Love Makes a Family: Does Reproductive Justice Include Only Biological Reproduction?

Recently I listened to Chen Zausmer’s fascinating podcast “What Are You Waiting For?”, which documents her egg-freezing journey. The podcast is moving, disquieting, and extremely well done, documenting Zausmer’s emotional process as well as the physical and financial practicalities of the procedure. Among the things that make this a worthwhile listen are the embedded recordings of personal conversations between Zausmer and her friends and family, in which they raise uncomfortable, emotionally loaded subjects such as “giving up” on couplehood and a two-parent framework, questions on reproductivity and self worth, womanhood and femininity, and other complicated, soul-searching issues. It is also an admirable example of honestly and vulnerably offering a meditation on subjects that can be, and are, deeply private issues for wide public consumption.

When someone does make the choice to make their very private affairs public in this form (the podcast is accessible on Spotify, Apple Podcasts, and pretty much anywhere else podcasts can be found), though, the audience’s thoughts about it are not merely nosy/judgmental commentary on another private person’s journey. Each of us consumes art and media through personal eyes. And, in my case, that meant listening to four lengthy episodes detailing a plethora of emotional, physical, and financial trials and tribulations focused on a very particular biological choice, without even a brief mention, a suggestion, or a whiff of possibility, around nonbiological parenting through fostering and adoption. And as an adoptive mom, this was crazymaking.

This is not a personal critique of Zausmer’s options–she is, of course, free to do as she wishes with her body, soul, and financial resources–and for what it’s worth, she comes off as a thoughtful person who engages in unflinching self-inquiry, which is admirable. But those who don’t want their deepest personal struggles to evoke a range of emotions, thoughts, and reactions, seldom make podcasts out of them, so I’m offering some thoughts in that spirit.

As in the pro-choice/pro-life debacle, becoming a mom through adoption has gifted me with a more nuanced perspective that untethers parenting from biology, which I elaborated on elsewhere (here and here.) I always feel like these perspectives are left unexamined because of the strong bias in favor of biological parenting. The conversations about reproductive justice that I’ve been privy to not only prioritize biology but actively push any notions of nonbiological parenting out of the conversation. For a number of years I’ve been surrounded by people, some of them close friends, who have gone through numerous circles of IVF hell, back-and-forth with surrogates and the adjacent ethical issues, and the deep tragedies of miscarriages and losses. And yet, suggesting adoption or fostering to people who are undertaking unbearable physical, emotional, and financial difficulties in their torturous journey to become biological parents is considered terribly rude, and the social consensus is that people’s willingness to jump through absurdly challenging hoops to ensure that they go through pregnancy/birth, or even just that their genetics are passed on, should be unquestionable accepted, without opening other doors and possibilities.

I remember noticing this when I attended an event celebrating Dov Fox’s new book Birth Rights and Wrongs. To his great credit, Fox provides a thorough and thoughtful overview of the myriad problems caused by reproductive technologies, including unreported medical conditions of sperm donors. The book’s agenda, however, is clearly to empower parents to address these serious technological and medical challenges through lawsuits in torts. One walks away with the sense that any procedure for procuring biological children–as complicated, experimental, expensive, and taxing as it might be–should be the unshakable right of any prospective parent, complete with the legal power to sue at every wrinkle at which something goes wrong. Expanding these litigation rights is a tacit expression of the law’s preference for, and encouragement of, biological reproduction.

This may be outside the cultural/biological/social norm, but I know I’m far from the only one: I have never wanted to get pregnant or to give birth, and at the same time I am thrilled to be a mom and my son is the light of my life. I accept that many, perhaps most, women do want to experience pregnancy/birth. But it is hard for me to responsibly participate in conversations with people who are experiencing horrific suffering and sorrows through their pursuit of biological parenting at all costs, and are completely unwilling to even consider other paths to parenting. Because we are very open about our adoptive journey, over the years I’ve happily had several lengthy conversations with friends and acquaintances who, throughout this journey started “despairing” and “thinking about adoption”–as if it’s a secondary choice to biological reproduction, only to be pursued if the “normal” path has failed, because multiple IVF rounds involving extensive travel and six-figure-dollar amounts is apparently more “normal” than offering a home to a newborn that also saves the life of young people saddled with an unwanted pregnancy. Afterwards, sometimes I get a phone call saying that they discussed it amongst themselves and at least one of them was adamant that what they really wanted was “a child of our own.” Get it? A child of our own–as if your kids through adoption or fostering are not really “your own”, or it’s some testament of your inferiority that you chose nonbiological parenting. I always want to ask: Why is it so important for you to propagate your specific genes, and how are they uniquely better or more important to propagate than those of other members of the human population? It’s especially jarring when, in opposite-sex couples, virtually all of the physical suffering is endured by the woman, and it’s the man who clings to the genetic imperative at the price of his partner’s health and wellbeing. Can I say something about this, compassionately and gently? Of course not! It’s none of my business, and there’s such a taboo against suggesting this even in the most compassionate way–and I submit the taboo exists because we harbor a deep bias against nonbiological parenting.

But this is not just an issue of people’s personal choices, for whom I have all the compassion in the world (another person’s suffering is 100% understandable and relatable, and gets 100% support and love from me, even if I’m not on board with the cause of the suffering.) It raises serious questions for all of us as a community. Societies that do not fully support solid, comprehensive sex education, keep young people ignorant of their bodily functions, allow young men to walk away from the consequences of their sexual activity, sticking young women with the agonizing expectation that they carry unwanted pregnancies to term, are societies that produce babies born into untenable situations who need stable, solid, loving homes. And such societies should do everything in their power to guarantee a good starting point for all these babies–starting with completely destigmatizing, and even encouraging all forms of nonbiological parenting, through resources, education, and unwavering social support. Investing enormous amounts of medical progress, public funding, and unquestioning social validation in biological procreation for the wealthy at all costs has a price, and that price is delegitimizing and neglecting fostering and adoption. And in the current political climate, this does not strike me only as precious and capricious, from a governmental perspective, but also as morally untenable.

