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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Children’s Books About Prisons

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

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

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

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

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

Left Realism Matters More than Ever in Criminology

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Offensive Speech in Terrible Times

Like many other campuses around the United States, mine is papered with despicable flyers espousing an ignorant perspective on the Israel-Hamas war. My Jewish students are understandably upset and infuriated, and so am I. Every day brings fresh, unbearable details about the massacre. The contrast between that and my outside surroundings is a dissonance that fractures me to the core. In the coming days, many campuses, including ours, will see abominable displays of hatred, antisemitism, and a breathtaking level of illiteracy regarding international affairs. We’ll see laughable, imaginary coalitions between, say, Hamas and the fight for trans rights. This will be ugly and it will be emotionally difficult to stomach. It already has been a difficult struggle to function at work and it’s likely to endure for some time.

At such times, supporting a legal regime that has absolute free speech is deeply distressing and challenging. I finally found out who first wrote, “I detest what you write, but I would give my life to make it possible for you to continue to write”–it was Voltaire biographer Evelyn Beatrice Hall, in 1906. For First Amendment enthusiasts, this era epitomizes that sentiment–the price of freedom is walking around with a broken heart, even if the open goal of the speakers is to break it.

The image above depicts the Illinois Holocaust Museum in Skokie, IL; in the 1970s, Skokie was the setting for a free speech debate culminating in a Supreme Court decision that in many ways reminds me of the situation on the ground today. David Goldberger, at the time the legal director of the ACLU of Illinois (and later an Ohio State law professor specializing in free speech) has written a fascinating account, complete with images, of his representation of the Nazis in this case–not only what it was like to have them for clients, but also the public response. I really recommend that you read it verbatim. Among many things I didn’t know was the fact that Meir Kahane, in many ways the ideological granddaddy of murderous Jewish nationalists like Ben Gvir et al., started his activity in the US with the Jewish Defense League, who appeared at the ACLU offices with baseball bats! Another thing I didn’t know was that the ACLU’s choice to represent the Nazis in the Skokie trial led to tens of thousands of resignations, but also to some support letters from holocaust survivors who said that “they wanted to be able to see their enemies in plain sight so they would know who they were.” The ACLU is taking the same approach regarding the protests we are experiencing now.

I really recommend reading Goldberger’s entire account, and it’s even more interesting to ponder it through a comparative lens. Not all countries have absolute free speech; many place limitations on hate speech and incitement to racism or violence. That approach ushers its own host of problems: what is and is not “hate speech” or “incitement” is a subjective determination, and judicially delving into these questions inevitably brings in ideological perspectives and heuristics. I’m already seeing some troubling incidents in Israel in which universities and schools waste precious time and energy on McCarthyist investigations of their students, faculty, and staff.

It’s important to distinguish the general question of what should and should not be legally allowed from the more particular question, what these opinions tell us about the quality of the education we provide and about the quality of the people who espouse them. For some idea on how these ideas fester and infect people to this degree, read Julia Steinberg’s account of her own education. It exposes many of the flaws of what passes nowadays for progressive education, and dovetails with my unwillingness to responsibly participate in similar indoctrination efforts at my workplace and elsewhere. Steinberg’s piece was an important reminder that hateful idiots don’t spring into being, fully formed, in college or law school; they are raised to be the way they are in their K-12 years. I, for one, plan to keep a very watchful eye on my child’s education, to ensure that essentialist, separatist identitarian rubbish isn’t inflicted on the kids in this mindless manner.

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

Good Guys with Guns?

A week ago I was asked to comment on an announcement by the Governor of New Mexico who, reacting to a terrifying rise in gun violence in Albuquerque, issued an executive order that would suspend both open and concealed carry laws in Albuquerque and Bernalillo County, temporarily banning the carrying of guns on public property with certain exceptions. Following quite a bit of backlash from both parties, the Governor then limited the ban to parks and playgrounds.

Because this is not my area of expertise/publication, I quickly consulted with my colleague Prof. Jennifer Carlson, who is one of the nation’s most impressive experts on gun policy. Jennifer agreed with me that, even though the Governor’s action makes sense from both moral and practical stand point, it is not constitutionally defensible, certainly not in this judicial climate, after the Supreme Court’s recent decision in Bruen. Still, it’s worth asking ourselves the question whether, even if the constitution allows us to bear arms, it is a good idea to go ahead and do it.

Recently, the Bureau of Alcohol, Tobacco, Firearms and Explosives released a report on guns, which you can read here in its entirety. This NPR story provides some important takeaways which, in my opinion, all boil down to the same conclusion: anyone thinking that the world of gun ownership can be easily dichotomized into good guys/bad guys or legal/illegal guns is not seeing the full picture.

