A New Life for Death Row

“Of what shall a living man complain, each man for his sins?” (Lamentations 3:39).
“Of what shall a living man complain?” – it is sufficient for him that he is alive. Rabbi Levi said: The Holy One blessed be He said: Your life is in My hands, yet you complain? Rabbi Huna said: Let him stand like a mighty one, confess his sins, and not complain. Rabbi Berekhya said: Of what shall he complain about the One who gives life to the worlds? If he seeks to complain, it should be each man for his sins.

Eikhah Rabbah 3: 13

There’s a superb story in this morning’s Guardian by Sam Levin about what Gov. Newsom’s Quentin “Scandinavization” means for the people on death row. Levin had incredible access and interviewed some fascinating people, whose voices we almost never see in print: the people on death row themselves, who are coming to terms with an unfathomable change in their lives and future prospects. It may surprise those of us unfamiliar with death row that the change is not universally celebrated, and that some people feel downright dread about the prospect of being surrounded by people and other stimuli. Some express serious concerns about being transferred away from their family and lawyers. Others are thrilled with the new experiences, including those of the natural world, even as they are reeling from them:

Leaving death row was immediately overwhelming. His group of about a dozen men, heading to a prison outside Los Angeles in July 2021, made a brief stop in the Central Valley, and as they stepped off of their bus, many of them froze in their tracks, he said.

For the first time in decades, they were standing on grass.

When they explained to a guard why they were so stunned, the officer allowed them to walk to an even lusher patch of grass nearby. “We just marveled at the softness and the smell of the grass and the earth. It was remarkable. The officer let us stand there and watch as we left our footprints in the grass. It’s just an amazing thing that people take for granted.”

At their new prison, Correll Thomas, 49, who had been on death row since 1999, experienced sensory overload: “On the yard, it’s just movement – people running laps at different speeds, people doing push-ups and exercising, someone’s throwing a football back and forth, people playing soccer while others are playing football. I was keeping my head on a swivel, trying to take in as much as I can, turning right to left every two seconds. On death row, we don’t have such fast movements.”

This stuff–the opening of possibilities for people whose life was entirely doomed–is huge. It’s a scenario I’m intimately familiar with, because of my work on members of the “Class of ’72” and their parole hearings. In 1972, the California Supreme Court decided People v. Anderson, which found the death penalty unconstitutional because of its barbarism. The decision would be publicly lambasted and later reversed, and the death penalty would return in 1978, but the people who were on death row at the time–including Charles Manson, Dennis Stanworth, and Sirhan Sirhan–had their sentences commuted. Life with parole was not an option at the time, and so, all these people, who were not supposed to see the light of day, started coming up for parole in the late 1970s.

All the parole hearings I’ve looked at from the early 1980s reflect a sense of great public panic about the prospect that these folks would receive what was considered the standard sentence for murder at the time–fifteen years or so at most–and the sense of urgency to keep them behind bars. I wouldn’t be surprised if the rapid and considerable increase in the average length of a sentence for murder was because of the concerns about disproportionate punishments in these high-profile cases. Which raises a really interesting question: if you were supposed to be executed and you’ve had a reversal of fortune, are you supposed to just be grateful and roll with the punches of absurdity at the parole board? If you’re then barred from taking any programming because of protective segregation or whatnot, should you just shut up and say thank you, because you weren’t going to receive any programming anyway? Or are we willing to revise our opinions about people’s fates over time.

My colleague Alessandro Corda drew my attention to a new and intriguing development in retributivism: Julian Roberts and Nethanel Dagan propose revising our notions of just deserts. Rather than a “static” assessment of severity, conducted and calcified at a particular point in time, they propose a “dynamic censure” model, which is flexible to changes in censure that occur as time passes. Here they explain this model in their own words:

According to the dynamic model, the amount of censure that an offender deserves for his crime may change in response to certain acts of the offender. Sensitivity to some post-offence and, particularly, post-sentence behaviour thereby becomes internal to assessments of (continuing) deservedness of punishment. According to what we term ‘ static ’ desert, post-offence conduct does not affect the seriousness of the crime or the offender ’ s culpability for the offence. Under a purely desert-based sentencing rationale, the focus of the sentence is, therefore, tightly drawn upon the culpable act or omission. The offender’s general lifestyle and his actions after the commission of the crime should carry no weight. They are not seen as affecting an offender ’ s culpability and are therefore excluded from the sentencing equation.

A responsive censure-based approach, however, necessarily expands the ambit of inquiry at sentencing. Penal censure engages the offender in a more clearly communicative manner. Andreas von Hirsch and Andrew Ashworth capture the essence of the concept in this way: ‘ The punishment conveys to the actor a certain critical normative message concerning his conduct … this message treats him as a moral agent – that is an agent capable of moral deliberation ’. These authors further note that ‘ When the offender is thus censured, a moral response on his part is deemed appropriate ’ , but then suggest that ‘ The censure, however, serves only to give the actor the opportunity to make such a response ’ . Yet does it make sense to provide offenders with an opportunity but to then remain oblivious to whether they avail themselves of the opportunity ? We argue that the censuring authority should be attentive to the fruits of the offender ’ s moral deliberation, as they may affect the degree of censure that is (or remains) appropriate.

