Understanding Newsom as a Politician following Injection Site Bill Veto

The harm reduction community is deeply dispirited over Gov. Newsom’s rejection of the proposed safe drug injection/overdose prevention site in Oakland. Marisa Kendall reports for the Mercury News:

Senate Bill 57 would have allowed the two Bay Area cities to become among the first in the country to open facilities where users could bring drugs and consume them in a safe, supervised setting. The bill passed the state legislature this month. But after rejecting the bill, Newsom expressed worry that the law could actually make the drug crisis worse in those three cities.

“The unlimited number of safe injection sites that this bill would authorize — facilities which could exist well into the later part of this decade — could induce a world of unintended consequences,” he wrote in a veto message. “It is possible that these sites would help improve the safety and health of our urban areas, but if done without a strong plan, they could work against this purpose.”

Newsom added that he is instructing the secretary of Health and Human Services to convene a group of city and county officials to discuss overdose prevention strategies and how to implement a more limited pilot program.

This is a great disappointment, but not a big surprise. Kendall ties this position to Newsom’s possible presidential candidacy:

The move comes amid mounting speculation that Newsom might be eyeing a presidential run. And while it’s unclear whether those ambitions played into his decision, rejecting the bill likely will only help him on the national stage, where the majority of voters would likely balk at the idea of facilitating drug use, said Claremont McKenna College political science professor Jack Pitney.

“There’s a solid policy rationale for the veto,” Pitney said, “but politically, he’s dodged a potentially big problem.”

I have a few thoughts to offer about this observation. For many years–since my graduate school days in the early 2000s–I liked Newsom and believed in him, though I always knew that a politician is a politician, not the messiah (some of the Obama disappointees fell into that trap.) I admired his administration’s bold moves to the point that I was delighted to be considered for his penal code revision commission and sorely disappointed not to have been picked. In hindsight, though, not working for this administration was a blessing. I can’t imagine being able to help the people at San Quentin as much or in the ways that I did if I felt bound by loyalty to the Newsom administration.

Watching Newsom, Bonta, and others handle the executive and judicial aspects of the COVID-19 crisis was sobering. In Chapter 7 of our forthcoming book FESTER (the manuscript is due with UC Press this week!) we make the following observations about Newsom:

[T]he Governor’s [paltry COVID-19 release] program was overly sensitive to public backlash, and featured the classic hallmarks of the age-violence-risk paradox. Bifurcation—applying early releases and good time credits only to nonserious, nonviolent, nonsexual offenses—was in evidence in every category on the plan, despite the lack of correlation between the crime of commitment and risk to public safety. At first blush, such kowtowing to public outcry would seem uncharacteristic of Newsom, whose political path, from his early days as Mayor of San Francisco, featured bold, high-profile moves to advance progressive values and objectives, which he presented as doing the right thing no matter the backlash. His move to legalize same-sex marriage in California—the subject of ferocious litigation that culminated in a Supreme Court victory—was perceived by some, at the time, to be political suicide. Similarly, his moratorium on the death penalty was criticized for not reflecting the wish of a small but consistent majority of Californians. In both of these cases, Newsom correctly read the political winds, and his predictions proved true; his self-styled image of an idealistic pioneer was boosted by the fact that his executive decisions preceded wider societal shifts. But Newsom’s reluctance to release people convicted of violent crime reflected age-old wisdom in California politics that, even in the bluest of counties, it is not a wise political move to flout entrenched fears of violent crime. Reflective of the justifiability of this concern was a disparaging story in the Los Angeles Times about Newsom’s plan titled, “California is releasing some murderers due to COVID-19. Some say it should free more.” After a barrage of phone calls from Coalition members, the newspaper changed the headline, but the content, which rehearsed tired tough-on-crime tropes from the Reagan administration days, remained unaltered: the writers chose to interview crime victims who, while entitled to their personal opinions, were neither the statewide curators of victims’ perspectives nor qualified to offer broad insights on emergency healthcare policies. They also mentioned, without a shred of irony, Willie Horton.

. . .

