Op-Ed in the L.A. Times Critiquing the Gubernatorial Veto on Parole

Today, the L.A. Times published my op-ed, in which I criticize California’s gubernatorial veto on parole which, as I explain in Yesterday’s Monsters, serves no purpose except contaminating the parole process with politics and optics. Here it is:

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On Tuesday, California’s 2nd District Court of Appeal reversed Gov. Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the state board’s parole grant decision. Their ruling exposes deep flaws in California’s system of allowing gubernatorial vetoes in the first place.

Van Houten, a member of the infamous Manson “family,” participated in the murders of Rosemary and Leno LaBianca in 1969. She was 19 at the time. These were horrific crimes whose aftermath shattered a sense of innocence and safety for many. But it is also true that Van Houten and other teenage girls caught in Manson’s web were indoctrinated into, exploited and abused by a dangerous cult not properly understood until many years after the murders.

In prison since 1971, with her original death sentence commuted to life with parole in 1972, Van Houten has transformed herself, earning two academic degrees, participating in rehabilitative programs and expressing remorse for her crimes. After decades of prosecutors and families of the victims of Manson’s crimes opposing Van Houten’s release, the factual evidence finally outdid the political pressure: Since 2016, the Board of Parole Hearings has recommended her release five times. Gov. Jerry Brown and then Gov. Newsom reversed each decision.

The appeals court reviewed the veto through a system deferential to the governor; all they needed to uphold his decision was “some evidence” that Van Houten, now 73, presents a risk to public safety. The court concluded that his veto was “not supported by a modicum of evidence in the record.”

Since a 2008 decision from the California Supreme Court, parole boards can’t deny release based solely on the severity of a crime. Instead, they must show that the parole candidate poses a public safety risk. Boards and governors alike have circumvented this standard by using hard-to-falsify language — for example, vaguely claiming that they don’t think the inmate possesses “insight” about their crime.

In denying Van Houten’s 2020 parole bid, as the appeals court reported, Gov. Newsom argued that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying.” He was also “unconvinced” that her childhood trauma, including her parents’ divorce and a forced abortion, “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”

The court essentially called the governor’s bluff. They found that Van Houten’s extensive record showed “no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but [per state law] the Governor’s ‘decisions must be supported by some evidence, not merely by a hunch or intuition.’”

Yet allowing the governor to veto parole recommendations at all risks reducing such weighty decisions to one person’s hunch or political agenda. California is one of only two states that allow gubernatorial veto of parole. The Legislature introduced it in 1988, politicizing the parole process and adding public pressure — as well as optics — to what should be a professional assessment of risk. The veto works in one direction: The governor can only veto parole recommendations, not denials.

Any fear that the state is releasing dangerous people in droves is unfounded. Parole boards are reluctant to grant parole. According to data from the California Department of Corrections and Rehabilitation, the Board of Parole Hearings recommended it in only 20% of cases in 2019. As I explain in my book “Yesterday’s Monsters,” receiving parole at one’s first hearing is extremely rare. I found that the median time spent behind bars on a life sentence with parole in California has risen from 12 years in 1980 to 28 years in 2012 for those who have been released, and a quarter of the prison population is serving life sentences — 26,000 with parole and 5,000 without.

The role of politics was particularly clear during the COVID-19 pandemic. The aging and infirm lifer population faced serious risks of contagion and death behind bars. They also pose little to no public safety risk, as shown by robust criminological evidence. Still, Newsom agreed to release merely 8,000 people — a deficit eclipsed by incoming admissions from jails, and the vast majority with just weeks or months left of their sentences. Van Houten was up for parole in 2020 when her prison, the California Institution for Women, was experiencing a COVID-19 outbreak of more than 100 cases.

The court’s decision now puts the ball back in the governor’s court. He has a 10-day window, starting in a month, wherein he can instruct Atty. Gen. Rob Bonta to appeal this case to the California Supreme Court. Common sense should prevail and guide our leadership in Sacramento to allow this rehabilitated septuagenarian to live her life quietly on the outside.

But no matter the outcome, her journey raises serious questions about the gubernatorial veto. Do we truly need an extra layer of political considerations to assess danger to the public — or should we trust the professionals appointed by the governor, mostly from law enforcement backgrounds, to do their job?

Hadar Aviram is a professor at UC Law San Francisco. She is the author of “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” and co-author with Chad Goerzen of the forthcoming “FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster.”

CA Court of Appeal Reverses Newsom’s Veto, Reinstates Van Houten’s Parole

Parole drama today! the California Court of Appeal for the Second District reversed Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the board’s parole grant decision.