For one thing, it turns out that more than half of gun crimes utilize lawfully purchased guns. To this number, we must add a million stolen guns which were held in legal hands until recently. Notably, the vast majority of guns used for criminal activity are pistols, which a lot of people favor for legal personal use. I think the big question anyone considering a gun purchase should ask themselves is: are the chances that you’ll be using this gun to stop the proverbial bad guy anywhere near the chances of an accident in your household or your gun being stolen?

On a personal note, as many readers know, I was in the Israeli army for five years, engaging in no combat whatsoever (unless criminal appellate litigation counts, but it does not require guns.) For much, albeit not all, of that period, I walked everywhere with my M-16 strapped to my body, including to the bathroom. The idea of lugging around a thing that presented far more inconvenience and risk than comfort and safety holds no charm or mystique for me, and I suspect that, if the symbolic/emotional attachment to the idea of gun ownership is effectively stripped away, a lot more people will see the risk calculus as I do–because it is in congruence with the data.

Self-Compassion for Disillusioned Activists

In the sixties, Todd Gitlin, then a young, passionate student, became involved in the fight against the Vietnam war and in the struggle for equality. Alongside his friends at Students for a Democratic society (he was the president in 1963-1964) he agitated, organized, protested, held movements, registered people to vote in the Deep South, and fought against orthodoxy in the Democratic party and for a New Left. Many years later, already a sociology professor and incisive critic of the movement he helped create, he evocatively wrote about how much activism had meant to him. The first half of his masterpiece The Sixties reads like a manifesto of hope; the second half, though, is rife with confusion. Plans for political action got muddled with self expression and individuality a-la diggers and the Mime Troupe (to read a different perspective on those, read Peter Coyote’s fantastic memoir Sleeping Where I Fall); people he admired and respected as leaders disappointed at best and disintegrated at worst; former comrades slid further and further to the left, established the Weather Report, and engaged in clumsy but frightening violent actions Gitlin could not condone or comprehend (learn more about those in the podcast Mother Country Radicals). Gitlin’s later books reveal an author and thinker who still very much believes in the ideals of socialism and peace, but resents the splintering and performativity of identity politics that he believes shattered the movement in the 1970s.

Today I found myself going back to one of my favorite books by Gitlin, Letters to a Young Activist, which evokes that deep ambivalence and wisdom that comes only from spending years in a movement you both admire and fiercely critique. Gitlin talks about the importance of passionate motivation but also reminds young activists not to “think with their blood”; highlights the crucial role of shining a light on the wrongs of your own side, but also the importance of letting self-flagellation by the wayside; and warns against the dangers of “marching on the English department”, as it were, while one’s opponents “march on Washington.”

What brought me back to Gitlin were a number of recent conversations with younger folks I like and admire a lot about their disillusionment with infighting and lack of integrity in radical movements and organizations with noble goals and true dedication. People admired and respected in positions of leadership turn out to behave in disappointing ways; serious issues get buried or, on the opposite end of the spectrum, debated to death, complete with public denunciations and humiliations; minute complaints turn into struggle sessions that sap everyone’s will to come back; and eventually people come to demonize their comrades and brothers in arms more than they do the bad guys they are fighting against.

Hearing about this stuff is always heartbreaking, especially when I see folks who I know put in countless, tireless, thankless energy, time and effort into organizing and activism express disillusionment and despair. I can offer very little solace in this sort of situation; dealing with big disappointment as an idealist is really hard, and calls for more than one self-compassion break.

Kristin Neff, who has written and spoken extensively about self compassion and mindfulness, offers a three-step formula for anyone who is struggling. The first step is to admit that this is, indeed, a moment of suffering, a low point in the person’s life. The second, which I’ll elaborate more on in a bit, is understanding that suffering is universal, a part of life, and that everyone suffers–sometimes intensely–from time to time. And the third is offering oneself some kindness, either through expressing it or through a gentle hand touching one’s own heart.

I like this exercise a lot, and find the second step especially important, because as Brené Brown explains, one of the traps of shame and self-pity (by contrast to self compassion) is to see one’s experience as unique and idiosyncratic. I see a lot of this horror in young, committed activists, who are so distraught by occurrences in their group or community that they believe it must be prey to some special variety of pathology. This is where I can offer some comfort. As regular readers know, I’ve written and spoken quite a bit about the sixties, and part of my work on Yesterday’s Monsters included learning about cults and movements that swirled around the California counterculture when Manson put together his “family.” When the murders occurred, and when Manson and his followers were identified as the culprits, they evoked a wave of horror because cults and their inner workings were not well known or understood at the time. Indeed, the idea of thought control and brainwashing was associated at the time only with Communist regimes such as China and Korea (see an example of this in The Manchurian Candidate.)

But while this group stood out in the heinousness of their crimes, they were by no means the only group led by charismatic leaders and/or a vision to be plagued by exploitation, violence, and oppression. In the mid-seventies, the California legislature held a hearing for family members of young adults who had joined cults, hearing testimony after testimony about how their loved ones fell in thrall to some charismatic leader or other, started believing some stranger things, dramatically changed their appearance or habits, isolated from them to the point of estrangement, and gave all their effort and resources to the cult. Witnesses testified about the Moonies and about a variety of Christian apocalyptic cults. The legislators at the hearing tiptoed between expressing deep concern and sympathy and reminding everyone that cult members were adults with the freedom of religion and expression.