My great aunt Carmella had a beautiful child-free life: she had her own business and traveled around the world with a lovely and similarly adventurous husband. They worked hard and arrived at a place of wealth and financial comfort. And yet she was deeply unhappy throughout it all. One of the main reasons: She desperately wanted to be a mother, bitterly envied her siblings (including my grandma) who had kids, and this filled her with frustration and contempt. Toward the end of her life, which she spent giving backhanded compliments and insulting family members, my mom called her to let her know that we had a son, and shared briefly about the adoption. There was a long silence on the other end of the line, and then Carmella, who was never at loss of words, said quietly, in a little girl’s voice: “Hadar is very wise.” When my mom shared this with me, my heart broke for Carmella and for the decades of joy and fulfillment she robbed herself of by not even considering fostering and/or adoption.

If you are reading this, no matter where you are in thinking about parenthood, what I most desire for you is to be happy. And what is most important to let you know is that there are many ways for you to find happiness. You can, and definitely should, consider the many possibilities of becoming parents through both biological and nonbiological means. You can, and definitely should, consider the very legitimate possibility of living a wonderful life full of meaning and fulfillment as a non-parent (with or without children in your life in one form or another.) A lot of the suffering we undergo in life when we choose a certain path comes from the stubborn (and incorrect) belief that it is the only viable path to our destination. I don’t want this for you–I want to you to offer yourself more freedom, and this freedom starts in your own mind, outside the socio-cultural expectations, pressures, or inducements. I’m sending you good wishes on this journey.

Guest on The Green Pill Podcast

It was such a pleasure last week to be a guest on Wayne Hsiung’s excellent podcast The Green Pill. Wayne is one of my favorite people, whom I admire a great deal for his selflessness: he is a relentless animal rights activist and one of the founders of Direct Action Everywhere. For his involvement in intrepid open rescues of animals (piglets, chickens) and documentation of the horrific conditions in so-called “humane” and “cage-free” slaughterhouses, he has faced serious criminal charges in multiple states, the latest of which is his upcoming trial in Utah. Wayne is also a deep thinker, a

We took some time to talk about the trial, from legal and emotional perspectives, but also about so much more. Our conversation, which you can listen to here, revolved around animal rights, prison litigation, and in general–how to remain hopeful and healthy, for oneself and for one’s kids, in a world so full of suffering. I hope you enjoy the program! For those who prefer reading to listening, here’s Wayne’s blog post about our conversation.

Trump Search Warrant Unsealed. Where’s the Affidavit?

Well, it’s happened: A search of Trump’s Mar-a-Lago residence yielded numerous items, all of which are listed in the search warrant, which you can read here in all its glory.

If you still can’t make heads nor tails of this, it’s because all we have seen so far is the warrant, which lists the place to be searched and items to be sealed, and not the affidavit, in which law enforcement officers detail their probable cause for the judge. As explained here, for reasons involving the ongoing investigation, it is unlikely that we’ll actually see the affidavit before formal charges are brought, so speculation abounds. Nevertheless, there are some things we can learn from the warrant. Here’s the description of the items sought:

a. Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes;

b. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material;

c. Any government and/or Presidential Records created between January 20, 2017, and January 20, 2021; or

d. Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

Contrast this with the three crimes listed in the warrant and you get a fuller picture of the suspicions against Trump. Here’s an excerpt from this New York Times story, which describes these federal laws:

The first law, Section 793 of Title 18 of the U.S. Code, is better known as the Espionage Act. It criminalizes the unauthorized retention or disclosure of information related to national defense that could be used to harm the United States or aid a foreign adversary. Each offense can carry a penalty of up to 10 years in prison.

Despite its name, the Espionage Act is not limited to instances of spying for a foreign power and is written in a way that broadly covers mishandling of security-related secrets. The government has frequently used it to prosecute officials who have leaked information to the news media for the purpose of whistle-blowing or otherwise informing the public, for example.

Importantly, Congress enacted the Espionage Act in 1917, during World War I — decades before President Harry S. Truman issued an executive order that created the modern classification system, under which documents can be deemed confidential, secret or top secret. The president is the ultimate arbiter of whether any of those classifications applies — or should be lifted.

As a result, while these classifications — especially top secret ones — can be good indicators that a document probably meets the standard of being “national defense information” covered by the Espionage Act, charges under that law can be brought against someone who hoarded national security secrets even if they were not deemed classified.

The list of items that the warrant authorized the F.B.I. to seize captured this nuance. It said agents could take “documents with classification markings,” along with anything else in the boxes or containers where they found such files, but also any information “regarding the retrieval, storage or transmission of national defense information or classified material.”

The government has not said what specific documents investigators thought Mr. Trump had kept at Mar-a-Lago, nor what they found there. The inventory of items was vague, including multiple mentions of “miscellaneous top-secret documents,” for example.

But the invocation of “the retrieval, storage or transmission” of secret information in the warrant offered a potential clue to at least one category of the files the F.B.I. may have been looking for. One possible interpretation of that phrase is that it hinted at encrypted communications, hacking or surveillance abilities.

The other two laws invoked in the warrant do not have to do with national security.

The second, Section 1519, is an obstruction law that is part of the Sarbanes-Oxley Act, a broad set of reforms enacted by Congress in 2002 after financial scandals at firms like Enron, Arthur Andersen and WorldCom.

