This morning I spoke with Lisa Chan of KCBS about another last-minute death penalty stunt of the Trump/Barr injustice machine: the reintroduction of gas and firing squads as permissible execution methods. CNN reports:
The Justice Department has rushed to change the rules around federal death penalties as they expedite a slew of scheduled executions in the final days of the Trump administration, including expanding possible execution methods to include electrocution and death by firing squad.
The approved amendment to the “Manner of Federal Executions” rule gives federal prosecutors a wider variety of options for execution in order to avoid delays if the state in which the inmate was sentenced doesn’t provide other alternatives.
It’s hard to make sense of the motivation behind this move. The last slew of federal executions won’t require it, as per the Washington Post:
Five federal inmates are scheduled to be executed in the coming weeks before Joe Biden is sworn in as president, though a Justice Department official said four of those — Lisa Montgomery, Brandon Bernard, Alfred Bourgeois and Cory Johnson — will be killed by lethal injection. The official declined to address the fifth case, of Dustin John Higgs, citing pending litigation.
The official said the rule change, first proposed in August, was meant so that federal executions would be carried out in line with state law, adding “the federal government will never execute an inmate by firing squad or electrocution unless the relevant state has itself authorized that method of execution.”
A few weeks ago, when this incomprehensible appetite for blood in the face of so many COVID-19 deaths started, I wrote that it felt like the last, vicious whiplash of a dying mythical beast. As I explained there, 22 states have abolished the death penalty and three have moratoria on its use; even retentive states rarely use it. As opposed to everything else Trump has done in office, this is at least ideologically consistent: he’s been an enthusiastic supporter of the death penalties since the 1980s, when he was in the habit of taking out large ads and giving interviews supporting the death penalty for the Central Park Five (later exonerated.) In the early days of his presidency, he tried to make headlines supporting the death penalty for drug dealers. This last move to bring back archaic execution methods is more of the same, but feels especially pointless given that Biden opposes the death penalty and has promised to work for its abolition. It’s also pointless because any hypothetical effort to use this will immediately drown in Eighth Amendment litigation, which will surely raise the always-present risk of botched executions. We could dismiss it as one more of the many spiteful, meanspirited ways in which this administration is determined to incinerate itself for the sole purpose of creating more mess for Biden’s people to clean up, except for the fact that it will claim real lives.
Given how much loss we’re facing, some might wonder why make a big deal out of these planned executions. It’s also true that, within criminal justice, this all involves a negligible number of cases that disproportionately eat up attention and funds. But these cases are crystallized versions of the injustices and iniquities we see throughout the criminal justice system. Take, for example, the impending execution of Lisa Montgomery, who committed a heinous murder and, at the same time, has been horrifically victimized all her life. Montgomery’s case commands attention because the death penalty is irreversible, but how reversible, really, are the consequences of incarceration visited on hundreds of thousands of incarcerated women, 53 of whom have a lifetime prevalence of PTSD and the vast majority of whom have been victims of violence? The life continues, but the suffering that happens cannot be undone.
These last-minute moves, likely to be reversed as soon as the new administration begins, seem spiteful, exaggerated, and odd. But when you think of the real people in line to be executed and the painful debates this is sparking amidst a dying death penalty, and are tempted to ask yourself, “what is the point?” – The answer, as Adam Serwer so memorably put it, is: the cruelty is the point.
In anticipation of our upcoming symposium about COVID-19 and mass incarceration, here are a few sources that our attendees might like to read. It’s not an exhaustive list; rather, it focuses on some of the themes we will be covering throughout the symposium.
My two biggest research interests–criminal justice and animal rights–come together in Karen Morin’s new book Carceral Spaces, Prisoners and Animals (New York: Routledge, 2018.) Morin, a geographer by discipline, applies insights from carceral geography to both human and nonhuman confinement contexts.
Carceral geography is a growing area of scholarship that examines prisons through a lens of spatiality. Building on work by Michel Foucault and Giorgio Agamben, carceral geographers problematize the overly simplistic notion of prisons as carceral spaces, arguing that prison boundaries are porous and that carceral ideologies of domination through confinement permeate spaces beyond the prison–beyond the formal dichotomy between “inside” and “outside.” Some themes studied by carceral geographers include spaces within prison and how they affect the experience of incarceration (“public” and “private” spaces within the prison; the impact of prison on the body); the interface between prisons and surrounding communities (prison towns, family members, transportation); mobility within and between prisons; and prison architecture and design. Carceral geography is directly relevant to my current research project, which is a book in progress about the COVID-19 catastrophe in California prisons; I rely a lot on the idea of prison permeability, which brings together notions of carceral boundaries, logics of opportunity (for people and for the virus,) insights from situational crime prevention, and miasma theory. In addition to this, I’m deeply interested in animal rights, and am working on a project involving the criminal prosecutions of animal rights activists who break into factory farms to release suffering animals.
In many ways, my interest in liberating nonhuman animals is an obvious extension of my interest in alleviating suffering in prisons. But the comparison is socially fraught from many directions. I often hear prison reform activists and abolitionists criticize prisons for treating people “like animals,” as if treating animals this way is fine; I’ve also heard animal rights activists criticize experimentation on animals, proposing to experiment on prisoners instead (Justin Marceau criticizes the myopic assumptions of the latter phenomenon in Beyond Cages.) I’ve also had to contend with people who find the comparison deeply offensive. Morin is well aware of these emotional and political landmines and writes:
I recognize though that the politics and ethics of making comparisons between racialized and classed human lives and that of nonhuman animals in respective carceral spaces can be problematic and fraught. It is challenging for humans who are embedded in violent, racialized, and criminalized human histories and spaces to not be offended by posthumanist comparisons to animal suffering. As noted above, the category of ‘human’ is contested in any case, and it is important to not move too quickly ‘beyond the human’ without acknowledging the continued exclusion of many human lives from full incorporation within it. And yet thinking particularly about race and animals together is important, precisely because of the way that racialized people have been and continue to be animalized in carceral spaces (Chapter 3). Moreover, the carceral logics of domination are intertwined across human and nonhuman groups. To take one more example, as Deckha (2013b) has shown, animal anti-cruelty legislation has the double effect of selecting certain animals for protection while targeting the behaviors of certain minoritized populations of people as deviant and transgressive. Meanwhile, industrial practices involving the dominant culture – as well as the abuse and killing of most animals – remain immune from critique.
Morin, Karen M.. Carceral Space, Prisoners and Animals (Routledge Human-Animal Studies Series) (p. 15). Taylor and Francis. Kindle Edition.
