It’s an especially happy new year for everyone incarcerated in California, as CDCR and all county jails gear up to provide everybody phone calls free of charge. This long overdue change was heralded on September 30, when Governor Newsom signed the Keep Families Connected Act, sponsored by Senator Josh Becker and numerous grassroots organizations. I’ve spoken about the importance of this bill on KQED and on KCBS this week (I think both segments will air in the new year) but I wanted to also write here so I can expand on the history and meaning of this change.
As many regular readers know, I’ve been constantly rankled by the well-meant, but shortsighted, push to divest from private prisons. I don’t think private prisons are the ultimate evil in U.S. incarceration (though they are definitely a nauseating symptom); all the horrors Chad Goerzen and I talk about in our new book FESTER occurred in public prisons and jails. More importantly, in reality, whoever pushes for divestment has too naive a perspective on how the market works. Public prisons are all but privatized on the inside. The utilities are privatized. Healthcare is provided by private contractors. Commissary is often essential as supplementation because the food is inedible. Anything beyond “bare life”, as Agamben called it, is monetized. In Cheap on Crime I spent a whole chapter explaining how this came to be: in the last few decades, and increasingly since the financial crisis, the basic conceptualization of incarcerated people has shifted from wards of the state to consumers of services. Accordingly, everything, including the actual stay in jail, is monetized, and costs are rolled onto the “customers.”
This has been especially notorious in the context of phone call. There is a long and atrocious history of litigation surrounding the dirty deals between government agencies and phone companies, and anyone who has been incarcerated, or who has called someone who is incarcerated, knows what the upshot was. There’s a lot of cumbersome bureaucracy one has to deal with to even create an account with the phone company (I personally spent hours on the phone with GTL trying to set up my account. Their robocalls are not customer friendly, and I can only imagine people despairing of them if they try to call from work or while they try to survive in some other way.) And that’s if people want to be able to accept collect calls from prison. For those who don’t, there’s the issue of accounts of the people inside. While having the conversation, both parties can hear the “dings” charging the money every few minutes (ka-Ching!). The phone calls get disconnected and one has to call again (ka-Ching!) And if it turns out the phone call was disconnected because the account is depleted, you have to deal with that right away (ka-Ching!) True to the logic I explained in Cheap on Crime and elsewhere, singling out the private sector is making a naive mistake. It takes two for tango, and you bet the only reason this extortive system existed for as long as it did was that sheriffs AND phone companies both stood to gain.
Beyond the obvious issue that people in prison don’t tend to be flush in terms of personal wealth, and therefore there’s a class justice aspect to the new legislation, there are a few more, which expand the conversation. The first is that, beyond phone calls, California’s plant is not conducive to keeping contact with families. Our prisons are located in remote, rural counties, and many people’s families live in dense urban areas. If an Oakland family wants to visit their relative, who is incarcerated in, say, Pelican Bay, they have to plan for an 8-hour trip and a night at a hotel. Public transit is nonexistent and hotels jack up the prices. We also don’t offer vacations at home, which many prison systems in the world do. Until recently, when tablets were provided to people for video visits (partly to simplify complex in-person visitation protocols during the pandemic) it was very difficult for people to stay in touch with their families. The phone call costs were just part of this problem.
There is also the fact that contact with one’s family is known to be the main factor in recidivism prevention. One of my main conclusions in Cheap on Crime was that saving money by eliminating rehabilitation programs, reentry efforts, and the like–what I called “tough ‘n’ cheap”–ends up costing more money by driving the “revolving door” phenomenon. When we talk about “justice reinvestment” it really should be exactly that: in order to save, we have to spend in the right places. Whatever we spend in phone bills we will recoup in people who come home to a supportive family and a helpful community and get the help and love they need during the first few years after release, when the risk of recidivism is at its highest point.
Finally, there is the serious problem of knowing what is happening behind bars. Phone calls are essential not only for keeping in touch with the outside, but also for notifying supporters, lawyers, advocates, and journalists about things that happen away from the public eye, where negligence, incompetence, and sometimes downright cruelty and sadism can produce terrible civil rights violations. In the early months of the San Quentin COVID-19 outbreak, prison authorities prevented people from making phone calls, assuming they would infect each other through the phone (we now know COVID-19 is airborne, but at the time, as some of you might remember, this was not yet widely known and lots of folks were obsessing about cleaning surfaces.) Consequently, for several weeks we didn’t know what was going on, and concerns about housing, food, adherence to masking protocols, etc., were high (and, as it turned out, justified.) Chad Goerzen and I talk about this in FESTER (which comes out from UC Press in 2024.)
For all these reasons, I think this is a terrific initiative. I really hope people use it in ways that are beneficial to their reentry and nourishing for their relationships.
It all started, for me, with this Atlantic article, which portended the death of college essays. Everyone around me is playing with AI playgrounds such as this one or this one, asking it to write essays, haikus, recipes, ads, and whatnot. The results are often amusing and quite shocking in how superficially okay they are. My colleague Brian Frye even produced this valiant attempt to get the thing to do a meta-discussion of its own inherent dishonesty. And here I am, about to grade twelve seminar papers (in addition to 90 exams, thank you very much), wondering if I should even bother running them through Turnitin to detect plagiarism. It appears that the new plagiarism tools have birthed new plagiarism detection tools unique to AI, and this is surely not the last move in this game, as the arms race to artificially produce text indistinguishable from a human thought product is bound to get more and more sophisticated.
My first reaction to all this was utter despair and the sense that the human race–or, at least, the subsection of it that includes educators like me–has become obsolete. The singularity is nigh! Our flimsy protections are Asimov’s three laws of robotics! Then I got to thinking and chatting with a few friends.[1]
My point of departure is that I hate plagiarism and all that is related to it in academic work. I can see people borrowing from themselves in the course of closely related projects (kind of like Mozart or Beethoven), but generally speaking, the concept of plagiarism should not be confusing or morally gray. As a colleague[2] defines it, there are two types of ideas in any academic work: those that come from your head and those that come from other places. The latter set has to be properly attributed. That’s basically it.
At the same time, I have serious doubts about the utility of aggressive anti-plagiarism enforcement in law schools, for three main reasons. First, given what we know about the development of adolescent brains, most of the folks we encounter are in their early twenties, when their prefrontal cortex is still growing and developing. That, as we know from a trilogy of Supreme Court cases interpreting innovations in developmental psychology and neuroimaging, is the part of the brain responsible for weighing consequences, resisting peer pressure, and delaying gratification. In my almost twenty years of academic teaching, I’ve seen some people truly change and mature just in the course of the three or four years that I’ve been exposed to them. In one case, I testified on behalf of a recent graduate at the State Bar Court. This guy was involved in a pretty serious case of academic dishonesty in his first year of law school, and when I met him–at the beginning of his second year–he was still rather immature compared to others. But I got to teach him throughout his law school career and was profoundly impressed by how much he had changed during that time. In his last semester with me he was not only contrite about what he had done (y’all already know what I think about expressions of remorse) but also much more mature; had produced a superb piece of original, empirical work for one of my courses; and developed much more sophisticated thinking about social problems. A lot of these cases, even when severe, reflect the sort of immaturity that people can put behind them if the process is sufficiently educational and rehabilitative.
Relatedly, my second concern about aggressive enforcement against plagiarists in law school has to do with the bar’s reaction to law school sanctions for academic dishonesty. A couple of years ago i conducted and published an interview-based study of the moral character determination of the California State Bar. For this project, I interviewed ten people with criminal records who succeeded in becoming licensed California attorneys, a few ethics lawyers that represent people in moral character cases, and the bar officials responsible for these determinations. What I learned (and I’m not sure this is still true, but it was true as of 2020), was that bar officials look at the candidates’ disclosures and their official records, including their law school records, and classify their personal histories into one of four groups according to their severity. Law school dishonesties are generally classified as Level Four, partly because they are relatively recent and partly because they reflect misbehavior that the bar officials think is directly representative of what kind of lawyers these folks will be, ethics-wise. Much as I think that consequences are important, I’m not sure that every plagiarism case merits the complete destruction of a future that a person poured considerable funds, intellectual and emotional effort into, certainly not without very serious forewarning in the law school admissions process and in the first year.