Section 1519 sets a penalty of up to 20 years in prison per offense for the act of destroying or concealing documents or records “with the intent to impede, obstruct or influence the investigation or proper administration of any matter” within the jurisdiction of federal departments or agencies.

The warrant does not specify whether that obstruction effort is a reference to the government’s attempts to retrieve all the publicly owned documents that should be given to the National Archives and Records Administration, or something separate.

The third law that investigators cite in the warrant, Section 2071, criminalizes the theft or destruction of government documents. It makes it a crime, punishable in part by up to three years in prison per offense, for anyone with custody of any record or document from federal court or public office to willfully and unlawfully conceal, remove, mutilate, falsify or destroy it.

Given that the ongoing investigation is still shrouded in mystery, assuming that there isn’t some glaring horror, this is beginning to look like Al Capone’s prosecution for tax evasion.

Paying for Your Time: Low-Level Financial Hassles and Criminal Justice

I spent the last week at the American Sociological Association’s annual meeting in Los Angeles. It’s a conference I rarely attend, because I far prefer intimate workshops to gigantic venues, but I was invited to be a discussant on a panel that interested me greatly titled Paying for Your Time: Economies of Displacement in the Criminal Legal System. Seven years ago, when my book Cheap on Crime came out, I attempted to bring together two literatures that seldom interact: Public choice economics, which predict that economic downturns will lead to decreased punishment capacity and thus to decreased punishment, and Marxist social history, which predicts that economic downturns lead to loss of legitimacy and thus to increased crackdown on, and oppression of, the poor. In Chapter 7 of the book I offer a third prediction: a shift in our perception of the subjects of the criminal justice system from wards of the state to burdens on the state’s budget. This can manifest in both benign and sinister ways. Benign, when our attention is drawn to aging and infirm people in prison and we start seriously consider the utility of their incarceration given the health care expenses involved; sinister, when we decide that the way for such folks to become less burdensome is to regard them as consumers and charge them for the “services” they receive. The three papers on the panel all examined this sinister mechanism and offered grim reminders of how low-level haggling over expenses and hounding people with these outrageous debts can and does ruin lives.

A classic, nefarious aspect of this is pay-to-stay, a scheme by which people are charged for their own incarceration as if they were paying for voluntary lodging. In Cheap on Crime I wryly observed that people in prison and jail don’t really have the funds to pay the exorbitant fees (pay-to-stay in the Riverside jail at the time I wrote the book, for example, amounted to $140 per night; in Fremont, it was $155) and that the next logical conclusion–a lien on their future earnings–would do wonders for their reentry prospects. Unfortunately, it turns out that I was right, and this absurd practice has just become more popular with time. In their paper Insult to Injury, April Fernandes, Brittany Friedman and Gabriela Kirk track the litigation efforts of states who chase people with disabilities after they get out of prison or jail and sue them to receive, in arrears, the “accommodation fees” for their prison stay, to the tune of tens of thousands of dollars that these people don’t have. The authors received, through FOIA requests, documentation in many such cases, and they show how physical and mental disabilities further complicate people’s ability to defend themselves against this outrage. In a heartbreaking presentation, they shared handwritten documents by pro-se defendants in these cases, who don’t understand why they are being persecuted and are not entitled to representation in these cases. I’m not surprised; I literally wrote the book about these schemes and I don’t understand either. I still vividly remember how shocked I was when I realized that courts have already examined the constitutionality of pay-to-stay and found it a-ok; seeing the real impact on real people was a shocker, and the futility of the exercise made me wonder whether states weren’t actually losing money on this litigation.

The second paper dealt with another top-down scheme aiming to fill municipal coffers: parking tickets. In a truly ingenious project, Kasey Hendricks and Ruben Ortiz triangulated all the parking tickets written up in the city of Chicago with the traffic regulations, weather reports, you name it, as well as neighborhood demographics and the identity of the ticket issuer (Shaw and McKay, the great criminological mappers of Chicago, would be very proud of this piece.) They discovered that more than 13% of the tickets were erroneous. They also discovered that mistakes in parking enforcement are often a function of the ticket issuer: cops don’t know parking regulations as well as parking officials, and because cops disproportionately write tickets in neighborhoods inhabited by undocumented immigrants, these folks bear the brunt of erroneous enforcement. Because not speaking English, and not wanting to voluntarily embroil oneself with the authorities, are both barriers to contesting tickets, erroneous enforcement proceeds.

The third paper, by Kate O’Neill, Tyler Smith, and Ian Kennedy, examined the extent to which incarceration based on low-level financial obligation and defaults has a gendered dynamic. They investigated which counties in Washington State rely on monetary sanctions such as fines and fees and examined the correlation between this reliance and women’s incarceration. Their reasoning behind this hypothesis (which their data support) is that women disproportionally live in poverty, and that women’s incarceration disproportionally relies on low-level financial violations. The connection between financial violations and incarceration is more complex than this: one driver of family disintegration is the criminalization of failure to pay child support (also a gendered thing) and women also disproportionately find themselves saddled with various financial obligations involving the incarcerated men in their lives, such as dealing with the bail bonds industry. But the question, “is this necessary?” permeated the conversation.

I had many thoughts to offer on these excellent papers, which revolve around three themes. The first, which I called “Blackstone wept,” had to do with the question whether the relatively new distinction between criminal and civil law still holds water in a world full of crimmigration, civil asset forfeiture, and §1983 lawsuits. Finding oneself as a civil defendant in these cases is just as daunting and soul-destroying as being a defendant in a criminal case, with the added complication of having no right to counsel and none of the due process guarantees from criminal procedure. It strengthens my view that the “Civil Gideon” initiative in San Francisco is essential, even as not doing these mean-spirited things in the first place would certainly be better.

