Category: Criminal Justice

Joseph in the Joint: Fatalism, Transformation, and the Bible’s Most Illustrious Prisoner

In the last few weeks I’ve been sharing snippets from my new book in progress, Behind Ancient Bars. Chapter 2 of the book will be devoted to the Hebrew Bible’s most illustrious prisoner, Joseph. You can find the full story in Genesis 39-41. Briefly, Joseph is thrown in prison following a false rape accusation by the wife of Potiphar, to whom Joseph had been sold as a servant. The biblical story offers us a rather rich account of Joseph’s carceral experience, including his responsible role in prison management while a prisoner himself and his interaction with two fellow inmates (the chief cupbearer and the chief baker). We also learn of his unsuccessful efforts to have the chief cupbearer curry favor for him with Pharaoh and of his eventual release, and auspicious rise, when his dream interpretation skills are needed.

Medieval midrashists found Joseph a fascinating subject, but tended to focus on his dreams, the salacious story with Potiphar’s wife, and Joseph’s later reconciliation with the brothers who sold him to the Ishmaelites. But one also finds quite a bit about his prison journey there, and the expanded stories tend to adhere to two important messages. The first is a concerted effort to frame the entire incarceration journey—in terms of time as in terms of content—as orchestrated by God for specific purposes, suggesting God’s interest not only in the people of Israel but also in geopolitical matters. I see examples of this in other biblical incarceration stories, but it is especially pronounced here. Second, and relatedly, there is an idea I’ve already discussed in the context of Daniel, Esther, and Jeremiah: the notion that Joseph undergoes a penological transformation within confinement that prepares him for his prophetic leadership after reentering Egyptian society.

I’ve recently come across Nicholas Reid’s excellent book Prisons in Ancient Mesopotamia. In his analysis of primary sources, Reid urges us to use a wide lens when discussing prisons in antiquity, similar to what we now do in modern incarceration studies. He says this, with which I’m wholeheartedly in agreement:

When thinking of a history of prisons and imprisonment, one must look beyond the stated goals and stated functions of the prison to the actual practice. . . since prisons are multifunctional, the historical investigation into imprisonment should not revolve solely around the question of punishment. . . the adaptability of limiting corporal movement through imprisonment to meet numerous social goals and handle numerous social ‘problems’ has deep roots in history, even though direct connections and linear developments do not exist.

Even though Joseph was not sentenced to a prescribed period behind bars, and even though biblical punishment is usually retributive in nature, there is enough in the biblical descriptions and the midrashim to point to a message eerily similar to the one parroted in rehabilitation programs and parole hearings today: that incarceration is a “rock bottom” point in a prisoner’s journey that is an essential part of his or her coherent life story, that one goes down in order to go up, and that one develops important prosocial and other skills in confinement that set him or her up for a pivotal historical role postincarceration. In light of this, I decided to rewrite the Joseph story as a parole hearing transcript, relying heavily on the medieval midrashim. Here’s a short snippet:

PHARAOH: Okay, since we’ve moved to the inmate’s C-file, let’s see how he did in prison. From what I see from the record, you haven’t had many visitors in the twelve years you’ve been inside.

JOSEPH: No, Your Majesty. I believe only in the early days, when Zulycah still visited me.

AMHOST: I’m not sure I understand: The woman whom you claim falsely accused you of rape visited you in prison?

POTIPHAR: Your Priestly Eminence, since I oversee the prison, she can come and go as she pleases, and she even helps me with the logistics.

PHARAOH: And when she visited you, what did you talk about?

JOSEPH: She was trying to persuade me to give in to her. You know, “How ‎long wilt thou remain in this house? do but listen unto my voice, and I will release thee from ‎thy prison.” Like that. I had to keep saying: It is better for me to remain in this house, ‎than to listen unto thy words, and transgress against God.[1]

AMHOST: I guess we keep things nice and cushy for you in Thebes. Some people would easily mistake you for a prison administrator, rather than an actual prisoner, and think Potiphar just moved you to another job to put some distance between you and his wife.[2]

MERITAMUM: It’s not like that, Your Grace. The write-up about the visit documents that the inmate was repeatedly threatened by his accuser‎. She was overheard saying, “if thou wilt not do my wishes, I will put out thine eyes, and I will put ‎additional chains upon thy feet, and I will surrender thee into the hands of such as thou hast ‎not known, neither yesterday nor day before yesterday.”

HAT: Looks like it was even worse. I have the 128 write-up that she put in his file, and it says that, while they were setting the table at chow hall, cleaning the drinking glasses and all that, she would say to him: ‘In this matter, I mistreated [ashaktikha] you. As you live, I will mistreat you regarding other matters.’