Even more importantly, a responsive censure approach draws the sentence administration phase into the purview of desert-based punishment. Desert theory contains restraining arguments for the punitiveness of the state, such as the ‘ drowning out ’ argument, progressive loss of mitigation for repeat offenders, the principle of parsimony, and related decremental penal strategies. However, desert theory fails to offer any restraints on the severity of punishment after sentencing, no matter what offender does thereafter. The punishment phase itself – which can last for years and even decades, sometimes for an offender’s entire natural lifespan – creates a normative ‘ vacuum ’ for desert theory. In contrast, we argue that a responsive censure-based account offers an important resource for evaluating the degree of deserved punishment into the administration of the sentence.

Roberts J. & Dagan N. (2019). “The Evolution of Retributive Punishment: From Static Desert to Responsive/Dynamic Penal Censure.” In: A. du Bois-Pedain & A. Bottoms (eds.) Penal Censure: Engagements within and Beyond Desert Theory, pp. 141-159 Oxford: Hart.

One possible critique of Roberts and Dagan’s groundbreaking article is that they are doing nothing more than articulating utilitarian reasons, such as rehabilitation, within the retributive framework. To which one might answer: Why is that a bad thing? If a person manages to avail herself of rehabilitative options, isn’t that as much a statement of the rebalancing of good and evil in their case as it is of their future reentry prospects? I think one can make a case about both. This also helps explain why, for example, I feel differently about the release prospects of Sirhan Sirhan and Yigal Amir. The former has been in prison for 55 years, improved himself in countless ways, picked up far fewer disciplinary write-ups than one would expect for such a long incarceration, and expressed serious contrition and a change of heart about terrorism and about violence as a solution for the world’s problems. The latter has been inside less than 30 years, expresses no contrition whatsoever, and is pretty much the same person he was when he went in. Even from a purely retributive perspective it feels like one of these people is more deserving of freedom than the other.

I think it’s fair to read the Guardian piece with an open mind, without drawing comparisons between life on death row and life in general population. There is only one road in your life, and that’s the road your life ends up taking. Gratitude is always a wonderful thing to feel and express, but there is plenty to fix in general population and in the parole process as well. Where someone should or should not have ended up is far less important then where they actually are. Let’s fashion our policy to acclimating these folks to the yard accordingly.

How Machine Learning Improves Parole Research

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

Moshe responded: how will we make it?

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

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

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

But Moshe struggled and went down and forgot.

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

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

But, it was still a struggle for Moshe!

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

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

BaMidbar Rabah 15

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

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

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

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

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

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

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

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

Sirhan Sirhan, Yigal Amir, and the Place of Retribution on Parole

A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal.

Mishna Makkot 1-10

So too for those who are liable for capital punishment or lashes: their death or lashing does not atone for them until they repent [do teshuvah] and confess verbally [do vidui].

Mishne Torah LaRambam, Repentance 1:1

It’s hardly debatable that Richard Nixon’s presidency was a watershed moment in American criminal justice. Even the scholars who point to punitive tendencies among his predecessors will admit that Nixon’s presidential campaign highlighted crime—and particularly judicial permissiveness in the face of rising crime rates—as a key political issue, and that his presidency made good on the promises to become tougher on crime.

Having lived under this regime for 50 years, it’s hard to speculate what our system would look like if Nixon had not been elected. We did come very close: Nixon’s most promising challenger for the presidency was Democratic Senator Robert Kennedy, well-respected and admired, and a former Attorney General. But shortly after Kennedy announced his victory in the California Democratic Primary at an event at the Embassy Hotel, a young Palestinian refugee, Sirhan Sirhan, darted toward the Senator and fired several shots from his revolver. Kennedy was killed and four other people were injured by the gunfire.

Sirhan was sentenced to death, but experienced a stunning reversal of fortune. In 1972, the California Supreme Court found the death penalty unconstitutional, and the 107 people on death row at the time–including the Manson family members and Pinole murderer Dennis Stanworth–had their sentences commuted to life with parole. By the time California brought the death penalty back in 1978, alongside the option of life without parole, the “Class of ’72” people were already preparing for their upcoming parole hearings. One of them was Sirhan Sirhan.

Almost immediately after his arrest, and throughout his trial and incarceration, Sirhan was interviewed by many psychiatrists. They noted his traumatic childhood in Palestine, his harrowing journey to Jordan as a refugee, the horrendous violence he witnessed as a young child. They identified psychosis and paranoia. But by the mid-1970s, he seemed to settle down, to the point that the parole board–on par with how things were done in those days–sat down to set a parole date for him. They settled on 1984; 16 years was plenty for first-degree murder back in those days. If this seems oddly lenient to you, keep in mind that Sharon Tate’s family members thought it would be an uphill battle to keep the Manson girls behind bars in 1978.

Sirhan’s early hearings in the late 1970s were basically status conferences, which followed up on his rehabilitative journey in prison. But things took an interesting turn in 1982. On April 26, a Monday, the parole board convened for a week-long hearing in his case, whose purpose would be to determine whether to rescind his 1984 parole date.

