Behind Ancient Bars: Daniel’s Diet

This month I started working on what will eventually become my next book, tentatively titled Behind Ancient Bars. In this book I hope to illuminate the Biblical and Talmudic incarceration experience, and hopefully put to bed some misconceptions held by modern penologists and some held by historians of antiquity. Every penology textbook I’m familiar with speeds through punishment in antiquity, retrenching the common assumption that prison is a product of modernity and contrasting it to its predecessor, corporal punishment.

In an environment saturated with incarceration, it’s hard to see it as anything but modern, but once you start looking for it, you can’t unsee it: the Hebrew bible and the Talmud are filled with references to prisons and jails, and while nothing in antiquity would have come close to resembling our modern correctional apparatus, confinement was very much present in the sociopolitical arena. Moreover, what we’ve been educated to see as a rift is more of a continuum: not only does the variation in carceral experiences today echo the variation in antiquity, but the boundary between prison and corporal punishment is very, very blurry, if it even exists (working on FESTER was the starkest confirmation for me that prison IS corporal punishment.)

There’s not a shred of archaeological evidence of prisons and jails from empires thousands of years ago, and the texts we have are not trustworthy descriptions of confinement. Rather, they tell us something about what would have been within the realm of the imaginable for their authors, and in the process, have something to say about politics, personal transformation, and fatalism.

The story of Daniel and his three friends, Hananyah, Mishael, and Azaryah, is a case in point, and you can find it in Daniel ch. 1. The book opens with Babylonian king Nebuchadnezzar’s victorious siege on Jerusalem, during which the Babylonians captured the implements of the temple into the land of Shinar, where they were deposited into the divine treasury. The king then ordered his high minister, Ashpenaz, to bring forth young Judahites of noble descent, teach them Babylonian literature and language, and feed them at the king’s expense, intending to incorporate them into the Babylonian administration. One of these children, Daniel, resolved not to defile himself (“lo itga’el”) with the Pat Bag and the wine, and after Ashpenaz expressed concern that his own life would be at risk if the children appeared poorly, appealed to the server/bursar to feed him and the other Judahites legumes and water. After a ten-day trial period, Daniel & Co. looked haler and healthier than the kids who fed on the path bag. The bursar continued to “carry” (remove? Keep for himself?) the king-allotted rations for the four and to serve them seeds instead. The kids are told to have done very well at the training, and when they came to the king, they were found to excel far beyond members of his senior administration.

Much of the exegetic chatter about this curious story focuses on Daniel’s refusal of the “path bag,” trying to establish precisely what was wrong with it. This is of deep interest to me, because I’ve been long interested in the awfulness of prison food, and Chad and I devoted much of the second chapter of FESTER to the horrific FUBAR of prison kitchens during COVID-19 (some of this story, complete with original emails, is here.) Of course, most religious commentators are not quite interested in that: rather, they spend their exegetical energy on explaining that Daniel et al. were trying to adhere to kashruth laws, the provenance of which is the ritual slaughter instruction in Leviticus 11 and Deuteronomy 14, but which were far from developed in the early exilic period. Other commentators hypothesize that the four young Judahites were concerned about the possible use of the king’s meat and wine as libations to foreign gods. The dietary discussion among commentators then becomes a halakhic “hook” for backdating cleanliness and kashruth to the biblical text, thus creating linkages between the Torah prohibitions and the meticulous kashruth industrial complex of later periods. There’s a broader context to all this: revulsion at another nation’s food is often a proxy for differentiation, separation, setting oneself apart. As Daphne Barak-Erez explains in Outlawed Pigs, disgust of pig flesh has deep roots in Jewish tradition, and its implications persist to this day, and it could explain why this diet thing might have resonated as much as it has (it’s also worth considering, as I’m reminded by Rabbi Adam Chalom, that the Book of Daniel was likely composed during the Hellenistic period, when swine sacrifices and diet-based persecutions would explain the central role of diet in this story). As a secular humanistic Jew interested in penology, though, I find these particulars ancillary to the much more fundamental question about this curious story: what sort of facility, regime, or program, was this, exactly, and how does it relate to the overall Babylonian colonial project?

The exposition to the story places it in the context of the conquering of Jerusalem and seems to suggest an administrative response straight out of the playbook of colonial governance: identify potential leaders among the nobility of conquered population, remove them from potential leadership positions among their populace, bring them to the metropole, and coopt them into the colonial scheme through middle-management positions within the metropolitan government apparatus. Where this program lies along the continuum between benign and sinister, empowering and coercive, is fairly unclear. What we do know is this: Daniel, Hananya, Mishael, and Azarya are still children when the story takes place, and alongside them there are many other children subject to the same regime, most of which are not Judahites. The quartet (perhaps like all children in the program) is given Babylonian names (Belshatzar, Shadrach, Meshach, and Abed Nego), a practice reminiscent of the “entry rituals” that Erving Goffman describes in Total Institutions. They are entrusted to the care of a high official (perhaps a minister, perhaps a eunuch), and their period of confinement, as explained above, includes an educational/vocational component: they are to learn Babylonian and the art of Babylonian governance, and when their three years of training conclude, they are expected to take a role in the Babylonian administration. They receive state-provided rations (“Path Bag HaMelech”) that are uniform for all residents of the facility. There is a special functionary who is responsible for the provision of foods, and he is identified as the “meltzar” (a word that will come to mean “waiter” or “server” in modern Hebrew.) It is also made clear that this is a high-stakes program: Ashpenaz himself—marked as a high administrator in Nebuchadnezzar’s court and clearly the chief administrator of this course or facility—is personally responsible for the welfare of his wards, to the point that his own head might roll should the king see that the children are upset, and that he feels comfortable enough with his wards to confide in them regarding this concern—a high official fostering amity with captive children who feel empowered enough to complain about their diets (and even to propose what might be the first Biblical experiment that has a valid control group!), presumably trying to get on their good side and eliciting their sympathy against the king. That the children’s welfare (not just their health, but their satisfaction) rates so highly with the king seems to speak well of his colonial enterprise, though the later stories in Daniel will do much to blemish his character. In any case, the fact that an entire story is devoted to the diet incident reminds me so much of what I know about the culinary aspect of CDCR administration, that I can only imagine the paper trail of the whole thing looking more or less like this:




Subject: Pat-Bag Supplies

Hey Saga how’s your night going.

Well as for here, it’s not going too good. I got four kids here starting to act out over the food and I don’t blame them. We’re now giving everyone the King’s Path-Bag and wine and four kids are asking for special vegetarian ratios. Right now we don’t have special meals for anyone. They say eating our food defiles them. Hope there is something we can do. I think it’s going to get really bad really fast around here if other kids start asking for vegetarian food. Any help in this matter would be greatly appreciated.





Subject: Re: Pat-Bag Supplies

Hey Pahas, that’s the correct meal. Everyone gets the same meal, no special problems because of “defilement.”

Sir Ashpenaz, anything we can do to improve upon this meal? The fellas aren’t enjoying it much and I worry.

Thank you




Subject: Veg Meals

Beltis, can you find out if we can order legumes cost-effective for four inmates for a few days? The king’ll have my head if he sees they’re unhappy. –Ashpenaz




Subject: Veg Meals

Minister Ashpenaz, my cousin Babasu works for Balasi Beans. They have a ten-day special for a bean and seed combo I can order per person. Pls confirm.




Subject: Veg Meals

Conf’d. Pls liaise directly with Pahas-Bel on next steps.





Subject: Order Confirmation

Order no. 1:14

Balasi Beans – Quality Legumes for a Great Price

Order Confirmation

Hi Beltis,

Thank you for your purchase!

We will send you another email once your order ships.

Many Thanks,

Balasi Beans

Bean and Seed Combo: Ten-day special  x 4





Subject: Beans

Dear Dr. Shala,

  1. Inmate no. 49596 Muhibu is suffering from uncleanliness and inflammation. He is due for his alcohol, honey, and myrrh preparation. Can you grind it here for him?
  2. Kids no. 30303, 23041, 30453, and 30340, Shadrach, Mischach, Abed-Nego, and Belshatzar, have been approved a diet of bean and seed combo. If effective in maintaining participants’ health, Minister of Eunuchs says we might reorder for the whole prison. Can you check how they are doing after ten days?





Subject: Beans

Just did initial assessment on the four kids you specified and a few kids receiving the usual rations. Will report back in ten days. –Dr. Shala





Subject: Beans Follow-Up

Pahas-Bel: I just stopped by the prison to take vitals and metrics from the four seed-eating kids and the control group. The seed-eating children seem to be doing better than the control group. If the king is so inclined, I would recommend ordering from Balasi Beans for the entire facility, but I won’t push it. In any case, there is no medical reason to prevent the children from eating seeds and beans.




Subject: Participants no. 30303, 23041, 30453, and 30340

Dear Sir Ashpenaz,

In anticipation for the appearance of Participants no. 30303, 23041, 30453, and 30340 (Shadrach, Meschach, Abed-Nego, and Belshatzar) before His Majesty the King, we have conducted exit interviews. The children wish to thank you for accommodating their dietary requests and to especially commend Pahas-Bel for his cooperation.





Subject: Path-Bag Discrepancy

Hi Pahas,

I’m looking at the books in preparation for the exit interview of the Judahite kids with His Royal Majesty and have to account for the Path-Bag rations they did not consume. I see three years’ worth of legume orders from Babasu, but I don’t see that the overall amount of path bag was reduced accordingly. What did you do with the meat and wine? Pls advise.


As some of you may know, the diet story is only the first of six court stories that found their way into the first half of the Book of Daniel. One of the more famous ones involves Shadrach, Meshach, and Abed Nego thrown into a furnace and emerging hale and healthy, which inspired this awesome gospel song:

Shadrach, Meschach, and Abed Nego, sung by the Golden Gate Jubilee Quartet

Another famous one involves Daniel, whose fortunes rise and fall quite dramatically in the first half of the book, being thrown into a lion’s den, inspiring works like this:

Daniel in the Lions’ Den, by Rubens

That the diet story was important enough to be a precursor to these dramatic tales tells me two things. First, that the confinement regime in Chapter 1 is being seen as part and parcel of the overall political/administrative arsenal at Nebuchadnezzar’s disposal: classic corporal punishments, like the furnace and the lions, do not exist to the exclusion of confinement, but rather alongside it. One wonders whether the spectacularly corporal punishments of Daniel & Co. are unique to them, in the sense of singling them out of the other young people, while the confinement regime was everyone’s baseline in the program, or was everyone in the program at risk of ending up “down in the hole” with the lions if they fell out of favor.

Relatedly, that all these royal reactions are being deployed is designed to paint a story of fractured, erratic, capricious governmentality. Not unlike the Pharaoh we meet in Joseph’s incarceration story (which will also be extensively told in the new book), Nebuchadnezzar runs the sort of administration where the fates of his underlings–especially his foreign subjects–widely swing up and down. This either reflects the erratic nature of these monarchies, or adds to the fairy tale aspect of the story by exaggerating the mobility and changing fortunes of the protagonists. It’s also notable that, like in the Joseph story, there’s very little in the way of institutional memory: if the confinement form ch1 incurred stigma, it hasn’t impacted Daniel’s fate later. This wild reversal of fortune continues throughout the stories: after a meteoric rise in the Babylonian administration, Daniel’s prospects seem to have changed for the worse in chapter 4, only to dramatically rise again when he interprets the king’s dream (this and other aspects of the story are why some commentators think that the Daniel and Joseph stories are versions of the same tale, and thus date Joseph’s prison story to the exilic period as well). There’s also a lot of elasticity in the use and misuse of power. We see exalted people afraid their heads will roll if some foreign kid complains to the king. And on the other hand, it looks like Daniel & Co., who are kids–and foreign kids, at that–feel comfortable not only complaining about a diet that does not work for them (quite rudely, too! Imagine telling an Emperor that his royal banquet fare defiles you!), but also proposing an experiment to gauge the health benefits of the diet they demand. They also seem to possess real savvy about who to deal with, and how, in a total institution: when negotiations with the higher-up authority hit a hurdle, they make a deal with the bursar on the sly. Not only that, but they are taken seriously enough that, even when the experiment succeeds, they are served legumes and water until their time is up.