Three examples of such aging, low-risk people drive home the extent to which age-violence-risk paradox was part of the Newsom administration’s calculus. Twice during the pandemic, the parole board recommended parole for Leslie Van Houten, born in 1950 and housed at California Institute for Women (CIW.) Van Houten had been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what appear, in light of her exemplary prison record, pure political spite. Van Houten has maintained a clean disciplinary record, participated in a variety of laudable programs, and incessantly excavated her psyche to show “insight” to the Board. She participated in the Manson murders when she was 19 years old, manipulated and sexually exploited in a setting that, with today’s #MeToo sensibilities, might have shed a completely different light on her involvement.

As one of us has explained elsewhere, the Manson family cases shine a light on the question of redeemability, featuring people who have clearly done their utmost to undergo, live, and exude transformation but whose notoriety stands in their way. But van Houten’s two last hearings featured an additional consideration: the parole hopeful was over 70 years old and CIW, where she was housed, was experiencing an outbreak just as she was denied parole.

Another notorious member of the “Class of ‘72’”—the 107 people condemned to death whose sentences were commuted to life with parole after People v. Anderson—was Sirhan Sirhan, who had assassinated Robert Kennedy. At the time of his COVID parole hearing, Sirhan was 77 years old. The Chronicle’s Bob Egelko forecasted his parole bid:

“Anybody that has ever walked into my office, you have to walk by photographs of Bobby Kennedy’s funeral procession, those famous train photos,” the governor said, according to a transcript provided by his office. “The first photograph, the only photograph you will see in my office is a photo of my father and Bobby Kennedy just days before Bobby Kennedy was murdered.”

At the time of Sirhan’s parole bid, Newsom was facing a recall election in which he had everything to lose, and absolutely nothing to gain, from releasing Sirhan. As Egelko explained, Newsom’s leading opponents in the recall, all of whom were well to his right politically, would seem equally unlikely to approve Sirhan’s parole. Moreover, any decision to release Kennedy’s murderer would surely become a flash point in the 2022 governor’s election.

“I’d be shocked if Newsom didn’t reverse” the parole board’s decision, said Robert Weisberg, a Stanford criminal law professor. Although the governor would have to explain why he believed Sirhan still posed a threat of violence, Weisberg said, he would most likely be “responding to a public view that this guy’s crime was so heinous that he shouldn’t be paroled.”

Predictably, Newsom vetoed Sirhan’s parole and, perhaps hoping to win political points while facing a recall election, took the trouble to pen an op-ed about it in the Los Angeles Times:

“Kennedy’s assassination not only changed the course of this nation and robbed the world of a promising young leader, it also left his 11 children without a father and his wife without a husband. Kennedy’s family bears his loss every day. Millions of Americans lost a unifier in a time of national turmoil and grief, just nine weeks after the assassination of the Rev. Martin Luther King, Jr., and four-and-a-half years after the murder of Kennedy’s brother, President John F. Kennedy.

“Yet, after decades in prison, Sirhan still lacks the insight that would prevent him from making the kind of dangerous and destructive decisions he made in the past. The most glaring proof of Sirhan’s deficient insight is his shifting narrative about his assassination of Kennedy, and his current refusal to accept responsibility for it.”

The language in Newsom’s op-ed echoes the concept of “insight”, which parole researchers broadly agree is a deliberately opaque, vague term used to justify denials based on the now-prohibited consideration of the heinousness of the original crime. Kathryne Young explains that “insight” is. Kristen Bell identifies the same obfuscation with regard to juvenile parole hearings. And Rita Shah, in a review of my previous book Yesterday’s Monsters, pithily explains that “Like rehabilitation, insight seems be a bullshit term as determining whether one has gained insight or is on the road to rehabilitation appears to be the criminal legal system’s equivalent of ‘I’ll know when I see it.’”

But the absurdities in Van Houten and Sirhan’s cases pales in comparison with the continued incarceration of Gerald Albert Oates who, at the age of 94, is the oldest living person incarcerated at CDCR. After a parole denial in 2018 because, unbelievably, Oates is still categorized as “high risk” by CDCR,[8] he remained incarcerated throughout the COVID-19 crisis, apparently surviving the Newsom Administration’s project to identify priorities for release. Oates’ case highlights the extent to which the calcification of fear and loathing of so-called “violent offenders”, wrought by the age-violence-risk paradox, stood in the way of making parole decisions that made sense, practically and medically.

There you have it: a politician I used to respect and admire. Over the course of the last few years, I have come to realize that his true gift is his keen sense of smell for where public opinion will be two weeks from now, appearing as a maverick when pushing initiatives that he knows will shortly enjoy wide public support. Because he knows that people addicted to drugs in the streets and people languishing in overcrowded prisons (1) don’t vote and (2) don’t matter to voters, he can afford to continue running California as if their lives don’t matter at all.