The impetus for this unusual step was threefold. First, as Sirhan’s release date approached, the Board faced unexpected gale force winds of public disapproval. The Commissioners received of 3,961 letters; 8,127 signatures of petitions; and 50 city and county resolutions requesting the recission of Sirhan’s parole date. The November 1981 assassination of Egyptian president Anwar Sadat, on the heels of his historical peace agreement with Israel, reminded the public of yet another anti-Israel act of terrorism, spurring these letters on and drawing connections between the two acts.

Second, the Board explained, new evidence had come to light that called into question the prior portrayal of Sirhan as a docile, rehabilitated inmate. The information included a Playboy article called “inside Sirhan”, as well as numerous threatening letters Sirhan had sent from prison to various individuals, and documentation of his threatening personality in his central file. “Generally,” the Commissioners explained, “the information specified above alleges that Sirhan has made threats against various people, and that he has exhibited other behavior indicating that he is not suitable for parole.”

The third ground for the hearing, however, was legal: the board maintained that its 1975 predecessor, which set Sirhan’s 1984 date, erred in exercising its authority. The question for discussion would be: “[D]id the parole granting panels fail to exercise independent discretion in finding Sirhan suitable or in establishing a period of confinement? The panel’s failing to consider the nature of the offense and the victim in finding Sirhan suitable for or in establishing a period of confinement.” The Board answered this question in the affirmative: they claimed that the 1975 Board abused its discretion by “fail[ing] to appreciate and fully assess the magnitude of the crime for which Sirhan was convicted.”

Sirhan’s attorney, Luke McKissack, balked at these reasons for recission. All the details about Sirhan’s crime, its seriousness, and its magnitude, he said, were widely known at the time of his trial and had no place at his parole hearing. As to Sirhan’s presumably threatening behaviors, McKissack explained, they should be understood in the context of his traumatic upbringing and unusual confinement situation. McKissack recounted some of Sirhan’s traumatizing experiences in Palestine—killings, mutilations, and mass atrocities, which “Sirhan, at four years of age, obviously would be affected by seeing that kind of violence.” He also explained that Sirhan’s threats should not be taken seriously: his 14 years in protective custody “could be the equivalent of twenty or twenty-five years for somebody else. . . from the onset he knew that anybody might kill him” and his threats should be seen as what they were: the airing of frustrations made “ten years ago when Sirhan was depressed, psychologically disturbed and reflective of that situation and not as high-powered as the district attorney makes it out to be.” During those years, McKissack explained, Sirhan witnessed other people—some convicted of multiple murders—being paroled, and it was understandable that he was frustrated and felt that he was singled out: “It doesn’t seem to me that in order to qualify for being paroled, that a person has to think that everything that occurred to him in life is fair.” Sadat’s assassination, he said, had nothing to do with Sirhan, who was being scapegoated: “In 1982, in an election year, with international events out of control, everybody is frustrated. It’s: Find someone to jump on.”

The Board was undeterred. On April 27, 1982, the Commissioners interrogated their predecessor, James Hoover, a member of the committee that set Sirhan’s original parole date. The resulting exchange reads like a remarkable showdown between the rehabilitative, professional, low-key logics of 1970s parole decisions, and the much more emotional and political tenor these decisions would reflect in the 1980s. Hoover had no love for Sirhan, obviously, but he thought his job was to judge Sirhan impartially on the basis of his prison performance:

Brown: It was your impression from 75-20 that everyone had to have a parole date set?

Hoover: That was my impression, as long as there was no negative factors in file.

Brown: Initially you could find no reason to deny the setting of the parole date?

Hoover: I could find no reason. I might mention in my own mind that I wanted to find a reason. . .

You have got to remember that our median time for murder first was only about fifteen years. So that means we had an awful lot of low cases and an awful lot of high cases. . . our legislature in their great wisdom did not say, “Well, if you shot a Senator you ought to do so many years. And if you shot Jose Gonzales down in the barrio, you only do this many years”. . . At that period of time this was what was acceptable. It may not be acceptable today, but at that period of time that was the guidelines. And my feeling was, there was nothing to justify. . . I thought that was ample punishment picking that period of time, that time in space of society and what people expected.

Hoover didn’t want Sirhan to walk, but he did what he thought was his job:

W]hen I saw [the psychiatrist], I said, first thing out of my mouth, ‘Shit. This son-of-a-bitch ain’t going nowhere.’ That was just—it was the flash that came up. And then I think she said, ‘Well, show me why not.’ And that’s when I went to the file. I thought, certainly I’ll be able to have all these negative things in file. I mean, it was just set in my mind. I just walked into it and without review, just off the top of my head.

Hoover’s 1982 colleagues, needless to say, did not see eye to eye with him on this. They rescinded his date, citing not only his threatening behavior but also the 1975 Board’s mistake in discounting the magnitude of his crime. The New York Times story about the recission features clearly retributive rationales:

‘’The people of the world will breathe a sigh of relief tonight because Sirhan will remain in prison,’’ said District Attorney John Van de Kamp of Los Angeles, who had pushed for canceling the Sirhan parole date. ‘’The message must be sent out in clear and unmistakable terms that political assassination will not be tolerated in this society – and those who engage in it must pay the price.’’