You can read the decision in full at this link. It’s a 2:1 decision, with the majority opinion recounting Van Houten’s early history, life crime, prison history, and plans for release. Their point of departure is a standard of review that is highly deferential to the governor:

We review the Governor’s decision under the “some evidence” standard, a standard our Supreme Court has called “extremely deferential.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 665 (Rosenkrantz).) Under that standard, a simple modicum of evidence is all that is required to uphold the Governor’s decision. (Shaputis, supra, 53 Cal.4th at p. 210.) “Only when the evidence reflecting the inmate’s present risk to public safety leads to but one conclusion may a court overturn a contrary decision by . . . the Governor.” (Id. at p. 211.)

p. 43

But even under this standard of review, “we nonetheless conclude that the Governor’s reversal in this case is not supported by a modicum of evidence in the record.” (p. 44).

Their support for this assertion echoes what I said in chapter 4 of Yesterday’s Monsters: that the constant refrain that Van Houten has somehow failed to do even deeper psychic excavation into her circumstances and crime is nothing but smoke and mirrors, that it is ridiculous especially in someone so introspective, and that it is thin cover for political optics.

The Governor found that Van Houten’s “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying,” and he was “unconvinced” that Van Houten’s parents’ divorce and her forced abortion “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”

p. 44

To which I’d say, how exactly does he expect anyone to explain a bizarre stranger homicide in the context of a cult? Is there anything she could possibly say that would lead anyone in Sacramento to write, “aha, now I get it”? The Court agreed, walking us through Van Houten’s introspection in a way that shows the Governor’s reasoning for the sham that it is:

It cannot be said that Van Houten has not extensively identified and discussed the factors leading to her life crimes, only some of which briefly are referenced in the Governor’s decision. In both her interview with the CRA evaluator and at the parole hearing, Van Houten expounded at length on the causative factors, beginning with her feelings of anger and abandonment after her parents’ divorce, a stigmatizing event in that era, and how that led to drug and alcohol abuse. She ran away from home with her boyfriend, who had impregnated her. Her mother then forced her to have an illegal abortion against her wishes, unmedicated, in her bedroom, instructed to keep quiet so as to not wake her siblings.

Van Houten spoke of shutting down emotionally and feeling numb after the abortion. The CRA evaluator wrote that, even now, Van Houten “was tearful as she spoke of the abortion and what ‘might have been.’ ” Van Houten described herself at that point in time as being “ ‘[d]esperate to be accepted,’ ” and “ ‘ha[ving] no sense of value. My value came in the eyes of other people.’ ”

Van Houten stated when she met Manson cult member Catherine Share, she “was at an all-time bottom low. I had no income, I did not feel good about either of my parents, and when I met her, it seemed to me that I was being offered a pretty good life.” She described how Manson slowly indoctrinated her, often while she was under the influence of LSD. The cult was not murderous and violent at the outset—rather, she stated her time at the ranch initially “ ‘seemed fun,’ ” and the talk of and preparation for violence and revolution came later. Van Houten said she “ ‘wanted to belong and . . . wanted to belong to something that wasn’t connected to my past.’ ” Van Houten explained how Manson used her anger with her parents and her shame about the abortion to convince her to turn her back on society, accept the alternative lifestyle he offered, and reject the lessons of right and wrong she had learned in her youth. Manson successfully transformed any doubts Van Houten had about the cult into her own self-criticism for failing to achieve the enlightenment he purportedly offered. By the time Manson’s talk turned to violence and murder, Van Houten already had fully committed to him, so much so that she believed he was Christ reborn. She also believed in the impending revolution, and that remaining with Manson was key to her survival.

The Governor found Van Houten’s extensive discussion of the causative factors inadequate to explain her life crimes. This necessarily implies the Governor believes there are additional factors for which Van Houten has failed to account, factors that, unaddressed, create a risk of violent recidivism. There is no indication in the record, however, of a latent underlying factor that potentially could result in violent conduct, nor has the Governor identified one. The CRA evaluator found Van Houten did not meet the criteria for psychopathy or a personality disorder, and there was no evidence of a thought disorder, hallucinations, or homicidal or suicidal thoughts or behavior. The evaluator further found it “very likely” that Van Houten’s youth at the time “significantly impacted” her involvement in the life offense, a factor obviously no longer applicable five decades later. The CRA’s finding that Van Houten presented a low risk of recidivism was consistent with similar evaluations over many years. Van Houten, moreover, has no history of violence either before the life crimes or in the 50 years since, and the prison staff regarded her highly enough to place her in positions of leadership within the prison, including facilitating groups intended to help other inmates with their rehabilitation.

The record shows no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but the Governor’s “decisions must be supported by some evidence, not merely by a hunch or intuition.” (Lawrence, supra, 44 Cal.4th at p. 1213.)

pp. 45-47

The unwritten part of this is pretty obvious to me: the only factor that can explain this veto is political optics, and California law does not allow Governors to veto people’s parole because it will look bad and people will write mean things on Twitter.

