This is Toby Sumpter with your CrossPolitic Daily News Brief for Tuesday, July 14, 2020.
Today’s Daily News Brief is a bit longer because I couldn’t help myself. Today you will hear about California releasing thousands of inmates in the Holy Name of Covid, Trump Denies Minnesota Governor’s request for funds because the Minnesota Governor is an idiot, a short legal history of the US’s terrifying track record with quarantines, with a brief splash of sunlight coming from Kentucky.
California to Release 8,000 More Inmates in the Name of COVID
SACRAMENTO – The California Department of Corrections and Rehabilitation (CDCR) announced last Friday, July 10th, additional actions to protect its most vulnerable population and staff from COVID-19, and to allow state prisons to maximize available space to implement physical distancing, isolation, and quarantine efforts. The department estimates up to 8,000 currently incarcerated persons could be eligible for release by end of August under these new measures, further decompressing facilities.
“We’re glad the Governor is taking action to release more people. This is absolutely critical for the health and safety of every Californian. Too many people are incarcerated for too long in facilities that spread poor health. Supporting the health and safety of all Californians means releasing people unnecessarily incarcerated and transforming our justice system.” Jay Jordan, Executive Director, Californians for Safety and Justice
CDCR’s previous pandemic emergency decompression efforts have reduced inmate populations systemwide by approximately 10,000, to reduce the risk of COVID-19 transmission within its facilities.
“These actions are taken to provide for the health and safety of the incarcerated population and staff,” CDCR Secretary Ralph Diaz said. “We aim to implement these decompression measures in a way that aligns both public health and public safety.”
Under release authority granted to the CDCR Secretary, which allows alternative confinement or release in any case in which an emergency endangering the lives of incarcerated persons has occurred or is imminent, CDCR is pursuing a series of cohorted release efforts.
Some categories of releases will require additional review for certain incarcerated persons, and some cohorts will be screened on a rolling basis. The department estimates, that through these new efforts up to an estimated 8,000 currently incarcerated persons will be eligible for release.
All individuals will be tested for COVID-19 within seven days of release. CDCR is working closely with stakeholders, local law enforcement partners, and other agencies to leverage state and federal resources for housing in the community to help meet the reentry needs of these individuals. For all those releasing under these efforts, CDCR is making victim notifications in accordance with all CDCR procedures and state law.
“The Anti-Recidivism Coalition is encouraged by the Governor’s response to the dramatic spread of COVID-19 through California’s prisons. During these difficult times, it is vital that we all work to protect this vulnerable population and treat them with the dignity and compassion they deserve.” Sam Lewis, Exec Director of Anti Recidivism Coalition.
Four levels of early release have been approved: 180-day release, one-year release, Positive Programming Credits, sort of an additional good behavior on a case by case basis
- Not be condemned to death or serving life without the possibility of parole
- No serious rules violations between March 1 and July 5, 2020
CDCR estimates that nearly 108,000 people will be eligible for PPC. Of these, about 2,100 would advance to the point they are eligible for release between July and September.
And lastly, High-Risk Medical: Individuals deemed “high risk” are considered to be at greater risk for morbidity and mortality should they contract COVID-19. They include people over age 65 who have chronic conditions, or those with respiratory illnesses such as asthma or chronic obstructive pulmonary disease (COPD). Based on individual review of each incarcerated person’s risk factors, an estimated number of releases in this cohort is not available.
The CDCR is reviewing potential release protocols for incarcerated persons who are in hospice or pregnant, as they are considered at high risk for COVID-19 complications. Everybody will be reviewed based on both their current health risk and risk to public safety.
Christians should keep in mind that we have crazy running in both directions here. It is not the case that we have a biblical justice or criminal justice system in place in this here country. I of course prefer this criminal justice system to any other criminal justice system I am aware of on this planet because it has been heavily influenced by biblical principles, but just remember that there are likely many folks in prison for crimes that the Bible would not put them in prison for. Theft or vandalism for example are crimes that should be repaid and made right through restitution or temporary indentured servitude, working off a debt. But it’s entirely dishonest to weaponize a health crisis to revamp criminal justice, and since we have a thugs running California, I don’t trust them to revamp criminal justice on the fly with much of anything resembling good sense or biblical law.
