Month: April 2020

Los Angeles regulators will relax rules prohibiting restaurants from selling grocery items after the city’s health department began shutting down dining establishments that were operating as makeshift grocery stores without the required “grocery permit.”

But the picture is still considerably less rosy than the one depicted in yesterday’s report from The Los Angeles Times. The new policy continues to discriminate against restaurants in favor of licensed grocery stores and will make it decidedly more difficult for dining establishments to offer basic goods.

“Public Health is allowing restaurants to offer grocery items as part of their menu for takeout, pickup and delivery,” a department representative told The L.A.Times yesterday.

In other words, it is still illegal for restaurants-turned-grocery stores to operate as any convenience or market does, with patrons permitted to enter the premises and peruse what they have to offer. Customers will only be allowed to grocery shop from those restaurant stores remotely, which is a tougher sell.

“We need to find a way where [they will] let us take walk-in shoppers,” says Robert Kronfli, the co-owner of Bacari PDR. His restaurant-turned-grocery store was forcibly closed by L.A. Public Health on Friday after a public health inspector cited his lack of permit. It was allowed to reopen on Sunday under the new guidance, though he says it hasn’t helped much: “Eighty-eight percent of our revenue was coming from walk-in shoppers. Since they cut it down to delivery and takeout only, our sales have dropped dramatically.”

A crop of restaurants in L.A. recently started offering grocery items—from produce to paper goods—as a way to stay afloat amid COVID-19 and the associated government-enforced social distancing orders that have closed most small businesses. Public health inspectors responded by shuttering those establishments, citing insufficient licensing.

“It’s not really possible for a restaurant to become a grocery store,” Dr. Barbara Ferrer, director of Los Angeles County Public Health, said in a briefing Monday. “You cannot just decide you want to sell groceries.”

But that mandate doesn’t make sense when restaurants are already trained to prioritize food safety, have the space necessary for six feet of social distance, and can allow local residents to avoid traveling to more crowded grocery stores. 

“Elderly people in the neighborhood really enjoy coming to Bacari PDR,” Robert Kronfli said yesterday. “It was a super chill shopping environment,” he noted, with “only one or two people in there at once.” That was a welcome reprieve for people who are “afraid to go to large supermarkets right now because of the lines and because of the social distancing thing.”

Restaurants-turned-grocery stores also have access to items like toilet paper and cleaning supplies, which have been noticeably absent from many large chains since COVID-19 began to spread.

Though the city has waived the grocery permit restrictions, it appears that another regulation is hindering Kronfli and those like him from serving their community: Governor Gavin Newsom (D) has prohibited all restaurants from offering dine-in. That shouldn’t be a problem on its face—Kronfli is no longer offering seated dinner service. But in the eyes of California regulators, it also means that restaurants selling groceries can’t allow customers inside their establishments. 

According to Kronfli, the head of the L.A. Public Health Department told him that she “didn’t want to go against Newsom’s order and Mayor [Eric] Garcetti’s order that says there should be no collecting of people in dining rooms,” regardless of the fact that grocery chains and convenience stores are operating in the very way that Kronfli would like to.

“We aren’t dining rooms anymore,” said Kronfli. “You have to just look at us as a convenience store—the same way as you’d look at a supermarket.”

That interpretation of California’s social-distancing mandate will be the next hurdle for Kronfli and those like him, though it seems that Mayor Garcetti is on his side.

“I think this is absolutely a time for people to be creative, to relax whatever rules as long as people are operating with safe distancing in critical businesses to help people get food and to help people survive,” Garcetti said at a Friday press briefing. He then deflected to the health department: “That’s my philosophy, but that is a call for County Public Health.”

In that vein, California may be able to adopt the model in place in Texas, which is allowing restaurants to sell bulk retail—permit or not, walk-ins or not. 

“A vital part of our COVID-19 response is to ensure that there are readily available supplies of food and resources, whether that is at grocery stores or, in this case, restaurants,” said Governor Greg Abbott (R). “This guidance gives Texans another easily accessible option to buy the food they need to support their families.”

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Please see my statement regarding clarification on essential businesses during the #Covid19 Crisis: #LASD #FlattenTheCurve #SheriffV pic.twitter.com/tJSMyQrGDo

— Alex Villanueva (@LACoSheriff) March 31, 2020

For more, see this post on the Second Amendment lawsuit against the Sheriff, this post on the DHS advisory, and this NPR (Brakkton Booker) story on the Sheriff’s decision.

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In response to media-driven fears that New York State went too far in eliminating bail demands for people charged with low-level crimes, Gov. Andrew Cuomo has promised to change the state’s recently implemented new rules.