The Fallibility of Memory

Two days ago, I rented a Zipcar to pick Rio up. The Zipcar did not have seatbelts in the back. We ended the reservation and complained to the company. They said they would have the seatbelt issue fixed. Rio and I promptly headed to have some ice cream and play in the local park, and it was only when we got home that we realized we had forgotten Rio’s backpack in the rental car. We swung by there and the car was gone. So, the following day, we called Zipcar, were told that the car was in the garage being fixed, and it would be in today. They made me a reservation so I could open the car and look for the forgotten bag.\

Today I went there. The vehicle I had driven, a black Honda, wasn’t there. Instead, there was a silver Honda.

I called Zipcar. The customer support person assured me that the car I had driven was silver. “No!” I said. “It was black.” “This is the car you rented,” she said. “That can’t be!” I said. “This one has seatbelts, and my son’s bag is not in the backseat.” “The car has seatbelts because it’s been fixed,” said the customer support rep. I raised my voice. I got angry. Then, a little doubt crept into my mind: Maybe I’m crazy and she’s right? But how can that be? The car was black! I had a brainwave. I popped open the trunk. There was Rio’s backpack. The service rep was 100% right. I was 100% wrong. I was mortified and apologized profusely.

I came home and asked Rio: “Do you remember the color of the car we drove two days ago?” Rio said, without blinking: “Silver.”

Whenever I teach wrongful convictions, I marvel at the percentage of miscarriages of justice that start off with a wrongful eyewitness identification. The National Registry of Exonerations identifies various reasons for these problems. The upshot is that 27% of wrongful convictions stem at least in part from a mistaken witness ID.

The share of eyewitness identification problem in wrongful conviction climbs up to 66% in cases of sexual assault:

But it was quite something to experience in person the tricks our minds can play on us. To be fair, I’m turning 50 this year, and for the last year I’ve operated under an insane mental load, dealing with mindnumbing grief (personally and nationally), professional and social isolation, full time work, full time grad school, rabbinical school, and of course parenting. It’s a lot. But consider that many eyewitnesses in criminal cases might be experiencing mental burdens and distress, especially if they have been victims of violent crime. They are absolutely sure they remember the events correctly. And they are wrong.

Are You a Self-Made Job Market Kryptonite? Develop Some Common Sense or Suffer the Consequences. Also, a First Amendment Primer Tailored for Your Campus Needs

Since writing this, and reading this, I expected things to deteriorate, and of course, they have: students who have publicly supported terrorists are suing private law firms that rescinded their job offers. This is absurd for reasons I’ve explained in a prior post:

It is also important to distinguish the right to free speech from the consequences of putting oneself out in public espousing horrendous views. Several law students in fancy schools are finding out, to their shock and surprise, that law firms are not all that keen to hire people who publicly extol the virtues of slaughtering, raping, maiming, burning alive, beheading, and kidnapping people. That being an antisemitic idiot with repugnant views is not a professional asset and has consequences in the job market shouldn’t be particularly surprising, unless you spent your undergraduate years under the tutelage of morally bankrupt people for whom espousing these “edgy” and “interesting” views was a calculated career strategy that catapulted them to prominence in fields like ethnic studies (read here a courageous letter by a UC Regent calling out the Ethnic Studies faculty council letter for what it is.) No wonder these students think they can spew horrid opinions in public and face no consequences whatsoever. What I find most amazing about the whole thing is that some of my colleagues are surprised by what they see on the campus quad. How is any of this surprising? Academic institutions, including the ones I work for, have breathed life into this Golem for years, and the last thing they should find astonishing is when it comes for them. They taught these people, but they didn’t educate them, and the proof’s in the rancid pudding.

But the thing that really gets my goat about this ridiculous lawsuit is that I’ve spent years either representing, or consulting for, activists, direct action folks, civil disobedients, etc. Doing this kind of work hones one’s fine sense of smell for who is the real deal and who is a performative, egomaniacal joke, i.e., who truly wants to effectuate change in world and who wants people to applaud them online. One tell-tale sign is that people who truly and selflessly believe in what they are doing are willing to take the risk of harsh consequences for what they believe. The animal rights folks I helped defend did not believe they were committing a crime by saving animals and documenting animal abuse in factory farms, but they did know that the counties that house these farms and the Farm Bureau lobbyists that fund the justice system in these counties would consider what they did a crime, and the result could be arrest, prosecution, conviction, and incarceration. They welcomed this eventuality, which would be very unpleasant for them, because they thought that criminal trials would be a way to raise the issues publicly whether or not they won and lost (of course, these are not all animal rights activists: many of them would rather make pig noises at Jewish speakers in City Hall than to do actual animal rights work, i.e., help the many animals who suffer from the war on both sides of the border. But that’s neither here nor there).

Anyone who thinks that a private lawsuit against a firm to protect one’s own bright future and pecuniary interests is going to move the needle on war in the Middle East is either disingenuous or an idiot (or both). Perhaps as disingenuous, or as much of an idiot, as the NLG clowns who advised law students that disrupting an event at someone’s private residence, which you are attending thanks to the owner’s personal generosity, somehow counts as consequence-immune free speech. Since it appears that all these supposed lawyers and law students have completely forgotten what they were taught in constitutional law, here are some reminders of the basics, complete with examples.

The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Like the entire U.S. Constitution, the First Amendment operates in the individual-versus-government space. It is the government that is forbidden from curtailing one’s free speech in public, not private entities–be they individuals, faculty members, students, student groups, etc.–and certainly not in private spaces. This is why suing a private employer who doesn’t want a shrill terrorism supporter to draw a salary from them is absurd. Here are a few other examples:

Also, odious as the “context” comments of the university presidents were at the hearing were, they were legally correct: when deciding whether something is protected or not, context does matter a lot:

Here are some recognized exceptions to the freedom of speech:

And here are the rules about some of the exceptions that come up most frequently in the context of student and faculty opinions about the war:

Fighting Words. These are defined, per Chaplinsky v. NH (1942), as words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” The burden of proof is pretty high–Clear and Present Danger, per Termiliano v. Chicago (1949).

Defamation. I’ve seen examples of horrific maligning of people on social media. Insofar as these people are public figures, it will be hard to prevail on defamation. Per NYT v. Sullivan (1964), “[t]he constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Incitement to Imminent Lawlessness/Violence. Here, too, hyperbole doesn’t suffice to create the exception: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The example given in Schneck v. U.S. (1919) is the classic “shouting ‘fire!’ in a crowded theatre.”

True Threat. It is not protected speech to “direct a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death” (VA v. Black (2003)), but most of the stuff that gets yelled around campus would not be classified as “true threat” but rather as “political hyperbole.” For example, to say during the Vietnam war, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” is the latter (Watts v. U.S. (1969)).

Solicitation to Commit Crime. In criminal law, at common law, the term “solicitation” applies to a scenario where a person requests or induces another person to commit an act that would amount to a felony. In the context of the First Amendment, the Supreme Court has punted on opportunities to clearly define criminal solicitation. Again, judging from the other exceptions, specificity would be key here.

As you can see, this means that free speech is very broad in the U.S. context. Which doesn’t mean that using it incessantly is necessarily a good idea. Recently, a beleaguered Harvard concluded that the best policy is to stay away from statements and proclamations on matters that do not directly concern the educational mission of the school (Syracuse is following, and I expect other schools as well–my own workplace does this, and this letter from the Dean of Stanford Law makes the same point.) But this does not apply, obviously, to individuals within the university. I know very well what it’s like to work and study when surrounded by behaviors that are covered by the First Amendment, none of which on its own is beyond the pale, but whose cumulative effect is corrosive. Because, just like the people yelling and distributing terrible flyers, you are an individual with free speech rights, use them! Take a page out of Ron Hassner’s initiative. I joined him for one night at my office and it felt good to do or say something, too, not just remain mute in the face of upsetting things happening.

That said, you and your psyche come first, and we could all immensely benefit from stopping the ridiculous concept creep of the phrase “I felt unsafe.” Choose your battles, act accordingly, and shrug off any nonsense that will not move the needle one way or the other. If you think that this stuff will affect your actual safety (not just your job satisfaction), then I think you should act.

Are Nonprofits that Employ People with Criminal Records Good or Bad? It Depends on Your Perspective

You’re probably familiar with the image at the top. Created by Danish psychologist Edgar Rubin, the face/vase illusion tests the modularity of perception: you can see the vase, or you can see the two faces, but you can’t see both.

I thought about this when I read Jonathan Ireland’s hard-hitting critique of the nonprofit industry. I recommend that you read it in its entirety – it heavily features San Francisco, and exposes some deep ugliness in the management of nonprofits presumably designed to help the homeless, which actually do anything but. Ireland’s examples illuminate his key point, which is that the reliance of progressives and socialists on dysfunctional, corrupt nonprofits is the exact opposite of being “progressive” or “socialist”:

Contrary to the conservative assumption that high taxes are an inherent evil, people are often fine with higher taxes provided that the taxes are utilized to improve local living standards. What is taking place in America’s most performatively socialist urban areas is that taxes are constantly raised in order to fund public services, resulting in some of the most heavily taxed populations in the country. But this tax revenue is then squandered on private contracts to unaccountable nonprofit organizations whose activities do little to rectify the problems they are nominally being funded to address.

In other words: instead of increasing state capacity to improve quality of life (e.g., pick up trash), ensure public safety in downtown areas, and solve large-scale social problems–after all, we want government spending in these areas–progressive cities have been delegating these areas to nonprofits, which are plagued by financial malfeasance, cynical posturing that often goes against the interest of the populations they are supposed to benefit, and just plain old incompetence. Ireland’s leading example is TODCO, whose corruption is truly breathtaking. I’ve been around do-gooder organizations for the last 25 years, and some of the ones with the noblest goals and most sanctimonious agendas are the shittiest in terms of administration, financial management and responsibility, and actual accomplishments in the field (not to mention all the horrendous infighting that makes hardworking, solid people flee them in horror and swear they’ll never work for one again).

But I’m not sure I’m buying wholesale Ireland’s critique of nonprofits employing people with criminal histories. Titling this section of his review “Crime, Inc.,” he addresses several cities that employ formerly incarcerated folks as “violence interrupters” or mentors. Notably, he does not mention Urban Alchemy, but rather similar programs in Seattle and Chicago. Here is Ireland’s critique:

[N]one of these people could draw a government paycheck unless it was laundered through a nonprofit. A police department could never hire a convicted felon with long-term ties to street gangs, but a private nonprofit has looser standards regarding who is allowed access to public funds. This not only squanders money on people who are not capable of performing the roles they’re assigned, but is an active threat to public safety in circumstances where the state uses convict-staffed nonprofits for duties that ought to be reserved for the police.

I think Ireland confounds two issues that are best kept distinct. Insofar as his critique is that the municipality would not directly hire people who have served a long prison sentence, the obvious answer is, yes, that’s exactly the point! One of Ireland’s concerns is that nonprofits employ people lack the skills for doing the work they are hired to do, and I suspect he is seeing only one aspect of the face/vase illusion. The material question is, what are useful skills for crime prevention work? You see, the logic of programs like Urban Alchemy is that, living lives saturated with danger and violence, people acquire special skills that help them sniff trouble before it begins and prevent it through subtle, nonviolent means, such as positioning themselves between a young woman crossing the street and a man about to mug or assault her. If the state or municipality cannot bring themselves to value these skills in the job market, of course private providers have to step in and employ them. Whether or not the proof’s in the pudding is another matter, and this is where, again, we’re dealing with two incompatible views of reality. One view measures public safety in arrests and busts for things that have already happened. Another measures public safety in terms of the intangible sense of safety that people experience walking down the street and having nothing bad happen to them. I’m not a neutral commenter here; my sympathy for Urban Alchemy comes from my, ahem, <groan> lived experience </groan> working in the Tenderloin. I can’t quantify this, put a number on it, or twist it into a nice graphic that would fit in a quarterly performance review, but I can tell you that the entire energy around my workplace shifted when the practitioners started opening doors for us, cleaning areas that used to be repellent, and watching out for folks. The difference between street corners with and without practitioners is palpable. Maybe at some point we hit a saturation effect and the impact of seeing someone with a green vest in the corner will dissipate. I worry that the proliferation of these companies could get us there, but my subjective assessment is that we’re not there yet.