To this day, whenever I see people criticize radical activist movements that fall prey to unsavory activity and conflict, the demonizing language compares the movement to a cult. This is not a scientific or easy process, because cults turn out to be quite a malleable category. But one need not go into the reeds to identify pathological cultish elements in pretty much every activist movement, including influential and notable ones. Three years ago I wrote a post about this stuff that identified a lot of the obvious issues: betrayals of the cause, identitarian splintering, sexual exploitation or perceived exploitation, financial malfeasance, etc. Having read a lot about movements in the 1960s and 1970s, I see situations where the FBI were infiltrating and persecuting organizations and cells and eventually didn’t have to do anything to hasten their demise: these outfits crumbled on their own, without the malignant interference of the feds, because they suffered from these inherent issues. Stanley Nelson’s fantastic documentary about the Black Panthers is a case in point: there’s nothing the FBI could have done to dissolve the Panthers that Huey Newton didn’t do himself. Larry Kramer’s acerbic account of ACT UP in The Normal Heart shows the awful indifference and demonization the activists were working against, but also how they sabotaged themselves through horrendous infighting. I see this stuff again and again.

Here are some factors–and this is by no means an exhaustive list–that are part of this malignant cocktail. Oftentimes, radical organizing draws people who seek the type of camaraderie and belonging that membership in a close-knit group of likeminded people working for an important cause can provide. Some young folks get swept in this energy because home life is rife with trauma or neglect, or because their school or employment networks haven’t improved their lot socially. I’m not saying their commitment to the goal is not genuine; all I’m saying is that excitement about a common vision is infectious and promises an embrace that is very difficult to resist if one feels lonely or traumatized. The fact that a lot of radical movements strive toward ideological purity is also part of this. It isolated people and drives them further into the insular experience of the group, with no reality checks and balances on the outside. I’ve spoken to mixed-race couples that broke up on account of a commitment to racial justice that was so strong that it eclipsed years of love and commitment. I know of people who took the Liberation Pledge (not to eat where animals are served) and ended up unable to eat with anyone from their family or friend group outside vegan movements. Not only does this mean all of one’s social efforts are invested in a relatively small group of people, but that group ends up being an echo chamber and it’s very difficult to test ideas in the real world. And moreover, anytime purity and adherence to principles are the yardstick for worthiness, people turn on each other and compete over who is a more zealous advocate for social change. This process of eating each other seems to accelerate as shit starts hitting the fan, because people who are afraid and fighting for their own survival are sure to lash out at the people standing closest to them.

The fact that crappy things are happening to committed activists throughout the social justice field is not cause for cheer, but I think that anyone who thinks their organization is uniquely pathological might derive some comfort from knowing that, apparently, homo sapiens seems to find a way to ruin communities centered on ideals and struggles pretty much all the time. I don’t think we’ve found a way to organize and seek social change that doesn’t end up marred in these kinds of self destructive crap. I wish we could, but I’m in my late forties, have organized and agitated plenty, and I’m just not seeing it. The one that came closest to being a healthy organizing container, for me, was the #StopSanQuentinOutbreak coalition; it wasn’t without its warts, but it was highly effective and overall a really positive, supportive environment. I suspect the magic had something to do with the fact that, in addition to the long-term decarceration vision, we had tangible, short-term emergency goals, and thus no time for faffing. Perhaps human nature, like nature in general, abhors a vacuum, and will fill any available space with infighting and oneupmanship.

I don’t know what the answer is. But I do think that understanding we’re talking about universal phenomena that radical movements go through can be helpful to people who think they’re stuck in a uniquely dysfunctional scenario. Every unhappy family, as Tolstoy famously wrote, is unhappy in its own unique way, but they are still all unhappy. And that means that any person who believes in an ideal, a vision, a blueprint for far-reaching social change, and is committed enough to put a lot of work into it, will experience heartbreak from time to time. If this is you now, then it’s simply your turn. Offer yourself all the kindness you need to get through the rough patch, and then see if there’s another path for you to change the world or bring about your values in a way that supports your heart better.

Georgia Indictment Calls Trump & Co. What They Are: A Criminal Organization

One more indictment! This time, it comes from Fulton County, Georgia, where Trump tried to bulldoze the Secretary of State into “finding” him enough votes to win. Eighteen additional friends (and 30 unnamed co-conspirators, probably anonymized to entice them to flip on the named defendants as in the recent federal indictment) come aboard for the ride with RICO violations and a conspiracy. Read the indictment in full here.

