It looks like the event I hardly imagined could ever happen might happen: Gov. Newsom announced that he would not appeal the Court of Appeal’s decision to reinstate Leslie Van Houten’s parole. The Associated Press reported Newsom’s obligatory statement, as well as some valuable words from Van Houten’s attorney:
In a brief statement, the governor’s office said it was unlikely that the state’s high court would consider an appeal of a lower court ruling that Van Houten should be released.
Gov. Gavin Newsom is disappointed, the statement said.
“More than 50 years after the Manson cult committed these brutal killings, the victims’ families still feel the impact,” the statement said.
. . .
“She’s thrilled and she’s overwhelmed,” [her attorney Nancy] Tetreault said.
“She’s just grateful that people are recognizing that she’s not the same person that she was when she committed the murders,” she said.
After she’s released, Van Houten will spend about a year in a halfway house, learning basic life skills such as how to go to the grocery and get a debit card, Tetreault said.
“She’s been in prison for 53 years. … She just needs to learn how to use an ATM machine, let alone a cell phone, let alone a computer,” her attorney said.
In the last chapter of Yesterday’s Monsters I looked at factors that might or might not be conducive to the release of any of the people I featured in the book. What paved the way to Van Houten’s release was the reemergence of adolescence as a relevant factor for parole; she had been living an exemplary life of self-reflection and rehabilitation for many years and was nonetheless repeatedly denied based on “lack of insight”, which, as I and others have discussed, is nonfalsifiable. The Commissioners had always known that Van Houten was 19 when she participated in the LaBianca murders, but a series of Supreme Court decisions gave them explicit permission to consider her age, and that’s what tipped the scales.
I now see these cases through the broader prism that Chad Goerzen and I develop in FESTER (coming to a store near you in January 2024), which highlights the travesty of turning our prisons into geriatric facilities. Beyond the obvious issue of medical risk, there is the question of what freedom looks like to a septuagenarian leaving prison after 53 years. Even without the added difficulty of immense stigma and animosity, Van Houten, who is a bright, thoughtful, and talented person, and who has academic degrees, will find it very hard to find and hold a job in this market. She has had to endure a lot behind bars, and her reentry is unlikely to be very easy. I wish her all the best. Our paths did not cross–she did not wish to be interviewed for Yesterdays’ Monsters–but I very much hope they will some day.
Filmmaker Omer Yefman and I went to school together and, after wanting to see his films for years, yesterday I finally had an opportunity to attend a screening of Holding It In (2020), his film with his partner Chen Rotem, an honest, no-barred-holds window into their surrogacy journey.
I’ve been interested in Omer’s work since hearing about All Happy Mornings (2012), in which he and Chen opened up about Omer’s bisexuality and their complicated journey into nonmonogamy (something I had written about from a legalandsociologicalperspective.) I remembered him vividly from our school days as an authentic, real person, who met the world around him with humility and curiosity, and it was a pleasant discovery (though not at all a surprise) that Chen is also a fantastic and openminded person. I especially appreciated the film’s entry into a fraught conversation in Israel about surrogacy. Israel’s limited adoption market, a product of its decided natalism, means that people aggressively pursue IVF treatments with enormous social backing, and that queer couples and people for whom IVF is not an option pursue surrogacy. This has produced a ferocious debate in the queer community about the power differential and exploitative potential of surrogacy, as well as legislation that excluded same-sex couples from surrogacy in Israel (surrogacy is still an option for opposite-sex couples and single women.) Some surrogates have spoken up against the assumption that they are exploited or powerless in the relationship, while other commentators have dismissed their perspective as privileged and not representative of the overall population of surrogates.
Issues of money and power are not at the center of Chen and Omer’s journey–they are frank and vulnerable about conversations of partnership, giving, children, family time, and camaraderie before and during Chen’s pregnancy–but they are not far from the surface. In one scene, Chen and Omer’s two young kids are asleep in the back seat of the car while the parents discuss Omer’s discomfort using “surrogacy money” to go on a family vacation abroad. Earlier in the film, discussing their decision with friends, Chen is adamant that she would insist on paying for surrogacy, and there’s an agreement that payment is fair and important given the sacrifice and risk. “It’s our money,” Chen says. “I’m still uncomfortable,” Omer replies.
Surrogacy and adoption are distinguishable in important ways: by contrast to surrogacy, which is a service from the get-go (in one touching scene, Chen explains to her young kids that the baby is “a guest in our family” who “will return to his parents” after he is born), the decision to place a child for adoption can only be made after the child is born, no matter what theoretical agreements birthparents and adoptive parents reach before the birth, and therefore there is no compensation, as such, beforehand, which could be constituted as bribe. But to say this is to some extent hypocritical. I’ve written before about the fact that, like surrogacy, adoption is a situation in which a baby usually passes from poorer hands to wealthier hands, while money changes hands in the opposite direction. The meticulous limitations on what is, and is not, remunerable, obscure this important point–an effort to quantify the unquantifiable. Regardless of the legal or ethical taxonomy of payments (support? compensation?) the quantification of such a fundamental and immense human process is at the heart of the discomfort.
Because of this deep truth, people on both sides of either adoption or surrogacy relationships would do well to remember that there are some things that this money should not buy. One of the most stunning moments in the film, for me, was when Chen returned from a medical checkup and told Omer that the prospective parents discussed a C-section with the doctor–without having discussed it with her first. Here’s the scene:
I felt rage bubbling in me while watching this scene. I’ve been in a similar situation from the opposite side, I thought. Someone else gave birth to my child. And it would never occur to me to make any demands, requests, suggestions anything at all about the birth. I feel very strongly that the only person who should be entitled to make decisions about a birth (what form it would take and who would be in the room, to name just two factors) is the person giving birth. As the scene progressed, Omer’s resentment toward the parents was palpable, while Chen explained that she did not want him to be angry on her behalf and that she was listening and trying to see things from their perspective (in the conversation we had after the movie, some details emerged that somewhat ameliorated, though did by no means eliminate, my deep concerns about the parents’ stance.) I had to actively remind myself that it was also Chen’s choice whether to feel resentful or not, and that adoption was fundamentally different from surrogacy. A birthmom gives birth to her own child and therefore makes her own decisions. A surrogate gives birth to someone else’s child. But a birth is a birth, I thought. What can be more personal than giving birth, regardless of the genetics of the child? The greatness of the film is that it is willing to ask these difficult questions without giving pat answers that rely on definitions and self righteousness.
