by Ken Silverstein

Don Specter is the executive director of the Berkeley, California-based Prison Law Office, a nonprofit public interest law firm that provides free legal services to adult and juvenile offenders. It has litigated numerous successful institutional reform cases that, among other things, have improved health-care services, guaranteed prisoners with disabilities reasonable accommodations and equal access to prison programs, reduced the use of excessive force, limited racial discrimination and restricted the use of solitary confinement in adult and juvenile correctional systems.

When was the Prison Law Office founded and what is its history?

In 1976, two recent law school graduates started the Prison Law Office in an old shack right outside the gates of San Quentin with a small donation from Catholic Charities. Their focus was to improve the living conditions at San Quentin by providing free legal services to the people confined in that prison. The first cases involved relatively discrete issues on behalf of individuals at San Quentin. As the staff gained more experience and with the pro bono help of large law firms the office began bringing class actions at individual prisons on behalf of people in segregation, on death row and for medical and mental health care. When the California prison system started to “comply” with court orders at individual prisons by shipping people to other prisons, the office began to litigate a series of cases involving medical care, disability rights and mental health care against the entire California state prison system and its 35 prisons. Since that time, we have expanded our reach to county jails, the prison system in Arizona, juvenile facilities and most recently two federal prisons in California that are struggling with COVID-19.    

What are the main problems in California’s prisons and jails? Has there been any notable improvements during the past few years? 

The main problem in California’s prisons is and has been overcrowding. In the early 2000s, the state’s prison population reached almost double its design capacity. In 2005, along with our colleagues at Rosen, Bien, Galvan and Grunfeld, we brought motions to reduce the prison population, and after a trial before a special three-judge panel the U.S. Supreme Court ruled that California had to dramatically reduce its population because overcrowding was causing unconstitutional conditions. As a result, the prison population has been reduced from about 170,000 people to about 124,000 at the present time. Although greatly reduced, the population still remains substantially above design capacity, which interferes with the prison operations, including its ability to comply with social distancing requirements to reduce the spread of COVID-19.     

How would you rate Governor Gavin Newsom when it comes to criminal justice reform?  

Generally speaking, Governor Newsom has done a very good job of running the state of California, especially during the pandemic. However, when it comes to criminal justice reform, his actions have not matched his rhetoric. Although in his inaugural address he promised to reduce mass incarceration, his policies have not directly addressed that issue and he has resisted efforts in court and in negotiations to significantly reduce the prison population.  For example, there are too few mental health staff to treat the number of mentally ill patients in the prison system, leading to one of the highest suicide rates in the nation.  Yet, the governor has not taken any significant steps to reduce the number of mentally ill individuals in prison. 

How much has your work been changed by the outbreak of the COVID-19 pandemic? Have you had any success in getting prisoners released to reduce overcrowding? 

At the moment, most of our time is being spent trying to protect people in prison from the COVID-19 virus. We have filed several motions to reduce the population density in California’s prisons and another one in a county jail. We filed two lawsuits against two federal prisons in Southern California alleging that COVID-19 was running rampant through those prisons. Although the motions against the state prison system haven’t resulted in any direct relief, the pressure of potential court intervention has caused the department to make various improvements consistent with the CDC guidelines. In response to our motion against a Southern California county, the court ordered system-wide relief but did not order any releases. In general, the jails in California have done a much better job of reducing their populations than the state prison system. 

Prisons and jails have become some of the biggest hot spots for coronavirus. What needs to be done to prevent what looks like a full-fledged disaster for prisoners?

The biggest threat to people living in prisons is that they often have no practical way of preventing contact with other people who may be infected and contagious. Prisons and jails are often overcrowded, which exacerbates the potential for contact and therefore infection. The other major threat is that many of the people who are incarcerated are at a high risk of suffering serious injury or death because of their age or health if they become infected. The safest approach is to reduce the density of the population so that individuals can maintain the proper physical distance and to transfer or release individuals who are a low public safety risk and a high medical risk. 

Has public opinion turned in favor of criminal justice and prison reform? If so, has that moved political leaders in a more progressive direction? What are the primary obstacles to achieving your goals? 

I believe public opinion very much favors criminal justice reform. That is why in the last few years the California electorate has voted for several initiatives that have reduced prison sentences and made more people eligible for parole. However, politicians still face the prospect of being called soft on crime if they vote for or sign a bill that reduces sentences. Even in the case of a progressive governor, such as Gavin Newsom, that prospect, plus opposition from law enforcement and victim’s rights groups, often thwarts reform. Nevertheless, Governor Newsom recently proposed to reduce the prison population through sentence credits and to close two prisons in the coming years. The state’s expected budget deficit from COVID-19 probably played a role in advancing these proposals. 

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