My second thought had to do with the decreasing importance of the public-private divide. In a paper that got considerable attention at the time, I questioned the wisdom of focusing critical and reformist energy on the private prison industry, vile as it is. My thinking about this issue was shaped by three eye-opening days that I spent at a public choice economics workshop. While in the belly of that particular beast, I ate and drank at the expense of (I think) the Koch brothers and took in some libertarian perspectives on the government-versus-free-market debacle. I came to realize that the government is shaped by very similar savings-and-greed incentives to the ones of the private sector. To my workshop instructors, this was wonderful, and to me, it was horrible, but it was true nonetheless. Some of the worst atrocities of the prison system have been perpetrated in government facilities; the private prison industry hasn’t cornered the market on scrimping and saving at the expense of a minimal standard of living for its wards. That all these mean, insidious persecutions are perpetrated by local government has strengthened my belief that, if there’s a loophole that allows someone to make a quick buck at the expense of the basic humanity of someone else, it must be immediately closed, regardless of whether the Machiavellian party is a private entrepreneur or a government paper-pusher.

The third thought, and the one that really hits me in the gut, turns back to the utility of these persecutions. I honestly cannot imagine that it is a worthwhile, profitable exercise to hound people with mental disabilities for money they don’t have; to chase after tickets issued to people who do not speak English for nonexisting parking violations; or to pay for the incarceration of women who are not actually endangering public safety because of their failure to pay this or that fee. So what is the point of this cruelty? Or perhaps the cruelty is the point? And if so, it’s another reminder to my rabble-rousing friends that we must cultivate enough love in our hearts for two wars: the long-term dismantle-abolish-defund stuff we’re so fond of talking about, and the actual, short-term, emergency, person-to-person immediate help to combat this awfulness, which from a bird’s-eye view seems like small potatoes but can completely overwhelm and wreck someone’s life.

As an aside, the visit to Los Angeles was glorious, as I got to stay at the Los Angeles Athletic club, where I swam in their spectacular pool (lots of backstroke, so I could gaze at the chandelier!); chat with old and new friends about viewpoint diversity, how to encourage empowerment and resilience in our students, what religion means behind bars, etc.; enjoy the Academy Museum and the majestic Angkor exhibit at the California Science Center; take in jazz near the La Brea Tar Pits; and visit the atelier of one of my favorite designers, Jerry Jacob, the creative genius behind Ito888. I’ll be back, Angelenos!

In Memoriam: Leslie Sebba

It’s been more than a week since we lost Leslie Sebba, my beloved mentor and teacher at Hebrew University’s Institute of Criminology, and only now have I found the time to write. I spent the entire week at the Law and Society Association’s Annual Meeting in Lisbon, amidst a heatwave, and throughout the week my heart was heavy with the palpable absence of Leslie, who attended the meeting almost every year as a member of our Punishment and Society CRN. And at the same time, there was the uncanny feeling that Leslie was there, because the conversation revolved around ideas that he helped develop and interrogate throughout his professional life. We paid tribute to Leslie at some of the panels, though I was restless with grief because I was unable to attend the funeral and the Shiv’a and tell his family a bit about how inspiring, kind, and special he was.

My first encounter with Leslie’s work was as a law student at HUJI, where I took his course “rights of prisoners and residents of closed institutions.” HUJI’s law curriculum, at the time, was very German, in the sense that there wasn’t a lot of critical theory and empiricism; we sat in big hallways, 150 or even 300 of us, and were essentially lectured at by some of the era’s civil rights luminaries (Ruthie Gavison, Mota Kremnitzer, David Kretzmer.) Occasionally, they asked us a question; sometimes I managed to shine, which made me feel an inch taller, but I wouldn’t go as far as to actually ask a question myself, or (heaven forbid) bring myself to attend office hours. And here was something completely different: an elective course taught by a gentle, absentminded soul, a kind smile perpetually on his lips, a preemptive forgiveness for student laziness or poor behavior, and a gentle door always open for those interested in learning more. The whole thing was bathed in a quiet, gentlemanlike, and at the same time fervent care for the human rights of the most vulnerable people in society, and in big part planted the seed for my later decision to change affiliations and move over to the criminology side of the building. No longer a law student at a formalist, traditional institution, but rather a grad student at a small, rigorous empirical department, I proceeded to take more classes with Leslie throughout my master’s, and his penology course, in particular, was an exquisite tour de force. Leslie was one of the most knowledgeable and well-read people I ever met. It is thanks to him that my education included not just the American classics (though they were certainly there – the entire Johnston, Savitz, and Wolfgang prison canon) but also a lot of European and Pacific materials. I still credit my unorthodox approach to the American abolitionism movement to the fact that, thanks to Leslie, I’m well read on Scandinavian abolitionism from the 1970s. And it is greatly thanks to him that my own students learn a lot about New Zealand’s approach to restorative circles; he had us read primary research about that system when it was hot off the press.

Leslie’s own work, which he assigned with a light, humble hand (he could’ve easily had us read everything he wrote, which was just so, so good) touched on many of these subjects that came to interest me. For one thing, he was a true pioneer of victimology. While his HUJI colleague Menachem Amir published an extremely controversial book examining the concept of “victim precipitation” in sexual assault (and was skewered by feminists), Leslie’s interest in victims was far more humane. In his groundbreaking book Third Parties he tries to piece together the various theoretical legal and criminological strands underpinning the victims’ rights revolution of the 1980s and 1990s. Now, it all seems super lucid and obvious, but when it had just come out in 1996 it was a novel and well balanced effort to critically assess how much of the “victim bills of rights” that were cropping up like mushrooms after the rain was empty rhetoric and how much it would actually improve the lot of victims, especially of violent crime. His pioneering contributions to victimology were also in, basically, making room for the field as its own criminological school; he was the founding editor of the International Review of Victimology and taught a fascinating and popular course on the subject.

