Not the Chauvin Trial Commentary You Expect

We’re already being inundated with commentary about Derek Chauvin’s conviction and I don’t feel the need to add to the onslaught with too much, so I’ll just say this: Yes, I think this is the correct legal outcome. But I worry very much about the extent to which we are trying to achieve social, racial, and economic equality through criminal verdicts. I worry when people direct their outrage at charge dismissals and acquittals, because having read Frank Zimring’s When Police Kill, I know that waiting for deliverance through the courts is much more of a disappointment than systematic hiring and training changes. And I also worry when people direct their joy (sometimes in questionable ways) at convicting verdicts as the be-all, end-all of achieving justice. Getting to real equality requires the kind of boring financial redistribution of wealth work that doesn’t make headlines or attractive tweets to the extent that a high-profile conviction does. And we have a long way to go.

Do Some Rich People Think Democracy is Beneath Them?

In case the horrific damage Trump and Trumpism have done to our democracy was not obvious from the horrendous crimes in plain view of the last few days (or the last four years, including human rights crimes masquerading as policies) today we have evidence on the local level of how deeply the notion that democracy can be purchased and toyed with has resonated with some Silicon Valley dolts. Not that these people needed Trump’s encouragement to think of San Francisco as window dressing for their lives, and of all of us as “local color” providing a picturesque setting for their VC deals. But today really takes the cake with an idiotic fundraiser, organized by this guy, who seems to think that his claim to virtue–being ridiculously and ostentatiously rich in a city where other members of the human race have to starve, defecate, and die in the streets–is a proper substitute for actual criminal justice expertise.

This initiative comes in the heels of a horrific tragedy–a fatal car accident that claimed the lives of two women. The man behind the wheel, Troy McAlister, was intoxicated and driving a car he had stolen from a date. Because Chesa Boudin ran on a progressive prosecutor platform, the focus is on prosecutorial missteps that led to McAlister being free: before this recent crime, he had been headed toward trial in late 2018 on two counts of second-degree robbery in connection with a 2015 holdup in a San Francisco store. Boudin’s office “referred these cases to parole because we believed there was a greater likelihood of him being held accountable and having the kind of intervention that would protect the public and break this cycle of recidivism.”

Since I know something about parole, I can explain that there are two ways in which people on parole end up back in prison: either they commit a new crime, for which they are prosecuted and tried (this can take months, if not years) or they commit a parole violation that lands them back in prison. Oftentimes, there’s an overlap. While some parole violations are technical and trivial, others amount to new crimes. It is not unreasonable to think that a parole violation route will be more efficient than a new prosecution, though things have somewhat changed in terms of the implications. Before the Schwarzenegger Administration’s parole reform, parole violators pretty much automatically ended back in prison, even for very minor violations–resulting in a prison population comprised of 50% of the people doing time not for new crimes, but for parole violations. The reform, aimed at alleviating the obscene 200% overcrowding in the system, aimed to give parole agents more discretion and a range of intermediary sanctions before throwing them back in the slammer, depending on discretion and on how severe the violation was and how risky the person was judged to be.

Like any situation involving risk prediction, when deciding whether to remand a person to CDCR or use an intermediary sanction, parole agents could be right or they could be making one of two types of mistakes. False negatives are situations when the person is assumed to not be much of a risk but then commits a new crime (such as McAlister). False positives are situations where a person is kept behind bars, mistakenly perceived as a release risk, when had they been released, they would not have committed a crime. Obviously, we only hear about false negatives, not false positives, because they appear to be penalty-free. But false positives also have a grave price. As of today, 133 people have died of COVID-19 behind bars. Most of those people were aging folks, who are largely assumed to have aged out of crime, and who would have posed no danger to the outside world had they been released (which would have saved their lives.) Their illnesses and death, in turn, resulted in infections, illnesses, and deaths in the communities surrounding the prison. It’s just that our society is not particularly inclined to value the harm and price paid by these people and their families as we value the lives on the outside. But any time we make a judgment call about risk, we might be making either mistake. And that means that some mistakes, which are horrible, and tragic, and senseless, and enraging, cannot be prevented. This is a horrible truth to live, but it doesn’t necessarily indicate that there’s something systemically wrong at the prosecutor’s office or at the parole agent’s office. It indicates that someone made a horrible mistake.

Moreover, our attention to particular instances of false negatives blur their overall context. Every fatal traffic accident that happens in San Francisco, of which there are dozens every year, leaves a deep wound of grief in its aftermath. Many of them are as preventable as this one. And the vast majority of them never make the news, because they don’t involve parolees, which is why we deal with them through initiatives such as Vision Zero, rather than through hatchet jobs against our elected officials.

So why are we making this horrific tragedy into a cause célèbre? Because there are political hatchets being forged, such as this “astroturf fundraiser” (as my friend Chris Johnson called it), about which there isn’t much to say that isn’t obvious. However, obscene wealth seems to make people impervious to the obvious, so here it is: It turns out that we have a magical and effective mechanism in the United States for holding prosecutors “accountable to the people.” It’s called voting. The people wanted a progressive prosecutor and, should they be displeased, they can elect someone else. Voting comes in pretty handy in procuring accountability, because it is available to people who have less money than Mr. Calacanis. The funny thing is that, throughout the last decades, because of aggressive fearmongering propaganda, voting regularly and reliably produced aggressive prosecutors who almost singlehandedly drove our mass incarceration crisis. Now, we’ve been through the 2008 financial crisis, and the Obama administration, and the horrors of Trump and a second recession, and the American public has apparently come to the conclusion that they are ill served by this sort of prosecutorial policy, and so they are choosing something else.

Mr. Calacanis knows this, of course. He and his ilk have been more than happy with this system as long as the hoi polloi reliably voted for the kind of prosecutors they like, but democracy doesn’t suit them quite to the same degree when the plebeians want social services, relief from cash bail, a wrongful convictions unit, and humane jails. So when he claims to speak for “the people,” he is not championing you and me–he’s championing his rich buddies, whose favorite pastime is to abuse and exploit California’s delicate democracy and treat it as a playground for their contemptible ideologies and ridiculous experimentation. This is not a particularly original move. Calacanis is merely following in the footsteps of several folks just like him, like the wealthy guy who gave us Marsy’s Law (which we have to blame for having so many old and sick people behind bars, denied parole in the face of COVID-19 for no logical reason) or the clown who wanted to split California into six states. It should also come as no surprise that these folks believe that investigative journalism, just like democracy, is something you simply buy with Silicon Valley money–even though we have excellent investigative journalists at the San Francisco Chronicle who are all over this story and are not for sale.

Look, I’m not an idiot. I know that politics-for-sale is festering throughout this great nation, and I cling to my youth in Israel, where that was not the case to this depraved degree, mostly for sentimental reasons. I know that the social democracy in the Old Country breathes no more, but its memory and ethos live on, and I have daily proof that even that faint memory works better than than the corrupt, unbridled capitalism of the U.S., in the form of people from my age cohort in Israel posting pictures of having received the vaccine I can only dream about. I remember being physically nauseated when I read the Mueller report, partly because it gave me a window into the lives of oligarchs who think nothing of buying caviar for $30,000. Mr. Calacanis and his buddies are obviously not as rich as their Russian counterparts (that must sting,) but they’re trying to play the same game. And it is universally loathsome, regardless of whether the perpetrators wear ostrich jackets or Patagonia fleece vests.

Carceral Permeability, “Pandemics of the Self” and “Pandemics of the Other”

If you told me before March 2020 that the entire state of California would be atwitter about two dinner parties at a fancy restaurant on two consecutive nights, I would be very surprised–and yet, here we all are, frothing at the mouth about precisely that. First, newspapers broke the story of Gavin Newsom’s large private gathering at the French Laundry in Yountville with friends, socialites, and lobbyists. Then, it turned out that San Francisco Mayor London Breed had some French Laundry of her own to air–she was there at a large gathering the following night.

