i sick.” And then on Sept. 5: “My greatest fear in prison is not knowing. Not knowing when I will make it home. Whether my parents will pass while im in prison. Now with #COVIDー19 in prison, its not knowing whens the next time I can shower. Or the next time i can order food or soap. This is an SOS.” 

This week, Okayplayer published a lengthy Q&A with @RailroadUnderg1, who has been in prison for more than three years. He says he “fought tooth and nail” to be transferred to San Quentin, which he describes as “the Harvard of prisons” because of the educational and job-training opportunities the prison traditionally offers. “You came here to change your life,” he told interviewer Tahir Asad. But all of those programs have been shut down since March.

He describes his experience with COVID-19 in detail, describing the physical and mental anguish it has caused. He lost two of his friends to the virus and another is currently hospitalized and in critical condition:

“They didn’t care that no matter how much work I’ve done to rehabilitate myself, how long I’ve been in prison already and how ready I am to come home, they would rather continue to profit off my body than release me to my family. I think that was the part that hurt me the most. I feel like my soul was hurt more than I was physically hurt when I caught COVID because it made me realize how little value my life had.”


Last week, federal Judge Keith Ellison ordered Texas corrections officials to enact basic protective measures to keep people in the Wallace Pack Unit safe from COVID-19. Texas Attorney General Ken Paxton appealed the ruling, and, on Wednesday, the Fifth Circuit Court of Appeals put a temporary halt on Ellison’s order while it reviews the case. 

In his 84-page ruling, Ellison accused prison officials of lying, ignoring the recommendations of health experts, and creating what Ellison described as a “human tragedy.” Testimony in a July trial included accounts of how disabled prisoners—blind, paralyzed, wheelchair-bound—were required to clean and sanitize their own dorms. One prison warden testified that a wheelchair-bound janitor “could put a broom against his neck and push it with a wheelchair.”

Since April, at least 505 people at the Houston-area prison for elderly inmates have tested positive for the virus and 19 have died.


➤ The Marshall Project’s Keri Blakinger and Joseph Neff found that between March and May, the Federal Bureau of Prisons (BOP) granted only 11 of nearly 11,000 requests for compassionate release due to COVID-19. “Time and again, the only way prisoners were able to win compassionate release was to take the bureau to court to fight the wardens’ denials,” they write. Among the people whose requests were denied was 56-year-old cancer patient Marie Neba. Neba, who had three children, was one of six women at the Carswell federal prison, in Ft. Worth, Texas, who died from COVID-19 amid an outbreak in July.

➤ Sixty-seven men incarcerated in Delaware’s Sussex Correctional Institution filed a federal class-action lawsuit this week, arguing that state officials failed to take necessary precautions to prevent an outbreak. More than 300 Sussex prisoners, about one-third of the population, contracted the virus and 12 died. The lawsuit demands that the state pay the men $400 million for inflicting cruel and unusual punishment.

➤ Massachusetts public defenders are calling for widespread coronavirus testing of people in state prisons and jails, WBUR reports. The demand comes after outbreaks at the Middleton Jail in Essex County, where 139 incarcerated people have tested positive, and the Massachusetts Alcohol and Substance Abuse Center (MASAC), in Plymouth, where 28 incarcerated men and 11 employees also tested positive. The state’s Department of Correction told WBUR that they’ve engaged in “strategic testing,” which has turned up only five new cases in state prisons since July.


As part of our ongoing effort to track the coronavirus in jails, prisons, and juvenile-detention facilities, we’ve been mapping facilities that are currently reporting at least two active infections. (Hover your cursor over a dot to see the facility’s name.) Wisconsin continues to grapple with outbreaks in its prisons—the state’s Department of Corrections is currently reporting nearly 1,000 active cases and, this week, confirmed the deaths of two incarcerated people. But state officials refuse to say how many more have died. In Texas, 18 of the state’s 32 county jail systems are reporting at least three active cases of COVID-19, according to a tally by the Texas Commission on Jail Standards. The report, released Oct. 8, reveals that 570 people in Texas jails currently have COVID-19, with 313 tests pending, and more than 6,500 people have been quarantined as a precaution. 

The Count #1

Launched alongside our new daily show The Count, we’re focusing on what happens in the scenario that the 2020 presidential race will be too close to call on election night, that President Donald Trump makes good on his promise to not accept the election results—and what we can do in the 77 days between election day and the inauguration to uphold our democracy. 

The Count #1

Launched alongside our new daily show The Count, we’re focusing on what happens in the scenario that the 2020 presidential race will be too close to call on election night, that President Donald Trump makes good on his promise to not accept the election results—and what we can do in the 77 days between election day and the inauguration to uphold our democracy. 


Our new show and newsletter will help you prepare, track Republicans’ efforts to steal the election, and share what each of us can and must do to protect the will of the people. Watch our first episode here.

If you were forwarded this newsletter and would like to subscribe, sign up here.

THE DAILY COUNTDOWN

  • 25 days until election day.
  • 60 days until the deadline for all ballots to be counted.
  • 66 days until electoral college slates send their votes to Congress.
  • 89 days until Congress counts electoral college votes.
  • 103 days until inauguration day.

REPUBLICANS HAVE A HISTORY OF CHEATING

Republicans are masters of voter suppression, having spent decades restricting the vote and voting power of those who tend to vote Democratic. A small sampling of their nefarious efforts:


VOTER INTIMIDATION IS A PROMINENT PART OF THEIR STRATEGY

After egregious violations, the courts took steps to limit Republican voter intimidation. But this election cycle, the floodgates are back open.

In 1981, the Republican National Committee helped orchestrate one of the most overt voter intimidation efforts America has ever seen. Together with New Jersey Republicans, the RNC hired off-duty sheriffs and police officers, who wore revolvers and “National Ballot Security Task Force” armbands, to patrol Black and Hispanic neighborhoods, successfully turning away voters from the polls.

The Democratic National Committee sued the RNC, and a federal court issued a consent decree to curb the RNC’s voter intimidation tactics. In the years since, Republicans violated the decree numerous times, and so it was continually extended. But, in 2018, a federal judge allowed the consent decree to expire. So, during this election season, the RNC is free to engage in so-called “ballot security” efforts without judicial oversight.

As a result:

  • The Trump campaign is recruiting what Republicans are calling an “army” of 50,000 poll watchers, who Trump has implored “to go into the polls and watch very carefully.”
  • His allies are getting into the action too, with militant groups recruiting thousands of police, soldiers, and veterans.

This is only one part of the strategy. The Republicans’ systematic efforts are playing out right now around the country: 

  • In Texas, the state’s most populous county isn’t allowed to send applications for mail-in ballots to voters, and there will be only one ballot drop-off location for an area that’s home to 4.7 million people.
  • In Pennsylvania, ballots returned without a second “secrecy” envelope will be rejected, which could affect 100,000 voters.
  • In North Carolina, the rejection rate for Black voters’ mail-in ballots by late September was nearly three times greater than the rejection of white voters’ mail-in ballots.
  • In Iowa, a Republican lawsuit has led to more than 100,000 ballot requests from this year being invalidated.
  • In Texas, Louisiana, Mississippi, Tennessee, Indiana, and South Carolina, voters will not be allowed to use a deadly pandemic as a reason to vote by mail.

WE KNOW THE TRUMP PLAYBOOK FOR STEALING THE ELECTION

During the 2020 election, Republicans will not only be leaning on their traditional tricks—voter intimidation, suppression, and poll closures—but executing on a well-planned strategy designed to harness the unique moment of voting in the middle of a pandemic.

Trump, his campaign, and the Republican Party have stepped up their efforts to disrupt the election by intimidating voters, purging voter rolls, and closing polling stations. But the greatest threat to a free and fair election is their plan to:

  • Create chaos and sow doubt in the election by declaring victory on election night.
  • As overwhelmingly Democratic mail-in ballots are counted in the days and weeks after the election, assert without evidence that Democrats are stealing the election, that the mail-in ballots are fraudulent, and that the election night results must be certified.
  • Prevent Democratic votes, especially mail-in ballots, in swing states from being fully and accurately counted by disqualifying ballots with legal and administrative challenges, delaying the count past established deadlines, and even physically disrupting the ballot count.
  • Convince Republican legislators to overturn the results of the election by appointing fraudulent slates of Trump electors in order to take the outcome of the election away from voters.

To summarize, this won’t be a coup fought with guns and tanks in the street, but, as The Count co-host Emily Galvin-Almanza has said: “We’re talking about a slow motion coup disguised as really boring lawsuits and really boring arcane federal procedures … which is, if anything, more terrifying.”

THE TRUMP PLAN TO STEAL THE 2020 ELECTION IS NOT A SECRET

Trump and the Republicans are openly talking about their plans and intentions for 2020, and have been for months. Via The Atlanticthe idea that Republicans are considering this dramatic move comes straight from the party“According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.” 

But, seriously, they are not trying to hide it:

  • “The only way they can take this election away from us is if this is a rigged election.”—Trump at the RNC on Aug 24.
  • “We’re going to have to see what happens … Get rid of the ballots and there won’t be a transfer, frankly; there’ll be a continuation. The ballots are out of control.”—Trump on Sep 23 when asked about a peaceful transition of power.
  • “So we have to be very careful with the ballots. The ballots—that’s a whole big scam.”—Trump’s Sep 24 answer to whether election results are only legitimate if he wins.
  • “I’m counting on them [the Supreme Court] to look at the ballots, definitely.”—Trump during the first debate on Sep 29.

And when asked on Wednesday night during the Vice Presidential debate what he would do if Trump refuses to accept a peaceful transfer of power, Mike Pence evaded the question and repeated misinformation about voter fraud.


NO, YOU ARE THE CHEATER.  

Not only are Trump and the Republicans not hiding their slow coup playbook, but they are using a go-to tactic of autocrats around the globe: accuse your opponent of the cheating that you are in fact doing. 

Just last week, former chief strategist to President Trump, Steve Bannon, accused Democrats of trying to “steal” the election.

  • “We have to stop this effort to steal the election. You know, the plot to steal 2020.”—Bannon on The John Fredericks Show on Sep 29.

“It’s kind of like when you’re dating a cheater and the cheater says that you’re cheating because that’s what they do.” –The Count co-host Alana Sivin

THE MOST IMPORTANT TAKEAWAY: WE SHOULD BELIEVE TRUMP WHEN HE SAYS HE’LL STEAL THE ELECTION

Masha Gessen, a Russian-American journalist and author who has spent much of their career covering President Vladimir Putin’s Russia, wrote a seminal piece in 2016 on the rules of surviving an autocracy.