And this is at the heart of my deep appreciation for the film: more than a film about an unusual, deeply stirring journey, it was a film about two incredibly brave and honest people, who are willing to confront not only complicated social and psychological questions, but their own demons, and to do so authentically in front of a camera. Their struggles and epiphanies are never self-serving, and never take the form of the all-too-common “lived experience” narrative one encounters all around us, where people marinate in their own goodness publicly. We’re flawed, just like everyone else, they seemed to say, and we want to share our process with you. In our conversation after the show, the filmmakers mentioned that, while documenting their experience, they weren’t thinking “people will be seeing this later”, but I think that there is a profound act of service in making this film that parallels the profound service of surrogacy. By opening a window into their personal life, far from generalizing their experience or making ethical proclamations, Chen and Omer are offering me and you an opportunity to engage with our own sense of ethics and question even the assumptions we clutch most tightly. What more can one possibly want from a film?
It is the nature of character assassination scandals, and a consequence of their frequency, that after a while they are forgotten by all except the people whose lives were destroyed by them. Such was the fate of Michelle Dauber’s cruel and idiotic crusade against Judge Aaron Persky in the aftermath of the Brock Turner scandal, which swept a lot of ill-informed progressive punitives with pitchforks and led to the destruction of his judicial career (and later, the destruction of his livelihood as a tennis coach.)
For all the shrill shrieking about “privilege”, pretty much every criminal justice academic I respect in the Bay Area warned at the time that recalling judges for lenient sentencing (especially, as in this case, following the probation recommendation) would make punishment harsher and much worse for everyone–especially for people who looked and lived nothing like Brock Turner. I was one of the first signatories and vividly remember shouting this from the rooftops, as well as seeing it as part of an appalling pattern of the left eating its own with no rhyme or reason.
As everyone worth their salt predicted, the recall did have an effect on criminal punishment in Santa Clara county: it made it harsher. As my colleagues Sanford Gordon and Sidak Yntiso found:
Using disposition data from six California counties and arrest records for a subset of defendants, we find a large, discontinuous increase in sentencing severity associated with the recall campaign’s announcement. Additional tests suggest that the observed shift may be attributed to changes in judicial preferences over sentencing and not strategic adjustment by prosecutors. We also demonstrate that the heterogeneous effects of the announcement did not mitigate preexisting racial disparities. Our findings are the first to document the incentive effects of recall and suggest that targeted political campaigns may have far-reaching, unintended consequences.
In other words: the fearless, plucky lefties who led this hysterical campaign can take pride in the fact that their relentless persecution of Persky empowered and enhanced carceral repression across the board, not necessarily making a dent in prevention/accountability for sex crimes, and harming precisely the people without “privilege” that they presumably sought to protect with this destructive campaign.
Why am I revisiting this? For two reasons. First, because I don’t want us to forget that these sorts of actions have consequences. I know that many on the left are already sickened by years of ugly, disastrous infighting. As Freddie DeBoer recently wrote:
I certainly would not say that the age of canceling is over. There will be public scandals to come; people will suffer major career and social consequences because of public anger. Sometimes they’ll deserve it. And maybe this is just a lull and the same old songs will get sung again and again.
But at this stage I find it hard to deny that the sense of palpable fear so many operated under, the feeling that the prosecutors held all the cards, appears to be in terminal decline. People just aren’t afraid in the same way anymore. The mob doesn’t have the momentum. The big bad wolf has lost his teeth. I suspect this is for a few key reasons – the fact that all of that endless raging did precisely nothing to make the world more just, for one. The growing understanding that the human species is flawed by nature and that no one can match those standards, for another. But mostly, I think it’s the dynamic I’ve been predicting for a long time: you can only bang the gong so many times. Everybody’s receptors all got blown out. Outrage is a finite resource. People can’t maintain permanent offense forever. Most of us can’t, anyway. You can only tense a muscle for so long.
Thing is, while we are tiring of the phenomenon, the people whose lives and reputations were laid to waste are going to have to live with the consequences of these witch hunts for a long time. Judge Persky, I think of you and am so sorry for the horror that you went through.
The second reason is that an excellent, short documentary about the poisonous effect of the recall campaign is out, and until September you can watch The Recall: Reframed for free:
A couple of months ago, a group of friends and I put on an explainer of Israel’s judicial overhaul proposal at Manny’s. My wonderful colleague Hadar Dancig-Rosenberg talked about the extent to which the struggle over the country’s government structure is cultural no less than it is legal-political. As she explains it, huge swaths of the Israeli secular public are waking up to the extent to which their hard work and sacrifice (military service, taxes) are funding Ultra-Orthodox communities and special interests. I was reminded of this when we held my father’s funeral at the secular cemetery Menuha Nehona (“a proper resting place”), which is beautifully, efficiently, and compassionately run by a team of superb volunteers. The standard Jewish funeral in Israel is run by Hevre Kadisha, the Ultra-Orthodox funerary service, whose extortionist practices, dehumanizing burial procedures, and insulting bigotry have become legendary. Instead, we got to bury my beloved father with speeches from loved ones, live and recorded music he loved, moving songs, and a kaddish from his own daughter, as well as the traditional kaddish from his brother. It was such mercy that we were able to divest from the stronghold that the Ultra-Orthodox administration holds over so many aspects of any Israeli’s circle of life, and it reminded me how alienating and surreal my divorce ritual was (I’ve written about it here). As I wrote recently, the absurdities of dealing with the Rabbinate and its many tentacles were swept under the rug through a delicate dance of hypocrisies and performances. And to hear Hadar discuss it, a big part of why there’s such a huge uprising against this government has to do with how fed up people are with all this.
It’s hard to explain to people who don’t live her how insular and removed the Ultra-Orthodox experience is from everyday, mainstream secular life, but today presented an interesting example. Strauss company makes a crunchy snack called Doritos (basically, tortilla chips with a spicy kick), and a year ago they released an ad for their snack for family day. As you’ll see, the ad celebrates lots of different families, including those based on same-sex marriages:
The ad was deliberately released only digitally, not on TV, to reduce controversies with religious audiences. Nevertheless, it provoked ire among the Ultra Orthodox, to the point that the Ultra-Orthodox rcourt called to boycott Doritos.
My friend Andrea Lobel (theologian, Renewal Rabbi, and librarian extraordinaire) drew my attention to a new ad Doritos has produced, which has been shared on Twitter:
The ad is quite humorous, and based on the Eastern European folklore of the Jewish Shtetl (my dad wrote a sweet and endearing short story book about those little Jewish towns.) It’s a bit like a Jewish Monty Python. But comparing it to the secular ad above is striking. It’s obvious Doritos wanted to recapture the Ultra-Orthodox market share, and they went to great lengths to flatter and appease their target audience. The religious ad is entirely in Yiddish, with Hebrew subtitles. There’s nary a woman in sight. Most scenes take place in synagogues and Batei Midrash (Jewish scripture-learning institutions). In the movie theater scene, all the people seated at the theater are men, and all in religious garb. The ad essentially recreates the Israeli street as an entirely Ultra-Orthodox street, purged of any secular markers or identifiers and purged even of religious women (in case this seems imaginary, in some neighborhoods in Israel girls are actually admonished to stay away from the streets and play hidden from view, lest they encounter men on their way from the synagogue.)