Finally, and perhaps most importantly, I think that our approach to originality, scholarly sparkle, and the use of AI as well as most conventional sources raises serious questions about what law schools are even supposed to be. Many of us in legal academia are realizing, as we make our first steps in education, that our students, overall, are very different from us, and that most of us teach in very different institutions than the ones we ourselves studied in. New faculty hires tend to prioritize people from very few select institutions, with additional prestige-granting characteristics such as advanced degrees, clerkships, or visiting professorships. This means that most of us will be teaching people who want to be lawyers, not scholars. While many of my students are smart, quick thinkers, I rarely encounter people who I think would be a great fit for grad school. Moreover, even those who are well suited for doctoral pursuits are not that excited to incur more debt after three years of law school; rather, they’re pretty eager to enter the job market and start working off their colossal debt. For the most part, these folks are entering a profession in which producing highfalutin’ scholarly works is utterly unnecessary. Yes, they need to be able to write a persuasive brief and a punchy motion to suppress, but they don’t really need to compose lengthy law review articles. For the few that are inclined to do this, we can create a special honors track that requires a scholarly product. We don’t need to demand this of everyone, certainly not at the many schools that don’t feed into legal academia.
So, if I were Queen of the World, these would be my recommendations:
Completely change law school pedagogy away from producing descriptive/critical scholarship to lawyerly problem-solving. Focus the entire curriculum on hypotheticals, simulations, and the like. Forget about conventional lecturing and Socratic inquisitions and spend your time, instead, solving problems in class. I already do this in my big lecture courses. My students receive all the material in the form of readings and lecturettes, such as this one:
When the students show up for class, I spend minimal time explaining the doctrine and lead a quick discussion of critiques and finer points. Most of our time is spent working through simulations in small groups. Often, but not always, this consists of a series of hypothetical problems. Sometimes the students have to negotiate plea deals, write motions to suppress, pick a jury, or use the Federal Sentencing Guidelines to sentence a defendant. I think we get a lot more lawyerly bang for our buck this way. I started using this pedagogy during the pandemic, to liven up the Zoom situation, and have transitioned to in-person flipped classroom, because I truly think this is the optimal way to teach law to people who aspire to be actual lawyers.
Restructure the role of law review editorial staff (that is, if we choose not to get rid of law journals altogether, which I think would be a pretty good thing to do for various reasons.) Students who are not interested in writing notes for the sole purpose of writing notes should not have to write them. They have their hands full editing the submitted works of other folks, which is, after all, what the law journal market is for.
Shift the definition of the writing requirement. Why is it that we ask people who have no scholarly aspirations to produce original scholarship? Yes, lawyers should definitely know how to write–they must learn to write lawyerly work product: briefs, motions, letters to clients, etc. Why not define a few of these basic forms of legal writing and require that, throughout people’s legal education, they tick each box? It doesn’t have to be independent, shapeless work: these products can be assigned as part of lecture courses, clinics, externships, and the like. The added benefit of this strategy is that, when workplaces invariably ask their applicants (our students) to provide a writing sample, the sample will actually mirror what the job expects.
Create an honors track for aspiring academics or, even better, shift aspiring academics to a JSD degree. Sure, there will still be folks who want to be academics, and that’s great. I’ve always thought it outrageous that people can seek academic careers with an educational record that is basically identical to that of their students; that is, that your only qualification for being a teacher is having been a good student yourself (sometimes quite recently.) No other legal academic system in the world works like this, and no other U.S. disciplinary department works like this: students everywhere EXCEPT American law schools are taught by people who have a far more extensive higher education background, far more practice background, or both, than they do. It seems to me that in order to not be “those who can’t do, teach,” each of us in pedagogy needs to bring something very substantial to the table, either in the scholarship or in the practice realms. Given that legal scholars are expected to produce legal scholarship, it’s worthwhile signaling as early as law school that people who aspire to academic careers will be well served by receiving some training in scholarly writing (not what lawyers do for a living! what academics do for a living) and that can be provided, at minimum, through an honors track that requires a piece of traditional scholarship. By making this track both self-selected and selective, we ensure that we don’t have to scan a boatload of papers for plagiarism, because presumably whoever is interested in working in the business of original thinking wants to do original thinking (or perhaps not? but at least detection should be easy with fewer suspects.) Alternatively, let’s encourage people who want to be scholars to pursue a bona fides Ph.D. program (as a joint degree with their J.D.) or get a JSD from their law school (requiring a written dissertation, which could also feed their first few articles and possibly their first book.)
Yes, the singularity heralds some unwelcome news to legal education. But it is a good opportunity to consider what we’re here for and to reinvent ourselves in more relevant ways.
And now I really need to stop bloviating and put a dent in this exam pile. Godspeed!
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[1] I’m especially grateful to Paul Belonick, Hadar Dancig-Rosenberg, and Emily Murphy for our conversations about this.
[2] I’m grateful to David Takacs for this crystal clear formulation
Living in San Francisco can be wonderful. Despite the many problems and challenges we face—namely, how to ensure we all of us, not just billionaires, can live here—the city’s magical heart still beats deep and strong. And then, there are moments like yesterday, when I was horrified to read that the San Francisco Elections Commission has not renewed John Arntz’s contract as Director of Elections. The reason? The color of his skin. Joe Eskenazi reports:
“Our decision wasn’t about your performance, but after twenty years we wanted to take action on the City’s racial equity plan and give people an opportunity to compete for a leadership position,” reads an email sent from commission president Chris Jerdonek to Arntz. “We also wanted to allow enough time for a fair and equitable process and conduct as broad a search as possible.”
I am a law professor at UC Hastings, specializing in criminal justice and civil rights. I thought I’d seen it all, but when I read the Commission’s explanation, I had to do a double take. Have the commissioners not heard about the United States Constitution’s prohibition of discrimination based on the color of one’s skin? Are they begging to get sued? What on Earth were they thinking?
Beyond the legal inanity, this decision deeply hurt my civic pride. I have worked as a precinct inspector in San Francisco elections multiple times. I’ve served in the Excelsior, in Bayview, and in the City Hall headquarters. Each time I was blown away by the marvel that is the San Francisco election. Worker recruitment is superb. The training is thorough and complete, and provided in multiple accessible formats. The technology works without fail. There are hordes of professional, competent people at the beck and call of each precinct to solve problems (which are extremely rare and easy to sort out.) Drivers drop poll workers at the doorstep of where they need to go. Everything is packed and labeled to perfection. The COVID-19 guidelines are eminently sensible and geared toward facilitating voting in every possible situation. Even through the madness of last year’s four elections, the election ship sailed smoothly, with Arntz at the helm. I am proud to work in the SF election, and volunteer time after time, because it is the only thing in the city that works like a Swiss clock.
It was especially appalling to see this cruel and outrageous decision justified by an ignorant, twisted understanding of “inclusivity” when, thanks to Arntz, San Francisco’s election is precisely the DEI victory that other cities can only aspire to. Under Arntz’s competent and professional leadership, the city offers tree, fair, and functional voting to everyone, rich or poor, young or old, abled or facing difficulty. Our election is the most inclusive one, language-wise, that I am familiar with. A high percentage of poll workers are proficient in multiple languages and assist voters in the way they need. Our vote-by-mail option runs without a hitch. When I participated in a litigation effort to restore voting rights to people incarcerated in jails, Arntz’s one page brief supported us without reservation. Against a backdrop of nationwide concerns of voter suppression and exclusion, San Francisco elections have never raised a whisper of concern. If there is anyone who has majorly contributed to equity in the city and county of San Francisco, it is John Arntz.
The decision not to renew Arntz’s contract—to essentially reject one of the city’s most competent, talented, and efficient managers, in charge of a crucial civic function, for an absurdly unfair consideration—echoes the school renaming scandal from the pandemic days, which sent scores of parents of all social classes and financial abilities fleeing from our school district—because apparently the best way to achieve “equity” for children of color was through meaningless pageantry, rather than through actually educating them. Throughout the city, people who care deeply about actual inclusivity—not its performative mirage—stood up and rejected incompetence. It is time for all these people, and for every San Francisco voter, to rise in support of Arntz’s proven professionalism and excellence. The crown jewel of city administration and of civil rights is at stake.