‘’He deserves never to be set free,’’ said State Treasurer Jesse Unruh, who as the California manager of Robert Kennedy’s campaign for the 1968 Democratic Presidential nomination was present when the New York senator was shot. ‘’I’ve been battling that parole date since 1975.’’

As we all know, Sirhan, who is now 79 years old, remains behind bars. In 2021 he was recommended for parole, but Governor Newsom reversed; in 2023 he was again found unsuitable for parole. In his last few hearings–probably to heed the California Supreme Court’s admonishment in Lawrence–the Board stopped citing the magnitude of the crime and started giving us, instead, the usual parole word salad about insight and accountability and looking inward, the whole psychic excavation enchilada. But the archaeology of the hearings plainly shows what happened: as of 1982, the parole board started seeing itself responsible not just for assessing the parole candidate’s prison journey, but for curating and appeasing the public sentiment about his or her crime.

To be honest, I’m not sure retribution has no place in release decisions. While working on Sirhan’s parole hearings, I repeatedly thought of another political assassin: Yigal Amir, the third-year Israeli law student who assassinated Prime Minister Itzhak Rabin. In 2023, it is hard to not see Rabin’s assassination as the watershed moment that ushered Binyamin Netanyahu’s ascendance to state leadership and, as Israel faces a severe constitutional crisis that threatens to disproportionately affect Palestinians and other non-Jews, to balk at the possibility that Amir should ever be paroled. In the following video, an excerpt from an excellent satirical show called The Chamber Quintet, actor Rami Heuberger depicts Yigal Amir. He smiles at the camera and said, “in twenty years, I’ll receive clemency. You know that’s true. Deep inside, you know it.” The effect is chilling:

The prospect of parole, clemency, or a pardon for Amir is not farfetched at all under the auspices of Israel’s 37th Government. Would that really be so much more horrible than a parole for Sirhan? What about when Amir is 79 years old? I’m not sure. But I also feel that we need to talk honestly about the role, if any, that retribution should play in parole decisions, and about the extent to which we entrust Board members to properly calibrate the resulting punishment in the face of political and social considerations and public upheaval. In any case, I find it poignant that Sirhan became a victim of the era of punitiveness that he ushered with a bullet.

In Memoriam: Gad Barzilai

Lately, I feel like an increasingly big part of the second half of my life is saying goodbye to people I love. Just recently, we unexpectedly and prematurely lost so many friends. This morning we received the terrible news that our friend and colleague Prof. Gad Barzilai, of Haifa University (formerly of Tel Aviv and University of Washington) has died of heart complications. It was very sudden and he was only 65 years old.

I met Gadi in Tel Aviv, when I was a frustrated postdoc there, and his advice and encouragement through the job search process was invaluable. His humanism and optimism was uplifting. We later worked a lot together at the Israeli Law & Society Association and at LSA, whose conferences he attended without fail.

Gadi was a scholar of universal renown, whose writings straddled the fields of constitutional law, administrative law, and political science. His book Communities and Law dealt with questions at the heart of Israel’s current crisis: how should majoritarian democracies treat minorities with identifiable community cultures? In the book, Gadi discusses the case of Israel, focusing on three such minorities: Palestinians, women, and ultra-Orthodox Jews. By contrast to much of the political science literature, from Robert Nozick through to Bhikhu Parekh (thank you, Sam Scheffler, for teaching me this literature) Gadi didn’t have a prescription to fit all majority-minority situations. Rather, he thought that each minority culture frames its own interest in, and ability to, engage with the majority culture in a different way, which requires

flexibility in framing the appropriate response within liberal societies.

This idea–of letting disenfranchised groups speak for themselves and understanding them on their own terms–also characterized his pedagogy and administrative work. An expert on Israel’s political culture (and the president of the Association of Israel Studies between 2011 and 2013) Gadi forged relationships with scholars, students, and administrators of varied backgrounds and walks of life. He used to say that research (and life) were “revolutions in a tie.” His administrative career was a testament to this. Under his Deanship, Haifa University bolstered and strengthened its impressive clinical program, with the idea being putting legal studies into practical use by helping those unable to afford legal representation.

Gadi was also a high-profile commentator on current events in Israel, where his vast goodness and common sense made him uniquely qualified to be a straightforward voice of basic morality. His last few posts on Facebook are a testament to this. Upon hearing that the 37th government sabotaged the ability to monitor domestic abusers with electronic cuffs, he said, “this is a clear sign of a country in serious moral crisis; we might be able to save the legal system, but who will save a woman who will be murdered? Shame on you.” His analysis of the convoluted events of the last few weeks was always crystal-clear, spot-on, and prescient. This article (for the Hebrew readers among you) is an example of his ability to convey complicated ideas in ways that everyone can understand and relate to, legally and morally (“the chances of a written constitution in Israel are just like the chances of me being a world champion in running.”) And in this article he warned all of us of the brewing civil war. In one of his last interviews, he articulated his vision for Israel’s constitutional future:

I want a bill that enshrines human rights that, to this day, are only supported by the High Court of Justice–the same “dictatorial” High Court that is now being challenged–which will include freedom of speech, freedom of travel, freedom of religion and freedom from religion. It’s great to be Ultra-Orthodox, but it’s also great to be secular, and every person must have the freedom to live according to their views. At the end, we must improve the existing Basic Laws, to enshrine human and civil rights with an emphasis on minority rights.