One of these rules is crucial for ensuring that we don’t miss the flashing signs that Trump wants to steal the election: Rule #1: Believe the autocrat. Here’s what Gessen wrote two days after the 2016 election:

  • “He means what he says. Whenever you find yourself thinking, or hear others claiming, that he is exaggerating, that is our innate tendency to reach for a rationalization. This will happen often: humans seem to have evolved to practice denial when confronted publicly with the unacceptable. Back in the 1930s, The New York Times assured its readers that Hitler’s anti-Semitism was all posture.”—The New York Review of Books

HERE’S THE BACKGROUND:

  • This might all sound highly improbable, but 2020 should show us that these kinds of “low-probability, high-impact events” can not only happen but needs to be planned for in order to avoid the worst potential outcomes.
  • If this feels overwhelming, Perry Bacon Jr. at FiveThirtyEight agrees that it’s “totally appropriate for people to, well, freak out” about the Republican plan to undermine the electoral process.
  • For more details, Barton Gellman took an astonishing look in The Atlantic at Trump’s election plans and the failures of the system to account for a president that won’t concede. “Let us not hedge about one thing. Donald Trump may win or lose, but he will never concede,” he wrote.
  • Widespread voter fraud is part of a purposeful disinformation campaign that has existed for decades, and according to an investigation by New York Times Magazine “it is remarkable, but not at all accidental, that a narrative built from minor incidents, gross exaggeration and outright fabrication is now at the center of the effort to re-elect the president.”
  • From Florida to California, the RNC is executing an extremely well-funded campaign to challenge voter access. But what’s surprising about this spate of lawsuits is the decision to take on states like California, where they have almost no chance of winning, which shows “how aggressive and deep-pocketed the GOP legal strategy is.
  • Changes are also happening at the Justice Department. Abandoning a long-standing policy of not interfering in elections, the DOJ will now allow exceptions to do with suspected fraud by postal workers or the military. U.S. attorney’s offices can now take “public investigative steps” before polls close, despite the harm that could cause to election integrity.
  • Even without plans to exploit loopholes, the Electoral College benefits Republicans. If a Republican presidential candidate narrowly loses the popular vote, they would still win the White House 65% of the time.

Our Future On The Ballot #3

Heading into the highest-stakes election of our lifetimes, The Appeal launched a newsletter called Our Future on the Ballot covering insurgent candidates across the country, their elections, and what’s at stake.

Carroll Fife for Oakland City Council Facebook page

Our Future On The Ballot #3

Heading into the highest-stakes election of our lifetimes, The Appeal launched a newsletter called Our Future on the Ballot covering insurgent candidates across the country, their elections, and what’s at stake.


In today’s issue, we’ll cover:

  • In cities across the country, housing as a human right is on the ballot this November. Meet Carroll Fife, a leader of the Moms 4 Housing Movement, who is running for a spot on the Oakland City Council.
  • Plus: Senator Elizabeth Warren endorses Oklahoma criminal justice advocate, Mauree Tuner in her bid for a statehouse seat; Deedra Abboud looks to shake up the historically Republican Maricopa County Board of Supervisors; and more news from around the country.

If you were forwarded this newsletter and would like to subscribe, sign up here. 


CARROLL FIFE, A LEADER OF THE MOMS 4 HOUSING MOVEMENT, RUNNING FOR OAKLAND CITY COUNCIL.

  • OAKLAND MOMS RECLAIM AN UNOCCUPIED HOUSE — In December 2019, a group of unhoused mothers occupied a vacant three-story house on Magnolia Street in Oakland. At the time, the house was owned by a mega-landlord, Wedgewood Properties.

  • SHERIFF EVICTS MOTHERS  — As Wedgewood Properties sought to evict the mothers, over 300 supporters gathered in solidarity outside what became known as “Moms House.” In January 2020, Alameda County Sheriff’s Deputies, dressed in military-style garb, rolled up in armored vehicles to “Moms House” to enforce an eviction order on the moms.

  • RETURN TO MAGNOLIA STREET — The moms were able to build enough support from donors to purchase the Magnolia Street house through the Oakland Community Land Trust which allowed the mothers to stay in the home.
  • FROM PROTEST TO POLICY CHANGE — Fife, who has experienced periods of homelessness, leads the Oakland chapter of Alliance of Californians for Community Empowerment (ACCE). She’s been an early and continuous supporter of the moms who took over the Magnolia street home. As the moms movement began to amass more media attention, Fife and ACCE worked with Oakland City Council member Nikki Fortunato Bas to pass the Tenants Opportunity to Purchase Act, which prioritizes tenants as prospective buyers of the home they are living in.

FROM MOVEMENT LEADER TO MOVEMENT CANDIDATE. 

  • FIFE ANNOUNCES HER CANDIDACY FOR OAKLAND CITY COUNCIL — Fife’s progressive credentials are unimpeachable — she’s the director of ACCE Oakland, she founded the Black Women in Elected Leadership PAC, she was elected to Oakland NAACP’s Executive Committee, and she served as a two-time delegate for presidential candidate Bernie Sanders. In July 2020, she announced her candidacy for Oakland City Council, running on a platform with three primary planks — a Black New Deal, Defunding the Oakland Police Department, and Meeting The Housing Crisis Head On.

  • “A MOVEMENT BUILDER, AN ORGANIZER” — Fife recently joined The Appeal’s Our Future on the Ballot to discuss her candidacy for Council, which included drawing a clear distinction between herself and incumbent politicians:

“I’m a movement builder, I’m an organizer. From the population of people that I’m seeking to serve. I’m not seeking to serve the one percent or the Police Officers Association. I don’t receive donations from them or any development.” 

  • DIVEST AND REINVEST — Speaking of police officers, shifting resources away from the Oakland Police Department is central to her vision for a safer, more equitable Oakland. Fife argued in an interview with The Appeal that there is no evidence the city’s police budget is “actually giving us back the type of returns that one might think with that investment.”
  • FIFE’S HOUSING AS A HUMAN RIGHT PLAN — Her plan includes: creating a publicly-funded program to employ Oakland residents to convert abandoned homes into affordable housing, passing the Moms 4 Housing Act that allows tenants to purchase the homes they live in, expanding land trusts, and establishing a Right to Return for displaced Oakland residents.
  • CALIFORNIANS AGREE THAT HOUSING IS A HUMAN RIGHT — The Justice Collaborative Institute released a report with Moms 4 Housing which found that a majority of Californians — 56% of all respondents, including most Republicans — support an amendment to the California constitution to establish that housing is a fundamental human right.
  • FIFE TEAMS UP WITH SENATOR ELIZABETH WARREN — In July, Fife joined The Briefing along with Senator Elizabeth Warren to discuss why the country’s housing crisis is a racial justice failure. Following their conversation, Warren and Fife co-authored an op-ed in the Washington Post highlighting predatory private equity housing speculation.

  • GOOD TROUBLE — Eric Tars, Legal Director of the National Homelessness Law Center, told The Appeal: “Carroll Fife is bold and visionary and her work with Moms 4 Housing has been transformative in the national movement to make housing a human right. 50 years from now, we will look back at the Mom’s House with the same reverence we hold for the Edmund Pettus bridge in Selma, understanding that Carroll, like the late Rep. John Lewis, was someone who was ready to get into good trouble, and work inside and outside the system as needed, for the cause of human rights.”

LIKE FIFE, EXPERIENCING HOMELESSNESS HAS FUELED OTHER MOVEMENT CANDIDATES:

  • JULIE OLIVER (@JulieOliverTX) — is running for Congress on a platform to bring Medicare for All to Austin and central Texas. She also experienced homelessness herself, living where she could after she left high school early. She went back and completed high school, college, and law school while raising a child. She wants to address the housing crisis by building low-income housing, ending exclusionary zoning laws, and funding Community Land Trusts to invest in marginalized and displaced communities.
  • JACKIE FIELDER (@JackieFielder_) — As an Indigenous organizer running to represent the 11th district in the California Senate, and a person who has herself experienced homelessness, Fielder believes housing is a human right and would build toward that right with her “California Homes for All” plan. Her plan would make massive investments in building new social housing, revitalizing public housing, and using community land trusts to prevent houses from being flipped and displacing residents.
  • TERRY TAPLIN (@TaplinTerry) — A community organizer who is also a primary care provider for his infirm mother, Taplin is running for District 2 of the Berkeley City Council on a local Green New Deal that prioritizes protecting households from displacement, increasing housing production for low and middle-income families, and empowering community land trusts. He also comes to the issue of housing from personal experience: he and his partner lost their rent-controlled apartment just before their wedding.

THINGS WE ARE TRACKING:

  • Deedra Abboud, an attorney and activist running for District 2 of the Maricopa County Board of Supervisors joined Our Future On the Ballot on Wednesday to discuss the immense power of the board over issues spanning from housing, immigration, corruption, to the Maricopa County Sheriff’s Office budget in the fourth largest county in the nation.
  • L.A. DA Race: America’s most important local election this year is in Los Angeles, where a tough on crime incumbent prosecutor faces a challenge from a reformer pledging to transform the office. The Appeal profiled the race yesterday.
  • New Orleans DA Race: The Appeal profiled the race to replace Leon Cannizzaro, New Orleans’ notorious District Attorney.
  • OR Measure 109: Oregon voters will decide whether to legalize psilocybin for medical use this November. The Briefing discussed the ballot measure earlier this week.
  • CA Proposition 17: The Briefing discussed the statewide impact of Proposition 17, which would allow 55,000 people currently on parole to vote.
  • AZ Proposition 207: The Arizona Republic, the largest newspaper in Arizona, just endorsed a voter initiative to legalize marijuana.

Our Future On The Ballot #2

Heading into the highest-stakes election of our lifetimes, The Appeal launched a newsletter called Our Future on the Ballot covering insurgent candidates across the country, their elections, and what’s at stake.

Nithya Raman speaks onstage as Marie Claire honors Hollywood's Change Makers on March 12, 2019 in Los Angeles, California
Photo by Amy Sussman/Getty Images for Marie Claire

Our Future On The Ballot #2

Heading into the highest-stakes election of our lifetimes, The Appeal launched a newsletter called Our Future on the Ballot covering insurgent candidates across the country, their elections, and what’s at stake.


In today’s issue, we’ll cover:

  • Pivotal races in Los Angeles, where candidates are vying to shape the future of public safety in the nation’s most populous county. LA’s long history of abusive, lethal, and racist policing has reared its head once again in the aftermath of George Floyd’s death, and the demand for transformative change is at a tipping point. Meet three candidates for district attorney, board of supervisors, and city council who are committed to real change.
  • Plus: The Austin-American Statesman endorses reform DA candidate José Garza; Marquita Bradshaw, the Democratic nominee for US Senate in Tennessee, appeared on a live town hall with Sunrise Movement; and other news from key elections across the country.

If you were forwarded this newsletter and would like to subscribe, sign up here. 


THERE IS A LONG HISTORY OF ABUSIVE, LETHAL, AND RACIST POLICING IN LOS ANGELES. MEET THREE CANDIDATES PROMISING TO ADDRESS IT HEAD ON.

In 2015, LAPD Officer Clifford Proctor shot and killed Brendan Glenn during a scuffle just off the Venice Boardwalk. The disturbing incident was captured on camera, and showed what seemed to be a clear-cut case of an unjustified shooting. Even the LAPD chief at the time called for Proctor to be prosecuted, but Los Angeles County District Attorney Jackie Lacey ultimately declined to press charges. Glenn’s shooting — and the subsequent response — were just a short chapter in a much longer history of police brutality and misconduct in LA, which has spanned across the sheriff’s department, the LAPD, and the smaller police forces that operate within LA County.

  • A LEGACY OF SCANDAL — LA law enforcement’s notorious history includes the Rodney King beating and the Rampart Scandal, in which LAPD officers were shown to have made false arrests and given perjured testimony in a plot to frame innocent people. More recently, we’ve seen explosive controversies over tattooed gangs operating within the LA Sheriff’s Department and an LAPD unit that was found to be falsely labeling people as gang members.
  • A CULTURE OF IMPUNITY — There is another pattern: Officers involved in misconduct, and especially those responsible for killing civilians, have rarely been held accountable. This is a failure that extends from the Los Angeles County District Attorney Jackie Lacey’s office all the way down to local government officials who are responsible for police funding and oversight.
  • BUT POLICE AND JAIL BUDGETS KEEP GROWING — The LA city council and mayor have thrown heaps of money at the LAPD, even as they’ve neglected investments in mental health and other basic services. The LA County Board of Supervisors has continually rubber-stamped massive amounts of funding for the sheriff’s department, including huge investments toward the jail, reflecting a misguided prioritization of arrests and incarceration over treatment and prevention.
  • ENORMOUS STAKES — Los Angeles County is home to more than 10 million people — a larger population than 40 states. The county has the nation’s largest jail system and accounts for around one-third of California’s prison population. Around 14,000 people are locked up in the county jail every night, and almost 30 percent of people held there suffer from mental illness.

