Will the Protean Quality of Profiling Overcome Pretext Stop Reform?

In 2014, Chuck Epp, Steve Maynard-Moody and Don Haider-Markel published their wonderful book Pulled Over. The book is based on a survey of, and follow-up interviews with, more than 2,000 drivers in the tri-state Kansas City metropolitan area, about their experiences being stopped on the road. They learned important things about how the police use routine stops for trifling traffic offenses as fishing expeditions for other possible crimes.

The legal background is as follows: in order to search someone’s car, the police need probable cause that evidence of crime is in the car. The scope of the search has to follow the probable cause (e.g., if there is probable cause that the driver stole a baby elephant from the zoo, there is no permission to search the glove compartment.) Traffic offenses, with the notable exception of a DWI, do not usually encompass the possibility that there is something inside the car related to the offense. Therefore, suspicion of a traffic offense–even when the officer sees it happen–does not manufacture enough justification to search the inside of the car beyond a cursory inspection for weapons. It certainly does not permit the police to open containers within the car, where drugs might be found.

But a traffic offense does manufacture enough justification to conduct a quick stop of the car, and things can develop from there. While interacting with the driver, the officer might give the car a cursory look, to see if anything stands out; the officer might walk a narcotics dog around the vehicle; the officer might ask some questions (“where do you live?” “where are you going?”) to see if any further suspicion develops; and, most importantly, the officer might ask the driver for consent to search the car, which will grant permission for the search even if individualized suspicion is not present.

This, of course, creates a tempting incentive for police officers to stop vehicles for trifling traffic offenses, especially when they have a hunch (and no more than a hunch) that the driver is mixed up in something more serious. At worst, they haven’t broken the law; no harm, no foul. At best, the interaction during the stop could mushroom into justification to search the car, which might yield something. You might think that courts should inquire into whether the traffic violation was no more than a pretext for the stop, but courts do their very best to stop short of such inquiry. In Whren v. U.S. (1996), the Supreme Court held that inquiries into the subjective state of mind of police officers are out of bounds, and that the Fourth Amendment’s requirements are satisfied once there is an objective justification for the stop, no matter how trifling the offense is. Courts in some states, like Washington, have held such stops unlawful based on their state constitution–but even if you’re fortunate to live in such a state, you have to have solid proof that the stop was pretextual.

The problem is likely obvious to readers: without concrete evidence of, say, racial profiling based on how a driver looks or what kind of car they drive, which will be present only in rare cases, cops routinely lie on the stand that they have genuine and pressing concerns and a passion for traffic enforcement, and courts routinely maintain the pretense that these stops are earnest and genuine, which presumably holds up the legitimacy of the system. Pulled Over confirms that this indeed happens on a systematic level. Epp, Maynard-Moody and Haider-Markel found that drivers experience two different kinds of stops: traffic stops for legitimate offenses (“do you know why I stopped you?”) that end in a citation or a warning, and investigative stops (for things as minor as a broken taillight) that then lead to inquiries and fishing expeditions and end, at best, with a bitter, cynical, humiliated driver and at worst, if things escalate, in an arrest.

California is now trying a solution to this problem. Following reforms approved by police commissions in San Francisco and Los Angeles, the California legislature has enacted Senate Bill 50, which you can read verbatim here. The idea is this:

This bill would prohibit a peace officer from stopping or detaining the operator of a motor vehicle or bicycle for a low-level infraction, as defined, unless a separate, independent basis for a stop exists or more than one low-level infraction is observed. The bill would state that a violation of these provisions is not grounds for a defendant to move for return of property or to suppress evidence. The bill would authorize a peace officer who does not have grounds to stop a vehicle or bicycle, but can determine the identity of the owner, to send a citation or warning letter to the owner.

The bill would authorize local authorities to enforce a nonmoving or equipment violation of the Vehicle Code through government employees who are not peace officers.

I remember the jeremiads on Nextdoor when this was first proposed in San Francisco. The concern was that the city would completely give up on traffic enforcement, resulting in accidents and victims. As a two-wheeled vehicle rider (first a motorcycle and now a cargo e-bike) I’m very sensitive to traffic enforcement concerns. But it looks like the worries are overblown, because the low level offense list in the bill is as follows:

(A) A violation related to the registration of a vehicle or vehicle equipment in Sections 4000 and 5352.