Last comment: Whatever Newsom is doing is playing out marvelously in California, where a recent poll shows him a reelection shoe-in (long-time readers will recognize his opponent, Brian Dahle, an old-skool law and order guy who opposed the recent prison closure in Susanville.) But it might not earn him as many points as he hopes in less-blue pastures on the national stage; he’s not getting any love for this on Fox News, where they can see right through it (even a broken clock shows the right time twice a day.)

The Surveyed Female: The Toilet Edition

On social media, a wonderful post by Rebecca Solnit is making the rounds. It is a quote from John Berger’s Ways of Seeing:

A woman must continually watch herself. She is almost continually accompanied by her own image of herself. Whilst she is walking across a room or whilst she is weeping at the death of her father, she can scarcely avoid envisaging herself walking or weeping. From earliest childhood she has been taught and persuaded to survey herself continually. And so she comes to consider the surveyor and the surveyed within her as the two constituent yet always distinct elements of her identity as a woman. She has to survey everything she is and everything she does because how she appears to men, is of crucial importance for what is normally thought of as the success of her life. Her own sense of being in herself is supplanted by a sense of being appreciated as herself by another….

One might simplify this by saying: men act and women appear. Men look at women. Women watch themselves being looked at. This determines not only most relations between men and women but also the relation of women to themselves. The surveyor of woman in herself is male: the surveyed female. Thus she turns herself into an object — and most particularly an object of vision: a sight.

It’s very well put, but it does remind me of Erving Goffman’s Gender Advertisements, which was published more than a decade earlier. Goffman analyzed dozens of ads, showing how women are gazing and gazed at the same time, perceiving themselves as the object of the male gaze.

I recently had the opportunity to contemplate the extent that this self-perception has been inculcated even in me. The annual meeting of the American Sociological Association was held at the Los Angeles Convention Center, which is a huge venue with many multi-stall bathrooms. Upon arrival, I found out that the organizers converted almost all the restrooms (which had been gendered) into all-gender restrooms (with the exception of a restroom on the first floor) and festooned the entire venue with signs about respect and affirmation for LGBTQ people and nonbinariness (if not at a soc conference, then where?). The compassion and acceptance for all attendees was, of course, commendable, but I was surprised to be of two minds about the choice to ungender all toilets. On one hand, as a small-bladdered person who always must run to the bathroom (and has the criminal record to prove it!) I was delighted that the number of available stalls and their proximity increased! On the other, I was uneasy with the presence of urinals in the bathrooms (even though they were not used in my presence) and felt wary of checking my appearance in the mirror, which is something I do without giving it a second thought in women’s bathrooms.

When talking about this to a colleague, she noted that there was one restroom marked “women” on the first floor of the humongous five-floor building, which she made a special effort to use. It would have taken me half an hour to get from the rooms where I gave and attended talks to make it to that bathroom, which perhaps gave women an opportunity to sample the experience of folks with disabilities and gender nonconformities of various types, who typically have to trek to find the “special” bathrooms. So, while discomfiting, this at least was educational.

I’m not sure that completely eliminating gendered bathrooms is in our future, nor am I sure that it’s a desirable future (that’s a debacle for a different day), but it sure made me think whether my instinctive reaction was an expression of the Goffman/Berger “woman watching herself being looked at” thing, and if so, whether it’s something we should accept, attempt to root out, or something in between. Curious to hear your thoughts.

Love Makes a Family: Does Reproductive Justice Include Only Biological Reproduction?

Recently I listened to Chen Zausmer’s fascinating podcast “What Are You Waiting For?”, which documents her egg-freezing journey. The podcast is moving, disquieting, and extremely well done, documenting Zausmer’s emotional process as well as the physical and financial practicalities of the procedure. Among the things that make this a worthwhile listen are the embedded recordings of personal conversations between Zausmer and her friends and family, in which they raise uncomfortable, emotionally loaded subjects such as “giving up” on couplehood and a two-parent framework, questions on reproductivity and self worth, womanhood and femininity, and other complicated, soul-searching issues. It is also an admirable example of honestly and vulnerably offering a meditation on subjects that can be, and are, deeply private issues for wide public consumption.