“THE SINGLE MOST IMPORTANT D.A. RACE IN THE COUNTRY” 

Los Angeles County District Attorney Jackie Lacey is seeking a third term at the helm of the nation’s largest prosecutor’s office. She’s running against George Gascón, the former San Francisco DA and one-time LAPD beat cop. Lacey’s decision not to press charges in the Glenn case has emerged as a sticking point in the race, reminding critics of her longstanding unwillingness to rein in police violence and misconduct. The size of Los Angeles, the legacy of abuse by the local police, and the lack of accountability for police from the prosecutor’s office has led Patrisse Cullors, co-founder of Black Lives Matter, to call the race, “the single most important DA race in the country.” Today, The Appeal published an overview of how the dynamics of this race have shifted dramatically in the aftermath of George Floyd’s murder.

  • HUNDREDS OF POLICE KILLINGS, NO ACCOUNTABILITY — Lacey hasn’t charged a single LAPD officer for a shooting under her tenure since 2012. Activists have held weekly protests outside the DA’s office and occasionally in front of Lacey’s home which have attracted thousands of protesters at once. During one demonstration this spring, Lacey’s husband pulled a gun and threatened to shoot unarmed, peaceful protestors.
  • AN OBSTACLE TO REFORM — Lacey has routinely opposed legislative efforts to bring increased accountability and transparency to law enforcement, as well as measures to scale back the incarceration crisis in California. Lacey was a chief opponent of Proposition 47, a statewide ballot initiative that Gascón co-authored to reduce punishments for certain drug crimes and shrink California’s bloated prison population.
  • COZY WITH THE COPS — Law enforcement groups have also found an ally in Lacey, as evidenced by multiple recent $1 million-plus expenditures by organizations in favor of her campaign and against Gascón’s. All together, Lacey has now taken over $5 million from law enforcement unions. Gascón has rejected contributions from law enforcement and during a recent interview with The Appeal called Lacey “conflicted by the level of resources she’s being provided,” which has caused her to ”look the other way.”

  • A SLIPPING INCUMBENT — Lacey has lost a number of high-profile endorsements in recent weeks. Mayor Eric Garcetti recently walked back his endorsement of Lacey in an interview with The Appeal and later announced he was supporting Gascón. California Governor Gavin Newsom has also endorsed Gascón.
  • A CONTRAST OF RECORDS — Under Lacey, LA’s incarceration rate is four-times higher than the incarceration rate in San Francisco was under Gascón. Lacey’s office has also resisted key mental health diversion efforts that Gascón had successfully implemented in San Francisco. Lacey continues to support the death penalty, whereas Gascón has been a vocal opponent since 2014.
  • A NEW WAY FORWARD — Gascón recently created a progressive bipartisan coalition, the Prosecutors Alliance of California, which has presented him with a new opportunity to take a front seat as a champion for statewide policy reform. For more on the Alliance and their efforts to counter the powerful California District Attorneys Association’s anti-reform stances, see The Briefing’s episode, Why Prosecutors Are Forming a Progressive Association:

POLICING SHOULD NOT BE AN “ARTIFICIAL BACKSTOP FOR OTHER FAILED SYSTEMS” IN LA COUNTY.

Budgets are moral documents that reflect the priorities of the leaders who craft them. The LA County Sheriff’s Department has a colossal budget that tops out at $3.3 billion dollars a year. The District Attorney’s office draws more than $350 million each year for its budget. And with these deep investments in policing and prosecution coming at the expense of other basic services that people need to thrive, it’s clear where officials on the LA County Board of Supervisors have stood.

California state Sen. Holly Mitchell is currently running for an open seat on the LA County Board of Supervisors, where she has promised to take a different approach to county funding priorities, including for the District Attorney, Sheriff, and county jail. Mitchell is facing off against Herb Wesson, who is currently on the L.A. city council, and has only recently begun talking about the need for police reform.

  • NOT FOR SALE — Mitchell refuses to accept campaign contributions from police unions, reasoning that “it is time for leadership that is free from corruption and influence.” By contrast, Wesson’s campaign has received at least $50,000 in contributions from the Los Angeles Police union this year.
  • SHIFTING RESOURCES FROM POLICE TO BUILD COMMUNITY SAFETY — Mitchell has spoken about the need to invest in alternatives to policing, and supports Measure J, a county charter amendment on the November ballot that would require the board of supervisors to spend a minimum of 10% of unrestricted general funds on community investment. The measure specifically declares that this money cannot be spent on law enforcement, and would catalyze a substantial shift from over-investment in punishment and instead toward housing, mental health programs, diversion, employment opportunities, and social services. Mitchell joined The Appeal’s Our Future on the Ballot on Monday and explained why she believes LA County must reduce its reliance on law enforcement and incarceration, which, in her words, have become the “artificial backstop… for other failed systems.”

  • A “BORN-AGAIN REFORMER” — Wesson’s 15-year career on the city council is something of a mixed bag on policing. His most vocal support for a new approach to public safety has come this year, after he stepped down as council president to focus on his campaign for county supervisor. Over the summer, he supported a measure to divert service calls involving non-violent incidents away from the LAPD and toward a new unit of unarmed service providers trained in crisis intervention. But as recently as 2017, Wesson carried water for the local police union by pushing through a charter amendment that weakened the disciplinary system for officer misconduct, and in general has faced criticism for failing to uphold his promise to push the city council toward a bolder approach on police discipline, oversight and reform. In a recent endorsement of Mitchell, the LA Times wrote of her challenger: “Wesson has become somewhat of a born-again reformer, pushing programs to beef up human services, address racial and economic inequity and curb abusive policing. These moves show Wesson at both his best and his worst: He hears what the public wants and he responds — but not until the problem is unavoidable.”

INVESTING IN COMMUNITY PUBLIC SAFETY ON THE LA CITY COUNCIL. 

The LA city council plays a crucial role in funding the Los Angeles Police Department, which last year had an operating budget of $1.8 billion. After George Floyd’s murder, in the middle of protests across the country, Mayor Eric Garcetti proposed a budget to the city council that would have significantly increased LAPD funding.

BLM and others responded with the People’s Budget, which would have implemented a dramatic fiscal shift away from law enforcement and toward universal aid and social services, housing and neighborhood development, and reimagined community safety. Under pressure,

Garcetti ultimately approved cuts to the police budget. The city council has since taken up a range of ideas, from transitioning duties to non-law enforcement first responders, to disbanding traffic police, to commissioning a report on LAPD misconduct during recent protests.

In a critical city council race, urban planner and community advocate Nithya Raman is locked in a tight race against incumbent City Councilman David Ryu, and her candidacy appears to have forced Ryu to embrace some of her most ambitious policy proposals — including support for non-law enforcement first responders and a rejection of police union funding. “He’s chasing whatever he thinks is politically expedient,” a political consultant recently said of Ryu in an interview with the LA Times.

“Rather than leading with, you know, LAPD first, LAPD continues to be the  primary and most frequent point of contact between residents experiencing homelessness and the city, I want to lead with outreach workers and services first.”

  • MAKING THE CITY COUNCIL WORK FOR PEOPLE, NOT AGAINST THEM — For Raman, the issue of over-policing is personal. She got started in politics while writing a report for City Hall and realizing that most of the money spent on homelessness was going to arrests and jailing of people for being homeless instead of providing housing or basic needs. This is why she has pledged to reallocate police funding to a Public Safety Department with non-law enforcement experts who have the training and experience to address everything from homelessness to treatment crises to interpersonal disputes. She talked about her policing epiphany yesterday on The Briefing:

THINGS WE ARE TRACKING:

  • The right to vote is on the ballot in California, where Proposition 17 would allow people to vote while on parole. The proposition is only a half-measure to address Jim Crow-era laws denying the vote for criminal convictions, in that people in prison would still be disenfranchised. But it’s a step in the right direction. The Appeal covers the proposition here.
  • Brandon Scott, Baltimore City Council President and Democratic nominee for Mayor, introduced a renters right to counsel bill. Scott said: “COVID-19 has further exposed the highlighted need for housing stability in our city. “This bill will improve the ability of residents to achieve favorable outcomes in landlord tenant disputes and make the process more fair. We know that when people show up to court with representation, they achieve outcomes that are more fair and equitable.”
  • Julie Gunnigle, a progressive running for Maricopa County Attorney, explained in a recent interview why most drug offenses should result in treatment, not prosecution: “Putting someone behind bars doesn’t make them less addicted. It doesn’t help substance abuse disorder to lock someone away. So our baseline values ought to be that treatment is a first step.”
  • Endorsement Watch: On October 1st, the Austin-American Statesman endorsed reform DA candidate José Garza. They called his pledge not to prosecute low-level drug cases “imminently sensible.” And they rejected his opponents’ claim that all crimes should be prosecuted, noting that “district attorneys make these judgment calls all the time.” If elected, Garza would be one of the most progressive DAs in the nation.
  • Cori Bush, the Democratic nominee for Missouri’s First House district, lays out, in a step-by-step thread, why environmental justice is racial justice. From toxic waste to pollution to climate change, “BIPOC communities are hit first and worst,” she writes, culminating in a call to action: “We will not let mega-corporations like Shell, BP, Peabody, & Exxon off the hook for burning our world, contaminating our air, poisoning our water, and destroying our communities just to turn a profit. We have to fight with everything we’ve got. Our whole future is at stake.”
  • Candace Venezuela, the challenger in Texas House district 24, was profiled by Grist as one of six candidates in toss-up districts where the electorate’s engagement in the climate crisis could sway the outcome of the election.
  • Jackie Fielder, the challenger running to represent District 11 in the California State Senate, participated in a candidates forum yesterday which her opponent, incumbent Senator Scott Wiener declined to attend. When asked how she would respond to the climate crisis, Fielder replied, “We need to phase out all oil drilling, not just fracking by 2024. We need to fund green jobs to make the transition for workers from extraction to solar, wind, and other forms of renewable energy. We need a public takeover of PG&E that balances equity and costs nothing extra to utility payers and workers alike.”
  • Marquita Bradshaw, the Democratic nominee for U.S. Senate in Tennessee, appeared on a live town hall with Sunrise Movement. Among other things, she talked about how she got her start in politics as a young person doing environmental justice work, trying to address the high incidence of cancer in her community. She supports Medicare for All, the Green New Deal, a $15 minimum wage, demilitarization of police and more.

Coronavirus In Jails And Prisons

COVID-19 has exposed a huge gap in knowledge over the rights of hospitalized prisoners, Wisconsin sees a spike in new cases in correctional facilities, and vitamin D might help save the lives of incarcerated people.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

COVID-19 has exposed a huge gap in knowledge over the rights of hospitalized prisoners, Wisconsin sees a spike in new cases in correctional facilities, and vitamin D might help save the lives of incarcerated people.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


Before Tiffani Fortney’s father, Scott Cutting, went to prison, she would talk to him on the phone everyday. In January 2020, Cutting was sentenced to 26 months at Terminal Island federal prison, in Los Angeles, Calif., for tax fraud, forcing father and daughter to scale back the calls to once a week.

When they talked on Easter Sunday this year, Cutting mentioned that someone at the prison had tested positive for COVID-19. 