(B) A violation related to the positioning or number of license plates when the rear license plate is clearly displayed, in Sections 5200, 5201, and 5204.

(C) A violation related to vehicle lighting equipment not illuminating, if the violation is limited to a single brake light, headlight, rear license plate, or running light, or a single bulb in a larger light of the same, in Sections 24252, 24400, 24600, 24601, and 24603.

(D) A violation related to vehicle bumper equipment in Section 28071.

(E) A violation related to bicycle equipment or operation in Sections 21201 and 21212.

Since the police can capture these minor violations through filming equipment and send citations to people, the bill strikes a good balance between traffic safety and civil rights preservation. It also reflects a clear-eyed perspective on the protean quality of race stops. Efforts to legislate against pretexts, as such, are bound to fail, as police departments will respond by getting cops to testify better on the stand about the reasons for the stops. Efforts to dig up evidence of pretexts via departmental emails will do no more than push these policies underground, into Snapchat and the like. But this effort curtails the use of minor traffic offenses at the root, by preventing these stops in the first place.

I’ve been trying to think how police officers might subvert the bill’s purpose, and the only loophole I can find is this: the bill does allow the stop if “there is a separate, independent basis to initiate the stop or more than one low-level infraction is observed.” We will have reduced the number of fishing expeditions originating with, say, a broken taillight, but such stops will still happen if, say, two of these minor traffic offenses are observed. I

I really hope that someone is doing evaluative research on this. If so, and if someone’s testing this using a survey instrument similar to the one in Pulled Over, the questions I’d be interested in are:

  1. Has the overall number of traffic stops declined?
  2. Has the racial composition of stopped drivers changed?
  3. Has the make and appearance of stopped cars changed?
  4. How many stops now begin with the cop asking the driver, “Do you know why I stopped you?”
  5. How many stops now result in car searches?
  6. How many stops now result in the arrest of the driver? In any violent incident between the cop and the driver?

If any readers are aware of a study currently being conducted, please let me know in the comments.

Prison Systems Still Making COVID19-Era Mistakes

The last chapter of our book FESTER, which is already out from University of California Press, is called “The Next Plague.” We wrote it to warn everyone in prison administration, prison litigation, and politics, that if considerable reforms are not sought–chief among which is an aggressive 50% reduction in prison population, which we believe is feasible without a corresponding rise in crime rates–the next plague will provoke calamities in the same way this one has.

Two new pieces of information suggest that things are going the same way they had pre- and during COVID19. The first has to do with prison overcrowding and comes to me from the ever-attentive prison conditions activist Allison Villegas (thanks, Allison!) who diligently follows up the periodic population counts. Take a look at the latest:

Not only is the total number back up to 109,000–more than before COVID–but some prisons are so overcrowded that it looks as if Plata (which required population reductions to 137.5% capacity) never happened. Norco is at 171% capacity; Avenal is at 162% capacity. If Plata applied per individual prison, rather than system-wide (which would make more sense, as we explain in ch1 of FESTER), six prisons would currently be in violation of that standard. The entire system is at 117% capacity (design capacity is fewer than 79,000 people), Plata-compliant but not by much. This should never be the case if we are to maintain minimal healthcare standards and in many ways is the root of much of the evil we saw in Spring 2020.

The second piece of information comes from my colleague Dorit Rubinstein-Reiss. It is a Ninth Circuit decision regarding government accountability for the COVID vaccination fiasco in Oregon prisons, which you can read verbatim here. The lawsuit was brought by people incarcerated in Oregon, and claims that, during COVID-19, they were categorically assigned to a lower priority vaccination tier than correctional officers. In FESTER, we document a similar struggle in California, where the California Department of Public Health initially scheduled incarcerated people to receive the vaccine in tier A2, and then scratched that, to everyone’s amazement. At work, as we explain in the book, and as I explained in this op-ed, was a misguided zero-sum mentality that vaccines in prison somehow come at the expense of vaccines to other people–when, in fact, prisons and other congregated facility acted as incubators and loci of superspreader events. But here in California, the struggle was that, though prison guards were prioritized for the vaccine, they refused to take it, and their union was willing to go all the way to the Supreme Court to fight against it, with Gov. Newsom and AG Bonta’s support. We lost that fight, which is shameful, and this Oregon case is yet more proof of how and why the house always wins these kinds of lawsuits, no matter how meritorious they are: in this case, it turns out that Governor Allen and other state officials have immunity against the lawsuit that stems from the Public Readiness and Emergency Preparedness (“PREP”) Act.