MERITARIUM: Oh, but he gave as good as he got. Basically played her at her own game. Like she said “ashaktikha,” so he would say to her: ‘[God] “Performs justice for the oppressed [laashukim].”’ (Psalms 146:7) [She would say:] ‘I will reduce your sustenance.’ He would say to her: ‘[God] “Provides food for the hungry.”’ (Psalms 146:7) [She would say:] ‘I will shackle you.’ He would say to her: ‘“The Lord frees the imprisoned.”’ (Psalms 146:7) [She would say:] ‘I will cause you to be bent over.’ He would say to her: ‘“The Lord straightens the bent.”’ (Psalms 146:8) [She would say:] ‘I will blind your eyes.’ He would say to her: ‘“The Lord opens the eyes of the blind.”’ (Psalms 146:8)[3]

PHARAOH: Dear Maat. How far did all of this go?

MERITARIUM: We’re not entirely sure, because there’s a lot of hearsay in prison intelligence. Rav Huna said in the name of Rabbi Aḥa, you know, that sort of thing. But rumor was that she placed an iron bar beneath his neck until he would direct his glance toward her and look at her. Nevertheless, he would not look at her. That is what is written: “They tortured his legs with chains; his body was placed in iron.” (Psalms 105:18)[4]

PHARAOH: Nice facility you run there, Potiphar.

POTIPHAR: I can’t possibly screen my own wife from the list of visitors, Your Majesty.

PHARAOH: Why would you let her do it? Did you think he was guilty?

POTIPHAR: Oh, no, I knew he was innocent. Even my kids knew.

PHARAOH: What?

POTIPHAR: We all knew. My kid kept saying, “stop beating on him, my mom is lying.”[5] Even on the way in, when I was booking him, I said to him, “Joseph, I know you didn’t do this, but I’m locking you up so I will not attach stigma to my children.”[6]

MERITAMUM: And even so, Your Majesty, when she visited him in prison, it didn’t seem to faze the Inmate. He was overheard replying, hold on, it’s hard to read the hieroglyphs, “‎Behold the God of all the earth, he is able to deliver me from all that thou wouldst do unto me. ‎For he giveth sight to the blind and he freeth the captives and he preserveth the strangers ‎that are in the land they never knew.” Eventually she gave up and stopped coming.

PHARAOH: Do we have any laudatory chronos in the file?

MERITAMUM: Yes, Your Majesty. The inmate was charged, de facto, with the functioning of the entire administration.

PHARAOH: You entrusted. The entire prison administration. To a prisoner.

POTIPHAR: The whole thing. Eating, drinking, binding people, releasing them, torturing them, giving them a rest. He would call the whole thing and whatever he said, went.[7]

HAT: It says in this chrono, “the minister did not have to see anything he put in the inmate’s hand.” I’m not sure what this means.

POTIPHAR: It means I didn’t have to supervise him, because God helped him succeed in prison as well as on the outside. It’s a kal vahomer.

HAT: A what?

POTIPHAR: A kal vahomer. Argument a fortiori. They have to say he was successful in prison, because success on the outside would be self-evident.[8]

HAT: See, I read it differently. I read it that you didn’t see anything fishy or poorly performed.[9]

POTIPHAR: You know these prison write-ups. You can read them seventy different ways.

HAT: Mr. Jacobson, do you feel that you were treated fairly in prison?

JOSEPH: To be honest, I did end up feeling relieved. Back home, whenever we ate, my father would give me the choice portions, and I always had to look over my shoulder lest my brothers take revenge. And I confess that here in prison I could breathe a bit easier. But God likes to give me a challenge, so I figure he’ll sic a bear on me anytime soon.[10]

HAT: Not sure I understand what the bear’s got to do with any of this.

JOSEPH: It’s got to do with the grain.

AMHOST: What grain?

JOSEPH: You’ll see.

[1] Sefer HaYashar (midrash), Book of Genesis, Vayeshev 19

[2] McKay (2009).

[3] Bereshit Rabbah 87: 10.

[4] Bereshit Rabbah 87: 10.

[5] Sefer HaYashar (midrash), Book of Genesis, Vayeshev 18-19

[6] Bereshit Rabbah 87: 9.

[7] Midrash Sekhel Tov, Bereshit 39:22:2

[8] Bereshit Rabbah 87:10; Midrash Sekhel Tov, Genesis 39:23:3.