My colleague Gadi Barzilai, whose multicultural tolerance for communities and their way of life was legendary, would probably have more patience for this than I do, but it does come not only at the expense of the secular public and Ultra Orthodox women, but the Ultra Orthodox men themselves. The limited education and life experience this lifestyle provides its adherence is producing an impoverished, ignorant community that is unable to adapt effectively and productively to life in the 21st century. It’s worth stopping, looking around, and thinking how far the chasm has come, and considering how it is informing the ever-widening civil rift in Israel.
A few days ago I drew your attention to the upcoming election to the Israel Bar and, particularly, to the thoroughly corrupt candidate who had sex with women in exchange for guaranteeing their appointment to the judiciary. The crippling shame of having someone like that at the top of the administration’s licensing profession in itself should be enough for lawyers of all political stripes to vote him out. But yesterday I had an opportunity to think about the wider political ramifications of this election, when former politician Ophir Pines-Paz spoke at the democracy protest in Kiriat Tivon.
My parents were both deeply involved in the struggle for democracy and against corruption in Israel, opposing the occupation, religious coercion, social and financial inequalities, and the crimes and excesses of Netanyahu, his family members, and his government. During Netanyahu’s previous government, they protested weekly in front of his house. When this horrendous government took office, my parents faithfully reported to the protests each week. Sometimes, my dad would protest mid-week at an intersection, waving his big flag in hand. Today I felt called to take his place, as his kind, hugging, righteous arm let go of his flag for the last time last week. I took my dad’s flag and went to the protest, alongside a dear friend and thousands of attendees (the above picture does not do justice to the amazing sights and sounds.)
Anyway, as Pines spoke to the protesters and explained the importance of the bar election, I realized that the Israeli system might be opaque to English-reading audiences, and the scandalous possibilities of this election are too complicated, perhaps, for the American press to pick up. So here’s your primer:
Israel does not hold judicial elections, as in U.S. states, nor does it hold purely political hearings by the legislature for its Supreme Court Justices as in the U.S. federal system. All judges in Israel are appointed by the President of Israel following the recommendation of a special committee, whose current structure, by law, is this:
The committee is designed to have an ostensibly professional majority: five lawyer/judge members and four politicians. Also, by custom, one of the elected Knesset Members is from the coalition and one from the opposition.
The proposed governmental “reform” would change the committee’s composition to look as follows:
Under this proposal, the committee would have eleven members, and judicial elections can be decided by a seven-member majority. In other words, if seven coalition members vote for a judge for political reasons, the sole opposition member and three judges cannot block them.
Thanks to dogged, relentless protests nationwide, the proposal has not passed yet. But the struggle to politicize the judiciary to guarantee that it favors the government continues on a variety of fronts. Two days ago, the government attempted to elect two coalition members (as opposed to one coalition member and one opposition member) to the committee. The vote was secret, and despite their efforts to drag things on and on and recount the votes for hours on end (how long does it take to electronically count 120 votes?) the Knesset elected only one member – KM Karin Elharar from the opposition. This means that at least four members of the coalition are secretly disgusted with Netanyahu and his governmental partners, though not brave enough to come out in opposition to their noxious plans.
What these noxious plans amount to is sitting government loyalists, ready to disenfranchise minorities, intensify the horrors of the occupation, and give free rein to the religious authority, in the Supreme Court, and more specifically, to block the appointment of a quiet, professional, independent judge by the name of Itzhak Amit to the Supreme Court. The coalition demonizes Amit and paints him as a post-Zionist demon. But in fact, he is widely respected as an excellent, hardworking, unassuming judge, and his sole sin apparently is that he decides cases based on the legal arguments, rather than by politics.
Can they do it? Let’s do the math:
With Elharar on the committee, and the three Supreme Court Justices presumably in favor of a strong, independent constitutional court, we have four votes for Amit and other independent judges. On the other side we have the two government ministers and the yet-to-be-elected coalition Knesset Member. The two votes up for grabs are those of the lawyers. Do you now understand why the government is so keen to seat Effie Naveh as the Israel Bar Chairperson? According to a recent exposé, Naveh’s campaign donors did so with the understanding that he will, in exchange, finagle a seat at the judicial election committee for them.
Now, Naveh has been consistently denying that he is beholden to the architects of the judicial reform. These vehement protestations are not particularly credible, given the efforts that the government is making to get him elected. But the bottom line is that Naveh’s personal or political opinions do not matter at all. He has been publicly exposed, and criminally convicted, as an unprincipled man, whose massive bribery and fraud operations are conducted to enrich him and his friends and to sexually gratify him. Is this the sort of person this government can do business with, as far as judicial appointments are concerned? You bet.
One of the challenges of the anti-government protests is that the insidious attack against the country’s democratic regime takes place on multiple fronts, including those hidden from sight. I hope this post shows how tinkering with each moving part of the judicial selection process can have vast consequences for democracy, and encourages those of you with an active Israel Bar membership to vote on Tuesday–and those of you with lawyer friends to encourage your buddies to vote Naveh out of office.
Just a few days ago, I did the hardest thing I had ever done: I officiated my father’s funeral. Hundreds of friends, colleagues, and students of my dad came, many of whom remembered me only as a very young child. Many of these people commented, to my mom or to me, what a shock it was for them to see me: I am a dead ringer for my father, especially in my now short haircut that resembles his own haircut when he was in the army. The striking resemblance is hard to ignore. I took a lot of pride in these comments. It is wonderful to resemble my precious dad, who was the best person on Earth, and if I ever live up to be a tenth of the person he was, I’ll be very proud of myself.
Sleepless and weeping, I just read Kwame Anthony Appiah’s column in the New York Times from 2022, in which he applies an ethical lens to two letters written by adopted adults who want to contact their birth families. At the time these people were adopted, it was customary to keep their provenance secret from them, with a possible revelation (or not) when they came of age. Consequently, people who now, thanks to 23andMe and similar platforms have access to their genetic makeup, can now more easily find their birth families, which opens up lots of complicated moral dilemmas.
As regular readers know, I’m an adoptive mother. My wonderful son is the light of my life and the best thing that ever happened to me and my partner, as well as to our parents. I’ve written about our adoption journey and its implications for my worldview here, here, here, and here. The gold standard in current adoptions is open adoption, in which the child and the adoptive family know the birth family and vice versa. Some birth parents choose to be in touch and involved. Some do not. How people handle the immense pain of placing a child for adoption is profoundly individualized and should be respected as such. But at least one’s biological origins are never a shameful secret that needs to be hidden from them, awaiting a big revelation.