Here’s how the parallel fight went down in Oregon:

The Oregon Health Authority then published guidance recommending phased allocation of the vaccines. In Phase 1A, healthcare personnel, residents in long-term care facilities, and corrections officers were eligible for vaccines. In Phase 1B, teachers, childcare workers, and persons age 65 or older were eligible. Neither phase categorically covered adults in custody (“AICs”), but AICs who met the eligibility criteria were prioritized for vaccination on the same terms as the general population. For example, all AICs who were 65 or older were eligible for vaccination in Phase 1B. The Governor’s initial rollout of the vaccines was consistent with OHA’s guidance.

In response, Plaintiffs amended their complaint to add class claims for injunctive relief and damages, alleging that the vaccine prioritization of corrections officers, but not all AICs, violated the Eighth Amendment’s prohibition against cruel and unusual punishment. On February 2, 2021, the district court certified a provisional class of all AICs who had not yet been offered a vaccine and granted Plaintiffs
preliminary injunctive relief, ordering the immediate prioritization of approximately 11,000 AICs for vaccination. Defendants complied with the court’s order.

In September 2021, when vaccines were no longer scarce, the district court dismissed as moot Plaintiffs’ claim for injunctive relief because all Oregonians (ages twelve and over) were eligible to receive a COVID-19 vaccine and vaccine supply in Oregon exceeded demand. Plaintiffs’ damages claims, however, remained.

Get it? After everyone got sick and died, then the vaccine was available, but by then, of course, the claim was moot. But even the revival of the case is of no avail, because the Ninth Circuit “conclude[s] that the vaccine
prioritization claim falls within the scope of covered claims because, under the PREP Act, “administration” of a covered countermeasure includes prioritization of that countermeasure when its supply is limited.”

This is exactly the point we make in FESTER. What with prevarications, immunities, and continuances, courts adjudicating prison health matters as such are the worst place to seek justice in a timely manner. And since politicians know that protecting incarcerated people, particularly those who are old and infirm, is never an electorally wise move, and that shortchanging and sandbagging the prison population can happen with immunity, how is there ever going to be motivation to vaccinate and decarcerate, the two things that must happen the next time a big one comes along?

Carrying and Using Narcan

There’s very little I can do about the horrors happening in the Old Country. But there are other, more mundane, horrors happening every day in the Tenderloin, where I work and my students study, that we can do something about: Fentanyl overdose deaths. Today, I was very happy and grateful to host Rob Hoffman from the San Francisco Department of Public Health and distribute Naloxone, commercially known as Narcan, to all my students, along with training on how to use it.

Here’s what Rob told us: Fentanyl accounts for 70% of the overdose deaths in the city. About half of these deaths happen in the few blocks surrounding UC Law San Francisco. The overdose death among African Americans is five times the city average. And, 70% of the people who die are housed. The risk of overdosing is higher for people who use alone, mix opioids with Benzos or alcohol, start using again after losing tolerance for the drugs (for example, after a period of incarceration) or use a dose of especially high potency.

Here are photos I snapped of the slides Rob showed us. Remember, you can obtain a free Narcan kit at the Community Behavioral Health Services Pharmacy on Howard and 10th. If you live or work in the Tenderloin, please carry a kit with you. You can save a life.

News! FESTER Available for Preorder

Fester Book Cover

We’re live! FESTER, my book with Chad Goerzen about the COVID-19 catastrophe in California prisons and jails, is available for preorder on the UC Press website and on Amazon. The official publication date is March 2024.

From the back jacket:

The mismanagement of the COVID-19 pandemic in California’s prisons stands out as the state’s worst-ever medical catastrophe in a carceral setting. In Fester, socio-legal scholar Hadar Aviram and data scientist Chad Goerzen offer a cultural history of the COVID-19 correctional disaster through hundreds of first-person accounts, months of courtroom observations, years of carefully collected quantitative data, and a wealth of policy documents. Bearing witness to the immense suffering wrought on people behind bars through dehumanization, fear, and ignorance, Fester explains how the carceral system’s cruelty threatens the health and well-being not only of those caught in its grasp, but all Californians—and stands as a monument to the brave coalition of incarcerated and formerly incarcerated people, family members and loved ones, advocates and activists, doctors, journalists, and lawyers who fought to shed light on one of the Golden State’s correctional system’s darkest times.