When someone does make the choice to make their very private affairs public in this form (the podcast is accessible on Spotify, Apple Podcasts, and pretty much anywhere else podcasts can be found), though, the audience’s thoughts about it are not merely nosy/judgmental commentary on another private person’s journey. Each of us consumes art and media through personal eyes. And, in my case, that meant listening to four lengthy episodes detailing a plethora of emotional, physical, and financial trials and tribulations focused on a very particular biological choice, without even a brief mention, a suggestion, or a whiff of possibility, around nonbiological parenting through fostering and adoption. And as an adoptive mom, this was crazymaking.

This is not a personal critique of Zausmer’s options–she is, of course, free to do as she wishes with her body, soul, and financial resources–and for what it’s worth, she comes off as a thoughtful person who engages in unflinching self-inquiry, which is admirable. But those who don’t want their deepest personal struggles to evoke a range of emotions, thoughts, and reactions, seldom make podcasts out of them, so I’m offering some thoughts in that spirit.

As in the pro-choice/pro-life debacle, becoming a mom through adoption has gifted me with a more nuanced perspective that untethers parenting from biology, which I elaborated on elsewhere (here and here.) I always feel like these perspectives are left unexamined because of the strong bias in favor of biological parenting. The conversations about reproductive justice that I’ve been privy to not only prioritize biology but actively push any notions of nonbiological parenting out of the conversation. For a number of years I’ve been surrounded by people, some of them close friends, who have gone through numerous circles of IVF hell, back-and-forth with surrogates and the adjacent ethical issues, and the deep tragedies of miscarriages and losses. And yet, suggesting adoption or fostering to people who are undertaking unbearable physical, emotional, and financial difficulties in their torturous journey to become biological parents is considered terribly rude, and the social consensus is that people’s willingness to jump through absurdly challenging hoops to ensure that they go through pregnancy/birth, or even just that their genetics are passed on, should be unquestionable accepted, without opening other doors and possibilities.

I remember noticing this when I attended an event celebrating Dov Fox’s new book Birth Rights and Wrongs. To his great credit, Fox provides a thorough and thoughtful overview of the myriad problems caused by reproductive technologies, including unreported medical conditions of sperm donors. The book’s agenda, however, is clearly to empower parents to address these serious technological and medical challenges through lawsuits in torts. One walks away with the sense that any procedure for procuring biological children–as complicated, experimental, expensive, and taxing as it might be–should be the unshakable right of any prospective parent, complete with the legal power to sue at every wrinkle at which something goes wrong. Expanding these litigation rights is a tacit expression of the law’s preference for, and encouragement of, biological reproduction.

This may be outside the cultural/biological/social norm, but I know I’m far from the only one: I have never wanted to get pregnant or to give birth, and at the same time I am thrilled to be a mom and my son is the light of my life. I accept that many, perhaps most, women do want to experience pregnancy/birth. But it is hard for me to responsibly participate in conversations with people who are experiencing horrific suffering and sorrows through their pursuit of biological parenting at all costs, and are completely unwilling to even consider other paths to parenting. Because we are very open about our adoptive journey, over the years I’ve happily had several lengthy conversations with friends and acquaintances who, throughout this journey started “despairing” and “thinking about adoption”–as if it’s a secondary choice to biological reproduction, only to be pursued if the “normal” path has failed, because multiple IVF rounds involving extensive travel and six-figure-dollar amounts is apparently more “normal” than offering a home to a newborn that also saves the life of young people saddled with an unwanted pregnancy. Afterwards, sometimes I get a phone call saying that they discussed it amongst themselves and at least one of them was adamant that what they really wanted was “a child of our own.” Get it? A child of our own–as if your kids through adoption or fostering are not really “your own”, or it’s some testament of your inferiority that you chose nonbiological parenting. I always want to ask: Why is it so important for you to propagate your specific genes, and how are they uniquely better or more important to propagate than those of other members of the human population? It’s especially jarring when, in opposite-sex couples, virtually all of the physical suffering is endured by the woman, and it’s the man who clings to the genetic imperative at the price of his partner’s health and wellbeing. Can I say something about this, compassionately and gently? Of course not! It’s none of my business, and there’s such a taboo against suggesting this even in the most compassionate way–and I submit the taboo exists because we harbor a deep bias against nonbiological parenting.