Third Parties was emblematic of Leslie’s approach, which straddled the worlds of law and criminology. Leslie possessed the rare and useful mix of someone who could analyze doctrine with unrivaled clarity and sharpness and, at the same time, entertain curiosity about how it plays out in the field and open-mindedly examine critiques. His vast international interests meant that he was preoccupied with international and comparative questions quite a bit; he looked at the worrisome trend of importing American punitivism such as Third Strikes laws and the notion of solitary confinement as an international human rights crime. He also had a crystal clear and lucid approach to Israeli penology, tracing the arc of punitivism back to the amnesties of the 1950s and constantly making the tie between domestic crime control and the Israeli-Palestinian conflict.

Leslie, who had a keen nose for bright and innovative minds like his own, introduced us to the writings of Malcolm Feeley, Jonathan Simon, and David Garland. It was thanks to his gentle encouragement and prodding that I mustered the cojones to attend a concentrated class, in English, from a visiting Malcolm Feeley, leading to intellectual connections that would chart the rest of my professional life. Leslie saw something in me, even as I was a night school grad student in a special master’s program for cops and prison guards (the only hours I could make while working full time as a military public defender), and it is no exaggeration to say that, if I’ve achieved a modicum of success, it is truly thanks to him. While still at the Institute, I was his research assistant as well as his teaching assistant; I was green behind the ears and truly knew nothing, and he gave me responsibilities and kudos far beyond what someone at my age and experience level merited.

Leslie also exposed me to the idea that first-rate theoretical games are fun, but they are completely meaningless if they don’t improve the lives of real people on the ground. The first project with which I helped him was a collaboration with Israel’s Prisoner Rehabilitation Authority, which had just been founded at the time. We were looking for ways to enshrine the right to meaningful labor in Israeli law. Leslie’s other work, on children’s rights, was also done in partnerships, and he was a valued and respected participant and member in initiatives of human rights organizations ACRI and Adallah.

What is truly magical about Leslie the person is that all these incredible world-improving accomplishments lived within a humble, gentle, self-effacing soul. Leslie was never driven by his ego; he supported and trumpeted his students and collaborators, worked well in groups, helped organize panels, and was happy to sit in the audience when a junior collaborator presented his work. His gentle, fatherly mannerisms belied a keen mind always devoted to improving justice. And he took great pleasure in his work – while lecturing, he always seemed to be having an interesting, enriching conversation within his own mind (it was not rare for him to pose a question and, in the same breath, answer it in two contradictory ways with a bemused face.) A great light has dimmed and the world of law, criminology, and criminal justice is impoverished for his departure. What is remembered, lives.

LSA 2022 in Lisbon!

Hello, Everyone! Today I’m heading out to Lisbon, Portugal, for the annual meeting of the Law & Society Association. At the meeting I will be quite busy, participating in five panels:

Wednesday, July 13, 8:15-10:00am Lisbon time: Criminal Law. I will comment on three groundbreaking papers on topics ranging from the politics of self defense to the criminal responsibility of AI entities.

Thursday, July 14, 10:15am-12:00pm: Politics in and of Punishment. I will comment on papers examining public opinion, punitivism, and political machinations in punishment.

Friday, July 15, 2:45-4:00pm: Emotional Labour of Conducting Research. A topic near and dear to the heart of anyone doing work in and about correctional facilities, I will comment on papers unpacking the emotional toll of researching complicated settings (my comments will highlight, among other issues, secondary trauma, and provide some practical mindfulness and wellbeing tips for advocates and activists as well as journalists and interviewers.)

Saturday, July 16, 12:45-2:30pm: Punishment’s Nuance: Looking at Incarceration and Parole in New Contexts and Perspectives. I will present Chapter 3 of my forthcoming book with Chad Goerzen FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster, which surveys the pains of COVID imprisonment. Ashley Rubin will comment. The other papers of the panel are well worth hearing.

Saturday, July 16, 4:45-6:30pm: Contrasting penal trends across the Global North and the Global South III. I will comment on four papers by criminologists and social historians on the political economy of punishment across borders, and will center my remarks on the malleability of the concepts of “developed” and “developing” countries (a topic I discussed here.)

All of my panels, including locations, are listed in the event tabs of the blog. I’ve already read most of the papers I’m commenting on, and the quality is outstanding!

As the outgoing co-organizer for CRN 27, Punishment and Society, I also plan to attend our informational/social meting Wednesday (13 July) from 12:10 to 1:10 (location TBD for CRN members.) 

I am also the book review editor for Law & Society Review (until the end of 2022) and happy to discuss your new publication and how to celebrate it in our flagship journal. And, as a member of the LSA Publications Committee, am at your disposal if you want to discuss the open call for a new LSR editor-in-chief.

I do not have a Portuguese SIM, and my responsiveness to texts throughout the day will depend on internet availability. The safest way to schedule something with me is through my email (messages to this website end up in the same inbox, so you can do that, too.)

Thinking Like a Community

I’ve been thinking quite a bit about the disappointing, but not unexpected, outcome of Happy the Elephant’s case. Taken with similar attempts to imbue animals with legal personhood, this can induce a lot of despair: fringe legal philosophies have not produced the change we’re hoping for.

But perhaps there is another way to go, which learns from contemplative and deep ecological perspectives. At 5:30am on election day I rode my bike to the polls and was treated to a magnificent dawn chorus of San Francisco’s diverse and colorful bird population. A thought flew through my mind: The birds don’t know and don’t care that there is an election today. Much of what we will vote on (transit, construction, garbage collection) will directly affect their lives, but they are not involved in this process–they live adjacent to it, oblivious of what it may bring in its wings. Who will speak for their interests at this election? 