If you’d like us to come to your campus or bookstore in Spring 2024 and beyond, please contact us and we’ll make it happen.

Film Review: 26.2 to Life

I still remember the incredible emotions that choked me as I took the last steps of the Oakland Marathon and realized that, yes, I was going to finish. Even with lots of experience racing endurance events, including some very long marathon swim, there was nothing quite like it. And the faces of everyone around me reflected that we had all undergone a very special experience, stretching body, mind and spirit to their limits, and that we would forever share that experience.

It is this direct appeal to common humanity that drives Christine Yoo’s fantastic documentary 26.2 to Life, which is now playing in select theaters and winning all sorts of incredible awards at film festival. With unparalleled access to the inside of San Quentin–the yard, of course, 105 laps of which add up to 26.2 miles, but also other areas of the prison, including the cells–this documentary has the potential to go where no work of advocacy has gone before.

Lots of tired, jargony academic pieces about carceral geography and mass incarceration blather about “bodies” and “embodiment”, but nowhere is the somatic experience of an incarcerated body more visceral than in this film. We see people living under the horrid conditions that are only too familiar to regular readers of this blog and using endurance running–their own bodies, pushed to their limit–to sublimate and divert anger, to release stress, to find liberation, to imagine commonalities and brotherhood with people running on the outside. In one memorable scene, runner Jonathan Levin talks of running as a physical form of doing penance for his crime, reminding me vividly of the incredible ending scene of the Buddhist film Spring, Summer, Fall, Winter… and Spring.

Other runners feature more prominently, and we get to learn their personal stories. Markelle “The Gazelle” Taylor, the fastest runner of the club, dreams of qualifying for the Boston Marathon and running it if he makes parole. Rahsaan “New York” Thomas finds his voice as a journalist and leader in prison (his work for the San Quentin News and for Ear Hustle is also featured in Adamu Chan’s recent documentary What These Walls Cannot Hold. Tommy Wickerd works hard to redeem himself from a life of violence and be as much of a good husband to Marin and father to Tommy II as he can from behind bars. These folks, and many others featured in the film, are people I know. Some of them I met in person, though most of them I did not; I did spend many many hours with their loved ones, and hearing from them, in the weekly #StopSanQuentinOutbreak coalition meetings that we document in FESTER. There was something heartbreaking in watching these very familiar people in footage from before the calamity would strike and terrorize them and require them to develop new forms of courage and work new psychological muscles.

What stands out in the movie is how it lends itself to bridges of empathy and perspective taking. Not pity–though the men’s stories are contextualized in a way that does not absolve them from accountability and yet evinces profound understanding of their circumstances–but the same sense that every one of us has felt upon embarking on a huge athletic undertaking. The same sense of exhilaration and terror that is evident in the first steps of the protagonist of Brittany Runs a Marathon; the same trepidation and enormous effort of the swimmers in Driven; the sense of dread, then relief, accompanying Alex Honnold’s heroic climb of El Capitan in Free Solo. Christine Yoo has elevated Taylor, Thomas, Wickerd and the other runners to their rightful place along these cinematic athletic heroes by bringing her viewers into communion with the most basic things we all share: our bodies and our striving to make something of our lives within them.

You must see this movie. And you also must consider financially helping some of the film’s heroes. As pioneering research by Alessandro de Giorgi shows, the first and foremost challenges for anyone on the outside involve their basic survival: finding a place to live and a job. Even phenomenal athletes are not exempt from this. Markelle sells amazing athletic gear you can wear in pride for your training and racing, and Rahsaan is doing wonderful journalistic work that requires support.. Too often we expect formerly incarcerated folks to hit the ground running with activism for their friends still on the inside, discounting the importance of getting their own lives in order. Let’s lend our fellow athletes a helping hand.

FESTER Blurb from UCI’s Keramet Reiter

Fester Book Cover

Another great endorsement for FESTER comes from Prof. Keramet Reiter of UC Irvine, one of the nation’s most respected and productive scholars of extreme punishment and incarceration and the author of 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement. Keramet is the director of UCI LIFTED, a phenomenal higher education program granting incarcerated people access to, and degrees from, UC Irvine, and also spearheaded the Prison Pandemic project, which collected first-hand accounts of COVID-19 in prisons and was one of our best primary sources.

