BREAKING NEWS: CA Attorney General Petitions CA Supreme Court in Von Staich

Today was the last day for the Attorney General’s office to petition the Supreme Court for review, and unsurprisingly, they went for it. If you want to read the entire thing, here it is, in its 30-page glory–just be sure you’re sitting first:

VON STAICH Petition for Review w Exhibit – Final by hadaraviram on Scribd

Here are some of the highlights. The petition frames the legal question as follows:

May a court hold that prison officials, facing the challenges of the emerging novel coronavirus pandemic, were deliberately indifferent to an elderly inmate’s medical needs where the evidence showed officials operated under the authority and supervision of a federal Receiver with responsibility over the prison medical system, and consistent with the Receiver’s directives and guidance, undertook a suite of reasonable measures to arrest the spread of the virus, including reducing the inmate population, but had not at the time of hearing reduced the prison’s total inmate population by 50 percent? And may a court on that basis order officials to reduce the total prison population by 50 percent?

In other words, there are two things going on here: (1) they argue that the presumably “reasonable steps” they took were sufficient, and (2) they’re dumping the blame for this on the Receiver.

Of course, the absurdity of this is twofold. First, by their own admission, the Receiver is not the only responsible party here (the petition argues that they share the responsibility with the Receiver.) I suppose they’ve finally found an opportunity to try and throw Kelso under the bus; I assume the Receivership will claim that the prison was deliberately indifferent, the prison will argue that the Receivership was deliberately indifferent–and they will both be right.

But then things get truly. bizarre when the petition moves on to describe the “reasonable actions” CDCR took:

These actions included suspending intake from county jail, canceling visitation statewide, canceling large events and prison tours, distributing fact sheets, posters, and information to the inmate population, mandatory verbal and temperature screening for all persons entering prisons, and limiting movement between prisons, among others.

This is really rich. Wow–they hung posters? Such prescience! Such diligence! Such care for human life! As to “limiting movement between prisons,” we all know that the movement they failed to limit was the actual reason for this catastrophe, so forgive me for not bursting into a standing ovation. The cancelation of visitation is nothing to brag about–they would not have had to punish people in prison and their families if they did what they were supposed to. And as to the “verbal and temperature screening,” they have some nerve continuing the web of deception they pulled before the Court of Appeal, but of course now we know this is all fiction, because of the Inspector General’s first report. Note that they at least had the sense to refrain from lying about their flawed PPE practices, for which they were skewered by the legislature just a few days ago. They also list the release programs, which were insufficient at the time and also turned out to be largely fictional–out of 6,000 cases they reviewed for suitability, they found only 44 (!!!!!).

Again, we are treated to arguments that 50% is too much without the factual evidence that they didn’t bother to provide in the Court of Appeal, including the new information that they “acted under the advice of different experts” of which they said not a peep in the previous proceedings.

The rest of this is essentially a sob story about how unexpected, surprising, and overwhelming this crisis was, which apparently means the standard for deliberate indifference drops–as if we haven’t had evidence since 1918 of how outbreaks can ravage prisons or decades-long experience examining the connection between prison population density and health outcomes in every possible court.

This would be funny, but there’s absolutely nothing to laugh about. As the AG’s office spends its time and money congratulating CDCR for their “reasonable measures”, COVID-19 is ravaging our prison system again. In the last 14 days, the system has seen a whooping 1,474 new cases. There are huge outbreaks at CVSP (222 cases), CTF (269 cases), HDSP (283 cases), and SATF (433 cases.) There are new outbreaks in SOL (9 cases), CAL (49 cases), and CEN (28 cases.) Whatever they claim they’ve done with “limiting movement” is a blatant falsehood: the total prison population is up to what it was 7 weeks ago. The new Covid cases just in the past 2 weeks make up 1.48% of the entire prison population. This is over 6 times the per-capita rate statewide. The dissonance and immorality are breathtaking.

The Supreme Court has 90 days to decide whether to take this up, so now we wait.

Noir City Online: Razzia sur la chnouf (France, 1955)

Another cinematic joy in this year’s online version of my favorite film festival: The amazing Jean Gabin stars in this French version of a Damon Runyon underworld yarn. For a country less aggressively moralistic and puritan than the U.S., I was surprised to see the movie open with a warning about drugs a-la Reefer Madness.

This becomes important throughout the movie. One of its most interesting characteristics is the juxtaposition of the drug trafficking operation as a business and as a crime with real victims that causes real suffering. It starts off with Gabin’s character “Henri from Nantes,” returning to France after learning the business in the United States; he’s being brought aboard the drug organization to make it more efficient, as if he were someone who just returns to a senior management position at Peugeot after spending a few years with the Ford factory. The way he surveys the organization and scolds his underlings is sometimes reminiscent of a Dilbert cartoon. And the romance between him and Lisette, who works the bar that doubles as the front for the drug operation, progresses like an ordinary workplace romance. I was reminded a lot of The Wire’s Stringer Bell and his efforts at introducing business norms and concepts to the drug crew.