This is a lengthy indictment, containing 41 charges, the first of which is a violation of the Georgia RICO Act, which requires that the defendants “while associated with an enterprise, unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, such enterprise through pattern of racketeering activity.” Beyond the strategic value of using the RICO Act as a framework for the conspiracy (it is easier to prove than its federal equivalent, and it encompasses a lot of the remaining charges, thus helping create a streamlined narrative), there’s something symbolic about relying on a statutory machine birthed for the purpose of bringing down crime organizations, which, come to think of it, is exactly what this enterprise was.

One’s gotta love the simplicity of the opening paragraph:

Defendant Donald John Trump lost the United States presidential election held on November 3, 2020. One of the states he lost was Georgia. Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined conspiracy to unlawfully change the outcome of the election in favor of Trump. That conspiracy contained common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and in other states.

After defining the relationship between the defendants and their co-conspirators as an “enterprise,” the indictment continues its on-the-nose organized crime reference by listing the “manner and methods of the enterprise”: holding hearings in which they issued false statements about the election results, repeating these falsehoods to various office holders in Georgia, convening a fake slate of electors (complete with forged documentation–as part of the Eastman-Chesebro scheme), false accusations of election workers, stealing data, soliciting the assistance of Pence and the DOJ to bring about the reversal of fortune in Georgia and, of course, the inevitable coverup, including perjury.

As per RICO requirements, the indictment then lists 161 racketeering acts, breaking the aforementioned modus operandi into discrete events. These are a real eye opener even for those of you who were following the events in real time. At the time, I was under the impression that the Trump phone call to Georgia Secretary of State Brad Raffensperger was the coup de grâce of the whole thing, and I don’t think that was far from the truth, particularly if you listen to the whole thing:

I remember listening only to the critical bit, in which Trump bullies and threatens Raffensperger, but in the full recording you can hear his usual tactics: bombard the listeners with facts that sort of sound valid but are completely false, and revert to insults, etc., when that doesn’t yield immediate submission.

Thing is, reading each of the additional acts fleshes out a story of brutal, systematic intimidation, complete with utter disregard for the safety of election workers who simply did their job and were rewarded with death threats. The remaining 40 charges are of more particular crimes: forgeries, impersonations, threats against public office holders, etc. The emerging picture is well worth the criminal enterprise framing; this indictment, even more than the federal ones, calls Trump and his lackeys what they are.

Yet Another Trump Indictment Explainer

It’s a surreal experience to read the new Trump indictment, which you can find here verbatim with NYT annotations, while in Israel – it reads disturbingly prophetic about other parts of the world. It’s also been deeply unpleasant to relive the events from last year, as they are narrated chronologically and concisely (rather than revealed daily through the news cycle.) I just spoke about this with the one and only Mitch Jeserich on KPFA and here’s a link to the show. Here are some of the basics.


The indictment consists of four counts, all of which are based on the same factual basis:

  1. Conspiracy to Defraud the United States, which requires proving that (a) two or more people (b) conspire to commit an offense against or defraud the United States and (c) at least one of them commits an act to further the conspiracy (5yrs max and/or a fine);
  2. Conspiracy to Obstruct Justice, which requires proving that (a) two or more people (b) conspire to obstruct justice [see below] and (c) at least one of them commits an act to further the conspiracy (sentence is the same as for obstruction, a 3yr exposure);
  3. Obstruction or Attempted Obstruction of Justice, which requires proving that the defendant (a) knowingly (b) use intimidation/threats/corruption to (c) persuade or attempt to persuade another person to (d) change documents or withhold records needed for an official proceeding, or, which is more directly applicable here, that the defendant (a) corruptly (b) obstruct, influence, or impede, (c) an official proceeding (3yr exposure); and
  4. Conspiracy Against Rights, which requires proving that (a) two or more persons (b) conspire to injure, oppress, threaten, or intimidate any person (c) in the free exercise or enjoyment of any right or privilege [in this case, the right to vote.]


Only Trump is listed by name in the indictment, with six other co-conspirators referenced by numbers. The purpose is, likely, to leave the door open for any of them to decide to testify against Trump before they are named and officially charged. Five of the co-conspirators are fairly easy to identify based on the information we already have about the 2020 election putsch: Co-conspirator 1 is Rudy Giuliani, Trump’s right-hand and spreader-par-excellence of manufactured election fraud conspiracies; co-conspirator 2 is John Eastman, the spirit behind the effort to puppeteer Pence, VP and President of the Senate, into subverting his ceremonial role by refusing to certify the electors for Biden and certifying fake electors for Trump in their stead; co-conspirator 3 is Sidney Powell, disgraced attorney who tried (and lost) Trump’s baseless election cases; co-conspirator 4 is Jeffrey Clark, Trump’s man in the Department of Justice who met with Trump behind his bosses’ back to further the conspiracies even they would not back and tried to fire his own boss; co-conspirator 5 is likely Kenneth Chesebro, the mind behind the fake electors’ scheme and the operator filing sham legal proceedings so as to swindle the fake electors into agreeing to participate in the scam; I’m unclear on who the sixth co-conspirator can be, and it looks like mainstream media commentators are also unsure. This person, who is described as a “political consultant,” was behind some of the memos that crafted the language submitted to the fake electors.