In the last few weeks I’ve been making big changes to my nutrition and fitness routine, which call for some careful reflection. The whole thing started when a colleague–a badass athlete in her own right–lent me her copy of Stacy Sims’ new. book Next Level, the first (as far as I know) book about perimenopausal and menopausal athlete. Just a few days later, I attended an open water swim camp in Hawaii, where my wonderful and knowledgeable coach, Celeste St. Pierre, recommended the same book, and impressed upon me the vital importance of Lifting Heavy Shit.
Up to this point, my athletic endeavors were almost squarely in the endurance world. I swam long (and slow) in open waters, transitioning then to multisport to protect myself from injury. In the heyday of my marathon swimming days, I did no cross training whatsoever – only swimming. Later, I added on calisthenics, in the form of fusion classes (which I took and taught) and antigravity fitness (using silky hammocks.) I’m not quite sure whether I was fully aware of the importance of doing all these things at the same time, and I’m also pretty sure I wasn’t told to increase the resistance and challenge or to eat more. Generally speaking, and relatedly, my weight has been almost entirely the product of my diet: when I eat more and poorly, I gain weight; when, with great control and care, I eat less and well, I lose weight. Going in the former direction is easier than the latter.
For many important biological reasons that Sims explains in a lucid, straightforward way in her book, the wellbeing and athletic priority during perimenopause and beyond should be building lean muscle and bone. For many of us, this means changing our body composition, which is not an easy thing to do and not one that can be accomplished merely with dietary changes. The building block for muscle is protein, which has to be consumed in adequate amounts, and the muscles must be used in a progressively challenging fashion for them to grow stronger.
I read the book cover to cover and then, through the recommendation of another wonderful athletic colleague, was introduced to lifter Casey Johnston and her excellent couch-to-barbell program. Two weeks ago, for the first time, I mounted plates on my barbell, and am quite fascinating with this transformation, though I still have many questions and uncertainties. Here is some of what has been happening:
I am lifting three times a week – twice at the school gym with my colleague, once or twice at home. This has required a certain change to my routine. I lift on Sunday, Tuesday, and Thursday; I now swim on Wednesday, Friday, and Saturday. I also kept up my pilates on Saturday and my boot camp (which includes lifting) on Sunday. On lifting days I also do a short plyometric set (quick, HIIT-type jumping). Monday is somewhat of a lighter day, though I do ride the cargo e-bike, as I do every weekday, to drop my son off at school. That means shorter but more intense workouts, which is what Sims recommends. It does feel weird, as someone used to endurance workouts, that there’s none of the prolonged suffering that we marathoning people tend to glorify. Hilariously, I am finding the mantra “I can take anything for twenty seconds” useful for both HIIT and lifting.
I am already experiencing improvement in my strength. Last week I flew to Atlanta for a conference (ASC was very good this year, and I’ve already posted about some of what I learned–on court fees and on extradition) with a big, heavy backpack containing everything I needed for four days. When I got to my airplane seat, I lifted my bag into the overhead compartment–and was immediately struck by a big difference. Reader, it was child’s play. Not that it wasn’t heavy; I was stronger, noticeably so, and it was very gratifying. Same story with groceries. My partner was astonished yesterday when I came back from the co-op with a gigantic box of produce, oat milk cartons, and the like, and carried it myself as if it was nothing despite its weird shape. All of this is very good news and provides ample motivation to keep going.
The progress arc at the beginning is very satisfying. Every time I lift I think to myself, there’s no way in hell I’ll be able to lift five pounds more in two days. And then the next workout arrives, and to my astonishment, I can! I’m sure this fast progress will slow down as I progress, but for now, this linear improvement (2.5-lb increments for upper body, 5-lb increments for lower body) is providing a huge motivation boost. This is a good thing. Throughout my life, I’ve often see-sawed between two good sensations: growth (picking up a sport or a skill I know nothing about and getting through the uncomfortable months/years that it takes to become “good enough” to enjoy it) and relishing skill (making small improvements in a sport I’m already quite proficient at.) Sometimes it feels like I need to stay in my comfort zone (as with, say, swimming or flute.) Sometimes I pick up something new (such as tai chi or the handpan.) Now is a time for the latter, and I feel excitement building for when I get “good enough” to know what I’m doing.
I’ve also introduced some changes to my swimming. At the open water swim camp, Celeste taught us to activate our muscles through dryland practice before getting into the water. I’m finding this highly effective, and I’ve made one more adjustment–my sets are shorter and sprintier now. I cover fewer yards overall, but the intensity of the practice has increased, which is exhilarating. I’m also hitting some surprising times with my 50s and 100s – times I hadn’t seen in the pool since I was training for Tampa Bay in 2012. At 48, this is gratifying and makes me feel like I’m doing the right thing.
I’m still not 100% sure what I’m doing, nutrition-wise, despite having gotten excellent advice. Sims’ book, the coaching figures in my life, and my awesome new acquaintance, vegan fitness coach Karina Inkster, have all emphasized two principles: I have to eat a lot more than I’ve been eating, and I have to prioritize protein. These things go hand in hand, because it is a pretty impossible job to double one’s protein intake (especially on a vegan diet) and keep the caloric situation low. Sims discusses the common problem of low energy availability, or LEA, and stresses how crucial it is to fuel properly before, during, and after workouts. We vegans love to scoff at ignorant meat eaters who ask us “where do you get your protein?” and, indeed, one can get a lot of protein on a plant-based diet, but it does require more planning, as the things one should eat (good, plant based food with fiber and phytonutrients) don’t tend to come in easy protein-rich packages. On Karina’s website, one can find lots of excellent resources for protein and other nutrition strategies for vegan athletes. She even has a handy vegan protein calculator, which instructed me to eat twice as much protein as I had been eating. This means I’m chasing protein throughout the day (tofu scramble; adding vegan protein powder to green smoothies; adding hemp, flax, and chia to my morning oatmeal) and all the other calories sort of work themselves out.
I’m also not sure what’s happening with my body size-wise. Despite eating almost twice what I ate during the Big Weight Loss and Health Restoring Project, and despite putting on about 12 lbs or so, my size doesn’t feel significantly different. My measurements are almost the same. The scale is unhelpful, as its body composition readings are inconsistent and bizarre. Parts of me feel more muscular, other parts softer, and, in general, I feel more like a work in progress than like the chiseled ancient Greek statue my mind imprinted on as the picture of health and strength. I can’t argue with the functional improvement, but there is definitely a part of me that is terrified of regaining all the weight I lost through so much effort–if only because I have wonderful clothes and would like to continue wearing them. This is a really interesting and juicy place to explore in meditation–attachment to body, attachment to clothes, the possibility that I purchased my current wardrobe as a protective talisman against weight gain, lots of new things to learn about myself and my relationship to my body.
Spiritually, the whole thing is weird, fun, and a bit discombobulating. One of my favorite teachers, Pema Chödrön, speaks of “positive groundlessness“: coming to a sense of tentative, floating peace with the idea that nothing is permanent and there is really nothing to hold on to:
The idea of letting go of fear and becoming comfortable with groundlessness has been a recurring theme for me in the last few weeks, pretty much since I participated in the Smithfield Trial and experienced the elation of its aftermath. Recently, Wayne Hsiung and I recorded our third podcast together, in which I espoused a theory about the judge’s closed fist where it came to affirmative defenses and evidence in the trial. I’m increasingly convinced that what drives these aggressive judicial court-management maneuvers is the fear that the trial will evolve and bloat into some landmark political moment beyond the judge’s ability to handle. Fear of uncertainty, of having nothing to hold on to, no buffer or protection, drives a lot of behavior, including very bad behavior. This includes my own fear: during the trial, as Wayne and I discuss in the podcast, I was sure that taking a mistrial was the right choice for him, but he decided to take the chance and see what the jury would decide. Happily, he was proven right. It was a moment that taught me that Wayne has more guts than me, and that I need to develop my relationship with positive groundlessness.
In his book Becoming a Man, one of my favorite authors, Paul Monette, wrote: “When you finally come out, there’s a pain that stops, and you know it will never hurt like that again, no matter how much you lose or how bad you die.” I think this is true for virtually anything worth being brave about: animal rights, helping incarcerated people, fighting against an unjust regime, resisting orthodoxies (from the right and from the left), and changing something as solid and fundamental as one’s relationship with one’s body. Let’s just say this lifting journey is a wonderful opportunity to explore my own bravery in picking up something new, and it’s a spiritual journey as well.