(Also, there’s the underlying assumption that the scrutiny of the public sector helps prevent scandalous mismanagement of the kind that nonprofits are notorious for. But if the private-versus-public-prisons debate is anything to go by, the private sector has not cornered the market on scandalous mismanagement. The entire COVID-19 disaster in CA prisons was 100% brought to you courtesy of the public sector, and funded by $10 billion of your tax money per annum. And the few people who tried to do something were federal employees working for the Receivership and upstanding citizens volunteering or working in nonprofits, not state employees running the prisons.)

The second issue Ireland brings up is considerably thornier: the not-at-all-unreasonable concern that putting folks with criminal ties in charge of other people (crowd handling) and funds is a risk. He does provide some hair-raising examples of folks who continued their criminal activity, be it financial malfeasance or actual gang violence, under the sheltering umbrella of the nonprofit where they worked. Because I am well read on criminological literature (including quant stuff, not just jargon-heavy political propaganda), and because I live in the real world, I know that recidivism is always a risk, particularly in the first few months after one gets out of prison (with all the usual caveats about the concept of recidivism). A BJS study looking at state prisoners released in 2005 and following up on their records until 2014 found the following:

  • The 401,288 state prisoners released in 2005 had 1,994,000 arrests during the 9-year period, an average of 5 arrests per released prisoner. Sixty percent of these arrests occurred during years 4 through 9.
  • An estimated 68% of released prisoners were arrested within 3 years, 79% within 6 years, and 83% within 9 years.
  • Eighty-two percent of prisoners arrested during the 9-year period were arrested within the first 3 years.
  • Almost half (47%) of prisoners who did not have an arrest within 3 years of release were arrested during years 4 through 9.
  • Forty-four percent of released prisoners were arrested during the first year following release, while 24% were arrested during year-9.

There is plenty that we don’t know and can argue about, of course, such as whether the arrests reflect actual renewed criminal activity or bogus outcomes of escalated stop-and-frisk stuff that ended up being nothing, and whether the arrests reflect the lives of people who were housed and employed after they came out, or people who drifted back to crime out of necessity. But I think you’d be pretty silly, misguided, or deceptive, to argue that there are no risks of reoffending when employing people straight out of the joint. My argument, in both Yesterday’s Monsters and Fester, is that you can considerably mitigate this risk by providing early releases and employment opportunities to aging and infirm people who have already spent a long time behind bars. At least initially, this was Urban Alchemy’s employment strategy, and I would not be surprised if nonprofits employing people with an incarceration history find that they have significantly more reoffending challenges with young people. As I explained in both books (in different contexts), hooking up aging former lifers with opportunities requires a stomach for bad optics, because doing so tends to produce headlines about murderers-at-large, even though from a well-researched, robust criminological standpoint, the recidivism rate among people in their fifties who served decades in prison is remarkably low, and they constitute a very low employment risk. It’s also fair to say, I think, that any organization employing people who face temptations to reoffend on their daily beat must provide them hands-on support–decent pay, decent benefits, access to therapy, reasonable colleagues to talk to–otherwise, it’s not doing its due diligence.

Once the population of employees with criminal records increases and includes younger people with recidivism risks, the question becomes: at what point do we have enough information to argue that the nonprofit is dysfuctional, or even countereffective? I submit that Ireland falls into a trap that many of us fall into: failing to acknowledge that the world is full of both Type I and Type II errors. Briefly, a type I error, also known as a false positive, is the rejection of the null hypothesis when it is actually true. A type II error, or a false negative, is the failure to reject a null hypothesis that is actually false.

The errors that Ireland flags in his article–admittedly, horrible ones–happen when you employ a formerly incarcerated person in some crime prevention capacity, making the assumption that the person will not reoffend. The person then reoffends, garnering terrible headlines and raising the expected critique: Why are you employing criminals in your organization? The error no one observes is the one we (perhaps) make time and time again: we assume people will reoffend, and therefore do not release them or employ them or offer them opportunities, when they would actually be competent and helpful and not pose a recidivism risk. Because errors of the second type are invisible (you can’t guess whether someone would have reoffended on the job if you didn’t give them the job) you’re left with just the errors from the first kind.

The invisibility of the second type of errors stands in our way when we try to figure out whether a program like Urban Alchemy or Ceasefire or Community Passageways is effective or not. The temptation is to point at the situations in which the employees commit crime–say, assault people in the street, embezzle funds, pimp sex workers in their violence-prevention areas, etc.–and say, this program gives people a license to commit crime. Of course we should not ignore these critiques. But alongside them, we should see other things: Has the overall crime rate for the area supervised by the practitioners decreased? Do before-and-after surveys of the people who live and work in those areas show an improvement in their sense of safety walking the streets? Can we compare crime and safety in the streets when (1) neglected, (2) traditionally policed, (3) patrolled by nonprofit employees, or (4) combination of policing and nonprofit practitioners? That is the sort of essential literature that can actually answer the question whether the solutions offset the problems or vice-versa. We would all be better off if more people did this careful evaluation work, instead of writing alarmist “criminals on the loose” pieces or ignorant “dismantle the carceral whatever” pieces.

I don’t think Ireland’s piece falls neatly into one category or another, and I do think that his willingness to shine a light on the pervasive dysfunction of do-gooder organizations is important. I remember following, with some interest, the ugly feud between Shaun King and DeRay Mckesson, just to see how much rubbish, dysfunction, and malfeasance was at the heart of all the mudslinging. This is not the exception; it’s not uncommon. But I think that malfeasance and incompetence do not perfectly overlap with criminal history, and that’s where we should be more careful.

Children’s Books About Prisons

Friend, are you heading to a birthday or baby shower? If you like bringing books as gifts, and want the books to be meaningful, I’d steer away from tiresome sloganeering a-la-A-is-for-Activist and offer some actual content instead. I especially recommend two books I read with my son in recent years: The Gardener of Alcatraz and Milo Imagines the World. In case one wonders, why would I want to expose my kid to prison? it’s worth remembering that many kids are exposed to prison through the incarceration of family members and friends; that prison is constantly on the news, and so you’d be better off exercising some judgment over the narrative; and that, given that about 1 in 150 Americans is incarcerated, your child will come across prison or imprisonment at some point.

The Gardener of Alcatraz, written by Emma Bland Smith and beautifully illustrated by Jenn Ely (see cover image above), is a story that humanizes people in prison and offers hope without slipping into cheesy melodrama. It tells the true story of Elliot Michener, sentenced for counterfeiting in 1941 and put on a boat to Alcatraz after participating in a foiled escape plan from Leavenworth.

To Smith’s credit, she does not embellish or glorify Michener. The narrative follows his arrival in the gloomy prison and his plans to escape, and very subtly and intelligently shows (without telling) his internal transformation through his garden work. Michener’s labor of love, planting and cultivating flowers throughout the island, and his friendship with the warden’s wife, are gently and delicately handled. Smith also doesn’t gloss over the fact that Michener was transferred out of Alcatraz toward the end of his sentence, which was a true blow to him and his work. The book contains an appendix full of interesting information about Alcatraz and about the gardens. It offers a very special slice of history without hitting readers over the head with “mass incarceration is wrong,” but even young readers will get a sense of the complexity of having done something wrong and at the same time being harshly punished.

Milo Imagines the World, written by Matt de la Peña and illustrated by Christian Robinson, takes us into the present, with Milo and his sister riding the Subway. Again, no sloganeering or hitting you over the head with moralizing messages; instead, you get to learn about Milo’s world implicitly, through the way he imagines the lives of the people around him. In a particularly moving sequence, he sees a troupe of street performers on the train, and later his imagination takes a dark turn, implying that if these girls go to an electronics store, they might be stopped by the police for suspected shoplifting. The meaning of the story fully unfolds toward the end, when the reader realizes that Milo and his sister are on their way to visit their mother, who is incarcerated. To his surprise, Milo sees that another boy who was riding with them is also in line to see his own mother. Which is where Robinson’s illustrations complete what de la Peña only delicately intimates: the other boy seems white and well dressed. Realizing that things are not what they seem, Milo opens his mind to imagine other things beyond his assumptions (for example, the street performing girls living together in a big, lovely house; the bride on the train marrying another bride, rather than a groom; the gloomy man eating his dinner with a loving family, rather than just with cats), including a future where he, his sister, and his mom, now free, all sit in front of their building and eat ice cream together. I’ve been a fan of de la Peña’s work since I read the wonderful Last Stop on Market Street, which humanizes street people and shelter workers without being condescending or too explicit.

The more I see of my son’s educational journey at Red Bridge School, the more I realize that children are very smart and perceptive; teaching them stupid things and hitting them over the head with things they can discern from better crafted materials is a waste of their intellect and sensitivity. Gardener and Milo are two examples of how to thoughtfully introduce children to the painful topic of incarceration in a way that engenders empathy and complex reasoning.

Damages Lawsuits for Prison COVID-19 Neglect Proceed

If you’ve followed this blog during COVID-19, when we were litigating Eighth Amendment cases at Quentin and beyond, or read FESTER (you should!), then you know an unpleasant truth about prison impact litigation: the house always wins. Judges feel bound by Turner v. Safley or by the PLRA or whatnot, and even in the rare occasion that cruel and unusual punishment is found, the remedies seem meaningless. And yet, when Judge Howard told us all that the Eighth Amendment was violated and yet we get bupkis in terms of remedies, I thought to myself, “boy, I really hope that someone’s family runs with this and sues them for all they’ve got and cleans them out.”

That is exactly what seems to be happening now: several lawsuits for wrongful death have been filed against San Quentin and CDCR by families of people who died in the horrific outbreak, and despite the state’s best efforts to dismiss these lawsuits using the sort of bad-faith, cynical arguments we’ve come to expect in this matter, the Ninth Circuit has just decided that the lawsuit on behalf of the bereaved family of Sgt. Gilbert Polanco can go forward.

To make a long story short, here’s the legal framework: Generally speaking, state actors are not liable under the Due Process Clause for omissions (as opposed to affirmative acts), but this rule has exceptions, as the Ninth Circuit explains:

Under the state-created danger doctrine, state actors may be liable “for their roles in creating or exposing individuals to danger they otherwise would not have faced”. . . In the context of public employment, although state employers have no constitutional duty to provide their employees with a safe working environment, the state-created-danger doctrine holds them liable when they affirmatively, and with deliberate indifference, create or expose their employees to a dangerous working environment.

To prove state-created danger, plaintiffs need to show three things: (1) “affirmative conduct” on the part of the state, (2) “particularized danger” to the plaintiff, and (3) “deliberate indifference” on the part of the state. The Ninth Circuit seemed appalled, and with good reason, with the state’s argument that Sgt. Polanco could’ve just quit his job if he thought it was too dangerous. And remember, we already have a finding of deliberate indifference from the Marin Superior Court and from the CA Court of Appeal. I’ll keep you posted.

In some ways, this development goes hand in hand with an excellent suggestion made in a paper by Aaron Littman called Free-World Law Behind Bars. We talk about this idea quite a bit in the last chapter of FESTER: the idea is to move away from litigating constitutional standards toward regulatory frameworks of health and safety. You know, like in any other environment where humans experience risky conditions not of their making. There were already some interesting examples of these, such as the CAL/OSHA action brought by prison employees about their horrifically cavalier work conditions that yielded a whooping $421,888 fine. The Polanco family lawsuit does use constitutional arguments, but is looking to obtain damages. I hope the lawsuits brought by families of incarcerated people–who didn’t even have the choices that the staff had–go forward. And I also hope that the CCPOA sits up and takes notice of what happens when a union does not advance the rational interests of its members.

Left Realism Matters More than Ever in Criminology

Houston, we have a bit of a problem. Having just finished writing my term papers at the GTU, I’ve turned to grading exams (will be done soon! I promise!) and to some writing obligations in my areas of expertise, only to find out that I seem to have outgrown things I promised to finish and send out. It’s not exactly writer’s block: the challenge is not dishing out words, but rather the specific words that I’m supposed to be dishing. I committed to write something about the anticarceral literature of the last few years, its contributions and the ways in which it falls into the same traps it identifies (basically, a scholarly version of this thing), except I can’t shake a sense of “what’s the use?” It’s simply no longer clear to me how “contributing to the debate” makes the world a better place.