The only remaining question is: What happens next? It is quite possible that Gov. Newsom will instruct Attorney General Bonta to appeal this to the California Supreme Court and to ask for an en banc decision, which will further delay proceedings. I was asked today whether they could hold Van Houten in prison while they do that. I honestly am not sure. I will say, though, that if she’s released pending the CA Supreme Court decision, it’ll be the second time she’s spent some time on the outside–this is what happened when her request for a new trial was approved in 1979.

There is another reason why Newsom’s decision was outrageous: you may not remember this, but when Van Houten’s case was pending before Newsom, CIW, where she is incarcerated, had a horrendous COVID-19 outbreak. As I wrote at the time, to keep a 72-year-old woman in prison when she has no disciplinary record whatsoever and is lauded and appreciated for her superb behavior and personal growth at a time when her congregated facility has a huge outbreak was inhumane. I really hope our leaders in Sacramento can let go of ego and optics, set aside their personal aspirations and dread of negative publicity, and do what is unquestionably the right thing here: let this go and allow this low-risk septuagenarian woman with advanced degrees to live her quiet life on the outside.

Free Phone Calls from Prison – And Not a Moment Too Soon

It’s an especially happy new year for everyone incarcerated in California, as CDCR and all county jails gear up to provide everybody phone calls free of charge. This long overdue change was heralded on September 30, when Governor Newsom signed the Keep Families Connected Act, sponsored by Senator Josh Becker and numerous grassroots organizations. I’ve spoken about the importance of this bill on KQED and on KCBS this week (I think both segments will air in the new year) but I wanted to also write here so I can expand on the history and meaning of this change.

As many regular readers know, I’ve been constantly rankled by the well-meant, but shortsighted, push to divest from private prisons. I don’t think private prisons are the ultimate evil in U.S. incarceration (though they are definitely a nauseating symptom); all the horrors Chad Goerzen and I talk about in our new book FESTER occurred in public prisons and jails. More importantly, in reality, whoever pushes for divestment has too naive a perspective on how the market works. Public prisons are all but privatized on the inside. The utilities are privatized. Healthcare is provided by private contractors. Commissary is often essential as supplementation because the food is inedible. Anything beyond “bare life”, as Agamben called it, is monetized. In Cheap on Crime I spent a whole chapter explaining how this came to be: in the last few decades, and increasingly since the financial crisis, the basic conceptualization of incarcerated people has shifted from wards of the state to consumers of services. Accordingly, everything, including the actual stay in jail, is monetized, and costs are rolled onto the “customers.”

This has been especially notorious in the context of phone call. There is a long and atrocious history of litigation surrounding the dirty deals between government agencies and phone companies, and anyone who has been incarcerated, or who has called someone who is incarcerated, knows what the upshot was. There’s a lot of cumbersome bureaucracy one has to deal with to even create an account with the phone company (I personally spent hours on the phone with GTL trying to set up my account. Their robocalls are not customer friendly, and I can only imagine people despairing of them if they try to call from work or while they try to survive in some other way.) And that’s if people want to be able to accept collect calls from prison. For those who don’t, there’s the issue of accounts of the people inside. While having the conversation, both parties can hear the “dings” charging the money every few minutes (ka-Ching!). The phone calls get disconnected and one has to call again (ka-Ching!) And if it turns out the phone call was disconnected because the account is depleted, you have to deal with that right away (ka-Ching!) True to the logic I explained in Cheap on Crime and elsewhere, singling out the private sector is making a naive mistake. It takes two for tango, and you bet the only reason this extortive system existed for as long as it did was that sheriffs AND phone companies both stood to gain.

Beyond the obvious issue that people in prison don’t tend to be flush in terms of personal wealth, and therefore there’s a class justice aspect to the new legislation, there are a few more, which expand the conversation. The first is that, beyond phone calls, California’s plant is not conducive to keeping contact with families. Our prisons are located in remote, rural counties, and many people’s families live in dense urban areas. If an Oakland family wants to visit their relative, who is incarcerated in, say, Pelican Bay, they have to plan for an 8-hour trip and a night at a hotel. Public transit is nonexistent and hotels jack up the prices. We also don’t offer vacations at home, which many prison systems in the world do. Until recently, when tablets were provided to people for video visits (partly to simplify complex in-person visitation protocols during the pandemic) it was very difficult for people to stay in touch with their families. The phone call costs were just part of this problem.

There is also the fact that contact with one’s family is known to be the main factor in recidivism prevention. One of my main conclusions in Cheap on Crime was that saving money by eliminating rehabilitation programs, reentry efforts, and the like–what I called “tough ‘n’ cheap”–ends up costing more money by driving the “revolving door” phenomenon. When we talk about “justice reinvestment” it really should be exactly that: in order to save, we have to spend in the right places. Whatever we spend in phone bills we will recoup in people who come home to a supportive family and a helpful community and get the help and love they need during the first few years after release, when the risk of recidivism is at its highest point.