Here is Keramet’s endorsement for FESTER:

Aviram, with Goerzen, has produced another tour de force unpacking a new legitimation crisis in California’s punishment infrastructure. Marshalling evidence from litigation, first-person narratives, administrative data compilations, and their own advocacy work, Aviram and Goerzen meticulously analyze how COVID-19 outbreaks in California prisons and jails cruelly terrorized incarcerated people and also exacerbated health risks in the surrounding communities. Impressively, the book reads like a true crime thriller – about the horrors wrought not by the people inside prisons but by the people running and overseeing those prisons. Poignant details of everyday life in prisons in crisis make vivid the book’s pointed policy critiques: information gaps about criminal legal system practices, in combination with dangerously inaccurate assumptions about the impermeability of prisons and jails, produce dangerous incarceration conditions. And dangerous incarceration conditions put us all at risk.

FESTER Blurb from the Chronicle’s Jason Fagone

Fester Book Cover

I’m very pleased to share the first book blurb for FESTER, from star journalist and author Jason Fagone. As a reminder, Jason was part of the San Francisco Chronicle team that broke the story of the San Quentin outbreak. He is also the author of a terrific nonfiction book, The Woman Who Smashed Codes: A True Story of Love, Spies, and the Unlikely Heroine Who Outwitted America’s Enemies.

Here is what Jason has to say about FESTER:

Myths can kill, and FESTER dissects a vicious one: the idea that prisons are worlds apart, isolated from their surrounding communities. With passion, rigor, and a flair for storytelling, Aviram and Goerzen show how California’s fealty to this myth placed whole cities at risk during the coronavirus pandemic, transforming the state’s overcrowded prisons into virus bombs that exploded outward. An indictment of a failed system and the politicians and judges who prop it up, this stunning book is also a call to action, laying out reforms that could save lives the next time a deadly virus proves that we’re all connected.

First Peek at the Cover Art for FESTER

Fester Book Cover

Last night we were ecstatic to receive the cover art for FESTER. UC Press has always done right by me–we had a back-and-forth about Yesterday’s Monsters that was very productive, and to this day people remember Cheap on Crime as “the one with the stripes”–but I think this is the best cover they’ve designed for me so far. I like it for three main reasons:

(1) The color. THE COLOR! I love it! Sickness green. You can’t avoid it. You can’t ignore it. It’s so sick. It’s so sickening. It’s the color of miasma and nausea. It evokes with such visceral precision the story we tell in the book. And, people will remember “that green one.”

(2) The map. This was my proposal to the press, and I’m really glad they took me up on it; the execution, of course, is much nicer and cleaner than anything I could’ve possibly produced. You’ll notice it is a map of California, with coronaviruses indicating the locations of CDCR prisons. Inside the book, in Chapter 5, you’ll see another version of this map, which overlays the prison locations on the entire state’s COVID-19 map, which we think drives home the point we make there, and throughout the book: when and where people get sick behind bars, everything around them is sick, because prison is not isolated from its surroundings, but rather along a continuum. I love that this spatial idea, according to which we are not safer when our fellow Californians age and ail behind bars, made it to the cover in such a neat, communicative way.

(3) The font and the way the word breaks down the middle. They could’ve written it on the diagonal, or in smaller print, but they wanted it to be HUGE.And it *should* be huge. We’ve been spelling FESTER in all-caps for a reason, and I’m so glad they kept it that way for the cover. It is only now, presented with the cover art, that friends of mine are finally “getting” the title: it’s not just the disease that is festering. It’s the massive neglect and dehumanization that festered there for decades. The outbreak is nothing more than a trigger that activated existing vulnerabilities. And don’t forget how the coronavirus permeates not only the state map, but also the letters. Everything about this cover is overlaid and permeable.

We are told that FESTER copies will be at the warehouse in January and available in bookstores, brick-and-mortar and online, in March. I will keep you all posted as to developments and as to the book party and tour.

The Call Is Coming 3: A Forman Moment for Arab Israelis? And Why Expect So Little from Your Taxes?