The outrage and mockery was palpable. There are already two Onion pieces–this one and this one–but perhaps the very best was written by the Chron’s food critic, Soleil Ho. This masterpiece alone is worth my annual subscription to the Chron, and you should read it in its entirety, but for our purposes, here’s one of my favorite paragraphs:

You’re a good, safe person who believes in science, you think as you check your makeup in the mirror. Not like those troglodyte COVID deniers storming retail outlets, demanding to be let in without masks on, banging on glass doors and insisting that they’re important. These are the people the rules are for. You on the other hand know the rules so well — you are kind of in charge of explaining them, after all — that you know specifically, to the letter, why your situation is an exception to those rules.

A couple of days later, I realized why I had so profoundly enjoyed it, when I read John Witt’s new book American Contagions: Epidemics and the Law from Smallpox to COVID-19. Witt draws a useful distinction between “quaratinist” and “sanitationist” state approaches toward contagion and disease. Authoritarian states, he explains, adopt a quarantinist approach: they “exercise forceful controls over the bodies and lives of their subjects, locking down communities, neighborhoods, and cities and imposing broad quarantine orders, often backed by the military.” By contrast, “[a] sanitationist state employs liberal policies designed to eliminate environments that breed disease.” Witt sees the United States as an amalgam of both approaches:

On the spectrum from authoritarian quarantinism to liberal sanitationism, the United States has often occupied two positions at once: one approach for those with political clout, and another for everyone else. America has always been a divided state with a mixed tradition. For middle-class white people and elites, public health policy typically reflected liberal sanitationist values. The law has protected property rights for the wealthy and attended to the civil liberties of the powerful. At the nation’s borders, however, and for the disadvantaged and for most people of color, the United States has more often been authoritarian and quarantinist. American law has regularly displayed a combination of neglect and contempt toward the health of the powerless. But that is not all. Epidemics make visible the ways in which even the ostensibly neutral and libertarian rules of American social life contain the compounded form of discriminations and inequities, both old and new. The most basic rules of American law—from the law of private property to the law of health insurance to the law of employment—structure the social experience of disease and infection.

John Witt, American Contagions, 11-12.

The French Laundry story epitomizes the sanitation/quarantine dichotomy. Yesterday, both Breed and Newsom took to twitter to admonish San Franciscans and Californians respectively to follow our new stay-at-home regime. The response from their constituents was everything you would expect–no one missed a chance to mock the duplicity, especially this business with its exceptional sense of sardonic humor–and I think it’s because Witt’s dichotomy strikes a chord of deep unfairness and inequality with everyone.

I confess that my ire at FrenchLaundryGate does not flow so much from the hypocrisy as from the ostentatiousness–there is something deeply offensive about luxuriating in excess when one’s constituents have no food and no roof over their heads. Certainly, the thought of more than twenty thousand people infected and 88 dead in state custody should have put our elected officials off their dinner. But beyond this, there’s an important point I want to make about prisons, contagion, permeability, and opportunity.

As I think I mentioned here, Chad Goerzen and I are working on a book about the COVID-19 prison catastrophe. Our analysis introduces a concept we call carceral permeability: the idea that prisons should be viewed, analyzed, studied, and managed with a deep understanding of their spatial embeddedness in the communities surrounding them. That prisons are permeable and their gates are porous should be obvious: various people (correctional officers, prison workers, volunteers, visitors, tourists), things (money, goods, factory raw material), and intangibles (tax money, critique) pass through the membrane on a daily basis. Some of these exchanges are rooted in the basic functions of prison as an institution and an economical unit; others vary based on transparency.

This, as we explain in the book, is obvious to carceral geographers, situational crime prevention criminologists, and epidemiologists, but not to politicians: Prisons are still governed and managed through a very literal (and very mistaken) understanding of Erving Goffman’s concept of the total institution. Politicians and the public–at least, not the parts of the public that come into contact with prisons through work or through loved ones inside–think about prison at the entry (police dramas) and exit (public safety risk) points, and at no time in between. This is precisely what underpins the philosophy of incapacitation, widely regarded since the 1980s as the most accessible goal of punishment: put people behind bars and they will not endanger the community. This perspective has led to prisons being praised by some as spaces that incapacitate dangerous people by keeping them away from “the outside” and critiqued by others as spaces that remove people from participation in civil society (temporarily or permanently, with severe racial and class disenfranchisement implications.)

The problem is that prisons don’t work like that. Every day, there’s an enormous amount of boundary crossing, dynamics, and mobility within prisons, between prisons, and between prisons and the surrounding communities. The potential for disease to freely enter and exit prisons was obvious long before germ theory was developed–disease transmission to the community worried John Howard in State of the Prisons, which was written in 1777.

How is this relevant to Witt’s thesis and the French Laundry brouhaha? Because it looks like policymakers’ understanding of transmissivity, pandemic management, and restrictions–sanitation versus quarantine–differs for people behind bars and for other people. This lack of imagination is not surprising given that prisons embody the epitome of quarantine. But it is, perhaps, surprising to learn, from Witt and from prison historians Ashley Rubin and Michael Meranze, that this was not always the case. In the late 18th century, Mississippi (like a number of other states) even made special provision for removing prisoners when disease broke out in jails.

Things seem to have changed around the time of the civil war, when prisons were in the process of deep transformation. Antebellum prisons included mostly white people. Gradually–partly as prisons supplanted slavery as the main regime of racial oppression–the approach toward contagion in prisons changed from sanitation to quarantine. Witt reports that, “[w]hen smallpox broke out in Washington, D.C., in 1862, the Medical Division of the Freedmen’s Bureau blamed freedpeople. Healthy and infected freedpeople alike were forced into crowded, unsanitary prisons and tented communities, where disease raced through the population.”

You know what this reminds me of? David Garland’s distinction, in The Culture of Control, between “criminologies of the self” and “criminologies of the other.” Mainstream criminology predominantly addresses ‘criminology of the other’, which considers criminals as intrinsically different from law-abiding citizens; it focuses on particular risk groups, such as immigrants, drug users or youths in deprived neighborhoods, which it presents as threats to the existing social order. The criminology of the other aims to produce theoretical, empirical and practical knowledge that will allow better control of risk groups or render them less harmful for the average citizen. In doing so, this criminology delivers expertise that further excludes and controls the poor and marginalized; it becomes a technology of social exclusion and thus significantly advances dualisation in society.

By contrast, ‘criminology of the self’ considers those who commit crime as normal people. The person who offends is one of us, someone who, because of circumstances, has ended up in a position that caused him to act illegally and to harm others. It could have happened to any citizen. The answer to the risk that any of “us” will commit crime is to manipulate the physical environment to create rational disincentives to commit crime.

Here’s where Garland and Witt meet: Sanitationism is an epidemiological response to “criminologies of the self.” We address people as rational, like ourselves, deserving of health as well as civil liberties, and we twist and turn to procure good will and buy in, reasoning with people as much as possible. Quarantinism, on the other hand, is an epidemiological response to “criminologies of the other.” We assume that people are irrational, dangerous, impossible to reason with, so we lock them up, contain them, and assume “we” (the outside community) are safer from “them” (the people behind bars) when we lock them up.

Everything we know about how prisons work, and how contagion works, explains why quarantinism is a losing strategy. I’ve been telling TV anchors and journalists for weeks now that we are far less endangered by a 60-year-old man with a chronic condition living quietly with his family in the community, as he is wont to do (people age out of crime in their 20s) than we are by the exact same man incubating a dangerous virus behind bars. Quarantinism is not only bad for epidemic containment: it’s produces other negative outcomes, too. It’s no coincidence that it’s so popular to refer to prisons themselves as “criminogenic.” Public health scholar Ernest Drucker wrote a whole book relying on this metaphor, but I bet most of the people who use it–for example, to suggest that prisons breed criminality–don’t even realize that they’re drawing an analogy between medical contagion and criminality.

So here we are now–applying quarantinism, the epidemiological equivalent of Garland’s “criminologies of the other” because of indifference to the plight of the people we “other” and because of our laziness in understanding that “they” are actually not at all separate from “us.” The question is: Can the public outrage about FrenchLaundryGate, which, when examined closely, is all about the hypocrisy of the sanitation/quarantine duality, will wake Gov. Newsom from the prison impermeability dream and help him and his staff wake up to the fact that “the carceral” is porous and that there is no “other”?