The proposed changes were added Tuesday evening to a last-minute budget deal which has not yet passed. Unsurprisingly, activists who pushed for bail reforms are not happy. New York’s law enforcement unions, some of whom initially objected to the extent of the initial changes, also aren’t happy with the changes.

New York State hotly contested bail reforms went into effect in January. Judges could no longer demand cash bail for most non-violent misdemeanor crimes. There were exceptions to that rule, and bail could still be ordered for more severe crimes. The goal was to reduce the number of people who are being held behind bars solely because they can’t afford the cost of bail.

But New York State also has a distinct issue with its reforms, which is that the state didn’t write accompanying rules that allow a judge to use the perceived “dangerousness” of a defendant to order bail or detention. The reform Cuomo has attached to New York’s budget will give judges discretion to detain somebody who has been charged with a crime in order to “prevent the principal from committing a crime involving serious injury to another person based on the facts of the instant case.”

The other big change inserted into last night’s budget bill is the complete elimination of cash bail for all offenses. Judges will have the power to set up a host of demands, but cash bail can’t be one of them. Instead, judges can require defendants to report regularly to a pretrial services agency, to temporarily forfeit their passports and guns, and to refrain from contacting others involved in the case. They can also determine that a defendant should not be released and keep them behind bars; those defendants would not be able to use cash bail to secure their release before trial.

This is kind of how New Jersey’s bail reforms mostly work. Before New Jersey eliminated bail entirely, judges also lacked the power to detain on the basis of dangerousness. The state required that anybody who had been charged with any crime (except for a capital crime) to be granted a cash bail offer. So, in order to eliminate bail entirely, New Jersey changed its rules to allow for pretrial detention for anybody deemed too dangerous to be released.

What makes New Jersey’s system different from what New York is considering as part of its budget bill is that New Jersey courts have a robust and well-funded pretrial court that operates on the assumption of release for every defendant who has been charged with a crime. A defendant can be detained, but a prosecutor has to make a case for detention—the judge cannot initiate pretrial detention orders; the defendant is also represented by counsel. After a short presentation, the judge makes a decision to detain a defendant pretrial or release pretrial.

That doesn’t appear to be in New York’s late-night proposal. While the bill calls for judges to impose the least restrictive conditions necessary to make sure the defendant will return to court and refrain from criminal behavior until then, it also gives judges much more latitude to make the decision.

Defense attorneys and criminal justice supporters are deeply concerned that vesting only judges with that power will result in more people ending up in pretrial detention without the option of bailing themselves out. This morning, representatives from Brooklyn Defender Services, The Bronx Defenders, The Legal Aid Society, Neighborhood Defender Service, and New York County Defender Services put out a statement decrying these major new changes:

“It is unconscionable that Governor Cuomo, Andrea Stewart Cousins, and other state legislators would use a public health crisis as leverage to pass a bill that would increase jail populations across the State. To do so in secret, when the Capitol is closed to the public, during the budgeting process is even worse. If enacted, this proposal will drastically increase the number of people in jail who have not even had a trial yet. It would create a system in which innocent people are caught up in pre-trial detention and in which everyone’s rights are trampled. It would ultimately set New York decades back.”

“If anything, our current crisis underlines that our already overcrowded jail system is itself a public health threat. The rate of COVID-19 infection on Rikers Island is currently eight times that of the rest of the city. What happens within our jails impacts the rest of the state. Attempting to crowd yet more people into cells at this time not only shows a flagrant disregard for New Yorkers’ rights, but a disregard for the wellbeing of the state at large.

As of Monday, Rikers has 180 prisoners infected with COVID-19. Across America, there are about 470,000 people being held in pretrial detention. They’ve been charged with crimes, but not yet convicted. An increase in pretrial detentions would, naturally, increase the risk of exposure of anybody who gets arrested, not to mention correctional officers themselves (137 staff members who work at Rikers are infected with COVID-19).

Representatives for the New York State Sheriffs’ Association and the New York State Chiefs of Police are also unhappy that the reforms are being shoved in the budget. It’s not that they’re opposed, they just don’t want changes shoved through in the middle of fighting a pandemic.

Read the proposed reforms for yourself here. This is a draft bill that might not make it into the final proposal, which as of Wednesday afternoon, had not yet been released.

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The COVID-19 projections presented at a White House briefing yesterday imagine two scenarios, one utterly fanciful and the other intolerably vague. With “no intervention,” the main graph says, the United States could see 1.5 million to 2.2 million deaths from the disease. But “with intervention,” it says, the number of COVID-19 deaths plummets to somewhere between 100,000 and 240,000.