In the previous two installments of this series, I discussed parallel processes I see in Israel and in California: rising crime rates and resulting miseries within underserved communities–Arab-Israeli towns and villages, and Black communities in Bay Area cities (disproportionately affecting these communities both in terms of perpetrators and victims). In the first installment, I showed that these issues have yielded calls from “inside the house” to improve police response to crime rates. In the second installment, I discussed a curious difference: the Arab Israeli calls are monolithic and they demand solidarity from allies in securing police presence and protection, whereas Black American calls–the recent NAACP letters in Oakland and San Francisco–are heavily contested and far from representative of the defund-abolish-dismantle-repeal sentiment. I proposed a few differences between the two scenarios and concluded that the problem is one of intra-movement politics.

In this last installment in the series, I want to posit two additional issues: one of timing and one of civic expectation. The first is, in some ways, a continuation of the argument I made in my article Bad Role Models, in which I discussed American influence on Israeli criminal justice. In that article, I showed how criminal justice developments in the U.S. migrated to Israel through a process of elite networking, often with a delay of 15-20 years, to the point that Israel implements American policies long after empirical evidence already undermines their merit or efficacy. I listed four developmental stage: the rise of American criminal justice as a model of influence; the “decade of rights”, inspired by the mistaken perception in 1990s Israel that American criminal justice is pro-defendant; the “law and order period” in the 2000s, in which Israel adopted victim rights and anti-sex-offender paradigms that were already being eschewed in the U.S.; and the “era of contrition”, in which new Israeli elites, who learned about mass incarceration in the U.S., started chipping at the punitive block.

My friend and colleague Hagit Lernau thinks that the Arab Israeli faith in policing as an answer to violent crime might be temporary, an echo of the period in the 1980s and 1990s in which Black politicians and police chiefs in D.C. wanted massive police intervention in the crack epidemic. In Locking Up Our Own, James Forman found great empathy for these Black power brokers, even though, as an abolitionist, he disagrees with them. He does not think the crime problem was exaggerated or did not exist–he fully admits that the calls for more policing came out of real distress that was grounded in fact–even as he rejects the premise that aggressive enforcement could have improved things.

To understand Hagit’s argument, let’s locate Forman’s politicians and cops along a timeline. Their preoccupation with internal community problems of crime can be seen as a retreat from Martin Luther King Jr.’s general message of a great project of equality, as well as from Malcolm X’s general message of militant opposition to white supremacy, toward sectorial interests of personal safety within Black cities and neighborhoods. This retreat, which happened in the 1980s-1990s, can be seen as a harbinger of the Arab-Israeli retreat from full commitment to the idea of Palestinian liberation/independence toward sectorial interests of citizens within the 1967 borders. If so, we might expect that the later developments in critical race perspectives on criminal justice–the academic concerns about police oppression and race and their migration to the mainstream of the progressive movement–might eventually make it in Arab-Israeli societies, perhaps through a process of elite networking (or through some other process) and we simply have to work through the delay. But eventually the moment of yearning for police will pass, and we’ll be in a defund/dismantle/abolish/repeal moment in Israel, too.

Here’s another theory on how this could happen: Perhaps, as in the case of D.C., the disillusionment that accompanies massive, oppressive police presence will cool the population’s enthusiasm for enforcement. A couple of weeks ago I talked to a friend who is a police detective investigating serious crimes, including in Arab-Israeli towns and villages. My friend tells me that, as soon as a serious crime is committed in a village, the police’s modus operandi is to send in border patrol officers, who proceed to harass and humiliate everyone around them and make life in the village unbearable. Unsurprisingly, after a few weeks of this, the officers who want to actually solve the crime encounter a wall of silence and mistrust. It is only a question of time until this realization becomes generalized and the community nationwide will stop calling for the police to help.

Which brings me to my second point, the issue of civic expectation. The famous serenity prayer invites us to have the wisdom to tell apart things that can be changed (and require courage) from things that are immutable (and require serenity.) The Forman moment, as well as the current moment in the Arab-Israeli crime prevention movement, assume that crime-ridden streets can be cleaned and that the erosion in public safety can be stopped, or even reversed, if the Israeli government wakes up from its appalling neglect and acts. The Defund movement makes the opposite assumption: nothing good can come from police intervention, so they might as well stay out of it and leave us to resolve the crime problem through non-criminal-justice means. I think both perspectives miss out on an important dimension: it doesn’t just matter how much policing is taking place, but also what kind of policing.

William Muir’s 1977 classic Police: Streetcorner Politicians offers a matrix that characterizes police officers based on their psychology. Muir is interested in two dimensions: the officer’s proactivity and their worldview. These create four types of cops.