I’ve now spent more than 25 years in criminology and penology and have come to realize that there is nothing new under the sun. Maybe this is true of all social sciences, maybe humanities, too, maybe all disciplines; I can only speak about my own area of expertise. New terms and jargons are banded about often enough, but very little of the substance changes. Do the conference and publication thing, year in and year out, and you’ll risk catching whatever new viral tic is going around, infecting the crop-de-jour of publications and talks: the X industrial complex, postcolonialism, decolonialism, neoliberalism, extractionism, or whatever is in vogue this year (I’m sure there’s something, but I’ve been out of the loop for a few months, mourning my father and shellshocked from the massacre and the war and bereft of appetite for mundane job stuff.) If you scrape the jargon off, you find that the basics have changed very little in more than a century, and when articulated simply and without flourishes, they pretty much reflect what we know: what counts as “crime” varies, and although some things (e.g., serious violence) tend to generate consensus, others (e.g., white collar crime and environmental crime) are treated more nebulously; what is treated more seriously sometimes, but not always, correlates with what causes the most social harm. Disadvantage and deprivation can bring about pathological behavior both on the part of the people experiencing it and on the part of the people policing it. Militarized and aggressive policing is a low-yield, high-alienation strategy that makes communities bitter and mistrustful and harms efforts to actually solve crime. Locking people up can create conditions for cruelty and neglect and can bring about change (due to deterrence or rehabilitation) only under very specific conditions that, more often than not, do not materialize. Generally, the folks on the receiving end of the uglier aspects of criminal justice–whether too much or too little–tend to have less money and darker skins.

Contributions of value to this situation come, basically, in two packages: either a truly groundbreaking understanding of how the world works, or someone willing to put in the work to make things better. Publications and talks of the former variety are rare, which makes sense–we stand on the shoulders of giants, even if we no longer recognize the giants or remember to cite them. As to the latter variety, practical effort to improve things is hard to do, and also thankless, because even fairly mediocre folks know how to write the sort of gloomy diatribe that gets an applause: People did A, which was bad. Or people did B and meant to do a good thing, but it turned out bad because of systemic problems. Or people did C and pretended to do a good thing, when they were doing a bad thing all along. It matters very little which tack you take, as long as your conclusion is that things turned out worse than they were before. Writing this sort of thing gets a lot more respect in the social science spaces where I spent two and a half decades of my life than actually working in policy or government, where you are branded either as an idiot or as complicit with the bad guys, and it’s not nearly as much work, so even grad students realize fairly quickly where the incentives lie.

Because saying what other people have said for decades is not innovation, and because true innovation is not on the menu, we have simply found new ways to say old things. Which is why I find myself asked, at a book talk, how FESTER relates to “doing crip theory,” because apparently saying, “people with disabilities and chronic conditions were horrifically neglected and their conditions deteriorated” is less hip than calling it “crip theory,” which is exactly the same thing, except without the fancy name. Same goes for saying “the neglect and mismanagement of COVID-19 in prison caused horrific outbreaks and alarming rates of mortality, which affected people on the outside as well” without dressing it up as “eugenic logics.” When I say that overtheorizing is not a virtue, it’s an ego-driven intellectual game (and not a particularly impressive one), and that the facts are horrifying enough without calling them all sorts of things that don’t actually do any explanatory work, I get blank stares.

Thank you for listening to my grumpy TED talk so far. I know I can play this game just like everyone else–I just don’t want to anymore. But this is not about me–I’m trying to make a more general point, which is this: The big debates in the field today–the reform-vs.-non-reformist-reform stuff and the abolitionism-vs.-non-abolitionism stuff–are little more than iterations of a debate we already had in the 1970s and 1980s, namely, the debate between left idealism and left realism.

Ask any American criminologist or penologist about radical realism, and nine times out of ten you’ll get a blank stare. Punishment theory tends to be fairly parochial, and had I not been lucky to study with people trained in Europe and Canada, odds are I wouldn’t be familiar with Jock Young’s important work. A towering figure in criminology in the 1970s, Young was part of the pioneers of The New Criminology, then a groundbreaking work that responded to the challenges of British working class neighborhoods with a systemic analysis of deprivation and inequality, and challenged the mainstream assumptions of classicists and positivists by asking questions about the provenance of criminal categories and criminalization and positing that power played a role in crafting them.

It’s not a huge stretch to see that Young was not a starched, stuffy conservative. He was well aware of what we all know to be true, which is that the folks at the bottom of the social ladder are on the receiving end of the worst that we have to offer, both in terms of coercive state power and in terms of governmental neglect. But he was not willing to sign on to the fanciful idea, then banded around by Scandinavian abolitionists, that crime had no ontological existence and was essentially an invention by the bad guys at the top to perpetuate their superiority and make everyone else miserable. Crime, Young said, was a real thing, it victimized real people and caused real suffering, and it required a real response, rooted in the world that these people inhabited: those who committed the crimes and those who suffered from them.

Along with John Lea, Young offered a multifaceted understanding of the causes of crime, tying it to three factors: relative deprivation, subcultures, and marginalization. Poverty alone could not explain rising crime rates; standards of living had risen since the 1950s, and so had crime rates. But in an increasingly wealthy society, everyone’s material expectations rise: we are wealthier, but we feel poorer, and thus there is more pressure to get more stuff to keep up with everyone else, which generates historically high crime rates.

Relatedly, Lea and Young built on some of the proto-conflict criminologists of the 1950s (Merton, Albert Cohen, and others) to combine the problem of relative deprivation with systemic neglect (which they refer to as “marginalization) and the rise of criminal subcultures. Recall that Merton flagged the basic problem with the American dream: the mismatch between the goal (to get ahead materially) and the means (blocked opportunities due to structural inequalities, lack of representation, and being pushed out of fully participating in society.) People who adhere to the conventional goals but lack legitimate opportunities to accomplish them, said Albert Cohen, experience “status frustration,” which can lead to cynicism and bitterness and fuel criminal subcultures.

What produces crime, therefore, is a combination of factors, which Young captures in the “square of crime.” This framework can accommodate multiple criminological questions: why people commit crime, what makes crime victims vulnerable, what factors affect public attitudes toward crime, and what impacts the state’s formal response to crime. Any criminological theory that is a one-trick pony can ridicule any corner of the square of crime: knee-jerk left idealists can complain about the offender corner, arguing that crime is a capitalist, white supremacist invention, while knee-jerk conservatives (and, say, some carceral feminists) can complain about blaming the victim. But grownups understand that complex phenomena have complex etiologies.

Complex problems call for complex solutions, and left realism focuses on two types of practical, high-yield strategies: prevention through early intervention (tearly-age education and high quality programming for youth) and community-based approaches that focused on raising living standards, creating jobs, and improving quality of life. Because crime prevention is at its best when initiated by the community, the police must invest in building the community’s trust, opting for proactive problem-solving, rather than low-yield, high-antagonism tactics like militarized raids and stop-and-frisk activities.

You can probably see where i’m going with this. Left realism is an approach that sees social inequalities as fueling two sides of the same coin: criminality and criminalization. They are cognizant of the fact that the world can be very unfair toward those of us with less resources, and they also know that both perpetrators and victims tend to belong to the less fortunate sectors of society. There’s no preemptive assumption that victims and offenders must develop class solidarity and hold hands in peace circles, because crime is a serious thing and not everyone feels forgiving. There’s also no preemptive assumption that people who commit crime are uniformly innocuous and, without exception, lovely to be around, even as the source of their suffering can be very complicated. And, there is a basic trust in the common sense and power of community, because even though many people are poor and disadvantaged, most poor and disadvantaged people do not commit crime, nor do they like being around criminal activity. All of this makes as much sense to me in 2024 as it did to Young between the 1970s and the 1990s.

Why am I thinking about this now? In trying to discern my current opinions about carceral-this and anticarceral-that, I came across a crisp, clear analysis of our current political moment by the one and only Nate Silver. You can (and should) read the whole thing here, but here are a few handy paragraphs:

SJLs and liberals have some interests in common. Both are “culturally liberal” on questions like abortion and gay marriage. And both disdain Donald Trump and the modern, MAGA-fied version of the Republican Party. But I’d suggest we’ve reached a point where they disagree in at least as many ways as they agree. Here are a few dimensions of conflict:

  1. SJL’s focus on group identity contrasts sharply with liberalism’s individualism.
  2. SJL, like other critical theories that emerged from the Marxist tradition, tends to be totalizing. The whole idea of systemic racism, for instance, is that the entire system is rigged to oppress nonwhite people. Liberalism is less totalizing. This is in part because it is the entrenched status quo and so often is well-served by incremental changes. But it’s also because liberalism’s focus on democracy makes it intrinsically pluralistic.
  3. SJL, with its academic roots, often makes appeals to authority and expertise as opposed to entrusting individuals to make their own decisions and take their own risks. This is a complicated axis of conflict because there are certainly technocratic strains of liberalism, whereas like Hayek I tend to see experts and central planners as error-prone and instead prefer more decentralized mechanisms (e.g. markets, votes, revealed preferences) for making decisions.
  4. Finally, SJL has a radically more constrained view on free speech than liberalism, for which free speech is a sacred principle. The SJL intolerance for speech that could be harmful, hateful or which could spread “misinformation” has gained traction, however. It is the predominant view among college students and it is becoming more popular in certain corners of the media and even among many mainstream Democrats.

Silver goes on to explain why these differences have become even more stark in the aftermath of October 7:

I suspect that an increasing number of liberals will a) more clearly recognize that they belong to a different political tribe than the SJLs and even b) will see SJLs as being just as bad as conservatives. And this will cut both ways; some SJLs will regard liberals as just as bad as conservatives — enough so that they might even be willing to deny a vote to Biden. All of this is quite bad for the progressive coalition between liberals and the left that’s won the popular vote for president four times in a row.

The liberal-vs-SJL distinction Silver makes is echoed, in the criminological area, in the perennial distinction between left realists and left idealists, which then became the distinction between reformers and revolutionaries, which then became the distinction between, say, not-quite-abolitionist and abolitionist folks. Left realists are not the perfect equivalent of traditional liberals, but in terms of how the field is organized, they might as well be, because for the hardcore abolition/anticarceralism folks, anyone who is willing to treat crime as a phenomenon with ontological reality, regard incarceration as an institution that has some public safety payoff (if only to incapacitate people who are truly dangerous to their immediate environment), and ask hard questions about racial disparities in violent crime rates (and not only in criminalization), might as well be a rabid Trumper. I see this again and again at conferences. I hear incessant chatter about how prison “should not exist in its current form” but no practical proposals for what form it should take. I hear conversations about disenfranchised people being harmed by crime, but nothing about the fact that there are actual people, also disenfranchised who are doing the harming, and about the possibility that restorative justice circles might not be the only solution for this situation. Thing is, as a staunch left realist, I have serious axes to grind with fatuous analyses and suggestions from both these-people-are-monsters fearmongerers and psychopaths and crime-is-nothing-but-white-supremacist-scapegoating idiots and fantasists. And I also know that there’s a silent majority of reasonable people hovering around those two points that doesn’t quite accept those positions in their caricatured forms, but are afraid to write nuanced things that can contribute to practical improvements in the real world out of fear that no one in their respective milieus will treat them seriously or want to have coffee with them. And I don’t really have a solid plan for how to make this slouch toward unseriousness and hyperbole any better, beyond saying again and again: Jock Young was right, there are no easy answers, and left realism matters now more than ever in criminology.

Rainbow Brenner

Two friends, young, poor, bright, and full of promise, sit together in a shabby room in Warsaw. They are joyous, for not only do they have food and oil to light the furnace—a rare occurrence—but also a fresh-from-the-presses literary journal issue, containing a new poem by a famous poet they both admire. They recite the poem to each other, squealing, frolicking, then leap into each other’s embrace, as the fire burns in the furnace and a candle flickers on the table.