While at the American Society of Criminology conference, I had the good luck to run into a colleague I really like and admire–Dirk Van Zyl Smit from the University of Nottingham. Dirk shared with me two recent decisions of the European Court of Human Rights (ECHR), in cases that he worked on (the ECHR allows professors to submit written briefs as “intervenors”, akin to what we do with amicus briefs here in the US), which illuminate the strange contortions that European countries go through in an effort to determine just how much they are willing to passively cooperate with USian punitive barbarism.
A little bit of background: Article 3 of the European Convention on Human Rights states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In 1985, Protocol 6 to the Convention, which abolished the death penalty for all members, entered into effect. In accordance with the Protocol and with Article 3, all European Council members have abolished the death penalty (Belarus is not and has never been a member; Russia was recently expelled.) Moreover, the Council of Europe fights the death penalty within and outside its borders in numerous ways, including the well-documented refusal of its members to provide the U.S. with chemicals used in American execution protocols. One important aspect of this abolition-beyond-borders policy is a European Court of Human Rights case from decades ago, Soering v. United Kingdom (1989), which forbids extradition of people to the U.S. if they might face the death penalty there (virtually all European countries have extradition treaties with the US, as you can see in the above map.) Dirk tells me that the practice in these cases is to ask the U.S. to provide a guarantee that the death penalty will not be sought against the extradited person.
But what about life without parole, another form of USian extreme punishment? In Vinter and Others (2013) the ECHR found that “irreducible” life sentences were inhumane; this was applied in Trabelsi v. Belgium (2014) to the extradition setting. But later, in Harkins v. Home Secretary (2014), England’s High Court of Justice narrowly interpreted Trabelsi as applying only to life sentences that were grossly disproportionate or completely lacking in any mitigation mechanisms (such as commutation or parole.) Harkins and other cases (Wellington and Haffiz) treated Trabelsi as somewhat of an extreme aberration.
The Council of Europe’s hesitation to wage a war against LWOP makes more sense when you consider the LWOP situation in the European countries themselves, who also seem to interpret Trabelsi rather narrowly. Only Croatia, Bosnia and Herzgovina, and Portugal have abolished all forms of indefinite imprisonment. So did Spain, in 1928, but it brought the penalty back in 2015. By contrast, many countries have legally prescribed LWOP sentences: England and Wales, the Netherlands, Moldova, Bulgaria, Italy, Hungary, Malta, Cyprus, Albania, Ukraine, Serbia, and the Republic of Ireland. In some of these countries, evidentiary findings of dangerousness can prevent life prisoners to be released. In Austria and in Ukraine, the only way out of life imprisonment is presidential clemency or a finding that the person will not commit further crimes. As a consequence of Trabelsi, the Netherlands has recently allowed resentencing of life prisoners who have served at least 25 years. Even in LWOP-retentionist European countries, courts retain judicial discretion to decide whether a sentence of life should include parole or not.
One of the two recent cases before the ECHR involved Ismail Sanchez-Sanchez, who was arrested in the UK for his role in a conspiracy to ship more than 2600 kgs of Mexican marijuana to Atlanta, GA. At his extradition hearing, Sanchez-Sanchez argued that there was “a real risk that he would be sentenced to life imprisonment without parole.” The British judge, following the logic of Harkins, tried to assess the likelihood that Sanchez-Sanchez would receive LWOP at his federal trial. For the drug conspiracy alone, Sanchez-Sanchez was unlikely to receive a life sentence on any count, and it was even less likely that he would be serving his sentences consecutively. The fact that one of his co-conspirators died of a fentanyl overdose made it more likely that they prosecution would request a life sentence; such a sentence, however, would not be “irreducible”, as Sanchez Sanchez could appeal, apply for executive clemency, and/or request compassionate release.
The ECHR looked at the case through the lens of both Trabelsi and the British cases, and also received some information from the U.S. federal government that addressed both the prevalence of LWOP in the federal system and the particulars of Sanchez-Sanchez’s case. As to the latter, the U.S. Attorney specified that the prosecution recommended a life sentence for each of Sanchez-Sanchez’s conspirators, but they pled guilty and so avoided that sentence. The ECHR highlights the distinction between acknowledging that LWOP is inhumane as an institution within member countries and applying it to extradition to the US:
Within the domestic context, the applicant’s legal position, having already been convicted and sentenced, is known. Moreover, the domestic system of review of the sentence is likewise known, both to the domestic authorities and the Court. In the extradition context, on the other hand, in a case such as the present where the applicant has not yet been convicted, a complex risk assessment is called for, a tentative prognosis that will inevitably be characterised by a very different level of uncertainty when compared to the domestic context. This calls – as a matter of principle, but also out of practical concerns – for caution in applying the principles flowing from Vinter and Others, which were intended to apply within the domestic context, to their fullest extent in the extradition context. . . Therefore, while the principles set out in Vinter and Others must be applied in domestic cases, an adapted approach is called for in the extradition context.
The first step in this “adapted approach”, according to the ECHR, is an inquiry into the “real risk” that the particular person facing extradition will receive LWOP after extradition. If so, we move on to the second step – an inquiry whether “there exists in the requesting state a mechanism of sentence review which allows the competent authorities there to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.” Because of the uncertainty surrounding Sanchez-Sanchez’s odds of LWOP, as well as the sentences of his co-conspirators, the ECHR concludes that “the applicant cannot be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold”, which renders the second step of the analysis unnecessary.
In the second case, Beverly Ann McCallum, suspected of involvement in the brutal murder of her husband in Michigan, was apprehended in Italy (the murder was a cold case from 2004, solved only in 2015.) During her years of absence from the U.S., her daughter and a friend were charged with first degree murder (the friend pled to second-degree murder; the daughter pled not guilty, was tried, and received LWOP.) The Italian court found that the extradition could go forward given the sentence mitigation options under Michigan law, and McCallum appealed. While awaiting the decision (under home arrest due to ill health), McCallum received a diplomatic note from the Eaton County district attorney, promising that if extradited she would only face second-degree murder charges (no conspiracy charges, only disinterment and mutilation of a dead body), taking LWOP off the table and resulting in a maximum sentence of life with parole. Under Michigan law, lifers are eligible for parole after 15 years, and may also petition the governor for clemency. The Italian authorities, animated by this communique, extradited McCallum to the United States.
Before the ECHR, McCallum argued that the diplomatic note contained insufficient assurances that the Eaton County DA would not revert to the serious charges (note: they did keep their promise despite the brutality of McCallum’s involvement in the murder – H.A.) The ECHR disagreed: Diplomatic notes, they wrote–
are a standard means for the requesting State to provide any assurances which the requested State considers necessary for its consent to extradition. … [T]he Court also recognised that, in international relations, Diplomatic Notes carry a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States. … [I]t seems to the Court that if, following her extradition, the original charges against the applicant were to be revived, that would not be compatible with the duty of good faith performance of treaty obligations.
The ECHR also proceeded to dismiss McCallum’s argument that her eventual release on parole depended on the unchecked discretion of the Governor of Michigan in granting clemency and was therefore “irreducible.” The Court again disagreed, highlighting the fact that the clemency power was procedural, rather than legislated, and had nothing to do with parole, which in Michigan is the sole purview of the parole board:
[T]he Court is not persuaded that the applicant’s understanding of the Michigan system is correct. It observes that. . . a prisoner’s release on parole is at the discretion of the parole board. While the Governor of Michigan indeed enjoys a broad power of executive clemency, he or she is not involved in the parole procedure. Nor do the relevant legal provisions empower the Governor to overrule the grant of parole to a prisoner. As indicated above, appeal against the grant of parole lies to the competent circuit court.
An applicant who alleges that their extradition would expose them to a risk of a sentence that would constitute inhuman or degrading punishment bears the burden of proving the reality of that risk. In light of all of the above-mentioned factors, the Court considers that the applicant has not discharged that burden. Contrary to her claim, it appears that there is no real risk of the applicant receiving an irreducible life sentence, i.e., life imprisonment without eligibility for parole, in the event of conviction of the charges now pending against her in Michigan.