Finally, there is the serious problem of knowing what is happening behind bars. Phone calls are essential not only for keeping in touch with the outside, but also for notifying supporters, lawyers, advocates, and journalists about things that happen away from the public eye, where negligence, incompetence, and sometimes downright cruelty and sadism can produce terrible civil rights violations. In the early months of the San Quentin COVID-19 outbreak, prison authorities prevented people from making phone calls, assuming they would infect each other through the phone (we now know COVID-19 is airborne, but at the time, as some of you might remember, this was not yet widely known and lots of folks were obsessing about cleaning surfaces.) Consequently, for several weeks we didn’t know what was going on, and concerns about housing, food, adherence to masking protocols, etc., were high (and, as it turned out, justified.) Chad Goerzen and I talk about this in FESTER (which comes out from UC Press in 2024.)

For all these reasons, I think this is a terrific initiative. I really hope people use it in ways that are beneficial to their reentry and nourishing for their relationships.

More Good News: Bonta Drops State Appeal in Quentin Cases

While I was focus on witness prep for the #SmithfieldTrial, my friend Allison Villegas shared a piece of good news: on Thursday, the Attorney General filed a notice that he is dropping the state’s appeal in In re Hall et al.

To recap what happened: Since the outbreak at San Quentin erupted in late May/early June 2020, hundreds of people incarcerated there litigated, asking to be delivered from the environment of infection, hospitalization, fear, misinformation, neglect, ineptitude, and death that characterized the prison’s response to the outbreak. Our litigation led to the landmark decision In re Von Staich, in which the Court of Appeal ordered that the population at Quentin be reduced to 50% of design capacity (as the physician group AMEND SF recommended.) We later had a reversal of fortune at the hands of the CA Supreme Court, which ordered an evidentiary hearing (a year after the fact, but waves of COVID continued to ravage the prison.) At the evidentiary hearing, things looked even bleaker for the states, as witnesses testifying from Quentin via Zoom revealed layer after layer of what they suffered at the hands of nincompoops, COVID denialists, and a prison administrative system in which the custodial and the medical sides have no understanding of each other. In October 2021, Judge Howard issued a tentative ruling in which he accepted every claim we made about the horrific and unconstitutional abuse that the men were subjected to, and wrote that the Eighth Amendment was violated in no uncertain terms, but… did not give us any relief, because presumably the whole case was “moot” as “the vaccine changed the game for COVID-19 at San Quentin. With a nearly 80 percent inmate vaccination rate, COVID-19 has all but disappeared from inside the prison. Although COVID-19 remains a risk within San Quentin, it appears at present no more than, and perhaps even less than, the risk faced by the community at large.”

This was, in itself, outrageous, and not exactly true even when it was written: the Delta variant began making its way through the prison. Shortly after, we saw the shortsightedness of not getting relief when Omicron swept through the system. To add insult to injury, while the petitioners chose not to appeal the decision (a choice I still feel quite crummy about), a surprising thing happened: the state appealed, even though we actually received no relief!

Back in summer 2020, Rob Bonta, then an Assemblymember from San Mateo, stood shoulder to shoulder with us at the press conference, speaking so movingly about the preventable disaster at Quentin that he was quoted in the guardian. But by March 2021, when he was appointed Attorney General, he apparently forgot all this. At the time, thinking the same person would keep the same conscience, I made a list of all the things he could do to help, and I confess that “refraining from appealing a decision in which the prisoners got no relief only to save the honor of CDCR at the taxpayers’ expense” was not something that even occurred to me needed to be said! But lo and behold, the AG office did appeal the ruling, God knows why, which prompted me to ask what I still think is an excellent question: What, actually, is the Attorney General’s job? Does the Attorney General work for all Californians all the time–including Californians behind bars–or does he become a hired gun when he’s in litigation? Does it make sense to posture as a science-forward, vaccine-forward AG when the time comes to require vaccines in schools, while at the same time becoming the Tom Hagan of the prison guard’s union when they don’t want a vaccine mandate because they are “his client”?

Thursday’s decision to pull this tasteless, tone-deft, and frankly, disgusting appeal, comes two years too late, when it doesn’t make news or waves, but it at least gives back a modicum of decency to an office that showed absolutely none throughout this entire crisis. We write extensively about the AG’s role in curtailing releases and supporting COVID denialists in uniform in Chapter 7 of #FESTER.

Prison-Community Transmissivity Model: COVID-19 Management in Prisons Would Have Prevented Almost 12,000 Deaths in CA

It’s been a very busy week, but an accomplished one: Chad Goerzen and I finished writing FESTER and sent the manuscript off to University of California Press. We are very proud of the book and look forward to the reviews, which are sure to make it even stronger.