This newer adoption regime is not without its complications, and works differently for different families, but currentscience widely considers it significantly superior to closed adoption. The main argument for it is this: people are naturally drawn to their biological provenance. It is deeply important to them. In the first few days we spent with our son as a newborn, during the long, exhausting, and yet precious nights of hourly feedings, I was drawn to reading Charles Dickens novels, and remember being struck by the centrality of the mystery of provenance in so many of them: Bleak House, David Copperfield, Great Expectations, Little Dorrit. Dickens himself had great interest in this issue, as one of the key founders and benefactors of the Foundlings Hospital. He published an article about it in 1853 titled Received, A Blank Child. The psychological distress of not knowing who one is, where one came from–especially in the rigidly stratified Victorian era–permeates Dickens’ writing. At the time, I also encountered many adult adoptees who so deeply resented the secrecy of their own adoption that they came to oppose adoption altogether, alongside many birth mothers who feel that the secrecy and shame surrounding the process created sickening opportunities for pressuring them to place their children for adoption. While anyone is entitled to their opinions, which are naturally shaped by one’s own life experiences, I wonder if the distressing legacy of unscrupulous closed adoptions is unfairly skewing these folks’ view of a much-transformed (and for the better) adoption landscape.
In his sensitive responses to the adult adoptees, I noticed that Appiah, who is characteristically careful with his terminology, does not use the terms “right” or “birthright” to know one’s biological origins. I’m not super versed in the jargon of philosophical rights theory, and the word “right” means different things to different people. But it does strike me that knowing who your birth family was is deeply important to many people and it makes a lot of sense to me that it does. Regular readers know I’m very far from a biology determinist, and even I was surprised by how gratifying I found it to be physically compared to my beloved father. It was deeply meaningful and brought me unexpected comfort in this devastating time. At the same time, It’s clear to me that even though people have a “right” to know their provenance, as they do other aspects of their biology, these discoveries do not necessarily make things better for them. A 2017 study by Lebowitz et al. highlights some significant downsides: today’s technologies, which give people access to a plethora of information about their genetics, make them overestimate the impact of their predisposed genetic properties and thus makes them pessimistic about their physical and mental health–despite what we know about epigenetics and the considerable impact of environment.
All these threads boil down to this: knowing things about your own genetic makeup, including about your birth family, has advantages and drawbacks, and plays out differently for different people. Thing is: good or bad, simple or fraught, freeing or burdensome–knowledge about your DNA is now easily available and secrets are near impossible to keep. Law and policy in a variety of areas–including family law and criminal law, two fields I’m deeply interested in–must be shaped with the understanding that the cat is out of the bag.
I think the idea that our deepest and most unsavory secrets will come to light–and living with the inevitability of discovery–looms large in our collective nightmares. In Clarissa Pinkola Estés book Women Who Run with the Wolves (now experiencing a well-deserved renaissance), she tells the story of a golden-haired woman murdered by a spurned lover and buried near a river. In time, reeds resembling her beautiful tresses grow over her grave and sing the song of her murder and her killer’s name. It’s no coincidence that many cultures feature similar stories. The wonderful Argentinian film noir Los Tallos Amargos is based on the same plot point. The new, democratized access to DNA testing has ushered an age in which these deeply embedded cultural fears are here.
In the adoption field, this means that birthparents and adoptive parents have to be very clearly apprised of the fact that their child will have access to information about their provenance. This is true for closed adoptions, open adoptions, and even kin adoptions to hide all kinds of unsavory family secrets. DNA testing services are here and in wide usage, and so whatever you think you are hiding about a child’s biology–to protect them, to protect yourself, whatever the reason–will come to light. Whatever role you play in the adoption triangle, you have to play it with the understanding that you have no control over whether, or when, the facts will come to light. This can cause a lot of distress and fear, but it is nonetheless true.
In the criminal justice field, it means that much of the concern about invasive DNA testing methods is now moot, whether positive or not, given their increasing availability and sophistication and decreasing costs. I see these concerns raised by privacy advocates and racial justice advocates. Honestly, it seems a bit ridiculous to resent the role that private DNA testing services and familial DNA testing played in unveiling and prosecuting California’s most heinous murderer and rapist, or to begrudge the relief that the current wave of crackingcoldcasesthroughnoveluses of DNA technology brings to families even decades after the crime. In 2013, Charles MacLean called for accelerating another helpful DNA-based tool: producing an artist’s rendering of a perpetrator’s face based on an ancestry analysis of their DNA, which raised concerns about AI-generated over-racialized portrayals of perpetrators. Regardless of where you stand on the range between enthusiasm and concern about these technologies, they are here now and have helped crack at least one horrendous cold case.
This also means that some arguments about rehabilitation-versus-retribution are going to be skewed by our increased knowledge about whether and how people can change. In 2005, the field of juvenile justice was rocked by new insights from neuroimaging and developmental psychology about the malleability of the adolescent brain, leading to many welcome enlightened developments regarding the sentencing of people for crimes they committed at a young age. But what about kids who, from a very young age, present symptoms of what might later be diagnosed as psychopathy? In this piece, Angela Lashbrook looks at a difficult paradox we face now: on one hand, we want to exercise extreme caution before labeling children as psychopaths, opting instead for the still scary, but perhaps less so, diagnosis of oppositional defiant disorder. On the other hand, it now turns out that the earlier the psychopathy diagnosis, the easier it is to do something about it, both clinically and through environmental redirection; adult psychopaths are notoriously resistant to any treatment or remediation. But talking about the advantages and drawbacks of labeling people with a diagnosis we now have the scientific means to determine they actually have is moot in an era of accelerated discovery and decreasing costs.
I would like to see more scholarship and policymaking in these areas leave behind the “pros and cons” discussions about disclosures, and move toward the more important question: how are we to shape our personal lives and public policies knowing that, whether we like it or not, genetic knowledge is widely available? How do we shift the conversation from talking about the virtues of keeping secrets that are impossible to keep toward framing the validity and immutability of these revelations in a scientifically valid way? Rather than trembling in fear of discoveries that will shake up our self perceptions and our families, wouldn’t it be better if we thought about the extent to which these discoveries have the power to shape our lives, and the varying degrees of freedom to shape our futures even as we know more about our pasts and presents?
In an effort to distract myself from the overwhelming grief over my father’s passing, I’m trying to pay a little attention to the news while I’m in Israel. As I explained in a previous post, Israel’s 37th government–the most right-wing, religious, and nationalistic in its history, populated by convicted criminals and terrorists–is the consequence of Binyamin Netanyahu’s efforts to avoid going to prison for his crimes. He will sell out to anyone, and do anything, to evade accountability, and as a consequence has sold out to religious zealots out to disenfranchise women and minorities, commit unprecedented horrors and atrocities in the already traumatized occupied Palestinian territories, and shatter even the few remaining vestiges of social democracy–all with the blessing, ideology, and funding, of Kohelet Policy Forum.