[9] Midrash Sekhel Tov, Bereshit 39:23:2

[10] Midrash Sekhel Tov, Bereshit 39:23:4

Dark Esther

My new project Behind Ancient Bars looks at several prominent incarceration stories in the Hebrew Bible. One that is often missed is Esther’s stint at Ahasuerus’s harem. Because most of the story is a bedroom farce, and some of it a bloodthirsty schadenfreude fest, many commentators skip over Esther’s confinement before she is taken to the king, which you can find in Chapter 2. But this short vignette illuminates not only commentary about empire in general (and probably Persian empire in particular), but also about the multiple forms of vulnerability of women and the ways in which governmental systems are crafted to exploit these vulnerabilities. This paints the festive Esther story a much darker, more sinister hue.

Seeing the Esther story as an incarceration story to begin with requires doing what modern penologists do on the regular: expanding our definition of incarceration. I find it interesting that people who happily read Foucault and Goffman, seeing obvious parallels and symmetries among total institutions and across the carceral archipelago, suddenly adopt a hyper-legalistic approach to punishment in antiquity, forcefully arguing that there is no incarceration in the bible because it is not listed as a sanction for a criminal conviction in Deuteronomy or in Hammurabi’s law. If incarceration scholarship in modernity can look at pretrial detention, immigration detention, and even cattle towns–because those are carceral experiences–then incarceration scholarship in antiquity can and should encompass political detention and shady government programs for locking up and reeducating children. And indeed, some commentary on the Book of Esther moves away from the entertaining popular presentations of beauty pageants to identifying incarceration elements.

How much of this represents true carceral practices, or is a realistic portrayal of royal harems, is hotly debated. Summarizing the literature for and against a reading of Esther as fiction, Adele Berlin opines that the story, like the Daniel story, dates to the Hellenistic period, and reflects stereotypical Athenian perceptions of Persia: “luxury, hierarchy, bureaucracy, wine drinking, the postal system, imperial law, bowing down, eunuchs, impalement, a royal garden, and a sexually virtuous queen.” But at least some of this fed commentators who used it to glean more about imperial Persian governmentality.

The background to the Esther story is well known: during a royal feast with his courtiers, an inebriated king orders his queen, Vashti, to appear before the courtiers. She refuses, angering the king, and is either banished or executed, which results in a vacancy. The king’s servants propose that all good looking virgins in the kingdom be gathered at the “women’s house” in Shushan, the capital, under the supervision of Hege, the king’s eunuch, so that the king may pick whichever one pleases him to be his queen in lieu of Vashti.

Julia Schwartzmann points out that the details of Esther’s arrival in the harem can be disturbing to modern readers, because of Mordechai and Esther’s “ambiguous uncle/niece relationship, the way Mordechai hands over Esther to the king’s harem, and his manipulative handling of his silent and passive niece.” Not only modern readers: Two important medieval commentators, Abraham Ibn Ezra and Immanuel of Rome, propose that Mordechai planned, as a foster parent, to marry his beautiful charge, a-la Dickens character John Jarndyce (his charge in the book, you’ll remember, is also called Esther!) One can only imagine many young women and girls in similarly precarious situations who would end up swept into the harem–a rather hopeless prospect, as only one girl would be officially crowned queen, and as no girl, per Ibn Ezra, would be available for marriage or any life outside the harem after having bedded the king–with girls like Esther, without parents and with guardians who have agendas beyond their charges’ best interests, more vulnerable to apprehension and lockdown.

The pageant story will have us believe that the girls gathered at the capital out of their own free will, but some commentators see this more as a coercive executive action. Shelom Esther draws the readers’ attention to the large number of officers and bureaucrats involved in the concubine-gathering operation, which had to visit each house to prevent parents from hiding their daughters. Joseph Ibin Yahya adds that Mordechai hid Esther, and that she was taken against his will and against hers.

The administration of the harem, as we saw in the Daniel court stories, is given to eunuchs. The word “saris” (eunuch) might be used differently in different biblical contexts, and could be a reference to a high government official rather than to the sexuality of these personages, but what we know of various empires–especially the Persian empire–suggests that, at least in some contexts, the meanings converge. Last week, at our archaeology course, Brett Kaufman told us that it was common to entrust military commands in imperial armies to eunuchs because they would have no dynastic aspirations and thus would not attempt to usurp the throne. But it makes sense that confinement operations, where sexual exploitation is a serious risk, would be entrusted to sexually inactive supervisors, as 19th century commentator Malbim very explicitly explains.