What They Did

The story of what happened before January 6th was eclipsed by the violent putsch that follows, which is why you can be forgiven for forgetting the details (they were also doled out chaotically and serially while the events were happening.) Reading the indictment brought the story and the characters back into clear focus, and here’s a simple (hopefully not oversimplified) chronology.

The way the U.S. presidential election works is this: each state has its own regulations for figuring out the popular vote.

This means that, when challenging presidential election results, candidates have to interact with state bureaucracies and pursue litigation in the different states attacking the integrity of the election. The indictment does not attack all of Trump’s litigation challenges which, while frivolous (32 submitted, 0 won) were not unlawful. It focuses on illegitimate pressures and threats that Trump & Co. placed upon various state bureaucrats, most famously in Georgia (the “find me enough votes” threat emitted to the Georgia Secretary of State, now the focus of a state criminal investigation that might ensnare Trump in more criminal proceedings.) Trump’s incessant harassment of state bureaucrats–most of them loyal to Trump, people who worked for his campaign and hoped he would win but did not go as far as to throw the election his way–consisted of banding around (and repeating) false theories of fraud (which Giuliani and others parroted around social media), consistently ignoring the refutations of state officials, lying to them about supposed evidence that backed up the conspiracy theories, threatening them with criminal charges or political consequences, and repeatedly pestering them to deliver results in the face of no factual support for fraud claims.

Severe as these behaviors were, the heart of the indictment has to do with how Trump and his co-conspirators attempted to manipulate the electoral college process to thwart the popular vote. This NPR story, published during Trump’s scheming but before January 6th, offers a good primer to how states select their electors. In short, there are 538 electors, one for each U.S. senator and U.S. representative, plus three for Washington, D.C. Electors are selected by the state, usually from lists made by state parties. In 32 states and D.C., electors must vote for the candidate the party has nominated, and the Supreme Court has found that laws that bind electors to the outcome of the popular vote are constitutional. The list of electors by party is certified at the state level and then sent, through a special verification process, to the senate, where it is ceremonially certified by the Vice President. The electors then cast their votes–if a candidate won by majority, he or she receives all the electoral votes–and thus the presidential election is decided (watch this video of how the electors announce their vote casting.)

Trump’s conspiracy targeted this process. [Probably] John Eastman and [probably] Kenneth Chesebro concocted a legal theory according to which the Vice President, who is also the President of the Senate, holds an authority over the electoral process that goes beyond his purely ceremonial role of certifying the electors. According to their theory, Mike Pence could simply refuse to certify the electors’ votes, opting instead to certify votes by a slate of alternative electors casting their votes for Trump. To make this theory into reality, they reached out to prospective electors to persuade them to participate in this scheme. Some refused to have anything to do with it, and many others expressed doubts about the legality of this plan. To mollify and assuage them, the co-conspirators lied to some of the alternative electors in some of the states, telling them that their votes for Trump would only be used in the event that litigation produces evidence of election fraud. For verisimilitude of these false claims, Trump’s operatives–Giuliani, Powell, and their lackeys–actually filed frivolous cases in the seven states in which this plan was pursued, persuading the so-called alternative electors that things were being set in motion that could result in their votes counting (the plan was to push forward these fictitious votes regardless of the lawsuits.) In some cases, the co-conspirators (notably, Chesebro) crafted the fallacious elector certificates themselves. The co-conspirators tried to push these slates of electors onto the Vice President’s staff, in some cases with the staff members declining to receive them on his behalf.

Pence also had to be convinced to go along with this scheme, and so, Trump et al. conducted numerous meetings with Pence, putting direct pressure on him to participate in the face of his repeated declarations that he did not believe he had the authority to thwart the popular vote. Trump’s choice of words at these meetings matters: he threatened Pence to publicly criticize him for his refusal to participate in the plan (this rebuke reverberating in the social networks during the ramp-up toward January 6) and included only certain people at the meetings (notably, not the White House Counsel, who repeatedly stated that the plan was not legitimate.) Trump also used Jeff Clark to pressure his superiors at the Justice Department (notably, Jeffrey Rosen, then the Acting Attorney General) to go along with the electoral thwarting plan. You can find more information about the near-catastrophe in the Justice Department in this Washington Post piece. Essentially, if Rosen et al. were not going to go with the fraudulent electoral votes, Trump would fire them and place Jeff Clark atop the Justice Department; he backed down from this plan only when told by White House counsel that mass resignations would ensue.