“I told him, ‘Dad, please be careful,’” Fortney told The Appeal. Cutting assured his daughter that he’d be fine. It was the last time they’d talk. Terminal Island, which held 200 more people than it was designed for, experienced one of the earliest and largest coronavirus outbreaks among federal prisons, resulting in more than 596 infections and 10 deaths. 

Scott Cutting, who was 70, was hospitalized on April 13, but no one notified Fortney or her brother, also named Scott, for two weeks, despite the siblings’ frantic phone calls to the prison trying to find out why they hadn’t heard from their father.

Fortney’s brother finally heard from the prison on April 29. The caller told him he needed to sign a do not resuscitate (DNR) order because his father was on a ventilator and wasn’t expected to survive. A prison doctor called Fortney the following day and told her the same thing. The doctor would not share any information about her father’s condition or where he was hospitalized. 

Brie Williams, a professor of medicine at UC San Francisco and the director of the prison health-care reform project Amend, said COVID-19 has exposed a significant gap in knowledge among doctors and prison officials over the rights of incarcerated patients and their families. 

“The opportunity for these patients to say goodbye to their loved ones, to have their rights respected, really hinges on doctors and other health-care professionals in the community safeguarding their patient’s rights and human rights at the end of life,” she said.

Amend has put together a guide for medical professionals about the rights of incarcerated patients, and, last week, Williams and Leah Rorvig, a physician who’s also part of Amend, held a webinar on the topic. 

“Doctors really have to go outside of their comfort zone to advocate for their incarcerated patients,” Rorvig said. “It’s a big ask on physicians.”

Rorvig and Williams said they’ve heard countless stories about incarcerated patients being denied the care to which they’re legally entitled, such as the right to designate someone to make medical decisions on their behalf. If a person is incapacitated, prison officials are obligated to help the hospital locate a next-of-kin. If there’s no next-of-kin, it’s up to the hospital’s ethics committee, not the prison, to make medical decisions for the patient. 

Incarcerated patients are also entitled to all the same services as other patients. Rorvig said she’d heard from social workers and chaplains who have been told that they couldn’t visit with an incarcerated patient.

In Scott Cutting’s case, his daughter got in touch with Brianna Mircheff, a federal public defender, who filed an emergency motion in court that ultimately allowed Fortney and her brother to talk to her father’s doctor and get enough information to feel comfortable signing the DNR. While the Bureau of Federal Prisons fought the siblings’ request for a video visit with their dad, Fortney said they were able to say goodbye to him via phone with the help of one of his nurses.  

“We told him it was OK to go, and he could go be with our mom,” who died 25 years ago. Scott Cutting died an hour after the phone call with his kids.

Two months later, Fortney’s brother, who had struggled with bi-polar disorder and was overwhelmed by his father’s death, died by suicide. The website Mourning Our Losses, which memorializes people who’ve died from COVID-19 in prisons, jails, and immigration detention facilities, included a tribute to Scott on his father’s memorial page

Mircheff said she’s working to educate other attorneys about the rights of incarcerated patients. “It seems like this problem is not going away anytime soon,” she said. “It terrifies me—the cases we’re not hearing about.”


The Lens reports that, in at least one instance in July, a correctional officer used pepper spray on COVID-19 patients inside the Orleans Parish Prison, the city jail for New Orleans. Reporter Nicholas Chrastil spoke to people who either witnessed the incident or were hit by the spray and left “coughing in their cells as their calls for fresh air went unanswered.”

As part of an ongoing lawsuit over conditions in one of its jails, the Alameda (Calif.) Sheriff’s Department created a “Covid Compliance Unit” to make sure staff members follow the rules enacted to prevent virus outbreaks. But Kara Janssen, one of the attorneys who sued the Sheriff’s Department, told KTVU reporter Lisa Fernandez that a recent uptick in the jail’s population could undermine the compliance unit’s efforts. “If they run out of space, we will see more outbreaks,” Janssen said.

➤ Wisconsin prisons are struggling with a surge in COVID-19 cases. According to a dashboard maintained by the state’s Department of Corrections, 903 incarcerated people have active cases of COVID-19. The high number is largely due to recent outbreaks at two correctional facilities, Kettle Moraine, located near Sheboygan (431 cases), and the Oshkosh Correctional Institution (337 cases), which holds most of the state’s elderly prisoners. Gretchen Schuldt, executive director of the Wisconsin Justice Initiative, told the Wisconsin Examiner that the outbreaks signaled “a huge failure” on the part of Gov. Tony Evers for not releasing more people from prison.  

In many prisons and jails, outdoor time is limited—it’s not uncommon for urban jails to have no outdoor space at all. Unsurprisingly, studies have found that incarcerated people lack sufficient levels of vitamin D. Savannah Morning News reporter Mary Landers writes about a Georgia doctor, Maulik Patel, who says COVID-19 patients from Coastal State Prison “were probably the sickest individuals” he’s treated—and all of them had low levels of vitamin D. Patel is urging prisons to provide vitamin D supplements, which he believes will help reduce the severity of the virus. He plans to publish his findings in a peer-reviewed medical journal.

 

Our Future On The Ballot #1

Heading into the highest-stakes election of our lifetimes, The Appeal is launching a newsletter called Our Future on the Ballot covering insurgent candidates across the country, their elections, and what’s at stake.

New York Democratic House candidate Jamaal Bowman greets supporters on June 23, 2020 in Yonkers, New York. Jamaal Bowman is running to unseat Representative Eliot Engel (D-NY) for the 16th congressional district.
Photo by Stephanie Keith/Getty Images

Our Future On The Ballot #1

Heading into the highest-stakes election of our lifetimes, The Appeal is launching a newsletter called Our Future on the Ballot covering insurgent candidates across the country, their elections, and what’s at stake.


In today’s issue, we’ll cover:

  • The growing movement of congressional candidates shaking up the Democratic establishment.
  • Plus: a transformational challenger for PDX Mayor is up 11% in a new poll; L.A. Mayor withdraws endorsement of District Attorney Jackie Lacey and endorses her reform-minded challenger; and other news from key elections across the country.

If you were forwarded this newsletter and would like to subscribe, sign up here. 


EVERYDAY PEOPLE ARE WINNING CONGRESSIONAL RACES AND SHAKING UP THE ESTABLISHMENT.

Millions of Americans are disinterested in politics, correctly believing that the business-as-usual policies pushed by both parties will not deliver the changes our country needs. That’s because Congress is out of touch with ordinary people. We know that because:

  • The congressional job approval rate is at 17 percent.
  • Congress is woefully out of touch with the policies American people really want enacted — regardless of which party happens to be in power.
  • Most Members of Congress are millionaires, not nurses, waitresses, or high school principals.
  • Rather than taking their cues from everyday people in their districts, members of Congress are driven by multi-national, multi-billion dollar companies seeking to maximize their own profits.

Across the country, out-of-touch establishment Democrats who support policies that maintain the status quo are increasingly facing intense primary challenges and, in many cases, are losing. These insurgent candidates primarying establishment Democrats are engaging those who are not interested in what the establishment is offering, which is, at best, incremental change.

 

  • IT’S NOT LEFT VS. RIGHT — “I’m not running ‘from the left.’ I’m running from the bottom. I’m running in fierce advocacy of working class Americans.” — That’s what Alexandria Ocasio-Cortez said before she won in 2018. She showed the establishment that a newly energized movement of working class people were not going to settle for their inaction any longer and that this fight was broader than antiquated notions of left versus right.
  • A NEW MOVEMENT CRYSTALIZES — That same year, Ocasio-Cortez was joined in Congress by Rashida Tlaib, Ilhan Omar, and Ayanna Pressley, who all ran on similarly transformative platforms uplifting policies that serve communities that have been long ignored by both parties.
  • “NO ONE IS AFRAID OF THOSE NERDS” — Even after these transformative wins in 2018, establishment Democrats continued to shun this growing movement and underestimate it. A senior Democratic source said in 2019 that “no one is afraid of those nerds,” referencing the very group of transformative candidates who were just beginning to beat back the establishment. “They don’t have the ability to primary anyone.”
  • NOW, IT’S REVENGE OF THE “NERDS”– Just a year later, Jamaal Bowman, Marie Newman, and Cori Bush all focused on popular, grassroots-backed policies and won primary challenges to incumbent Democrats.

 


“WE RAN BECAUSE OF OUR LIVED EXPERIENCES.”

Insurgent candidates mounting these campaigns aren’t just uplifting the needs of everyday people — they ran because they are everyday people. They ran because of experiences in their own communities, as working people, as activists, organizers, and local elected officials.

  • RASHIDA TLAIB — Rep. Tlaib filled John Conyers’ open seat in the 13th district of Michigan in 2018:
    • “Most of us didn’t run to unseat someone. We ran because of our lived experiences. We were tired of standing on the sidelines and thinking that change was coming, and it wasn’t.”


JAMAAL BOWMAN — Bowman beat 14-term incumbent Eliot Engel in the primary for the heavily Democratic 16th district of New York:

  • “There are tens of millions of people across this country who are not consistently politically engaged, because we haven’t done a good enough job of engaging them. This is not on them. This is on us.”

CORI BUSH — Bush beat 10-term incumbent Lacy Clay in the primary for Missouri’s heavily Democratic 1st district.

  • “I’m not going to rub off the rough edges of being an activist. Those edges are going with me.”

THESE INSURGENTS ARE RUNNING ON TRANSFORMATIVE POLICIES THAT ARE OVERWHELMINGLY POPULAR WITH ALL AMERICANS.

BETH DOGLIO — Doglio is running for an open seat in Washington’s 10th district. She’s advocated for Medicare for All, immigration reform, and the Green New Deal. The Intercept recently wrote about how her race “lays bare the Democratic divide on tackling [the] climate crisis.”

JAMAAL BOWMAN — When asked about how he would fund Medicare for All, Bowman responded, “It’s not a matter of resources. It’s a matter of values. When we want to fund something we always find a way to fund it. When the stock market crashed at the beginning of the pandemic, we wrote a $1.5 trillion check. Done! Save[d] the stock market. One, make sure the wealthiest among us pay their fair share into the system; right now, they’re not doing that. Two, make sure large corporations like Amazon pay federal taxes, so that they can also contribute to the system. Number three, tax Wall Street speculation capital gains at 2%. That will generate enough revenue to begin the federal jobs guarantee. There are a lot of ways to pay for it. The issue is not resources. The issue is values.” (NBC New York)

CORI BUSH — Bush supports the Green New Deal, Medicare for All, Housing for All and raising the minimum wage. In a 2018 joint interview with Alexandria Ocasio-Cortez, Bush fiercely defended raising the minimum wage to $15 an hour.

“People who make $7 or $8 an hour don’t work less hard than people who make $30 an hour. Making sure that people have what they need to support their families, pay their bills, and still have money left over to save should not be something that we should have to beg for. We have companies that have moved to $15 an hour wage, and they’re prospering. We can come up with money to be able to build these tent cities and pay $800 a day per child, to be able to house thousands of children; we can come up with that — millions of dollars per day to have people in these detention centers — but we can’t make sure that people who are working hard every single day are able to take care of their families. I think that we can do better.” (MSNBC)

  • Expanding the court.