A big part of this effort to overthrow democracy is a deliberate and calculated strategy to weaken the Israeli judiciary. Marketing their project as populist antagonism against the elitist judicial “junta”, the overhaul pushers set out to aggressively politicize not only judicial decisionmaking, but also the appointment of judges themselves. With the reform in stalemate due to the hard, relentless work of hundreds of thousands of protesters (including my parents; my father faithfully reported to each protests until shortly before his illness and passing), the government is trying all the tricks it has up its sleeve to nevertheless get to control the judiciary and rein in constitutional protections.
One of the consequences of these underhanded tactics is that the Israeli public is beginning to be exposed to the nefarious ways in which the sausage is made, as the vital struggle for democracy worms itself into arenas that were previously impermeable to average people and, honestly, incredibly boring. One such place is the Israel Bar, which is holding its election for Chairperson and for the Council on June 20, 2023. One of the contenders is Effie Naveh, the previously ousted Chairperson, whose wheelings and dealings are a long and disgusting story of profound corruption. If you read Hebrew, you can familiarize yourself with the details here. If you don’t, here’s the low-down: Naveh, who is rotten through and through, has spent years pulling strings and placing his friends and lovers in high places. He essentially pimped two of the women he slept with to try and get them judicial appointments. As explained in Ha’aretz, a woman by the name of Eti Craif,
a former police prosecutor, was appointed a judge on the Netanya court in July, 2016 – a few months after her name was first proposed to the panel that selects judges. Nave admitted to police that he was having an intimate relationship with Craif at the time, but denies that he used his influence to get her promoted.
According to Lemberger, the decision to start proceedings was based on evidence that “Craif was intimate with Nave not only out of attraction, but also with the purpose of advancement, and that Nave was aware of it.”
However, it was reported, “after hearing the arguments and explanations of the defense, the deputy state prosecutor thought the assessment of the evidence had to be revised.” Lemberger believes it would be difficult to prove that the two committed a bribery offense, since the relationship between them began before Craif needed assistance from Nave, due to the “lack of explicit stipulation” and because the alleged “gift” was “an intimate meeting by consent and mutual will.”
Craif, who is a piece of work in her own right, apparently also slept with minister Moshe Kachlon, exchanging juicy sexts with him, and is now shamelessly selling her story to Hollywood.
Naveh also pulled strings for his friend Yosef Elron’s appointment to the Supreme Court; got the husband of one of his lovers an appointment to the judiciary; slept with a law graduate (behind his wife’s back) in return for help passing her bar exam; got his pal Yoram Broza a judicial appointment even though Broza flunked the tests for the judiciary; hooked personal friends up, including then-chair of the bar’s ethics committee, with well-paying arbitration gigs; teamed up with the Minister of the Judiciary, Ayelet Shaked, for all these promotions as well as legislation that promoted the business interests of his allies; and drove and parked throughout Tel Aviv, including in front of hospital ERs, with a fake disability tag. In another incident, Naveh helped a lover of his enter and exit Israel without having her passport stamped, to gain an advantage in his own ugly divorce proceedings. The last incident, and the bribery that accompanied it, led to a criminal conviction. These are truly just drops in the bucket of his depravity.
Naveh’s involvement in these scandals led to his ouster as Chairperson of the Bar. But, astonishingly, he has the audacity to run again in the current election, which is a sad testament to how low the bar has sunk. A committee found that digital signatures in support of his candidacy were unlawful, but this decision was later reversed, and he’s running again. While Naveh has repeatedly claimed that, as a candidate, he is politically neutral and disfavors the judicial overhaul, he has stated that he is personally conservative. But there is solid confirmation of his involvement in politics, particularly with former law minister Ayelet Shaked, to the point of having people list themselves as right-wing party voters in return for judicial appointments. But even without this smoking gun, it should be evident to all that Naveh is an unprincipled, immoral person who will sell out and, with this government in power, an unhealthy alliance between politicians and the bar might provide a bypass that will hasten the downfall of judicial independence in Israel.
What this means is that the struggle for democracy, which usually plays out in plain public view, is now taking place in obscurity, through the upcoming bar election. Naveh’s main opponent, Amit Becher, who is also the incumbent chairperson, has led the charge against him, arguing (correctly) that Naveh’s rot will disgrace the bar. The main challenge that everyone faces is… indifference. Usually, lawyers don’t even bother voting in bar elections and, while this time people of all political stripes are so appalled by Naveh’s actions and disgusted with him that there’s an uptick in interest, it might not be enough.
I want to highlight two especially interesting aspects of the fight against Naveh. A group of people I greatly admire and like are running as an independent party for the Bar Council. Their party is called LeTachlit Reuyah (“for an appropriate end”) and the candidates are all committed public interest and human rights folks. They are running on a pro-democracy platform, vehemently oppose the judicial overhaul, and are all people of personal integrity and ethics who are highly respected and valued in the profession.
The other aspect of the fight is spearheaded by attorney Barak Cohen, whose confrontational activist style and personal courage has characterized him for years, since he led the charge against corruption in Israel’s financial institutions. Barak has been fighting a populist, aggressive, uncompromising battle against Naveh and his cronies. He identifies Naveh’s donors, publishes their names, and asks them hard questions about their financial wheelings and dealings. To date, his work has been successful in peeling some of these folks off of Naveh’s party. Seriously, look this guy up on Facebook and on Twitter –I don’t think I’ve ever met anyone who is so utterly fearless. His work is 100% transparent and he shares all the details and shows his work on social media.
In short, if you want to help prevent the hijacking of democracy through the obscure channel of Bar elections, there are two things you can do. If you are a practicing Israeli attorney (my Israel Bar membership is inactive, as I’m living, teaching, and practicing abroad) you should vote for Amit Becher for chairperson and for LeTachlit Reuyah as a party. Any non-vote is a vote for Naveh, a vote democracy cannot afford. And, whether or not you practice law in Israel, you can and should throw some money down Barak Cohen’s way, because leading a relentless fight for honesty and integrity isn’t cheap.
The process and aftermath of yesterday’s Op-Ed in the Los Angeles Times reminded me that some aspects of my job are not as transparent as teaching in the classroom and worth explaining a bit more. Academics do many things beyond teaching: publishing, committee work, conferences/meetings. Some of us also do policy work, some of us with law degrees litigate pro bono, and some of us appear on the media as analysts and experts. Much of this work is either unpaid or underpaid–whether or not that’s justifiable is hotly debated.