Adapted from: William Muir, Police: Streetcorner Politicians (Chicago, 1977)

Out of these four, Muir’s preference is for the professional, whom he sees as an energetic, passionate problem solver who has compassion for their community. But preferring the professional to other types depends on the extent to which one believes that cops can still have a tragic/empathetic approach to human nature and the human condition. People who assume that all cops are cynical about the people they serve face a choice between enforcers and avoiders and might prefer avoiders. People who believe that some cops can be professional and compassionate, will prefer professionals to reciprocators.

If Muir’s typology is not applied to individual cops, but rather to hypothetical cops as “ideal types” of what we would and would not like to see in the streets, I think the best way to understand the Arab-Israeli call for help is as a call for professionals, not for enforcers. Which raises the question, given that we pay taxes so that we can have police services, why not insist that the force hire professionals rather than enforcers? Why give up and settle for avoiders, or for shrinking the force (and its utility) altogether? How much despair people experience and, consequently, how much they believe that they can have the police force they deserve, could be (as I argued in the previous installment) a function of where they live or (as I argue in this installment) on what moment we are in.

The Call Is Coming 2: A Comparative View of Approaches to Intra-Racial Crime

In the last few days, I’ve been thinking a lot about the issue I brought up in my previous post The Call Is Coming from Inside the House–situations in which a minority community with an appalling history of oppression by law enforcement asks for law enforcement intervention due to rising crime rates. I compared the Arab Israeli protests for law enforcement intervention to the letters recently penned by NAACP leaderships in Oakland and San Francisco.

What I didn’t discuss was an obvious difference in the way these calls for enhanced law enforcement reverberate within these communities and outside them, which puzzles me. As I explained in that post, the Arab Israeli community is fairly united in its call for police intervention and personal safety. The pressure on allies and other members of the center-left opposition to Netanyahu is to participate in protests calling for the police to investigate and solve these crimes. People get excoriated for not embracing this call.

By contrast, the NAACP calls I looked at in the previous post have by no means represented the consensus in the Black community and, in fact, provoked a lot of strife and antagonism. There is serious critique and questioning of the concept of “Black-on-Black crime”, efforts to present police violence as a much more important and salient problem than the crime problem, and pretty oppressive silencing of the few white voices that don’t fall in line with the “don’t call 911” ethos.

This difference in approaches is striking not only within minority groups and their adjacent communities, but also among academic and human rights milieus. In Israel, ACRI (the equivalent of the ACLU) feels deeply conflicted on what to do and who to support. And in the U.S., academics and nonprofits by and large fall in line with the idea that the priority is to curb police violence, rather than intra-racial civilian violence.

At the recommendation of a friend, I started listening to Micha Goodman and Efrat Shapira-Rosenberg’s podcast Miflegeth HaMahshavot (“The Party of Thoughts”), which explains ideologies in Israeli politics. In one early episode, they explain the rise of Ra’am, the first time a major Arab party was part of the Knesset. According to Goldman, this election represents the triumph of sectorial interests, which Ra’am sought to promote, over the big issue of the Palestinian occupation that the Joint Party, the other Arab party, sought to promote. Ironically, though, Ra’am is an Islamist party, presumably less inclined toward compromises, which raises the question how it came to offer Arab-Israeli voters a pragmatist, sectorial platform. Goodman thinks that it reflects a unique form of religious pragmatism: we, humans, worry about our immediate, short-term issues (chief among which is the intraracial crime problem), while God/Allah will worry about our ultimate salvation (an Arab state from Jordan to the Mediterranean sea).

If applied to the U.S., Goldman’s might predict a similar sectorial emphasis on restoring personal safety to the neighborhoods referred to in Supreme Court jurisprudence “high crime areas” and in sociological parlance “neighborhoods where poor people of color live.” And yet, that’s not what we’re seeing. Either fighting crime is not (or, until recently, was not) a sectorial issue of high priority for Black communities, or police violence is more of an issue of that sort. Why are we not seeing parallel processes in the two countries, then? hypothesis would So, why is there a difference?