Even if sexual abuse was not a risk, there were other ways to render the eunuchs’ charges pliable and docile. Much is made in chapter 2 of the issue of cosmetics (“tamrukim”). Some commentators, like Ibn Yahya, interpret these in a straightforward way as beauty-enhancing products, while others, like Immanuel of Rome, thought these could be medications, including first-aid supplies. What is interesting is that the sole purveyors of these items were the eunuchs, which Malbim shrewdly interprets as part and parcel of the king’s power play which, in turn, reflects the lessons learned from the Vashti episode:

He feared that [the girl he would choose] would not want to marry him, and [his advisors] said that after they examined those who came willingly and did not find an appropriate wife for him, then he will appoint officers and they will round up all the girls with a strong arm, (and they even shrewdly said that he should appoint new officers, so that it would be someone who has not been bribed to ignore the rich people’s girls), and against the fear based on his memory, and the concern that [the prospective bride] would do as Vashti did, they advised to gather the girls around Hege, and that they must not bring their own cosmetics from home, but rather only receive them from the eunuchs, and from this side will always be submissive toward the Eunuch and not uppity as Vashti was.
Malbim on Esther 2: 3: 2

When Julia Schwarzmann marvels at how captivating the Esther story is given its telenovela-like synopsis, I want to add: the power of the story is that both ancient and modern readers would recognize the patriarchal fear of subversive and disobedience, the injured pride, the opportunities for exploitation and exertion of power. But it also points to a source of power and ingenuity on the part of the incarcerated person. We’ve already seen how Daniel, when failing to negotiate his diet with chief Eunuch Ashpenaz, makes a deal with “the waiter” on the sly to receive his special vegan rations. Here, we see Esther realizing that the key to surviving in the harem is to charm Hege, who proceeds to favor her with food and luxury items.

Another aspect of the story that exudes verisimilitude is Mordechai’s concern for Esther’s welfare–whether because of the general situation or because, at his request, she hid her identity from harem management. He is told to come to the harem yard every day to inquire after her, and perhaps one advantage of charming the pants off Hege was the availability of daily reports of her wellbeing.

By contrast to the later story of her tenure as queen, Esther of chapter 2 is described passively: she is beautiful, parentless, young, vulnerable, and puppeteered by her uncle/guardian as well as by the various government officials. But between the lines, one finds glimmers of transformation. Placed in a complicated logistical and social scenario, Esther figures out that personal charm and charisma are useful tools, and that performing modesty and restraint pays off. Both Ibn Ezra and Immanuel of Rome emphasize that her restraint, which earned her the favor of Hege, reflect her intelligence. Ibn Yahya opines that she had the good fortune to be taken to the king in the winter, when one enjoys intimacy and closeness more than in summer, thus improving the odds of being the king’s favorite, but what if Hege, who was in her corner, was the one in charge of the schedule and deliberately scheduled her sexual audition for an auspicious date? The emerging picture is one of strategic thinking, charming the key people responsible for her welfare, and performing royal virtue even prior to her selection (perhaps impressing Hege as “queen material”) which the story does not demonize or regard as duplicitous but rather as an understandable, even commendable, survival strategy.

This is interesting for two reasons. The first is that, regardless of the official goal of incarceration in biblical stories, there is evidence of personal transformation occurring behind bars. Martin Pritkin, who approaches biblical punishment from a more doctrinal perspective, finds evidence of rehabilitative motives amidst the retributive rationales, but I think these stories make a somewhat different point: there’s a difference between the espoused nature of a confinement program and the sociological and psychological features of the experience of going though said program. Second, and relatedly, personal transformations in incarceration stories are a means to an end. Notably, incarceration serves as a cauldron, a crucible, a vehicle, for developing leadership characteristics that predict the protagonist’s success at his or her post-incarceration life. Joseph, for example, is incarcerated as punishment for a wrongful accusation or to allow Potiphar and his household to save face; behind bars, however, he develops not only the administrative and logistics acumen that will later serve him well in Egyptian administration, but also a prosocial approach to dream interpretation and the skills of getting along with different kinds of people (skills he lacked as a youth). Daniel learns some wheeling and dealing and perhaps impresses Ashpenaz and “the waiter” with his initiative. Jeremiah, admittedly a “finished character” by the time of his incarceration, has an opportunity to flex against Zedekiah and to leverage his existing friendship with Ebed Melekh to obtain relief, as well as to forge an important alliance with Nebuchadnezzar that grants him relative freedom in exile. And Esther’s reputation for virtuousness and humility and capacity to marshal personal charm and good looks to make important friendships goes a long way toward earning the favor of the king, both at her audition and later, when her skills are needed at a time of national crisis. The dire straits of incarceration are an essential part of the formulaic, fatalistic narrative. Theologically, they support the idea that the divine jails these people to foster the development of the personal characteristics that will come in handy later. I don’t see this as being much different than the sort of logic I see and here at many a rehabilitation program in prisons–namely, the way people are encouraged to construct and tell a coherent personal narrative, in which the prison journey, the crucible of change, is an essential ingredient on the way up, and support for an “everything happens for a reason” notion of meaning-making.