This avenue is deeply productive, not only because the analogies and similarities are analytically interesting, but because solidarity across movements is essential for success. Morin’s analysis ties together the prison-, agricultural-, and medical industrial complexes, showing the intricate connections between them and the profit logics that underpin them.
Morin’s book proceeds to analyze a series of contexts in which she sees parallel developments between human and nonhuman carceral spaces. She compares execution chambers and slaughterhouses, discussing the notions of “humane” slaughter and of death sentences that are supposedly not “cruel and unusual.” She discusses the intersection of the medical and carceral spaces in the context of medical experimentation. She even asks difficult questions about prison boundaries when discussing zoos and supermax facilities. The book also makes an important contribution to two seemingly unrelated growing literatures: the one about forced labor in prisons and the one about the possibility and structure of labor rights for nonhuman animals. Throughout these topics, Morin shows deep sensitivity to the broader social structures that allow cruelty to persist.
My favorite part is Morin’s comparative analysis of prison towns and cattle towns. She shows how the introduction of an exploitative industry into a “company town” shapes the economy and the tenor of the entire town, without granting much in the way of economic benefit to the town itself (by contrast to the industry that exploits the town.) Morin doesn’t explicitly say this, but a big thing here seems the creation of a municipality that is collectively impermeable to compassion, which I think is a serious issue even when the industry is profitable.
We often talk about dehumanizing conditions in prisons. But perhaps the question is not whether or not we’re all human; the question that should matter is whether we are sentient and whether we suffer. A few years ago I read Michael Dorf and Sherry Colb’s Beating Hearts, which compares the logics of sentience underpinning the pro-life and animal rights movements and finds a way to reconcile them into a cohesive pro-choice and pro-animal perspective. I think there’s a way for advocates and activists to find peace with Morin’s comparison in a way that allows them to support both movements.
Morin admits that she has not analyzed all the scenarios that her comparison speaks to, and I found at least two that I would like to read future works on. The first has to do with the concept of overcrowding. Morin discusses issues of caging in depth, but the book does not delve into the movement toward humane farming and “cage-free” chicken facilities. Now a major selling point for eggs and for pig meats, the notion of no-cage or no-crate is deeply misleading, and some states, such as California, use various parameters to try and measure overcrowding. I’ve seen parallel developments in the context of prison population reduction orders. It’s no big secret that I think the measuring yard used in Brown v. Plata–percentage of design capacity systemwide–was deeply shortsighted, and a more careful calculation of minimal per-person area, as in other countries, would have helped us mitigate the COVID-19 catastrophe we’re experiencing right now.
The second issue I would want to read more about has to do with movement strategy, and with the reform-versus-revolution debate in the prison advocacy community. There is a parallel debate–quite a heated one–in the animal ethics community, between animal welfarism and animal liberation. Movement strategy and tactics, attention to incremental reform, and the use of the criminal justice process to challenge cruelty and obtuseness are relevant to both movements, and I think there’s more room to write about this.
These two issues notwithstanding, the book makes a fascinating read. Unfortunately, Routledge has priced it quite prohibitively, but prospective readers should know that you can rent it from Amazon for a reasonable price.
I am thrilled to provide this update: We won In re Von Staich, the habeas corpus case challenging CDCR’s mishandling of the COVID-19 crisis at San Quentin. Justice Kline wrote: “We agree that respondents–the Warden and CDCR–have acted with deliberate indifference and relief is warranted.” Here is an analysis of the opinion.
Justice Kline begins by stating the magnitude of the San Quentin catastrophe. Even against the horrific history of disease and contagion in prisons–including three separate spikes of the Spanish Flu in 1918–the San Quentin COVID-19 outbreak is “the worst epidemiological disaster in California correctional history.” He then highlights the physicians’ urgent memo (published after they visited San Quentin, at the Receiver’s invitation) recommending a 50% reduction of the prison population. CDCR’s response fell far short of this: between March and August 2020 they achieved a mere 23% reduction, “accomplished, in part, by suspending intake at San Quentin from county jails, which has increased the presence of COVID-19 in those local facilities, and is not likely sustainable.”
Justice Kline then rejects the evasive maneuvers employed by the AG’s office, who tried to play jurisdictional hide-and-seek by claiming that the San Quentin litigation effort was somehow “duplicative” of the federal case Plata v. Newsom. First, the court wrote, San Quentin is a particular, antiquated prison with specific problems, which are not the focus of the federal litigation. Second, these habeas cases are designed to ask for temporary relief, rather than the more systematic remedies sought in Plata. Third, state courts are not limited and bound by the PLRA, as federal courts are. And fourth, which I found inspiring, state courts have the duty and competence to vindicate rights under the California Constitution (which, just like the U.S. Constitution, forbids cruel and unusual punishment–albeit worded slightly differently.)
The court also rejected the AG’s office’s delay tactics, asking that the case be moved back to the Superior Court and/or that an evidentiary hearing be held. As Justice Kline explains, the AG’s declarations that the doctors have it wrong and that a 50% reduction is unnecessary were “conclusions the Attorney General has failed to support with any factual allegations contradicting petitioner’s allegations,” which were based on scientists’ and physicians’ declarations–even with testimony from their own prison physicians. Under these circumstances, “the issue before us is simply whether respondents’ disregard of the experts’ conclusion that a 50 percent population reduction is essential constitutes the ‘deliberate indifference’ necessary to sustain petitioner’s constitutional claim. The issue is one of law, not fact.”
Was CDCR’s response to the risk of infection–of which they concede they were subjectively aware–adequate? They established a central command; installed a tent structure; repurposed the chapel and a furniture factory to care for COVID-19 patients; provided PPE to the population and staff; and released 947 people. At the hearing, the AG representatives claimed that the reduction in case numbers at San Quentin was thanks to these efforts.
The Court of Appeal vehemently disagreed. Relying on the analysis of experts, the Court agreed with us that the reduction in cases was not because, but despite, CDCR’s behavior. The decision quotes Dr. Beyrer: “Had San Quentin done nothing, the rates of infection there would have been roughly the same.” And, while the steps the prison took to alleviate the risk were commendable, they were insufficient without the population reduction, which they refused to do.
The next bit is especially interesting. The AG boasted that they managed to bring the prison population down to a bit more than 100%. Of course, as Justice Kline writes, in a facility such as San Quentin, full occupancy cannot allow for the social distancing needed to fight the pandemic. He quotes extensively from AMEND’s urgent memo, which detailed conditions in specific areas of the prison, notably North Block and West Block, showing that the combination of crowding and high-risk people was unsustainable. What interests me most about this is the extent to which the AG’s office and CDCR have become habituated to the toxic perspective according to which having their prisons 100% is a desirable end, rather than an unhealthy point of departure. We’ve had bloated prisons bursting at the seams for so long that we seem to think that a full prison at “only” 100% is fine.