I find two important takeaways here. The first is that the ECHR draws a real line between the death penalty–now widely outside of the acceptable margin of reasonable state behavior for Council of Europe members–and LWOP which, unless absolutely mandatory, remains within the realm of the reasonable. The second is that, among the members of the “extreme punishment trifecta”, life with parole–even with everything we know about the slim odds of obtaining parole–is not in the same league as LWOP, and assurances that the sentence will be the former fully satisfy the requirements of Article 3. What this teaches me is that American exceptionalism seems to have been relegated only to the world of the death penalty, and that Europe isn’t that far ahead of us in fully recognizing the possibility of LWOP as barbaric.
I’m attending the Annual Meeting of the American Society of Criminology and finding many of the talks illuminating and refreshing. It could be that the overall quality of work has improved, or that I make better choices about which panels to attend. Either way, this morning I’m following a series of panels about improving indigent representation, and have just come out of a conversation with the folks who run the campaign to End Justice Fees.
Those who followed the report on Ferguson are not strangers to the problem, but the public at large is likely ignorant of the immense (to the tune of billions of dollars!) toll of court fees and warrants. Even to me–who thought nothing would surprise me after learning about pay-to-stay and the resulting lawsuits–some of the details were shocking. The campaign’s website offers a wealth of information on the different things people get charged for: electronic monitoring, probation (yes, you pay for the pleasure of being monitored!), and–much to my horror–legal defense. Remember Gideon v. Wainwright, the landmark Warren Court case that required states to fund the defense of the indigent? Well, it turns out that, in 42 states, free representation means free for those who pay the fees (three figure amounts that many defendants cannot afford.)
Just like I found out in Cheap on Crime about pay-to-stay schemes, the absurdity of padding the pockets of municipalities and counties by charging the poor, rather than the rich, is in plain evidence. The fees are rarely recouped, resulting in crushing debt that kills the spirit of countless families and does not make up for the deficits. Figuring out the expense of keeping this ridiculous system in place is difficult (I wish someone took this on! I would, but my plate is full), but even though the numbers are elusive, I don’t think it’s outlandish to assume that pursuing lawsuits against hundreds of thousands of people for not paying what, for them, is a lot of money, but for the system is pennies, is not an economically efficient scheme. That this is costly beyond the obvious is evident from yet another horrible data point: in the Alabama Appleseed survey of people with court debt, they found that 38% of respondents had to resort to actually committing a crime in order to be able to pay the court fees (which are sometimes imposed for mere infractions or traffic violations.)
The good folks from End Justice Fees have come to the conclusion that advocacy works better than litigation for eliminating these fees. Here are some of the ground that they’ve made in California, per their website:
CA AB 199 makes the balance of any court-imposed costs assessed prior to July 1, 2022 unenforceable and uncollectible and vacates any portion of a judgment imposing civil assessments charged by traffic courts
Eliminated 17 additional criminal administrative fees and vacated $534 million in outstanding debt (2021).
California’s Families Over Fees Act repealed 23 criminal administrative fees and vacated $16 billion in outstanding debt (2020)
California ended the assessment of new juvenile fees (2017) and discharged outstanding fees (2020)
Ordinance eliminated local criminal administrative fees imposed in San Francisco (2018)
San Francisco made all jail phone calls free for incarcerated people and ended commissary markups (2020)
San Diego eliminated fees for phone calls and video visits (2022)
I’m also happy to report that, per their presentation, we are among the minority of states that do not charge people for their own representation which, under Gideon, indigent folks should pay for free.
The crux of the problem, with litigation, is that Bearden v. Georgia, the case often used to argue against punishing the poor for being poor, requires an investigation of means before incarceration–but the practice in many places is to arrest people for the purpose of assessing their means, which is technically a violation of Bearden but municipalities and courts claim is the only practical way to get ahold of the person.
This strikes me as the sort of initiative that decent people of all political stripes can and should get behind. It should yield the sort of coalitions I covered in Cheap on Crime and bring about more justice on an everyday level without slogans. Want to “dismantle” “abolish” “repeal” “defund” stuff? Here’s a good place to start on the ground and deliver immediate relief to people struggling with financial craziness.
A couple of weeks ago, we passed SB 731, which is another round in a set of efforts to give people with criminal records a fighting chance in life, and in the job market in particular. This Vox article (one of their better “explainers”) comprehensively lays out what the bill will do:
If signed, SB 731 would significantly expand automatic sealing eligibility for people who served time in prison. And while people with violent, serious felony records would not be offered the automatic “clean slate,” they could, for the first time, petition to have their records sealed. Virtually all ex-offenders, except registered sex offenders, would now be eligible for relief.
Under SB 731, while landlords and most employers would not be able to view expunged records, public and private schools would still be able to review them during job background checks. Law enforcement, courts, and the state justice department would also still have access to the sealed records, and individuals would be required to disclose their criminal history if asked about it when applying to serve in a public office, among other exceptions. And the law would not apply to sex offenders.
If signed into law, record relief would become available for most defendants convicted of a felony on or after January 1, 2005, if they had completed their sentence and any remaining parole and probation, and had not been convicted of a new felony offense for four years. Advocates originally wanted records sealed after two years, but that version failed to clear the state assembly a year ago.
Rachel Cohen, “California could give more than a million people with criminal records a fresh start,” Vox, Sep. 9, 2022
If you’re unfamiliar with background checks, you’d be stunned by the sheer number of occupations and life transitions that require clean criminal records. It’s pervasive and it has a deeply unsavory racial aspect. David McElhattan of Purdue University found out that, between 1983 and 2013, the number of institutional thresholds where background checks frighteningly mushroomed, and not only that: The rate at which state institutions adopted background checks increased as African-Americans represented larger shares of state criminal record populations. McElhattan also found considerable support for racial economic threat and, to a lesser extent, ethnic economic threat–and only a weak association between background checks and violent crime.
A few years ago, I was part of a statewide effort to give people with criminal records the ability to at least get through the first stage of employment screening, which resulted in the Ban the Box initiative. Not only did we believe this would lead to less discrimination against people with criminal records, but we thought it would minimize employers’ use of criminal records as a proxy for race. I wrote about this experience here, and especially about its aftermath: to my deep disappointment, my colleagues Jennifer Doleac and Benjamin Hansen found out that employers, unable to discriminate against people based on their criminal record, went back to… discriminating by race as a proxy for criminal records. I concluded that race in America has a protean quality that makes discrimination pop up somehow, no matter what we try to do to undo it. This led me to the bitter observation that any effort to curb overt racism (such as in Foster v. Chatman) seems to just drive the racism underground. What prosecutors once did by scribbling notes at the margins of their work product, they probably now do via snapchat.
This doesn’t mean we have to stop trying, and I’m glad we’ll have a chance to see whether SB 731 works as planned. But my problem with the incompleteness of this bill goes deeper than that: like pretty much everything else I’ve been paying close attention to in the last few years, the people left outside this bill are precisely the people who would benefit the most from it, and the surest bets on clean slate proposals. I refer to people released from prison after serving very long stretches of time for, well, violent crime.
As I explained in Yesterday’s Monsters, and as we further explain in FESTER, any time leniency or mercy comes up, politicians and the public are conditioned to create an exception for “violent offenders”, which we imperfectly define as people convicted for violent crimes. For the many reasons that my colleague David Sklansky explains in his new book, it is not always clear what counts as a “violent crime”–and for the reasons my colleague Susan Turner has repeatedlyexplained, there isn’t really much of an overlap between the crime of conviction and the risk the person actually poses.
There is an excellent reason for this, which I’ve come to referto as “the age-violence knot”: people who are convicted of violent crimes are sentenced to long stretches–sometimes decades–in prison. Because of that, when they come out, sometimes after numerous hearings, they are much older–and are now an important demographic in California (a quarter of our prison population is over 50.) Tomorrow is my 48th birthday, and I have increased appreciation of the way age changes mentality–and I, of course, benefit from freedom, loving people, resources, an excellent education, a comfortable job, a lot of sports, and healthy nutrition. Imagine what 20-30 brutal years in these areas do to a person’s body and soul. We know people tend to age out of violent street crime in their late 20s; they become far less risky and far more expensive (healthcare-wise) the more they are incarcerated. My fieldwork for Yesterday’s Monsters included visiting places in which parole agents spoke with a lot of respect and care about these aging folks, many of them lifers, as mature, nonviolent, mentoring influences both in the yard and on the outside. These are precisely the people that are already going to face a ton of discrimination in the job market because they’d be fighting for jobs against much younger candidates, and with a complicated résumé to explain. The advantages of giving these folks a leg up are manifold, and the only reason we don’t do it is the murky political optics of “forgiving violent people.” As long as we exclude this group, we’ll continue to miss out on getting the most bang out of the reentry buck, and it’s beginning to feel like I will have to sing this refrain for many more years of my career.