MONDAIRE JONES — Jones filed to run against an incumbent in New York’s 17th district. The incumbent ultimately dropped out and Jones won an 8 way primary in a heavily Democratic district. He supports a Green New Deal, Medicare for All and a $15 minimum wage. On a recent episode of Our Future on the Ballot, Jones made the case that any fight for ordinary people necessarily includes addressing the Supreme Court. “We cannot tie our hands with antiquated norms that the Republican Party has long since abandoned.” [If Trump Replaces RBG, Congress Must Expand The Court]

MARIE NEWMAN — Newman beat incumbent Dan Lipinski in the 3rd congressional district of Illinois. She supports Medicare for All, the Green New Deal and a $15 minimum wage. On the Supreme Court, she said: “I certainly will support expanding the Court. And here’s what’s at stake. And this is what everybody has to get really focused on. It’s not just that they will repeal the Affordable Care Act, not just that. They will repeal every worker’s right and make this a right to work nation. Which will suppress wages, take away benefits and take away our right to organize. Which is one of our most American rights. So, you know rights, workers’ rights, will go away completely. A woman’s right to choose. And on and on. And all of our civil rights.”

THINGS WE ARE TRACKING:

  • Los Angeles Mayor endorses George Gascón for District Attorney. After teasing his un-endorsement of incumbent Los Angeles County District Attorney Jackie Lacey on an episode of The Briefing, Los Angeles Mayor Eric Garcetti has made it official, throwing his support to progressive challenger George Gascón.
  • California state Senator Holly Mitchell joined The Briefing to discuss why she’s running for LA County Board of Supervisors — to advocate for families in a way that is bold, transformative, and informed by personal experience. This race is so important because the LA County Board of Supervisors is the largest local government board in the country, responsible for more than 10 million residents. The roughly $30 billion annual budget covers services like foster care, jails, and the sheriff’s departments, making it a focal point in the efforts to reduce police violence.
  • An article in The Appeal profiled Carroll Fife, a candidate for Oakland City Council’s third district. Fife is a co-founder of Moms 4 Housing and the executive director of the Alliance of Californians for Community Empowerment – Oakland. She supports climate and environmental justice, economic justice, and divesting from militarized policing. She also recently came on The Briefing to discuss how she’s fighting to make the Bay Area a more inclusive, affordable place.
  • Julie Gunnigle is running against incumbent Allister Adel, who is finishing the term of long-time prosecutor Bill Montgomery in Maricopa County, Arizona. The pressure in the race to be a reformer is so great that Adel released a misleading ad portraying herself as a reform candidate. The Appeal recently examined these claims leading into the last weeks of the race.
  • Boston, MA city councilor Michelle Wu joined The Briefing to discuss city-level environmental justice initiatives. Wu, who is challenging incumbent Mayor Marty Walsh, has made environmental justice a key part of her campaign and is proposing a local Green New Deal for the city of Boston.
  • A new poll of the Portland mayoral race found challenger Sarah Iannarone leading incumbent Ted Wheeler by 11 points.
  • The Appeal published a story on Eliseo Santana, a sheriff candidate in Pinellas County, Florida who is challenging the status quo. He would end collaboration with ICE, reduce arrests, and shift funds from the sheriff’s department toward services and agencies outside of law enforcement who are better equipped at handling mental health and other treatment issues.
  • Data for Progress released its Green New Deal Slate, highlighting climate champions running in national and local races across the country.

We Can’t Be Free Until We Fully Abolish Slavery

Through a loophole in the 13th Amendment, governments and corporations profit from cheap, incarcerated labor.

Photo illustration by Elizabeth Brown.

We Can’t Be Free Until We Fully Abolish Slavery

Through a loophole in the 13th Amendment, governments and corporations profit from cheap, incarcerated labor.


This analysis is part of our Discourse series. Discourse is a collaboration between The Appeal and The Justice Collaborative Institute. Its mission is to provide expert commentary and rigorous, pragmatic research especially for public officials, reporters, advocates, and scholars. The Appeal and The Justice Collaborative Institute are editorially independent projects of The Justice Collaborative.

Shawna Lynn Jones died in 2016, only hours after battling a fire in Southern California. She was nearly done with a three-year prison sentence—only two months remained of her incarceration.  However, the night before, she and other women were called to put out a raging fire.

Jones was on a crew of incarcerated firefighters who routinely performed arduous and dangerous work; sometimes the women trudged heavy chains, saws, medical supplies, safety gear, and other equipment up burning hillsides surrounded by flames. On that night, the task was especially challenging, requiring the women to traverse a steep hillside of loose rocks and soil. One of the women later recounted how Shawna struggled, the weight of her gear and the chainsaw she carried made it difficult for her to establish solid footing to hike up the hill where the fire blazed.

Yet Shawna and the other women of her Malibu 13-3 crew performed their duties, holding back the fire so that it did not “jump the line” and burn homes on the other side. Their efforts saved expensive coastal properties in Malibu. 

But by 10 a.m. the next morning, Shawna Jones was dead. The night before, while Shawna was on the hill clearing wood from the fire’s path, the earth above gave way, sending a rock down that struck her in the head and knocked her unconscious. She never woke up.

Sadly, there is nothing unique about Shawna’s death or that California works incarcerated women like her to the breaking point for less than $2 per hour. In some prisons and jails, people receive no pay or only pennies per hour for their labor. 

In Alabama, incarcerated people earn no pay for what are referred to as “non-industry jobs,” although work programs facilitated by Alabama aid private industries (making couches, barbecue grills, and other items). Workers can earn $0.25 to $0.75 per hour, according to data collected by the Prison Policy Initiative in 2017. 

The same is true for Florida, while Arkansas and Georgia don’t pay for either non-industry nor private industry jobs. States that do pay for “non-industry” jobs do so with the most meager of wages: as little as $0.10 per hour in Arizona or $0.04 in Louisiana. Private industry jobs in these states might fetch under $1.00 per hour. In 2014, lawyers for the state of California resisted a court order to reduce prison populations by arguing that doing so would cut into the cheap labor available to clear trash, maintain parks, and fight forest fires—“a dangerous outcome while California is in the middle of a difficult fire season and severe drought,” the lawyers wrote.

If this sounds like modern day slavery to you, you are right. It is.

When I first read about Shawna, the image of Molly Williams came to mind. It’s an image I will never forget. Molly was the first female firefighter in the United States. She was enslaved, forced to put out fires in New York in the early 1800s. A chilling, undated rendering of Molly depicts this Black woman, without a coat and seemingly no gloves, pulling an engine (also known as a “pumper”) through thick snow and sleet, while white men in coats and top hats flee from the storm.  

She doused flames while still tethered to the bondage of slavery and wearing a strange, gendered uniform consisting of nothing but her apron and calico dress. Molly’s “owner,” a wealthy New York merchant named Benjamin Aymar, conscribed her to these duties and that uniform. City officials and Aymar referred to Molly as a “volunteer” firefighter. However, like California’s incarcerated fire fighters, Molly could not simply walk off the “job” or lay down her burden.

Incarcerated female firefighters, like Shawna and Molly, are caught in the legacy of American slavery, which shockingly remains enshrined in our Constitution through a loophole in the 13th Amendment—a law that Congress ratified in 1865 to abolish slavery. This year marks its 155th anniversary.  

This loophole, known as the punishment clause, explicitly permits “slavery” and “involuntary servitude” as “punishment for crime,” where the person has “been duly convicted.” At the time of its drafting, senators from slaveholding states vigilantly fought for a compromise that could allow for slavery’s continuance, and slavery has survived ever since—a largely unseen, deleterious plague that continues to infect our democracy. 

The author of the punishment clause, a Missouri slave owner named Senator John Brooks Henderson, favored adopting a law abolishing slavery that contained a punishment exception like The Northwest Ordinance of 1787, which prohibited slavery in the new western territory except “in the punishment of crimes whereof the party shall have been duly convicted.” Opposition  efforts were futile. Senator Charles Sumner, a widely respected abolitionist, objected to the punishment clause and proposed an amendment based on France’s Declaration of the Rights of Man and of the Citizen that asserted the equality of all men. But legislators worried this could lead to wives claiming equality, and his amendment was shot down.

The 13th Amendment’s final version emerged from the Senate Judiciary Committee with Senator Henderson’s language, permitting both involuntary servitude and perpetual slavery as constitutionally sanctioned punishments for committing crimes. By the end of the year, Southern states enacted numerous “Black Codes,” criminal laws that only applied to “Blacks and Mullatoes.” This was clever; before ratification of the 13th Amendment, abolitionists could speak to the depravity of slaveholders who forced innocent Black children, women, and men into unpaid labor. After the 13th Amendment, incarcerated Black people would be called criminals and convicts—far less worthy of Northerners’ sympathy—although they were no different than before. 

Thus, even while the 13th Amendment granted freedom to Black people trapped in slavery, Southern legislators, law enforcement, and private businesses reinvented the practice through new forms of servitude, bondage, and threat. Essentially, the punishment clause exception permitted the re-appropriation of Black bodies for non-compensated labor in Southern states and eventually for Northern ones too. Economist Jay Mandle referred to this condition as not enslaved but also not free. There were virtually no legal protections for newly freed Black people from labor exploitation, whether they were freed sharecroppers or newly stamped “convicts.”

The result was slavery’s expansion on Southern tenant plantations. According to economist Nancy Virts, tax record data showed the number of plantations in select Louisiana parishes increased by 286% between 1860 and 1880. Similarly, rather than shrinking after the abolition of slavery, Southern plantations increased in size, resulting in greater wealth production. During the early years of Jim Crow, tenant plantations increased their size (in acreage) in Alabama, Georgia, Louisiana, Mississippi, and South Carolina from 19 to 24%.

The Black Codes, along with the convict leasing system, which supplied cheap labor to coal mines and railways, drove this expansion of slave labor in the Southern economy. Profits were made all around, including by crooked prison wardens who negotiated special deals with coal mining executives, supplying the bodies of Black teenagers who landed in prison because they could not afford to pay fines for walking down a street, or standing with more than two friends on a corner. These children would be leased for up to 20 years—if they survived that long—to the tycoons of the nation’s most profitable industries.

In Alabama, lawmakers made it a crime for “free negroes and mulattoes” to assemble in a disorderly manner. Another Alabama Black Code made it “unlawful for any freedman, mulatto, or free person of color to own fire-arms, or carry a pistol under a penalty of a fine of $100.”  And the Alabama law that abolished whipping as legal punishment replaced it with “hard labor for the county.”

Black Codes were exhaustive, covering all manner of freedoms associated with housing, family, sex, associations, farming, selling goods, and more. By the end of 1865, Alabama had amended its criminal statute to provide that Black people employed by farmers “shall not have the right to sell any corn, rise,[sic] peas, wheat, or other grains, any flour, cotton, fodder, hay, bacon, fresh meat of any kind, poultry of any kind, animal of any kind . . . .”  Interestingly, this specific Alabama law, although amended after the 13th Amendment, still referred to “masters.” The copiously delineated exclusions of Black people from the social and economic life of Alabama counties confirmed the preservation of slavery, despite the 13th Amendment. Breaking any of the new criminal codes would return newly freed Black women and men to slavery, which was the point of such laws.

Today, although Black Codes have been repealed, their legacy serves as the foundation for policing in America and the current misdemeanor system—from stop and frisks to “broken windows” policing that uses minor infractions to pull people into a system where their rights and freedoms quickly vanish. And the burdens of America’s prisons still fall disproportionately on Black people, their families, and their communities. Relying on these systems to provide free or below-poverty-wage labor, padding the coffers of both states and private corporations, is not rehabilitation. It’s slavery. 

Surely, the purpose of prison is not to run sweatshops for big businesses or serve as car washes for the wardens. We can—and we must—do better. 

At least one state is already paving the way. In 2018, Colorado took the lead in abolishing slavery through a constitutional amendment, declaring that “There shall never be in this state either slavery or involuntary servitude.” Members of Congress are also speaking up, including Oregon Senator Jeff Merkley, who is preparing to introduce a constitutional amendment to repeal the punishment clause. But more politicians need to recognize this grave injustice and repair it. 