I’ve now seen lots of testaments and obituaries online, and interestingly very few of them focus on Gadi’s own scholarship, which was vast and impressive; rather, people are commenting on how Gadi supported and encouraged their own work. Because that’s exactly who he was: devoid of any ego, incapable of pettiness, he was universally generous to all. Always with a kind word to everyone–fancy people in the field as well as undergrads and grad students–and always expressing deep curiosity and interest, a desire to learn, and a sense of partnership and enthusiasm about other people’s work. Always a champion of his friends and colleagues, Gadi was constantly one of my recommenders for any job, award, or grant I went for, and always effusive in his advice and praise. He also chaired the panel that celebrated my first book, Cheap on Crime, and had such wise remarks about it. I think we all felt that Gadi was an expert in our field because he was so knowledgeable in all fields.

Gadi had known for a while that his cardiac condition spelled trouble, and had made lifestyle changes in terms of exercise and diet; but he continued to work himself ragged and worry desperately, from the depths of his big heart, about the future of the country he loved so much and fretted so much about. I really do think that this government broke his heart. It is precisely in these dark times that we need courageous voices of common sense and a strong moral compass to remind us that there is an objective good and that we need to care about everyone, not just let the majority trample human rights. With Gadi’s voice muted and his great light dimmed, I worry more for us all. What is remembered, lives.

When Does Blowing Up a Plea Deal Amount to Judicial Prejudice?

A huge beef is brewing across the Bay Bridge between Alameda County’s new District Attorney, Pamela Price, and Judge Mark McCannon. The backstory involves a plea agreement reached in the case of Delonzo Logwood, who is charged with a triple homicide. Looking at an exposure of 75-to-life, the proposed plea agreement would drop two of the murder charges and consist of only 15 years for the third.

Judge McCannon reportedly balked at the plea deal, saying that he has had sleepless nights over the triple murder case, and that he could not hand out a sentence that was not just and deserving. The judge also scolded Logwood from the bench, saying, “[y]ou can’t think an apology will make this all better. . . What are you sorry for if you didn’t do anything?”

In response, both the prosecution and the defense moved for a recusal, and the judge refused to recuse himself. Now, D.A. Price, elected on a progressive platform, is waging war against the judge, trying to get him disqualified from any case handled by the D.A.’s office. Here’s a video in which she explains why:

The basic doctrine that addresses the situation comes from a D.C. Circuit Court case called U.S. v. Ammidown. The defendant arranged to have his wife murdered by a much younger man, Lee. At the last minute, he changed his mind, and wanted Lee to “only” kidnap her and extort money from her. But Lee did end up killing Mrs. Ammidown, and both men were caught and prosecuted. In return for Ammidown’s cooperation in testifying against Lee–a much younger and more dangerous man–the D.A. agreed to downgrade the charges to second-degree murder; the judge, however, was not on board, and said that the charges were a “tap on the wrist.” He convicted Ammidown of first-degree murder and sentenced him to life.

On appeal to the D.C. Circuit Court, the sentence was vacated and the judge was ordered to accept Ammidown’s original guilty plea. Judge Leventhal, who wrote the opinion, explained that judges are not bound by plea agreements and are allowed to “blow up” these deals. But this course of action must be reserved for rare occasions, and follow these guidelines:

First, the trial judge must provide a reasoned exercise of discretion in order to justify a departure from the course agreed on by the prosecution and defense. This is not a matter of absolute judicial prerogative. The authority has been granted to the judge to assure protection of the public interest, and this in turn involves one or more of the following components: (a) fairness to the defense, such as protection against harassment; (b) fairness to the prosecution interest, as in avoiding a disposition that does not serve due and legitimate prosecutorial interests; (c) protection of the sentencing authority reserved to the judge. The judge’s statement or opinion must identify the particular interest that leads him to require an unwilling defendant and prosecution to go to trial.

We now turn to the content of these components, and begin by passing any discussion of fairness to the defense, since it is not directly involved in the case at bar and it has already been identified in the precedents referred to earlier in this opinion. As to fairness to the prosecution interest, here we have a matter in which the primary responsibility, obviously, is that of the prosecuting attorney. The District Court cannot disapprove of his action on the ground of incompatibility with prosecutive responsibility unless the judge is in effect ruling that the prosecutor has abused his discretion. The requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons. That much, indeed, was proposed by the Advisory Committee, and the Supreme Court’s amendment obviously did not curtail the proposed authority of the judge. The judge may withhold approval if he finds that the prosecutor has failed to give consideration to factors that must be given consideration in the public interest, factors such as the deterrent aspects of the criminal law. However, trial judges are not free to withhold approval of guilty pleas on this basis merely because their conception of the public interest differs from that of the prosecuting attorney. The question is not what the judge would do if he were the prosecuting attorney, but whether he can say that the action of the prosecuting attorney is such a departure from sound prosecutorial principle as to mark it an abuse of prosecutorial discretion.

In like vein, we note that a judge is free to condemn the prosecutor’s agreement as a trespass on judicial authority only in a blatant and extreme case. In ordinary circumstances, the change in grading of an offense presents no question of the kind of action that is reserved for the judiciary.

