John Blomster: Welcome to ºìÌÒÊÓƵ, a podcast where we explore today's biggest legal topics with distinguished guests and experts from around the globe. I'm John Blomster. And today we're speaking with La Rond Baker, special counsel for Affirmative Litigation and Policy at the King County Department of Public defense. La Rond has spent her career in the legal profession on the frontlines of civil rights and criminal justice reform initiatives in Washington State and at the DPD she does extensive legislative work, strategically litigates appeals and also acts as co-counsel in litigation involving systemic issues that harm DPD’s clients. She's also the recipient of the 2016 Loren Miller Bar Association Award for Excellence in the law and she also happens to be a ºìÌÒÊÓƵ alumna. This spring, she joined the law school for a special Law in the Time of COVID-19 public panel on vulnerable populations where she shared insights into the pandemic’s impacts on prison populations. So, we're excited to discuss this very topic today.
So, La Rond, thank you for joining us.
La Rond Baker: Thank you so much for having me, John.
JB: So COVID-19 has obviously an unprecedented situation that's completely turned our world upside down. And it is particularly dangerous for incarcerated individuals given the conditions inside jails and prisons. So, before we get into the underlying issues that the pandemic has shined a spotlight on, can you describe what the conditions are like and why they pose disproportionate risks to the prison populations?
LRB: Yes, jails as we’ve seen across the country during this pandemic are the hot points for the spread of COVID-19. And it's precisely because of the nature of the jail that's causing this. Jails are by design not able to allow for social distancing. And they don't allow individuals the opportunity to, you know, maintain a clean or safe living environment. They are the definition of a congregate setting. You have individuals—30, 40, 50, 60 individuals—living in dormitory-style housing, where there are bunk beds, in some places where there's overcrowding people are also on the floors. Even in the situations, parts of the jails where there are individual cells, oftentimes those cells have two people who live in them. And even though there are individual cells, those cells open up to a communal living area where people eat their food together, where they share showers. They share telephones. And even in places where, like King County, where individuals who are incarcerated are provided with cleaning products, there's no way to guarantee that all of those commonly touched communal areas are actually cleaned or sanitized in a way that's able to maintain safety for people incarcerated there.
Further, the populations in jails are much more transient than say prison populations. Jails by design and default are places where people who are taken off the street and are booked into the facility and are introduced to other people who are in the facility, staff and people who are living in the facility. There's high turnaround. And so you have a large volume of people who are continuously mixing together in a situation where they're unable to engage in social distancing. In an instance, where there's insufficient testing to determine whether or not people who are being brought in are positive for COVID-19. And so you end up with these sort of hotbeds of the virus. Further. I think another reason why jails are of such concern is that you have staff who work in these facilities, and they come into the facility every day and they go home, and they go to the store and they go to the gas station, and they're around their children and their families and come back into the into the jail. And so jails are not just a transitory population of those incarcerated, but when you have hundreds of staffers coming in and out, who are then dealing with the people who are incarcerated in the facility, you just end up with this very volatile location in which the disease can spread very quickly.
JB: So, this pandemic has really amplified problems and discussions that we were already having in terms of how we incarcerate people, how we booked people into jails in the United States, how we deal with mental health and prisons. I mean, there's so many different facets of the problem, but what are some of those key issues that we may be discussing more urgently as a result of the dangers caused by the pandemic in regards to the prison system?
LRB: So, what we're seeing in King County and actually across the country, have been moves to reduce jail populations and prisons, right? Because you can't have 2,000 people in one building and the staff that's required to keep them safe, without creating undue risk of COVID-19. And so here in King County, I believe the jail's population has been reduced by about 600 people since the beginning of this pandemic, and they've managed to continue keeping that population down significantly. And so that brings a lot of questions to the surface. One, why were we incarcerating all of those people, if we're able to release them? And we're not seeing any, like, increased danger to the community, any major increase in violence? There's real questions about you know, we've as a society been looking at our rates of incarceration for a long time, you know, the United States incarcerate a much higher rate than any other country. And the fact that we are releasing so many people and not seeing a significant negative impact in our communities really does raise a question of whether or not those people needed to be incarcerated to begin with, or whether especially in jails, those people were incarcerated simply because they were poor and could not post bail or bond in order to be released.