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Trump Denies Federal Add to Minneapolis
President Donald Trump has denied a request from the Democratic governor of Minnesota for money to rebuild parts of Minneapolis ravaged by rioters following the killing of George Floyd.
Gov. Tim Walz (D) asked the president to declare Minnesota a “major disaster” zone in a request to the Federal Emergency Management Agency, which would send the state’s progressive government over $500 million after more than 1,500 buildings were damaged by looting and rioting in the wake of Floyd’s death, the Star Tribune reported.
One Minnesota Republican urged Trump to reject the request: “If the federal government is expected to assist in the clean-up of these unfortunate weeks, it has an obligation to every American — prior to the release of funding — to fully understand the events which allowed for this level of destruction to occur and ensure it never happens again,” Rep. Tom Emmer (R-Minn.) wrote in a letter to the Trump administration.
A conservative lawmaker from South Carolina praised Trump’s ultimate decision to deny the request for taxpayer dollars.
Minneapolis Mayor Jacob Frey (D) ordered the police to stand down as the city literally went up in flames. Even as rioters torched the Minneapolis Police Department’s 3rd Precinct, law enforcement officers abandoned it and let it burn.
The New York Times described one night of mayhem this way:
As the night wore on, dozens of buildings burst into flames, without a fire crew in sight. A six-story apartment building that was still under construction collapsed into a ball of fire. A high-tech factory was set ablaze. Residents called 911 desperate for help, but dispatchers were overwhelmed.
Over three nights, a five-mile stretch of Minneapolis sustained extraordinary damage. The police precinct house itself was set on fire, after the mayor age orders to evacuate the building. A month later the city is still struggling to understand what happened and why: Not since the 1992 unrest in Los Angeles has an American city suffered such destructive riots.
In addition, progressive politicians in Minneapolis have repeatedly ridiculed law enforcement offices and have vowed to dismantle the city’s police department — even as violent crime continues to surge.
Asked by CNN what Minneapolis residents should do if their homes are broken into and there are no police officers to call, City Council President Lisa Bender said, “Yes, I mean, I hear that loud and clear from a lot of my neighbors, and I know, and myself, too, and I know that that comes from a place of privilege because, for those of us for whom the system is working, I think we need to step back and imagine what it would feel like to already live in that reality, where calling the police may mean more harm is done.”
A group of black peace activists held an “urgent news conference” last week, speaking out against city policymakers’ plan to do away with the police department.
“It is time for us to stand up in this city,” said Lisa Clemons, a former police officer and activist with “A Mother’s Love.” She went on to tell reporters, “It is time to tell the city council that utopia is a bunch of B.S. We are not in Mayberry R.D.F. We are in the Wild, Wild West, and it is time for some answers.”
Judge Issues Restraining Order on the Governor of Kentucky
Some good news coming out of FRANKFORT, KY — Attorney General Daniel Cameron announced a Scott Circuit Judge ordered Gov. Beshear to cease issuing or enforcing executive orders related to COVID-19 unless the orders meet specific criteria for an emergency as outlined by state law.
The Judge stated that, in order to issue and enforce executive orders about COVID-19, the Governor must [shock] specify the state of emergency that requires the executive order, the location of the emergency, and the name of the local emergency management agency that has determined that the emergency is beyond its capabilities.
“The Governor cannot issue broad, arbitrary executive orders apart from the requirements of state law, and the Judge agreed by today issuing a statewide temporary restraining order,” said Attorney General Cameron. “This is a clear win for the rule of law and will help Kentucky families and businesses across the Commonwealth who have suffered and continue to suffer financial losses and economic hardship because of the Governor’s executive orders.”
Fairly Terrifying Precedent for Coercive Quarantines in the US
https://www.lawfareblog.com/long-history-coercive-health-responses-american-law
This is a welcome pushback on an otherwise rather terrifying history of coercive quarantine practices in the United States.