U.S. v. Ammidown (1973), Op. Ct. by Judge Leventhal.

The takeaway for judges is a strong discouragement from blowing up deals unless they have an excellent reason. Any time a judge flouts a plea deal, the sentence is more vulnerable on appeal, so most judges don’t do it lightly. Judges usually respect plea deals because they have long-standing working relationships with the DA’s office and they have to trust their judgment. Moreover, blowing up a deal is such an unusual occurrence that judges have to explain themselves in a lot of detail (to legitimize the sentence and protect it from appellate reversal). This, of course, requires going into why the judge does not trust the D.A. to have taken the public interest sufficiently into consideration. In doing so, judges sometimes use strong words, but per Ammidown, speaking too strongly is also a problem.

Does blowing up one deal amount to judicial prejudice of the sort that can be said to sour the judge’s relationship with the entire D.A.’s office? In other words, will D.A. Price prevail in trying to get Judge McCannon disqualified from all cases her office handles? That seems a bit of a stretch, and it speaks volumes about the underlying political issues surrounding her election and what her office stands for. Newspapers have reported that the office is somewhat is turmoil, with people quitting and openly challenging the office’s values and priorities. This is a pretty natural consequence of the office changing political direction with the election of a progressive leader–we saw this during Chesa Boudin’s tenure in San Francisco, also. As we see in the video, D.A. Price disputes these former prosecutors’ allegations.

The usual way of addressing possible judicial prejudice is by asking for recusals on a case-by-case basis. There are some situations where a more general disqualification is appropriate: consider, for example, a situation where the judge marries the D.A., in which case they really should not handle cases that the office brings (and best for everyone if the two work in different counties altogether.) This is quite unusual, and I wait to see how it unfolds. Regardless of whether Price will be successful in her bid, starting a massive feud with a judge on YouTube does not portend well for Alameda County.

Your One-Stop-Shop for Trump Indictment Explainers

Well, here we are: the arraignment of Individual One for a 34-felony indictment, has happened, and by tomorrow, many questions and explainers will be swirling around, so I gathered a few of the basics in this post (I would say I curated them for you, but I’m fed up with everyone saying “especially curated” as if compiling any list of thingamajigs were an artistic accomplishment comparable to putting together an exhibit at the Louvre. Thank you for listening to my TED talk.) If you’d like to take another look at the original materials, here’s the indictment and here’s the statement of facts. The NYT has provided an annotated version. For more, click here for a KPFA interview in which I discussed the indictment and next steps with veteran journalist Mitch Jeserich. Things to watch out for:

1) Why aren’t they listing the crime Trump was trying to commit by paying the hush money? This article suggests it’s a strategic choice (but wouldn’t they have to prove that, as an element of the felony? the NYT seems to think they don’t have to prove that, only the intent. I’m not 100% sure this is true.) And there’s also a jurisdictional question: Can that crime be a federal crime? Here’s coverage on Vox explaining this problem and how the rule of lenity plays into this. 

2) Why no conspiracy charges? I haven’t seen this covered anywhere and, honestly, I’m perplexed. Under NY law, here are the various permutations of conspiracy. If they can prove what’s in the statement of facts beyond reasonable doubt, they have conspiracy in the bag. Odd. 

3) Is everyone rejoicing? Look at this Gallup poll. Big shocker: opinions vary across the political spectrum. 60% of people approve of the decision to indict, and 76% think the decision was politically motivated (this obv. includes a big chunk of those who approve of the indictment.)

4) Is there going to be a mug shot? Not unless it’s photoshopped (I know fake ones are already in wide circulation.) He did get fingerprinted, but here are the prosaic reasons for the lack of a mugshot. 

5) What is the defense going to do in terms of pretrial motions? If I were the defense here, I would try to move to dismiss on the basis of general due process concerns (political targeting, the vagueness in the indictment.) If I were unsuccessful, I would move to change venue out of New York, where it will be difficult to find a sympathetic jury, but this maneuver is likely to fail (exposure to the upcoming media circus will be a factor anywhere in the country.)

6) What did Trump say at his press conference at Mar-a-Lago? As expected, he denounced Bragg as politically motivated. Here’s the coverage on Fox News (!).

Judicial Overhaul in Israel – The End of Democracy?

The news from Israel are unprecedented – the whole country is ablaze with protests against Netanyahu’s government’s plan to reform the judicial system. Netanyahu announced a pause, but the bill is still on the Knesset’s agenda for after the High Holidays, and this is a good time for English-speaking folks to figure out what is happening. So, I’ve uploaded a lecturette I created that walks you through the basics of this serious civil conflict.

I’m also organizing two events: a lecture at UCLSF on Thursday at 12:30 and a public event with colleagues and friends at Manny’s on Monday, 4/3, at 7:30. If you want to learn more about the situation.

Please, treat the Israelis and Palestinians around you with extra kindness this week. It is hard to be away from family and friends when hundreds of thousands of people are out in the streets, facing violent government-sponsored goons and Ben Gvir’s oppressive police (the cops are throwing stun grenades on protesters and hosing them from trucks.) It is also very hard for our Palestinian friends who face even more violent provocations under this horrendous government (anyone who thinks their situation is already at its worst and the government makes no difference is seriously deluded.) And please consider how you can help the fight against U.S.-based think tank Kohelet Policy Forum, which is puppeteering and funding this illiberal government from here.

