How Machine Learning Improves Parole Research

Rabbi Levi son of Rabbi says…The Holy One said to Moshe “You will make a menorah of pure gold” (Shemot 25:31).

Moshe responded: how will we make it?

God responded: “It will be made of hammered work” (Shemot 25:31).

But Moshe struggled and went down and forgot how to make it.

He went up again and said: My Master, how do we make it? God said: “It will be made of hammered work” (Shemot 25:31).

But Moshe struggled and went down and forgot.

He went back up and said: My Master, I forgot it!

God showed Moshe, and Moshe still struggled. God said to him: “See and create” (Shemot 25:40), and took a menorah of fire and showed him how it was made.

But, it was still a struggle for Moshe!

The Holy One said to Moshe: Go to Betzalel, and he will make it.

Moshe told Betzalel, and he immediately made it. Moshe was amazed and said: How many times did the Holy One show me, and I still struggled to make it! But you, who never saw it, knew how to make it by yourself!

BaMidbar Rabah 15

One of the professional events I most look forward to each spring is the Virtual Workshop on Contemporary Parole–a fantastic two-day online gathering of a rigorous group of people producing exceptional work, which we’ve now held for the third year in a row. The papers are always superb and so is the camaraderie and commentary. I got to present a draft version of my new Sirhan Sirhan paper, as well as hear really terrific work on various aspects of parole: gang validation, racial proxies, young adulthood, and others. I can’t go into too much detail, because these are all works in progress and we’ll probably see polished versions of everything getting published soon enough. But one thing that stood out to me was the uptick in really interesting work utilizing machine learning.

I know next to nothing about machine learning and, like Moshe in the midrash above, I might be too old a dog to learn that particular trick. I mean, in the Sirhan paper, n=1. Thing is, the midrash really resonates with me because I, too, feel a lot like Moshe when I hear someone else talk about a fantastic skill they have and how they put it to good use. It looks like, despite God’s repeated tutorials, Moshe’s goldsmithing skills weren’t up to snuff. Thankfully, there were other Israelites with that particular skillset: Betzalel was a gifted goldsmith who made a spectacular menorah on the first try (this is why Israel’s fantastic art school is named after him.) While unable to emulate Betzalel’s feat, Moshe had acquired a basic understanding of the necessary artistry and workmanship, so he could appreciate why Betzalel’s finished product was of such high quality. In other words–I don’t employ machine learning in my own work, but I know enough about it to be amazed when I read a paper that uses it well.

To understand the promise of machine learning, let’s first talk about how we do parole research the old-skool way. A multivariate regression works much like the denouement in an Agatha Christie mystery novel. You know the drill: Poirot gathers all the usual suspects in a room and goes through a litany of their motivations, opportunities, debunked alibis, you name it. He eliminates them one by one until he can point to the culprits. The important point is that Poirot selects who goes into the parlor for that last scene: people get there by invitation, and Christie is careful to craft the scene so that it’s pretty much always a finite and manageable list of people. When I run a regression, I pretty much do the same: I think about the dependent variable–the phenomenon I’m trying to explain–and I try to come up with a list of the independent variables that might explain it. For example, if my determinate variable is a parole grant, I ask myself: Do people who are represented by a private attorney do better than people who are represented by a panel attorney? Do people whose hearings happen in the morning fare better than folks who are heard in the afternoon? If victims and/or prosecutors show up for the hearing, does that make a difference? Does the professional background of the commissioners matter? Do people in some prisons stand a better chance of being granted parole? You can tell that each of these assumptions has a certain logic behind it (you get what you pay for; people are more attentive and in a better mood when they are not tired or hungry; professional background goes into constructing people’s worldviews; some prisons have better rehabilitative offerings than others, which improves one’s case.) I put all of these “suspects” in a room (the regression equation,) run the numbers, and see which comes out significant.

One of the problems with this model is that regression models rarely offer a complete and exhaustive prediction of the phenomenon they try to predict. There is even a statistic, the r-square, that measures how much of the dependent variable is explained by the set of independent variables we coded for. But there could be many factors that play into a parole grant that cannot be adequately captured by the variables we identified. In other words, 21st century law enforcement doesn’t solve crime by putting twelve people in a parlor; if there is forensic evidence at the scene, it gets analyzed, plonked into giant databases, and could generate hits that are one-in-a-million, not one in twelve.

Enter machine learning. As we’re all now figuring out through our use of ChatGPT, artificial intelligence excels at digesting large amounts of text, identifying repetitive patterns, and throwing those patterns into a model. AI is intertextual in that it can assess the impact of any factor in the database on any other factor. As my colleague Kristen Bell and others explain in this paper, this allows the tool to mine parole transcripts for repeated words to get a sense of factors that would not be salient to us in a traditional regression. Moreover, the capacity of these tools is enormous, so one can feed the machine tens of thousands of cases and get a very powerful sense of what is going on. There are even tools like SuperLearner, which can apply multiple machine learning tools to a dataset, coming up with the best of several models. My colleagues Ryan Copus and Hannah Laqueur do exactly this.

Machine learning has many applications in criminal justice, as this excellent NIJ article explains. The critiques that are leveled on machine learning often revolve around its most common criminal justice use: predicting reoffending risk. As explained in this solid blog post, critics worry that any predictive analysis based on historical crime data will reflect (and thus reinforce) existing biases embedded in the criminal justice system, and perpetuate misconceptions and fears through the feedback loop of basic predictions on past decisionmaking. In other words, as my colleague Sandy Mayson argues, the problem is with the nature of prediction itself. You rely on a biased past, you get a biased future.