Políticas Penales y Penitenciarias en EEUU durante la Administración Trump: Rupturas y Continuidades

  • Hola Amigos Latinoamericanos y Centroamericanos, y otros amigos que hablan español. Hoy di una plática, via Zoom, a la Facultad de Derecho en la Universidad de Buenos Aires sobre las políticas penales durante la administración Trump. Se me ocurrió que quizás hay mas gente que habla español y se interesa en el tema, y por eso aquí están mis notas para la plática. En unos dias, publicaremos la plática entera en YouTube y la ubicaré aquí.
  • Antes de discutir la política de justicia penal de la administración Trump, es importante preparar el escenario con algunas características únicas del panorama penológico estadounidense.
  • Los EE. UU. son los campeones internacionales del encarcelamiento, pero no es un campeonato que nos da orgullo: tenemos cuatro porciento de la población mundial pero veintidós porciento de la población mundial de prisionerors! Los Estados Unidos tienen setecientos treinta y siete prisioneros por cien mil de populación. En dos mil diecisiete Argentina tuvo doscientos siete.
    • En dos mil siete, uno en cien personas en los EE. UU. estaba encarcelado.
    • Este encarcelamiento masivo trasciende los muros de la prisión: uno en 33 estaba bajo alguna forma de supervisión estatal, por ejemplo libertad condicional después de servir una sentencia en la cárcel.
    • Además, los riesgos de encarcelamiento no se distribuyen de manera uniforme entre la población y varían drásticamente según la raza, la clase y el género. Para hombres jóvenes Africanos-Americanos – uno en 3 estaba encarcelado (!!!)
  • Pero Estados Unidos es un país muy grande y existe una gran variación en el encarcelamiento dentro de él. Para comprender esto, es importante tener en cuenta que no solo tenemos un sistema de justicia penal: tenemos un sistema federal, cincuenta sistemas estatales independientes y numerosos tribunales indígenas independientes.
  • Para complicar aún más las cosas, incluso el sistema estatal es una generalización excesiva. Hay dos estructuras administrativas superpuestas: el nivel municipal y el nivel de condado.
    • La policía es municipal – cada ciudad, incluso los pueblos mas pequeños, tiene su propia forza policial. Tenemos dieciocho mil diferentes departamentos de policía.
    • En cambio, nuestros tribunales y fiscalias operan en el nivel del condado.
    • Tenemos prisiones estadales y carceles mas pequenas, que llamamos “jails”, en el nivel del condado. Esto es importante porque los costos del encarcelamiento corren a cargo de diferentes niveles administrativos. En otras palabras, las fiscalías y las cortes no tienen un incentivo financiero para reducir el encarcelamiento, porque los condados no pagan por el encarcelamiento. Mi colega Frank Zimring llama esto “el almuerzo gratis correccional.”
  • Otra consecuencia de la fragmentación de Estados Unidos es que los niveles penales y los “sabores” penales se ven muy diferentes en todo el país.
    • Por ejemplo, en California, donde yo vivo, las políticas penales son una combinación de leyes y de referendos publicos, resultando en un populismo penal que es especialmente sensible a las apelaciones punitivas en nombre de las víctimas de delitos. El resultado es una maquina gigantesca de encarcelamiento, incluyendo el corredor de muerte mas grandee en los EE. UU, y muchas sentencias muy largas. Un tercio de los presos en california está cumpliendo cadena perpetua, ya sea sin posibilidad de liberación o con una posibilidad muy lejana de liberación. Mi libro nuevo Yesterday’s Monsters es sobre esta populación.
    • El noreste es gobernado de una manera menos populista y mas elitista, y por eso las sentencias son menos punitivas.
    • El noroeste es aun menos punitivo. Muchas de las reformas que mejoraron la guerra contra las drogas comenzaron en el noroeste del Pacífico.
    • El sud tiene un legado trágico de racismo y esclavitud. Muchos de los problemas politicos que todavia son reflejados en las politicas penales en el sud originan desde antes de la Guerra Civil. Durante los años sesenta, la Corte Suprema introdujo algunos estándares de derechos civiles y debido proceso que corrigieron algunos de los peores aspectos de la justicia penal del Sur. Pero todavía las condiciones en muchas prisiones en el sur imitan las plantaciones anterior de la guerra.
    • La justicia penal en el suroeste se caracteriza por la hostilidad hacia los inmigrantes de Centroamérica. Muchos de los casos de drogas en el suroeste involucran pequeñas cantidades de marihuana contrabandeadas a través de la frontera. La política fronteriza también conduce a cierta corrupción policial que implica la confiscación de dinero y objetos.
  • A pesar de estas diferencias locales, existen algunas características comunes al panorama de la justicia penal estadounidense, y es posible que le recuerden bastante la situación en varios países de América Central y del Sur.
    • Ya hablé un poco del legado nacional de colonialismo y racism, pero es importante decir que no se limita al sur del pais. ésto se manifiesta de dos formas. Primero, la policía estadounidense tiende a operar de manera racializada, lo que significa más arrestos y hostigamientos en vecindarios donde viven minorías raciales. En segundo lugar, debido a un legado de privaciones y falta de oportunidades, las minorías raciales están sobrerrepresentadas en los delitos violentos, tanto como perpetradores como víctimas.
    • Otra caracteristica es la proliferación de armas legales e ilegales. En Argentina es necesario tener CLUSE para armas, y uno tiene que presentar una solicitud y aprobar exámenes de competencia de salud física y mental. En cambio, en las EE. UU. Es muy fácil comprar armas. Para muchas personas, el derecho constitucional a portar armas alcanza proporciones míticas, algo relacionadas con el legado de la justicia fronteriza.
    • Los EE. UU. Tienen una cultura policial de violencia, entrelazada con politicas de arrestos y registros por motivos raciales. Hay un problema especial con abuso de fuerza, especialmente con matanzas.
    • Además, hay un legado difícil de corrupción política (incluso a nivel estatal, local y del condado.)
  • La trayectoria de encarcelamiento Estadounidiense continuó aumentando hasta la crisis financiera de 2008, que transformó la justicia penal estadounidense de manera importante. Este fue el tema de mi primer libro, Cheap on Crime.
    • El desarrollo más importante fue la prominencia de un discurso fiscal, centrado en los ahorros de la justicia penal. Durante décadas hubo un callejón sin salida entre el apoyo conservador a la seguridad pública y el apoyo progresivo a la descarceración. El hecho de que la crisis hiciera que el encarcelamiento masivo fuera económicamente insostenible ayudó a salvar estas diferencias con ideas sobre la parsimonia que todos pudieran considerar. Estos cambios estaban en sintonía con las lógicas neoliberales, y voy a explicar de cual manera.
    • La dependencia del discurso del ahorro también permitió la formación de coaliciones bipartidistas entre progresistas que intentaban reducir la maquinaria carcelaria y los libertarios de los gobiernos pequeños que estaban hartos de los gastos de la guerra contra las drogas y el encarcelamiento.
    • Estas coaliciones resultaron en una variedad de practicas de ahorro: muchas cárceles fueron cerradas o fusionadas con otras instituciones, muchas políticas consistieron en mas bajas sentencias, especialmente para delitos de drogas, y diez estados abolieron o suspendieron la pena de muerte. La economía de las prisiones privadas también cambiaron: Con la reducción del mercado del encarcelamiento nacional, los empresarios de prisiones comenzaron a invertir en el creciente mercado de la detención de inmigrantes.
    • Las lógicas neoliberales se manifestaron también en cambios en la percepción de los presos: en lugar de verlos como responsabilidad del estado, ellos fueron percibidos como “clientes” involuntarios del estado. Las nuevas politicas prestaron atención a categorías de presos previamente invisibles: los ancianos y los enfermos. Además, muchos costos de encarcelamiento se transfirieron a los propios reclusos, lo que en algunos casos resultó en que las personas debían pagar por su propio encarcelamiento.
  • No todas las reformas fueron puramente economicas. La indignación pública por la violencia policial, especialmente contra las minorías raciales, produjo algunas reformas de la era de Obama, como la eliminación de las sentencias mínimas obligatorias para los infractores no violentos de drogas.