The two young men were Yosef Haim Brenner, among the most celebrated and appreciated Hebrew revival novelists and essayists, and Uri-Nissan Gnessin, a master of the short story in Hebrew and Yiddish. Intimate friends since their yeshiva days under the tutelage of Gnessin’s father in Pochep, Ukraine, the two ended up at the frontlines of literary innovation in Hebrew. They traveled across Europe fighting poverty and shirking military service. Brenner ended up living in a shabby room in East London, working long hours as a typesetter to fund his passion: his literary journal Ha’Meorer (“The Awakener”), a serial publication of Hebrew fiction, essays, and poetry. Gnessin edited Nisyonot (“attempts,”) a periodic collection of short stories. In 1907, after much deliberation, Gnessin joined Brenner in London, but the friends’ attempt at a shared life went sour within a few weeks and the two broke all contact. Brenner immigrated to Eretz Israel (then part of the Ottoman empire) in 1909 and, after a short and unsuccessful attempt at agricultural labor, moved to Jaffa and resumed his intellectual and creative career, venerated by members of the Yishuv for his originality and creative genius despite frequent controversies stemming from his controversial, strident writing. Gnessin returned to Pochep and in 1912 moved to Warsaw, already gravely ill with a congenital heart condition, a fact unknown to Brenner and to most, or all, of their circle of friends. On his deathbed he cried out Brenner’s name. The year was 1913, Gnessin was 33 old at his death, and when Brenner heard of Gnessin’s death, he was devastated. His moving eulogy to his intimate friend, “Uri-Nissan: A Few Words,” is at the heart of this paper.

Brenner married and fathered a child, whom he named Uri-Nissan and doted on, but divorced while his son was an infant. He then rented a room at a ranch in the outskirts of Jaffa, where he mentored an unknown young author, Yosef Luidor, and invited Luidor to live with him. In 1921, during a horrific pogrom in Jaffa, Brenner and several other authors, including Luidor, were horrifically brutalized and murdered at their lodging. The crime scene was so heinous, and reflected such atrocious slaughter and torture, that details were kept confidential even as the murder filled newspaper headlines, and many of the facts remain unknown to this day.

While Brenner’s books and essays are still regarded as the pinnacle of artistic merit in the Hebrew language, and his many novels, including his final masterpiece Skhol VeKishalon (“Bereavement and Failure”), are cited as inspiration by many Israeli literary giants, his works are no longer widely read beyond a small circle of literature connoisseurs. But in recent years, there has been a surge of interest in, and controversy around, Brenner—not for his literature and ideology, but for his personal, romantic, and sexual life.

The two works that sparked these controversies were literary critic Menahem Perry’s nonfiction work Sit on Me and Warm Up: The Homoerotic Dialogue of Brenner and Gnessin (Tel Aviv: The New Library, 2020), and novelist Alon Hilu’s speculative novel Murder at the Red House (Tel Aviv: Yediot, 2018). Perry’s book painstakingly recreates Brenner and Gnessin’s London misadventure, whereas Hilu’s book offers a shocking, lurid narrative that casts the murders of Brenner and Luidor as stemming from a doomed homoerotic triangle. The turmoil and heat generated by both books is the subject of this paper.

My interest is not in the was-he-or-wasn’t-he question; there is plenty in Brenner’s tortured personal life to suggest that he was a complicated man, and as to his suspected and confirmed romantic entanglements, we know that some were tragic (Gnessin), some tender (Luidor), and some, as we will see, unsavory, especially to a 21st century reader. We also know that Brenner was plagued by debilitating mental illness—perhaps depression, perhaps bipolar disorder—and it is not a stretch to hypothesize that his emotional suffering was related at least in part to his unconventional sexuality, as well as to the fact that such sexual feelings and desires, though certainly present and not uncommon, were deeply stigmatized and unspoken among the halutzim and absent from public discourse in Israel until the 1960s. What I do wonder about is the sudden cultural appetite for the sexual and romantic entanglements of a man murdered more than a century ago: What, beyond prurience, can explain this recent interest in Brenner’s sexuality? Does the speculation, investigation, and debate regarding Brenner’s queerness contribute to our understanding of his work or his death, and if so, how?

Perry’s Sit On Me and Be Warm: Investigating and Reading Between the Gaps

    Most serious Brenner biographers unflinchingly accept that Gnessin was his first and biggest love interest, and that the relationship, as well as Gnessin’s premature death, deeply impacted Brenner’s life and work. You can see some of these comments in Yair Kedar’s terrific documentary HaMeorer (2016), a beautiful film I recommend you watch in its entirety:

    Shai Zarhi comments:

    Gnessin was truly the love of his life; I really do think he was the love of his life. They emerged together and they started writing together. You know, they went through formative experiences together, that create a friendship… a very big love. And with difficulty, because both of them were very complicated people.

    The most harmonious and idealized expression of this relationship is an episode described in Brenner’s eulogy for Gnessin (1913), which centers around a poem by Haim Nahman Bialik titled “On a Sunny, Warm Day.” The poem proceeds in three parts, corresponding to three seasons. In the first, the narrator joyously a friend (“pleasant brother,” “blessed of God”) to his garden during the hot summer months. The second part, which is especially relevant to Perry’s inquiry, reads:

    When the black cold of a winter’s night
    bruises you with its icy pinch
    and frost sticks knives in your shivering flesh,
    then come to me, blessed of God.

    My dwelling is modest, lacking splendor,
    but warm and bright and open to strangers.
    A fire’s in the grate, on the table a candle –
    my lost brother, sit with me and get warm.

    When we hear a cry in the howling storm
    we will think of the destitute starving outside.
    We will weep for them – honest pitiful tears.
    Good friend, my brother, let us embrace.

    וּבְלֵיל חֹרֶף, לֵיל קֹר, עֵת מַחֲשַׁכִּים וּשְׁחוֹר
    יְשׁוּפוּךָ בַּחוּץ, הוֹלֵךְ סוֹבֵב הַקֹּר,
    וּבִבְשָׂרְךָ כִּי-יִתְקַע מַאַכְלוֹתָיו הַכְּפוֹר –
    בֹּא אֵלַי, בֹּא אֵלַי, בְּרוּךְ אֲדֹנָי!
    בֵּיתִי קָטָן וָדַל, בְּלִי מַכְלוּלִים וּפְאֵר,
    אַךְ הוּא חָם, מָלֵא אוֹר וּפָתוּחַ לַגֵּר,
    עַל-הָאָח בֹּעֵר אֵשׁ, עַל-הַשֻּׁלְחָן הַנֵּר –
    אֶצְלִי שֵׁב וְהִתְחַמֵּם, אָח אֹבֵד!
    וּבְהִשָּׁמַע מִילֵל סוּפַת לֵיל קוֹל כָּאוֹב,
    זָכֹר נִזְכֹּר עֱנוּת רָשׁ גֹּוֵע בָּרְחוֹב,
    וּלְחַצְתִּיךָ אֶל-לֵב, רֵעִי, אָחִי הַטּוֹב –
    וּרְסִיס נֶאֱמָן אוֹרִידָה עָלֶיךָ

    In the third part of the poem, however, describing the fall season, the narrator wishes for solitude, begging his “merciful brother” to leave him alone, away from others’ prying eyes.

    In his eulogy for Gnessin, Brenner reminisces about an evening in Warsaw, in which Gnessin returned from the printer with a fresh copy of the literary journal Luah Ahiasaf, containing the poem’s first-ever appearance in print, on an auspicious evening “when we had bread, tea, oil for the lamp, a warm fireplace.” By this time, Brenner and Gnessin were 19 and 21 years old, respectively, both out of the yeshiva and living secular lives. Brenner describes what happened next:

    We sat, both of us, during dinner, and began: “On a warm, sunny day, when high noon makes the sky a fiery furnace and the heart seeks a quiet corner for dreams”, etc., etc., – a song by H. N. Bialik!- and after a little while, when we finished our meal, we already stood facing each other, knowing the poem by heart.

    “A shady carob tree grows in my garden” – he emphasized every word with a sensuous, physical pleasure…

    “And when the black cold of a winter’s night” – I extended a howl toward him…

    “My dwelling is modest, lacking splendor” – he squealed, frolicking, and in his frolic “sat on me and got warm” while reciting “sit on me and get warm,” intoned “a cry in the howling storm,” imitated, with extended limbs, a “destitude starving outside,” jumped, shook, and then “pressed me to his heart,” his “brother, good friend” –

    And suddenly –

    The tear that had been sent in the letter from Pochep to Bialistok sparkled in his eye, and then another dropped –

    “honest, pitiful tears,

    Friend of my youth!”

    Our bones shook, and in the furnace a fire burned, and on the table the candle…

    Brenner’s description of the evening suggests harmony and mutuality, and his heartbreak over the rift with Gnessin is evident. Gnessin, however, never shared his own perspective on his relationship with Brenner, and though his biographer Anita Shapira observes that he sometimes expressed disgust with his friend, she still believes that they were “two opposites attracted to each other: Gnessin, tall, handsome, the Rabbi’s son, and Brenner, the plebeian, short, somewhat fat.” Shai Zarhi describes Gnessin as “completely different from Brenner. He was fastidious, delicate, a prince. But Gnessin’s special sensitivities, which created this deep connection—they were both people who were very sensitive to the soul.”

    Perry’s resulting literary investigation led him to posit a much darker, unsavory picture of the relationship, which Perry links to a cynical interpretation of Bialik’s poem. In a nutshell, Perry sees “On a Sunny, Warm Day” as a prime example of a typical Bialik semiotic device, which Perry refers to as a “reversing poem.” In such a poem, readers are led to interpret the song in a certain way, only to find themselves confronted, later in the poem, with new, contrasting information that sheds a new light on the earlier part. Perry believes that, in “On a Sunny, Warm Day,” this mechanism plays out to reverse our opinion of the protagonist’s desire to commune with his friend, suggested by the first two sections: the summer and the winter. When we discover that, in the fall, the protagonist wishes for solitude and distance, it casts doubt and undermines the credibility of his previously expressed enthusiasm for companionship and intimacy.

    Perry believes that Bialik’s reversing song is the key that unlocks Brenner and Gnessin’s relationship and also explains the rift that tore them apart during Gnessin’s stay in London, which is evident from Brenner’s words of despair in his friend’s memory:

    Neither him nor I expected anything from his arrival in London, and nevertheless we were both as if cheated… as if we both had hoped that our meeting would be different, that our relationship would be different, that our lives together would be different.

    And sometimes I thought: Everyone speaks of suffering. The word suffering is carried on every tongue. About us, as well—we are sufferers. Hebrew authors, exiles in East London, sickly, poor, etc. etc. But what could people know about the measure of suffering of this relation, that is between me and Uri-Nissan, my Uri-Nissan…

    In the few good moments, of which there certainly were some then, hearts were joined and purified from the impurities of resentment. Then we both understood, that I am not at fault, that he is not at fault, that we are not at fault, only disaster lies upon us.

    What was the “disaster”? To reconstruct those few fateful weeks, Perry engages in a maximalist reading of all documentary evidence of the London weeks, looking for details neglected or ignored by prior biographers, and “raising the concentration level” of the information about the relationship amidst the less important clues. He doggedly pursues clues in Gnessin’s letters to Brenner and others, painstakingly reconstructs the friends’ respective lodgings and employment situations in Whitechapel, and even travels to London to walk their paths and verify the feasibility of their intentional and accidental meetings. The resulting portrayal is one of a relationship that those of us inclined toward couples’ therapy (though not Perry) would easily armchair-diagnose as “anxious-avoidant.״ Gnessin, Perry believes, was always conflicted about his relationship with Brenner, fearful of him, and repelled by his exaggerated mannerisms and aggressive pursuit. His known romantic entanglements were with women, whom he treated shallowly and callously, and he teased Brenner with the same ambivalence that he teased some of his female lovers, including Yiddish poet Celia Drapkin, who attempted suicide after Gnessin rejected her. Perry documents Brenner’s repeated pestering and supplications that Gnessin, who was traveling throughout Europe, join him in London. After several evasions, Gnessin finally arrived in London in 1907, and during his stay there, for a few weeks shared close quarters with Brenner. Perry’s detective work suggests that the two shared not only a room, but a bed, and he hypothesizes that they also shared sexual intimacy. The experience was far from mutual and short-lived. Gnessin fled Brenner, quickly found a female lover and moved in with her, and never spoke to Brenner again. Perry carefully analyzes one of Brenner’s letters, in which he recalls walking to a public park and bitterly weeping there, and literally follows in Brenner’s footsteps in London, concluding that Brenner walked across the entire city to see Gnessin, who at this time lodged as far away from him as possible.