Among the many things we do in this book is a model of prison-community transmissivity. Because the correlation between prison and community cases (which we were tracking here throughout the pandemic) is bidirectional, we rely on the Bradford Hill factors for causal inference in epidemiology. Among the tools we use is a counterfactual model, in which we create concentric rings around each of the following: every correctional facility (e.g., San Quentin); every surrounding community (e.g., Marin County); and the wider community beyond. We can add and subtract rings to show the effect of infections in one ring on the others.

Our model shows that, due to the extraordinarily high prevalence of COVID-19 cases inside CDCR facilities, particularly during the year 2020, these facilities had a large influence on their regions, far more than their relatively small population and isolation would suggest. In Marin County, we predict that avoiding the Quentin outbreaks would have prevented 58 deaths, 22% of the COVID-19 deaths; and throughout the states, without the outbreaks in CDCR facilities, we could have prevented 11,974 deaths, or 18.5% of the COVID-19 deaths in California for this period. Furthermore, the outbreaks in San Quentin and CDCR occurred before vaccinations were publicly available and before effective treatments for COVID-19 were developed, making them particularly high impact on mortality.

In the next few weeks, I will give a few talks in which I’ll elaborate on the model and on the other tools we used to expose the experience and roots of what we consider a very serious human rights crime. On September 13 I’m giving a virtual talk at the University of Arizona, and on October 10 an in-person talk at UC Berkeley’s Center for the Study of Law & Society. I’ll advertise these via the Events tab on the blog and would love to see my readers in the audience to discuss what we can learn from this disaster.

Understanding Newsom as a Politician following Injection Site Bill Veto

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

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

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

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

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

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

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

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

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

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

. . .

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

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

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

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

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

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

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

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

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

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

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

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

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

My Chesa Recall Punditry: The View from Bayview-Hunter’s Point

Last night provided me a unique vantage point on the Boudin recall effort: I was an inspector at a polling station in Bayview-Hunter’s Point, which is a neighborhood with a long history of neglect and criminalization. It is also unique in its demographics: 33.7% African American in a city that is just under 6% African American as a whole. There were approximately 650 registered voters in our precinct. 18 voted by mail and 17 voted in person, for a grand total of 35 voters. That’s 5% of the electorate. Things were somewhat better, but not by much, elsewhere in the city. By stark contrast to the 2020 Presidential election, pre-election mail-in voting in this local election–the third in 2022!–was very low. Our Federal Election Deputy (FED), who came to visit us throughout the day, reported that the polls were quiet and dormant throughout the whole day, pretty much everywhere.

Why does this matter? Take a look at a map published in today’s Chron of the neighborhoods that voted against Boudin:

At first glance, the story appears to be that neighborhoods associated with Asian-American populations tended to support the recall more fervently. This is unsurprising, and only talked about in hushed tones even though I think it is a big part of the story. In the last few weeks I saw concerted, fervent activism in support of the recall from very similar crowds to the ones who drove the SFUSD recall from a few months ago: it’s not all about out-of-town Republican millionaires conning unsuspecting masses into false consciousness. These are pretty much the same parents who resented the performative woketalk from the Board about school renaming and lottery admissions to Lowell. I suspect that some residual energy poured over from the previous recall (which I think was 100% justified) to this one (which I think was not.) The superficial narrative might be that a permissive and forgiving attitude toward prosecuting some people (read: presumably, young African American men) incentivizes crime and victimization (read: toward, presumably, Asian American victims) in the same way that lowering standards and talking about reparations and abolitionism (read: a narrative that supports, presumably, a monolithic African American interest) harms the pursuit of hard work and excellence in education (read: the purview, presumably, of Asian American students and parents.)

This story, which suggests the fomenting of racial animus between these two groups, building on the racial conflict undertones of the previous recall, is not completely preposterous. Most of the people who came to vote in person yesterday at our precinct were African American, and from their conversations, I gathered they all came motivated to vote against the recall. But this assumes that we can understand and generalize trends from a pretty minuscule percentage of San Franciscans. It’s not that the people who live in my beautiful city don’t care about criminal justice administration. NextDoor and other social media outlets are full of people chewing each other’s heads off about whether this or that wave of smash-and-grab, retail theft, or other incident is Chesa’s fault. But how many people care enough about this to put work into reading a hefty booklet and considering their positions on a three-page ballot, in which Prop H was the very last voting issue on the back side of the third page, for the third time in a row in the same year?

Over the years, I’ve returned again and again to Vanessa Barker’s excellent book The Politics of Imprisonment. Barker conducts a three-way comparison of penal politics in three states: California, Washington, and New York, finding that California’s political culture more easily lends itself to punitive experiments because of its polarization and populism. I write about this culture in Yesterday’s Monsters, when I show how politicized and emotion-driven the issue of parole is. In this kind of political environment, where money and strong interests can push something into the ballot as well as foment a well-oiled promotion machine (complete with all the tricks and deceptions we’ve come to expect from the initiative process), it is not difficult to swing the pendulum back and forth, from big reforms to big cancellations, from experiments in jurisdictional shifts to draconian policies masquerading as victim’s rights policies, and everything in between.