But this is not just an issue of people’s personal choices, for whom I have all the compassion in the world (another person’s suffering is 100% understandable and relatable, and gets 100% support and love from me, even if I’m not on board with the cause of the suffering.) It raises serious questions for all of us as a community. Societies that do not fully support solid, comprehensive sex education, keep young people ignorant of their bodily functions, allow young men to walk away from the consequences of their sexual activity, sticking young women with the agonizing expectation that they carry unwanted pregnancies to term, are societies that produce babies born into untenable situations who need stable, solid, loving homes. And such societies should do everything in their power to guarantee a good starting point for all these babies–starting with completely destigmatizing, and even encouraging all forms of nonbiological parenting, through resources, education, and unwavering social support. Investing enormous amounts of medical progress, public funding, and unquestioning social validation in biological procreation for the wealthy at all costs has a price, and that price is delegitimizing and neglecting fostering and adoption. And in the current political climate, this does not strike me only as precious and capricious, from a governmental perspective, but also as morally untenable.

My great aunt Carmella had a beautiful child-free life: she had her own business and traveled around the world with a lovely and similarly adventurous husband. They worked hard and arrived at a place of wealth and financial comfort. And yet she was deeply unhappy throughout it all. One of the main reasons: She desperately wanted to be a mother, bitterly envied her siblings (including my grandma) who had kids, and this filled her with frustration and contempt. Toward the end of her life, which she spent giving backhanded compliments and insulting family members, my mom called her to let her know that we had a son, and shared briefly about the adoption. There was a long silence on the other end of the line, and then Carmella, who was never at loss of words, said quietly, in a little girl’s voice: “Hadar is very wise.” When my mom shared this with me, my heart broke for Carmella and for the decades of joy and fulfillment she robbed herself of by not even considering fostering and/or adoption.

If you are reading this, no matter where you are in thinking about parenthood, what I most desire for you is to be happy. And what is most important to let you know is that there are many ways for you to find happiness. You can, and definitely should, consider the many possibilities of becoming parents through both biological and nonbiological means. You can, and definitely should, consider the very legitimate possibility of living a wonderful life full of meaning and fulfillment as a non-parent (with or without children in your life in one form or another.) A lot of the suffering we undergo in life when we choose a certain path comes from the stubborn (and incorrect) belief that it is the only viable path to our destination. I don’t want this for you–I want to you to offer yourself more freedom, and this freedom starts in your own mind, outside the socio-cultural expectations, pressures, or inducements. I’m sending you good wishes on this journey.

Guest on The Green Pill Podcast

It was such a pleasure last week to be a guest on Wayne Hsiung’s excellent podcast The Green Pill. Wayne is one of my favorite people, whom I admire a great deal for his selflessness: he is a relentless animal rights activist and one of the founders of Direct Action Everywhere. For his involvement in intrepid open rescues of animals (piglets, chickens) and documentation of the horrific conditions in so-called “humane” and “cage-free” slaughterhouses, he has faced serious criminal charges in multiple states, the latest of which is his upcoming trial in Utah. Wayne is also a deep thinker, a

We took some time to talk about the trial, from legal and emotional perspectives, but also about so much more. Our conversation, which you can listen to here, revolved around animal rights, prison litigation, and in general–how to remain hopeful and healthy, for oneself and for one’s kids, in a world so full of suffering. I hope you enjoy the program! For those who prefer reading to listening, here’s Wayne’s blog post about our conversation.

Trump Search Warrant Unsealed. Where’s the Affidavit?

Well, it’s happened: A search of Trump’s Mar-a-Lago residence yielded numerous items, all of which are listed in the search warrant, which you can read here in all its glory.

If you still can’t make heads nor tails of this, it’s because all we have seen so far is the warrant, which lists the place to be searched and items to be sealed, and not the affidavit, in which law enforcement officers detail their probable cause for the judge. As explained here, for reasons involving the ongoing investigation, it is unlikely that we’ll actually see the affidavit before formal charges are brought, so speculation abounds. Nevertheless, there are some things we can learn from the warrant. Here’s the description of the items sought:

a. Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes;

b. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material;

c. Any government and/or Presidential Records created between January 20, 2017, and January 20, 2021; or

d. Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

Contrast this with the three crimes listed in the warrant and you get a fuller picture of the suspicions against Trump. Here’s an excerpt from this New York Times story, which describes these federal laws:

The first law, Section 793 of Title 18 of the U.S. Code, is better known as the Espionage Act. It criminalizes the unauthorized retention or disclosure of information related to national defense that could be used to harm the United States or aid a foreign adversary. Each offense can carry a penalty of up to 10 years in prison.