It’s long past time to fully abolish slavery—once and for all. As the late Congressman John Lewis said in his speech as part of the 1963 March on Washington, “We want our freedom and we want it now.”

Michele Bratcher Goodwin is a Chancellor’s Professor at the University of California, Irvine and founding director of the Center for Biotechnology and Global Health Policy. She is the recipient of the 2020-21 Distinguished Senior Faculty Award for Research, the highest honor bestowed by the University of California. She is also the first law professor at the University of California, Irvine to receive this award. She is an elected member of the American Law Institute as well as an elected Fellow of the American Bar Foundation and the Hastings Center (the organization central to the founding of bioethics). She is an American Law Institute Adviser for the Restatement Third of Torts: Remedies.

Coronavirus In Jails And Prisons

After being COVID-free for months, Massachusetts facilities see new outbreaks; a New York lawmaker wants to make it easier for people to serve prison and jail sentences at home; and deaths continue to plague a Virginia prison.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

After being COVID-free for months, Massachusetts facilities see new outbreaks; a New York lawmaker wants to make it easier for people to serve prison and jail sentences at home; and deaths continue to plague a Virginia prison.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


New England corrections facilities have remained nearly coronavirus-free over the last few months—until late last week. Massachusetts corrections officials reported outbreaks at the Middleton jail in Essex County, about 20 miles north of Boston, and at the Massachusetts Alcohol and Substance Abuse Center (MASAC) in Plymouth.

The jail is reporting that 25 prisoners, 21 employees, and two contractors have tested positive for COVID-19. At MASAC, 28 of 97 men confined to the treatment facility tested positive. The outbreaks come amid a statewide spike in new cases.

While MASAC is part of the state’s prison system, it’s not exactly prison. For someone to end up there, a judge must find that the individual’s addiction to drugs or alcohol causes him to be a danger to himself or others. In 2019, a group of men at MASAC sued the state, arguing it was discriminatory for men, but not women, to be involuntarily committed to a correctional facility for treatment. The lawsuit described conditions in the treatment facilities as “appalling.” Commonwealth Magazine reported on Friday that the DOC has halted all new admissions to MASAC and will instead be sending anyone subject to a civil commitment to a different facility.

Because of decisions made earlier in the year, the wave of new cases may soon spread to other facilities in the state. In April, Prisoners’ Legal Services of Massachusetts filed a class-action lawsuit arguing for the release of people from state prisons to allow for adequate social distancing. While the lawsuit was filed on behalf of all people incarcerated in Massachusetts prisons, it focused on two subclasses: people at high risk of serious complications or death from COVID-19 and people who were civilly committed to a correctional facility. In June, the Massachusetts Supreme Judicial Court declined to order any immediate releases. Instead, the court referred the case to the state’s Superior Court and mandated that the risk of a person contracting COVID-19 needed to be taken into account before a person could be ordered into treatment.  


Today, New York’s Jamestown Post-Journal reports that state Assemblyman David Weprin has introduced legislation that would allow state corrections officials to make home confinement an option for people sentenced to jail or prison when the governor declares a state of emergency. 

Weprin said the bill was needed to make it easier for people in prisons and jails to maintain a safe distance. “COVID-19 hits hardest in dense population centers or clusters where people gather in close proximity,” he wrote in a statement accompanying the bill. “The state’s correctional facilities are notoriously overcrowded, and thus, COVID-19 is spreading within New York’s incarcerated population at a much higher rate than the general population. It is time to think of alternatives to confinement in our facilities to lower congestion.”

The current state laws grant corrections officials the authority to temporarily release someone only “to receive medical treatment not available in a correctional institution only if deemed absolutely necessary to the health and well-being of the inmate.”


➤ On Sept. 24, U.S. District Court Judge Phyllis J. Hamilton ordered the federal government to issue CARES Act stimulus funds to incarcerated people. The order follows a finding by the Treasury Department’s Inspector General that at least 80,000 incarcerated people had been incorrectly denied payments. To receive a check, individuals must file a claim before Oct. 15. The law firm Lieff Cabraser Heimann & Bernstein, LLP, which filed a class-action lawsuit on behalf of those incarcerated people who were denied payment, has a FAQ on its website explaining who qualifies and how to file a claim.

➤ Last Monday, we wrote about Askia Asmar, a 67-year-old man with lung and liver cancer who’d contracted COVID-19 in Virginia’s Deerfield Correctional Center. He was one of more than 800 people infected at the prison, which holds some of the state’s most medically fragile prisoners. On Friday, the Washington Post’s Justin Jouvenal reported that Asmar died from the virus, bringing the death toll at Deerfield to 18 people. Asmar had less than a year left to serve. His sister, Maudie Howell, had written multiple letters on Asmar’s behalf, begging that he be released. “It almost feels like they took my heart and cut it out,” she told Jouvenal. “It’s just unbelievable for somebody to allow people to just die in a prison. I don’t understand that.”

➤ After pressure from West Virginia public-health officials and the union representing federal corrections officers, the U.S. Marshals Service announced on Friday that it would be testing all of the people it transfers starting this week. An Aug. 13 story by The Marshall Project revealed that the U.S. Marshals Service, which is responsible for transporting people to and from federal prisons, wasn’t testing or isolating any of its transfers and, as a result, was introducing COVID-19 into federal prisons.  

Coronavirus In Jails And Prisons

Despite new outbreaks in Oregon prisons, Gov. Kate Brown remains hesitant to release people, federal prison inspector releases an online COVID-19 dashboard to boost transparency, and our ongoing case map suggests widespread trouble for Georgia prisoners.

Coronavirus In Jails And Prisons

Despite new outbreaks in Oregon prisons, Gov. Kate Brown remains hesitant to release people, federal prison inspector releases an online COVID-19 dashboard to boost transparency, and our ongoing case map suggests widespread trouble for Georgia prisoners.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


Earlier this week, Oregon Gov. Kate Brown commuted the sentences of 66 incarcerated people, Willamette Week’s Tess Riski reports. Ten were approved for release after being identified as  vulnerable to death or serious complications from COVID-19. The other 56 were within two months of their release date.   

Since the start of the pandemic, Brown has commuted the sentences of 123 people—far short of the 5,800 people state prison officials said would need to be released to allow for social distancing or the 2,000 people Oregon lawmakers proposed releasing in July. 

According to the Oregon Department of Corrections (ODOC), since the start of the pandemic, 993 people in state prisons have tested positive for COVID-19 and nine have died. According to ODOC’s patient tracker, the two prisons with the largest outbreaks—Snake River Correctional Institution and Eastern Oregon Correctional Institution—have both seen a recent uptick in new infections. 


On Thursday, U.S. Department of Justice Inspector General, Michael Horowitz, announced the launch of an interactive dashboard with data on COVID-19 cases, deaths, and testing results in correctional facilities managed by the Federal Bureau of Prisons (BOP). The dashboard includes a section showing how cases in BOP facilities relate to trends in surrounding communities. In a video statement, Horowitz described coronavirus as “one of the most immediate challenges to DOJ operations.”

Bureau of Prisons facilities have seen some of the largest COVID-19 outbreaks since the start of the pandemic and the department has been criticized for lacking a coherent virus response plan

Last week, Virginia Sens. Mark Warner and Tim Kaine, along with several members of the House, sent a letter to Horowitz expressing concerns about the BOP’s handling of outbreaks at two Virginia federal prisons. The letter describes complaints that their offices have received about “deteriorating health and safety conditions,” including a lack of protective gear for incarcerated people and prison staff, harsh lockdown rules, and prisoners being served spoiled food. 


The director of the Ohio Department of Rehabilitation and Correction, Annette Chambers-Smith, said in a press briefing this week that her department is using wastewater testing at state prisons to try to detect COVID-19 prior to an outbreak. Research has shown that wastewater surveillance can detect the virus in a community before anyone shows symptoms.

The Indiana Women’s Prison is reporting several new cases of COVID-19 and has placed 22 women in quarantine, Side Effects Media’s Jake Harper writes. In July, Harper wrote about harsh lockdown conditions at the Indianapolis prison, where women were forced to spend hours in their cells with no access to toilets or running water.   

In an op-ed for The Nevada Current, Macy Haverda, co-director for the state’s ACLU, writes that some people locked up in Nevada prisons are seeing up to 80 percent of their inmate accounts garnished according to Marsy’s Law, a 2018 ballot initiative that guarantees restitution for crime victims. But the family members who fund these accounts are the ones paying the price. “While more and more incarcerated individuals are trying to avoid chow halls because of the pandemic, many families are trying to keep their loved ones safe in an environment ripe for the spread of COVID-19 by sending extra money for commissary items,” writes Haverda, whose uncle is in a Nevada prison. Under the garnishment policy, families would need to send $15 to cover the cost of a 4-ounce can of tuna. For denture grip paste, they’d need to send $39, and for four rolls of toilet paper, $18. 


As part of our ongoing effort to track the coronavirus in jails, prisons, and juvenile-detention facilities, we’ve been mapping facilities reporting at least two infections since July 26. (Hover your cursor over a dot to see the facility’s name.) New outbreaks this week include the Neal Unit prison in Texas, which is currently experiencing the largest outbreak among U.S. corrections facilities, with more than 1,000 incarcerated people and 51 staff members testing positive for the virus. (ABC 7 Amarillo has a story on the outbreak.) In Georgia, nearly every prison is reporting active cases of COVID-19, including Pulaski Women’s Facility. The Atlanta Journal Constitution’s Christian Boone spoke to several people familiar with conditions in the prison, which one person described as “medieval.”

Coronavirus In Jails And Prisons

A ruling by a Texas judge slams officials for deliberate indifference toward vulnerable prisoners; in San Diego, an ill-advised hospital visit led to a massive COVID-19 outbreak; and a new report finds an alarming increase of Latinx and Native American youth in juvenile-detention facilities.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

A ruling by a Texas judge slams officials for deliberate indifference toward vulnerable prisoners; in San Diego, an ill-advised hospital visit led to a massive COVID-19 outbreak; and a new report finds an alarming increase of Latinx and Native American youth in juvenile-detention facilities.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


Proving to judges that a prison has shown “deliberate indifference” to the medical needs of incarcerated people is typically a high bar—amid the COVID-19 pandemic, many lawsuits have tried and failed to make this claim. But in a ruling issued yesterday in a class-action lawsuit brought on behalf of men incarcerated in the Wallace Pack Unit, a geriatric prison outside of Houston, U.S. District Judge Keith Ellison found clear evidence that prison officials showed a reckless disregard for the people in their care.

The ruling follows an 18-day trial, held in July, and takes into account evidence submitted by the plaintiffs’ attorneys after the trial. That evidence includes a photograph showing that the red tape that the prison had added to the floors to prove to the judge they were enforcing social distancing was removed after the trial.

Throughout the 84-page ruling, Ellison calls into question the veracity of claims made by prison officials, citing text messages and emails that show a failure to enact even the most basic precautions, like refusing to provide masks to prisoners under 65. Even an expert hired by the Texas Department of Criminal Justice (TDCJ) criticized the “staged” visits that made it seem like the prison was taking steps to prevent virus transmission when it was in fact doing the exact opposite. 

Page after page of Ellison’s ruling describes, in troubling detail, what the judge called a “human tragedy”: a 50-person dorm with one toilet and no hot water; guards refusing to provide inmate janitors with basic cleaning supplies; showers filled with bloody bandages, used razors, and dirty diapers; and people who’d tested positive for the virus being forced to remain in dorms with people who’d tested negative.