What researchers like Bell, Copus, Laqueur and others contribute is the potential of turning the use of the predictive tool on itself and using it not to predict the risk of those subjective to the system, but rather the factors that impact the decisions that the system itself makes. For example, if private attorneys do a better job than state-funded panel attorneys, wouldn’t we want to know this, and wouldn’t it be important to figure out exactly what it is about their performance that makes the difference in the outcome? Using AI can help identify, for example, terminology used by lawyers, thus giving us a sense of the “flavor” of representation that parole candidates receive.

When done well, this technique has fantastic potential to teach us about the hidden nooks and crannies of the parole hearing machine that we would not be able to flag on our own. You don’t have to be an AI whiz to understand and appreciate machine learning research; you just have to understand what it does and appreciate its strengths and weaknesses.

Sirhan Sirhan, Yigal Amir, and the Place of Retribution on Parole

A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal.

Mishna Makkot 1-10

So too for those who are liable for capital punishment or lashes: their death or lashing does not atone for them until they repent [do teshuvah] and confess verbally [do vidui].

Mishne Torah LaRambam, Repentance 1:1

It’s hardly debatable that Richard Nixon’s presidency was a watershed moment in American criminal justice. Even the scholars who point to punitive tendencies among his predecessors will admit that Nixon’s presidential campaign highlighted crime—and particularly judicial permissiveness in the face of rising crime rates—as a key political issue, and that his presidency made good on the promises to become tougher on crime.

Having lived under this regime for 50 years, it’s hard to speculate what our system would look like if Nixon had not been elected. We did come very close: Nixon’s most promising challenger for the presidency was Democratic Senator Robert Kennedy, well-respected and admired, and a former Attorney General. But shortly after Kennedy announced his victory in the California Democratic Primary at an event at the Embassy Hotel, a young Palestinian refugee, Sirhan Sirhan, darted toward the Senator and fired several shots from his revolver. Kennedy was killed and four other people were injured by the gunfire.

Sirhan was sentenced to death, but experienced a stunning reversal of fortune. In 1972, the California Supreme Court found the death penalty unconstitutional, and the 107 people on death row at the time–including the Manson family members and Pinole murderer Dennis Stanworth–had their sentences commuted to life with parole. By the time California brought the death penalty back in 1978, alongside the option of life without parole, the “Class of ’72” people were already preparing for their upcoming parole hearings. One of them was Sirhan Sirhan.

Almost immediately after his arrest, and throughout his trial and incarceration, Sirhan was interviewed by many psychiatrists. They noted his traumatic childhood in Palestine, his harrowing journey to Jordan as a refugee, the horrendous violence he witnessed as a young child. They identified psychosis and paranoia. But by the mid-1970s, he seemed to settle down, to the point that the parole board–on par with how things were done in those days–sat down to set a parole date for him. They settled on 1984; 16 years was plenty for first-degree murder back in those days. If this seems oddly lenient to you, keep in mind that Sharon Tate’s family members thought it would be an uphill battle to keep the Manson girls behind bars in 1978.

Sirhan’s early hearings in the late 1970s were basically status conferences, which followed up on his rehabilitative journey in prison. But things took an interesting turn in 1982. On April 26, a Monday, the parole board convened for a week-long hearing in his case, whose purpose would be to determine whether to rescind his 1984 parole date.

The impetus for this unusual step was threefold. First, as Sirhan’s release date approached, the Board faced unexpected gale force winds of public disapproval. The Commissioners received of 3,961 letters; 8,127 signatures of petitions; and 50 city and county resolutions requesting the recission of Sirhan’s parole date. The November 1981 assassination of Egyptian president Anwar Sadat, on the heels of his historical peace agreement with Israel, reminded the public of yet another anti-Israel act of terrorism, spurring these letters on and drawing connections between the two acts.

Second, the Board explained, new evidence had come to light that called into question the prior portrayal of Sirhan as a docile, rehabilitated inmate. The information included a Playboy article called “inside Sirhan”, as well as numerous threatening letters Sirhan had sent from prison to various individuals, and documentation of his threatening personality in his central file. “Generally,” the Commissioners explained, “the information specified above alleges that Sirhan has made threats against various people, and that he has exhibited other behavior indicating that he is not suitable for parole.”

The third ground for the hearing, however, was legal: the board maintained that its 1975 predecessor, which set Sirhan’s 1984 date, erred in exercising its authority. The question for discussion would be: “[D]id the parole granting panels fail to exercise independent discretion in finding Sirhan suitable or in establishing a period of confinement? The panel’s failing to consider the nature of the offense and the victim in finding Sirhan suitable for or in establishing a period of confinement.” The Board answered this question in the affirmative: they claimed that the 1975 Board abused its discretion by “fail[ing] to appreciate and fully assess the magnitude of the crime for which Sirhan was convicted.”