At the same time, we’re not spared a tough look at the horrors and victims of drugs, especially through the character of Léa (marvelously played by Lila Kodrova.) Léa hits rock bottom several times during the flick, and Henri’s pity for her is evident. The killing of the courier at the beginning of the movie, too, is a reminder of the inherent violence and danger of the trade. Henri’s nighttime journey through the scarier, sadder, more risqué corners of his organization makes for some wonderfully lyrical, tragic moments (as well as some super-dark cinematography):

I don’t want to discuss the plot too much, because it would ruin this fabulous movie for you, but I will mention that the movie raises some interesting questions about the extent to which governments can go with entrapment.

Noir City Online: Leave Her to Heaven (United States, 1945)

Over the years, I developed a pretty strong stomach for noir plots, and can usually watch them without blinking; since the birth of my son, though, pure, unmitigated evil, especially toward children and vulnerable people, is really trying for me. I was surprised to find the anti-heroine of Leave Her to Heaven, Ellen, so monstrous that I had to stop watching the film several times.

So much has been written about femmes fatales that I’m hardly going to innovate anything on the subject, but I did want to draw a strong parallel between Ellen and the absent protagonist of Daphne du Maurier’s Rebecca. The film is one of my favorite flicks of all time, especially because of the nightmarish Mrs. Danvers, and because Maxim fills me with ambivalence and dread. But what’s interesting about it is that the dead Rebecca is present throughout the film.

Even though Rebecca and Ellen are very different characters–Ellen is an obsessive lover (first of her father, then of Richard), whereas Rebecca is filled with contempt for Maxim, they share the scary, Hitchcock-esque characteristic of being able to put in place machinations from beyond the grave that make things unbearable for the living (there are also some Agatha Christie characters like that, especially in the short stories.) This sort of plot twist would strain credulity in the hands of less capable actresses than Gene Tierney, but she manages to introduce Ellen’s perversity so gradually that, halfway through the film, one realizes that her evil is utterly believable.

The juxtaposition of bad Ellen and good Ruth plays on a stereotype that many feminist criminologists have highlighted as a shortcoming in media representations of female crime, and it’s a steady cliché of the genre. I would have enjoyed Ruth more if she had more backbone and a bit of an edge, but films dominated by a stereotypical femme fatale seldom leave room for more than one interesting, complicated female character (this, by the way, is part of why I love Quentin Tarantino’s Kill Bill so much.) Ruth is a literary device for highlighting Ellen’s perversity. My former teachers and now colleagues Odeda Steinberg and Mimi Ajzenstadt conducted a phenomenal study a while ago, in which they examined newspaper coverage of trials of female criminals. They expected to find demonization all over, and instead they found feminization–incessant preoccupation with looks and stereotypically feminine behavior of the defendants. This may fall in line with Manheim’s chivalry theory, hints of which Malcolm Feeley and I found in the treatment of female offenders from the 19th century onward. Ellen’s conventional good looks, her athleticism and prowess, and her diabolical streak tick all the demonization/feminization boxes. As someone astutely commented on Twitter, none of this would’ve been more alarming in black and white–“the overly rich colors lend create a their own world as garish nightmare.”

Watch Leave Her to Heaven here:

Noir City Online: Rusty Knife (Japan, 1958)

Had lots of fun this evening at Noir City International watching the fantastic Yakuza film Rusty Knife. The plot is thrilling and engaging: Postwar city Udaka is run over with gangs mixed in political corruption, complete with the recent suicide of a local politician–except it turns out it wasn’t suicide. The prosecutor receives an anonymous letter from a gang member; the author had been a witness to the murder and staging of the crime scene as a faux suicide by the powerful Katsumata gang. When Katsumata finds out, they start looking for the snitch by process of elimination. One of the last men standing is Tachibana, a bartender recently returned from a prison sentence for the murder of the man who raped his fiancée and drove her to suicide. Tachibana wants to go straight, but he’s besieged from all sides: the prosecution and the police want him to testify against Katsumata, and Katsumata’s men are trying to hound him down. Complicating matter is his youthful sidekick Keiko, the daughter of the murdered politician.

Even though I’m far from an expert on Japan’s organized crime scene, I love Japanese crime movies, especially the classics from Nikkatsu studios. Some of the plot lines and styles are quintessentially Japanese, but some are very universal. This film spoke to me in two ways. First, Tachibana comes off as an incredibly sympathetic character, and the pressures he’s subjected to were complicated and realistic. As opposed to Jean Gabin’s Charles in Any Number Can Win, Tachibana truly wants a quiet, uncomplicated life, but can’t seem to catch a break. The film made me wonder whether people who come home after a prison sentence in Japan have an easier time clawing their way back into law-abiding life than people in the United States, whose reentry journey is mostly marred with crippling poverty. I’ve read that the length of life sentences in Japan continues to rise, and was interested to find out about the recent release of the man who’s served the longest sentence in the country‘s history–note that his name and crime have been kept out of the papers to help with his reentry. It’s hard to imagine such concessions here. It has also been interesting to learn that there’s a lot more interface between prisons and the surrounding community, which should help with the inevitable culture shock of returning to the outside society.