The prison requires disabled prisoners to clean and sanitize their own dorms. Marvin Jones, who is wheelchair-bound and unable to hold anything in his right hand, described in his testimony how he struggled to mop the floor. Harold Dove, who also requires the aid of a wheelchair, is legally blind and paralyzed on his right side, but was nevertheless assigned to janitorial duties. One of the prison’s wardens testified that a wheelchair-bound janitor “could put a broom against his neck and push it with a wheelchair.”

When the lawsuit was filed in March, there had been no cases of COVID-19 at the prison. The first person to test positive was Leonard Clerkly, who died on April 13 from viral pneumonia. A month later, 32 people tested positive. To date, at least 505 Pack Unit prisoners have tested positive for the virus. And since Clerkly’s death, 18 more people have succumbed to COVID-19. For comparison, in the year 2019, 11 Pack Unit prisoners died from natural causes. 

“The Court acknowledges that Defendants have taken a number of steps to address the spread of COVID-19, including initial consultations with medical experts and the adoption and implementation of Policy B-14.52 at the Pack Unit,” Ellison wrote. “But the Court views these measures as the most basic steps that TDCJ could have taken to prevent mass death within the prison walls on an unimaginable scale.”

The judge ordered TDCJ to implement more than a dozen measures to prevent further cases of coronavirus, including providing “unrestricted” access to soap and clean towels, creating a comprehensive testing program with a turnaround time of two days or less, providing janitors with sufficient cleaning supplies and protective gear, and conducting regular audits to ensure these measures are being followed TDCJ says it plans to appeal Ellisons’ ruling. 


The Metropolitan Correctional Center, San Diego (MCC), a federal jail, hadn’t reported any cases of coronavirus until Eric Selio, one of more than 550 people incarcerated in the downtown jail, went to the hospital for a simple procedure. Hospital staff had tried, unsuccessfully, to convince MCC medical staff to do the procedure at the jail to minimize Selio’s risk of contracting COVID-19. 

“COVID don’t take a break,” Selio told Voice of San Diego’s Maya Srikrishnan in an interview from the jail. He contracted the virus, which quickly spread throughout the 23-story facility, ultimately infecting 395 incarcerated people, including a pregnant woman, and 20 staff members. One man, 47-year-old Victor Cruz, who was imprisoned on a drug offense, died. 

Selio recovered, but he contracted the virus a second time after being housed with people who were sick. Srikrishnan spoke to multiple people at the jail, as well as family members of inmates, who all expressed concern over lapses in safety protocols. 

Thankfully, cases in the jail have declined significantly over the last three weeks. According to the Federal Bureau of Prisons’ website, 18 people incarcerated in MCC and 13 staff members currently have active cases of COVID-19. A spokesman refused to tell Shrikrishnan how many people had been hospitalized. 

In early August, a group of lawmakers, including Sens. Elizabeth Warren and Cory Booker and Rep. Ayanna Pressley, introduced the COVID-19 in Corrections Data Transparency Act, which will require operators of prisons and jails to collect and publicly report comprehensive data on COVID-19 testing, infections, and deaths—including the number of people hospitalized due to the virus.


In March and April, the number of young people held in juvenile-detention facilities fell sharply, then plateaued, according to a new survey by the Annie E. Casey Foundation. In August, youth facilities reported COVID-19 cases at a rate three-and-a-half times higher than cases among the general United States population. The survey also found that while white youth continue to be released at a higher rate than other groups, detention of Latinx and Native American youth has increased. 

South Carolina’s Island Packet newspaper checked in on a federal prison in Estill that was heavily damaged by an April 13 tornado. People in the prison’s main complex were transferred to a federal prison in Pennsylvania, while minimum-security prisoners were moved into Estill’s medium-security building. The difference is “night and day,” one man told reporter Jake Shore. The leaky building is infested with toxic black mold, prisoners said, adding to existing fear of a COVID-19 outbreak. One prisoner described the mold as “bubbling up” from the walls. The prison has yet to report a positive case of coronavirus, though only 28 people have been tested, according to the Federal Bureau of Prisons.  

In an op-ed in the Philadelphia Inquirer, Montclair State University professors Tarika Daftary-Kapur and Tina Zottoli urge lawmakers and corrections officials to consider releasing “juvenile lifers”—people sentenced to life without parole for crimes committed when they were under 18. Daftary-Kapur and Zottoli recently conducted a study of 174 juvenile lifers who had been resentenced and released in Philadelphia. Only two committed new crimes, both minor offenses. “…[A]s we are in the throes of a national debate over releasing inmates to reduce the risk of COVID transmission, it is necessary for policymakers to be informed by the best science, which tells us individuals who committed crimes as juveniles and are now in their 40s and 50s pose a negligible risk to society,” they write.

Communities Need And Deserve A Reset Of Policing And The Justice System. Trump Has Created A Sham Process that Excludes Them.

Under the guise of restoring public confidence in law enforcement, President Trump’s secretive and regressive Commission on Law Enforcement is stacked with old-guard failed tough-on-crime thinking that precipitated the crisis of confidence we now face.

President Donald Trump.
SAUL LOEB/AFP via Getty Images.

Communities Need And Deserve A Reset Of Policing And The Justice System. Trump Has Created A Sham Process that Excludes Them.

Under the guise of restoring public confidence in law enforcement, President Trump’s secretive and regressive Commission on Law Enforcement is stacked with old-guard failed tough-on-crime thinking that precipitated the crisis of confidence we now face.


This commentary is part of The Appeal’s collection of opinion and analysis.

We are living in a moment in history where the Attorney General of the United States has forsaken blind justice for base politics. Over the past weeks, AG William Barr has declared three major cities “anarchist jurisdictions,” with no supporting evidence, attacked prosecutors who have declined to prosecute peaceful protestors and denied the incontrovertible truth of systemic racism in policing and our justice system. 

These are only the latest in a string of troubling actions that highlight not just DOJ’s departure from norms around political neutrality, but DOJ’s bare-knuckled assault on mainstream law enforcement thinking on the need for reform. At the center of those effort’s is the Administration’s secretive and regressive Commission on Law Enforcement, a noninclusive and closed group preparing to release a slate of recommendations on the future of policing. 

Addressing these issues in a thoughtful way – and bringing all voices to the table — could not be more timely. In the wake of the failure to charge any officers with Breonna Taylor’s death, communities are again being torn apart by grief and protests. Our communities want to transform the criminal legal system and they deserve a transparent, inclusive and honest dialogue and process aimed at advancing that objective. 

Sadly, however, a thoughtful assessment of how we rethink policing and our justice system at this fragile moment when trust in government is at an all-time low does not appear to be in the cards with this Presidential Commission. With a racial disparity denier serving as the highest law enforcement official in the nation, it’s no surprise that DOJ is defying and ignoring mainstream thinking on the need for justice reform, countless experts, the respected Task Force on 21st Century policing, and the majority of Americans — all of whom agree on the importance of addressing, rather than denying, racially biased policing.  

Against this backdrop, District Attorney John Choi, one of the four DAs chosen to participate in the Administration’s Commission on Law Enforcement, resigned earlier this month due to grave concerns that the Commission wasn’t committed to addressing systemic racism, but instead is providing cover for a “predetermined agenda.” This came shortly before a federal court heard a challenge by the NAACP to the legality of the Commission’s composition and process. Seventy-six law enforcement leaders joined in an amicus brief supporting that challenge, noting that the Commission’s “flawed process … is the last thing a nation in crisis needs.” 

Under the guise of restoring public confidence in law enforcement, the Commission is stacked with old-guard failed tough-on-crime thinking that precipitated the crisis of confidence we now face. Instead of addressing the erosion of trust within communities of color, the “Respect for Law Enforcement” working group was charged with examining “under-enforcement of the criminal law in certain jurisdictions” – with no recognition of over-enforcement in too many communities. Missing from the working groups’ charge is any mention of constitutional or civil rights, police accountability, or racial disparities. 

After decades of policing that too often ignores or glorifies violence, we are facing a moral imperative to reshape law enforcement in this country. From our combined 70-plus years working on criminal justice and policing reforms, we know well the deadly and destructive consequences of over-policing communities of color and police departments gone bad. We have seen those tragedies play out in California and elsewhere. And now our country is reckoning with this shameful reality following the murders of Jacob Blake, George Floyd, Jr., Breonna Taylor, and countless others. 

Despite what we hear from the Attorney General, racial bias in law enforcement is ever-present in police shootings, disparate arrests, and over-enforcement of laws in Black and Brown communities. Across the country, Black and Hispanic adults are respectively 5.6 and 2.5 more likely to be incarcerated than white adults. One in four Black children will have their fathers incarcerated before age 14, versus just 4 percent of white children. 

The solution to these problems is a fundamental reset of the justice system led by community. That is why the amicus brief filed by prosecution and law enforcement leaders challenging the Commission’s legality stressed: “As communities rise up in protest against racial injustice and demand that we reimagine policing and the criminal justice system, it is a foolhardy exercise to do so without their input.”

And yet, the community didn’t even have a seat at the Commission’s table. Glaringly absent from the Commission’s roster or 17 working groups were community leaders, directly impacted individuals, civil rights experts, and defenders. Yet these are the voices calling for a reset of the justice system and a dramatic reduction in the role of police in responding to homelessness, mental illness, and substance use.

That consensus is supported by evidence that too often incarceration doesn’t make us safer. Thirty-five states have seen decreases in both incarceration and crime – and the crime decreases were greater in states with the largest reductions in imprisonment. Indeed, studies increasingly confirm that needlessly incarcerating people can increase recidivism and harm communities. 

But neither the AG nor his Commission seem concerned with data, or with listening to those urging transformation of our justice system. Instead they seem intent on furthering continued attacks on reform-minded prosecutors and catering to police unions and others opposing transparency and accountability among the ranks of policing.

The unrelenting videos exposing the brutality and devaluing of communities of color by law enforcement are likely to continue, as will the protests and growing chorus demanding a reimagining of our justice system. Those heartfelt pleas cannot be ignored. We must welcome and fully engage our community as co-producers of public safety – or prepare for a future that holds further divisiveness and suffering.   

Joe Brann is the retired Chief of Police in Hayward, California and founding director of the Office of Community Oriented Policing Services (COPS) in the U.S. Department of Justice and currently serves as a police reform expert assisting police departments nationwide with reform and culture change.

Miriam Aroni Krinsky is a former federal prosecutor and spent five years working on reform of the Los Angeles Sheriff’s Department, including as Executive Director of the Citizens’ Commission on Jail Violence and Special Advisor to the former LA Sheriff; she is currently the executive director of Fair and Just Prosecution, a national network of elected prosecutors working towards common-sense, compassionate criminal justice reforms.

Coronavirus In Jails And Prisons

A new report documents pandemic-driven efforts to release people from Chicago’s Cook County jail, how Virginia’s 900-page COVID-19 response plan has failed elderly and ill prisoners and federal prosecutors argue that a life sentence equals a death sentence.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

A new report documents pandemic-driven efforts to release people from Chicago’s Cook County jail, how Virginia’s 900-page COVID-19 response plan has failed elderly and ill prisoners and federal prosecutors argue that a life sentence equals a death sentence.


Weeks before the first reported cases of COVID-19 in prisons and jails, correctional healthcare experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the next several months, The Appeal will be examining the coronavirus crisis unfolding in U.S. prisons and jails, COVID-19’s impact on surrounding communities and how the virus might reshape our lives. Read recent posts.