    Casting Gnessin as the solitude-seeking narrator of the “autumn” section of Bialik’s poem, Perry shows that, at the time of his London visit, Gnessin was already aware of his congenital heart disease and his impending death. It was due to this heavy emotional burden that Gnessin shied away from deep connections and commitment, and his disease was known to no one (Perry mines the autobiography of Asher Beilin, who lived near Gnessin and Brenner in London, and finds Beilin’s assertions that he knew of Gnessin’s disease unreliable.) Brenner’s deep grief at Gnessin’s passing, Perry surmises, stems from the fact that he finally understood the source of his beloved’s avoidance and hostility, and agonized over having judged him and snapped at him. In particular, Perry is attentive to an anecdote Brenner describes in the eulogy: Gnessin, who worked as a typesetter for Brenner’s journal Ha’Meorer, made a typographic error, and in Brenner’s apology for the late publication, set the editor’s note to read, instead of “please accept it [the issue] with my apologies,” “please accept me with my apologies.” Brenner’s recollection of how he fumed at Gnessin for the error is impregnated with guilt and anguish, and Perry believes that this might have been Gnessin’s subconscious effort to apologize to Brenner for his rejection, an effort that Brenner recognized only posthumously.

    Sit On Me and Be Warm became a lightning rod in the literary world. Perry is a venerated professor of Hebrew literature, the author of countless articles and essays, and the editor of several prestigious book series, and most of Israel’s literary circle consists of his former students. This hegemony has antagonized people who believe that their lack of fealty to Perry has harmed their careers, and that his work is unserious, as he is coasting on his earlier successes and established reputation. One of these critics, Ha’aretz literary critic Orin Morris, refers to Perry’s book as an “abject failure” (2017), and writes:

    This could have been an excellent book, had Professor Perry striven to do what is expected of a reasonable biographer. That is, to make do with existing materials. Instead, Perry decides to play the part of a detective, but he has to invent a mystery, because a mystery does not exist here at all, but Perry cannot let go of the glory of a land discoverer, even in a world in which all continents have been already found for quite some time. That’s why validating the mystery is so full of effort, puffing, and sweating.

    Morris rejects Perry’s “fanciful” interpretation of the Bialik poem as negating Gnessin’s attraction to Brenner. But more importantly, he expresses reservations about Perry’s project at all:

    [Brenner’s] ambiguous sexuality is among the most open secrets of Hebrew literary gossip. What was he? Celibate, monastic, shy, horny, a latent homosexual, a friend to children—what difference does it make. Like any person, he had an assortment of desires and abhorrences, and like any person, his sexuality was mostly his own business. Perhaps he tried to put order into his excitement over the touch of Gnessin, who was a known seductor. Perhaps, but that is not grounds for a book, and certainly for this kind of book. . . in addition, about a century after the acceptance of Freudian theory, we can easily leave the following question open: if any lengthy, strong male friendship, a youth friendship, carries the echo of homoerotic secrecy, what is the sensation here?

    A few days later, an irate Perry responds, also in a Ha’aretz article:

    Morris’ critique completely misses the quality of the story I’m telling, a story that I by no means claim to be true and final. The intellectual adventure in the book—which describes a multistage love story and not the story of acts, a story that centers a Bialik song and a famous typographical error. . . provides hypotheses justified by the fact that they accommodate an ocean of details that were either neglected or marginalized or unknown before, and allow them to coalesce. To undermine this narrative suggestion one has to propose a better counterstory, or to explain why this standard for deciding between stories—by examining them and comparing their capacity to make meaning of details that were left neglected in other readings—is farfetched.

    Yehuda Vizan’s ferocious critique of Perry’s work is of a different nature, and is titled “the fall of a giant”—referring, of course, not to Brenner, but to Perry himself:

    There’s an especially aggressive academic fad here, an additional layer to the “discourse,” not to say neoliberal propaganda masquerading as literary research, the fruit of French fornication that became further contaminated in the United States, and arrived here to us, unenlightened savages that we are, with fashionable tardiness—in which scholars compete, perhaps with homoerotic pleasure—whose is bigger, that is, who has identified a bigger author in whose work, or letters, or a note on the fridge of his former neighbor, there is a hint, vague as might be, that he considered flipping the table, or perhaps did not, but would have liked to. Or maybe did not consider, or wish to, but dissociated with all his might his homoerotic fleshly desires, which might explain his antipathy toward women in his adult life, and circularly then proves the homoerotic tone of his works, etc.

    Vizan is especially incensed by the fact that Perry himself, in an interview he gave to Vizan a decade earlier, decried the identitarian-ideological turn in literature and literature scholarship, complaining that ideology and gender theory “have nothing to do with literature” and are selectively deployed for the purpose of confirming theories of academics. He wonders about Perry’s megalomania and apparent change of heart about identitarianism, asking, “why, of all the topics in the world, would a liberal, Tel Avivi, enlightened author, in 2017, in the Eighth decade of his life, choose to write about “the homoerotic dialogue between Brenner and Gnessin? What is it good for? Whom, exactly, does it serve?”

    Vizan’s answer is that it serves mostly Perry himself:

    Perry’s new book, more than it is a story about “the homoerotic dialogue between Brenner and Gnessin, is the story of the fall of a giant who became, in his dotage, a hostage. His kidnapping finally confirms what has been known for a while: the changing of the guard in Hebrew academia, and the role flip between the former teachers (Perry) and their students (Gluzman), who now lead them, defeated and bludgeoned. . . mumbling others’ words with the heartwrenching, human, and understandable hope to remain relevant, to remain just a little bit loved, not necessarily homoerotically.

    Arik Glassner’s critique, far less vicious than Vizan’s, more constructively addresses the heart of the problem. Glassner admires Perry’s pedantic and dogged documentation, though he gently admonishes him for his “excessive appetite for piquancy,” and he highlights the complexity around the appropriateness of Perry’s inquiry:

    The question of “Brenner the fairy” is not mere gossip. Erotic distress is at the heart of the Brennerian creation, and therefore the question of the precise nature of the distress that preoccupied Brenner the person has deep meaning for the interpretation of his work as well. As opposed to Orin Morris’ critique in Ha’aretz, which sparked a heated debate on social media (including the brilliant argument that the conflicted relationship between Perry and Dan Miron as central to this book as the one between Brenner and Gnessin)—I think Perry represents a legitimate question here. Nevertheless, I do think that this position, the “Question of Brenner the Fairy,” which Perry sharpened and enhanced with the question of Gnessin’s reticence, does not quite hit the heart of the matter.

    Glassner leaves open the question of the literary relevance of Brenner’s sexuality, and we will return to it. But first, we turn to another recent treatment of Brenner’s biography that eclipses even Perry’s.

    Hilu’s Murder at the Red House: Sexuality, Mystery, Horror, and Thrill

      If Perry’s book provoked sharp critique, Hilu’s Murder at the Red House, a fictional, speculative novel, caused uproar. Hilu, no stranger to mining the biographies of historical figures, is known for playing fast and loose with the boundaries between fact and fiction. His previous book, The Dajani Estate (2008) is a retelling of Shakespeare’s Hamlet, in which a Zionist agronomist, Haim Klorinsky (a real historical figure), starts an affair with a married Arab woman, Afifah, and takes over her estate after her husband suddenly dies. Afifa’s son, Salah, is convinced that Klorinsky murdered his father. The book made a splash,[1] and Hilu was praised for his virtuosic use of historical Hebrew and Arabic, but panned for his one-sided, villainizing perspective on Zionism. More importantly, Hilu was accused, by the Klorinsky estate, by author Aharon Meged and even by Attorney General Elyakim Rubinstein, of deliberately misrepresenting the legacy of a man who was known for his friendly and cooperative approach to the Arab population and his firm commitment to peaceful coexistence. Hilu eventually admitted that his purported reliance on real personal diaries was fabricated, and that the diary pages he had supposedly reproduced in the book were forged; after a mediation process between him and the Klorinsky estate, Hilu changed the protagonist’s name in subsequent editions, and added a lengthy disclaimer at the beginning of the book.

      Either out of a sincere commitment to historical authenticity, or in a desire to avoid a second legal kerfuffle for maligning eminent cultural figures, Hilu equipped Murder at the Red House with two preemptive disclaimers. In a detailed afterword, he accurately and assiduously documented the known facts about the murder of Brenner and his companions. The trigger for the 1921 Pogrom was a violent clash between two May Day protests of rivaling Jewish political parties. The British police quelled the violence and pushed the communists to the Jewish neighborhood of Neve Shalom. The communists unleashed their furor against the police, the Jewish landlords, and their Arab neighbors, by continuing to provocatively wave red flags and sing the International in the vicinity of the Arab neighborhood of Manshiye. Fisticuffs broke, which escalated into a bloody armed conflict, in which hundreds on both sides were killed. The Hebrew authors’ murders occurred the next day and, save for the fame of the victims, would probably have been seen as one violence site among many. It is also known that, on the day before the murders, an Arab “lad” of an unknown age had disappeared, and his family had inquired after him at the Red House. Shortly before the murders, the neighboring Arab village held a funeral for a boy (it is unknown whether it was the same boy.) And it is unquestionably true that massive efforts were made to send a vehicle to Jaffa, to evacuate the house’s residents, and that they refused, sending some bee keepers who stayed with them, the Lerer family, in the vehicle in their stead. The Lerers attested that, the day before the murders, Luidor was sexually assaulted by a gang from Nablus and rescued by a Jewish man, and that he was deeply shaken by this experience. They also mentioned at the police inquest that there were hostilities between the residents of the Red House and an Arab gardner, Murad Alkarnawi, who cared for the nearby orchards.

      In the introduction, he flags the holes in the evidence, which he sets out to speculate about in the novel:

      What were the reasons that [Brenner and his author friends] gathered at the house on the day of the murder despite the turbulent political climate and despite the house’s dangerous location amidst Arab villages? What were the relationships between the residents? What was the reason for their incomprehensible (and ultimately fateful) choice not to get into the escape vehicle that arrived to pick them up the day before they were murdered? What were their connections with the Arab inhabitants of the nearby village, Abu Kabir? . . . Why were the bodies mutilated? What became of the body of Yosef Luidor? Was there a connection between the death of an Arab boy from the nearby village and the collective lynching?

      There could be numerous ways to bridge these narrative gaps, but Hilu chooses to augment and center the possibility that the murder plot was closely related to sexual conduct and misconduct by Brenner and Luidor. As we saw in Perry’s book, this possibility, while explored in deeply unsettling directions, is far from being out of character for Brenner. Even Brenner biographers and documenters far less prurient than Perry all accept as plausible that he was attracted to men. Haim Be’er documents his mentoring relationships with young men and suggests that future biographers might explore these through a homosexual lens. Moreover, there is at least one confirmed story of a close, intimate, physical friendship (hugging and kissing), between Brenner and his landlords’ twelve-year-old daughter, Rachel Katinkaץ In interviews decades later, Katinka remembered the friendship fondly, expressed unreserved affection and warmth for Brenner, and mentioned that they remained in loving connection throughout her young adulthood, marriage, and motherhood, until his murder. Nevertheless, the relationship seems deeply unsavory, even predatory, through the lens of 21st century sensibilities, and even at the time, Brenner himself must have felt ambivalent about its morality, and about his own sexual proclivities; as early as 1907, he commented in Yiddish to Hillel Zeitlin that “the difference between pure and impure hands regarding [sexual behavior] is unclear to me”, and he left the Katinka home in haste in 1909.