The film also made me think of plea bargaining, confidential informants, and the power of prosecutors in and out of court. David Johnson’s groundbreaking book about Japanese criminal justice highlights the extent to which the system there relies on confessions, and the ensuing pressures by the prosecutorial machine to confess. The prosecutor’s relentless pressure on Tachibana in this movie tarnishes the boundaries between “good guys” and “bad guys” somewhat, though Katsumata definitely takes the cake as the story’s sadistic villain. It’s interesting, though, that I found myself rooting for Tachibana and Keiko and wishing that the prosecutor wasn’t embroiled in any of this.

It’s a gem of a flick, and you can find it on the Criterion Channel. Here’s the trailer:

Noir City Online: Any Number Can Win (France, 1963)

Here’s one more post reviewing the terrific flicks shown as part of the AFI and the Film Noir Foundation’s festival Noir City International, and this time it’s the French Any Number Can Win, starring the phenomenal Jean Gabin and a (super young and handsome) Alain Delon. It’s a wonderful heist movie: the Gabin character, Charles, has just come home after a long period in prison. Contemplating his grim chances at reentry with his wife (they have such a great relationship) he realizes that going straight isn’t worth it. He partners with Francis (Delon) and Louis (Maurice Biraud) to plan a big heist at the outrageously named Palm Beach Casino.

Lots of fantastic things happen; the cinematography is phenomenal, as is the ensemble acting, especially the dance of suspicion between Charles and Francis. But from a criminological perspective, what sticks out is the use of physical environment as a partner in crime as well as an incriminating accomplice. This dovetails with a theory that came to prominence in criminology in the 1980s, Situational Crime Prevention. Despairing of grand theories involving the criminal’s character or big social structures, leading criminologists at the time turned their attention to the physical environment of crime, to check whether it creates opportunities to commit crime or to avoid detection. The leading theorists advancing these theories seem to assume some rationality and planning on the part of criminals (there’s still excellent work being done on this, specifically regarding burglaries and poaching), and are looking for ways in which the setups in stores, for example, entice stealing, hinder detection, and enable getting away. This theory was very attractive to the Thatcher and Reagan administrations, respectively, and shaped much of the physical environs in both countries. If you’ve ever seen an athletics store with a display wall with only one sneaker, or a park bench with armrests in the middle (to prevent sleeping) you’ve seen situational crime prevention in action.

Anyway, the way this plays out in Any Number Can Win is fascinating. According to Charles’ plan, Francis takes a room in a mansion next door to the casino, and rents a pool cabana. It turns out that the air vents in the cabana lead to the ventilation inside the casino, and the entire plan is based on using the infrastructure between the two buildings effectively. This means we get to see Delon in some hairy situations, which require athleticism and agility, such as crawling through air vents or leaping inside an elevator shaft. But what makes the plan appealing is also what brings about its inevitable failure: the environment does not cooperate. I won’t tell you what happens–I’ll just mention that some of the most fantastic 1960s-style resort extravagance ends up tripping our fellows and sabotaging their best-laid plans.

A great accompanying read to this movie is Geoff Manaugh’s A Burglar’s Guide to the City.

Noir City Online: El Vampiro Negro (Argentina, 1953)

Long-time readers know that the highlight of my year is Noir City, the fantastic film festival at the Castro Theatre, created and sponsored by the Film Noir Foundation. As this year’s events were gradually canceled, I started preemptively mourning the ten days I typically spend glued to my seat (audience left, near the exit) watching twenty-something phenomenal films.

Much to my delight, the Film Noir Foundation and the American Film Institute are hosting the program online, at this link. The movies come with terrific introductions by Eddie Muller, known to us noiristas as “the Czar of Noir” and other members of FNF, as well as expert film critics and scholars. I thought it might be fun if I supplemented some of these with a bit of criminological commentary.

This first comment is about the fantastic film El Vampiro Negro (Argentina, 1953), which starts with a title frame explaining that the film is based on real-life events from Europe. Indeed, like Fritz Lang’s M (1931), El Vampiro Negro is based on the life and crimes of Peter Kürten, the “Vampire of Düsseldorf.” Both films are excellent and, while cinephiles and Lang fans may see this as blasphemy, I think that El Vampiro Negro is the best of the two, for various cinematic and criminological reasons. Both Peter Lorre and Nathán Pinzón are excellent in the respective title roles of the serial killer, and the atmosphere is well-captured in both, but I think that the Argentinian script’s inclusion of the nightclub singer, played by Olga Zubarry, makes such a terrific, truly moral, appealing counterpart not only to the rotten morality of the serial killer, but also to the hypocrisy of the prosecutor. One roots for Zubarry’s character as she plays an important role in catching the criminal.