While I was focus on witness prep for the #SmithfieldTrial, my friend Allison Villegas shared a piece of good news: on Thursday, the Attorney General filed a notice that he is dropping the state’s appeal in In re Hall et al.
To recap what happened: Since the outbreak at San Quentin erupted in late May/early June 2020, hundreds of people incarcerated there litigated, asking to be delivered from the environment of infection, hospitalization, fear, misinformation, neglect, ineptitude, and death that characterized the prison’s response to the outbreak. Our litigation led to the landmark decision In re Von Staich, in which the Court of Appeal ordered that the population at Quentin be reduced to 50% of design capacity (as the physician group AMEND SF recommended.) We later had a reversal of fortune at the hands of the CA Supreme Court, which ordered an evidentiary hearing (a year after the fact, but waves of COVID continued to ravage the prison.) At the evidentiary hearing, things looked even bleaker for the states, as witnesses testifying from Quentin via Zoom revealed layer after layer of what they suffered at the hands of nincompoops, COVID denialists, and a prison administrative system in which the custodial and the medical sides have no understanding of each other. In October 2021, Judge Howard issued a tentative ruling in which he accepted every claim we made about the horrific and unconstitutional abuse that the men were subjected to, and wrote that the Eighth Amendment was violated in no uncertain terms, but… did not give us any relief, because presumably the whole case was “moot” as “the vaccine changed the game for COVID-19 at San Quentin. With a nearly 80 percent inmate vaccination rate, COVID-19 has all but disappeared from inside the prison. Although COVID-19 remains a risk within San Quentin, it appears at present no more than, and perhaps even less than, the risk faced by the community at large.”
This was, in itself, outrageous, and not exactly true even when it was written: the Delta variant began making its way through the prison. Shortly after, we saw the shortsightedness of not getting relief when Omicron swept through the system. To add insult to injury, while the petitioners chose not to appeal the decision (a choice I still feel quite crummy about), a surprising thing happened: the state appealed, even though we actually received no relief!
Back in summer 2020, Rob Bonta, then an Assemblymember from San Mateo, stood shoulder to shoulder with us at the press conference, speaking so movingly about the preventable disaster at Quentin that he was quoted in the guardian. But by March 2021, when he was appointed Attorney General, he apparently forgot all this. At the time, thinking the same person would keep the same conscience, I made a list of all the things he could do to help, and I confess that “refraining from appealing a decision in which the prisoners got no relief only to save the honor of CDCR at the taxpayers’ expense” was not something that even occurred to me needed to be said! But lo and behold, the AG office did appeal the ruling, God knows why, which prompted me to ask what I still think is an excellent question: What, actually, is the Attorney General’s job? Does the Attorney General work for all Californians all the time–including Californians behind bars–or does he become a hired gun when he’s in litigation? Does it make sense to posture as a science-forward, vaccine-forward AG when the time comes to require vaccines in schools, while at the same time becoming the Tom Hagan of the prison guard’s union when they don’t want a vaccine mandate because they are “his client”?
Thursday’s decision to pull this tasteless, tone-deft, and frankly, disgusting appeal, comes two years too late, when it doesn’t make news or waves, but it at least gives back a modicum of decency to an office that showed absolutely none throughout this entire crisis. We write extensively about the AG’s role in curtailing releases and supporting COVID denialists in uniform in Chapter 7 of #FESTER.
I have excellent news. After almost eight hours of deliberation, the jury found both Wayne and Paul NOT GUILTY of burglary and theft. They are free!
This is a resounding victory for the animal rights movement, for the #RightToRescue, for open rescue activists, and for everyone who has compassion.
It is also a resounding victory for the curiosity, thoroughness, and courage of the jury, who saw through the evidentiary obstacle course that Judge Wilcox concocted for them and through the machinations of Smithfield. It is a resounding victory for anyone who wants their taxpayer money to be spent on worthy causes, not on persecuting innocent animals and their friends.
It is also a resounding victory for excellent lawyering – Wayne, who represented himself and did an incredible job despite having his life on the line; Mary Corporon, who represented Paul with a wealth of experience, talent, common sense, and wit; and numerous wonderful law students (Andre, Taj, Josh) who worked tirelessly backstage on legal arguments, research, and strategy.
Here’s what I learned from following this trial, and especially from paying attention to the jury’s questions: even when people’s hearts are in the right place, and they want to do the right thing, it is essential to give them a legal “hook” for the decision. In this case, in the absence of necessity, the “hook” was the argument about the value of the pigs. In many ways, this was better than having the necessity defense available, in that the argument was so technical, so value neutral, and so part of the legal core of the elements of the offense, that it might have provided a bridge between those who were moved to acquit on ideology and those who could not bring themselves to do that outside of the law and facts. This is something we can all take from this to animal rights lawyering everywhere.
This is also an important lesson for activists planning open rescues in the future about how to craft their rescue in ways that skirt such trumped-up charges.
And it is a lesson to powerful corporations in the cruelty business and their state attorney lackeys not to persecute, hound, overcharge, and expend resources to abuse, people who save animals.
The first thing you notice upon waking up in Saint George, Utah, is the breathtaking, majestic beauty of the mountains. The striking nearby towering rocks, a bright red against the blue sky, are echoed in the grandeur of the far away mountains in shades of gray and blue. Let your gaze drop a bit and you’ll contrast this dramatic natural scenery with the ugly sprawl of an extensive strip mall, festooned with motels, cheap restaurants, and highways. But much of the town is a celebration of beauty, starting with its most visible landmark. Established by Mormons who fled Vermont and then Illinois, the town was divided into lots, which were raffled between the pioneer cotton-growing families. Brigham Young, whose winter residence is open for public touring, dreamed up the big temple, which gleams in its colossal whiteness, along with its steeple, in the middle of town. Elder Edwards, who leads the tour, tells us that Young was unhappy with the original, shorter steeple; After his death, lightning struck the offending steeple, which persuaded the townspeople that Young was speaking to them from the next world, and they built one of more impressive stature.
Mormon Temple in St. George, Utah
The town nowadays is a mix of Mormon heritage, a faith still practiced by much of the population and ever-present in landmarks and street names; college professors and students from Utah Tech and Dixie University, among other institutions; artists, who are responsible for the many works of public art decorating the town’s many squares and traffic circles; and endurance athletes running and cycling along the mountainous trails. There is a phenomenal independent bookstore, an old-fashioned barbershop, a historical theatre showing international horror films, and a vegan restaurant, Gaia’s Garden Café, which whips up delicious rice bowls and exquisite matcha lattes.
In the center of town stands the Fifth District Courthouse, where my friends, Wayne Hsiung and Paul Picklesimer, stood trial this week for burglary and theft. The facts? Wayne and Paul, along with two others who pleaded out, entered a pig factory farm in Beaver County, Utah, operated by Smithfield Foods, and rescued two dying piglets, Lily and Lizzie.
“Operation Deathstar”, featuring footage capture by DxE activists.
The two piglets the activists removed from the facility, Lily and Lizzie, were nearly dying, suffering from a variety of ailments. Importantly, Smithfield had falsely declared that it ceased its use of gestation crates (confinement cages for mother pigs that do not leave them any room to move), and the investigation exposed that these were still in use.
Smithfield was extremely invested in its good name, which allowed it to market its pig meat as “humanely raised.” Exposing the truth would have adverse consequences for the company. And so began an investigation by the FBI, which would not only involve spending my tax money and yours on an extensive hunt for the piglets by a “six-car armada of FBI agents in bulletproof vests”, but also hurting the pigs and traumatizing sanctuary employees. Glenn Greenwald, who covered the story for the Intercept, wrote:
The attachments to the search warrants specified that the FBI agents could take “DNA samples (blood, hair follicles or ear clippings) to be seized from swine with the following characteristics: I. Pink/white coloring; II. Docked tails; III. Approximately 5 to 9 months in age; IV. Any swine with a hole in right ear.”