    • Estas politicas federales ocurrieron junto con muchas políticas estatales que legalizaron el uso y posesión de marihuana al nivel del estado.
  • El ascenso de Donald Trump, notablemente, dejó algunas de estas reformas en su lugar, al tiempo que cambió drásticamente el ánimo detrás de otras.
  • Tengan en cuenta, como dije antes, que la mayoría de las políticas de justicia penal en los Estados Unidos se hacen a nivel local, donde la administración federal tiene un impacto muy limitado. No obstante, hubo rupturas significativas durante el mandato del primer fiscal general de Trump, Jeff Sessions, y el segundo, William Barr. Hablaremos de seis:
    • Falsa Conexión entre Inmigración y Criminalidad
    • Animando la Lucha contra las Drogas
    • Animando la Pena de Muerte
    • Interviniendo en la Justicia Local
    • Obstrucción de la Justicia contra los Poderosos
    • Y quizá la mas significantive, Cambios en la Corte Suprema
  • Falsa Conexión entre Inmigración y Criminalidad
    • Desde los primeros días de su campaña presidencial, Trump confió en reunir a sus partidarios a través de promesas xenófobas para frenar la inmigración. Una gran parte de la campaña se dedicó a promocionar una correlación entre inmigración y criminalidad.
    • Esta conexión es cien por ciento falsa. Existe un sólido cuerpo de investigación empírica, que cubre diversos tiempos y lugares, y todas las investigaciones llegan a la misma conclusión: los inmigrantes cometen menos delitos, en todas las categorías de delitos, que los nativos.
    • La falsa suposición de que los inmigrantes son un peligro para la seguridad pública se basa en inseguridades económicas profundamente arraigadas, principalmente de los hombres blancos, de que los inmigrantes aceptarán trabajos estadounidenses.
    • Una gran parte de la política de justicia penal estadounidense, como la criminalización de ciertas drogas, se creó para criminalizar los comportamientos de los inmigrantes a fin de mitigar estos temores.
    • Además de las políticas xenófobas bien publicitadas, incluida la prohibición de los viajeros de países musulmanes y las separaciones familiares, la administración Trump prosiguió los procedimientos de deportación sobre la base de condenas penales, por lo que la aplicación de la ley de inmigración es la principal preocupación del departamento de justicia.
  • Animando la Lucha contra las Drogas
    • Cuando fue elegido para el cargo, Jeff Sessions anunció públicamente que los consumidores de marihuana eran “malas personas”, una afirmación fuera de contacto con las sensibilidades bipartisanas de republicanos y demócratas, que apoyaron una tregua en la lucha contra las Drogas
    • La administración procedió a revertir las restricciones de la era de Obama y perseguir casos federales contra infractores de drogas en estados en los que el uso y posesión de drogas son legales.
    • Pero al mismo tiempo, estados y ciudades continuaron sus politicas regulatorias. Marijuana se legalizo en mas estados, y algunos estados y ciudades decriminalizaron otras drogas tambien.
  • Animando la Pena de Muerte
    • Como mencioné antes, la pena de muerte ha disminuido en los Estados Unidos debido a la política de la era de la recesión. La administración de la pena de muerte, junto con los litigios, es muy cara. Durante el crisis financiero, muchos estados abolieron la pena de muerte o dejaron de usarla.
    • Trump ha sido un admirador público de la pena de muerte desde la década de 1980, cuando publicó enormes anuncios en los periódicos pidiendo la pena de muerte en varios casos, incluyendo el célebre caso de cinco adolescentes acusados de acostar a una corredora en el Parque Central de Nueva York. Lo increíble es que los cinco fueron exonerados por evidencia de ADN, pero Trump continúa hasta el día de hoy argumentando que eran culpables y merecían la pena de muerte.
    • Aún ahora, en los últimos días de su administración, Trump y Barr continúan a ejecutar a personas condenadas a muerte en el nivel federal, incluyendo personas con discapacidades mentales y trauma personal documentado y personas que muchos expertos creen que son inocentes.
  • Interviniendo en la Justicia Local
    • A pesar de que la administración de Trump no tenía jurisdicción en asuntos estatales, Trump intervino, a través de Twitter, en los procedimientos locales cuando fueron simbólicamente útiles para él.
    • Un ejemplo fue la muerte de una joven llamada Kate Steinle en San Francisco. Un inmigrante indocumentado fue acusado del crimen. Resultó que había encontrado un arma perdida por un agente del FBI y el arma falló. El acusado fue absuelto. A lo largo del juicio, Trump atribuyó el resultado a los “valores de San Francisco” y lo utilizó para criticar las “ciudades santuario”, que tenían una política de no cooperar con las agencias federales de inmigración.
  • Obstrucción de la Justicia contra los Poderosos
    • Es instructivo comparar estas políticas punitivas hacia las comunidades marginadas con la obstrucción de la justicia orquestada por la administración Trump en lo que respecta al propio Trump y sus leales.
    • Trump usó repetidamente el poder del perdón para excusar a sus amigos y asociados, acusados ​​o condenados por crímenes atroces, más recientemente, Michael Flynn.
    • La investigación del fiscal especial Robert Mueller sobre la interferencia rusa en las elecciones de 2016 encontró que los funcionarios de la campaña de Trump eran receptores entusiastas de la inteligencia rusa y que los miembros de la campaña de Trump, incluido el propio Trump, obstruyeron la justicia en este contexto en al menos diez casos.
  • Cambios en la Corte Suprema
    • Pero quizás el efecto más duradero de la administración Trump en la justicia penal son sus tres nombramientos en la Corte Suprema.
    • Neil Gorsuch fue designado para un escaño que quedó vacante durante la era de Obama, pero fue arrebatado por los republicanos argumentando que un presidente en su ultimo año no debería nombrar a un suplente.
    • Despues, Trump tuvo otra oportunidad a nombrar a un juez supremo y nombró a Brett Kavanaugh, cuyo proceso de solicitud se vio empañado con una acusación creíble de abuso sexual. Los votos a favor y en contra de su nombramiento fueron de partidos políticos.
    • Finalmente, tres semanas antes de las elecciones, falleció la jueza ruth bader ginsburg, lo que les dio a los republicanos la oportunidad de hacer exactamente lo que impidieron hacer a los demócratas al final de la presidencia de Obama: nombrar a una jueza más, Amy Coney Barret.
    • El nuevo tribunal es incondicionalmente conservador en varios asuntos de justicia penal. Seis jueces apoyan la pena de muerte y los tres nuevos jueces tienen un historial de imponer largas penas de prisión. En asuntos relacionados con las investigaciones policiales basadas en tecnología, sin embargo, Gorsuch podría votar más a la izquierda que sus dos nuevos colegas.
  • El Futuro Penal de la Administración Biden
    • Los partidarios de la reforma de la justicia penal se sintieron aliviados con los resultados de las elecciones, aunque están mucho más cerca de lo que se esperaba y el control del Senado aún no se ha determinado.
    • Es importante recordar que la justicia penal sigue siendo principalmente un asunto local. Las reformas que apoyan la igualdad racial y erosionan la guerra contra las drogas todavía ocurrirán en los estados azules, excepto que ahora, el aspecto federal de la guerra contra las drogas probablemente volverá a la moderación que caracterizó a la administración Obama.
    • Otros cambios federales podrían involucrar recortes presupuestarios a los departamentos de policía municipales, que apoyarán muchas iniciativas locales de desviar los problemas sociales a agencias no policiales.
    • El desafío más complicado involucra cambios en la Corte Suprema. Una posibilidad, que no está prohibida por la ley, es que Biden amplíe la Corte y nombre siete jueces progresivos para equilibrar la composición conservadora de la corte. El problema con este enfoque es el riesgo de que el tribunal pierda la legitimidad que le queda, y que una futura administración republicana nombrará a 14 jueces, etc., etc. Pero los partidarios progresistas de Biden lo presionarán para que lo haga, en parte porque se han adoptado enfoques más cuidadosos se encontró con ofuscación y manipulación durante los últimos cuatro años. Sin embargo, si el Senado permanece en manos republicanas, Biden tendrá dificultades para tener éxito con estas nominaciones.