We also are seeing significant issues around mental health. So, unfortunately, because our state and our country tend to deprioritize providing significant mental health resources to people, our most vulnerable in the community, especially the homeless, the jails end up being the location in which people receive mental health treatment. The jails end up being places where individuals who are vulnerable, who are having serious mental health crises, where people think that they can get them help because there's not necessarily other resources in the community. And that population that's currently incarcerated, that are waiting for determinations of their competency to stand trial or restoration in order for their competency, those individuals are incarcerated pending the receipt of mental health services. So, pending medical care. Right now that medical care is put on hold. In jail evaluations are not happening. And the state psychiatric hospitals have really decreased, if not completely stopped, admissions into the hospitals. And so we have these critically ill people who are suffering significant mental health issues who are being held in the jail for an indeterminate amount of time. And that time doesn't necessarily go towards their criminal matters. So, that population is really vulnerable right now, especially because they are being held in solitary confinement-like conditions. So, in order to social distancing in the jail as much as possible, the jail is really keeping people in significant lockdown in the rack back cells. And so that practice of functional isolation for most of the population has significant impact for people with mental health issues. Isolation has been known to cause deterioration in people who are suffering mental health crises. And to exacerbate mental health crises.
JB: From as I understand it, isolation is used as a measure of keeping at risk prisoners who are at risk of, you know, hurting themselves or others. And now if you're using that for people with mental health issues or as a way to social distance, I mean, does that not pose significant problems that outweigh the benefits of putting someone who's already at risk in that situation?
LRB: There are serious constitutional issues with how people are being subjected to prolonged incarceration, including isolation, pending the receipt of competency services either that or restoration. There is a lawsuit called True Blood v. the Department of Social and Health Services that was litigated back in 2016, 2017. I was one of the trial attorneys on it. And that case was specifically about this issue pre-COVID. So, the fact that people have been subjected to prolonged incarceration while waiting for mental health services is not new. It's been something that the state has been trying to rectify for years. However, in this COVID moment, the problem is that there are no opportunities for people to receive mental health services. And so they're being continually subjected to prolonged delays. And so there's a federal court that's looking at this particular issue, and hopefully, we'll take some action soon to protect the rights of those who are incarcerated.
But there is a substantial question, you know, if the purpose of their incarceration is to provide mental health services to bring them back to competency, and they're not getting it what is the purpose of their continued detention, especially in such punitive conditions? And we're seeing that sort of across the board, so that people who are most at risk, or that the jail is most at risk for, really adverse responses to COVID-19, they're being held in these sort of protective units for vulnerable populations. And they're also being held in isolation-like conditions. Or they're being let out maybe an hour a day from their individual cells. Purportedly, they're being led out where they're able to interact with two to three other people at the same time when they're out. But functionally, they are being in isolation, and pending really significant violent crimes, it's hard for me to understand why we are continuing to hold these people, continuing to incarcerate them in a way that's so punitive, and so psychologically detrimental and in a way that even though they're in this protected unit, they're still really vulnerable for contracting COVID because they're in a jail. Because they don't have the choice of who they interact with. The staff are coming in. There are still inmate workers who go around and provide food to all of the different units in the jail.
You know, for many people who are incarcerated, there are significant questions about whether or not they need to be incarcerated for public safety balanced out against their right to not be subjected to or exposed unnecessarily to COVID-19. One of the things that we have managed to do, so the department of public defense has worked really closely with the courts, the prosecuting attorney's office, the jail, in that reduction I think I mentioned earlier, the jail population has been reduced by about 600 people, maybe a little bit more than that. And the way in which that population was reduced is there were individuals that the prosecuting attorney and public defense just agreed to just be released. There were people who were brought back before the court for a redetermination of their bail and bond setting and were ultimately released.
And then there also were sort of booking criteria that were put in place so that most misdemeanors would not be booked into the jail. And we hope that most non-violent felonies will also at some point not be booked into the jail because all of those categories of people are brought into the jail and they're there for 24 to 48 hours, and then they're released. And that just increases the exposure for staff and the other people who are incarcerated in these facilities. In fact, the first two COVID-positive individuals who are in the King County Jail, were only there for 24 and 48 hours. They were both individuals who were arrested for DUIs, they were brought in, they were booked in, they were held in, you know, general holding area. They were exposed to staff and then they were released because they were never going to be held for any significant amount of time. We need to stop those types of bookings in order to keep the people who are in he facility safe. Ultimately, I think long run what this means is COVID-19 is going to be here with us for a long time. We're going to need to keep the jail and prison populations as reduced as possible. And I'm hoping that as a society, we learn from that and in a year from now, or a year and a half from now, when we are more safe, that we don't just automatically revert back to old practices. And I think there are many ways in which we are unlikely to revert back to our old practices of incarceration. I think, you know, unfortunately, the economic impact of this has not fully been felt yet. But we're not likely to see funding at the rate in which we have seen it in the past for government entities, which means that jails and such may be underfunded in a way where they have an impetus to keep the population that's incarcerated down.