Sirhan’s attorney, Luke McKissack, balked at these reasons for recission. All the details about Sirhan’s crime, its seriousness, and its magnitude, he said, were widely known at the time of his trial and had no place at his parole hearing. As to Sirhan’s presumably threatening behaviors, McKissack explained, they should be understood in the context of his traumatic upbringing and unusual confinement situation. McKissack recounted some of Sirhan’s traumatizing experiences in Palestine—killings, mutilations, and mass atrocities, which “Sirhan, at four years of age, obviously would be affected by seeing that kind of violence.” He also explained that Sirhan’s threats should not be taken seriously: his 14 years in protective custody “could be the equivalent of twenty or twenty-five years for somebody else. . . from the onset he knew that anybody might kill him” and his threats should be seen as what they were: the airing of frustrations made “ten years ago when Sirhan was depressed, psychologically disturbed and reflective of that situation and not as high-powered as the district attorney makes it out to be.” During those years, McKissack explained, Sirhan witnessed other people—some convicted of multiple murders—being paroled, and it was understandable that he was frustrated and felt that he was singled out: “It doesn’t seem to me that in order to qualify for being paroled, that a person has to think that everything that occurred to him in life is fair.” Sadat’s assassination, he said, had nothing to do with Sirhan, who was being scapegoated: “In 1982, in an election year, with international events out of control, everybody is frustrated. It’s: Find someone to jump on.”

The Board was undeterred. On April 27, 1982, the Commissioners interrogated their predecessor, James Hoover, a member of the committee that set Sirhan’s original parole date. The resulting exchange reads like a remarkable showdown between the rehabilitative, professional, low-key logics of 1970s parole decisions, and the much more emotional and political tenor these decisions would reflect in the 1980s. Hoover had no love for Sirhan, obviously, but he thought his job was to judge Sirhan impartially on the basis of his prison performance:

Brown: It was your impression from 75-20 that everyone had to have a parole date set?

Hoover: That was my impression, as long as there was no negative factors in file.

Brown: Initially you could find no reason to deny the setting of the parole date?

Hoover: I could find no reason. I might mention in my own mind that I wanted to find a reason. . .

You have got to remember that our median time for murder first was only about fifteen years. So that means we had an awful lot of low cases and an awful lot of high cases. . . our legislature in their great wisdom did not say, “Well, if you shot a Senator you ought to do so many years. And if you shot Jose Gonzales down in the barrio, you only do this many years”. . . At that period of time this was what was acceptable. It may not be acceptable today, but at that period of time that was the guidelines. And my feeling was, there was nothing to justify. . . I thought that was ample punishment picking that period of time, that time in space of society and what people expected.

Hoover didn’t want Sirhan to walk, but he did what he thought was his job:

W]hen I saw [the psychiatrist], I said, first thing out of my mouth, ‘Shit. This son-of-a-bitch ain’t going nowhere.’ That was just—it was the flash that came up. And then I think she said, ‘Well, show me why not.’ And that’s when I went to the file. I thought, certainly I’ll be able to have all these negative things in file. I mean, it was just set in my mind. I just walked into it and without review, just off the top of my head.

Hoover’s 1982 colleagues, needless to say, did not see eye to eye with him on this. They rescinded his date, citing not only his threatening behavior but also the 1975 Board’s mistake in discounting the magnitude of his crime. The New York Times story about the recission features clearly retributive rationales:

‘’The people of the world will breathe a sigh of relief tonight because Sirhan will remain in prison,’’ said District Attorney John Van de Kamp of Los Angeles, who had pushed for canceling the Sirhan parole date. ‘’The message must be sent out in clear and unmistakable terms that political assassination will not be tolerated in this society – and those who engage in it must pay the price.’’

‘’He deserves never to be set free,’’ said State Treasurer Jesse Unruh, who as the California manager of Robert Kennedy’s campaign for the 1968 Democratic Presidential nomination was present when the New York senator was shot. ‘’I’ve been battling that parole date since 1975.’’

As we all know, Sirhan, who is now 79 years old, remains behind bars. In 2021 he was recommended for parole, but Governor Newsom reversed; in 2023 he was again found unsuitable for parole. In his last few hearings–probably to heed the California Supreme Court’s admonishment in Lawrence–the Board stopped citing the magnitude of the crime and started giving us, instead, the usual parole word salad about insight and accountability and looking inward, the whole psychic excavation enchilada. But the archaeology of the hearings plainly shows what happened: as of 1982, the parole board started seeing itself responsible not just for assessing the parole candidate’s prison journey, but for curating and appeasing the public sentiment about his or her crime.

To be honest, I’m not sure retribution has no place in release decisions. While working on Sirhan’s parole hearings, I repeatedly thought of another political assassin: Yigal Amir, the third-year Israeli law student who assassinated Prime Minister Itzhak Rabin. In 2023, it is hard to not see Rabin’s assassination as the watershed moment that ushered Binyamin Netanyahu’s ascendance to state leadership and, as Israel faces a severe constitutional crisis that threatens to disproportionately affect Palestinians and other non-Jews, to balk at the possibility that Amir should ever be paroled. In the following video, an excerpt from an excellent satirical show called The Chamber Quintet, actor Rami Heuberger depicts Yigal Amir. He smiles at the camera and said, “in twenty years, I’ll receive clemency. You know that’s true. Deep inside, you know it.” The effect is chilling:

The prospect of parole, clemency, or a pardon for Amir is not farfetched at all under the auspices of Israel’s 37th Government. Would that really be so much more horrible than a parole for Sirhan? What about when Amir is 79 years old? I’m not sure. But I also feel that we need to talk honestly about the role, if any, that retribution should play in parole decisions, and about the extent to which we entrust Board members to properly calibrate the resulting punishment in the face of political and social considerations and public upheaval. In any case, I find it poignant that Sirhan became a victim of the era of punitiveness that he ushered with a bullet.