The opinion then hits the nail on the head: as I explained elsewhere, the release plans are specifically designed to exclude people serving time for “a violent crime as defined by law” when such people are approximately 30% of the prison population. The AG argued that this is reasonable policy, because they, as opposed to the physicians who authored the memo, have to take into account public safety. To that, the Court has two replies. First, the prison authorities may resolve the Quentin problem not just through releases, but through transfers (though the court does mention that a botched transfer is what started this catastrophe in the first place. Second, and more importantly, even from a public safety perspective, lifers are the most obvious target population for release: they don’t pose public safety risks because they’ve aged out of crime, and they themselves face a heightened risk for COVID-19. Justice Kline writes: “Exclusion of lifers and other older prisoners who have committed violent offenses and served lengthy prison terms is also difficult to defend, given their low risk for future violence and high risk of infection and serious illness from the virus.”
Justice Kline spends several pages citing robust legal, sociological, and medical materials to show the folly of excluding lifers and strikers from release programs. He refers not only to steps taken by the CA legislature, but to the robust literature on life-course criminology, which constantly finds age a significant factor in desistance. Despite their authority to order the release of aging people who committed violent crimes, and statistics about prison demographics that they themselves provide, the AG’s insistence on mostly ignoring this category of obvious release candidates “render[s] it doubtful whether a 50 percent reduction in San Quentin’s population could soon take place.”
This behavior by prison authorities satisfies the “deliberate indifference” standard; they conceded they knew the risk, and they are recklessly failing to take the necessary steps physicians recommended, while not providing any factual justification. The continued use of spaces in which people sleep in close proximity “is not merely negligent, it is reckless”–and “the recklessness is aggravated by respondents’ refusal to consider the expedited release, or transfer, of prisoners who are serving time for violent offenses but who have aged out of a propensity for violence.”
As to petitioner, Ivan Von Staich, the Court has ordered his immediate release from San Quentin. Von Staich was recommended for parole on October 16, but the Governor can weigh his case for four months, and in the meantime he must be released or transferred to a different facility. In addition, the Court agreed that the habeas corpus process allows them to extend relief to similarly situated people. However, the Court opines that “it would be inappropriate to order the release of prisoners we considerd vulnerable even if we thought we had the power to do so in this proceeding.” The Court raises three concerns in this respect: one, that medical vulnerability is a question of “scientific facts, not law”; two, that they are unsure whether they can extend relief to people who did not file a habeas petition; and three, that the appropriate social distancing via releases/transfers can be created not only by transferring vulnerable prisoners out of San Quentin, but also by releasing other people in sufficient numbers to allow for social distancing or the remaining prisoners.
“Nevertheless,” writes Justice Kline, “we are not without means to expedite the release or transfer from San Quentin of more inmates than are now deemed eligible for release.” These means are provided by Section 1484 of the California Penal Code, which allows the Court such course of action. The Court cites numerous California cases that involved injunctive relief through Habeas. By this authority, the Court orders CDCR to bring the CDCR population down to 50%–“no more than 1,775 inmates.” The Court leaves the manner of doing so in the hands of CDCR, though Justice Kline does offer, as possibilities, “expanding eligibility for the two expedited release programs currently limited to inmates not serving sentences for violent offenses to inmates like Petitioner, who are over age 60 and completed minimum terms of at least 25 years.” Note that, despite the Court’s conciliatory words that CDCR is free to achieve the population reduction in whichever way they like, the decision discusses at length the fact that ignoring aging people serving long sentences for violent crimes is what stands in the way of achieving the desired reduction. The order specifically mentions the criteria above (over the age of 60 with 25 years incarceration) and also makes reference to the need to speed up the Elderly Parole Program.
Because of the need to act rapidly to save lives, the decision becomes final in 15 days, and the Court refers the parties to the Marin Superior Court for future disputes.
I’m very happy to share a great review of Yesterday’s Monsters written by Bob Egelko of the San Francisco Chronicle.
Review: ‘Yesterday’s Monsters’ shows parole system’s flaws in Manson cases
Bob Egelko September 30, 2020 Updated: September 30, 2020, 7:28 am
Susan Atkins, convicted of eight murders as a member of Charles Manson’s “family,” was dying of cancer when she made her 18th appearance before the California parole board in September 2009, after nearly 40 years in prison. Bedridden for 18 months and barely able to speak or move, she remained largely silent while her husband and attorney, James Whitehouse, asked the board to release her to a hospice, which he said he would pay for.
In response, relatives of Manson’s victims recalled the horrors of the 1969 killings. A Los Angeles prosecutor, Patrick Sequeira, called the family a “criminal terrorist organization” and said Atkins “has tried to minimize her involvement in the crime.” The board swiftly decided Atkins “poses an unreasonable risk if released” and denied parole for at least three more years. Atkins, 61, died of brain cancer 22 days later.
The incident is the most graphic but far from the only illustration of a malfunctioning system in “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” by Hadar Aviram, a professor at UC Hastings College of the Law in San Francisco who specializes in criminal law and civil rights.
The state Board of Parole Hearings shows “a clear preference for looking back and discussing the past (rather) than for the future, sometimes astonishingly ignoring terminal illness and old age when discussing future risk,” Aviram writes. And that, she notes, is the opposite of its assigned task of determining whether a prisoner who has served many years for past wrongdoing can now be safely released.
The book is a study, not an exposé — there are nearly 800 footnotes — but its language is everyday and accessible. Discussing inmates’ need to display “insight” into their crimes to be found suitable for parole, for example, Aviram writes, “the Board continuously moves the goal posts.” It’s aimed at two sets of readers, those who care about the workings of the criminal justice system and those with enduring memories of the Manson nightmare (this reviewer fits both categories).
Convicted mass murderer Charles Manson listens to the panel at his 1986 parole hearing in San Quentin prison.Photo: Eric Risberg, Associated Press 1986
It may not be fair to judge any criminal justice process by its response to extremes, and the Manson cases are about as extreme as they come. For reasons that remain unclear — some say Manson wanted to start a race war, others simply describe a cult obsessed with drugs, sex and violence — he ordered seven of his followers, including Atkins and two other young women, to kill nine people in three gruesome attacks in the Los Angeles area in July and August 1969. After the fatal stabbing of actress Sharon Tate, Atkins scrawled “PIG” in Tate’s blood on the front door of the home.
Manson, Atkins and three others were sentenced to death in 1971. But the state Supreme Court overturned California’s death penalty law in 1972, and all death sentences were reduced to life in prison with the possibility of parole; only under the subsequent law, passed by legislators in 1977 and expanded by the voters in 1978, were capital cases made punishable solely by death or life without parole.