At Lawfareblog dot com, you can read a long history of coercive health responses in American law. And there are other articles circulating arguing that there is a long precedent, limiting the federal government’s power to quarantine, but granting nearly plenipotentiary police powers
for states and governors during emergencies, including epidemics.
For example, the article cites a 1905 case, Jacobson v. Massachusetts, the Supreme Court upheld compulsory vaccination during a smallpox outbreak. It explained that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good…. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Courts continue to rely on Jacobson to uphold compelled quarantines. Most recently, during the 2014-2016 West Africa Ebola outbreak, two federal district courts relied on Jacobson to uphold involuntary quarantines of travelers returning from affected countries. In Hickox v. Christie, the judge explained that New Jersey officials were “entitled to some latitude in its prophylactic efforts to contain what is, at present, an incurable and often fatal disease.”
In Liberian Community Association of Connecticut v. Malloy, the court held that Connecticut’s temporary quarantine, “limited in duration to the incubation period of a virus responsible for an epidemic that killed over 11,000 individuals, was not objectively unreasonable.”
The article suggest that the Jacobson case establishes two related principles that we anticipate would be decisive in legal challenges to coercive measures of epidemic control.
The first is whether the measure is deemed necessary by experts in public health, a factor on which the court in Jacobson placed great weight:
[I]t is to be observed that the legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the board of health, that was necessary for the public health or the public safety. The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions.
The second is that courts should review such judgments deferentially, intervening only if they are arbitrary, unreasonable or far beyond what is reasonably necessary:
[I]t might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.
This recognizes, appropriately, that health experts possess vital scientific expertise that the judge does not, and that in an epidemic the exigency of stopping the outbreak trumps most competing considerations. This level of deference is perhaps analogous to the “substantial evidence” standard in administrative law, which requires only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” and which the Supreme Court has analogized to review of factual findings by a jury.
Under Jacobson, courts might reject a measure only if it were arbitrary, were unreasonable or went far beyond what was reasonably required for the safety of the public. Such a finding would likely be closely tied to whether or not it had been adopted on the recommendation of experts in public health.
One example of courts’ rejecting a measure is Jew Ho v. Williamson, which challenged a wholesale quarantine of San Francisco’s Chinatown in response to an outbreak of bubonic plague in 1900. The city had sealed off San Francisco’s Chinatown with barbed wire, while police enforced the quarantine. Jew Ho, a small-business owner who lived just inside the quarantined area, challenged the board’s action, arguing that it was both illegal and enforced only against Chinese residents. A federal district court ultimately agreed, holding that the quarantine was not medically justified and thus not a reasonable regulation authorized by the police power, and that its racially discriminatory enforcement violated the Fourteenth Amendment’s Equal Protection Clause.
While much of the yeah-butting of legal precedent for quarantines has a point, this really shouldn’t come as a reason to quiet down and relax. If legal precedent is actually far worse than many of us expected, then we need to get busy. But the fact remains that at least one circuit court judge has recognized that some of these emergency quarantine orders are arbitrary and unreasonable and therefore illegal. It also stands to reason that a case might be made arguing that if the fatality numbers for COVID-19 are within the ranges of other airborne respiratory sicknesses of the last century, it does not in fact represent an existential threat or crisis and therefore does not warrant emergency powers and coercive quarantines of the healthy.
David Bansen Gives Us the Numbers
I’m way over time, but I did want to point you to David Bahnsen’s Daily Covid Markets Missive, if only for this last weekend’s edition, which crunches the COVID numbers very carefully. Just to whet your appetite, he begins by noting: “The mortality data we get is reported by states. The date of when the deaths happened is irrelevant to the media. If 2 people died on a day in New Jersey, and 55 people died weeks and months ago, the media reports that 57 people died that day. It happens over and over. But eventually those deaths get reported to the CDC, and the CDC actually updates (with a lag) when the deaths occurred, in addition to when the deaths were reported… In fact, 3,500 of the 6,600 deaths reported last week took place before May 2.”
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