It’s a Bitter Little World: VaYikra Rabbah, Achare Moth

Today I had the great joy of visiting a seminar taught by the fantastic Deena Aranoff at the Graduate Theological Union. The students (who were a delightful interfaith group of very astute people) engaged with Daniel Boyarin‘s theory of midrash.

For the uninitiated (most of us, I assume), midrash is rabbinical commentary on scripture, which illuminates aspects of the text through a variety of hermeneutical and literary devices. Some midrashim remind me a lot of dharma talks–a series of beaded parables, anecdotes, and examples; others, like Ruth Calderon’s retelling of talmudic tales, take the form of a fictionalized narratives. Talmudic era midrashim on the Humash (the first five books of the Old Testament) were collected and published as compendiums, starting with Bereshit Rabbah” and vary in terms of how closely they track the original text. The question that midrash scholars confront is: why did the rabbis do it? What is the point of this commentary?

Prof. Aranoff introduced us to two schools of thought on this. Some commentators see the point of the midrash as the artistry of collecting text selections from scripture–all of which, for the orthodox, are a perfect fit with each other and free of contradiction–and beading them together. Others offer a more critical approach: the midrash is merely a stylized form of commentary that reflects the rabbis’ own ideologies, affairs of the day, etc. Boyarin’s approach is that both perspectives are valid, and each of them as incomplete. Yes, the rabbis were making ideological and philosophical points. But an important aspect of what they were doing, which goes beyond just form, was that their textual universe–the sum of sources that they drew on–was a vast treasure of storytelling of various sorts, styles, and perspectives, which they drew on to make interconnections. If you will, it’s the original art of the hyperlink, or the inspiration for games such as the HipBone Bead Games. The point is that each paragraph of scripture from this immense textual universe can bear on, and illuminate, another; the sophistication is not just on the choices of text but also in drawing the connections.

Today’s selection was a midrash from VaYikra (Leviticus) Rabbah, which focused on the brief mention of the death of the sons of Aaron. I don’t know that I expected lots from Leviticus, which is not what you would call a page-turner: Leviticus is largely a temple operation manual with detailed and completely obsolete instructions on sacrifices and holy tools. Since the midrashim were written long after the temple was gone, the text itself is slim pickings for those reading it literally. But precisely because of this, the rabbis didn’t see themselves as bound to the original text, and wove a tapestry of intertext connections with vastly more interesting stuff.

The big mystery about the death of the sons of Aaron goes to the heart of the plot of every film noir I’ve ever seen. We don’t know if these people were actual historical figures (were they? more importantly, does it matter to you, and why?) but the idea that two young people would be suddenly and tragically taken away does resonate with things we experience in real life: overdoses, suicides, homicides, accidents. The Chabad website tells the story: On their very first day of service at the temple, the two youngsters, Nadab and Abihu, brought a “foreign fire” and were tragically consumed. 

The rest of the story goes into the horrendous lament of anyone who loses a loved one: why, why, why did it happen. The midrashim try to figure out, at length, how these young men might have offended God. Some suggestions include: they were drunk, they were egotistic, they didn’t marry and have families. But these sort of retributive stories are seldom very satisfying, because guess what: every day we hear of people who did absolutely nothing wrong to deserve horrendous, sudden ends. In other words, we have to find some way to deeply comprehend a difficult truth–namely, that shit happens and there’s nothing we can do about it.

In her phenomenal album La Llorona, one of my favorite singers, the late, unforgettable Lhasa de Sela, evokes this incessant, uncomprehending grief, in her song De Cara a la Pared:

De cara a la pared
Se apaga la ciudad
Y no hay màs
Muero quizas
Adonde estàs?
De cara a la pared
Se quema la ciudad
Sin respirar
Te quiero amar
Te quiero amar
De cara a la pared
Se hunde la ciudad
Santa Maria
Santa Maria
Santa Maria

The wisdom of the Achare Moth is that the rabbis don’t try to furnish some schoolmarmish rationale a-la Nietzsche’s “slave morality.” They know that we seek explanations for tragedies that visit people who do not deserve them, and that we’re also looking for some prescriptive comfort: if we do this or that, we’ll escape that ugly fate. It’s human to look for these tranquilizing explanations. I see it time and time again in the early writings in the field of victimology, such as in Menachem Amir’s concept of victim precipitation and in the uphill battle that imperfect victims face in the criminal justice system. But they also know, and they know that we know, that these sorts of facile explanations are ultimately unsatisfying, because life offers us daily proof that shit happens and cannot be avoided, that controlling the outcomes of our lives is an illusory and ultimately futile endeavor, and that the best thing we can do is try to come to terms with the impermanence and vagaries that come hand in hand with being alive. In other words, that the First Noble Truth is real, and you don’t have to be the Buddha to know that.