The FBI agents searched the premises of both shelters. They demanded DNA samples of two piglets they said were named Lucy and Ethel, in order to determine whether they were the two ailing piglets who had been rescued weeks earlier from Smithfield.
A representative of Luvin Arms, who insisted on anonymity due to fear of the pending criminal investigation, described the events. The FBI agents ordered staff and volunteers to stay away from the animals and then approached the piglets. To obtain the DNA samples, the state veterinarians accompanying the FBI used a snare to pressurize the piglet’s snout, thus immobilizing her in pain and fear, and then cut off close to two inches of the piglet’s ear.
The piglet’s pain was so severe, and her screams so piercing, that the sanctuary’s staff members screamed and cried. Even the FBI agents were so sufficiently disturbed by the resulting trauma, that they directed the veterinarians not to subject the second piglet to the procedure. The sanctuary representative recounted that the piglet who had part of her ear removed spent weeks depressed and scared, barely moving or eating, and still has not fully recovered. The FBI “receipt” given to the sanctuaries shows they took DNA samples “from swine.”
Several volunteers at one of the raided animal shelters said they were followed back to their homes by FBI agents, who dramatically questioned them in front of family members and neighbors. And there is even reason to believe that the bureau has been surveilling the activists’ private communications regarding the rescue of this piglet duo.
Value of the pigs
Lest this suggest that the pigs were of immense value to Smithfield, between 15 and 20 percent of the piglets, who grow up sickly and starved in the factory conditions, are exterminated. And sometimes, this mass extermination take the form of mass suffocation, as another DxE investigation revealed in 2020. Matt Johnson, who uncovered this horrifying practice, was charged with a violation of Iowa’s ag-gag laws, but the charges against him were dropped. It’s worth reading Marina Bolotnikova’s Current Affairs story about Matt’s legal exploits.
Paul and Wayne were not so lucky, and the trial against them, with charges for agricultural burglary and theft, proceeded, animated by the interest of Utah’s state attorney, who receives campaign donations from Smithfield. On Wednesday night, I flew to Las Vegas and drove two hours into St. George, ready to testify on Wayne’s behalf.
I was not there as an expert witness, but rather as a character witness: I know, like, and respect Wayne, have collaborated with him on lawful campaigns such as the fur ban in San Francisco (which was successful and later expanded throughout California), have spoken on his podcast, and have invited him to my classroom to show the footage and speak with my students (many of whom considered his visit the highlight of the entire course.) Coming up with a witness list and crafting the legal arguments was complicated. Judge Wilcox, who presided over the trial, severely limited what would and would not be admitted. In a series of blog posts, and in a book chapter, I explained that the natural legal framework in open rescue cases was the necessity defense: a justification for breaking the law in order to prevent a worse evil from occurring where no legal options to prevent it exist. But arguing necessity would open the door to ample proof of this “worse evil”, including showing the footage of Smithfield’s barbaric practices, and that Judge Wilcox did not want to allow. So, Wayne and Paul would rely on other defenses: claim of right, lack of mens rea (no “intent to commit a felony within”), and a lack of value of the “property” in question. They would show the footage to illustrate that the piglets were worthless to Smithfield. Even so, Wayne, Paul, Paul’s Utah attorney Mary Corporon, and the small team of dedicated law students who supported them with research, would face a ferocious uphill battle in their efforts to introduce relevant evidence in the face of Judge Wilcox’s determination that this was “a burglary case” and he would not tolerate it becoming a political soapbox.
Because I gave testimony only on Friday, I was banned from watching the trial footage in advance. I say “trial footage” because Judge Wilcox, who described the activists as “criminals” and “vigilantes” severely curtailed access to the trial. The activists, many of whom flew or drove hundreds of miles to support the defendants, would not be allowed in the courtroom. Judge Wilcox allowed only five people in the court at the time, anonymized the jury and, at some point on Thursday, cut off the WebEx streaming of the case, launching into an angry tirade against “vigilantes” (there is no evidence of intimidation or, really, anything that was not peaceful, 100% legitimate protest). Moreover, the legal team, who operated from a nearby AirBnB, saw strangers in suits skulking around the bushes surrounding the property and removing their trash, and when they came out to speak to them, the strangers fled in a black van, saying something into a worn microphone, and falsely claimed to be the “owners” of the AirBnB. At least one side of the trial was determined to uphold due process, and I didn’t want to mingle with the activists who were watching the trial, so I spent hours on Thursday hiking the mountain ridge and visiting Pioneer Park,Red Cliffs Desert Garden, and several city landmarks, like the temple and Brigham Young’s home. I got to talk to a lot of kind and pleasant city residents, many of whom knew that the trial was taking place there (it landed there through a change of venue from Beaver County, where half the jury pool would be comprised of Smithfield employees.) Throughout it all, I wondered why this trial evoked such panic or, more accurately, why the panic was so painfully misdirected at those who exposed the horrific cruelty rather than those who perpetuated it.
The answer I came up with, which I later saw play out again and again throughout the trial, was this: There is nothing more threatening to a human being than raising even the remote possibility that one is not a good person. People will go to incredible lengths of self deception, cognitive contortion, and actions in the world, to avoid confronting even the remotest possibility of a blemish on the goodness that is such an inexorable part of their self identity. This is true for all those who consume Smithfield’s products, or, really, any other animal products, and try to avoid any footage that might show them that they are complicit in something horrible. This is also true for all those who protect these abominable secrets–law enforcement agents, prosecutors, judges–who so desperately want to cling to the belief that they are the good guys and on the right side of this that they flout due process, the constitutional public trial clause, the jury trial rights, and pretty much any other constitutional protection the defense has.
Fifth District Courthous
The panicked blockade of transparency was evident throughout the trial (as I’m now piecing together from what I saw with my own eyes, my conversations with the legal team and the journalists, and the WebEx footage and twitter stream I followed after I got off the stand.) During voir dire, one prospective juror said he knew what jury nullification (the power of the jury to decide a case according to their moral convictions, rather than the law and the evidence) was. The judge struck him, saying that he wanted to “save a peremptory challenge for the prosecution.” This strikes me as outrageous, even against the backdrop of hostility to nullification in criminal courts. Judges admonish juries that they must decide the case according to the law and the evidence, and, as explained in this useful and well-written piece by Jordan Paul, “deliberately conceal [nullification power] by scrubbing references to nullification from the entire process.” In United States v. Kleinman, a Ninth Circuit case, the Court held that a jury instruction “severely admonishing” against nullification was unconstitutional, but that the resulting error was harmless. But the fact that nullification exists and is lawful is a matter of general knowledge, so it seems that Judge Wilcox overstepped the constitutional line here.
It would not be the last time. The most ferocious battles in court were fought over the extent to which the very limited allowable defense scope (what with necessity and, subsequently, claim of right off the table) required showing the jury footage from Smithfield. The entire field of evidence law deals with the balance between admitting evidence with probative value and suppressing evidence that is prejudicial. The kicker, of course, is that what makes a good piece of evidence probative is also what makes it prejudicial–namely, that it evokes a strong response. This kind of strong response might suggest that there is something awry at Smithfield and, by extension, that consuming their pork was not a good thing to do, so Judge Wilcox would not allow it. Many of the films were censored and limited to still images. In a more reasonable decision, the judge cut off the sound of the video, to exclude Wayne’s narration of what he was seeing inside the facility. but with the effect of silencing the agonized screams of the pigs. Nevertheless, some footage would have to be allowed, because of its direct import to the questions of mens rea and value. To commit agricultural burglary in Utah, one must have a specific intent to remove property: Wayne and Paul argued that their intent was to document conditions on the ground, and that the removal of the pigs was for the purpose of saving them. As to value, Wayne and Paul argued that the pigs, deathly ill from deprivation, a foot injury, and an inability to nurse, were of no value to Smithfield, undermining the definition of “property” in Utah’s theft statute.
The jury trial for Hsiung and Picklesimer stretched throughout the week, and was filled with objections from the attorneys in an attempt to keep the trial within the parameters set by the judge. Mary Corporon, who represents Picklesimer, and Hsiung, representing himself, would argue that certain steps taken by the state should allow them to bring in more information about the farm conditions, including showing the video.