There are two ways of looking at this–benign and cynical. The benign approach relies on Victor Frankl’s logotherapy to argue that people survive and thrive after suffering–even extreme suffering–by imbuing their experiences with meanings. Shadd Maruna’s Making Good offers many examples for the role that a personal narrative of hardship and redemption plays in desistance from reoffending. The more cynical approach, akin to the one I developed in Yesterday’s Monsters, is that rehabilitative programming becomes sort of a mediocre community play that has to follow a script that prison authorities and parole commissioners recognize and validate: follower-to-leader, toxic-thinking-to-empathy, anger-to-understanding, opacity-to-insight. These scripts have a quasi-theological flavor (in some cases, the programs that encourage them, such as Twelve Steps groups, actually have a religion component.) Whether or not the fatalism and meaning-making project is genuine or artificial, it is a well-recognized story, and so, these incarceration stories feel familiar and similar to each other because they evoke a recognizable, universally familiar trope.

Political Incarceration Under Siege: Jeremiah in the Pit of Mire

An important question in the sociology of punishment is whether the social reaction to deviance/challenge becomes more ferocious during times of social and political turmoil. This question is often attributed to Emile Durkheim and his concept of anomie. As Bruce DiCristina explains, Durkheim used the term “anomie” in various different ways in his scholarship: insufficient regulation of interactions, insufficient regulation of desires, excessive imprecision and weakening of the collective consciousness, and a decline in morality. Most crime and punishment theorists I am familiar with are interested in whether social control rises when the consensus is challenged: For example, Kai Erikson shows that, in Puritan colonies, repression and swift punishment were at their height during times in which religious authorities felt most challenged and imperiled. Similarly, there is a wonderful article by Martin Killias that compares 47 countries (as of 1972) in terms of their political structure and incarceration rates. Killias finds that countries plagued by dictatorships, high power concentration, unemployment, and unequal income distribution tend to be more punitive. Killias ties these punishment-enhancing factors into the concept of a “legitimation crisis,” which occurs “when rulers cannot meet the standards emanating from their own self-justification and when the power gap between rulers and subordinates grow and power is concentrated among a few.”

This makes a lot of sense: it doesn’t take a lot of heavy theorizing to figure out that a society at risk, in which the leadership faces challenges, lashes out at people and displays punitive power in a last-ditch effort to instill fear, if not earn legitimacy. A classic example of this can be found in Jeremiah, where the biblical authors outdid themselves painting a vivid picture of a city under siege, a king in decline, conflicts, intrigue, and secrets, and the resulting incarceration of a prophet suspected of being an enemy shill.

Harold Wilmington offers a thorough biographical sketch of Jeremiah, from which one learns that his fortunes swung high and low in the last few days of the kingdom of Judah. During the discovery (or the “discovery”) of the Torah under King Josiah’s reign, he served in an official capacity, helping implement religious reforms, but after Josiah was felled in the battle against Pharaoh Necho, Jeremiah fell out of favor with his descendants. The biblical text (as well as Wilmington’s biography) paints a picture of someone well known throughout the Judean kingdom as nobody’s patsy, and certainly someone who provokes strong reactions: steadfast friends and bitter enemies abound.

The text suggests that Jeremiah’s incarceration during the Babylonian siege was not his first time at the rodeo. In Jeremiah 36:5-6, the prophet dictates his prophecy to his scribe, Baruch ben Neriah, instructing the scribe to read the prophecy in public because “I am detained; I cannot go to the house of God.” It’s possible that short-term political detention of a tiresome dissident was a usual government approach during Josiah’s descendants’ reigns; the text, which describes a failed manhunt for Jeremiah and for Baruch, certainly suggests that Jeremiah was acting in the shadow of the law and had to evade capture. But things really come to a head under Zedekiah, the last king of Judea, a puppet monarch instilled by Nebuchadnezzar. Kevin Tolley contextualizes Jeremiah’s imprisonment:

Zedekiah came to the throne at a time of great spiritual, economic, and political turmoil. The previous kings had made “disastrous choices.” The city was caught between two external political powers since both Egypt and Babylon vied for power. Over the past decades, loyalties had shifted and allegiances had waned as Jerusalem was continually controlled by one side or another. Egypt had heavily taxed the people (2 Kings 23:33), and Babylon had pillaged the temple and national coffers and had exiled a portion of the inhabitants, leaving the state in financial ruin (2 Kings 24:13). Zedekiah had witnessed the murder of his father, Josiah, and the exile of his brother Jehoahaz. He had seen his brother Jehoiakim mismanage Jerusalem, which had caused the might of Babylon to come down on the city for a three-month siege, resulting in the death of Jehoiakim and the exile of his son Jehoiachin. Thousands of people were deported, and both the city’s economy and defenses were in shambles. Civil unrest prevailed, and various political groups competed for power. . .