So, what do they do? If you read Hebrew, check out the text here. They pull a quote from the book of Kohelet (Ecclesiastes), arguably the most noirish part of the Old Testament. Kohelet is a cynical voice-over which, in this particular section, Kohelet says that everyone ends up the same way: the righteous, the evil, the pure, the impure. The rabbis proceed to pull out of all corners of the Bible a variety of examples of personages from different eras, locations, and contexts, drawing connections between these people’s lives and their fates. For example: Noah (a righteous man) and Pharaoh Necho (the opposite) both ended up bitten by animals and becoming lame. David (a good man) and Nebuchadnezzar (the opposite) both ended up with the same fate, even though one built the temple and the other destroyed it.

They also proceed to pull a quote from Psalms, which admonishes people for rowdy joy, and follow up with a series of examples of righteous, perfect figures in the Bible (Adam, Abraham, Sarah…), all of whom were unhappy. You can almost hear an ancient Manhattan grandpa shaking his head and telling his kids, “who ever told you we’re supposed to be happy?” And the most astonishing bit comes at the end, where they throw in a shocking story that does not come from scripture: A well-to-do man from Kabul (a city near Acre) celebrated the marriage of his son with friends. As they were wining and dining, he sent his son to the attic to get another barrel of wine. Upon getting to the attic, the son was bitten by a snake and died. The man wondered what might have happened to the son, left his guests and went upstairs, when he found his son’s body. He proceeded to wait until the friends finished their festive meal and then told them the chilling truth: they had come to usher the son into his wedding and will now usher him to his grave. The lesson returns to Ecclesiastes: laughter is mixed with tears, joys with sorrow. We can’t rationalize it. We can only come to terms with it and practice our equanimity chops.

I recently read an interesting article about the appeal of true crime podcasts like My Favorite Murder. Even though the show deals with heinous crimes, it has developed a vast and loyal following of people who claim that it has improved their mental health. One listener interviewed in this Atlantic piece explains: “I sort of exorcise that anxiety through obsessively reading about true crime and learning about it. . . You’re like, I’m not afraid of this. I’m going to face this, and I think it’s like exposure therapy.” What is interesting about the true crime movement, as I’ve written elsewhere, is that it diversifies the categories of victims, offering empathy in places where it used to be in short supply and reminding all of us that there is no line dividing the “deserving” and “undeserving” where violent crime is concerned. This may be the point that the rabbis tried to illustrate through their study of Biblical figures and their fate; the man from Kabul could be the tragic hero of a film noir or the protagonist of the newest podcast, and the emotion–horror, empathy, and opening heart–that we feel is just as fresh as it was for the people who studied this centuries ago.

This midrash offers good opportunities for learning about intertextuality, narrative devices, plotting, and connectivity, but I was really struck by the content. I’m still working on coming to terms with the young man I found dead on BART last week. The grief and horror of this poor kid sitting on the train, pale and unmoving, with no one noticing him, is hard to shake. The many friends I shared this story with have commented, “no one deserves to die alone on a BART car.” But maybe what we deserve, or do not deserve, is not the point. Adjacent to the magnificent peaks of our joys are deep oceans of sorrow and tears. And both are an inevitable part of our human experience.

Everyday Bavli Project: Brachot 1 – Evening and Morning Rituals, and a Dead Man on the Train

Every January, lots of people I know (and lots more whom I don’t know) resolve to be better in a variety of ways. Some of these have to do with adopting healthier habits: meditating every morning or every night, listening to some app, reciting affirmations, dunking oneself in an ice bath, getting one’s workout out of the way, drinking or eating something good for us, you name it. The Internet is brimming with advice about these various things, pouring out arguments for an against this ritual or other.

The Talmud Bavli opens with a tractate about the whens and hows of the different blessings, and its first page deals with the question of timing the “shma” blessing, the one many believing Jews recite morning and evening as part of their daily prayer structure. The Jewish day, just like the day in many religions, belief systems, and communities, is rather regimented with habits, and it looks like the conversation between the Talmudic teachers focuses on the best timing for the habits. These suggestions are remarkably fresh in their reasoning–they sound a little bit like a group of health hackers debating the exact timing and components of drinking their bullet coffee or taking their supplements.

Some scholars tie the blessing to the early temple days (long in the rearview mirror when this was written), linking its timing to the timing of sacrifices in the temple. Some, like Raban Gamliel, tie them to the natural world (debating the timing of sunrise.) And some seem to set a deadline for the blessing–midnight–to distance the person from evildoing.

This plan–tying virtuous behavior to a certain hour at night to prevent oneself from drifting into, well, less virtuous behavior–speaks to a dispute that pops up once in a while in criminal justice policy: to what extent is criminal behavior situational? Take a look, for example, at San Jose’s teenage curfew policy: Under a city ordinance, a person under the age of 16 cannot be in a public place within the City of San Jose without adult supervision between the hours of 10:00pm and 5:00am. Minors who are 16 or 17 years old cannot be in a public place within the city without adult supervision between the hours of 11:30pm and 5:00am.

Can one get into trouble at noon, or at 3pm, or at 5pm? Sure (indeed, many of those who balk at the puritanism of U.S. sex education point out that, if one prevents their teenager from having sleepovers with their partners, they’ll have sex in the daytime, in cars or in other places, arguably less safe and with less disclosure to the adults in the teenager’s life.) But then there’s opportunity theory, which claims that offenders make rational choices and thus choose targets that offer a high reward with little effort and risk. Nighttime creates opportunities and risks that are not present during the day.