The Marshall Project Survey and “Programspeak”

The Marshall Project has published the results of a political survey of incarcerated people, and they are extremely interesting. In a previous installment, they refuted the widely-held belief in broad support for Democrats behind bars; the majority of white prisoners would vote for Trump if they could. The current installment, in which the respondents were invited to opine on criminal justice policy, is just as interesting. Among other findings, even though there was a marked racial divide on questions about police violence and support for Black Lives Matter, 64% of incarcerated Republicans supported transferring funds from policing to social programs, by contrast to only 5% of incarcerate Republicans.

I highly recommend reading the whole thing, and have just one comment to make. In the survey, respondents were invited to comment on the kinds of interventions that would have kept them from prison, and they did list some of the “usual suspects”:

But the article then comments that many respondents ascribed the responsibility for their incarceration solely to their own behavior.

This is worth commenting on, because it dovetails with one of my findings fromYesterday’s Monsters, namely, the insidiousness and proliferation of “programspeak.” Programspeak is more than a jargon–it’s a worldview that is propagated in prison rehabilitative programming, all of which is geared toward telling the parole board a story of personal responsibility. At parole hearings, where the concept of “insight” is kind, there is a constant pressure on people to attribute their incarceration only to their own failings, without any allowance for environmental factors.

Now, there is nothing wrong with encouraging people to be accountable, and I think Marxist theories of crime take things too far when they divorce criminality from anything involving personal autonomy; even when choices are very constrained, we see evidence of agency (and to say otherwise is incredibly insulting to the large majority of people from disadvantaged backgrounds who don’t commit crime.) But adults with complex worldviews should be able to account for criminality in a way that does not discount the robust evidence of environmental factors, including poverty, difficult family lives, lead exposure, governmental neglect, lack of educational and vocational opportunities, and understandable, class- and race-based resentments. Unfortunately, this is not how it plays out on parole, where any effort to contextualize one’s personal history prior to the crime of commitment can be interpreted as “minimizing” or “lack of insight.”

This “programspeak” of personal accountability bleeds over to almost all other prison programming. I should know; I volunteered with, and visited, many of them. But it also bleeds out of the prison experience and accompanies people in their lives on the outside. In his ethnographic study of reentry, Alessandro de Giorgi found this self-attribution is so insidious that even after reentry, people blame themselves for not having a roof over their heads or basic groceries to feed their families.

Given the pervasiveness of programspeak, I’m not surprised to find that the folks surveyed by the Marshall Project emphasized their own responsibility. It’s being drilled into them throughout their incarceration. If anything, it’s a miracle that despite this aggressive, programmatic indoctrination, they articulate environmental factors as well. And to the extent that, after everything we know, people still subsribe to this heavyhanded partly-false consciousness, much of it is going to crumble because of the contrast between the consistent pressure on individuals to take responsibility for their actions and the equally consistent reluctance of prison systems to take even a shred of responsibility for what is being done to them, especially in the context of COVID-19.

Getting Rid of No-Knock Warrants Isn’t Enough

Yesterday we received the news that only one of the police officers involved in the killing of Breonna Taylor was to be indicted–and not for homicide, but for “wanton endangerment” involving shooting toward the neighbors’ homes. Because of the obvious point made by my colleague Frank Zimring in When Police Kill–that the hope to save more lives from police brutality should not be pinned on the criminal process–I want to focus on the question of saving lives, specifically in the context of knock-and-announce. A good starting point is this valuable commentary by my colleague Natalie Todak, who studies policing:

I agree and want to add a few words about how this is not only the fault of police officers, but of the Supreme Court.

You’ve all seen the knock-and-announce rule in action on your TV screens, every time a cop in a police drama loudly yells: “Police! Open up!” What you might not know is that the knock-and-announce rule has ancient roots in common law. In Miller v. United States, officers without a warrant knocked on the door of Miller’s apartment and, upon his inquiry, “Who’s there?” replied in a low voice, “Police.” Miller opened the door, but quickly tried to close it, whereupon the officers broke the door, entered, arrested petitioner and seized marked bills which were later admitted as evidence against Miller in a drug case. The Supreme Court held that “[t]he common-law principle of announcement is embedded in Anglo-American Law” and that Miller’s arrest was unlawful because the police broke in without first giving him notice of their authority and purpose.

The reason for this is obvious. In Wilson v. Arkansas, the court explains: “[A]nnouncement generally would avoid ‘the destruction or breaking of any house … by which great damage and inconvenience might ensue’.” And in Hudson v. Michigan, Justice Scalia expands:

One of [the interests protected by the knock-and-announce requirement] is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. Another interest is the protection of property. Breaking a house (as the old cases typically put it) absent an announcement would penalize someone who “ ‘did not know of the process, of which, if he had notice, it is to be presumed that he would obey it … .’ ” The knock-and-announce rule gives individuals “the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry.” And thirdly, the knock-and-announce rule protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the “opportunity to prepare themselves for” the entry of the police. “The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.” In other words, it assures the opportunity to collect oneself before answering the door.

J. Scalia (Op. Ct.), Hudson v. Michigan (2006)

Granted, in some cases there may be an advantage in hurrying in, because otherwise the police knock on the door can prompt the people inside to destroy evidence–especially in drug cases. But this advantage needs to be weighed against the drawbacks of violence: to mention just two possible scenarios, the police could be making a mistake and trashing the wrong person’s house, or the people inside might mistake them for a rival drug crew and shoot them. Because of these drawbacks, in Richards v. Wisconsin, the Court hesitated to create a special “felony drug exception”, exempting officers from the knock-and-announce rule in all drug cases. They explained:

We recognized in Wilson that the knock and announce requirement could give way “under circumstances presenting a threat of physical violence,” or “where police officers have reason to believe that evidence would likely be destroyed if advance notice were given . It is indisputable that felony drug investigations may frequently involve both of these circumstances. . . But creating exceptions to the knock and announce rule based on the “culture” surrounding a general category of criminal behavior presents at least two serious concerns.

First, the exception contains considerable over generalization. . . not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence.

Second. . . the reasons for creating an exception in one category can, relatively easily, be applied to others. . . If a per se exception were allowed for each category of criminal investigation that included a considerable–albeit hypothetical–risk of danger to officers or destruction of evidence, the knock and announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.

J. Stevens (Op. Ct.) Richards v. Wisconsin (1997)

But it’s unclear who the real winner in Richards was. Even though the Court refused to create a blanket exception, the opinion did open the door to special circumstances in which the police might decide not to knock (because of exigent circumstances.) Many of these situations overlap with the exception that the state of Wisconsin sought (and didn’t get.) So we were left with police discretion as to whether to knock and announce or not.

Soon enough, this developed into a practice in which officers anticipated the need to enter without knocking and asked for a carte blanche from the magistrate signing the warrant to do so (so as to cover their asses in case their judgment is questioned at a later date)–and that in itself invited all kinds of shenanigans, such as inventing nonexistent informants to obtain the warrants.

The final blow to the knock-and-announce rule came in Hudson v. Michigan. The main remedy in cases in which the police obtain evidence in violation of the Fourth Amendment is, typically, the suppression of the evidence under the exclusionary rule: the prosecution can’t use it in their case-in-chief. But gradually, the post-Warren courts saw this as a steep price to pay: “the criminal goes free because the constable has blundered.” Because of that, in Hudson, the Court introduced a cost-benefit analysis: The evidence will only be suppressed if the benefit of deterring the police from the undesired behavior exceeds the cost of allowing a guilty defendant to “walk away on a technicality.” Hudson involved a situation in which the police did not knock and announce, and Justice Scalia took the exclusionary rule of the table, arguing that it was not the right fit. While the knock-and announce rule, he said, protected the right of people to be calm and collected when answering the door, it had “never protected. . . one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” Justice Scalia proceeded to say that the exclusionary rule is no longer necessary:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

This turns out to be untrue. Not only do structural police reforms have mixed outcomes at best, monetary damages are completely meaningless because police officers are indemnified and police departments insured to the hilt. But the real outrage about this decision is the logic that the exclusionary rule has excelled so much in educating police officers about the rights and wrongs of the Fourth Amendment that it’s not necessary anymore. To support this argument, Scalia cited Samuel Walker’s book Taming the System, which showed that the exclusionary rule was an essential component in the reduction of constitutional violations. When Walker heard that Scalia cited his book, he was incensed, and wrote a hilarious-but-irate op-ed in the L.A. Times, titled, “Thanks for Nothing, Nino.” Walker explains:

[Scalila] twisted my main argument to reach a conclusion the exact opposite of what I spelled out in this and other studies.