But more importantly, the inclusion of the nightclub singer provides a much more interesting criminological statement. In M, the murderer is apprehended and tried by a kangaroo court of the underworld, in which a “prosecutor” and a “defense attorney” respectively argue for positions corresponding to the classicist (“he chose to do evil and we must deter others!”) and positivist (“he can’t help himself!”) schools of criminology. This dichotomy emerges in El Vampiro Negro as well, not through a kangaroo court but through scenes from the murderer’s trial, which are interestingly portrayed at the beginning of the movie. I think the playwright made this decision because the film wants to say something more interesting.

At some point in the movie, there’s a scene from the prosecutor’s home life, including his wife, who is disabled. Later, the prosecutor befriends the nightclub singer, coming to her home, and warning her that her daughter might be taken away from her because of her occupation. He then bemoans his own loneliness, tells her that she, too, must be lonely, and makes his move. The nightclub singer–what a terrific character!–pushes him away, screams at him that he’s scum and that she prefers the lowlifes from the club, and throws him out of her home.

The inclusion of these two scenes frames the main dilemma in the movie in a much more interesting way. It’s not just a good-versus-evil flick (though the serial killer is, indeed, evil), and it’s not just a choice-versus-predetermination flick (though the serial killer does evoke this conversation): it’s also a conversation about the hypocrisies of the lawmakers themselves and their audacity to judge others. This folds in labeling and conflict theories, which I think make the latter film richer from a theoretical perspective.

Watch both (M; El Vampiro Negro) and tell me what you think!

Thai-Inspired Cauliflower Salad

It feels a bit frivolous to post about food while all this (imagine an expansive, all-inclusive gesture accompanying the word “this”) is going on, but everyone’s gotta eat, and if you’re thinking of lunch, why not have this fantastic salad? It comes together quickly and easily and is a vegan version of the Thai Larb salad. This recipe is a modification of Oz Telem’s recipe from his wonderful Cauliflower book.

  • 1 small cauliflower
  • 1 big handful each of: cilantro, parsley, green onion, basil, finely chopped
  • juice from 1 lime
  • 1 tsp minced garlic
  • 1 tsp minced ginger
  • 1 1/2 tbsp tamari or nama shoyu
  • optional: 1 tbsp vegan bacon (tempeh, eggplant, whatever you have on hand), finely chopped.

Cut cauliflower into florets, then place in food processor. Process to couscous consistency. Mix in a bowl with herbs. Add lime, garlic, ginger, and nama shoyu, and if you have it, some of the vegan bacon.

The Prison Guards’ Union: Political Capture, Rot, and Risk

Amidst the cries to make profound changes to our incarceration policies, the silence from CCPOA, the prison guards’ union, has been deafening. While SEIU Local 1000, which represents prison workers, has filed a grievance against CDCR for putting their lives at risk, no such steps have been taken by CCPOA.

But it’s not just silence: When watching the legislative hearing on COVID in prisons, I was struck by the exchange between Assemblymember Ting and the CCHCS doctor who testified about PPE-wearing deficiencies in the prison authority’s COVID-19 plan. Here’s the bit I’ve been ruminating about. When the doctor was asked about the deviations from protocol regarding mask-wearing, which were plastered all over the IG report, he hastened to clarify that he did not doubt the efficacy of masking for preventing infection. Nonetheless, he attributed masking noncompliance in CDCR facilities to the fact that the masks were “thick, hot, hard to breathe.” The doctor explained that we should “extrapolate” what it was like for people on the outside to wear them for part of the day to people who “are expected to wear them 24/7, 365, because they cannot get away by themselves in a closed room with no one else. It’s a heavy lift. The overwhelming majority of patients and staff are doing a good job – they are not being perfect, they are fallible. Our physical plant is not conducive to people complying.”

Finally, the doctor admitted that the missing piece was the “disciplinary component of what we’ll do with folks who are just not willing to comply. That component is being strengthened and it will improve even more.” Ting wondered why this had not been done previously: “You work for Mr. Kelso, and he has fairly broad authority in this realm. why didn’t you use your authority to ensure everyone was wearing a mask?” The doctor insisted that wearing a mask was “not a choice” and that there was a “firm consistent message from secretary and receiver about our expectations about face coverings. I’ve personally been to 14 facilities since July and reminded staff and patients. There’s been a really clear expectation. The part that was not there was a progressive disciplinary process. I guess we hoped that people would do the right thing.”

This hope is extraordinary, given how CCPOA has been investing its time and money. A story in today’s Sac Bee shows that, instead of fighting for union members’ lives and wellbeing by demanding population reductions and preventative measures, or at minimum instructing them that they should wear masks, CCPOA leadership has been busy… politically and financially backing the punitive ballot propositions that lost last week. The article explains:

The prison guards’ union, through its political committees, spent $1 million to support incumbent Los Angeles County District Attorney Jackie Lacey, but she lost to progressive criminal justice reform advocate George Gascon, a former San Francisco district attorney.

It gave $2 million to support Proposition 20, which would have stiffened prison sentences and restricted parole, but the measure is failing by a 24% margin.