Ultimately, I think that what we saw here was just an exercise in manipulating this big machine and effectuating huge change through a relatively small number of voters. Direct democracy can be, and is, too direct when it imposes this burden thrice a year on already exhausted, grieving, anguished, and ticked off people with an empathy deficit from three years of awfulness that followed four years of a different kind of awfulness. In sum, whether or not the small minority who bothered to show up at the polls has false or true consciousness matters much less, sadly, than the forces exploiting the initiative process far beyond the Bay Area.

Would it have made a difference if the entire Bayview-Hunter’s Point electorate showed up en masse and voted against this recall? Of course it would. But after everything we’ve all been through–the impoverished folks in the neglected parts of town disproportionately suffering–we just didn’t have it in us to make yesterday a proud, sparkling moment for people-powered government, and even though it’s not our fault, we will all have to live with the consequences. Increased incarceration and the return of cash bail will not deter violent crime (but people’s attention will wander, and those who supported the recall will stop paying attention). Crime might go up (despite the recall, the supporters will say, or because of the recall, the opponents will say) or it might go down (because of the recall, supporters will say, or despite it, opponents will say) and we will continue to delude ourselves that dumbing down complicated policy decisions, deceiving people with oversimplified campaigns, and seasoning everything with some piquant interracial conflict, is how democracy should work.

The truth is that crime rates are like the weather. They rise and fall for a variety of reasons, only a few of which we can measure, and most of which have nothing to do with who is in charge. They have very little to do with big punishment trends (though, in localized situations, they do depend on effective police work in solving crime, which is a damn difficult thing to do when the community doesn’t trust the police enough to help.) It takes a real sea change in policy to effectuate changes in criminality patterns. But our megalomanic assumption that we can control crime rates through tinkering with policies will persist, and we will keep tinkering, until no one has any energy left to vote.

I offered a few more thoughts on KCRW here.

June 2022 Election: Blog Endorsements

Back when hadaraviram.com was California Correctional Crisis, I used to offer election endorsements for your consideration, focusing on the criminal justice propositions. This election has offered a grim opportunity to contemplate the probable victory of two seasoned and experienced politicians, whose management of the COVID-19 crisis in prisons has reflected an astounding moral eclipse.

A while ago, I posted an endorsement against Gov. Gavin Newsom’s recall. We were all experiencing collective distress over his reluctance to do anything useful to save lives behind bars from COVID. My reasoning was this: the rest of the ballot was a list of egomaniacal clowns with no political experience, many of whom could not even spell their statements. And, as I said there:

I’m not an idiot, and I do understand the concept of the lesser evil. If you are so warped in single-issue agitation that you can’t see the qualitative differences between Newsom–an experienced and capable politician–and the rest of the lot, you need better glasses.

I wrote that post in August. in November, we found out that Newsom, the champion of science-forward, vaccine-forward policies in schools and everywhere else, thinks that unvaccinated guards are a-ok, and goes as far as to support them in their (devastatingly) successful appeal against a vaccine mandate. It was one of the ugliest examples of justice delayed becoming justice denied, can easily be attributed to the fact that the prison guards contributed $1.75 million to his anti-recall campaign, and has disillusioned me. I’ve come a long way from cheering for the then-Mayor of San Francisco who spoke at my 2005 PhD ceremony, and I’m feeling so full of bitterness and bile over the unnecessary loss of life that, this time around, I offer no endorsement for the gubernatorial position. Vote for whoever you want; Newsom will likely win.

The other person to resent is Attorney General Rob Bonta, who is the darling of all the progressive voting guides. Bonta and his employees are the architects of the prison system’s defense against the COVID lawsuits, both regarding San Quentin and more generally in federal court. Their bad-faith in court appearances and representations, ugly games, and shocking lack of regard for human life has soured me on Bonta to the point that I make no endorsement, even though on paper he is the better candidate of the lot and will likely win. I explain my position in detail here. The short version is this: Bonta thinks that he works for us only when he legislates or creates policy, and that when his office litigates, he is the Tom Hagen of the prison guards. That’s an unacceptable perspective for a public servant.

I try not to be a one-issue voter, but having experienced the COVID-19 prison catastrophe up close it is very difficult to justify voting for Newsom and Bonta. Follow your conscience/calculus.

By contrast to these two, one public official shines as a person of profound understanding and conscientious behavior, and that is Phil Ting. I endorsed Phil’s assembly campaign in 2018 and am happy and proud to endorse him again; his conduct during the COVID-19 crisis was nothing short of exemplary. As Chair of the Assembly Budget Committee, Ting presided over a hearing in which, finally, Kathleen Allison was being asked hard questions about her policies and the way CDCR was handling itself. He has also been very sensitive to issues of parole and one of the only politicians with enough guts and public responsibility to realize that long-term aging prisoners are the best release prospects from both a medical and a public safety standpoint. Vote for him again.