My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court’s interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.

Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.

The ideal approach is for the court to join the other branches of government in a multipronged mix of remedies for police misconduct: judicially mandated exclusionary rules, legislation to give citizens oversight of police and administrative reforms in training and supervision. No single remedy is sufficient to this very important task. Hudson marks a dangerous step backward in removing a crucial component of that mix.

Samuel Walker, “Thanks for Nothing, Nino,” Los Angeles Times, June 25, 2006

There are now numerous efforts, through litigation and legislation, to outlaw no-knock warrants at the state level. But doing this will not remove the problem. All it will do is forbid the judge from kosherizing the police decision to enter without knocking–a decision that they will still be allowed to make, with no consequences, under Hudson v. Michigan. As long as the Supreme Court does not overturn this decision, the discretion in the field will still be available–and given the post-Warren Courts’ tendency to give officers in the field, making decisions based on “totality of the circumstances”, the benefit of the doubt, the problem will not go away. Not only is Breonna Taylor’s death the fault of the entire policing profession, it is also the fault of the Supreme Court’s lopsided cost-benefit analysis, and I dread to think about the people who will continue to pay the price for these misguided practices.

Country for Some Old Men: The Roger Stone Pardon and the COVID-19 Prison Crisis

I confess to being a bit bewildered by the outrage building around Trump’s recent pardon of his business partner Roger Stone. Not because this is not outrageous–read Robert Mueller’s op-ed about Stone’s direct involvement in the misdeeds that led to Trump’s impeachment–but because Stone is only the last in a long list of people pardoned by Trump. The never-ending parade of horrors may have numbed some of us, but you might still remember the pardon of Joe Arpaio (the “penal cartoon” who ran Arizona jails as spectacles of dehumanization and humiliation).

Trump is not the only president to have used his commutation powers in controversial ways. As this excellent NPR piece explains, both Bushes and Clinton were criticized for misuse of their powers, as was Obama for the sheer number of commutations. What is unique about Trump’s pardons and commutations is that, with a handful of exceptions, they were given to people in furtherance of his own personal interests or to people prominently featured on Fox News. Moreover, Trump has virtually ignored the Department of Justice’s Office of the Pardon Attorney, whose function is to parse out the thousands of pardon requests it receives every year and make recommendations to the President. Usually, the President follows the Office’s recommendations, but not in this case, and as Mitch Jeserich and I discussed this morning on KPFA’s Letters and Politics, this means not only that Trump’s business partners and go-betweens are rewarded for their crimes, but also that ordinary people’s petitions are ignored and recommendations about them go unheeded. Trump’s adulation and courtship of celebrities is one contribution to his assault on the rule of law (with the notable exception of Kim Kardashian’s influence on the First Step Act). Combine all of this with Bill Barr’s jockeying of Manhattan federal prosecutors and you’ll find a continuation of the same trends.

One issue that Mitch and I discussed today was the public discourse around Roger Stone’s age and (he’s 67), and the argument that, with the pandemic ravaging prisons, he would be “put at serious medical risk in prison“. Of course age and health condition are valid considerations, but let’s keep things in context. Here’s a breakdown of the federal prison population by age. Close to 20% of them are aged 51 and older. Throw in people aged 46 and above, and you’re at almost a third of the prison population. That’s tens of thousands of people. One person, albeit famous/infamous, is a drop in the bucket, so forgive me if I’m not persuaded by the argument that this reflects sensitivity to public health.

Source: Federal Bureau of Prisons,

Worried about older people catching COVID-19 in federal prisons? Let them go–not only the ones that are doing time for being presidential go-betweens, but those who are doing time on a Frankenstein-like construction of enhancements and multiplications on nonviolent drug offenses (this is not as much of a thing in state prisons, but it is a huge factor in federal ones).

Speaking of state prisons, the situation at San Quentin continues to be dire. Over the weekend, they’ve seen 204 new cases. Notably, those are 204 positives out of a total of 259 tests, so things are going horribly wrong there. There are also 167 new cases at CCC (reflecting a major testing push), 15 new cases at CCI (hundreds of new tests there, as well as in DVI), 8 new cases at CRC, 5 new cases at WSP, 1 new case at SOL, 1 new case at CAL, and 2 new cases at CHCF (this is particularly worrisome because this Stockton prison houses a medically vulnerable population.)

In short, gentle readers, things are not going well. Stay tuned for updates.

The New Salem

Many years after writing his play The Crucible, Arthur Miller reflected in the New Yorker:

In any play, however trivial, there has to be a still point of moral reference against which to gauge the action. In our lives, in the late nineteen-forties and early nineteen-fifties, no such point existed anymore. The left could not look straight at the Soviet Union’s abrogations of human rights. The anti-Communist liberals could not acknowledge the violations of those rights by congressional committees. The far right, meanwhile, was licking up all the cream. The days of “J’accuse” were gone, for anyone needs to feel right to declare someone else wrong. Gradually, all the old political and moral reality had melted like a Dali watch. Nobody but a fanatic, it seemed, could really say all that he believed.. . .

In those years, our thought processes were becoming so magical, so paranoid, that to imagine writing a play about this environment was like trying to pick one’s teeth with a ball of wool: I lacked the tools to illuminate miasma. Yet I kept being drawn back to it.

I came back to Miller’s commentary after reading Tre Johnson’s commentary in today’s Washington Post:

“Once again, as the latest racial travesty pierces our collective consciousness, I watch many of my white friends and acquaintances perform the same pieties they played out after Trayvon, Eric, Sandra, Korryn, Botham, Breonna. They are savvy, practiced consumers of Meaningful Things: They’ve listened to “Serial” and become expert critics of our broken criminal justice system after just one season. They’ve watched “Insecure” and can suddenly imagine life as Molly or Issa. They’ve shared the preordained “amplifying” social media post that just reads “This,” followed by a link to something profound from a black voice.. . .

“The confusing, perhaps contradictory advice on what white people should do probably feels maddening. To be told to step up, no step back, read, no listen, protest, don’t protest, check on black friends, leave us alone, ask for help or do the work — it probably feels contradictory at times. And yet, you’ll figure it out. Black people have been similarly exhausted making the case for jobs, freedom, happiness, justice, equality and the like. It’s made us dizzy, but we’ve managed to find the means to walk straight.”

Johnson, of course, falls into the trap that everyone else has fallen into, but at least he sees the trap. The combined effect of COVID-19 “content” (what an odious word) and, once more, the merry-go-round of commentaries on yet another horrific racial tragedy, have filled the social media universe with exhortations: Stay the fuck at home! Check your privilege! Wear your mask! Look within yourself! Be a good ally! Educate yourself! Flatten the curve! Dismantle white supremacy! The electronic town square holds trials for the Karens and Beckys of our time, which, given the centuries-old racist marinade we have been submerged in, are never in short supply. Everyone has an opinion about those (me included.) Everyone has an opinion about someone else’s opinion (me included.) Lists upon lists crop up in our social media feeds: Rating activities as to how safe they are (followed by the obligatory argument that the writer refrains from all of them, out of an abundance of caution); do’s-and-don’t’s for protesting “properly” are modified. Well-meaning people sincerely ask whether their white children may raise a fist on TikTok and receive fifty replies, all different. The actual issues are buried under edifices upon edifices of performance, performance, performance. Meta conversations about performance are rabbit holes. Every day some celebrity or other wears something or says something or performs some physical gesture, providing more grist for the mill. Every horrific incident of violence, racism, or racial distress, every photograph of someone out of compliance with the pandemic mandate-de-jour, becomes a morality tale, fueling endless takes, opinions, and new lists of instructions. Pandemic prevention enforcement and “how to be a good ally” have linked hands and are now the new religion of social media. We are in a panopticon, but the Foucaultian roles are reversed: we sit in the watchtower in the middle, and all around us are bloviating pulpits.