And the union spent at least $1 million to support Efren Martinez, a Los Angeles businessman who lost his race against incumbent Democratic Assemblyman Reggie Jones-Sawyer, chairman of the Assembly Public Safety Committee.

The union also backed some winners, potentially including Dave Min, a Democrat who defeated Republican state Sen. John Moorlach of Orange County.

Even my rudimentary math skills suffice to determine we’re talking about more than $4 million in union money, presumably garnered from union fees. And there are two ways to parse what’s going on here, both unsavory.

The more pessimistic one is that a substantial percentage of the rank-and-file correctional officers are virulent Trumpers, conspiracy theorists, or QAanon nutcases. Perhaps they think COVID-19 is a hoax despite the fact that it has infected and sickened thousands of people behind bars and claimed dozens of lives, including one of their own. And if so, perhaps the same virulent Trumpism makes them happy that their member fees were used to support Trumplike regressive, pre-recession criminal justice policies.

The less pessimistic, but still incredibly upsetting, possibility is that CCPOA members are being taken for a ride by Glen Stailey and his own Trumpian methods, which apparently include financing political ads that put bullseyes on legislators. Stailey is apparently interested in “regaining the union’s once-renowned clout in a changed political environment”–as evidenced by his response to the Sac Bee article about the humiliating and expensive campaign losses:

Through a spokesman, Stailey declined an interview request but responded to emailed questions.

“We’re only getting started,” he said in the email. “We want to build our profile as an active participant in policymaking in California, and working on campaigns is one small piece of it.”

In other words, he’s hoping to drag us all to the house of horrors that his predecessors built.

Because I’m not an idiot, I don’t imagine this blog is particularly popular with CCPOA membership. But in the off-chance that you, dear reader, are a correctional officer, my message to you is: WAKE UP. I don’t hate you, I don’t wish bad things for you, I don’t want you to get sick and die. Stailey doesn’t give a fig about your health and work conditions. Your interests and those of the people you guard are the same. None of you wants to get infected with COVID-19. The way to do this is to safely reduce prison population so that everyone can safely distance, and to be rigorous in wearing PPE and washing hands. Look at the protection your non-CO colleagues are getting from SEIU-1000 and ask yourself whether Stailey and his cronies care about you, or whether they’re just taking your money on an expensive trip to the land of political capture.

Post-Election Thoughts

The Scorpion and the Frog

The results of the election did not bring me immediate solace. I’m sure this has been the case for many folks who found it difficult to take off the psychological backpack we have been carrying for so long. In my case, the psychological weight is the product of daily engagement with this administration on various public forums, including having to spend least thrice a week, WEEKLY, for the last four years, in TV stations and radio studios talking about this. In November 2016, when I lost the fight for death penalty abolition and my beloved cat Spade on the week of the election, I made it my mission to be an expert in everything these cartoon villains were cooking up, and every morning I sat up abruptly in my bed, with my first thought being, “it’s already morning in D.C., what has he done today?” Every time I saw an unrecognized number on my phone it was a TV producer or journalist asking me things that I had to cram on. I’ve crawled through information on abominable, underhanded things that I could not have even imagined possible before the last four years. Engaging with this sewer of an administration every day, including weekends, has brought exhaustion and stress into our family life, soured my good humor and my patience at work, and taken a real, measurable toll on my health. Doing upbeat explainers, volunteering, and taking abuse via phone and text from voters has felt like wading through a swamp, and even though I wore my psychological hip waders, I resent and revile this administration for demanding that I set aside my own grief, decency, and decorum, and be constantly on-call to respond to venal, opportunistic excrement. After I gave the explainer on Justice Ginsburg’s replacement process, I could barely get out of bed for a few days.

But the miasma in my soul is slowly dissipating. The first time I felt truly rapturous was when I got a letter from Traci Felt Love, the organizer of Lawyers for Good Government. The letter reminded me of when we started L4GG and brought back the incredible week in which we shut down San Francisco International Airport in reaction to the Muslim ban. It was only then that the magnitude of our success in dethroning this monster started to hit me, and I’ve been slowly digesting it.

One thing that has greatly helped is ignoring the legal pageant of the absurd that Trump is mounting in various courts around the country. I have given myself permission to disengage from all his frivolous lawsuits, antics, last-minute personnel juggling, and desperate cries for attention. In January, no matter what happens in the interim, Joe Biden will be President of the United States. Whether Trump concedes (ya think?), resigns (hmmmm), flees to the Cayman Islands to a mansion with golden toilets (on brand) or is dragged out of the White House in handcuffs (appealing but dangerous), the outcome will be a change in administrations.

It’s useful to keep in mind the story of the scorpion and the frog. A scorpion, which cannot swim, asks a frog to carry it across a river on the frog’s back. The frog hesitates, afraid of being stung by the scorpion, but the scorpion assures the frog he won’t do that: “If I sting you, we’ll both drown, right?” This argument convinces the frog, which agrees to transport the scorpion. Midway across the river, the scorpion stings the frog anyway, dooming them both. The dying frog asks the scorpion why it stung despite knowing the consequence, to which the scorpion replies: “I couldn’t help it. It’s in my nature.”