The “no intervention” scenario is clearly counterfactual, since it ignores all the steps governments, businesses, and individuals already have taken to curtail the spread of COVID-19. The “intervention” scenario assumes continued social distancing of the sort currently recommended by the federal government and enforced by state and local governments. What’s missing? Anything in between, which is the area that really matters for policy makers.

Governments right now are not deciding whether to do nothing or do something. Rather, they are confronting choices about which restrictions should be imposed, where they make sense, and how long they should be maintained. In this context, a simple binary choice between “intervention” and “no intervention” is highly misleading, since it obscures myriad options for confronting the epidemic, including measures more carefully tailored than mass business closures and stay-at-home orders. Sooner or later, those options will have to be weighed, taking into account not only the deaths they might prevent (or allow) but also their economic impact, which under the current approach is already severe and could get much worse.

In addition to presenting a false choice, the Trump administration’s framing relies on assumptions that may prove to be mistaken. One important variable is the number of Americans who will ultimately be infected by the COVID-19 virus. Another is the case fatality rate (CFR).

Because existing data are very limited in the absence of wide testing, we can do little better than guess at those numbers. Yet getting them wrong has profound implications, potentially leading to an overreaction that wrecks the economy while saving relatively few lives or (less likely, given the current political climate) an underreaction that costs many lives and allows hospitals to be overwhelmed by COVID-19 cases.

The White House seems to be relying on projections by the University of Washington’s Institute for Health Metrics and Evaluation (IHME), some of which were included in yesterday’s presentation. The IHME model, which assumes that current policies are maintained until June, predicts that “an estimated 97% of the population of the United States will still be susceptible to the disease” at that point, which implies that 3 percent of Americans, or nearly 10 million people, will have been infected.

If that happens, we can be pretty sure it will not be reflected in the official numbers, which include only confirmed cases. That tally underestimates the true number of infections, because many people with mild to nonexistent symptoms, which are typical of COVID-19, will not seek medical treatment or testing. The extent of that gap, which is by definition unknown, is crucial in estimating the true CFR, which federal public health officials say could be anywhere from 0.1 percent, making COVID-19 about as lethal as the seasonal flu, to 1 percent, making it 10 times as deadly.

The IHME projects that “approximately 81,000 people will die from the virus” by late June if current policies are maintained, which implies a CFR of about 0.8 percent. Projections by the Centers for Disease Control and Prevention (CDC) assume the same CFR, while modeling by researchers at Imperial College in London is based on a slightly higher rate of 0.9 percent. Both of those estimates are near the upper end of the range that U.S. officials consider reasonable.

That does not mean those estimates are wrong, but their accuracy makes a big difference. If the CFR turns out to be 0.5 percent, the number of deaths in the IHME scenario of about 10 million infections by June would be fewer than 50,000 rather than 81,000. A CFR of 0.2 percent (still twice the estimated CFR for the seasonal flu) would reduce the death toll at that point to fewer than 20,000. By comparison, the CDC estimates that influenza has killed 12,000 to 61,000 Americans each year since 2010.

The true CFR matters even more when you consider alternatives to current COVID-19 control measures. It is hard to weigh the risks and benefits of relaxing restrictions—whether in May (as currently envisioned by the Trump administration), in June (as some experts suggest would be possible with wide testing), or even later than that (as assumed in the Imperial College’s “best-case” scenario)—when you don’t know the potential cost in terms of additional deaths, which could number in the thousands, tens of thousands, or hundreds of thousands, depending on your assumptions. One thing we know for sure is that the economic burden on millions of innocent people will be magnified with each passing week.

It seems that people who are pessimistic about the COVID-19 death toll want to have it both ways. When it comes to justifying immediate, sweeping, and sustained control measures, they emphasize how quickly the virus spreads. But high estimates of the virus’s reproduction number (the number of people the average carrier can be expected to infect) imply a bigger gap between confirmed cases and total infections, which in turn implies a lower CFR.

There is also a tension between the short-term goal of avoiding a hospital crisis by reducing transmission of the virus and the longer-term goal of mitigating the impact of COVID-19 through herd immunity, which requires widespread infection. After three months of lockdowns, the IHME model predicts, 97 percent of the population will “still be susceptible to the disease.”

I do not pretend to have the answers. But given the high level of uncertainty, I am skeptical of people who claim they do, and it seems to me that the potentially devastating economic effects of aggressive and prolonged interventions have not received the consideration they deserve. Eventually we will have a clearer picture of the price exacted both by the epidemic and by efforts to fight it. But that knowledge will come too late for it to figure in the decisions politicians are making now.

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