There are two criminal justice issues on the ballot. One of them is the ridiculous Prop D, likely thrown into the ballot to add a prong to the Chesa Boudin recall effort by creating the (false!) impression that the D.A.’s office is not responsive to victims’ needs. There is a long tradition in CA of deceiving the voters to believe that there is a need for a victims’ bill of rights and services, when one has existed since 1982 (I explain all this in Chapter 3 of Yesterday’s Monsters.) Just like Marsy’s Law and other deceptive initiative tricks, this is money allocated to no good cause, creating duplicative services that already exist. The Chron is far too gentle on this. Don’t be swindled – vote NO on D.

Finally, speaking of swindling, you already know my position on the Boudin recall effort. There’s a well-oiled, well-funded machine here trying to roll back important reforms, and exploiting people’s exasperation at the misery and turmoil in town, which are NOT Boudin’s fault by a longshot. Don’t be deceived! Vote NO on H.

Urban Alchemy in the News

SF-based nonprofit Urban Alchemy, which I discussed here and here, is in the news this week. First, there was BBC coverage, and this morning a lengthy investigative story in the Chron. Mallory Moench and Kevin Fagan’s story is interesting and informative, and offers lots of useful perspectives, but does adopt an unnecessarily skeptical emphasis and tone, which rankled me because I work in the Tenderloin and see the transformation it has undergone through Urban Alchemy’s intervention.

In the early pandemic months, the open drug market around my workplace was so brazen and violent that my students feared going out of their dorm rooms at the Hastings towers. Mayor Breed and SFPD tried to resolve the problem by doing police sweeps of the area, which only resulted in new people coming in to deal and shoot every day. At some point I was contacted by a civil rights org, which shall remain anonymous out of compassion, with a well meant, but absurd, invitation to support their lawsuit against gang injunctions with an amicus brief refuting the existence of the drug market. Refuting? I thought. Are you kidding me? Do you have eyes? Do you live or work here? It was a prime example of what I’ve come to recoil from: the refusal, by some quarters of the Bay Area’s delusional left, to concede that crime is real and has real victims and real implications (that’s why I have no patience for armchair abolitionism, by the way.)

Then, our Dean signed a contract with Urban Alchemy, which has them support the area adjacent to the school. This proved to be a complete game changer. The first morning I showed up to work with the UA practitioners surrounding the perimeter of the school I was amazed; the change in energy, the peacefulness, the friendliness, the sense of personal safety, were palpable. I started chatting with some of the practitioners around my workplace, who came from backgrounds of serious incarceration, and found that their personal experiences provided them with just the right interpersonal skills to intervene in complicated situations in the Tenderloin. Finally, someone is doing the right thing, I thought. There are so many occupations in which a background of criminal invovement and incarceration is a priceless resource – and this includes lawyering. Recently, I interviewed people with criminal records who applied to the California bar and wrote:

In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character.

My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage.

To Moench and Fagan’s credit, their piece does represent this view; one of their interviewees explicitly says that looking at justice involvement as an asset, rather than a barrier, is revolutionary. But overall, their reporting exceedingly amplifies the voices of the naysayers above those of the many people who live and work in the Tenderloin who are quietly grateful for Urban Alchemy’s presence in the streets. You’ll be hard pressed to find detail in their story of the many good deeds that the practitioners perform daily, ranging from lives saved with Naloxone (several times a week, I’m told) to skillfully providing my female students a sense of personal safety when walking the Tenderloin in the evening. Several students described how a practitioner subtly positioned himself between them and someone who was getting too close, and how the threatening situation evaporated before it could evolve in unsavory directions. Moench and Fagan give this a passing nod, but their piece fails to properly capture the magic.

This brings me to another observation: There hasn’t yet been a project evaluation for Urban Alchemy’s Tenderloin intervention. Executing such a study would be a daunting task for several methodological reasons. First, there’s no comparative baseline for the intervention. The situation before their intervention was so abnormal that it would be hard to use it as a control, even if data were available. If the comparison is geographic, it would suffer from the usual problems with situational crime prevention: focusing an intervention in a particular geographical zone means that criminal activity is displaced onto adjacent zones, so the two comparators are not independent of each other. If the study is structured as an in-depth phenomenological project (which is what I would do if I were to do this–and a colleague and I are thinking about this), there’s the Star Trek problem of the Prime Directive: researchers or students hanging out in the Tenderloin to conduct observations would, themselves, change the dynamics in the area that they study. A big part of Urban Alchemy’s success lies in the fact that they do things differently than SFPD. They do not rely on surveillance cameras; in fact, they eschew them, and having any sort of documentation would be detrimental to their working model. And people standing in the corner for hours and taking notes would chill everyone’s behavior. Fieldwork here has to be conducted with care.