I’m obviously not the first person to introduce contemplative practices into ecology and animal rights. In their 1988 book Thinking Like a Mountain: Toward a Council of All Beings, John Seed, Joanna Macy, Pat Flemming and Arne Naess propose a blueprint for human decisionmaking that takes all perspectives in mind. Through transformative, contemplative practices, a Council of All Beings invites humans to deeply adopt and articulate the perspectives of nonhuman entities in decisionmaking. I participated in one such Council as part of a facilitator training; I spoke for a mushroom and some of my fellow participants spoke for parrots, rocks, and blades of grass. It was a profound immersion in the interests, if they can be called that, of nonhuman entities.

This transcendent notion of perspective taking has migrated from deep ecological theory to the legal realm, with some expressing optimism for its potential for transformation. In his article We Are the River, my colleague and friend David Takacs offers some examples: The New Zealand Parliament has recently granted the Whanganui River and the Te Urewera mountain ecosystem rights as legal persons, with a Māori governing board to speak for the nonhuman entities, based upon traditional cultural precepts. Similarly, governments in Australia, Colombia, Ecuador, Bangladesh, India, Uganda, and the U.S. have also declared that rivers and other living systems have legal rights. While these initiatives stem from  disparate historical, philosophical, and legal backgrounds, and pursue disparate goals, they all seek to enshrine in the law the fundamental symbiosis between human and nonhuman ecological health, and to empower suitable stewards who will nurture that symbiosis. As Takacs explains, newly vested spokespersons for nature–often indigenous populations, who savvily position themselves as more authentically empowered to speak for natural entities–can, and sometimes do, turn novel legal theories into real legal work that protects human and nonhuman communities. 

So, perhaps the solution to our failure to effect real change through animal personhood is to eschew performative (often prosecutorial and anthropomorphized) rhetoric on behalf of animals and give some careful thought, through discerning political considerations and contemplative experiences, to two important questions: what are the genuine interests of nonhuman animals and who should be vested with the authority to represent these interests? As I explained here and here, and as Justin Marceau explains so well here, deep engagement with the true interests of nonhuman animals does not and should not include a reliance on incarceration. The answer, perhaps, is that criminal courtrooms are not the right places for deep, thoughtful perspective-taking. This is not to say that meditative retreats or multiparty government meetings would be completely free of anthropomorphism: any humans speaking for nonhuman entities necessarily translate very different lives to their own into human terms and might, manipulatively or carelessly, twist or convert these into their own interest. This is why it is essential to identify speakers for animals who are truly curious, knowledgeable, and sincere. 

When we understand on a deep level what animals want (they are more similar to us than we might think, as Larry Carbone explains in his treatise on laboratory animals), the solutions are up to us. Bruce Friedrich of the Good Food Institute often explains that the true solution to the horrors of factory farming lie at least partly in the hands of the market: we must create substitutes to animal products that taste the same or better, and cost the same or are cheaper. Would factory farmed animals provide us with this solution? Naturally not. This is an entirely human solution, derived from an entirely human conceptual world, for the genuine problem nonhuman animals face–the horrific reality of exploitation and torture that is the CAPO industry. What Friedrich’s solution shows us is that, when we set out to comprehend the unmediated experience of our fellow living beings, with as little imposition of our own agendas on it as possible, we can then fashion human solutions to these problems. I resolved to participate in (human) elections and vote on measures that humans introduced, and on human candidates, while “thinking like a mountain” at the ballot box.

But we can find even more uses for thinking like a community, such as in physical and mental health matters. Recently, I read and enjoyed Will Bulsiewicz’s Fiber Fueled and listened to this podcast with him, in which he explained that we should think of our eating habits as eating not just for ourselves, but for a whole community including trillions of microbes. What I eat is for them as much as it is for me, or for whatever “me” is (not that easy to parse, with so many microbes in the mix, right?) So, when you crave a mountain of nutrition-empty things, consider that there’s an emotional aspect of “you” who wants them, while there are many aspects of “you” – the physical, biological, mental “you”, that needs other things. Think of the cliché of pregnant women “eating for two:” we’re all eating for trillions.

There’s also a psychological aspect to this: I’m enjoying Richard Schwartz’s No Bad Parts, an excellent introduction to family systems theory in psychology, which is all about the notion that we contain multitudes. It is useful to give a voice to neglected parts of the self, even if one believes there’s some “core self” (a better fit for western psychology than for Buddhist psychology.)

Next time you’re involved in decisionmaking, for yourself or for others, try thinking like a community and see how it feels.

AB 2730 Proposes a Prison-Release Continuum

Good news! AB 2730 (Villapudua) is on its way to the California Senate. The gist of the proposal is:

This bill would would, subject to appropriation by the Legislature, create the California Antirecidivism and Public Safety Act pilot program for the purpose of providing opportunities for job training and work experience to individuals during incarceration to ensure their readiness for employment upon release from incarceration. The bill would require the California Department of Corrections and Rehabilitation to establish and implement a 5-year pilot program under which individuals sentenced to state prison, and scheduled to be released to parole or postrelease community supervision within 2 years, would be eligible to participate. The bill would require the pilot program to provide for the housing of the program participants in a community campus setting. The bill would require program participants to have access to evidence-based programs suitable for serving their rehabilitative, workforce training, and education needs, as specified. The bill would require the department, on or before March 1, 2027, to submit a comprehensive report to the Legislature that evaluates the effectiveness of the pilot program, as specified. The bill would repeal these provisions on January 1, 2028.