Even though the indictment does not tackle Trump’s role in inciting the Jan. 6 putsch, it does tie those events to the charged offenses. While engaging in the machinations required for the fraudulent electoral plan, Trump continuously manufactured public belief in the integrity of the plan by tweeting about it to his fans and stoking their anger toward Pence and others who would not play ball. This was the trigger for the Jan 6 gathering, which Trump initiated, and the hook for the insurgents’ rage.

Criminal Behavior vs. Atrocious Behavior that Isn’t Criminal

The indictment seeks to provide clarity on what parts of Trump’s behavior surrounding the elections were and were not criminal. Much of his truly atrocious behavior, such as the lies he massively and systematically spread about the legality of the election, were the epitome of maliciousness and political irresponsibility, but according to the indictment do not constitute criminal offenses, as they fall under the umbrella of free speech: Trump had “a right, like any American. . . to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” He also had a right–which he used, by engaging in frivolous litigation–to use legitimate means to challenge the results of the election. The indictment distinguishes these behaviors from the unlawful steps Trump and his co-conspirators undertook to change the results of the election–namely, threats, pressure, and efforts to bring about a fictitious and delusional legal process by which Pence, singlehandedly, would discount the votes of American citizens and instead would hand the decisionmaking process to fake electors.

This distinction might be clear to me and you, but I decided to take a trip through the looking glass and read up on Fox News to see what Jonathan Turley and Andy McCarthy are peddling. Out of all the drivel in that story (political witchhunt yada yada) the least preposterous proposition comes from Andy McCarthy, who has this to say about the fake electors theory: “[I]n this country, what we do with frivolous legal theories is we figure that the jury system will take care of it or the political system will. We don’t criminalize them. And that’s what this indictment attempts to do.” In other words, McCarthy seems to bundle John Eastman and Ken Chesebro’s fake electors plan with the legitimate efforts to reverse the course of the election: rather than a malicious, fictitious scheme to wrest the election results from the hands of the electorate, this was merely a legal theory–and don’t all legal theories stand a chance? The answer the indictment provides is this: there’s a difference between submitting to a court the possibility that the Dominion machines were flawed or that people who shouldn’t vote did (nonexistent folks, nonresidents, noncitizens, dead people), all of which are legitimate challenges to the election whether they succeed or (as in this case) fail, and submitting a proceeding according to which it is, on this planet, totally fine to substitute actual votes for imaginary ones and then threaten, pressure, and push people to pretend that the imaginary votes are real. At least McCarthy admits the theory was “frivolous”; even a broken clock shows the right time twice a day.

The Mental Element (Mens Rea)

All the charges pursued in the indictment require a fairly high degree of intent: conspiracy calls for intent to further the aims of the conspiracy itself, and obstruction of justice requires general intent. For our purposes, a criminal conviction here could result only if a jury agrees that Trump actually knew that the false fraud theories he was peddling on social media and threatening state secretaries to accept were, indeed, false. The indictment spends a long time elaborating how we know that Trump was lying, rather than delusional. I’m not sure the distinction is as clear to me as it is to them. We’re clearly talking about someone with serious delusions of grandeur, and I think that serial liars and psychopaths are successful in what they do because, on some level, they believe the lies they tell. I wonder whether the defense theory here will be that the lies were actually true (this is not a winning proposition in court, but they might luck out with some Trumper jurors) or that Trump thought they were true (which is also going to be tough to prove, given the multiple sources, including people close to him and credible to him, who repeatedly tried to disabuse him of these notions.) I’m betting his ego will not let him claim any sort of mental deficiency or clinical delusion.

What This Portends for 2024

Dan Rather (whose newsletter Steady is always a worthy read) wrote today:

Today marks a reckoning, but it’s far from a resolution. The danger Trump and his legions of MAGA supporters pose remains very present, very real, and very dire. The polls indicate this con man, divisive charlatan, and wrecking ball to the rule of law is running away with the Republican nomination for the presidency. And he looks, at this point, despite everything, to be competitive with President Biden. He could be reelected.

The more scrutiny he receives, the more evidence of his unfitness for office is laid out publicly, the more his stalwarts rally behind him. Trump has no coherent or persuasive rejoinders to the numerous charges he faces. He instinctively relies on his overused playbook of lies, divisiveness, and dystopian rhetoric. It’s all he’s got. Nevertheless, his crowds roar their delight without hesitation. 

This is certainly true with respect to the Fox News commentators whose takes I read this morning, and I’m sure the talking points were set long ago. Nothing will persuade the truly faithful. A lot of what will happens here depends on timing. Should Trump be able to run and, perhaps, get elected, all this effort will come to naught, and if, Goddess forbid, I were on the defense team, my number one mission would be to file for continuances upon continuances. It’s not likely that there will be immediate movement on this in a criminal courtroom anytime soon. The voir dire will be absolute hell and the media coverage will be ridiculous.