Not Guilty Verdict in Foster Farms Trial!

What a day of good news! First, we hear winds of reform at San Quentin. Then, Chad Goerzen and I receive word that FESTER has been approved for publication by the UC Press Editorial Committee (and coming to a bookstore near you in January 2024.) And then, I hear the verdict in the Foster Farms trial: NOT GUILTY!

As explained in this Los Angeles Times story by Christian Martinez, two activists, Alexandra Paul and Alicia Santurio, faced misdemeanor charges for rescuing two chickens, Ethan and Jax, from a truck, moments before they were brought to a slaughterhouse. This video depicts the rescue:

This is the second time that activists rescuing animals prevail in criminal courts. I’ll know more about the trial later next week, though I do know that a legal opinion I wrote in 2018 played a role. When I learn more about the legal issues, I’ll post a follow-up. For now, good news all around. Saving animals is not a crime!

Newsom Announces Quentin “Scandinavian” Revamp

Big news regarding San Quentin today: Gov. Newsom announced a complete reorganization of San Quentin as a rehabilitation and training center, along the lines of Scandinavian prisons. Nigel Duara of CalMatters reports:

Gov. Gavin Newsom is expected to say that the state will spend $20 million to begin the reorganization of San Quentin State Prison from an institution that houses 3,300 incarcerated people at a high-security site on the San Francisco Bay to a “center for innovation focused on education, rehabilitation and breaking cycles of crime.”  

The new plan would complete the closing of death row and shut a Prison Industry Authority warehouse. The facility would be renamed the San Quentin Rehabilitation Center. 

Some of the larger questions about the reorganization will remain unanswered until the prison’s advisory committee decides them, including which imprisoned people are eligible for the rehabilitation center. 

The new facility will also offer job training, according to the governor’s office, though the advisory committee will have to decide for which jobs inmates will be trained. In prisons in other states that emphasize vocational training, the jobs include plumbing and long-haul trucking. 

The plan for the new facility is modeled on prisons in Scandinavian countries, including Norway, which significantly improved its rate of recidivism from 60%-70% in the 1980s to about 20% today when it began to allow prisoners more freedom and focused its prisons on rehabilitation. 

In those prisons, incarcerated people can wear their own clothes, cook their own food and have relative freedom of movement within the prison walls. That model has taken root in states as disparate as deep-blue Connecticut and deep-red North Dakota. 

Drawing inspiration from Scandinavian facilities is nothing new, and in fact, continues a trend that AMEND SF have begun in partnership with Norwegian prisons. Here’s an interesting report on the CDCR website about a trip some custodial staff took to Norway and what they learned from it. They’ve also brought Norwegian custodial staff to CDCR and to prisons in Washington State to inspire improvements in correctional culture.

It’s important to keep in mind that not all is peachy in Scandinavian criminal justice. In her book Nordic Nationalism, Vanessa Barker highlights the price of preserving a humanist welfare state–gatekeeping against immigrants. Keramet Reiter, Lori Sexton and Jennifer Sumner also wonder about the extent to which the humane and rehabilitative treatment of prisoners in Denmark can be imported to the United States given the difference in political cultures. And, in their fieldwork, they ask and answer some complicated questions about the Danish prison experience:

First, we find that harsh punishment can and does exist in Danish prisons.They are not, after all, uniformly humane; there are scratches in the “polished glass” and certainly reasons to resent the system. Second, the “responsibilization,”which Larson describes (and which, we argue, is fundamental to modern incarceration), can only be enacted through staff and institutional frameworks, which necessarily impose limits on individual freedoms. The particular ways that prisoners and staff describe the negotiation of limits—in the context of both open and closed prisons in Denmark—sheds light on the shortcomings of ScandinavianExceptionalism as both a substantive explanatory model as an ideological agenda that other countries might emulate.

A possible answer to this might be–duh, it’s prison. If it takes you out of your ordinary life against your will, it will involve *some* form of suffering. But I think there’s something else we have to ask ourselves.

I suspect that the energy behind the proposed Quentin overhaul–which, if it comes to fruition, will be overall a welcome development–has a lot to do with the Quentin COVID-19 disaster that we cover in FESTER. Yes, the physical plant at Quentin requires special attention because it is dilapidated and almost 200 years old, and basically allows disease to run rampant. But at the same time, it was no wonder that when CDCR tried to address COVID with transfer policies many people fretted and objected. As we explain in the book, Quentin benefits immensely from its location in the Bay Area, near nonprofits, universities, and a plethora of progressive do-gooders. Which means that, if you want to make parole, this is the place that will offer you the kind of programming and positive reports (“chronos”) that the parole board wants to see. People from all over the state jostle to try and get to Quentin. Investing even more in making Quentin a jewel of enlightened incarceration will make these disparities even worse.