Meanwhile, lawmakers and Gov. Jerry Brown, serving the first of his four terms in office, were remaking California’s sentencing and parole structure.
Discussing inmates’ need to display “insight” into their crimes to be found suitable for parole, for example, Hadar Aviram writes, “the Board continuously moves the goal posts.”Photo: Jana Asenbrennerova
Previously, nearly all crimes were punishable by a range of terms — 1 to 5 years, for example, or 5 to 20 — and a parole board that included psychologists and other professionals decided when a prisoner was fit for release. The system came under attack from both the left, as racially prejudiced, and the right, as unduly lenient, and was replaced in 1977 by “determinate” sentences for most crimes — two, four or six years, for example, with the sentencing judge making the choice.
Only “lifers,” those convicted of murder or a few other crimes, such as kidnapping, would now appear before the parole board, after a designated period, to seek their release. And board members were appointed by the governor, who generally chose law enforcement professionals skeptical of claims of rehabilitation.
The parole board’s occasional decisions to approve release were made subject to the governor’s veto by a 1988 initiative. A 2008 initiative called Marsy’s Law requires inmates who are denied parole to wait 15 years for their next hearing — five times the previous interval — unless the board finds “clear and convincing evidence” to justify an earlier hearing.
“Yesterday’s Monsters” focuses on a Board of Parole Hearings that is supposed to look forward, not backward. The state Supreme Court underscored that mission in a 2008 ruling that prohibited both the board and the governor from denying parole based solely on the gruesome nature of the crime — though, in a frequently cited exception, the court said the board could consider an inmate’s lack of “insight” into the offense.
Participants in the Manson family hearings, in transcripts quoted in the book, have focused largely on the past — understandably, in light of the events that gave rise to the hearings.
In 2013, Debra Tate speaks about her sister, actress Sharon Tate, who was killed by the Manson family, during a parole hearing for former Manson family member Leslie Van Houten at the California Institution for Women in Chino.Photo: Nick Ut, Associated Press 2013
At one hearing for Patricia Krenwinkel, Aviram says, prosecutor Sequeira declared, “I think if she had true remorse and she truly understood her crimes and the horrific nature of it, she wouldn’t be here at a parole hearing. She would just accept a punishment.”
Relatives of the victims were equally unforgiving.
“There are eight people that lie in their graves who remain unchanged, unrehabilitated, unparoled,” Anthony Demaria, a nephew of murder victim Jay Sebring, said at Krenwinkel’s 2011 hearing. “I beg the board to consider parole for Patricia Krenwinkel only when her victims are paroled from their graves.”
At another hearing, board members asked Krenwinkel why she wasn’t attending drug-treatment programs and shrugged off her explanation that her high-security custody barred her from the nighttime classes.
At a 1981 hearing, the board was unimpressed by ex-Mansonite Bruce Davis’ leadership position with a Christian counseling group in prison. One board member, Aviram notes, said Davis had merely switched his allegiance from “one god-like figure to another.”
When Manson follower Leslie Van Houten appeared before the board in 2013, Aviram says, she had a strong record of participation in prison rehabilitation programs, with a few minor violations, the last one in 1981. The board denied parole on the grounds that she lacked insight into her life before imprisonment: “You need to demonstrate what made you that person to engage in those acts so long ago.”
Three years later, with Van Houten’s record substantially the same, the board recommended her release but was overridden by Brown’s veto, events replicated under Gov. Gavin Newsom in 2019. Steve “Clem” Grogan, a relatively minor participant in the crimes, was paroled in 1985. Manson, denied parole at 12 hearings, died in prison in 2017 at age 83. His other co-defendants remain behind bars.
In 2013, Leslie Van Houten appears during her parole hearing, with her attorney, Michael Satris (left). Parole was denied.Photo: Nick Ut, Associated Press 2013
In one sense, the timing of the 1969 murders spared Manson and his cohorts from more severe punishment. Had they committed their crimes a decade later, some of the Family almost certainly would have been executed, and others would have had no opportunity for parole. And it seems safe to say that few Californians who remember the killings will shed tears at the prospect that Manson’s followers who are still in prison will probably die there.
But that doesn’t contradict the message that Aviram convincingly presents: If the parole system had worked as it was supposed to, based on the law and the policies underlying it, most of the participants in the murders, other than Manson himself, eventually would have been released.
The Board of Parole Hearings, the author concludes, “should not be the arbiter of moral goodness.”
I’d like to have seen a bit more context, comparing these parole decisions to others here and elsewhere, and perhaps some background on the parole board members, sometimes identified only by last names in the book. But as California rethinks the roles of imprisonment and parole in this COVID-19, post-Three Strikes era, “Yesterday’s Monsters” has some lessons for today.
“Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” By Hadar Aviram (University of California Press; 294 pages; 29.95)
Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko
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As has been my custom, I’m going to provide blog endorsements for criminal justice propositions and candidates as the November election approaches. Today we start with the top of the ticket–candidates for President and Vice-President.
If you’re anything like me, you’ve been getting dozens of idiotic political fundraising gambits via email and text. One of my favorites was the faux survey: “Do you prefer Sanders and Klobuchar/Biden and Warren/Harris and Castro to Trump and Pence?” To which I often replied, “I prefer a colonoscopy and a root canal to Trump and Pence.” I think what we have here is not what I would have wanted, but it’s nowhere near a colonoscopy and a root canal, and it’s a light-years-far cry from Trump-Pence.
***
Suppose, for your birthday, you receive a catalog with two gift choices: a steaming pile of poop and a basketball. You must have one or the other; if you pick, you get the one you chose, and if you don’t pick, one will be chosen for you. You can’t opt out. Alas, you wanted a pony. But a pony is not on offer.
What do you do? You might pout, you might shout, but eventually you pick the basketball. Because there’s something you know for sure: you don’t want the pile of poop.
You don’t scribble, “I WANTED A PONY!!!!!” with your colored pencils all over the catalog. There is no #%^@ing pony. There’s only poop and basketball.
***
Six years ago, an Orange County federal judge, Judge Cormac Carney, ruled that the death penalty in California was cruel and unusual because of the delays in its administration. This decision provoked much excitement in the anti-death-penalty community. It did not mean immediate abolition, because it was just one habeas case. But it could lead to abolition, and all the Attorney General had to do was refrain from appealing the decision and get out of the way. At the time, I organized a petition, which 2,178 people signed, essentially urging then-Governor Brown and then-Attorney General Harris, both of whom were personally opposed to the death penalty, “don’t just do something! Sit there.” Many lawyers and advocates were extremely excited about the prospect of finally getting to work on ridding ourselves from the shame and the expense of California’s broken death penalty. And then, two days before the appellate clock was to run out, the AG’s office decided to appeal the decision.