Despite its name, the Espionage Act is not limited to instances of spying for a foreign power and is written in a way that broadly covers mishandling of security-related secrets. The government has frequently used it to prosecute officials who have leaked information to the news media for the purpose of whistle-blowing or otherwise informing the public, for example.

Importantly, Congress enacted the Espionage Act in 1917, during World War I — decades before President Harry S. Truman issued an executive order that created the modern classification system, under which documents can be deemed confidential, secret or top secret. The president is the ultimate arbiter of whether any of those classifications applies — or should be lifted.

As a result, while these classifications — especially top secret ones — can be good indicators that a document probably meets the standard of being “national defense information” covered by the Espionage Act, charges under that law can be brought against someone who hoarded national security secrets even if they were not deemed classified.

The list of items that the warrant authorized the F.B.I. to seize captured this nuance. It said agents could take “documents with classification markings,” along with anything else in the boxes or containers where they found such files, but also any information “regarding the retrieval, storage or transmission of national defense information or classified material.”

The government has not said what specific documents investigators thought Mr. Trump had kept at Mar-a-Lago, nor what they found there. The inventory of items was vague, including multiple mentions of “miscellaneous top-secret documents,” for example.

But the invocation of “the retrieval, storage or transmission” of secret information in the warrant offered a potential clue to at least one category of the files the F.B.I. may have been looking for. One possible interpretation of that phrase is that it hinted at encrypted communications, hacking or surveillance abilities.

The other two laws invoked in the warrant do not have to do with national security.

The second, Section 1519, is an obstruction law that is part of the Sarbanes-Oxley Act, a broad set of reforms enacted by Congress in 2002 after financial scandals at firms like Enron, Arthur Andersen and WorldCom.

Section 1519 sets a penalty of up to 20 years in prison per offense for the act of destroying or concealing documents or records “with the intent to impede, obstruct or influence the investigation or proper administration of any matter” within the jurisdiction of federal departments or agencies.

The warrant does not specify whether that obstruction effort is a reference to the government’s attempts to retrieve all the publicly owned documents that should be given to the National Archives and Records Administration, or something separate.

The third law that investigators cite in the warrant, Section 2071, criminalizes the theft or destruction of government documents. It makes it a crime, punishable in part by up to three years in prison per offense, for anyone with custody of any record or document from federal court or public office to willfully and unlawfully conceal, remove, mutilate, falsify or destroy it.

Given that the ongoing investigation is still shrouded in mystery, assuming that there isn’t some glaring horror, this is beginning to look like Al Capone’s prosecution for tax evasion.

Paying for Your Time: Low-Level Financial Hassles and Criminal Justice

I spent the last week at the American Sociological Association’s annual meeting in Los Angeles. It’s a conference I rarely attend, because I far prefer intimate workshops to gigantic venues, but I was invited to be a discussant on a panel that interested me greatly titled Paying for Your Time: Economies of Displacement in the Criminal Legal System. Seven years ago, when my book Cheap on Crime came out, I attempted to bring together two literatures that seldom interact: Public choice economics, which predict that economic downturns will lead to decreased punishment capacity and thus to decreased punishment, and Marxist social history, which predicts that economic downturns lead to loss of legitimacy and thus to increased crackdown on, and oppression of, the poor. In Chapter 7 of the book I offer a third prediction: a shift in our perception of the subjects of the criminal justice system from wards of the state to burdens on the state’s budget. This can manifest in both benign and sinister ways. Benign, when our attention is drawn to aging and infirm people in prison and we start seriously consider the utility of their incarceration given the health care expenses involved; sinister, when we decide that the way for such folks to become less burdensome is to regard them as consumers and charge them for the “services” they receive. The three papers on the panel all examined this sinister mechanism and offered grim reminders of how low-level haggling over expenses and hounding people with these outrageous debts can and does ruin lives.