For the next few years, Zedekiah maintained a quiet reign. The Babylonians had successfully cowed him. Few would have dared to question the might of Babylon after their armies had just sacked the city. Over his eleven-year reign, Zedekiah realized he needed to rebuild without provoking the ire of either Babylon or Egypt. Zedekiah was a well-intentioned leader (Jeremiah 38:14–16), but he was weak, vacillating, and fearful of public opinion (Jeremiah 38:5, 19).

Throughout Zedekiah’s reign, various political groups pressured Zedekiah to break his oath of allegiance to Nebuchadnezzar. Rumors began to arise that Egypt would assist in a rebellion against Babylon. News of civil unrest in Babylon reached Jerusalem; Zedekiah gave in to the pressures and joined an alliance with Egypt to rebel against Babylon (2 Kings 24:20). And so the countdown to Jerusalem’s destruction began.

In January 588 BC Nebuchadnezzar caught wind of the rebellion and moved quickly against Jerusalem, laying siege to the city. The blockade ultimately lasted over eighteen months. In the spring or summer of 588 BC, Judah became hopeful when the Egyptians began to march toward Jerusalem (Jeremiah 37:5–7). Nebuchadnezzar briefly left the siege of Jerusalem to smash this Egyptian resistance, and then he quickly returned Jerusalem. Zedekiah was in a desperate situation.
Kevin Tolley, “The Imprisonment of Jeremiah in Its Historical Context,” Religious Educator 20(3) 2019, https://rsc.byu.edu/religious-educator/vol-20-no-3-2019

What happens next, vividly described in Jeremiah 37-38, is a veritable political thriller. As the Babylonians lay siege to the city, Jeremiah prophesied the destruction of the city and the temple (presenting Nebuchadnezzar as an instrument of God) and outlined the three options: leave the city by escaping the siege, remain in the city and be ravaged by the Babylonians, or surrender and hope for the best. Jeremiah’s advice to surrender to the Babylonians did not sit well with a group of government officials, who managed to catch Jeremiah when he was dealing with some property matters at the Benjamin Gate. One of them, Irijah, accused Jeremiah of defecting to the Babylonians. Jeremiah said, “lie! I’m not defecting!,” but the denials fell on deaf ears and he was brought to the officials, who beat him up and put him in a place described as “beit ha’asur.”

Religious commentators fault the government officials for this grievous miscarriage of justice, and the classical midrashim, invested in Jeremiah’s image as righteous, all use remarkable linguistic gymnastics to explain how bad of a king Zedekiah was (by “bad” they don’t mean “politically weak, manipulated by the bureaucracy, and speaks out of both sides of his mouth,” but rather, “disloyal to God.”) Agaddat Bereshit 35:2 and Esther Rabbah, Petichta 6 both rely on the fact that Zedeikah is not described as a “king” (a word associated with the righteous), but rather through the verb “to reign” (suggesting that he is unworthy of the descriptive noun). But if one reads this story as a political thriller, rather than a theological morality tale, I think there is enough in the text to suggest that Jeremiah could be reasonably believed to be a Babylonian shill. Not only was he advocating surrender during a stressful time, which could erode everyone’s morale given the siege and resulting hunger, but he is later said to have been released and treated well in Babylonia (perhaps as an expression of Nebuchadnezzar’s gratitude?).

Rembrandt Van Rijn, The Prophet Jeremiah Mourning over the Destruction of Jerusalem, 1630

What sort of prison was “beit ha’asur”? Notably, the text does not speak in plural (‘beit ha’asurim”), and this perhaps strengthens the description of this facility: it is the house of Jonathan the scribe, converted into a makeshift jail, perhaps specifically to hold Jeremiah (was Jonathan in cahoots with Jeremiah’s jailers?) The architecture of this improvised prison is somewhat unclear, and different commentators have different takes on it. Jeremiah was put in “beit habor” and in the “hanuyot”, where he is said to sit for “many days.” The “bor,” translated as a pit, is said by 18th century commentator David Altschuler (“Metzudat David”) to be the worst place in prison (think “down in the hole”). But what are the “hanuyot”? Rashi translates this as “cells,” but Altschuler opts for the literal translation as “stores,” and Medieval commentator Radak explains that these stores were also converted into prison cells, akin to the conversion of Jonathan’s house. What I find interesting about this “hanuyot” business is that it is supported by some of today’s controversies about evidence of incarceration. Last week, as part of my rabbinical program, I attended our summer intensive, during which we took a phenomenal archaeology course with the one and only Brett Kaufman, who told me that some places where locked rooms were found were initially thought to be storage places, only to later be found to evince evidence that people were housed there (I need to dig, pun intended, deeper into this issue of material culture support for confinement structure.)