(I realize this post is falling into the same trap of exhortation, but this underscores my point–there is no end to a sea of pointing fingers. It’s turtles all the way down.)

If we were half as busy actually doing world improving things as we are performing our goodness in the public square and moralizing others, we might be in a different place. But public image is everything, and “content” (there it comes again!) must be provided. Citizens United has come full circle: now that corporations can speak like people, people speak like corporations. Everyone is a public entity, and so everyone has to issue on-point “messaging” to the public. Jeff Skilling’s infamous statement, “I am Enron,” is now true for everyone. Performance comes before feeling or doing. We must be on brand.

The problem is that “the personal is political” works both ways. It is one hundred percent true that we all play a role not only in pandemic spread, but also in the perpetuation of white supremacy. It is one hundred percent true that every revolution starts with individuals, and that individuals have the power to change the world–especially when organized. But these truths obscure other truths. “Flatten the curve” and “dismantle white supremacy” are big, pompous, vague goals, and in the absence of responsible adults at the helm of the country, there are bound to be differences in how we, the people, parse them into everyday behaviors. We’ve missed the train on testing and contact tracing, and now we’re left to pick at each other for mask violations.

The incessant chatter, be it contrite, derogatory, or both, is not “doing the work” that we are told to do. It is performing the work, which is something else entirely. It is exhorting others to perform the work. All the world’s a stage, and on this particular stage, we are performing The Crucible 24/7. There’s no escape from watching, from participating, from fretting about participating lest our flawed goodness be exposed.

I deeply understand where the urge is coming from. There are good intentions. There is a desperate need to do something in a situation in which we feel particularly powerless; we are sheltering at home, our face-to-face meeting places are closed, this online discourse is a poor substitute to our in-person conversations. As more and more avenues to do good close, either because they are impossible or because they are severely criticized, we are clutching at straws. These bursts of personal propaganda are the best thing we have, and we figure they are better than nothing, because silence is also a problem. And most importantly, there is pain. Searing, unbearable pain and grief. Grief for the sick, grief for the dying, grief for the people being killed and injured and ostracized and ignored. Grief and guilt. It feels overwhelming to sit with it. We take to our keyboards to find some relief, to tell some story about it, to remove the center of grief from our hearts to our heads to our keyboard. But verbose descriptions of grief are not the grief itself.

Can we take an intermission? Not from the work itself–improving the world is the project of a lifetime–but from the performance of it? Can we stop obsessing about our goodness and the goodness of others? Can we stop “messaging” so that we can actually feel something? Can we quiet our nimbly typing fingers to listen to the cries of the world, of friends and neighbors born to disadvantage, of our dying planet? Can we quiet them long enough to hear our own hearts quiver in compassion?

Should the Unanimous Jury Verdict Requirement Be Retroactive?

In a recent decision, Ramos v. Louisiana, the Supreme Court found that Louisiana’s rule allowing convictions by a majority of 10 to 2 jurors was unconstitutional. Except for Louisiana and Oregon, all states (and, of course, the federal government) require a unanimous jury verdict, though not all states require twelve jurors (Florida requires only six, except in capital cases.)

Now, the Supreme Court faces a subsequent question: Is Ramos retroactive? As Josh Blackman explains in this brief entry in Reason, some Justices in Ramos itself opined on this: “Justice Kavanaugh said it could not be applied retroactively. Justice Alito’s dissent faulted Justice Kavanaugh for reaching an issue that was not briefed. Justice Gorsuch’s plurality leaned towards it not being-retroactive, but it was non-committal.”

Now, the Court has an opportunity to address this directly. Edwards v. Vannoy, recently added to the calendar, is a habeas case with facts very similar to Ramos. The facts, as reviewed in the petition, make a compelling case that this is not merely an effort built on a technicality. Edwards was apprehended on suspicion of several robberies and a rape, even though the description of the perpetrators (“black males with masks”) did not identify him, and at his interrogation (while chained to the wall!) was dissuaded from consulting an attorney. Here’s how the petition describes the rest of the evidence against Edwards:

The perpetrators of these crimes were young black males wearing black caps, gloves and bandannas covering their faces from the nose down to the chin. The police dusted for prints and collected DNA samples from the various crime scene locations and none of that forensic evidence implicated the accused. The police executed a search warrant at the residences of the accused and his codefendant but did not recover any stolen property, weapons or clothing involved in these crimes. In fact, the alleged weapons and bandannas were found in a vehicle driven by three black male acquaintances of the defendant, none of whom testified at trial. The defendant’s photo lineup was presented to five witnesses and only one was able to make a positive identification. This identification is best described as a “crossracial” identification made by a victim that had only a few seconds to view his assailant’s face. Another witness made a tentative cross-racial identification of the accused. Regrettably, the three individuals in possession of the weapons and bandannas were not placed into a photo lineup for viewing, although one of the victims did participate in a show up identification of these three, but that procedure failed to produce identification.

Edwards v. Vannoy, Petition for Writ of Certiorari

Assuming this is a fair description of the evidence, the case against Edwards was not particularly strong. To complicate matters, the prosecution removed all but one of the African American jurors from the panel during voir dire, and Edwards’ convictions, on all counts, were non-unanimous.

A brief primer on retroactivity: In the diagram below, imagine three defendants: No. 1, whose case begins only after the new rule is in effect; no. 2, whose case was decided before the rule change, but is still “alive” in the sense that it is not final–it is under direct review; and no. 3, whose case is already final, but who, encouraged by the new rule, tries to reopen it via collateral review.

The new rule is always going to apply to defendants 1 and 2, but whether or not it will apply to defendant 3 depends on three questions. The, first question is whether the rule is substantive or procedural. If the new rule is substantive, it will act retroactively; that’s what the Supreme Court decided in Montgomery v. Louisiana, which applied Miller v. Alabama retroactively, leading to reconsiderations of life without parole sentences for many people who have spent decades in prison for crimes committed when they were juveniles under statutory schemes that are now impermissible under Miller (to learn more about these folks, read James Garbarino’s superb Miller’s Children. But I digress.) In our case, however, the rule is procedural; it’s about how the jurors are to decide on a person’s guilt. Under Teague v. Lane, new rules cannot be applied retroactively on habeas, only on direct review, and therefore only defendants 1 and 2 (and not 3) will benefit from the rule change.

The second question is whether this is truly a “new rule” or an application of an old rule. In Davis v. Jones, an appeal of the Orange County federal judge’s decision that the death penalty is unconstitutional because of the delays in its application, respondent’s attorney tried (unsuccessfully)to argue that the new rule was merely an application of Furman v. Georgia.

Even if this is a new procedural rule, it might apply retroactively in the rare case that the third situation applies: if the rule is so fundamental that it can be considered a “watershed rule of criminal procedure.” So far, no habeas petitioner has been successful in arguing retroactivity this way.

How should the lawyers in Edwards approach this? Arguing that this is a substantive rule is a nonstarter, but the other two arguments might have merit, even though each requires a bit of creativity.

One approach could be that the rule in Ramos is not actually a “new rule”, but rather an adaptation of Batson v. Kentucky. The holding in Batson, many readers remember, was that it is unconstitutional to disqualify jurors on the basis of race, and making a prima facie showing of a Batson challenge starts with a pattern of exclusion. Well, in both Louisiana and Oregon, the nonunanimous verdict thing has been intended to function, and indeed functions, as a bypass of Batson. A representative example is Edwards itself: Knowing that you only need 10 jurors to convict, the prosecutor will disqualify all African-American jurors but one or two, thus escaping the need to answer to a Batson challenge but achieving the same outcome: disenfranchising African-American jurors through a combination of a sneaky voir dire tactic and an exploitation of a state rule designed for the very purpose of racist disenfranchisement. As Justice Gorsuch explains in the very beginning of Ramon:

Why do Louisiana and Oregon allow nonunanimous convictions? Though it’s hard to say why these laws persist, their origins are clear. Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to “establish the supremacy of the white race,” and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements. Nor was it only the prospect of African-Americans voting
that concerned the delegates. Just a week before the convention, the U. S. Senate passed a resolution calling for an
investigation into whether Louisiana was systemically excluding African-Americans from juries. Seeking to avoid unwanted national attention, and aware that this Court would strike down any policy of overt discrimination
against African-American jurors as a violation of the Fourteenth Amendment, the delegates sought to undermine
African-American participation on juries in another way. With a careful eye on racial demographics, the convention delegates sculpted a “facially race-neutral” rule permitting 10-to-2 verdicts in order “to ensure that African-American juror service would be meaningless.”
Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the Ku
Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.” In fact, no one before us contests any of this; courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.