      Playing up the sexual possibilities to the max, Hilu’s Rashomon-style tale is narrated from three perspectives, starting with Luidor’s. Rescued by Brenner—the “Great Author”—from isolation and abject poverty, and invited to reside at the Red House, Luidor is initially grateful to Brenner and flattered by his attentions, until he learns that of Benner’s sexual interest in him. After initially rejecting Brenner’s unwanted advances, he succumbs, finding the experience traumatic and repellant. A lovesick Brenner promises to stop pestering Luidor if the latter refrains from having sex with another men. But unbeknownst to Brenner and others, Luidor meets and falls in love with an Arab “lad”, Abd’ul Wahab, and the two enjoy a beautiful, idealized romantic relationship in various hideouts around the neighboring Arab village, Abu Kabir. When Abd’ul Wahab disappears, Luidor frantically searches for him, coming upon what he believes to be a murder scene, and is immediately and brutally ambushed and sexually assaulted by a gang of Nablus men. Before he can compose himself, a group of beekeepers arrive at the house, alarming the inhabitants by telling them about a wave of pogroms against Jews in Jaffa and seeking shelter. The residents decide to leave the house immediately, and a rescue vehicle, procured with great effort, arrives to evacuate them. But Luidor has received a note from Abd’ul Wahab’s young sister, informing him that his lover is seriously ill and wishes to see him, and refuses to board the vehicle. Halfway to Tel Aviv, Brenner exits the vehicle and returns to the house, the others on his heels, and reunites with Luidor, explaining: “if I am unwilling to risk my life for my love, I do not deserve to be called a human, let alone a Hebrew author.” At night, news of Abd’ul Wahab’s death reach the house. It is too late to evacuate, but they decide to take shifts defending the house from a possible mob with the only rifle they have. A local cop, Ali Arafath, whom they consider an ally, offers to help, and they reveal to him their plan to flee through the back door during Abd’ul Wahab’s funeral.

      The second narrator is Murad Alkarnawi, an old gardener, reminiscing about the events forty years later. His special connection to the orchard trees is disrupted when the Red House’s owner, Mantura, leases the house to the Jewish ranchers, who frighten and repel him. He is especially unsettled by the Jewish authors—especially “the bearded one,” Brenner, and “the limping one,” Luidor—whom he catches lovemaking in the orchard and alarming the trees. After he complains about them to the rancher, the two steal a valuable ax from Murad’s shed, falsely accusing him of stealing it (the ax is a gift from German gardeners) and getting him in trouble with Officer Arafath.

      Murad is horrified to see “the limping one” grooming a young, dimwitted child (implied to be Abd’ul Wahab) and sexually assaulting him. The next day, the boy disappears, and his family frantically searches for him. The villagers are further alarmed by the May First labor parades and protests, in the ensuing violence, the dimwitted boy suddenly reappears, and is fatally shot in his stomach by a Jew. Murad, shoked and horrified, reports all he witnessed to Officer Arafath.

      During the boy’s funeral, the villagers carry improvised weapons, to defend themselves against Jewish attacks. Ali Arafath urges restraint, but the villagers are shocked to see “the limping man” peeping through the Red House’s second story window, threatening them with a rifle even as the funeral processes. The stress upsets  the donkey pulling the funeral cart, and when the boy’s corpse falls off the cart, “the limping man” deliberately shoots the innocent cart driver. The angry crowd storms the house, finding it empty, and then find the Jewish men—six of them, all armed—outside the house. The men shoot and kill many of the villagers.

      The third story, implied to be the true version, is narrated by Raneen, Abd’ul Wahab’s sister and the only fictional character in the book, in 1971 (on the fiftieth anniversary of the murder). In her recollection, Abd’ul Wahab is neither a child or dimwitted—he is a gentle, effeminate teenager. Raneen befriends the Jewish residents of the Red House, enchanted by the empowered women and the kind farmers, but mostly by a goodhearted man (Brenner), whom she calls “the bear.” Learning to sneak into the Red House, unobserved, Raneen notices that Bear is deeply in love with a man with manicured nails (Luidor), and then, with alarm, that Nails falls for her own brother—a love that becomes mutual. Ali Arafath finds out from Murad—known by the children to be frightening and mentally ill—about the affair, and shares his suspicions with Abd’ul Wahab and Raneen’s parents. After an ensuing conflict, Abd’ul Wahab leaves the home, asking Raneen to bring food for him to a hut where he intends to stay. When she delivers the food, she overhears Officer Arafath blackmailing her brother: if Abd`ul Wahab does not persuade the Jews to sell a cow and give Arafath five hundred francs, Arafath will reveal the illicit relationship to Abd`ul Wahab’s father. As the whole village searches for Abd’ul Wahab, Raneen arrives in the shed, finding her brother dying from a self-inflicted gunshot to the stomach. His last words are, “five hundred francs.”

      News of the death spread throughout the village. Amidst the collective horror and outcry, Ali Arafath orders Raneen to deliver a note to Nails (which we know is forged to appear from Raneen’s mother and claims Abd’ul Wahab is still alive). In this way, Arafath guarantees that Nails, and possibly the others, will choose not to evacuate, thus being present at the house when he orchestrates the raid during the funeral. Raneen, who does not know about the ploy, cooperates, and things unfold as Arafath had hoped: the officer exploits the funeral to incite the mourners against the Jews, falsely claiming that  Abd’ul Wahab was murdered by a Jewish officer, and pretending to help the Jews escape while directing the villagers to the back door. Arafath then orchestrates the Jews’ brutal massacre and torture, including the burning of Luidor’s corpse. At the criminal murder trial, Abd’ul Wahab’s father and Arafath are acquitted; the father flees the country, and Arafath is ambushed and murdered by the Haganah.

      Horrified and repelled by male violence, Raneen refuses to marry. Her eyesight, marred by the horrors she witnessed, deteriorates to almost complete blindness. Fifty years after the murder, she hears of a memorial for the murdered authors and attends it. She meets a Jewish woman of her own age, Rina, who is Yitzkar’s granddaughter. Raneen recalls meeting Rina at the Red House in their infancy, shares the full story of the murders wih her and, finally, finds peace.

      As the recipient of the Sapir prize for his previous novel, Hilu provoked a splash with Murder at the Red House, which was especially praised by queer critics. Filmmaker Gal Ohovsky’s laudatory review read:

      Despite the fact that it centers a love story between two men, this book cannot be described as a homosexual affair. As in [his previous books], Hilu uses homosexuality as a background for uncovering the subterranean currents between different cultures, opposing worldviews, and the documentation of human diversity. This is not a simple, beautiful, rewarding homosexual novel like “call me by your name.” What we do have here is a love-hate relationship between Luidor and Brenner who constantly desires him, and there is the complicated relationship between the Jewish intellectual and the Arab boy who, according to one of the versions, is a bit dimwitted. Homosexuality serves here as a way to examine prejudices and social taboos. With great delicacy, Hilu manages to tell a painful historical tale, and also to describe interpersonal sensitivity in an insensitive place. Whoever looks for an amiable telenovela featuring two men, in love and kissing, might be disappointed.

      Other reviews were far less sanguine. An editorial in Yisrael Hayom praised Hilu’s style of writing and his gift for intriguing the readers, but raised serious qualms about the ethics of Hilu’s creation:

      Is it appropriate to do so? Can a man produce a book that relates the fictional, or half-fictional, biographies of flesh-and-blood people and write in it whatever he fancies, tie to their characters any qualities, choices, deeds, and words that he wishes? Or should such freedom be limited to whoever writes on well-known people, who cannot hide in the shadow of their anonymity and their very celebrity kosherizes writing about them?

      An even more negative perspective was articulated by critic Maya Sela for Ha’aretz:

      The novel’s motto is “The early ones are not remembered” (Ecclesiastes 1: 11), as if the book intends to serve as a memorial. When I read it, a different biblical passage echoed in my ears as an alternative motto: “What have you done? Hark, your brother’s blood cries out to Me from the ground” (Genesis 4: 10). It was hard not to think of Hilu’s actions here as a sexual assault on history—a rather homophobic sexual assault, including completely stripping his characters of any humanity, thought or idea in favor of them being homosexuals and nothing else.

      But Sela’s main concern with Hilu’s work is with literature. She pans the way he crassly crafts the facts, admitting that many of the horrifying, gratuitously lurid details he revels in describing did not, by his own admission in the epilogue, actually happen. She then expresses grave concerns about the value of the literary exercise:

      The things the author wrote in the introduction and epilogue raise some substantial questions about literature and its role as intellectual amusement without any obligations—not to shaping, not to language, not to style, not to history, not to ethics, not to good taste, and not to the ancient, forgotten art of the storyteller. In that, the novel also exemplifies what can go wrong when authors do not write literature, but rather engage in sociology, gender, psychology, politics, and law. Maybe because this book was borne out of intellectual amusement, there is not a single moment where the reader can be sucked into the loose tale and find in it any logic, grace, or taste.

      Hilu tried to examine things that remained mysterious to him, but the truth is that there isn’t much of a mystery here. The six Jews were murdered because they were Jews who settled at a place where there were already people, as has happened since then to this day—Jews and Arabs fighting and killing each other in a war over the land.

      I fancied that I heard Brenner’s blood crying out to us from the Earth and begging that we stop sexually assaulting him, but it’s possible that he was crying the cry of literature. Perhaps he does not care about historical truth, perhaps he already understands postmodernism, he certainly understands melancholy and emptiness, but what will be of literature, he wonders, perhaps, still demanding the right to cry out.

      Is Brenner’s Work Queer Work, the Work of a Queer Author, Both, or Neither?

        Perry and Hilu critics seem to object to the use of Brenner’s sexuality as crass exploitation, wondering whether the two works are crafted to pander to the readers’ basest instincts, and wondering about the value of the exercise given what we already know, without such graphic elaboration on Brenner’s corporeality, about his conflicted sexuality. According to this critique, the blow-by-blow elaborations, fictional, speculative, or otherwise, contribute nothing to our lives beyond the satisfaction of prurient interests. But Arik Glassner, whose critique of Perry’s book I presented above, is willing to consider the questions of Brenner’s biography relevant to our understanding of his work. Elsewhere in his review he writes that the notion that the rift between Brenner and Gnessin stemmed from the latter’s “gay panic” and avoidance is “not preposterous, but it’s worth saying a few things about it”:

        First, it’s worth distinguishing between the question whether Brenner was attracted to Gnessin and the question whether Brenner was attracted to men at all. Regarding Gnessin specifically—perhaps. Regarding men in general, I’m doubtful. Shofman, a friend of Brenner’s and not at all a naïve man, wrote about Brenner that “his painful point” was the thought that women do not fancy him. In a critical essay about Poznansky, Brenner himself observes that Poznansky differs from others, and apparently from Brenner himself, “in that the erotic is not a touch of leprosy in the life [of Poznansky’s novel protagonists], but rather a welcome source of emotional glow, of magical ruminations, of lyrical sesntiments. ‘The worm of envy’ does not eat at the heart [of his protagonists]. Au contraire, may the senior student realists fraternize with the junior female students of the gymnasium—and all the power to them!” The implication is that the erotic is “a touch of leprosy” for those who envy others’ sexual successes. 

        I tend to think that the inner erotic world of Brenner’s protagonists is much closer to that of the protagonists of Ya’acov Shabtai and Hanokh Levine. In fact, Brenner, to me, is the one who made these protagonists possible in our culture. These are straight heroes who are haunted by sexual inferiority sentiments and envy of exploding virility, and the heartrendering esthetic treatment by the male triangle Brenner-Levine-Shabtai of these painful topics has made this theme central to Hebrew literature.

        Glassner’s point is well taken, but I submit that he does not take it far enough. While definitions of queer theory vary considerably, some suggest a broad understanding of the “queer gaze” (Burnston & Richardson 1995). According to these broader perspectives, one’s experience of being an outsider-looking-in, perennially feeling out of place in visible and invisible ways, code-switching, and sometimes furtively hiding in plain sight, in a heteronormative society where openness could sometimes result in serious life-threatening consequences, has the power of opening one’s eyes to many other displays of inequality, injustice, and exclusive assumptions—beyond those directly related to sexual identity or expression. The loneliness that can result from a closeted life could generate deep empathy for lonely people everywhere. Understanding how experiencing one’s own unconventional sexual attractions in a society where these things are unspoken (and would remain unspoken until the 1960s) can illuminate more general, and possibly coded, references to deep helplessness, a sense of “being stuck,” and experiences of shattered, fragmented identity.