At this point, we’re thrown into a web of political intrigue to rival Game of Thrones. Zedekiah, who we already know is viewed very unfavorably in this text, gets Jeremiah out and into his own house in secret, asking him for the prophesy. Jeremiah repeats his dire predictions about Babylon, also complaining, “how have I sinned against you, your servants, and this people, that you put me in jail?” Jeremiah points to the fact that, so far, his predictive ability exceeds that of other prophets, who mistakenly (or perhaps buoyed by his brief sojourn in Egypt) prophesied that the King of Babylon would not move against Jerusalem. Jeremiah begs Zedekiah: “Don’t send me back to sit in the house of Jonathan the scribe, so I will not die there.” Zedekiah relents and moves Jeremiah to a place called “hatzar ha’matarah.”

Commentators differ widely on how they perceive this new space, which is obviously better than the “bor” and “hanuyot” area. Malbim says that Jeremiah sat there of his own free will, meaning that it was not a confinement space. Chomat Anakh says that this was a “spacious place, and even though it was still a prison, Jeremiah was not sorry” about the change in his circumstances. Metzudat David says that “incarceration wasn’t so hard there” and adds an important detail: that Jeremiah received bread from the bakeries every day until the bread supply was depleted, from which we learn that hunger and deprivation was beginning to affect everyone on the outside, too. Steinsaltz refers to this place as a “detention camp of sorts,” identifying it with a prior mention of the same place in Jeremiah 32:2. If these two places are not telling of the same incident, this implies that hatzar ha’matarah might have been a permanent detention camp, whereas the “bor” and the “hanuyot” were ad-hoc places with worse conditions, perhaps fashioned specifically for Jeremiah.

The story doesn’t end there, because apparently Jeremiah continues to advocate surrendering to the Babylonians even from his confinement in hatzar ha’matarah. Ministers who hear him speak to the people (unclear whether in person or through a scribe) turn to Zedekiah, asking for Jeremiah to be executed “for he disheartens the solders who remain in this town and the people when he speaks thus to them, because this man does not speak for the benefit/welfare of these people, but for evil.” If one removes the religious, pro-Jeremiah filter from this incident, the ministers’ concern seems valid, especially when mitigated by the lens of a siege and the prospect of destruction. Anyway, Zedekiah gives in, with a heavy implication that these ministers are more powerful than him and he simply does not have the clout to oppose them.

The descriptions of what happens next are horrifyingly vivid. The ministers use ropes to lower Jeremiah into a pit within hatzar ha’matarah, which is said to belong to one of Zedekiah’s sons. The cistern does not have water; it has mire, and Jeremiah sinks into it. But not all his friends have abandoned him. Ebed-melech the Cushite (or the Ethiopian, depending on translation), who was a eunuch in the king’s service, hears of this, and complains to the king that Jeremiah is to unjustly die of hunger. Zedekiah changes course again, ordering Ebed-Melech to take thirty men and pull Jeremiah out of the cistern.

The text offers a detailed description of the mechanics of this liberation effort. Ebed-Melech proceeds to take rags from the treasury and lower them carefully into the cistern using ropes (commentators explain that he does this so as not to drench them in mire.) He then calls out to Jeremiah to wrap these rags under his armpits, between his skin and the ropes. Once Jeremiah pads his armpits, the men pull the ropes, getting him out of the cistern, and returning him to his less constrictive confinement at hatzar ha’matarah.

It’s hard to tell who Zedekiah is more afraid of: Jeremiah, who perhaps he believes is telling him the truth, or the ministers, who can bring him down. Perhaps his concern for Jeremiah’s welfare is part and parcel of his fear of the Babylonians and he, like his ministers, suspects that Jeremiah is in cahoots with them. In any case, he tries to eat the cake and leave it whole. He again brings Jeremiah in, in private, through the third entrance of the House of God, and asks him to tell him the truth. Jeremiah understandably hesitates: “If I tell you, you will kill me for sure, and if I offer advice, you won’t follow it.” After Zedekiah swears he will spare Jeremiah’s life and protect him from his enemies, and Jeremiah repeats his dire predictions about the Babylonian destruction of the city and his advice to surrender so as to save it. Perhaps inspired by his own recent predicament, Jeremiah uses the pit of mire as a metaphor for Zedekiah’s fate. Leslie Allen comments that the “two crises are linked as cause and effect. The rejection of the prophetic message that resulted in Jeremiah’s dire predicament, despite the partial amelioration granted by the king, was to land Zedekiah himself in a comparable predicament. . . Zedekiah rescued Jeremiah from mud, but the king’s friends had abandoned him to it.”