Ramos v. Louisiana, 590 U. S. __ (2020)

In other words, one approach to the retroactivity question could be that the rule in Ramos, which found this practice to be unconstitutional, can be readily understood as the Court’s effort to undo a tricky loophole in the application of Batson, which dates back to 1986. This reading would date the rule not to 2020, but to 1986, and would apply it to any case that was still in the appellate pipeline when pastels, neons, and shoulder pads were all the rage. Edwards’ appeal was denied only in 2009, so he would benefit from this reading.

Another approach would be to argue that the Ramos holding is a watershed rule of criminal procedure because, in the words of Teague, it “”implicat[es] the fundamental fairness of the criminal proceeding.” An easy probabilistic calculation shows the risk of conviction rises with non-unanimous juries. Think about it this way: with a unanimous 12-person jury, you need one person to insist on acquittal to get to a hung jury. With a non-unanimous 10:2 rule, you need three. With every reduction in the number of people who have to agree to convict, we are decreasing the voice of an unpopular opinion–which, as Henry Fonda reminds us in Twelve Angry Men, is essential for the functioning of the system.

Consider the following analogy between the Ramos holding and the rule announced in in re Winship: Before Winship, the burden of proof in juvenile proceedings was preponderance of the evidence (more than 50%.) The Court found this burden to deprive criminal defendants of their fundamental constitutional safeguard against the possibility that their fate be incorrectly decided due to fact-finding errors–the heightened burden of proof required for a criminal conviction. Ramos “implicat[ed] the fundamental fairness of the criminal proceeding” in a very similar way. Suppose, for example, that beyond reasonable doubt requires 90% certainty in each individual juror’s mind. Introduce non-unanimity and you’ve reduced the aggregate burden of proof to 90% certainty in 10 minds and 0% certainty in 2 minds. Those are significantly different odds, and in the aggregate they result in different odds of conviction–in much the same way that reducing the overall burden of proof does.

So much for the legal arguments. Policy-wise, I can see the Court contemplating the scary prospect of invalidating an entire history of trials in both Louisiana and Oregon–new trials for people whose cases have been final for decades! This prospect might have been what propelled Justices Kavanaugh and (to a lesser extent) Gorsuch to jump the gun and offer dicta in Ramos about it not being retroactive. Some of the concern with the mess retroactivity will wreak upon convictions in these states might be ameliorated by requiring, as for any reversal, a harmless error test. Moreover, there is another important policy argument that cuts the opposite way: because this rule has such an obvious racial animus behind it, applying it retroactively, as in Batson, would have a cleansing effect akin to the destruction of a confederate monument.

The “What’s In It For Me?” Angle on COVID-19 Prison Releases

The thing everyone was warning you about has happened: the prisons, incubators of COVID-19, are spreading it to the general population. The Columbus Dispatch, reporting on the Ohio prisons rife with infections and disease, reports:

Marion County’s top health official is urging vigilance as the outbreak of the novel coronavirus in a Marion prison spills into the community.

More than 80% of Marion Correctional Institution’s inmates have tested positive for the coronavirus, as have more than 160 corrections officers and other employees, according to the Ohio Department of Rehabilitation and Correction. Those workers live in Marion County and surrounding counties.

More prisoners might have the virus because although a prison spokesperson previously said that mass testing was completed more than a week ago, spokesperson JoEllen Smith said Friday that only 2,300 tests had been administered. She did not clarify whether that included employees, and the prison has about 2,500 inmates.

Even excluding the prisoners who have tested positive, Marion County has a higher number of cases per capita than almost every other county in Ohio, including densely populated ones such as Franklin and Cuyahoga, according to Ohio Department of Health data.

[Health commissioner Traci] Kinsler attributed Marion County’s high number of cases per capita to the prison outbreak.

The idea of prisons as incubators of miasma is as old as the prison reforms of John Howard. Ashley Rubin has a terrific thread on this on Twitter. As she explains, preventing the spread of disease was at the forefront of the reformers’ interests, and for many thinkers was a metaphor for the spread of crime.

Many of the campaigns for releasing prisoners that I’ve seen make the scientifically correct point that, as long as U.S. prisons remain Petri dishes for the virus, nobody’s safe. I want to draw an important distinction between this argument and the equally correct argument that prisoners–better said, people who happen to be in prison during this outbreak–are human beings, too, whose protection from the virus would have to be a priority from a human rights perspective whether or not they endangered others.

I’m wondering whether the former argument is made not only because it is sound (it is) but because of realpolitik. In Cheap on Crime I argued that the post-recession reforms a-la “justice reinvestment”, which led to a decline in the overall U.S. prison population for the first time in 37 years, benefitted from having a morally neutral cost argument, which allowed activists and advocates to break the decades-long impasse between public safety and human rights. It’s quite possible that framing prisoner release as a “what’s in it for me?” argument, rather than an argument on behalf of the prisoners themselves, has more persuasive power, and if so, I’m all for whichever argument gets less people, in and out of prison, sick or dead.

But just so that we get a glimpse of life behind bars, here are some words from Kevin Cooper, an innocent person on San Quentin’s death row (shared with me via email through Innocence Project):

Experiencing COVID-19 on Death Row

By Kevin Cooper

In my humble opinion being on death row with this COVID-19 pandemic raging is like having another death sentence. I can and do only speak for myself in this essay, and I must admit that I am scared of this virus!

I pride myself on not being scared of anything or anyone on death row, not even death itself, because after all this is death row. But this virus is more than just dying, or death. It’s a torturous death, like lethal injection is.

I do all I can to take care of me in here under these traumatic times and stressful circumstances. I social distance, I wash my hands regularly, clean this cage that I am forced to live in­ on a regular basis, and I often ask myself is this enough?

Every inmate who lives next to me or around me to my knowledge is taking care of themselves too. Quite a few still go outside to the yard every other day as we are allowed to do. I went out for the first time two days ago after a month living non-stop inside this cage. I went out to get fresh air.

This unit, East Block, has staff who have been giving us cleaning supplies such as “cell block” which is a strong liquid cleaning agent, and we use that to spray on a towel and wipe the telephone down before each inmate uses the phone. We have been given hand sanitizer for the first time since this pandemic started. It’s a 6-ounce bottle and the writing on it says World Health Organization Formula. The same World Health Organization that Trump just stopped funding…no joke!

We still have not received any mask* though a memo was sent around last week stating that cloth masks were being made to be passed out to inmates but that they have not yet been finished being made. Who is making them? I don’t know.

We people, we human beings on death row aren’t for the most part cared about by society as a whole. That truth makes some of us wonder, including me, do the powers that be truly give a damn whether we human beings who have been sentenced to death by society care if any of us get the coronavirus and die from it in a tortuous way?

In 2004 I came within 3 hours and 42 minutes of being tortured and murdered/executed by the state of California. I survived that, and have worked very hard with lots of great people to prove that I am innocent, that I was framed by the police and that I am wrongfully convicted. To do all of this and, especially to survive that inhumane and manmade ritual of death in 2004, only to be taken out by COVID-19 is something that honestly goes through my mind on a regular basis. Right now, I am free of this virus and I am doing everything to stay this way. But that thought, that real life and death thought of the coronavirus taking my life is always present, especially under these inhumane manmade prison conditions on Death Row.

*On Monday, April 20th, Kevin called to say: I received a cloth face mask today as did everyone here on death row. We are now instructed to use it every time we leave the cell.