Janise Macanas and Von Christiansen, Beaver County attorneys, objected when a witness started talking about other conditions, specifically about a dumpster on the farm with dead piglets inside or the mother pig’s health.
Testimony was offered by veterinarians chosen by both sides, an investigator, a Smithfield employee and a man who was part of the same undercover operation of the farm in 2017.
After all of the testimony in the case had been offered, the judge issued a directed verdict dismissing the first count against both Picklesimer and Hsiung. Corporon argued that each of the burglary counts was specific to a building, and that the two defendants did not expect to see piglets in a gestation barn — meaning they would not have been entering the barn with an intent to steal.
There was also a discussion about a possible mistrial. Hsiung and Corporon argued that the prosecution asking a state veterinarian about care for the pigs at the farm opened the door for them to bring in new evidence about the conditions of the farm. The prosecutor said that was simply an effort to show that the two specific piglets would have had a chance of receiving medical care that next day.
The judge said bringing in that much new evidence at the end of the day on the last day of trial was not an option.
“I’m not going to open up testimony again in this case, and if we need a mistrial, we’ll have one,” Wilcox said.
Ultimately, Corporon and Hsiung decided to continue with the trial, after the state’s attorneys agreed with asking the jury to not take into account that testimony.
On Thursday, Hsiung called himself to the witness stand, asking himself questions and then opening himself up to questions from the other attorneys. While questioning himself, he admitted to taking the piglets, but said it was not theft because he took piglets that were of no value to Smithfield.
Hsiung said the case is not about burglary and theft but about animal cruelty and animal rescue. The two piglets were given names after they were taken from the facility, Lilly and Lizzie, and he spoke about their conditions.
Although he said they did not intend to take piglets, during his testimony he admitted they had a veterinarian on hand in case they brought out animals and that they had evidence that there were animals dying on the farm. Hsiung said they had taken animals in the past during similar operations, sometimes with the owner’s permission.
He argued that he had a belief that the piglets were abandoned property, and prompted witnesses to testify that the piglets were more of a liability to Smithfield and he may have been helping them by removing the piglets from the property. Ultimately, though, he said the purpose was to save the piglets from “certain death.”
“We were not there to be burglars or thieves,” Hsiung told the jury. “We were there just to give aid to dying animals.”
I witnessed the judge’s wrestling with the factory farm content firsthand. Under direct examination, I spoke about how Wayne and I met and about some of the animal rights advocacy we had done together. When asked to give examples of Wayne’s honesty and integrity, I started explaining how open rescue works–that open rescuers keep their faces revealed and their identities known and take responsibility for what they’ve done even when it means facing scary consequences. Just as I started speaking, Janise Macanas objected, the judge (who seems to have been a bit taken aback by fancy professors siding with the defendants) put the kibosh on the rest of my testimony, and that was that.
Here’s what I would have said, if I were allowed to speak: Wayne’s honesty and integrity are obvious to anyone who meets him. His willingness not only to face incarceration in Utah, but possibly to lose his license to practice law in California (a previous attempt to disbar him for saving animals failed), is admirable. Every social movement that tries to improve the world must encompass lots of different people: the food engineers and companies that bring us Beyond Burgers, the chefs and bloggers who bring us wonderful vegan recipes, the mainstream advocacy groups that seek legal change, the law clinics and nonprofits, and yes, the people who are willing, at great expense and sacrifice, to actually risk going into these horrendous facilities and tell us how our food is being made. These folks provide an invaluable service to the movement, which should embrace them rather than distancing itself from them. It’s crystal clear who the good guys and who the bad guys are in this case. And intelligent, curious people should be very suspicious when someone is trying to keep important information from them.
The mistrial issue was quite heartwrenching to experience. Dr. Sherstin Rosenberg, the veterinarian at Happy Hen sanctuary, testified about the condition of the piglets, discussing their inability to nurse and their injuries. Not content with this, the prosecution put Dr. Dean Taylor, the state veterinarian, on the stand as a rebuttal witness. But it turned out, during Dr. Taylor’s evidence, that Smithfield employed a grand total of two veterinarians for more than a million pigs. Later rebuttal testimony from a Smithfield employee, which confirmed this, led to a flood of questions from the jury about the medical condition of pigs at Smithfield (to the point that I wondered how many of the jurors would eschew pork, or become vegan altogether, after this trial). Judge Wilcox was visibly despaired by all this. He had tried so hard to rein in the trial and avoid discussing the real issues, but, despite his best efforts, the animal cruelty stuff slipped from under him and occupied front and center at the trial. In desperation, he proposed holding a mistrial. I thought this would be a fantastic end to the whole thing. My hope (perhaps misguided?) was that the state of Utah would realize that they should stop throwing good taxpayer money after bad, and refrain from reprosecuting–particularly in Paul’s case. I also hoped (perhaps against hope?) that, after declaring a mistrial, Judge Wilcox would pick up the phone, call the state attorney, and tell him that reprosecution was not worth it. But Wayne and Paul decided to proceed forward with the trial. The unsatisfying compromise was that Judge Wilcox instructed the jury to ignore the rebuttal testimony from the veterinarian and the Smithfield employee.
What happened at closing arguments is aptly described in the KSL article:
On Friday evening, Christiansen claimed Hsiung admitted to taking the animal, but attempted to minimize his crime with contradictory testimony. He said Hsiung testified that he didn’t intend to take a pig, but in the script of the video shared at trial, Hsiung said, “If we see an animal we can take out, we’ll take them out.”
He talked about how Hsuing and the rest of the group went into the facility on March 6 and March 7, but did not take any animals on March 6. Christiansen said this shows they were not just taking piglets that needed emergency care but were taking pigs as part of a publicity move.
“The pigs were just props in a video, props in a movie,” Christiansen said.
He said the animals were alive and did have value, and any evidence of poor health displayed at trial is speculation.
Christiansen also talked about the charges for Picklesimer, and said holding the camera was a very important role in the burglary, allowing Direct Action Everywhere to produce a video and raise donations.
“Every person that participated in the burglary that night was part of the crime,” the prosecutor said.
Picklesimer’s attorney, however, said he did not even touch a pig, and did not intend to commit a theft and should not be held accountable for something he didn’t do.
She told the jury if they do believe Picklesimer might be guilty based on being part of the group, the should directly consider the worth of the piglets to Smithfield.
“Bottom line these piglets are worth nothing, it’s a net negative,” Corporon said.
She said what Picklesimer did was like standing next to someone else who was emptying a trash can.
Hsiung presented his arguments last, making a plea to the jury to consider their feelings and recognize a difference between stealing an animal and helping an animal.
“We did not intend to take a piglet out who had anything of value for Smithfield,” Hsiung said, arguing that these two piglets did not have any commercial value.
He told the jury he did not want to be acquitted based on a technicality, but hoped they would make a ruling that would make a difference to animal rights.
“If you defend our right to give aid to dying animals, defend the right of all citizens to aid dying and sick and injured animals, there’s somethings that will happen in this world. Companies will be a little more compassionate to the creatures under their stewardship. Governments will be a little more open to animal cruelty complaints. And maybe, just maybe, a baby pig like Lilly won’t have to starve to death on the floor of a factory farm,” Hsiung said.
He argued that theft and burglary are not the right way to charge him in this case, and suggested different steps should be taken to address actions like this, including companies and governments listening to their suggestions or charges for trespassing.
I’m now back at home, processing what I saw and heard at the trial, as the jury in St. George is deliberating the verdict. I very much hope that the little exposure they received to the horrendous evil that is factory farming will persuade them of the negligible value this “property” has for its “owners”. I only wish they could see the piglets now. One member of the legal team, who lives in Colorado, gets to visit with the pigs once ever few weeks, and reports that they are lovely and doing very well. I also hope Wayne and Paul made the right call. We had some conversations about whether going with the mistrial was “good for the movement” or not; both parties made numerous mistakes, as is inevitable in the course of a complicated trial, and those would not be repeated in the second trial. But a well educated, curious jury is also something that is difficult to give up. Having done my very small part in this case, I’m keeping my fingers crossed for the right outcome. If you want more coverage, following @SmithfieldTrial on twitter, as well as journalist Marina Bolotnikova and activist Jeremy Beckham, will be useful, or use the hashtag #SmithfieldTrial.