Zedekiah keeps his word: he does not return Jeremiah to Jonathan’s house, but rather to hatzar ha’matarah. He even instructs Jeremiah to lie to the ministers and obfuscate about the true nature of his conversation with the king. Jeremiah manages to effectively deceive the ministers about his royal interview, and as a consequence remains in hatzar ha’matarah until the city falls. Notably, Zedekiah does not actually follow Jeremiah’s advice, and as a consequence sees his sons executed before he is blinded by the conqueror. Jeremiah fares better under the new empire–Nebuchadnezzar orders his captains and eunuchs to set him free, which they do, and he continues to prophesy to the freshly defeated people.

There are several remarkable features to this story. The first is the detailed, quasi-documentary description of the various confinement facilities: a pit, or pits; cells, or makeshift cells from converted storage rooms; a home converted into a makeshift facility as the worst location; an easier detention center. We are provided the minutia of lowering someone to the pit and elevating them from it, including the humane (?) measure of padding their armpits so they are not cut by the ropes. We are also told, akin to what we saw in Daniel’s story, details about food rationing, which are especially important during the miseries of a siege. And, we are offered a window into the use of incarceration as a tool in political conflict and intrigue, in which even the incarcerated person holds some modicum of negotiation power and how that plays into the reversals of fortune in the story.

This story is also a microcosm, a window into Zedekiah’s court. One thing I notice about all these exilic incarceration stories is the way the biblical authors use them: as a good index of quality of governance, akin to the well-known Tolstoy maxim. Lovers of Michel Foucault’s Discipline and Punish will remember his foundational distinction between punishment in antiquity (dramatic, violent, centralized) and punishment in modernity (decentralized, vague, aimed at the soul, normalizing, self-monitored). Foucault saw the prison as the epitome of a modern way of punishment, identifying earlier historical periods with corporal punishment. I think that descriptions of prison in antiquity both strengthen and challenge his framework. On one hand, incarceration stories tend to portray the regimes that run the prisons (Egypt, Persia, Babylon) and jails as capricious, risky, easily swayed by things like dreams or conspiracies, and spiteful. The power of incarceration is centralized and brutal. On the other hand, these are, undoubtedly, prisons. The sources do not make the distinction that modern penologists (including Foucault) make between prisons and corporal punishment. In other words, they support what I’ve come to see as true since we wrote Fester: incarceration IS corporal punishment. It can come in different flavors: it could be a drab, gray, vague experience at a modern juvenile facility that destroys the soul and makes people obedient and docile, or it can be the drama of throwing a particular person into a pit of mire and getting him out. But both are incarceration. We can, and should, revisit Discipline and Punish by decoupling prisons from modernity, and by seeing incarceration modes not as a historical rift, but along a historical continuum.

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:

***

From: Pahas-Bel@BabelPrisonBureau.gov.bbl

To: Saga-Saltiyas@BabelPrisonBureau.gov.bbl

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.

***

From: Saga-Saltiyas@BabelPrisonBureau.gov.bbl

To: Pahas-Bel@BabelPrisonsBureau.gov.bbl

CC: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

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

***

From: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

To: Beltis@MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

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

***

From: Beltis@MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

To: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

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.

***

From: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

To: Beltis@MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

Subject: Veg Meals

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

***

From: Balasi@BalasiBeans.com

To: Beltis@BabelPrisonBureau.gov.bbl

CC: Babasu@BalasiBeans.com

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

***

From: Pahas-Bel@BabelPrisonsBureau.gov.bbl

To: HealthServices@BabelPrisonsBureau.gov.bbl

CC: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

Subject: Beans

Dear Dr. Shala,

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?
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?

***

From: HealthServices@BabelPrisonsBureau.gov.bbl

To: Pahas-Bel@BabelPrisonsBureau.gov.bbl

CC: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

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

***

From: HealthServices@BabelPrisonsBureau.gov.bbl

To: Pahas-Bel@BabelPrisonsBureau.gov.bbl

CC: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

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.

***

From: CorrectionalCounseling@BabelPrisonBureau.gov.bbl

To: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

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.

***

From: MinisterOfEunuchs@BabelPrisonBureau.gov.bbl

To: Pahas-Bel@BabelPrisonsBureau.gov.bbl

CC: HealthServices@BabelPrisonsBureau.gov.bbl; CorrectionalCounseling@BabelPrisonBureau.gov.bbl

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:

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:

SJL’s focus on group identity contrasts sharply with liberalism’s individualism.

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.

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.

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.