Askia Asmar, a 67-year-old man incarcerated in Virginia’s Deerfield Correctional Center, has lung and liver cancer, diabetes and hepatitis C, yet his repeated requests for medical care have gone ignored. According to a statement Asmar provided to the ACLU of Virginia as part of an ongoing lawsuit, despite his extensive comorbidities, he was placed in a unit with a COVID-19 outbreak and tested positive for the virus. 

Asmar is eligible for parole in December, but yet remains imprisoned.

Deerfield houses the state’s most vulnerable prisoners in its assisted-living unit, and corrections officials have come under fire for not doing more to prevent an outbreak that started two weeks ago. Roughly 85 percent of the prison’s population has tested positive for COVID-19 and 14 men have died from the virus. 

In a Sept. 23 press release, the Virginia Department of Corrections insisted that it’s got the situation at Deerfield under control and pointed to a 900-page pandemic response plan as evidence. The following day, the ACLU responded, arguing that corrections officials have failed to comply with the provisions of a May 12 settlement agreement in a class-action lawsuit filed in April on behalf of people in Virginia prisons. 

“…[I]nfection rates at VDOC facilities have now begun to soar,” ACLU attorneys wrote in a notice of noncompliance filed with the court on Sept. 22. “Despite these rapidly rising infection rates, Defendants have failed to identify additional staff or resources that can be dedicated to expediting the review of high-risk individuals eligible for the Early Release Program. The bottleneck in their review process continues, as the approval rate steadily declines with each passing week.” 

According to a tracker on the ACLU’s website, out of 1,483 people reviewed for early release since May 12, only 551 requests have been granted.


On March 13,, more than 100 civil-rights groups published an open letter, urging corrections officials to release people being held on bail in Chicago’s Cook County jail, especially those at high risk of complications from the virus.

“It is not a matter of if coronavirus and COVID-19 infect [the Cook County Jail] but when,” the letter says.  

Two infections reported on March 23 grew to 200 and ultimately 1,189. On April 8, the New York Times described the jail as “the nation’s largest-known source of coronavirus infections.”

A new report by the Coalition to End Money Bail tells the story of how advocates scrambled to get as many incarcerated people as possible released from the jail, first through a bail fund and then by pushing judges to hold bail-review hearings. 

So far, more than 1,400 people have been released. But the releases have not been equal. Between March 17 and May 9, the number of Black people incarcerated in the Cook County Jail dropped by 27 percent, the number of Latinx people dropped by 29 percent, and the number of white people dropped by 42 percent.

Furthermore, the report notes that the jail’s population is creeping back up toward pre-pandemic levels. With the start of flu season and experts predicting another wave of coronavirus, the report indicates, “This large number of people makes the jail again highly vulnerable to another COVID-19 outbreak.” 

Matthew McLoughlin, director of programs for the Chicago Community Bond Fund said that since April, “There has not been any movement towards a mass review of bonds.”

Bail reform has been a difficult subject in Chicago. In 2017, Cook County Chief Judge

Timothy Evans ordered judges to set bail at an amount a person can afford. Two years after he issued the order, Evans released a study showing no measurable increase in crime. A February 2020 investigation by the Chicago Tribune poked holes in Evans’ methodology, but a subsequent study concluded that reported crimes had actually fallen in Cook County since bail reform was implemented.

“We would argue that bond reform has actually made our communities safer by helping ensure that thousands of people did not lose their jobs, housing, or custody of their children due to pretrial incarceration,” McLoughlin told The Appeal. “We also believe that bond reform saved lives. Had Cook County not taken these steps, several thousand more people would have been incarcerated in the jail at the height of the pandemic.”


In last Wednesday’s post, we linked to a powerful piece written by incarcerated journalist John J. Lennon, who described his experience with COVID-19 in New York’s Sing Sing Prison. NPR reporter Noel King followed up with Lennon on Friday and pressed him to say more about his experience with the virus. His case was mild, he said, but added, “I think it’s anxiety that mostly gets you.” Prison air is already stale; add in a virus that impacts one’s ability to breathe and “it’s like a torture chamber,” Lennon told King. 

Reason’s C.J. Ciaramella writes about Atilano Dominguez, an 80-year-old man serving a life sentence in a Florida federal prison for marijuana offenses. Dominguez’s attorneys argued he should be granted compassionate release due to his age and underlying health issues. Federal prosecutors agreed Dominguez was at high risk of dying from COVID-19, Ciaramella writes, but argued that “the existence of one more way to perish in prison … does not alter the appropriateness of the Defendant’s incarceration.” A judge disagreed and granted Dominguez’s release.

Alex Sakariassen with Kaiser Health News looks at Montana’s success at keeping COVID-19 out of its prisons—and the costs of those successes for the state’s county jails, at least three of which have experienced significant outbreaks. Jail officials have blamed the outbreaks on the overcrowding that’s resulted from prisons putting a halt on transfers. Sakariassen’s story opens with Joshua Martz, who tested positive for COVID-19 at the Cascade County Detention Center in Great Falls. Martz was squeezed into a pod with nine other people, all of whom received little medical attention. “None of us expected to be treated like we were in a hospital, like we’re a paying customer,” he said. “But we also thought we should have been treated with respect.”

Yes, Pack The Court – Pack It With Public Interest Lawyers

No intellect or doctrine can overcome a judiciary inclined to favor government and the powerful against the accused and the vulnerable. And that is the federal judiciary we now have.

The U.S. Supreme Court.
Photo by Mark Wilson/Getty Images.

Yes, Pack The Court – Pack It With Public Interest Lawyers

No intellect or doctrine can overcome a judiciary inclined to favor government and the powerful against the accused and the vulnerable. And that is the federal judiciary we now have.


This commentary is part of The Appeal’s collection of opinion and analysis.

In 2011, my fourth year as an appellate federal defender, I suddenly became really smart. After three years of mostly losing appeals for indigent defendants in North Carolina, I participated in a case about countless people who had been wrongfully convicted of crimes or wrongfully given lengthy prison sentences. I gave the oral argument of my life, our side won an 8-to-5 en banc decision in the Fourth Circuit, and many people won their freedom. I still remember an emotional call with the mother of one of my clients as she was on her way to pick up her son from federal prison.

Of course, that’s only part of the story. The rest is about the federal courts, what ails them, and what must be done to fix them. 

That 2011 case might have gone the other way, and countless people might have continued serving illegal sentences, if Barack Obama had not become President and nominated four of the judges who ruled in our favor. Sure, I did a good job. And yes, textualism, if it mattered, was on our side. These defendants had been convicted under statutory text requiring a previous conviction of a crime “punishable by imprisonment for more than one year,” yet the statutory maximum sentences for their prior convictions had been less than one year due to their low criminal histories. But the government had persuaded a three-judge panel that their specific statutory maximums didn’t matter, and without Obama’s additions the en banc Fourth Circuit might have agreed.

No intellect or doctrine can overcome a judiciary inclined to favor government and the powerful against the accused and the vulnerable. And that is the federal judiciary we now have. 

According to a recent study by the Center for American Progress, no sitting federal appellate judge spent most of their career with a nonprofit civil rights organization. Only about one percent spent most of their careers as public defenders or in a legal aid setting. Instead, the vast majority—more than 70 percent—worked primarily in private practice or as federal prosecutors.

The Supreme Court is worse. The late Justice Ruth Bader Ginsburg, the first director of the ACLU Women’s Rights Project, was the sole member of the Court who had dedicated a substantial portion of their career to representing clients at a nonprofit organization. There are no Supreme Court justices with meaningful experience representing people accused of crimes, or facing eviction, or battling racism, or seeking health care.

True, some former prosecutors and corporate lawyers make excellent judges. But a person’s life and professional experiences inevitably influence their perspective; where one judge sees a criminal suspect, an illegal border-crosser, or a deadbeat tenant, another judge might see a victim of racial profiling, an asylum seeker, or someone trying to survive after losing their job. And on balance, the institution that interprets federal law is tilted toward one set of perspectives.

With predictable results. The Supreme Court has invented doctrines, including qualified immunity, that have fueled racist policing and needless police violence. It has shielded prosecutors from liability for withholding exculpatory evidence. It struck down Section 5 of the Voting Rights Act based on the incorrect claim that it was no longer needed, thus hastening a new voter suppression era. It sanctioned President Donald Trump’s travel ban despite overwhelming evidence that it was steeped with anti-Muslim animus. America is more racist, more violent, and less democratic because of these decisions, and because of who was empowered to make them. 

Donald Trump, a bigot, is exacerbating this problem. None of his 53 appellate judicial nominees have been Black. To my knowledge none of them have spent the majority of their careers at nonprofits or civil rights organizations. This includes Trump’s nomination of Judge Amy Coney Barrett, a conservative white law professor and former corporate lawyer, to fill Justice Ginsburg’s seat.

It does not help that the process that has allowed Trump to make these nominations, and exacerbate the judiciary’s imbalance, was never approved by a majority of the American people. A minority of voters gave Republicans control of the Senate, and they used that control to block many of President Obama’s nominees, from the nomination of Judge Merrick Garland to the Supreme Court, to the nomination of Myra Selby, a Black woman, to a federal appeals court. Who sits in that seat now? Why it’s Judge Amy Coney Barrett. 

I’m sorry, but to call this system fair is a joke. Judges have very difficult jobs, and I sincerely believe they try their best in every case. Their good-faith efforts deserve our respect. But I also have clients, and it would disrespect them to say their cases can or will be decided by “the law,” rather than by the ridiculously imbalanced set of human beings empowered to interpret it.

It’s therefore hilarious when people argue, as some are now doing in support of Judge Barrett’s nomination, that we should choose justices based on their “brilliance.” What ails the Supreme Court is not a lack of brilliance but a lack of judgment. The most significant decisions at that court are basically applied sociology, performed badly, by people with a narrow range of experiences. And besides, as I learned when I suddenly became a smart federal defender, which lawyers are perceived as “brilliant,” and therefore identified as potential future judges, can depend on the identities of the current judges who heard their cases. 

For similar reasons, I’m not interested in debating which political party started the ongoing judicial nomination wars. Either way, there is crisis-level unfairness in the federal judiciary, and no lawful tools should be off the table to address it. Not term limits. Not increasing the number of judges. Nothing.

Without these tools, the next several decades will offer little hope of mitigating decades of unfair precedent and building a federal judiciary that is capable of delivering fairness and justice to people who have business in federal court. Judge Barrett seems headed for confirmation to the Supreme Court. Unless something changes, Judge Barrett and other right-wing judges figure to control the law indefinitely.

Of course, it’s unclear whether Joe Biden will win the election or who he will nominate if he does. And it’s unknown whether Senate Democrats will ever regain power, let alone whether they would wield it to add justices in order to loosen the right-wing’s grip on the Supreme Court. But that is what’s necessary. Otherwise lawyers like me are going to find that we are no longer considered “brilliant,” and our clients are going to find that they no longer have rights.

So, to paraphrase the late Justice Ginsburg, if you ask me when there will be enough former lawyers for the accused and the vulnerable on the Supreme Court, my answer is: when there are eighteen. 

Matthew Segal is legal director of the ACLU of Massachusetts; the views expressed are his own.

Coronavirus In Jails And Prisons

New Jersey is close to enacting a law that would release up to 3,000 people from prison, advocates urge New York legislators to consider early parole for elderly prisoners, and California prisons see a new spike in coronavirus cases.

Photo illustration by Elizabeth Brown.

Coronavirus In Jails And Prisons

New Jersey is close to enacting a law that would release up to 3,000 people from prison, advocates urge New York legislators to consider early parole for elderly prisoners, and California prisons see a new spike in coronavirus cases.