I should know: twice a week this semester required an early morning BART commute with my bicycle. In the last few years, there is a lot more visible suffering on the train, and the hour of travel makes an important difference: the early morning features a lot of the aftermath of whatever bad things happened during the night. It’s not rare to see people injured (sometimes profusely bleeding) on the train; fights; exhausted folks sleeping, eating, and eliminating unhygienically on the train, on the platform, or in the elevators; and sometimes outright scary and dangerous activity, like people lighting up joints inside a closed train car. Most people on the train try to ignore this stuff even when it’s flat-out hazardous, because who wants to get in trouble, but sometimes our determination to mind out own beeswax has horrendous consequences.

This is what happened last Wednesday. I was on my way from Berkeley to San Francisco on the early afternoon train. At some point, I realized that the man sitting close to me was not breathing. He seemed pale. I asked the other passengers whether they had seen him breathe or move. No one had. I tried to touch the man. “Don’t do it, he’ll jump at you” someone said. “Junkie sleep,” someone else chuckled. But no. The man was dead. He was in his twenties, with a head full of curly hair like my son’s, wearing clothing that was somewhat disheveled (but who doesn’t look disheveled on BART?). For all I know, he might’ve ridden the train from the early morning hours, or even slept on it, and died at some point in the morning, continuing to ride unnoticed by the people around him. What happened to him–overdose, cardiac arrest–is anyone’s guess. He was found in the daytime. Did it happen at night? I’m not sure.

I’ll write more about my dead fellow passenger in the weeks to come – finding him was deeply saddening and unsettling and made me think of many ways in which our communal spirit needs an infusion of fresh compassion. But for today, this incident is relevant not only in that it raises the question of whether bad things happen at night, or early in the morning, but also in that it provokes the question, how we can leverage our habits and attention to meet each day (even on BART) with a larger reserve of compassion for others.

The next part of the mishna deals with the morning blessings, and it looks like the New Agey idea that you create your own reality by setting the tone for your day is not all that new. Brachot 1 offers us two approaches on when to punch the Shma prayer card. Shammai is all about consistency: make sure you say your blessing as you get up and as you go to sleep. Hillel, always the mellower of the two, is all about “just make sure it happens at some point during the day.” I’m generally part of the Hillel crew (big shocker there, I’m sure), but this time, I gotta say, I can see the logic in Shammai’s prescription, as I have (forgive the tiresome idiom) some lived experience in this department.

On the early morning commute days, I usually start my day in one of three ways: praying and singing (I created a morning blessing playlist with a meditative component), listening to classic literature (something I’ve read many times before, like Jane Austen), or listening to a true crime podcast. The podcasts are very engaging and I feel a strong pull to dive into these horrendous stories, but I’ve noticed that, when I do that first thing in the morning, I spend the rest of the day in a mental fog, and am somewhat more watchful and suspicious of people around me. I don’t think serious crime does not exist. It is definitely a part of reality. But I do think that disproportionately inclining my mind toward these scary and traumatizing scenarios does set a more somber tone to my day. The best of the three commute beginnings is the one that involves praying, singing, and meditating, but it definitely requires setting a habit.

Which is where being secular can be a bit difficult and, at the same time, freeing. When you read the Talmud as a follower of orthodox theistic edicts, you pray in the morning, or at night, or both, because your wise ancestors said you should. When you read it as a freethinking secular person, you are the boss of you, and you decide if and when to pray based on what, if anything, it contributes to your life. If that’s the case for you, you have the freedom and the responsibility to figure out which of your habits takes you in a direction you appreciate. Would we all be quicker to detect a fellow passenger in medical distress on the train if we took a moment in our busy morning–a clearing in the dense forest of our lives–to incline our mind toward compassion and caring?

In Memoriam: Gad Barzilai

Lately, I feel like an increasingly big part of the second half of my life is saying goodbye to people I love. Just recently, we unexpectedly and prematurely lost so many friends. This morning we received the terrible news that our friend and colleague Prof. Gad Barzilai, of Haifa University (formerly of Tel Aviv and University of Washington) has died of heart complications. It was very sudden and he was only 65 years old.

I met Gadi in Tel Aviv, when I was a frustrated postdoc there, and his advice and encouragement through the job search process was invaluable. His humanism and optimism was uplifting. We later worked a lot together at the Israeli Law & Society Association and at LSA, whose conferences he attended without fail.

Gadi was a scholar of universal renown, whose writings straddled the fields of constitutional law, administrative law, and political science. His book Communities and Law dealt with questions at the heart of Israel’s current crisis: how should majoritarian democracies treat minorities with identifiable community cultures? In the book, Gadi discusses the case of Israel, focusing on three such minorities: Palestinians, women, and ultra-Orthodox Jews. By contrast to much of the political science literature, from Robert Nozick through to Bhikhu Parekh (thank you, Sam Scheffler, for teaching me this literature) Gadi didn’t have a prescription to fit all majority-minority situations. Rather, he thought that each minority culture frames its own interest in, and ability to, engage with the majority culture in a different way, which requires

flexibility in framing the appropriate response within liberal societies.

This idea–of letting disenfranchised groups speak for themselves and understanding them on their own terms–also characterized his pedagogy and administrative work. An expert on Israel’s political culture (and the president of the Association of Israel Studies between 2011 and 2013) Gadi forged relationships with scholars, students, and administrators of varied backgrounds and walks of life. He used to say that research (and life) were “revolutions in a tie.” His administrative career was a testament to this. Under his Deanship, Haifa University bolstered and strengthened its impressive clinical program, with the idea being putting legal studies into practical use by helping those unable to afford legal representation.