Trumps are going to Trump. Giulianis are going to Giuliani. McConnells are going to McConnell, with or without us as their audience. It’s far more productive to focus our attention on the upcoming races in Georgia.

Drug Truce

Throughout the country, drug law reform gained more momentum. This wonderful post on the Drug Policy Alliance blog summarizes some of the main reforms, the most impressive of which was Oregon’s approval of Measure 110. The next step in procuring a truce on drugs was always going to be branching beyond marijuana, and for various political reasons that are difficult to explain to people outside California, I expected another state to move in that direction first.

What I find especially thrilling about the passage of Measure 110 is that it could open the door to an important dialogue about the value and benefits of psychedelics. MAPS has been leading the charge on declassifying these important substances and acknowledging their potential to help people with depression and trauma, as well as foster spiritual growth. Little by little, the hypocrisy is dissipating, but it’s going to happen on the state and local level first.

When the Perfect Is the Enemy of the Good

Amidst my joy about the passage of Prop 17 and the failure of Prop 20–a reactionary law-and-order package–the demise of Prop. 25 brought me some anguish. As I explained elsewhere, all the arguments against the abolition of cash bail were ridiculous except for one, which had superficial appeal: the idea that “algorithms are racist” and that we would end up with “something worse” than cash bail. Aside from the fact that it’s hard to imagine how risk assessment is “worse” than debtor prisons straight out of a Charles Dickens novel, there’s a basic misunderstanding of how algorithms work. I have been explaining and explaining, but for some reason am not getting through to people captivated by woke rhetoric: ALGORITHMS ARE NOT RACIST. They predict the future on the basis of the past. If they have racially disparate outcomes, it’s because they reflect a racist reality in which, for a variety of systemic, sad, and infuriating reasons, people who are treated like second-class citizens in their own country commit more violent crime. The overrepresentation of people of color in homicide offenses and other violent crime categories is not something that progressives like to talk about, but it is unfortunately true–not just a mirage caused by stop-and-frisk in low-income communities. The reasons why more African American people commit more homicides than white people are the same reasons why they are arrested more frequently for the drug offenses they don’t actually commit more than white people: deprivation, neglect, lack of opportunities, dehumanization and marginalization on a daily basis. Solving these problems requires an administration committed to treating its citizenry fairly, not sweeping them under the rug by ignoring predictive tools that show what is actually going on. So powerful is the progressive self-deception that the ACLU, initially a supporter of eliminating cash bail, opted not to have a position on the ballot, because of the optics. I can’t even begin to tell you how many people I like and respect opposed Prop 25 using organizations’ positions as proxy, as if they couldn’t think for themselves. These organizations’ and people’s fears of being perceived as racists by supporting “algorithms,” the bogeymen of the left, was so overpowering that it hijacked the very real possibility to get rid of an actual, real, on-the-ground, in-the-open perversity: the only-in-America notion that people should pay money for their pretrial release.

The counterargument, made by some thoughtful folks, was that rejecting Prop. 25 would lead to a better proposal to abolish cash bail. But this argument exhibits deep ignorance of how political gains are made. Part of why I’m so upset about this is that I’ve already lived through a horrible round of the Perfect-Is-the-Enemy-of-the-Good game. Back in 2016, when we campaigned for death penalty abolition, I had to respond to arguments by progressives who thought that abolishing the death penalty was going to somehow “retrench” life without parole. The preciousness of this view infuriates me. As I explained until I was blue in the face, political progress is made incrementally. You can’t get to LWOP abolition without death penalty abolition. Expecting ballot propositions, which have to rely on broad coalitions, to be tailor-made to one’s exquisitely purist views about the public good is a recipe for disappointment. And, as Gov. Newsom said, the demise of Prop 25 essentially eliminates any possibility, motivation, or energy for getting together the “more perfect” solution to the bail problem that activists are yearning for. So, instead of celebrating the end of cash bail, progressives have yet again been duped into failing their own cause because the compromise wasn’t photogenic enough for them, and the big winner has been the bail bonds industry–you can see in this piece how effectively these scoundrels have coopted wokespeak to keep Victorian debt prisons alive.

Got a Sane Idea? Great! Wrap It in Sane Packaging

Just read a terrific Mother Jones article, which highlights the success of various local initiatives to divert resources from policing to less confrontational alternatives. Beyond my satisfaction with this outcome, I’m pleased with the rhetorical strategy used in these initiatives.