The Horrid, and 100% Foreseeable, Aftermath of Judge Persky’s Recall

It is the nature of character assassination scandals, and a consequence of their frequency, that after a while they are forgotten by all except the people whose lives were destroyed by them. Such was the fate of Michelle Dauber’s cruel and idiotic crusade against Judge Aaron Persky in the aftermath of the Brock Turner scandal, which swept a lot of ill-informed progressive punitives with pitchforks and led to the destruction of his judicial career (and later, the destruction of his livelihood as a tennis coach.)

For all the shrill shrieking about “privilege”, pretty much every criminal justice academic I respect in the Bay Area warned at the time that recalling judges for lenient sentencing (especially, as in this case, following the probation recommendation) would make punishment harsher and much worse for everyone–especially for people who looked and lived nothing like Brock Turner. I was one of the first signatories and vividly remember shouting this from the rooftops, as well as seeing it as part of an appalling pattern of the left eating its own with no rhyme or reason.

As everyone worth their salt predicted, the recall did have an effect on criminal punishment in Santa Clara county: it made it harsher. As my colleagues Sanford Gordon and Sidak Yntiso found:

Using disposition data from six California counties and arrest records for a subset of defendants, we find a large, discontinuous increase in sentencing severity associated with the recall campaign’s announcement. Additional tests suggest that the observed shift may be attributed to changes in judicial preferences over sentencing and not strategic adjustment by prosecutors. We also demonstrate that the heterogeneous effects of the announcement did not mitigate preexisting racial disparities. Our findings are the first to document the incentive effects of recall and suggest that targeted political campaigns may have far-reaching, unintended consequences.

Sanford C. Gordon and Sidak Yntiso, Incentive Effects of Recall Elections: Evidence from Criminal Sentencing in California Courts, The Journal of Politics 84:4 (2022), 1947-1962

In other words: the fearless, plucky lefties who led this hysterical campaign can take pride in the fact that their relentless persecution of Persky empowered and enhanced carceral repression across the board, not necessarily making a dent in prevention/accountability for sex crimes, and harming precisely the people without “privilege” that they presumably sought to protect with this destructive campaign.

Why am I revisiting this? For two reasons. First, because I don’t want us to forget that these sorts of actions have consequences. I know that many on the left are already sickened by years of ugly, disastrous infighting. As Freddie DeBoer recently wrote:

I certainly would not say that the age of canceling is over. There will be public scandals to come; people will suffer major career and social consequences because of public anger. Sometimes they’ll deserve it. And maybe this is just a lull and the same old songs will get sung again and again.

But at this stage I find it hard to deny that the sense of palpable fear so many operated under, the feeling that the prosecutors held all the cards, appears to be in terminal decline. People just aren’t afraid in the same way anymore. The mob doesn’t have the momentum. The big bad wolf has lost his teeth. I suspect this is for a few key reasons – the fact that all of that endless raging did precisely nothing to make the world more just, for one. The growing understanding that the human species is flawed by nature and that no one can match those standards, for another. But mostly, I think it’s the dynamic I’ve been predicting for a long time: you can only bang the gong so many times. Everybody’s receptors all got blown out. Outrage is a finite resource. People can’t maintain permanent offense forever. Most of us can’t, anyway. You can only tense a muscle for so long.

Thing is, while we are tiring of the phenomenon, the people whose lives and reputations were laid to waste are going to have to live with the consequences of these witch hunts for a long time. Judge Persky, I think of you and am so sorry for the horror that you went through.

The second reason is that an excellent, short documentary about the poisonous effect of the recall campaign is out, and until September you can watch The Recall: Reframed for free:

How Machine Learning Improves Parole Research

Rabbi Levi son of Rabbi says…The Holy One said to Moshe “You will make a menorah of pure gold” (Shemot 25:31).

Moshe responded: how will we make it?

God responded: “It will be made of hammered work” (Shemot 25:31).

But Moshe struggled and went down and forgot how to make it.

He went up again and said: My Master, how do we make it? God said: “It will be made of hammered work” (Shemot 25:31).

But Moshe struggled and went down and forgot.

He went back up and said: My Master, I forgot it!

God showed Moshe, and Moshe still struggled. God said to him: “See and create” (Shemot 25:40), and took a menorah of fire and showed him how it was made.

But, it was still a struggle for Moshe!

The Holy One said to Moshe: Go to Betzalel, and he will make it.

Moshe told Betzalel, and he immediately made it. Moshe was amazed and said: How many times did the Holy One show me, and I still struggled to make it! But you, who never saw it, knew how to make it by yourself!

BaMidbar Rabah 15

One of the professional events I most look forward to each spring is the Virtual Workshop on Contemporary Parole–a fantastic two-day online gathering of a rigorous group of people producing exceptional work, which we’ve now held for the third year in a row. The papers are always superb and so is the camaraderie and commentary. I got to present a draft version of my new Sirhan Sirhan paper, as well as hear really terrific work on various aspects of parole: gang validation, racial proxies, young adulthood, and others. I can’t go into too much detail, because these are all works in progress and we’ll probably see polished versions of everything getting published soon enough. But one thing that stood out to me was the uptick in really interesting work utilizing machine learning.