        An instructive way to consider whether this perspective can add to our understanding and enjoyment of Brenner’s work is to see how he was read by critics and scholars of prior decades, for whom the personal/sexual biography aspect was inaccessible either because they had no idea of it or because it was taboo. In his 1977 book Brenner’s Art of Story, Yaacov Even, whose analysis never veers anywhere near Brenner’s interiority (sexual or otherwise), sees the central theme of Brenner’s work as the struggle of a complicated hero—usually a former yeshiva student turned secular, almost devoid of friendship and intimacy, and unmoored from his cultural context even as he strips off the suffocating confinement of the religious world—to survive in an ugly, unjust, alienated world that in need of urgent moral and spiritual repair. This general truth manifests in different ways in Brenner’s novels. In Winter (1904) the hero, departing the shtetl for a big Russian city and joining a circle of intellectuals, discovers that his new milieu is nothing more than a modern manifestation of the ghetto he left behind. In From Here and There (1911), the hero is similarly disillusioned with the New York City underworld (set in the Lower East Side and resembling Brenner’s Whitechapel’s experience). Several of Brenner’s novels—notably, Beyond the Border (1907)—paint the world’s oppressiveness and cruelty at its most extreme through descriptions of compulsory military service and various carceral settings for military defectors. And lest these appear to suggest that the answer to these conflicts is Eretz Israel, Brenner’s greatest work, Bereavement and Failure (1914), reveals the same oppression, indifference, and cruelty among Zionist immigrants of the first Aliyah.

        Bereavement and Failure is especially remarkable because, for many halutzim, who yearned to shed stifling religious environments and home lives, Zionist immigration held the promise of freedom: newfound connection to the land, new ways to literally embody their ideals through agricultural work, and an empowering rejection of the stereotypical exilic, effeminate weakling. Brenner was an enthusiastic believer in the Zionist dream and devoted his life to the revival of the Hebrew Language, and he was deeply committed to the success of the exercise, to the point that he was willing to walk away from his meteoric literary career and become a farm laborer. That someone in Brenner’s position, having been expelled from his only viable career path at the yeshiva, spent a coerced and frightening stint in the army, and lived in various European cities in abject poverty, would fully buy into the Zionist dream and yet, upon attaining that dream, bravely and perceptively indict his new environment for being as stifling and constrictive as all the other environments he previously occupied, is nothing short of genius, integrity, and true courage, and could be the product of two factors or both. First, as a deeply closeted man who experienced deep, unrequited love that truly could not say its name, with a traumatic ending, whose devastating psychological effects he could hardly keep from wearing on his sleeve but could openly discuss with no one, Brenner would carry his anguish and emotional suffocation with him wherever he went, for the rest of his life. It would be so central to his human experience that a geographic change, even dramatic and supported by exuberant ideological hope, would not enable him to shed it. Second, Brenner could be one of those rare people blessed with boundless sensitivity for the universal human condition, whose ability to identify invisible threads of human distress and suffering could transcend his personal experience. Given the artistry with which Brenner shaped his unhappy, stuck heroes, with both ridicule and empathy, I find both possibilities plausible, and perhaps more valuable than those offered by Perry, Hilu, and their critics.

        Personalizing Grief, Queering Mourning

          Another possible explanation for the recency of interest in Brenner’s sexuality could be the changing landscape of grief, mourning, and bereavement in Israel. Some of these shifts echo universal trends: the exhortation to avoid speaking ill of the dead has been deeply undermined by the gradual empowerment of victims of sexual assault and bullying to speak up, years before the #metoo movement but more extensively in its wake. Exposés of sexual misconduct—unethical or criminal—have provoked countless cultural debates about the need to reassess the public image and cultural contributions of people whose reputations are tarnished by accusations and, sometimes, by proven facts. At the same time, changing mores regarding the acceptability of unconventional identities have allowed fuller appreciation and mourning of people whose suffering in life and in death from a stigmatized disease was silenced or minimized, such as Rock Hudson and Ofra Haza.

          There are, however, aspects to the changing forms of bereavement that are uniquely Israeli. For a reader in 2024, the murders at the Red House strongly and keenly reverberate the October 7 massacre, provoking a well of horror and grief. But for people who read Brenner’s books in the 1950s and 1960s, the horrors of pre-World-War-II pogroms and killings paled in comparison to the all-encompassing horrors of the Holocaust. Shocked locals, meeting Holocaust survivors for the first time in the late 1940s and unable to make sense of the horror, reacted with guilt, shame, and mistrust: “How come you survived and so many died?” “Why did you go like sheep to the slaughter and did not try to fight?” In the early years of Israel’s existence, therefore, the collective memory of the Holocaust was characterized by the schism between the Holocaust martyrs and heroes, emphasizing the bravery and revolt of the few while neglecting the physical suffering of the victims. Gradually, as Holocaust survivors found their voices and their testimonies were deemed valuable, Holocaust memory became collectivized, to the point that it is now widely experienced and felt as a national trauma, regardless of family connection to the Holocaust, ossified through the rituals of Holocaust Day, and marshalled to convey the message of commitment to ensure the future of the Jewish people, closely entwined with the project of realizing Jewish life in the State of Israel.

          Similarly, the collective commemoration of military deaths in Israel was initially crafted in two ways that Liat Granek (2014) refers to as “mourning sicknesses”: the urge for parents to display bravery and resign and refrain from showing emotion, and the political manipulation of grief as justification for war, aggression, and violence. As with Holocaust remembrance, the emphasis on bravery and the worth of sacrifice normalized the distinctions made between whose lives were deemed grievable and whose lives are considered worthless and unmournable.

          Since the 1980s, this hegemonic pattern of mourning has been gradually eroded and undermined. The eroding political consensus led to the eschewing of collective, official narratives of death, in favor of an expansion of individualized, personal remembrances. Udi Lebel (2011) exemplifies this process through an analysis of the bereavement models of parents of fallen soldiers. Before the Yom Kippur war, the activities of bereaved parents were channeled by the state to public sites and commemoration practices, and bereavement was, in effect, nationalized. However, in the aftermath of the Yom Kippur War fiasco, complete with widespread political protest and the Agranat Inquiry Board, and following the Lebanese incursion of 1982, a political bereavement model became dominant. Parents blamed the government for the death of their children and engaged in media and political protest activities. This trend intensified in the 1990s when, against the backdrop of human rights legislation and the prospect of a peace agreement with the Palestinians, bereaved parents whose sons had been killed in training accidents and military failures adopted a model of civilian criticism of the army. This alienation from hegemonic rituals, which increasingly clashed with the standard commemorative practices, was especially striking for families whose political views did not align with government policies, and for families whose sociocultural and economic circumstances disconnected them from the national ethos, such as new immigrants from Russia and Ethiopia.

          The model of individualizing death and mourning, as well as mourners’ protest against governmental ineptitude or violence, continues to characterize bereavement in Israel. Among the most outspoken critics of the 2024 war in Gaza are family members of soldiers and civilians slaughtered in the October 7 massacre, who see Netanyahu as the chief culprit in the country’s unpreparedness for the massacre and the war as a self-centered distraction from the desperate need to redeem the hostages through diplomatic means. The families of the hostages use social media to publish their loved ones’ images, telling stories about them and their lives, and introducing the Israeli public to their family members, pets, hobbies, and contributions to their local communities.

          This individualized model of bereavement has bled over to less recent losses. Holocaust education in Israel is now far more individualized than it was decades ago. Israeli textbooks no longer deal in abstract numbers (“the six million”), opting instead to tell individual stories about children in the Holocaust. Military mourning has also changed, not just for recently bereaved parents, but also to those who lost loved ones in wars decades ago.

          More than a century has passed since Brenner’s murder. Perhaps the surge of interest in his personal life suggests that the horror of his murder, silenced by the media in the 1920s and unspoken for years, subsumed into the horrors of the holocaust, is finally ready for processing, through the current bereavement model: a celebration of Brenner as a private person, rather than merely as a national hero, and an openhearted look into the lights and shadows of his psyche.


          It’s important to keep thingsi n perspective, though. Despite the open secret of Brenner’s complicated sexuality—many of the facts about his personal life are either known or surmised—it has taken more than a century for two books to center these issues and marinade in them, and even that encountered fierce resistance. The fact that this issue still generates considerable heat in literary circles shows that, despite the rise in identitarian approaches to literary criticism and in wresting control of tragedy away from hegemonic patterns—or maybe because of them—some aspects of Brenner’s life are still controversial, though perhaps not to the extent they were in his lifetime.

          Whether one sees merit in the exercise of revisiting the personal and embodied lives of cultural giants, every human being is more than a sum of their group identities. Brenner might have wrestled with silenced and unrequited desires, and he was far from a perfect, “put together” person. At the same time, he was blessed with a rare, sparkling intellect, and with a heart open to identifying and protesting injustice and cruelty. Those unique gifts are what made him a literary luminary, and will hopefully continue to be guide our path when we lionize literary heroes, in all their remarkable flaws and beautiful imperfections.

          #FacultyVigil Tomorrow Night at My Office

          My colleague and new friend Ron Hassner, who teachers political science at Berkeley, has been sleeping in his office for more than a week. Ron is protesting against the university’s failure to protect Jewish students from violent antisemitic behaviors, like the horrifying attack of last week. His list of demands is fairly modest: he wants Sather Gate opened, protection for speakers assaulted by students with opposing views, and campus-wide education on antisemitism and Islamophobia. Julia Steinberg reports for The Free Press:

          “This is a campus known for its protest,” Hassner says. “Put up propaganda! Hang it everywhere! But don’t physically block students from walking. Don’t harass them. Please don’t strangle them. I think it’s possible to advocate for the Palestinian cause without strangling people.” 

          I agree, which is why I will join Ron and several of my colleagues at the UC system to stage a #FacultyVigil tomorrow night. We all want to work and study safely. The boundaries of free speech in the US are wide enough to include lots of ways to disagree and express conflicting opinions without resorting to violence and terrorizing. If anyone wants to visit on Tue, I’ll likely be at the office (333 Golden Gate #320) from 7pm until my 9am class the next morning. If anyone shows up, maybe we can do a movie night (I propose Footnote) or we can just have a nice chat.

          Looking Up Potential Jurors on Social Media

          Last year, when teaching jury selection and thinking about the voir dire proceedings in our animal rescue cases, I came across a case in which the parties asked permission from the court to look up the social media profiles of potential jurors and the court refused. The appellate court thought this was proper. This seemed completely loony to me: why would you even ask permission to access publicly available information that people volunteer about themselves, let alone be rebuffed? I cannot find the original case, but I did find a useful summary of the law on the Bloomberg platform, which you can read here in full. Here is the summary they offer:

          1. Check to see if there is a court order or decisional law in your jurisdiction governing reviewing the social media of jurors, and review relevant bar association decisions.
          2. To the extent it is consistent with other obligations and there is sufficient time, trial lawyers should diligently learn what they can from public sources on the internet. Not doing so promptly risks waiving an objection to an unqualified juror. [THIS IS WHAT I WOULD HAVE EXPECTED. IT MAKES SO MUCH SENSE. H.A.]
          3. It should go without saying that trial lawyers should not violate the law by accessing private information on the internet.
          4. Trial lawyers may never misrepresent who they are or why they seek information. This goes for their agents as well.
          5. Trial lawyers should use great care to avoid doing any internet research that might be considered a communication with jurors. Communicating with jurors, even inadvertently, poses the risk of an ethical violation and is potentially offensive to jurors. This means not viewing a person’s LinkedIn profile unless the notification function is disabled. Great care should be taken not to visit other social media that sends an automatic notification regarding who has visited. If the trial lawyer does not understand the technology, he needs to hire somebody who does or forgo using the technology.
          6. Like almost everything that happens at trial, whether and how much to research jurors is ultimately a matter of judgment. A trial lawyer must balance her desire for information about jurors with competing priorities such as preparation of witness examinations and arguments. And a trial lawyer must balance her desire for information with the risk of offending a juror who may feel offended if the juror learns that the lawyer has accessed publicly available information that the juror nevertheless considered private.
          7. If a lawyer finds juror misconduct, he or she should consult the relevant ethics opinions of the jurisdiction. Given the other demands of trial, it probably makes sense to have the relevant ethical decisions on hand and at the ready in the event that juror misconduct is discovered.

          Moreover, the ABA website points to several cases in which courts have recognized an affirmative duty to conduct social media research on potential jurors: in today’s world, it can offer an important corrective to things people choose not to disclose in open court. Why would someone divulge private information on Instagram but not in voir dire? Perhaps because people have a warped perception of their own privacy. My students, who have spent summers in lower courts, have told me of situations in which jurors are asked very personal questions (such as whether they were ever sexually assaulted) in open court, including in front of other jurors. I would never ask such a question of a stranger in public; that’s what jury questionnaires are for. But even for less egregious prying, there are ways in which one’s Insta or Facebook can reveal discrepancies and additional details to a degree that I would think essential for a competent lawyer.