In the aftermath of the killing of George Floyd, many advocates were making proposals that sounded scary, because they were wrapped in odious movement jargon (defund! abolish! dismantle!). Thing is, the proposals themselves were not radical or insane; they were sane enough that even people who were victimized in scary ways could see the logic in them–if they had the background to understand them. Alternatives to policing are not earth-shattering discoveries. Anyone, not just hyperprogressives, who walks around the Tenderloin these days can sense the palpable shift in energy since the arrival of the wise and conciliatory Urban Alchemy folks. All these propositions are doing is rolling back the Nixonian logic, according to which you somehow get more justice if there are more cops, riot gear, and weapons on the streets. We were sucked into this insanity in the 1970s with the LEAA funding scheme, and later in the 1980s with civil asset forfeiture. You could be forgiven for thinking that “defunding the police” is an extreme proposal if you’re not familiar with how police departments used to be run before they became bloated paramilitary organizations.

But the success of this measures was not only rooted in their inherent reasonableness (and cost-effectiveness.) It was rooted in wise, matter-of-factly packaging, which offered positive alternatives to policing that people could get behind. There is an important lesson here for progressives looking for referendum victories, which I very much hope will be learned: packaging matters. Offering people a realistic vision of humane, therapeutic, preventative public safety works better than wrapping sane, totally plausible ideas in flurries of self-righteous performativity. And that means resisting the cultural zeitgeist, which pushes the movement to flood social media with the most preposterous, off-putting jargon, even when proposing things that would appeal to a broad swath of the population.

When incendiary terminology is used to explain sane, effective reform, more time is spent debating the terminology and performatively defending it than discussing the policies themselves. People who are put off by the rhetoric are exhorted to “check the website,” “do the work,” and “educate themselves” by folks who do not inspire any desire to engage any further with them or with their ideas. Indeed, one of the dumbest aphorisms of this movement is the classic “it’s not my job to educate you.” It’s nobody’s job to educate anyone else (except, in the case of teachers, their actual students.) But hurling insults and disdain on people, piling nonrequired homework on their backs, hiding good ideas behind performative nonsense, and finding fault in people asking to know what they’re expected to support and vote for, is not particularly likely to induce them to take the trouble to learn somewhere else. Decrying the burden of “unpaid emotional labor,” another unfortunate classic, is also not particularly persuasive. Not everyone needs to dance through their revolution like Emma Goldman, but very few people want to get flogged through it. Corollary: If you call yourself an activist, and you want to bring people to your coalition, yes, it is part of your job to educate them. I’m so pleased that the advocacy for these proposals took a different approach, one that voters could get behind. The result will be safer and happier streets in many U.S. cities.

State Assembly Hearing on COVID-19 Prison Policies

This afternoon, the California State Assembly held a hearing about CDCR’s management of the COVID-19 pandemic at its institutions. The tone of the hearing was largely set by the recent Inspector General report, which found serious fault with CDCR’s enforcement of proper PPE attire by staff and incarcerated people.

Assemblymember Phil Ting was polite but firm, and consistently held CDCR Secretary Kathleen Allison to answer for the problems at the various facilities. Allison was defensive throuhgout, arguing that the Department has been doing a good job overall monitoring COVID-19 prevention protocols. Ting did not seem to buy this at all, and pointed out numerous ways in which Allison could monitor compliance. He drew the obvious comparison to nursing homes, explaining that the homes were audited through surprise visits. “When I show up for inspection,” he explained, “everyone’s on their best behavior.”

When Allison insisted that there was no systemic problem at CDCR, Ting responded:

The reason we’re having the hearing is. . . far and away, institutionally, these two types of institutions [prisons and nursing homes] created a disproportionate number of COVID cases. Obviously, there’s a lot going against all the prison facilities, because of how people are housed, the crowding, etc etc., but that’s why we are so concerned. There are things out of your control, such as the physical plant, but there are things that are in your control and that’s what we’re concerned about. There were things that could have mitigated, could have reduced the situation, it was not done, and was not done in a systemic fashion. The fact that there’s enough data to show significant inconsistency between institutions shows some systematic failure, in my opinion. I asked the same of the IG, but is this under your purview or under the Receiver’s? You both signed the memorandum.

Ting got a little–but not a lot–more from a doctor working under Receiver Clark Kelso. He asked, “You have people dying in facilities in pretty high numbers. Why do you think they wouldn’t have taken that as a cue to take this seriously?” The doctor replied: “I think what we see in our system mirrors what we see in our country, people in doubt, people in confusion whether masks are helpful or harmful. As you know, this has been a topic of conversation in our political system for some time. What we’re seeing in our institutions is a reflection of the political conversation.”

Ting was having none of it: “You don’t run a hospital, you run a department where freedom was taken away. You characterized as “unclear”. I see it as crystal clear. These are all state employees – why were state employees allowed to ignore what the Governor and the Secretary ordered everyone to do?”

Emphasizing that he did not want to be misunderstood as doubting the efficacy of masks, the doctor explained that noncompliance could be attributed to the fact that they were “thick, hot, hard to breathe.” He explains that we should “extrapolate” what it was like for people on the outside to wear them for part of the day to people who “are expected to wear them 24/7, 365, because they cannot get away by themselves in a closed room with no one else. It’s a heavy lift. The overwhelming majority of patients and staff are doing a good job – they are not being perfect, they are fallible. Our physical plant is not conducive to people complying.”