I’ve tried to hash this with friends, and I’m not sure I’ve nailed the issue, though I have some thoughts. Let’s work through this the way Hercule Poirot would solve a crime: by gathering suspects and eliminating them from our inquiries. The first two possibilities are related to the with the relevant weight of the crime and police problems in the two countries, and I find both unpersuasive:

  1. The crime problem and the threat to personal safety are much more serious in Israel than in the U.S. This is not something that is easy to measure, and geography makes a big difference. Crime is not evenly distributed in either country. The existence of “million dollar blocks” and places ravaged by gang warfare is unfortunate, but not fictional. I think in both places there are people living under a serious threat of violent crime.
  2. Police violence toward minorities is a much more serious problem in the U.S. than it is in Israel. This is also something that is difficult to measure, especially due to problems of underreporting. Again, geography makes a big difference, because in both countries enforcement is selective and very geography-driven. In addition, the national security/conflict in Israel throws in another factor (there are now voices calling to involve Israel’s security service, the Shabak, in crime solving in Arab Israeli villages. Yikes.) I would have to parse out the statistics, but I don’t see that Arab Israelis are more fortunate than Black Americans in the treatment they receive from the police.

If we accept the premise that crime rates and police violence are serious problems for both populations in both countries, we should consider the extent to which the crime picture emerging from the two context is different. In other words, can Arab-Israeli crime be distinguished from Israeli crime in general to the degree that Black crime can be disaggregated from American crime? How easy is it to treat it as a unique, endemic problem? Again, two options emerge, one sociological and one involving framing.

  1. The sociological issue: Perhaps voices in the Arab-Israeli community are more successful in raising crime rates as a problem because intra-racial violent crime in Israel is, or is perceived as, more of a stereotypically/characteristically Arab/Palestinian problem than intra-racial violent crime in the U.S. is perceived as a stereotypically Black problem. This requires viewing murder cases, including unsolved murders, through a criminological lens. I have the 2021 data. What it tells us is that Arab- Israeli murders might not be as distinctive as the media suggests. In a previous post I described the disturbing statistics about the murder of Arab women, but those are less than 13% of overall murders in the Arab community. We know most of these are shoot-outs and most of the victims are under 30 years old. This doesn’t seem to paint a picture full of honor killings and, in fact, resembles organized crime killings in the U.S. Both countries also feature problems involving the proliferation of guns in criminal hands that are certainly not limited to this or that ethnic/racial group. It is true that, in Israel, 64% of murder cases are perpetrated by Arabs (usually against Arabs), who are merely 21.1% of the general population. FBI UCR data for 2019 shows that African-Americans (who were 14% of the U.S. population in 2021) accounted for 55.9% of all homicide offenders in 2019. In both cases we have considerable overrepresentation that cannot be explained merely by discriminatory policing/investigatory practices.
  2. The framing issue: Perhaps politicians on the left in Israel feel more comfortable calling for police intervention to solve intra-racial crime in Israel because there it is not perceived as being tied to, or stemming from, the Jewish/Zionist hegemony to the extent that intra-racial crime in the U.S. is perceived as a response to white supremacy. Even if this is true, it raises a further question: what impacts the framing?

Which brings us to the final frontier: I think that a big difference between Israel and the U.S. has to do with intra-movement politics and positionality, and these factors are responsible for how the problem is framed:

  1. I think that Goodman is right in that Israeli Palestinians/Arabs have become more invested in sectorial politics, while the U.S. Black community has by-and-large retained its interest in the bigger questions of criminalization/incarceration.
  2. This could be related to the respective size of the two countries in two ways. First, in Israel there’s more segregation in terms of where people live. This means that educated, middle-class Arab Israelis will live in closer proximity to crime than middle-class Black Americans and, because of that, will be more invested in personal safety and law enforcement (this is in line with James Forman’s argument about D.C., which is a city in which Black politicians and police officers hold considerable power and use it to “lock up their own.”) Second, the sheer population of the minority group is so much smaller in Israel that, to the extent that someone even cares about the plight of the community, it will hear mostly from middle-class, law-abiding folks afraid to let their kids outside to play; in the U.S. there’s a multiplicity of voices which, amplified by social media and activism, includes the interests of those more concerned about police persecution than about crime prevention.
  3. Finally, I think the Israeli scenario contains an important factor: Arab/Palestinians who are Israeli citizens are in a completely different situation than Palestinians living in Palestine. The latter are in such dire straits, and treated so appallingly by the army, the security services, and the settlers, that the police-citizen encounters against Israeli citizens, ugly as they may be, don’t even register as a problem by comparison.