The idea is nothing new from a global perspective. As Cal Matters’ Nigel Duara explains, it is inspired by Scandinavian prisons, but I vividly recall working on precisely this sort of thing alongside Israel’s Prisoner Rehabilitation Authority in the late 1990s and early 2000s. I’m not sure how the program works now or how well it is funded, but back in the day the idea was this: ninety days before any incarcerated person was to be released, representatives of the Authority would meet with them and come up with a release plan that involves housing and employment. The Authority partnered with an assortment of diverse entities on the outside–agricultural enterprises in Kibbutzim, Yeshivot looking for students, big construction contractor firms, and lots more–and tailored an employment plan for each person. They made sure the person started receiving orientation and training before being released, and the prospective employers were briefed on how to make people feel welcome. They also sponsored a wide variety of housing initiatives, including subsidized housing that partnered two university students with one formerly incarcerated roommate.

It is also nothing new from an historical perspective. One of the most well-known prison reformers, Alexander Maconochie, was Warden of Norfolk Island (see image above) in the mid-19th century and introduced a points system that rewarded good behavior with gradual freedoms and skill acquisition. He transformed a horrific penal colony into a success story and ended up being a victim of his own success, removed from office by law-and-order folks who didn’t like hearing that the prisoners had toasted the Queen’s birthday with alcohol.

Here are some thoughts on what is and is not in the bill, which is a very general one-pager:

Who is in the program? The bill states that, at least during the five-year pilot period, the participants will be chosen by the warden or his/her designate. The criteria are not specified in the bill. I worry that this means that wardens concerned about optics will exclude long-term prisoners who could most benefit from a good introduction to the outside world.

How long does the program last? It looks like the prison is budgeting for the last two years of one’s sentence,

What job skills are provided? The Cal Matters article mentions truck driving, which means leaving prison with a Class A commercial driving license (a great asset on the job market.) But I wonder if CDCR shouldn’t also look at programs it already offers to very few people and consider vastly expanding them. Two examples of programs that produce a 0% recidivism rate (!) are carpentry and marine technology, and our incarcerated firefighter program could also use a considerable expansion. I’m also not entirely clear whether this is only about the provision of jobs or also about actually connecting people with openminded employers, so that they can have a guaranteed job on day one. This is how it’s done in Israel and should also be done here, given the mixed blessing of Ban the Box.

What else does someone need before they go into the outside world? According to Alessandro de Giorgi’s work–money to survive and a place to live. The main problem people face in the first few months on the outside is abject poverty. And since this program doesn’t provide any extra funding, I wonder how we can accomplish that.

If there’s no money, how can prisons make this happen? While rehabilitative prison programming, which now relies mostly on volunteers, is quite uneven in quality, some programs, such as Alliance for CHANGE, already provide useful, pragmatic training for reentry, including training on how to use smartphones and the Internet, as well as budgeting, managing outside bureaucracy, and the like. CDCR should approach this in a collaborative way, seeking to scale up what is being done in these volunteer programs for the benefit of the whole prison. What this also means is that, if the quality of incarceration has to improve, the quantity has to be decreased, and the best way to do that is to incarcerate fewer people for shorter periods. Presumably, if this program works and its graduates are less likely to get back to committing crime, it should pay for itself.

What about staff/guards? CCPOA has, perhaps surprisingly, lent its support to this project, telling CalMatters that the guards have front-row seats to everything that doesn’t work: programs that have “no correlation to the needs of the communities to which inmates will be released” and housing scenarios that produce “pressures […] from fellow inmates [that] can be too great to keep to the straight and narrow.” They know that “[p]rison politics can often be inescapable when programs and housing are delivered in the same environment as those who have no intention of improving themselves” (and one only wishes they were so enlightened when it was time to get vaccinated.) But I also think that, in separate transitional housing, CDCR should seriously consider hiring, training, and placing differently.

How to assess the success of the project? This is a very tricky issue. If the folks who enter the program are selected by the warden, rather than randomly assigned to the program, then an experiment with randomized experiment and control groups is impossible, and much of the success of the program may rely on self-selection. So, even if the pilot cohort will be successful, this will raise serious questions about the ability to scale this up to the entire prison population. Whoever is doing this evaluation study will have their work cut out for them (I don’t think it’ll be me, but we’ll see.)

What about the politics of this? Will it pass through the Senate? I don’t know. Everything is policitized these days, even things that shouldn’t be. It should be everyone’s goal, from the staunchest law and order fanatic to the bleedingest of progressive hearts, that less recidivism is good for everyone: taxpayers, potential victims, you name it. There is no reason this should get anything less than enthusiastic support from all quarters; the question is only whether the reallocation of CDCR’s budget will be done in a way that sets this up for success.

My Chesa Recall Punditry: The View from Bayview-Hunter’s Point

Last night provided me a unique vantage point on the Boudin recall effort: I was an inspector at a polling station in Bayview-Hunter’s Point, which is a neighborhood with a long history of neglect and criminalization. It is also unique in its demographics: 33.7% African American in a city that is just under 6% African American as a whole. There were approximately 650 registered voters in our precinct. 18 voted by mail and 17 voted in person, for a grand total of 35 voters. That’s 5% of the electorate. Things were somewhat better, but not by much, elsewhere in the city. By stark contrast to the 2020 Presidential election, pre-election mail-in voting in this local election–the third in 2022!–was very low. Our Federal Election Deputy (FED), who came to visit us throughout the day, reported that the polls were quiet and dormant throughout the whole day, pretty much everywhere.