Finally, the doctor admitted that the missing piece was the “disciplinary component of what we’ll do with folks who are just not willing to comply. That component is being strengthened and it will improve even more.” Ting wondered why this had not been done previously: “You work for Mr. Kelso, and he has fairly broad authority in this realm. why didn’t you use your authority to ensure everyone was wearing a mask?” The doctor insisted that wearing a mask was “not a choice” and that there was a “firm consistent message from secretary and receiver about our expectations about face coverings. I’ve personally been to 14 facilities since July and reminded staff and patients. There’s been a really clear expectation. The part that was not there was a progressive disciplinary process. I guess we hoped that people would do the right thing.”

This reply, unsurprisingly, led to a scolding by Assemblymember Cooper: “Everyone has been indoctrinated on how we do it, not just for ourselves but for other people. It’s a leadership issue, it starts at the top. Progressive discipline starts at the lower level. That should’ve been going on at the . It’s sad but it’s a failed leadership.”

The hearing then shifted to the testimony of Kim Siebel, Deputy Director of Facility Operations at CDCR, who was charged with explaining the ban on visitations and the paucity of programming. Siebel explained that they defined four opening phases, ranging from the most to the least restrictive, and that sometimes different units or yards within the same prison could be in different phases. At this point, she explained, 46% of the prison system was phase 1 and 54% phase 2, which means there’s only limited out-of-cell programming. She acknowledged that “visiting is an important part, conection with families,” and said that they were “moving onward with developing protocols.” Nevertheless, in their discussions with the California Department of Public Health, they “determined that in-person visiting is not the best solution” and they are “working on a video visiting program” as well as a dedicated email address and free phone calls through their contractors.

The paucity of programming is a big problem, because participation in programming offers incarcerated people good credits, which can hasten their release. And because of the remote location of many California prisons, only some institutions can benefit from the participation of volunteers (this is what made Quentin, despite its dilapidated condition, an attractive place for people seeking rehabilitative programming–it is widely available there, through the effort of Bay Area do-gooders and no thanks to CDCR.) Because CDCR relies so much on volunteer work, the Legislative Analyst’s Office representative pointed out that, in reintroducing programming, CDCR failed to take into account COVID rates and compliance levels in the prisons’ surrounding community. Siebel initially implied that they had taken this into account, then recanted and said that “this is something we’ll want to add.”

Ting lost patience with Siebel’s comments about “looking to expanding” programming. “I’ve been hearing this since I’ve been budget chair,” he said, “and have yet. . . When the department says they are “looking into something” it means they’re not doing it.” Siebel promised: “We can provide a list of what we’re currently doing,” which Ting noted that he appreciated. “What I’m concerned about,” he added, “is what is the Department doing to bring back the programing it already had.” Siebel promised an update “soon”, which did not satisfy Ting: “Soon is not a timeframe for me. I don’t know waht ‘soon’ means to you, so maybe we can set a date.” Unsurprisingly, what followed was an evasion dance:

“We can get you a timeline of what we’ll be looking at, but I need to check with my department and provide a timeline.”

“When can you provide me a timeline?”

“How is a week?”

“A week sounds wonderful.”

The hearing then shifted to public comments. Most of the commentators–Ivana from LSPC, Dolores Canales, Ashley, and others–commented on the havoc that the visitation ban has wreaked on the families’ mental health, particularly around the holidays. Ivana explained, “Families are used to abiding by COVID protocols at school, church, restaurants, work, court, when visiting with extended families, Why couldn’t we follow these going into CDCR?” Ashley characterized CDCR’s response to the hearing as a “livestream of lies and obfuscations. . . Why haven’t people with high risk been released? Why have they been denied parole? Why is CDCR lying about programming? Why innocent people? People in prisons and tier families know how to keep themselves safe.” Dolores Canales mentioned information she received from incarcerated women, whose cleaning supplies are being confiscated. Ashley mentioned a friend with terminal lung cancer who is, astonishingly, still incarcerated amidst all this, and who recently applied for clemency. The last commentator, whose name I didn’t catch, mentioned that prisons in both Florida and New York are now open for visits.

I found the hearing reassuring. It seemed that Assemblymembers Ting and Cooper were nobody’s fools, and they refused to be satisfied with “we’re looking into this.” We need more pressure, continuous pressure, if we want to see releases of people with chronic conditions. We cannot let In re Von Staich go to waste and people’s lives being more at risk via unnecessary transfers than they already are. To wit: There are currently four major outbreaks. CVSP has 290 new cases, CTF has 157, HDSP has 29 new cases, and SATF has a whooping 386. There are new outbreaks–small so far, but they need to be monitored: CAL (7 new cases), CEN (17 new cases), and PBSP (3 new cases).

Disturbingly, if you were hoping that some of these unsavory trends would be reversed via releases, it looks like CDCR is doing exactly the opposite. WSP has increased its population from 1869 on Oct. 4 to 2409 today (and has seen 15 new cases). The total CDCR population is up almost 100 since last week. In short: WE MUST PRESS ON.