I know next to nothing about machine learning and, like Moshe in the midrash above, I might be too old a dog to learn that particular trick. I mean, in the Sirhan paper, n=1. Thing is, the midrash really resonates with me because I, too, feel a lot like Moshe when I hear someone else talk about a fantastic skill they have and how they put it to good use. It looks like, despite God’s repeated tutorials, Moshe’s goldsmithing skills weren’t up to snuff. Thankfully, there were other Israelites with that particular skillset: Betzalel was a gifted goldsmith who made a spectacular menorah on the first try (this is why Israel’s fantastic art school is named after him.) While unable to emulate Betzalel’s feat, Moshe had acquired a basic understanding of the necessary artistry and workmanship, so he could appreciate why Betzalel’s finished product was of such high quality. In other words–I don’t employ machine learning in my own work, but I know enough about it to be amazed when I read a paper that uses it well.

To understand the promise of machine learning, let’s first talk about how we do parole research the old-skool way. A multivariate regression works much like the denouement in an Agatha Christie mystery novel. You know the drill: Poirot gathers all the usual suspects in a room and goes through a litany of their motivations, opportunities, debunked alibis, you name it. He eliminates them one by one until he can point to the culprits. The important point is that Poirot selects who goes into the parlor for that last scene: people get there by invitation, and Christie is careful to craft the scene so that it’s pretty much always a finite and manageable list of people. When I run a regression, I pretty much do the same: I think about the dependent variable–the phenomenon I’m trying to explain–and I try to come up with a list of the independent variables that might explain it. For example, if my determinate variable is a parole grant, I ask myself: Do people who are represented by a private attorney do better than people who are represented by a panel attorney? Do people whose hearings happen in the morning fare better than folks who are heard in the afternoon? If victims and/or prosecutors show up for the hearing, does that make a difference? Does the professional background of the commissioners matter? Do people in some prisons stand a better chance of being granted parole? You can tell that each of these assumptions has a certain logic behind it (you get what you pay for; people are more attentive and in a better mood when they are not tired or hungry; professional background goes into constructing people’s worldviews; some prisons have better rehabilitative offerings than others, which improves one’s case.) I put all of these “suspects” in a room (the regression equation,) run the numbers, and see which comes out significant.

One of the problems with this model is that regression models rarely offer a complete and exhaustive prediction of the phenomenon they try to predict. There is even a statistic, the r-square, that measures how much of the dependent variable is explained by the set of independent variables we coded for. But there could be many factors that play into a parole grant that cannot be adequately captured by the variables we identified. In other words, 21st century law enforcement doesn’t solve crime by putting twelve people in a parlor; if there is forensic evidence at the scene, it gets analyzed, plonked into giant databases, and could generate hits that are one-in-a-million, not one in twelve.

Enter machine learning. As we’re all now figuring out through our use of ChatGPT, artificial intelligence excels at digesting large amounts of text, identifying repetitive patterns, and throwing those patterns into a model. AI is intertextual in that it can assess the impact of any factor in the database on any other factor. As my colleague Kristen Bell and others explain in this paper, this allows the tool to mine parole transcripts for repeated words to get a sense of factors that would not be salient to us in a traditional regression. Moreover, the capacity of these tools is enormous, so one can feed the machine tens of thousands of cases and get a very powerful sense of what is going on. There are even tools like SuperLearner, which can apply multiple machine learning tools to a dataset, coming up with the best of several models. My colleagues Ryan Copus and Hannah Laqueur do exactly this.

Machine learning has many applications in criminal justice, as this excellent NIJ article explains. The critiques that are leveled on machine learning often revolve around its most common criminal justice use: predicting reoffending risk. As explained in this solid blog post, critics worry that any predictive analysis based on historical crime data will reflect (and thus reinforce) existing biases embedded in the criminal justice system, and perpetuate misconceptions and fears through the feedback loop of basic predictions on past decisionmaking. In other words, as my colleague Sandy Mayson argues, the problem is with the nature of prediction itself. You rely on a biased past, you get a biased future.

What researchers like Bell, Copus, Laqueur and others contribute is the potential of turning the use of the predictive tool on itself and using it not to predict the risk of those subjective to the system, but rather the factors that impact the decisions that the system itself makes. For example, if private attorneys do a better job than state-funded panel attorneys, wouldn’t we want to know this, and wouldn’t it be important to figure out exactly what it is about their performance that makes the difference in the outcome? Using AI can help identify, for example, terminology used by lawyers, thus giving us a sense of the “flavor” of representation that parole candidates receive.

When done well, this technique has fantastic potential to teach us about the hidden nooks and crannies of the parole hearing machine that we would not be able to flag on our own. You don’t have to be an AI whiz to understand and appreciate machine learning research; you just have to understand what it does and appreciate its strengths and weaknesses.