Writing op-eds has made my other writing (academic and popular) better, because it teaches two important skills: relevance and parsimony. Op-eds are time-sensitive and must address an issue on the news. They are also restricted in length (aim for about 800 words), and getting them to the sweet spot between gravitas and brevity often requires a productive cooperation between author and editors. Happily, I’ve had great experiences writing op-eds for the Chron, the L.A. Times, and the Daily Journal, among other outlets, which taught me to be as snippy as I can in the first draft, lest something I’m fond of ends up cut in the edits.
Even with these caveats, sometimes important clarifying information gets left out, which is a bummer, and sometimes inaccuracies slip in–which means you have to find a way to let that go after the thing is already in print.
What is somewhat of a new phenomenon, or certainly exacerbated over the last few years, is the extent to which an op-ed generates a lot of feedback addressed directly to the author (as opposed to a letter to the editor or somesuch). With a topic like the Manson family that’s to be expected–even fifty-five years after the fact, these cases still provoke a lot of strong emotions–but I am somewhat taken aback by the expectations and entitlement of complete strangers. I suspect the Internet is to blame; it has laudably democratized the public square, but it’s also significantly lowered the thresholds of basic decorum and restraint, and with the general erosion of public discourse, I suppose it’s inevitable.
Yesterday’s op-ed yielded two curious and more-or-less politely worded messages, one of which included a request that I call the person (with their phone included!) to discuss my philosophy of punishment and the other was an actual call placed to my cellphone with a request to call back (!!!), and three exemplars of hateful drivel (one of them truly vile–you know who you are, bud.) I skim all these things to figure out whether it’s a police matter or random viciousness; this time, I’m relieved to say, it was the latter. I have some questions.
To the folks who write politely or semi-politely and leave a phone number: Thanks for your interest in my op-ed and for not threatening to kill/rape me (it’s not a high bar). Pals, do you truly expect a complete stranger, whom you’ve contacted out of the blue, to call you and discuss what they wrote in the op-ed? Do you believe that the author owes you this time and effort? If so, why? Do you think the author gets paid to return calls to random strangers throughout the country to discuss their writing? If so, who do you think pays for this? When you don’t get a call back, are you disappointed? Are you looking for more intellectual stimulation and being proactive about it in a weird and somewhat inappropriate way? If so, that’s weirdly heartwarming, and may I recommend reading some of my books (heretheyare) instead of seeking an awkward phone conversation?
More importantly, i’m deeply curious about the hate mail authors. They often come in the early hours of the morning, which suggests that they come from people who read the print edition of the paper or from people who get up early on weekdays and weekends but have plenty of time to kill (I used to get the vilest emails after early-morning CBS-5 appearances.) Some of them suggest the person read the op-ed; some suggest they didn’t – just skimmed the headline and googled me. If you’re the author of vile hate mail, I have some questions, and perhaps you can indulge me:
What sort of person are you? Do you wake up early in the morning excited about writing vicious things to complete strangers? Do you approach the paper strategically, looking for people to attack, or do you just let the spirit move you? Are you proud of this behavior? Do you tell people (e.g., your spouse if you have one) you do this, or is it just your little secret? Do you get a thrill out of the prospect of upsetting the addressee, or do you just unburden yourself and not think of the recipient’s reaction at all? If the person told you their father was critically ill in hospital and was anxious and upset when receiving your message, would you feel contrition, schadenfreude, or something in between? And how does this habit harmonize (or not) with the rest of your life? Do you also get into road rage incidents? Problems at work? Are you verbally or physically abusive of your family members? What does it feel like to walk around with so much rage in you? Aren’t you worried about getting a heart attack?
Most importantly, to everyone: It’s the newspaper. If you read something you dislike, you have choices that do not include pursuing the author. You can discuss the article with your friends and family, or you could just move on. There’s always tomorrow’s news.
Michal Kravel-Tovi, When the State Winks: The Performance of Jewish Conversion in Israel, New York: Columbia University Press, 2017
Mattir Agunoth (Television mini-series), Kan 11 (Yossi Madmoni, Tamar Kay, David Ofek, creators), 2019
***
The opening scene of Kan 11’s dramatic series Mattir Agunoth[1]feels more like a spy thriller than a drama about religion. The hero, Rabbi Yosef Morad, is conducting a wiretap in a hotel, monitoring a diamond purchasing deal. The buyer is enthralled by the diamond’s clarity and beauty; imagine his astonishment when, as soon as he makes an offer, the seller, an Ultra-Orthodox Jew, says, “sure, as soon as you give your wife a gett.” At that instant, Rabbi Morad bursts into the room, ktav gett in hand, explaining that the deal can go through only after the recalcitrant husband releases his wife. The buyer tears up the ktav gett; Morad, undeterred, produces a copy. Cut to a Rabbinical court, in which three rabbis and various witnesses watch Morad—now delegated the gerush authority by the husband—hands the gett to the elated wife. She is finally free. The rabbis chant in unison: “Megoreshet, megoreshet, megoreshet!”, and then burst into joyous congratulations: “Mazal tov!”
In any secular, modern country, the position of a mattir agunoth – part rabbi, part psychologist, part private eye, entrusted with the authority and resources to pursue deadbeat husbands and persuade them, gently or not-so-gently, to grant their wives a divorce—would be entirely unnecessary. But in Israel, all matters of marriage and divorce between Jews are adjudicated through the rabbinical courts and subjected to halakhic law.[2] Consequently, rabbinical authorities are bound by the requirement that divorce be by mutual consent. Halakhical solutions for men who are denied a divorce by their recalcitrant wives are easier to find (as are the rare, but by no means nonexistent, permissions to remarry without obtaining a divorce); women can be financially extorted by stubborn husbands in exchange for a gett, sometimes for decades.
In the last few years, as religious scholar Masua Sagiv explains,[3] some refreshing solutions have emerged outside the confines of Jewish Orthodoxy. Private batei din, established with the goal of helping women in these desperate situations, sometimes rule for a gett when the Orthodox establishment would not. This provides respite for women who feel bound by the halakha, but does not remedy the situation for women who need to prove their divorce so that they can remarry without committing bigamy. In some cases, as Shlomo Riskin explains,[4] the rabbinical courts can engage in “hafka’at kiddushin” as a workaround. But these remedies are few and far between. Consequently, and under pressure to resolve these problems, rabbinical courts find themselves twisting the halakhah to permit the impermissible: forcing the husband to sign the gett.
As Mattir Agunoth evocatively portrays, and as experienced by Morad’s real-life counterpart, Rabbi Eliyahu Maymon,[5] this is not an easy task: divorce withholding is an obvious and frustrating act of pettiness and bad faith, motivated by greed, spite, or both. However, since the gett must be given in free will, rabbinical authorities throughout Jewish history have struggled to find ways to kosherize the coercive methods sometimes necessary to bring the gett quest to a successful close. In Mishne Torah, Maimonides tackles this problem with considerable interpretive gymnastics:
When a man whom the law requires to be compelled to divorce his wife does not desire to divorce her, the court should have him beaten until he consents, at which time they should have a get written. The get is acceptable. This applies at all times and in all places.