To my surprise, and to their credit, one of AG Harris’ assistants called me on my cellphone and explained why they decided to do so. They interpreted Judge Carney’s decision as making new law on habeas, which is prohibited, per Teague v. Lane (1989), because of retroactivity issues. The technical wrinkle is this: habeas petitioners’ cases are already final, and if a new law is announced in their cases, it cannot apply to similarly situated defendants, because their cases are also final. So the Supreme Court decided to relegate habeas to the law of yesterday, which is unfair and outrageous, but it is technically the law.
Jones v. Chappell then landed at the Ninth Circuit as Davis v. Jones. At the oral argument, Jones’ attorney made a valiant effort to argue that Judge Carney did not make new law, but rather applied good old Furman v. Georgia. The effort failed, though it did have some merit. The decision was a big disappointment, and we ended up with six more years of a death penalty in which no one was executed but your tax dollars, and mine, funded $150 million a year per death row person in litigation fees. Our effort to repeal via voter initiative didn’t work, and met with nasty resistance in the form of a competing, misleading, unjust proposition, which is still tangled up in litigation to this day. It also met with the preciousness of progressives who believe that the good was the enemy of the perfect, and astoundingly voted no on abolition. So it went until Gov. Newsom finally pulled the plug, but of course, without judicial support (or legislation,) we’re still paying the litigation fees, and we will continue to pay until some brave judge does something or until a majority of Californians finally votes to abolish.
I was very upset about the AG’s decision. I thought it was the wrong call, policywise and moralitywise, and said so onnumerousoccasions.
I am writing this because phone calls from news agencies looking to do some muck racking have already begun. I’m going to decline any and all interviews about Harris, and I want to be crystal clear why. My target audience is the folks who were hoping for a different ticket. I explained the background above to clarify that I, too, had a different ticket in mind. I wanted Elizabeth Warren to be the Presidential nominee. But Elizabeth Warren is not on the ticket.
Joe Biden and Kamala Harris are.
I want to make it crystal clear that I am shelving any and all reservations about the Democratic 2020 ticket, and am urging you to vote Biden-Harris, with or without enthusiasm. Your enthusiasm is not that important (though, if you can muster some, you’ll feel better.) Your vote is. Monumentally so.
In the coming months, we will hear a lot about who Biden and Harris are, but one thing I’m pretty clear on is that they are colossally different than the criminal junta that has been running things in the last three and a half years, buying their way to power through treason and backroom deals with enemies, locking up children, letting families starve, making nepotistic appointments of unsuitable, barely-literate idiots who ruin whatever they are in charge of, destroying our precious planet, sending government goons to beat and abuse protesters, encouraging and goading non-government goons to shoot, run down, and murder people, trafficking in horrific tropes to ally themselves with actual Nazis.
The situation, in short, is this, my friends. Behind Curtain no. 1: Nazis. Behind Curtain no. 2: not Nazis.
The pony is not on the ballot. The bedrock of our democracy is. You’re not getting a custom-fit ticket, you’re choosing from a catalog with two products. The choice is obvious.
Local news are ablaze with Santa Clara County District Attorney Jeff Rosen’s announcement from Wednesday, according to which his office will no longer seek the death penalty. The Chron reports:
Rosen said the change in policy was inspired by trips to Montgomery, Ala., first with a faith-based group and then with his family. After visits to civil rights museums and historical sites, Rosen said, he learned not only about slavery, but also what he called “the abhorrent misuse of the death penalty” against people of color.
“In the past, I supported the death penalty when I viewed heinous murders through eyes of the victims and families of those whose lives were taken,” Rosen said. But in recent weeks, “I have tried to look at this issue through the lens of race and inequity.
“These cases use up massive public resources and cruelly drag on for years with endless appeals that give no finality to the victims’ families,” he said. “There’s the tragic but real risk of wrongful conviction. And, shamefully, our society’s most drastic and devastating law enforcement punishment has been used disproportionately against defendants of color.”
Michael Cabanatuan, “Santa Clara County DA Jeff Rosen no longer to seek death penalty,” San Francisco Chronicle, July 22, 2020
Things I learned from colleagues who study progressive prosecution and are in the know about Santa Clara County: Rosen is facing a challenge in the form of a more progressive candidate for D.A., and apparently he has been hiring the people that Chesa Boudin fired upon becoming San Francisco’s D.A. Frankly, if the outcome is real reform–ending cash bail, establishing an integrity team to investigate criminal police misconduct, and requiring deputy district attorneys and the office’s investigators, who are currently required to take police ridealongs, to also visit communities, whether the motives are pure or not does not interest me (they never can be with elected officials.)
But this decision raises some bigger questions about the prosecutors who still pursue capital trials despite the fact that we have a moratorium on the death penalty and, actually, no longer have a working death chamber at San Quentin (see image above.) Why are we still paying the enormous expense of capital trials and appeals as if we have a functional capital punishment? Perhaps because some county prosecutors are still behaving as if we have it–as late as last month, apparently, the California District Attorneys’ Association held a webinar on “changes to execution protocols, including California’s.” As members of the CDAA know full well, the “changes” in California consist of the fact that we no longer have an actual room with equipment to conduct executions, nor do we have the chemicals we squabbled for decades about, to the tune of billions of dollars in litigation.
I can see how, in some cases, district attorneys might feel the need to signal to their constituents that they consider this or that homicide case particularly heinous by publicly seeking capital punishment; however, as the L.A. Times explains here, even with someone with a shocking record of homicides like the Golden State Killer, there is no point in a death penalty that has no meaning whatsoever. Why capital punishment? So that DeAngelo can spend the rest of his years litigating our tax money away and die a natural death, like the vast majority of deaths on death row? What would be the point?
Rosen and other prosecutors are making the only practical choice under the circumstances. Even if you are a believer in capital punishment, as any New Age guru worth their salt will tell you, you have to let go of what no longer serves you.
Today’s Chronicle features a great article by Bob Egelko, which tries to parse out who is responsible for the San Quentin catastrophe. Getting into the chain of command that made the botched transfer decision might come in handy at a later date, I think, when the time comes to file the inevitable (and more than justified) lawsuit. But, as I said in the article, the time to squabble over who’s at fault has not come yet. Right now we must have all hands on deck, including Gov. Newsom, Mr. Kelso, and Mr. Diaz, making prison releases their absolute top priority.