A classic, nefarious aspect of this is pay-to-stay, a scheme by which people are charged for their own incarceration as if they were paying for voluntary lodging. In Cheap on Crime I wryly observed that people in prison and jail don’t really have the funds to pay the exorbitant fees (pay-to-stay in the Riverside jail at the time I wrote the book, for example, amounted to $140 per night; in Fremont, it was $155) and that the next logical conclusion–a lien on their future earnings–would do wonders for their reentry prospects. Unfortunately, it turns out that I was right, and this absurd practice has just become more popular with time. In their paper Insult to Injury, April Fernandes, Brittany Friedman and Gabriela Kirk track the litigation efforts of states who chase people with disabilities after they get out of prison or jail and sue them to receive, in arrears, the “accommodation fees” for their prison stay, to the tune of tens of thousands of dollars that these people don’t have. The authors received, through FOIA requests, documentation in many such cases, and they show how physical and mental disabilities further complicate people’s ability to defend themselves against this outrage. In a heartbreaking presentation, they shared handwritten documents by pro-se defendants in these cases, who don’t understand why they are being persecuted and are not entitled to representation in these cases. I’m not surprised; I literally wrote the book about these schemes and I don’t understand either. I still vividly remember how shocked I was when I realized that courts have already examined the constitutionality of pay-to-stay and found it a-ok; seeing the real impact on real people was a shocker, and the futility of the exercise made me wonder whether states weren’t actually losing money on this litigation.

The second paper dealt with another top-down scheme aiming to fill municipal coffers: parking tickets. In a truly ingenious project, Kasey Hendricks and Ruben Ortiz triangulated all the parking tickets written up in the city of Chicago with the traffic regulations, weather reports, you name it, as well as neighborhood demographics and the identity of the ticket issuer (Shaw and McKay, the great criminological mappers of Chicago, would be very proud of this piece.) They discovered that more than 13% of the tickets were erroneous. They also discovered that mistakes in parking enforcement are often a function of the ticket issuer: cops don’t know parking regulations as well as parking officials, and because cops disproportionately write tickets in neighborhoods inhabited by undocumented immigrants, these folks bear the brunt of erroneous enforcement. Because not speaking English, and not wanting to voluntarily embroil oneself with the authorities, are both barriers to contesting tickets, erroneous enforcement proceeds.

The third paper, by Kate O’Neill, Tyler Smith, and Ian Kennedy, examined the extent to which incarceration based on low-level financial obligation and defaults has a gendered dynamic. They investigated which counties in Washington State rely on monetary sanctions such as fines and fees and examined the correlation between this reliance and women’s incarceration. Their reasoning behind this hypothesis (which their data support) is that women disproportionally live in poverty, and that women’s incarceration disproportionally relies on low-level financial violations. The connection between financial violations and incarceration is more complex than this: one driver of family disintegration is the criminalization of failure to pay child support (also a gendered thing) and women also disproportionately find themselves saddled with various financial obligations involving the incarcerated men in their lives, such as dealing with the bail bonds industry. But the question, “is this necessary?” permeated the conversation.

I had many thoughts to offer on these excellent papers, which revolve around three themes. The first, which I called “Blackstone wept,” had to do with the question whether the relatively new distinction between criminal and civil law still holds water in a world full of crimmigration, civil asset forfeiture, and §1983 lawsuits. Finding oneself as a civil defendant in these cases is just as daunting and soul-destroying as being a defendant in a criminal case, with the added complication of having no right to counsel and none of the due process guarantees from criminal procedure. It strengthens my view that the “Civil Gideon” initiative in San Francisco is essential, even as not doing these mean-spirited things in the first place would certainly be better.

My second thought had to do with the decreasing importance of the public-private divide. In a paper that got considerable attention at the time, I questioned the wisdom of focusing critical and reformist energy on the private prison industry, vile as it is. My thinking about this issue was shaped by three eye-opening days that I spent at a public choice economics workshop. While in the belly of that particular beast, I ate and drank at the expense of (I think) the Koch brothers and took in some libertarian perspectives on the government-versus-free-market debacle. I came to realize that the government is shaped by very similar savings-and-greed incentives to the ones of the private sector. To my workshop instructors, this was wonderful, and to me, it was horrible, but it was true nonetheless. Some of the worst atrocities of the prison system have been perpetrated in government facilities; the private prison industry hasn’t cornered the market on scrimping and saving at the expense of a minimal standard of living for its wards. That all these mean, insidious persecutions are perpetrated by local government has strengthened my belief that, if there’s a loophole that allows someone to make a quick buck at the expense of the basic humanity of someone else, it must be immediately closed, regardless of whether the Machiavellian party is a private entrepreneur or a government paper-pusher.