Similarly, if gentiles beat him while telling him: “Do what the Jews are telling you to do,” and the Jews have the gentiles apply pressure on him until [he consents] to divorce his wife, the divorce is acceptable. If, however, the gentiles compel him to write [a get] on their own initiative, the get is [merely] unacceptable. The rationale is that the law requires him to give a divorce.
Why is this get not void? For he is being compelled – either by Jews or by gentiles – [to divorce] against his will [and a get must be given voluntarily].
Because the concept of being compelled against one’s will applies only when speaking about a person who is being compelled and forced to do something that the Torah does not obligate him to do – e.g., a person who was beaten until he consented to a sale, or to give a present. If, however, a person’s evil inclination presses him to negate [the observance of] a mitzvah or to commit a transgression, and he was beaten until he performed the action he was obligated to perform, or he dissociated himself from the forbidden action, he is not considered to have been forced against his will. On the contrary, it is he himself who is forcing [his own conduct to become debased]. [6]
Mishne Torah laRambam
This sense of deep hypocrisy, hopeless entanglement in dogma, and interpretive gymnastics to resolve the resulting intractable problem, permeates Michal Kravel-Tovi’s book When the State Winks[7] in the same suffocating way. Tovi opens the book by presenting the halakhic challenge: Orthodox conversion erects thresholds and barriers aplenty in the path of people seeking conversion to Judaism, which can feel mandatory to non-Jewish women who seek to marry Jewish men. Converting through alternative denominations (Reform, Conservative, Renewal) may feel more meaningful and less oppressive to non-Orthodox women.[8] But therein lies the rub: the State of Israel only recognizes as Jewish those born to a Jewish mother or converted through Orthodox Rabbinical channels. The Rabbinate must, therefore, exert its authority on women who are not religiously observant, often new immigrants removed from the Israeli experience and thus not accustomed to the commingling of church and state, who need their seal of approval so that they can marry Jewish men. Ironically, as Tovi explains, many such women are immigrants from the former Soviet Union, and while they are viewed as non-Jews by the Israeli state apparatus, they do self-identify as Jewish—partly due to the Soviet Government’s patrilineal systems of recognition,[9] and partly through their secular integration into Israeli society.[10] Piling difficulties in their path also stands in the way of preserving a Jewish demographic majority—perceived as an essential condition for Zionist prevalence—[11] which creates surprising collaborations between the Ministry of Religious Services and nonreligious bodies such as the Prime Minister’s Office, the Jewish Agency, the Ministry of Immigration and Absorption, and the Israeli army.[12]
Tovi recounts how these conflicting goals—striving for halakhic purity and maintaining a Jewish majority—played out in a religious scandal involving a woman who had undergone conversion by Rabbi Chaim Druckman. Thirteen years later,
[a]fter filing for divorce at the regional rabbinical court (staffed by Ultra-Orthodox rabbis), her conversion was annulled retroactively by one of the rabbinic judges on the panel. The rabbinic judge, who had interrogated the woman about her religious observance, ruled that her level of observance was inadequate and that her conversion was therefore invalid, By implication, the ruling invalidated both her marriage and her children’s Jewish identities. . . [on appeal, the Great Rabbinical Court] not only upheld the lower court’s ruling but also appended another general ruling that sweepingly undermined Rabbi Druckman’s halakhic authority to convert.[13]
Tovi reviews the aftermath: Druckman, motivated by a desire to advance the Zionist agenda, had presided over thousands of conversions. The scandal pitted him and his counterparts against the ultra-Orthodox rabbis who dominated the rabbinical courts. The conflict deepened two years later, when these rabbinical courts looked askance at conversion by military rabbis: “The latter spoke of national and moral responsibility, while the former chastised the army’s winking conversation.”[14]
Steeped in this dilemma, rabbinical courts look for ways to facilitate conversions that will conform to halakhic rulings while, at the same time, accomplishing the demographic objective. Tovi’s ethnography follows women who immigrated from the former Soviet Union from their journey to a conversion Ulpan—whose endorsement of the prospective convert “carries a lot of weight”[15]—through the rabbinical courts, to the mikvah. Akin to Mattir Agunot and Maimonides, the whole journey might feel coercive and oppressive—which, let’s face it, it is, given the need to satisfy the religious requirements to get the required credential—but the converts must show to the court that they are sincere, as free will is one of the conditions for a halakhically proper converstion. Tovi examines how the women are tutored in the legible performance of sincerity: they are warned against lying, even as their teachers admit that the “don’t have x-rays for examining souls.”[16] She recounts an especially excruciating dialogue between Kati, a prospective convert, and Rabbi David, who questions her motivation in converting, accusing her of seeking Judaism solely because of her boyfriend:
Rabbi David: Who changed your fate?
Kati: I did, but through him.
Rabbi David: Should everyone convert?
Kati: Everyone should make their own decision.
Rabbi David: What, anyone who was badly off and now is better off should convert?
Kati: We weren’t badly off there. We came to be in Israel.
Rabbi David: Most olim don’t convert and aren’t religious.
Kati: I am. This reflects my decision to be at one with the Torah and the commandments.[17]
Rabbi David is suspicious of the sincerity of this performance because it is “too sweet. . . on the surface, everything is fine, but I felt something.”[18]
These performative contortions continued in the rabbinical courts. Tovi recounts incidents in which boyfriends, who felt themselves and their non-Jewish girlfriends obligated to participate in a religious charade, rebelled before the court, negotiating the extent to which they could present their genuine, secular life. In one memorable exchange, an Israeli boyfriend, Motti, is furious that his girlfriend’s application is rejected for lack of religiosity when he himself is not observant:
Motti: So I should have come here a liar? Come with a skullcap and say amen and promise to observe everything? How should I have felt about this? “Ah, I tricked you.” I would have turned out a liar but I don’t want to. I am a truthful man. I came from a religious home, but I chose to be a secular Jew.
Rabbi Blau: Everything you say is true. But I cannot help you. I want to help you, but can’t.
Motti: What do you want from me? Do you want me to come here with a mask?
Rabbi Blau: It is not a mask.
Motti: It is because I am not a religious person.[19]
The irony of Motti’s position is completely lost on him when, later, he comments: “I want Orly to immerse [in the ritual bath] before the baby is born.”[20]
Both When the State Winks and Mattir Agunoth center around the frustrating entanglement of hypocrisy and invention in Orthodox Judaism. In both cases, religious authorities, holding the reins to secular state bureaucracy, face a halakhic uphill battle in the quest to do what at least some of them might feel is fair: liberate long-suffering women from the extortion of the scoundrels they married and promote Jewish families and Jewish life through conversion. In both cases, the halakhic problem, when viewed from within its own confines, is intractable: they must follow halakhic gett and conversion proceedings. But these prescriptions are impossible to follow in the face of immoral extortionists and people who refuse to lie about keeping kosher and Shabbat when they don’t. And in both cases, complicated halakhic workarounds allow them to proceed with their eventual objectives while ostensibly staying within Jewish law: forcing men to sign the gett “out of their own free will” through trickery and violence, and forcing women to perform piousness they don’t actually feel in an accepted, legible manner.