By now, regular readers of my COVID-19 prison crisis posts know that Gov. Newsom’s plan to release a mere 8,000 people over the course of the summer will not suffice to curb infections, illnesses, and death in prison. You also know that, at least with regard to San Quentin–an antiquated facility that lacks proper ventilation–the physicians at AMEND recommended an immediate population reduction by 50%. But how is it to be done?
The #StopSanQuentinOutbreak coalition, and the Prison Advocacy Network (PAN) have useful, well-researched answers, which are encapsulated in the lovely infographic above. Here are the coalition’s demands, and here’s the PAN page offering legal resources and pathways to release. I want to spend this post getting into the particulars. Before doing so, though, I need to explain a few important things.The Prisoner Advocacy Network has a list of pathways to release.
A lot of the categories in Newsom’s current release plan make sense and show evidence of public health thinking. They are considering age, medical condition, and time left on people’s sentences. The problem with the categories is that they are unnecessarily restrictive, and I think the restrictions can be attributed to two hangups that many people, including well-meaning, educated folks, share about prison releases: the fear that releasing a lot of people is going to be hugely expensive and the hangup around the violent/nonviolent distinction. So let’s tackle these two first.
Get over the hangup of re-entry costs. You may have read that BSCC is considering offering $15 million to CDCR, and might wonder how we can possibly pay for housing, temporary or permanent, of tens of thousands of people. Of course this is going to cost money; the question is, compared to what. It may shock you to learn that, in the 2018/2019 fiscal year, the Legislative Analyst’s Office estimated that the average cost to incarcerate one person in California for a year was $81,502 – more than a $30k increase since our recession-era prison population reduction in 2010-2011. How much does it cost to help such a person for a year, when their healthcare is funded by Obamacare, rather than by CDCR? Here’s a PPIC report from 2015 detailing alternatives to incarceration. Specifically with regard to COVID-19-related reentries, here’s another great infographic detailing what the needs are going to be. The big one is housing, and there are organizations on the ground that are set up to help with that. Even with transitional housing costs, this does not add up to $80k per person per year.
Get over the hangup of making the violent/nonviolent distinction. I am still seeing lots of well-intentioned folks who read Michelle Alexander years ago tweeting about how ending the war on drugs (with or without the hashtag), or focusing on so-called “nonviolent inmates” is the key to fighting this outbreak. I can’t really fault them for this misapprehension–what I can do is repeatedly present you with facts to correct it.
Take a look at the graph below. It comes from CDCR’s population data points from 2018. You will note that the vast majority of people in California prisons are serving time for a violent offense. Drug convictions are the smallest contributors to our prison population (this is of course not true for jails or for federal prisons; I’m talking about the state prison system.) I know we all love to say “dismantle” these days, but dismantling the war on drugs will do very little to reduce state prison population.
Now, take a look at CDCR’s Spring 2020 population projection. What you see in the diagram below are the reductions in population since 2010, and some projections for the years to come. The two big reductions were in 2011, following the Realignment, and, to a smaller extent, in 2015, following Prop. 47. Both of those propositions diverted drug offenders to the community corrections systems–jails and probation. If you care about the injustices of the war on drugs, your heart is in the right place, but this is simply not the most dire problem we are facing in the context of prison population reduction.
It is easier to talk about drugs and nonviolent offenders, because these are typically categories of people that evoke more sympathy from the press. My colleague Susan Turner at UCI has shown that risk assessment tools, when used properly and carefully, yield dependable predictive results, and these are not correlated with the crime of commitment. Because we were so married to the idea that only nonviolent folks need help and public support, our three major population reduction efforts–Realignment, Prop 47, and Prop 57–missed the mark on getting more reductions for little to no “price” of increased criminal activity. Whenever you see a headline lambasting the Governor or the Board of Parole Hearings for releasing a “murderer,” immediately ask yourself the two relevant questions: (1) How old is this person now, and (2) how long ago did they commit the crime? The answers should lead you to the robust insights of life course criminology: People age out of violent crime by their mid- to late-twenties, and at 50 they pose a negligible risk to public safety. Moreover, what a person was convicted of doesn’t tell you a full story of what their undetected criminal activity was like before they were incarcerated. Take a look at the homicide solving rates in California, as reported by the Orange County Register in 2017–a bit over 50%–and ask yourself whether the crime of conviction is telling you a story with any statistical meaning.
In short, my friend, take a breath, let go of your attachment to the violent/nonviolent distinction, and let’s find some real solutions. The #StopSanQuentin coalition has a more in-depth breakdown to offer. Generally speaking, the legal mechanisms to achieve this reduction were identified by UnCommon Law in their letter to the Governor–primarily, early releases, commutations, and parole. Section 8 of Article V of the CA Constitution vests the power to grant a “reprieve, pardon, or commutation” in the Governor. The Penal Code elaborates and explains the process. Section 8658 of the California Government Code provides an emergency release valve: “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution. He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them. the Governor has the authority to grant mass clemencies in an emergency.”
To begin, there are some bulk populations which, if targeted for release, can deliver the kind of numbers we need to stop the epidemic. These three populations largely overlap, which might make it easier to tailor the remedies to capture the right people. About half of the CDCR population are people designated “low risk” by CDCR’s own admission. CDCR uses risk classification primarily for housing purposes, and their methodology–as well as their practice of overriding their own classification–have been found by LAO to be in dire need of overhaul. LAO and other researchers believe that CDCR’s use of the “low risk” category is too restrictive, and their exceptions to their own classification come from hangups around issues of crime of commitment. This chart from the LAO report tells a useful story: Most of our prison population is doing time for violent crime, and a quarter of it is 50 and older; given the length of sentences for violent crimes, and the fact that a quarter of CA prisoners is serving decades on one of the “extreme punishment trifecta” of sentences (death, LWOP, or life with parole), it’s not difficult to figure out where the older, lower risk people fit in.
Between a quarter to a third of the prison population, depends on how you count: People who have already served a long sentence. This is the time to question the marginal utility of serving a few more years after being in prison for decades. According to the Public Policy Institute of California, About 33,000 inmates are “second strikers,” about 9,000 of whom are released annually after serving about 3.5 years. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Approximately 33,000 inmates are serving sentences of life or life without parole. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.
23%: People Over 50. Not only does this population intersect with lower criminal risk and higher medical risk, it also correlated with cost. According to the Public Policy Institute of California and Pew center data they cite, in fiscal year 2015 the state spent $19,796 per inmate on health care–more than thrice the national average.