Gadi was also a high-profile commentator on current events in Israel, where his vast goodness and common sense made him uniquely qualified to be a straightforward voice of basic morality. His last few posts on Facebook are a testament to this. Upon hearing that the 37th government sabotaged the ability to monitor domestic abusers with electronic cuffs, he said, “this is a clear sign of a country in serious moral crisis; we might be able to save the legal system, but who will save a woman who will be murdered? Shame on you.” His analysis of the convoluted events of the last few weeks was always crystal-clear, spot-on, and prescient. This article (for the Hebrew readers among you) is an example of his ability to convey complicated ideas in ways that everyone can understand and relate to, legally and morally (“the chances of a written constitution in Israel are just like the chances of me being a world champion in running.”) And in this article he warned all of us of the brewing civil war. In one of his last interviews, he articulated his vision for Israel’s constitutional future:

I want a bill that enshrines human rights that, to this day, are only supported by the High Court of Justice–the same “dictatorial” High Court that is now being challenged–which will include freedom of speech, freedom of travel, freedom of religion and freedom from religion. It’s great to be Ultra-Orthodox, but it’s also great to be secular, and every person must have the freedom to live according to their views. At the end, we must improve the existing Basic Laws, to enshrine human and civil rights with an emphasis on minority rights.

I’ve now seen lots of testaments and obituaries online, and interestingly very few of them focus on Gadi’s own scholarship, which was vast and impressive; rather, people are commenting on how Gadi supported and encouraged their own work. Because that’s exactly who he was: devoid of any ego, incapable of pettiness, he was universally generous to all. Always with a kind word to everyone–fancy people in the field as well as undergrads and grad students–and always expressing deep curiosity and interest, a desire to learn, and a sense of partnership and enthusiasm about other people’s work. Always a champion of his friends and colleagues, Gadi was constantly one of my recommenders for any job, award, or grant I went for, and always effusive in his advice and praise. He also chaired the panel that celebrated my first book, Cheap on Crime, and had such wise remarks about it. I think we all felt that Gadi was an expert in our field because he was so knowledgeable in all fields.

Gadi had known for a while that his cardiac condition spelled trouble, and had made lifestyle changes in terms of exercise and diet; but he continued to work himself ragged and worry desperately, from the depths of his big heart, about the future of the country he loved so much and fretted so much about. I really do think that this government broke his heart. It is precisely in these dark times that we need courageous voices of common sense and a strong moral compass to remind us that there is an objective good and that we need to care about everyone, not just let the majority trample human rights. With Gadi’s voice muted and his great light dimmed, I worry more for us all. What is remembered, lives.

When Does Blowing Up a Plea Deal Amount to Judicial Prejudice?

A huge beef is brewing across the Bay Bridge between Alameda County’s new District Attorney, Pamela Price, and Judge Mark McCannon. The backstory involves a plea agreement reached in the case of Delonzo Logwood, who is charged with a triple homicide. Looking at an exposure of 75-to-life, the proposed plea agreement would drop two of the murder charges and consist of only 15 years for the third.

Judge McCannon reportedly balked at the plea deal, saying that he has had sleepless nights over the triple murder case, and that he could not hand out a sentence that was not just and deserving. The judge also scolded Logwood from the bench, saying, “[y]ou can’t think an apology will make this all better. . . What are you sorry for if you didn’t do anything?”

In response, both the prosecution and the defense moved for a recusal, and the judge refused to recuse himself. Now, D.A. Price, elected on a progressive platform, is waging war against the judge, trying to get him disqualified from any case handled by the D.A.’s office. Here’s a video in which she explains why:

The basic doctrine that addresses the situation comes from a D.C. Circuit Court case called U.S. v. Ammidown. The defendant arranged to have his wife murdered by a much younger man, Lee. At the last minute, he changed his mind, and wanted Lee to “only” kidnap her and extort money from her. But Lee did end up killing Mrs. Ammidown, and both men were caught and prosecuted. In return for Ammidown’s cooperation in testifying against Lee–a much younger and more dangerous man–the D.A. agreed to downgrade the charges to second-degree murder; the judge, however, was not on board, and said that the charges were a “tap on the wrist.” He convicted Ammidown of first-degree murder and sentenced him to life.

On appeal to the D.C. Circuit Court, the sentence was vacated and the judge was ordered to accept Ammidown’s original guilty plea. Judge Leventhal, who wrote the opinion, explained that judges are not bound by plea agreements and are allowed to “blow up” these deals. But this course of action must be reserved for rare occasions, and follow these guidelines:

First, the trial judge must provide a reasoned exercise of discretion in order to justify a departure from the course agreed on by the prosecution and defense. This is not a matter of absolute judicial prerogative. The authority has been granted to the judge to assure protection of the public interest, and this in turn involves one or more of the following components: (a) fairness to the defense, such as protection against harassment; (b) fairness to the prosecution interest, as in avoiding a disposition that does not serve due and legitimate prosecutorial interests; (c) protection of the sentencing authority reserved to the judge. The judge’s statement or opinion must identify the particular interest that leads him to require an unwilling defendant and prosecution to go to trial.