I have one more observation to offer: I now work in a service profession that requires crowd management and interpersonal intervention (as a city pool lifeguard) and also have multiple years of experience managing crowds in rowdy, inebriated, unusual situations (as a Dykes on Bikes registration volunteer at Pride and at Folsom Street Fair, for example.) The vast majority of people you encounter at these settings are lovely and a delight to be with. But the one or two percent who are decidedly not lovely can really test anyone’s self control. I’m talking about the driver who insists on driving the car into the area you’re trying to cordone off, the slow dude who insists on swimming in the lane with faster people and not letting them pass, or the people repeatedly told (politely) to move to the sidewalk so that they are not run over by trucks who don’t go where they’re told. My experiences are nothing compared to what the Urban Alchemy practitioners encounter every day on the Tenderloin streets. I really wish our reporting on this were sympathetic to the enormous challenges of interpersonal interactions in this very rough patch of our city and more appreciative of how much conflict and anxiety are spared when people who know what they’re doing take the lead.

Ninth Circuit Strikes Down Guard Vaccine Mandate

In an unfortunate, albeit not unexpected, decision, the Ninth Circuit reversed Judge Tigar’s vaccine mandate. You can read the decision in full here.

The reasons, in short, are as follows: the judges considered CDCR’s efforts in “making vaccines and booster doses available to prisoners and correctional staff, enacting policies to encourage and facilitate staff and prisoner vaccination, requiring staff to wear personal protective equipment, and ensuring unvaccinated staff members regularly test for COVID-19. . . symptom screening for all individuals entering the prisons; enhanced cleaning in the facilities; adopting an outbreak action plan; upgrading ventilation; establishing quarantine protocols for medically vulnerable patients; and testing, masking, and physical distancing among inmates” sufficiently ameliorative to reduce their misdeed below the threshold for an Eighth Amendment violation and “[a] decision to adopt an approach that is not the most medically efficacious does not itself establish deliberate indifference.”

Chapter 6 of our book, which discusses COVID prison litigation, is called “The House Always Wins.” This decision is a textbook example of the pathologies of prison litigation and why it fails to address problems in real time. It doesn’t even matter whether the litigation is happening on the federal or state level, because the basic problems are the same: the courts focus on the prison setting more than on the law, continuously contort the Eighth Amendment to defend prison administration, and ignore the basic regulatory requirements in the free world, assuming the prison is so different that they don’t apply. In addition, there is an interagency “game of chicken” that stalemates any efforts at providing timely help during an emergency: the natural actors that should quickly intervene in such situations are the governor and the prison authorities. Since neither has any incentive to do anything helpful, and since the people entrusted with the immediate care of the inmates are in a union that has been completely politically captured, the courts have to make noises of stepping in, but dragging their feet means that dynamic situations change and transform long before they have a chance to intervene.

I think that what happened with this Ninth Circuit decision mirrors what happened with the San Quentin litigation. Recall that, back in November, Judge Howard found that the botched transfer from Chino constituted an Eighth Amendment violation, but the vaccines changed the game and rendered relief moot. I suspect that the Ninth Circuit judges were affected by the fact that, due to the new variants and new endemic realities of COVID, the diminishing returns of vaccination mean that the urgency behind vaccinating the guards (which had already begun to fade by the time Judge Tigar decided to act) is far less salient than it was in winter 2021, when their opposition to vaccination was at its strongest and their compliance could have made a real difference. In other words, this is a classic demonstration of how justice delayed is justice denied.

The other issue is the inherent limitation of litigation, which is backwards-looking. In the Quentin case, Judge Howard explicitly said that he did not look to the next variant or to the next pandemic; his job was just to assess the violations of the past. As we see again in the Plata case, this fundamental trait of litigation is unfortunate for dynamic situations because, as Wes Venteicher reports in this morning’s SacBee:

Now another wave could be coming. The corrections depnartment reported its largest week-over-week increase in new cases, measured as a percentage, in the last week of April. New cases increased by 820%, reaching 322 infections from the prior week’s low figure of 35. About 97,000 people are incarcerated in the state’s 34 prisons. The biggest increases in the last two weeks have been at San Quentin State Prison, Pelican Bay State Prison, California Health Care Facility in Stockton, California Medical Facility in Vacaville and Ironwood State Prison in the southeast corner of the state, according to a corrections department infection tracker.

Ultimately, the only way to learn lessons for the next variant, the next pandemic, the next health crisis, is to conclude the obvious: it is impossible to save lives and provide decent healthcare to 100,000 people in California if the people entrusted with their care do not prioritize their wellbeing. Given that we do not seem to be able to attract people who have the prisoners’ best interests in mind to fulfill custodial positions, from the top, through the unions, to the rank-and-file, the only tenable conclusion is that we cannot and should not incarcerate nearly as many people as we do now. This will be the main conclusion of Fester, though we do make many other recommendations.