Also, I think jail staff are much more concerned and aware about the interplay between their safety and their families’ safety, and those who are incarcerated there. And so I'm hoping that we'll see that the guild—jail officers—really pushing for a reduction in population in order to ensure everyone's safety. And I think there are, you know, sort of our leadership at the county level, is also beginning to sort of recognize and think through how our criminal justice system has been incarcerating people in seeing the changes that have happened in this moment.
JB: Are these measures being looked at as temporary, you know, crisis emergency response measures, or are there opportunities for more foundational change, you know? Because in a lot of different industries and a lot of different areas, you know, the response efforts are to get us through and, you know, once we're in recovery, you know, then we can return back to normal, right? So where are there opportunities as we look beyond the crisis to really have these lasting long term impacts and reforms that we've needed so badly when it comes to incarceration in the United States.
LRB: I mean, I do think that these changes have been viewed as temporary, right? They are changes that were made in response to an absolute crisis. However, I do believe that most parties in the criminal legal system are already beginning to think about whether or not it makes sense for many of these changes to be made permanent. Our criminal legal system was already at a breaking point due to our high rates of incarceration. Communities were already being, you know, torn apart. So much money was being pulled out of communities of color to support people who are incarcerated. I do think that there is an opportunity for long term change, and I think that conversation will begin in more earnest soon. I think we're still too early, and we still need to get the population of people who are incarcerated down.
Further, just because we haven't had a substantial outbreak doesn't mean that we are not going to. So, we need to really continue to decrease the population. But I do think that conversations around keeping the incarcerated population down will likely transition to permanent solutions. And even if the way in which they're framed are not in the way of permanent solutions, because COVID-19 will be around for quite some time, these practices are going to have to stay in place for what like a year. I think it'll be really hard to come back to traditional practices after that. So, I do think many of these reforms will be lasting. And we will be pushing for that for sure.
JB: And finally, what are broader advocacy efforts that are underway towards these long term positive impacts that we should be aware of as citizens, as people who want reform, you know? What should we be aware of and supporting in terms of those long term reforms in regard to how we incarcerate people in the United States?
LRB: Now, one of the main forms of activism that I've been in advocacy that I've been really inspired by are all of the community groups, religious groups, community groups from a wide variety of backgrounds that I’ve been doing advocacy with their elected officials to advocate for getting people out of the jails, keeping people from going into the jails, and also asking for a commitment to long term implementation of many of these policies and practices. And I think a lot of advocacy with our elected officials go a long way for shifting our criminal legal system and also being really aware of who we elect as judges. You know, the judges have great latitude in how they choose to set bail and when they choose to release people on their personal recognizance. And we all need to pay a lot more attention to who we are electing and putting on the bench and their sort of history of approaching defendants in the criminal legal system.
JB: Personally, what is your outlook? This is an impossibly challenging time, but we are seeing positive steps that are being taken in the interim. Personally, how are you feeling about what we're seeing happening? And in terms of outlook for the future? What is your feeling?
LRB: You know, we are in the midst of a pandemic, and many people will be economically insecure from this mess, and many people will lose loved one. That is heartbreaking. And I want to acknowledge that. However, it does create a moment of opportunity and change for the criminal legal system that I don't think anyone will be able to ignore. The fact that we are seeing so many people die in jails and prisons across the country has I think hit most of us at home in a way in which people who hadn't thought about the criminal legal system very deeply, are thinking about it in a different way now. I also think once you end up decarcerating so many people and reducing the populations of those who are incarcerated it's really hard to go back to heightened levels of incarceration, to justify removing people from the community, from society, from their families, from their friends, removing them from the economic pool, when it's clear that their incarceration did not further public safety, because we've released so many people and not seeing any uptick. So, I'm very optimistic. And then also seeing the collaboration between some of the actors in the criminal legal system to make these reforms that we've seen happen, that's incredible. I think there have been collaborations that will allow, you know, entities that hadn't been working necessarily well together, to be able to more actively collaborate to continue these changes in the future.
JB: La Rond Baker is special counsel for Affirmative Litigation and Policy at the King County Department of Public Defense. This spring, she joined the law school for a special Law in the Time of COVID virtual public panel focusing on the pandemic’s impact on vulnerable populations. You can learn more about her work and find additional resources on everything that we discussed today in the show notes on our podcast page at law.uw.edu.
La Rond, thank you very much for taking the time to speak with us.
LRB: Thank you so much. I really appreciate it.