We now turn to the content of these components, and begin by passing any discussion of fairness to the defense, since it is not directly involved in the case at bar and it has already been identified in the precedents referred to earlier in this opinion. As to fairness to the prosecution interest, here we have a matter in which the primary responsibility, obviously, is that of the prosecuting attorney. The District Court cannot disapprove of his action on the ground of incompatibility with prosecutive responsibility unless the judge is in effect ruling that the prosecutor has abused his discretion. The requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons. That much, indeed, was proposed by the Advisory Committee, and the Supreme Court’s amendment obviously did not curtail the proposed authority of the judge. The judge may withhold approval if he finds that the prosecutor has failed to give consideration to factors that must be given consideration in the public interest, factors such as the deterrent aspects of the criminal law. However, trial judges are not free to withhold approval of guilty pleas on this basis merely because their conception of the public interest differs from that of the prosecuting attorney. The question is not what the judge would do if he were the prosecuting attorney, but whether he can say that the action of the prosecuting attorney is such a departure from sound prosecutorial principle as to mark it an abuse of prosecutorial discretion.

In like vein, we note that a judge is free to condemn the prosecutor’s agreement as a trespass on judicial authority only in a blatant and extreme case. In ordinary circumstances, the change in grading of an offense presents no question of the kind of action that is reserved for the judiciary.

U.S. v. Ammidown (1973), Op. Ct. by Judge Leventhal.

The takeaway for judges is a strong discouragement from blowing up deals unless they have an excellent reason. Any time a judge flouts a plea deal, the sentence is more vulnerable on appeal, so most judges don’t do it lightly. Judges usually respect plea deals because they have long-standing working relationships with the DA’s office and they have to trust their judgment. Moreover, blowing up a deal is such an unusual occurrence that judges have to explain themselves in a lot of detail (to legitimize the sentence and protect it from appellate reversal). This, of course, requires going into why the judge does not trust the D.A. to have taken the public interest sufficiently into consideration. In doing so, judges sometimes use strong words, but per Ammidown, speaking too strongly is also a problem.

Does blowing up one deal amount to judicial prejudice of the sort that can be said to sour the judge’s relationship with the entire D.A.’s office? In other words, will D.A. Price prevail in trying to get Judge McCannon disqualified from all cases her office handles? That seems a bit of a stretch, and it speaks volumes about the underlying political issues surrounding her election and what her office stands for. Newspapers have reported that the office is somewhat is turmoil, with people quitting and openly challenging the office’s values and priorities. This is a pretty natural consequence of the office changing political direction with the election of a progressive leader–we saw this during Chesa Boudin’s tenure in San Francisco, also. As we see in the video, D.A. Price disputes these former prosecutors’ allegations.

The usual way of addressing possible judicial prejudice is by asking for recusals on a case-by-case basis. There are some situations where a more general disqualification is appropriate: consider, for example, a situation where the judge marries the D.A., in which case they really should not handle cases that the office brings (and best for everyone if the two work in different counties altogether.) This is quite unusual, and I wait to see how it unfolds. Regardless of whether Price will be successful in her bid, starting a massive feud with a judge on YouTube does not portend well for Alameda County.

Your One-Stop-Shop for Trump Indictment Explainers

Well, here we are: the arraignment of Individual One for a 34-felony indictment, has happened, and by tomorrow, many questions and explainers will be swirling around, so I gathered a few of the basics in this post (I would say I curated them for you, but I’m fed up with everyone saying “especially curated” as if compiling any list of thingamajigs were an artistic accomplishment comparable to putting together an exhibit at the Louvre. Thank you for listening to my TED talk.) If you’d like to take another look at the original materials, here’s the indictment and here’s the statement of facts. The NYT has provided an annotated version. For more, click here for a KPFA interview in which I discussed the indictment and next steps with veteran journalist Mitch Jeserich. Things to watch out for:

1) Why aren’t they listing the crime Trump was trying to commit by paying the hush money? This article suggests it’s a strategic choice (but wouldn’t they have to prove that, as an element of the felony? the NYT seems to think they don’t have to prove that, only the intent. I’m not 100% sure this is true.) And there’s also a jurisdictional question: Can that crime be a federal crime? Here’s coverage on Vox explaining this problem and how the rule of lenity plays into this. 

2) Why no conspiracy charges? I haven’t seen this covered anywhere and, honestly, I’m perplexed. Under NY law, here are the various permutations of conspiracy. If they can prove what’s in the statement of facts beyond reasonable doubt, they have conspiracy in the bag. Odd. 

3) Is everyone rejoicing? Look at this Gallup poll. Big shocker: opinions vary across the political spectrum. 60% of people approve of the decision to indict, and 76% think the decision was politically motivated (this obv. includes a big chunk of those who approve of the indictment.)

4) Is there going to be a mug shot? Not unless it’s photoshopped (I know fake ones are already in wide circulation.) He did get fingerprinted, but here are the prosaic reasons for the lack of a mugshot. 

5) What is the defense going to do in terms of pretrial motions? If I were the defense here, I would try to move to dismiss on the basis of general due process concerns (political targeting, the vagueness in the indictment.) If I were unsuccessful, I would move to change venue out of New York, where it will be difficult to find a sympathetic jury, but this maneuver is likely to fail (exposure to the upcoming media circus will be a factor anywhere in the country.)

6) What did Trump say at his press conference at Mar-a-Lago? As expected, he denounced Bragg as politically motivated. Here’s the coverage on Fox News (!).