To this, we can add a few smaller populations, numbering a few thousand each. Let’s start with people on death row and people on life without parole, who have been exempted from pretty much any release valve possible. The Governor has the authority to commute both of those sentences to life with parole today, and this is probably the right course of action anyway, pandemic or no pandemic. We have a moratorium on the death penalty, which means no one is getting executed but we are still paying for expensive capital punishment litigation. Cut out the middle man and shift all these folks to life with parole. I talk about how these three sentences are indistinguishable anyway in Yesterday’s Monsters, chapter 2.
There are also, apparently, a few hundred people still incarcerated who have been recommended for parole and approved by the Governor–coalition members have identified a few dozen in San Quentin alone. If these people have been given the green light to be released, why are they still behind bars? As for people who have been recommended for release and still awaiting the Governor’s authorization, now’s the time to expedite that.
Finally, lifting the offense limitations on people from outbreak epicenters, people with medical conditions, and the like, should expand those numbers considerably, given the significant overlap between crime of commitment, length of sentence, age, and health condition.
My point is that all of this is eminently doable, and there would hardly be any downsides. If we can just let go of the tendency to view only one side of the cost equation, and of our hangup about the nonviolent/violent distinction, we can scale up the proposed release plan to the point that it will be effective. Let me end with this thought: Gov. Newsom announced that the goal is to reduce San Quentin population to close to 100% of design capacity. In a sane world, prisons that are at 100% occupancy are not a goal. They are a starting point.
August 14 Update: Jason Fagone has a gorgeous piece in today’s Chron explaining how we could achieve a 50% reduction today, with negligible impact on public safety.
In J.R.R. Tolkien’s Lord of the Rings, the Balrog is an ancient monster, a relic from times past, who lurks beneath the surface. When the Fellowship of the Ring crosses the Bridge of Khazad-dûm, they provoke the Balrog, who angrily attacks them. Gandalf, the wizard, successfully fights the monster, but at the very last minute, as the Balrog plunges to its death, it flings its whip one last time, capturing Gandalf and dragging him along into the abyss.
The U.S. death penalty in the 21st century is like the Balrog—an ancient monster, a relic from times past, still grasping and lashing its whip even as it approaches its demise. The score, state-by-state, is even: 25 states have retained it, 22 states have abolished it, and three (including California, home to the largest death row in the country) have instated moratoria upon its use. Even in retentionist states, the rate of executions has slowed down to almost a grinding halt, and initiatives to abolish the death penalty frequently appear on the ballot. Paradoxically, as Daniel LaChance explains in his book Executing Freedom, it retains the support of the majority of people even as it loses practical ground. Much like people on death row, most of whom die natural deaths after decades of incarceration and litigation, the death penalty itself is dying a slow, natural death. This is a confluence of several factors: recession-era politics that drew attention to the immense, disproportionate expenditure on capital punishment; the rising prominence of the innocence movement, which shone a light on the widespread problem of wrongful convictions; and the Obama-era attention to racial disparities in criminal justice, among others.
Tolkien is a master storyteller, and he sets up the moment when the Balrog’s whip ensnares Gandalf as poignantly tragic—a sudden, unnecessary reminder that, even at its demise, the archaic still has bite. This is how last week felt. Taken together, the decision in Barr v. Lee and the three executions that followed were a persuasive catalogue of the evils of the death penalty, straight out of the abolitionist playbook.
First was the decision itself, which followed the expected 5-4 pattern. In the spirit and tradition of death penalty litigation in the last few decades, it revolved around what Justice Harry Blackmun referred to in the early 1990s as “tinkering with the machinery of death.” Blackmun could afford a direct, stop-beating-around-the-bush approach to the tiresome and technical minutiae of postconviction litigation, but capital defense lawyers cannot; arguments about human rights and racial disparities have long been futile, for various procedural reasons, and the limits of the sayable on appeal and on habeas revolve around chemicals and number of injections. Justice Breyer’s dissent echoed Blackmun’s distaste with what death penalty litigation has become, remarking, “[t]his case illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishmen[t]’”. Justice Sotomayor, in turn, remarked on the absurdity of doing justice to fundamental questions via “accelerated decisionmaking.”
Then came the three executions, the first sneaking up on the American public while we were sleeping in our beds. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victim’s families to spare him the death penalty. The judicial and executive branches’ trampling of the victim’s requests followed the usual capital punishment theater in which, as Sarah Beth Kaufman explains in her new book American Roulette, prosecutors, governors, and death penalty advocates use victims as a prop, assuming that punitiveness is faithful to their wishes. As I documented in my book Yesterday’s Monsters, in California (as in other states) the voice of victims has been captured by a small group of white, middle-class victims of stranger homicides which, albeit sincere about their own punitive sentiments, do not represent the demographics or wishes of most survivors of violent crime. The first-ever national survey of crime survivors paints a more realistic picture. Twice as many victims prefer that the criminal justice system focus more on rehabilitation than on punishment; victims overwhelmingly prefer investments in education and in job creation to investments in prisons and jails, by margins of 15 to 1 and 10 to 1 respectively; by a margin of 7 to 1, victims prefer increased investments in crime prevention and programs for at-risk youth over more investment in prisons and jails; 6 in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation than lengthy prison sentences. The assumption that the only good victim is a punitive victim does not have a factual leg to stand on.
The execution that followed was of 68-year-old Wesley Purkey, who was described by his lawyer, Rebecca Woodman, as a “severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease” and does not understand “why the government plans to execute him.” The debate over Purkey’s mental illness was emblematic of the decades and billions of dollars spent poring over the fitness of elderly, decades-long death row residents, for execution. Reading of Purkey’s execution reminded me of how COVID-19, which is ravaging San Quentin’s death row as I write this, is making a mockery of our state’s well-intended moratorium. More people on death row have died of the virus during this moratorium than have been executed by the state in the entire century, which in itself should raise serious qualms about the ethical validity of the debate whether this or that individual is healthy enough to be killed by their government.
Finally came Dustin Honken’s execution, which offered a grim reminder of the gap between the inexplicable federal enthusiasm for executions and the waning interest of states in the penalty. Honken is the first person from Iowa to be executed since 1963; Iowa abolished the death penalty in 1965. Honken’s lawyer, Shawn Nolan, said, “There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.”
In her dissent, Justice Sotomayor expressed concerns about the procedural framework used to greenlight these three executions, a grant of the federal government’s emergency application, which “inflicts the most irreparable of harms without the deliberation such an action warrants.” But my deeper concern is about the inexplicable zeal that animated the emergency application in the first place. As a deadly pandemic ravages cities and towns, as the American public wakes up to the fragility of human life, the federal appetite for cheapening it by pursuing human-inflicted killings in the name of dated approaches is astounding. That it is in step with the Trump administration’s embrace of old-school punitivism does not make it any less perplexing, nor any less tragic. The Balrog of the death penalty is taking its last steps, but its last whiplash, an echo of what passed as justice in the olden days, stings as viciously as ever.