This is not a good reason, of course, not to change things. But it is a good reason to rethink how things are going in the system as a whole. Given what we know about the practicality of population reduction–namely, that you could release 50% of CA’s prison population tomorrow without an appreciable rise in crime if the political good will was there–shouldn’t we try to spread the love toward Susanville and Central Valley, where lifers are parched for programming? And wouldn’t it do wonders for everything prison related–health-care, rehabilitation, the works–if there were overall fewer people in the system? If each prison, individually, were populated to 50% of design capacity, and this were the norm, wouldn’t that free up resources and professional attention to invest in Denmark-izing other prisons beyond the Bay Area?

How True Crime Podcasts Diversify and Decentralize the Victims’ Rights Movement

In the last few months, due to a combination of insomnia and long workouts, I’ve been listening to a lot of podcasts, many of which are true-crime themed. Some of these are long-form podcasts, which follow an individual case, and some feature numerous cases, devoting an episode or two to each. This has led me to rethink about the victims’ rights movement and consider how the new landscape of crime podcasting has changed its focus.

The criminological literature tends to paint the emergence of the victims’ rights movement in the U.S. as a monolith: comprised primarily of white, middle- or upper-class people whose relatives were victims of stranger homicide, pioneers in victim advocacy have tended to advocate for harsher punishments, the death penalty, abolition of parole, harsher prison conditions, etc. In some cases, as Josh Page documents in The Toughest Beat, they partnered with California’s prison guards union. In other cases, as I documented in Yesterday’s Monsters, they pioneered victim presence at parole hearings, with the only possible approach being clamoring for parole denial. Our harsh habitual offender laws were largely the product of Mark Klaas’ advocacy, in the aftermath of the murder of his daughter Polly.

And yet, evidence abounds to the fact that victims are not, actually, a monolith. In my partnership with violence prevention coalitions, I’ve met many victims’ families–mostly black, working-class people–who don’t feel at home with this punitive approach, and call for social change instead. We’ve seen some stunning examples of victim forgiveness (even as know-it-alls on the Internet tell them how to mourn their relatives.) It looks like victims of acquaintance homicide, rather than stranger homicide, are less punitive, and that punitiveness declines when victims and offenders encounter each other.

My extensive, though unsystematic, course of listening to true-crime podcasts suggest that today’s true-crime media lends its voice to multiple victim perspectives, incorporating some critiques of punitiveness, excessive policing, and mass incarceration, and rejecting the victim/offender dichotomy that characterized so much of the early days of the movement. Many episodes include frank descriptions of victims’ lives, including their criminal records, drug abuse, and mental illness–not to blame them, or cast a negative light on them, but rather to point out that even people who struggled in their lives deserve to be found and for their fate to be discovered. Many episodes explicitly feature victims of color, victims who worked in the sex industry close to their demise, and victims who had complicated relationships with their suspected killers or abusers. In many of these episodes, the podcasters explicitly point out that they are looking to bring attention to these left-behind cases.

I’m also noticing that the podcasts feature plenty of rage over inappropriate policing, such as the forceful extraction of confessions or sloppy forensic works. This falls in line with much of what I’ve been thinking about recently: that the problem is not so much overpolicing or underpolicing, but rather the wrong kind of policing altogether (more focus on stop-and-frisk harassment and humiliation than on, well, solving crimes.) Podcasters’ voices become emotional not only when describing the victims’ plight, but also when describing harsh incarceration conditions suffered by wrongly convicted suspects. Notably, podcasters feature ambivalence toward family members who (wrongly) maintain that someone cleared of all connection to the crime (through DNA and, say, proof that a confession was coerced) is guilty: they offer empathy but, plainly and politely, state that they disagree.

Because podcasters have to provide what their public is interested in hearing, one can tell that criminal justice issues percolate from public debate into these programs–first among which is the issue of racial justice. I’ve seen extensive coverage of hate crimes, complete with fundraisers for racial justice organizations, and in cases that involve black perpetrators and victims the focus is on getting justice and attention for the victim, rather than punishment for the offender.

Relatedly, these podcasts also choose to feature a variety of different victim voices. Some families, you’ll hear, are staunch supporters of the death penalty, wishing for the murderers of their loved ones to suffer. Others say that they don’t much care about the punishment, but rather about solving the crime. Many podcasts offer no judgment, letting the victims be themselves rather than the world curators of criminal justice. I really appreciate this perspective.

Much of this pluralistic, multifaceted approach relates to the fact that many true crime podcasts focus on unsolved crimes. The main question driving the narrative is what happened, rather than what the sentence will be. This, to a great degree, depoliticizes the content, focusing it on something we presumably all want: to solve serious crime cases.

This change of focus reminds me of something different, but related. In a really interesting, clear-eyed piece, Keith Findley argues that the emergence of innocence as a topic of conversation has, to some extent, broken the impasse between crime control and due process enthusiasts. Even the staunchest crime control proponent would not like to see an innocent person behind bars; even the scrappiest due process advocate wants solid proof of a crime at trial. I think a similar maneuver happens with these podcasts. The idea that we need to find out what happened eclipses the focus on retribution, just deserts, and what happens later, breaking the impasse and finding some depolicitized commonality among victims of unsolved crime.

I may write something about this at a later date; I think that these podcasts offer an interesting counterpart to the usual crime daytime TV, reviewed by Danny LaChance and Paul Kaplan in their book Crimesploitation. Let there be no mistake: true-crime podcasts crimesploit to the Nth degree. But I think they do it in a different way that is worth exploring.