The third thought, and the one that really hits me in the gut, turns back to the utility of these persecutions. I honestly cannot imagine that it is a worthwhile, profitable exercise to hound people with mental disabilities for money they don’t have; to chase after tickets issued to people who do not speak English for nonexisting parking violations; or to pay for the incarceration of women who are not actually endangering public safety because of their failure to pay this or that fee. So what is the point of this cruelty? Or perhaps the cruelty is the point? And if so, it’s another reminder to my rabble-rousing friends that we must cultivate enough love in our hearts for two wars: the long-term dismantle-abolish-defund stuff we’re so fond of talking about, and the actual, short-term, emergency, person-to-person immediate help to combat this awfulness, which from a bird’s-eye view seems like small potatoes but can completely overwhelm and wreck someone’s life.

As an aside, the visit to Los Angeles was glorious, as I got to stay at the Los Angeles Athletic club, where I swam in their spectacular pool (lots of backstroke, so I could gaze at the chandelier!); chat with old and new friends about viewpoint diversity, how to encourage empowerment and resilience in our students, what religion means behind bars, etc.; enjoy the Academy Museum and the majestic Angkor exhibit at the California Science Center; take in jazz near the La Brea Tar Pits; and visit the atelier of one of my favorite designers, Jerry Jacob, the creative genius behind Ito888. I’ll be back, Angelenos!

Preschool Graduation: Thank You, SOMACC!

Today our son Rio graduated from his preschool, South of Market Child Care (SOMACC) in San Francisco. It was an emotional morning for our family: Rio joined SOMACC a week before the pandemic began, only to be sent home when all childcare facilities shut down. He returned in August 2020, which was a true blessing for all of us. I’ve written before about how the wonderful education he received there enabled me to go back to work and revolutionize my pedagogy during an exceedingly difficult time. But I haven’t written about my deep appreciation of SOMACC’s pedagogy.

SOMACC’s curriculum is inspired by child-led educational philosophies my family deeply supports: RIE, an early-age approach that supports autonomy and curiosity, and Reggio Emilia, a philosophy that emphasizes diversity in interests and “languages” of learning and interactions with teachers and peers. These heart-centered approaches characterize every aspect of SOMACC’s mission. The children learn through art, play, and interaction. We are going through all the wonderful materials from Rio’s years there, and I am blown away by the careful attention that his teachers (pictured above with him) have paid to his development. They documented his activities, skill development, and the wise things he said, in writing; we have volumes upon volumes of anecdotes and sparkling moments of his school life. The school sent us weekly “meaningful moments”, but they were a drop in the bucket compared with the constant affection, attention, and nurturing that they showered on Rio and his friends.

Another aspect of SOMACC’s deep values is the extent to which they *do* social justice every hour of every day, rather than performatively talk about it. San Francisco is a city with deep inequalities: some families have Teslas and private jets and others suffer from food insecurity and housing instability. At least at SOMACC, these gaps are bridged–the school makes an enormous effort to give everyone the best possible start in life. The children receive breakfast, a snack, and lunch in school. In a small room out of sight, the school keeps basic groceries for families in need, who can help themselves without asking or being seen. Whenever the school fostered movie night, every child went home not only with a viable option to watch the movie for free, but also with snacks and activities related to the movie. The attention to every detail, the nurturing of every child, the assistance to every parent, were visible at every turn.

At today’s ceremony, Rio was overcome with emotion and overwhelm and walked on stage teary-eyed. It was heartwarming to see his teachers rally around him and offer him love and warmth. Much as we look forward to Rio’s continued educational journey, we are sad that this wonderful chapter has ended, and wish all the very best to all of Rio’s friends and their families as they move on to big kids’ school. Rio offered his teachers cards and flowers, which we prepared for them this morning. The pandemic has left so many of us with compassion and empathy deficits to the point that, even as educators make huge efforts for their students, they do not receive the immense gratitude that they deserve. I hope this post goes a little way toward expressing the vast gratitude and love we have for all teachers, especially our son’s.

The more I despair of the intractable problems of our society, the more I believe that the best answer to many of them lies in early age education, and with places like SOMACC in existence, one can’t help but feel hopeful.