As a secular Jew, my indignation about this system prompts me to view the solutions outside the halakhic box, but I know this is far less simple than it seems. Ostensibly, both of these problems would be solved if the state of Israel, formed with an identity both Jewish and democratic, took religious purity off the table for divorces and made them an entirely secular, no-fault proceeding, or granted equal rights to all its citizens regardless of their religious identity. The problem is that halakhic purity laws are so entrenched in Israeli society that even secular people like Motti find themselves attached to the idea of having their girlfriend immerse herself in the mikvah before giving birth, and even the secular women seeking Morad’s help in Mattir Agunoth feel a sense of revulsion and dread at the prospect of giving birth to a mamzer (bastard) because their divorce was not properly completed. The power of these religious taboos will not be swiftly undone through state action, and will require the courage of progressive, pragmatic rabbis to transform. Such courage is, sadly, in short supply in Israel’s current religious establishment. But works such as When the State Winks and Mattir Agunoth may help awaken in the secular public a sense that their personal integrity requires forging their own virtue ethics, unencumbered by centuries of misogyny.
[1]Mattir Agunoth (Television mini-series), Kan 11 (Yossi Madmoni, Tamar Kay, David Ofek, creators), 2019
[2] Isaac Shiloh, Marriage and Divorce in Israel. Israel Law Review , Volume 5 , Issue 4 , October 1970 , pp. 479 – 498.
[3] Sagiv, M. (2017). The State and New Religious Movements. In: Feraro, S., Lewis, J. (eds) Contemporary Alternative Spiritualities in Israel. Palgrave Studies in New Religions and Alternative Spiritualities. Palgrave Macmillan, New York.
[4] Riskin, Shlomo. “Hafka’at Kiddushin: Towards Solving the Aguna Problem in Our Time.” Tradition: A Journal of Orthodox Jewish Thought, vol. 36, no. 4, 2002, pp. 1–36.
[5] Sherry Makover-Blikov, “Every man has a key. And if you can’t get the key, you must break the lock.” Yedioth Acharonoth, Nov. 12, 2019.
Today, the L.A. Times published my op-ed, in which I criticize California’s gubernatorial veto on parole which, as I explain in Yesterday’s Monsters, serves no purpose except contaminating the parole process with politics and optics. Here it is:
***
On Tuesday, California’s 2nd District Court of Appeal reversed Gov. Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the state board’s parole grant decision. Their ruling exposes deep flaws in California’s system of allowing gubernatorial vetoes in the first place.
Van Houten, a member of the infamous Manson “family,” participated in the murders of Rosemary and Leno LaBianca in 1969. She was 19 at the time. These were horrific crimes whose aftermath shattered a sense of innocence and safety for many. But it is also true that Van Houten and other teenage girls caught in Manson’s web were indoctrinated into, exploited and abused by a dangerous cult not properly understood until many years after the murders.
In prison since 1971, with her original death sentence commuted to life with parole in 1972, Van Houten has transformed herself, earning two academic degrees, participating in rehabilitative programs and expressing remorse for her crimes. After decades of prosecutors and families of the victims of Manson’s crimes opposing Van Houten’s release, the factual evidence finally outdid the political pressure: Since 2016, the Board of Parole Hearings has recommended her release five times. Gov. Jerry Brown and then Gov. Newsom reversed each decision.
The appeals court reviewed the veto through a system deferential to the governor; all they needed to uphold his decision was “some evidence” that Van Houten, now 73, presents a risk to public safety. The court concluded that his veto was “not supported by a modicum of evidence in the record.”
Since a 2008 decision from the California Supreme Court, parole boards can’t deny release based solely on the severity of a crime. Instead, they must show that the parole candidate poses a public safety risk. Boards and governors alike have circumvented this standard by using hard-to-falsify language — for example, vaguely claiming that they don’t think the inmate possesses “insight” about their crime.
In denying Van Houten’s 2020 parole bid, as the appeals court reported, Gov. Newsom argued that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying.” He was also “unconvinced” that her childhood trauma, including her parents’ divorce and a forced abortion, “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”
The court essentially called the governor’s bluff. They found that Van Houten’s extensive record showed “no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but [per state law] the Governor’s ‘decisions must be supported by some evidence, not merely by a hunch or intuition.’”
Yet allowing the governor to veto parole recommendations at all risks reducing such weighty decisions to one person’s hunch or political agenda. California is one of only two states that allow gubernatorial veto of parole. The Legislature introduced it in 1988, politicizing the parole process and adding public pressure — as well as optics — to what should be a professional assessment of risk. The veto works in one direction: The governor can only veto parole recommendations, not denials.
Any fear that the state is releasing dangerous people in droves is unfounded. Parole boards are reluctant to grant parole. According to data from the California Department of Corrections and Rehabilitation, the Board of Parole Hearings recommended it in only 20% of cases in 2019. As I explain in my book “Yesterday’s Monsters,” receiving parole at one’s first hearing is extremely rare. I found that the median time spent behind bars on a life sentence with parole in California has risen from 12 years in 1980 to 28 years in 2012 for those who have been released, and a quarter of the prison population is serving life sentences — 26,000 with parole and 5,000 without.
The role of politics was particularly clear during the COVID-19 pandemic. The aging and infirm lifer population faced serious risks of contagion and death behind bars. They also pose little to no public safety risk, as shown by robust criminological evidence. Still, Newsom agreed to release merely 8,000 people — a deficit eclipsed by incoming admissions from jails, and the vast majority with just weeks or months left of their sentences. Van Houten was up for parole in 2020 when her prison, the California Institution for Women, was experiencing a COVID-19 outbreak of more than 100 cases.
The court’s decision now puts the ball back in the governor’s court. He has a 10-day window, starting in a month, wherein he can instruct Atty. Gen. Rob Bonta to appeal this case to the California Supreme Court. Common sense should prevail and guide our leadership in Sacramento to allow this rehabilitated septuagenarian to live her life quietly on the outside.
But no matter the outcome, her journey raises serious questions about the gubernatorial veto. Do we truly need an extra layer of political considerations to assess danger to the public — or should we trust the professionals appointed by the governor, mostly from law enforcement backgrounds, to do their job?
Hadar Aviram is a professor at UC Law San Francisco. She is the author of “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” and co-author with Chad Goerzen of the forthcoming “FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster.”