The sensation of shock, like unsavory gray smoke filling my lungs, making me nauseous with incomprehension, has stayed with me, and seems to have been universal. Dan was so alive–isn’t that what is always said of the dead?–a true, energetic community builder, the architect of Prawfs Blawg, the inaugurator of CrimFest, both of which have outlived him. A loving father to his two young boys, of whom he always spoke with such affection. The nauseating smoke whispered, how? why? who? Theories spread among Dan’s friends and colleagues; blogs were ablaze, picking up the shreds of Dan’s life, looking for some conflict, strife, danger, something that would explain the unexplainable. Underneath it all, unspoken save, perhaps, in the offices of my friends’ therapists, was the uncomfortable but true realization, this doesn’t just happen to someone I know. People living comfortable lives of safety and social advantage, lives that do not grow in the shadow of street violence or require it, were deeply unsettled. If we could only find out why, we felt, perhaps, this senseless thing will make sense; something in Dan’s life, in his relationships and entanglements, would make sense of this out-of-place death.
The mystery of Dan’s murder lingered on, picking up steam occasionally on blogs, for two years. Whenever I met other friends and colleagues of Dan’s, we shook our heads. “We just want to know what happened,” we said. The aching gap Dan left in the professional and social fabric of our trade was lovingly mended by friends who took the mantle of organizing. Then, two years later, we found out. It was sordid, disturbing, the stuff of low-grade cold-crime television shows in which a deep-voiced anchor dramatizes the events. They were Luis Rivera, 33, and Sigfredo García, 34, murderers for hire, and the only plausible connection between them and Dan was the mother of García’s children, Katherine Magbanua, who was dating a rich Florida dentist, Charlie Adelson.
Adelson was Dan’s brother in law. Dan and his ex-wife, Wendi Adelson, had divorced in 2013, and were amidst an ugly custody battle; Dan had won an order prohibiting Wendi from moving to Miami with the children, and filed a motion that would have prohibited Donna, Wendi’s mother, from being alone and unsupervised with the children due to alleged disparaging remarks about Dan. The investigators alleged Magbanua made the connection between the Adelson family and Garcia , that she received a large amount of money from the Adelsons following Dan’s murder, and that Magbanua was the first call Garcia dialed after Markel was murdered.
All this added up to arrest warrants against García, Magbanua, and Rivera, but not against the Adelsons. Despite repeated efforts to trip them, they have eluded law enforcement efforts at gathering more evidence against them. Rivera turned state witness, García was convicted, and Magbanua, who remained steadfastly silent even in the face of a threat with Florida’s death penalty, won a mistrial (ten jurors voted to convict, two to acquit.) Magbanua is to be retried for the murder. Much as I find it loathsome and distasteful to lionize and sanctify the three apprehended parties to a murder-for-hire because they are “poor people of color,” I can understand and empathize with the sentiments of injustice: the rich and powerful have managed to escape all consequences of their likely actions. Given what we know, what plausible explanation could there be for all this except the Adelsons’ desire to get Dan out of the way? Not one member of the Adelson clan evokes even a shred of sympathy: In a particularly cruel move, Wendi Adelson immediately proceeded to remove Dan’s last name from those of the children and denied them contact with their paternal grandparents. And yet, the police claims not to have cobbled enough probable cause for an arrest.
Thing is, what I think happened and what the law, which requires stringent beyond-reasonable-doubt proof, asserts happened, are two different things. The law does not operate in a vacuum, and people of means have many ways to insulate themselves from incriminating behavior and paper trails. I know many of my friends and colleagues who grieve for Dan hope for justice in the form of criminal consequences for the Adelsons. Much as I fail to comprehend the moral makeup of the Adelsons, I’ve always been pretty clear on the fact that I would not feel even a little bit better about this tragedy if I heard that the police arrested Donna, Charlie, or Wendi. Moreover, I didn’t feel relieved or vindicated when the police waved the threat of capital punishment over Katherine Magbanua’s head. Not only did it not work, in Magbanua’s case, and not only does this use of the death penalty as a bargaining tool create ugly disparities between sentences in abolitionist and retentive states, but I found the whole entanglement with the worst aspects of Florida’s criminal justice system tasteless given Dan’s own scholarly stance against the death penalty. My conversations with many of Dan’s friends and colleagues revealed that they, too, felt like knowing what had happened and making their mind about the culprits was sufficient. What horrors, albeit deserved, could the criminal justice system possibly visit upon the Adelsons that would make us feel better about the grievous loss of our friend?
I’m not particularly surprised that so many people’s grief over Dan’s death didn’t manifest as a desire to see his killers–all of them, including the ones too dainty to pull the trigger–harshly punished. I see the same from families and friends of homicide victims all the time. The first-ever national survey of crime survivors show that victims are far less punitive than Twitter would have you believe.
Not everyone is nonpunitive, of course. The Tate family, whom I discuss at length in my book Yesterday’s Monsters, were instrumental in shaping public perception of what victims want, as was Mark Klaas. I don’t think any of these people has been manipulative or insincere or has not suffered unimaginable pain; I do think, however, that their voices are mistakenly assumed to represent what most victims want, which is not the real picture. Nor is this an illness particular to the conservative right; the fault lies just as much with the folks who wrote fashionable pieces about how Jean Brandt’s act of faith and forgiveness toward Amber Guyger was “problematic” in that it “allowed whites to benefit from black forgiveness”, because some people on the left are apparently so enlightened that they can educate people on how to properly grieve their relatives. I saw the same dynamic in some of the astonishing reactions on Christian Cooper’s sane and measured response to the police investigation of Amy Cooper’s false complaint about him to the police, those accusing him of “performing a disservice” to African Americans nationwide, because apparently (1) everything has to be a performance and (2) the only true path to social justice is through arrests, charges, and convictions.
That this–a reaffirmation of our government’s commitment to a punishment that is, itself, dying a slow death (like many of death row inmates themselves)–is our takeaway from this pandemic, is mind boggling, but I see the same mentality among those wondering why we worry about people on California’s own death row catching COVID-19. Being on death row is hardly a natural consequence of one’s actions, as so many of my colleagues have explained over the years, and so the shrugging of shoulders, accompanied by a more or less crude version of “you do the crime, you do the time” or “we have to make priorities” astounds and perplexes me. As we inch toward November, the urgency of a vote that affirms everyone’s value in the dance of life becomes clearer and clearer. And then, we begin the hard work of reshaping the arc of progress, which has taken a very, very wrong turn.