Why does this matter? Take a look at a map published in today’s Chron of the neighborhoods that voted against Boudin:

At first glance, the story appears to be that neighborhoods associated with Asian-American populations tended to support the recall more fervently. This is unsurprising, and only talked about in hushed tones even though I think it is a big part of the story. In the last few weeks I saw concerted, fervent activism in support of the recall from very similar crowds to the ones who drove the SFUSD recall from a few months ago: it’s not all about out-of-town Republican millionaires conning unsuspecting masses into false consciousness. These are pretty much the same parents who resented the performative woketalk from the Board about school renaming and lottery admissions to Lowell. I suspect that some residual energy poured over from the previous recall (which I think was 100% justified) to this one (which I think was not.) The superficial narrative might be that a permissive and forgiving attitude toward prosecuting some people (read: presumably, young African American men) incentivizes crime and victimization (read: toward, presumably, Asian American victims) in the same way that lowering standards and talking about reparations and abolitionism (read: a narrative that supports, presumably, a monolithic African American interest) harms the pursuit of hard work and excellence in education (read: the purview, presumably, of Asian American students and parents.)

This story, which suggests the fomenting of racial animus between these two groups, building on the racial conflict undertones of the previous recall, is not completely preposterous. Most of the people who came to vote in person yesterday at our precinct were African American, and from their conversations, I gathered they all came motivated to vote against the recall. But this assumes that we can understand and generalize trends from a pretty minuscule percentage of San Franciscans. It’s not that the people who live in my beautiful city don’t care about criminal justice administration. NextDoor and other social media outlets are full of people chewing each other’s heads off about whether this or that wave of smash-and-grab, retail theft, or other incident is Chesa’s fault. But how many people care enough about this to put work into reading a hefty booklet and considering their positions on a three-page ballot, in which Prop H was the very last voting issue on the back side of the third page, for the third time in a row in the same year?

Over the years, I’ve returned again and again to Vanessa Barker’s excellent book The Politics of Imprisonment. Barker conducts a three-way comparison of penal politics in three states: California, Washington, and New York, finding that California’s political culture more easily lends itself to punitive experiments because of its polarization and populism. I write about this culture in Yesterday’s Monsters, when I show how politicized and emotion-driven the issue of parole is. In this kind of political environment, where money and strong interests can push something into the ballot as well as foment a well-oiled promotion machine (complete with all the tricks and deceptions we’ve come to expect from the initiative process), it is not difficult to swing the pendulum back and forth, from big reforms to big cancellations, from experiments in jurisdictional shifts to draconian policies masquerading as victim’s rights policies, and everything in between.

Ultimately, I think that what we saw here was just an exercise in manipulating this big machine and effectuating huge change through a relatively small number of voters. Direct democracy can be, and is, too direct when it imposes this burden thrice a year on already exhausted, grieving, anguished, and ticked off people with an empathy deficit from three years of awfulness that followed four years of a different kind of awfulness. In sum, whether or not the small minority who bothered to show up at the polls has false or true consciousness matters much less, sadly, than the forces exploiting the initiative process far beyond the Bay Area.

Would it have made a difference if the entire Bayview-Hunter’s Point electorate showed up en masse and voted against this recall? Of course it would. But after everything we’ve all been through–the impoverished folks in the neglected parts of town disproportionately suffering–we just didn’t have it in us to make yesterday a proud, sparkling moment for people-powered government, and even though it’s not our fault, we will all have to live with the consequences. Increased incarceration and the return of cash bail will not deter violent crime (but people’s attention will wander, and those who supported the recall will stop paying attention). Crime might go up (despite the recall, the supporters will say, or because of the recall, the opponents will say) or it might go down (because of the recall, supporters will say, or despite it, opponents will say) and we will continue to delude ourselves that dumbing down complicated policy decisions, deceiving people with oversimplified campaigns, and seasoning everything with some piquant interracial conflict, is how democracy should work.

The truth is that crime rates are like the weather. They rise and fall for a variety of reasons, only a few of which we can measure, and most of which have nothing to do with who is in charge. They have very little to do with big punishment trends (though, in localized situations, they do depend on effective police work in solving crime, which is a damn difficult thing to do when the community doesn’t trust the police enough to help.) It takes a real sea change in policy to effectuate changes in criminality patterns. But our megalomanic assumption that we can control crime rates through tinkering with policies will persist, and we will keep tinkering, until no one has any energy left to vote.

I offered a few more thoughts on KCRW here.

Justice Delayed is Justice Denied on the Appellate Level: Eisenberg vs. the Third District Court of Appeal

Not being on Twitter, while glorious, has its drawbacks; I would not have found out about this story if not for my colleague Paul Belonick, who came upon it through this thread. The story, in essence, is this:

The Sixth Amendment guarantees anyone the right to a speedy trial. What’s unique about this right, as the Supreme Court explained in Barker v. Wingo, is that it is often (though by no means always) in the interest of the defendant to delay matters in court: witnesses could forget and disappear, evidence could be mislaid, etc. But if someone is in pretrial detention, the clock ticks while the person’s ability to plan their defense is hampered. At the same time, speedy trial saves time and makes courts more efficient, and in that respect, it is as much a “right” of the government and the public coffers as it is of the defendant. For this reason, when someone brings a speedy trial motion, the court tallies the delays that are the government’s fault versus those that lie at the door of the defendant. There are official limitations on the time that can pass before a case is brought to trial at both the federal and state levels.

But speedy trial problems can happen at the appellate level, too–especially true for defendants languishing in prison while their appeals are pending. In 2021, well-known appellate attorney Jon Eisenberg decided on an unusual course of action: he sued the Third District Court of Appeal for the delays, framing them as the Court’s failure to comply with ministerial duties. In his petition for a mandamus writ, Eisenberg wrote:

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Since 2018, the court has denied calendar preference for at least 278 criminal appeals, with cases languishing from 12 to 99 months after being fully briefed. In some cases, the defendants had already served part or all of a reversed prison term or sentence enhancement—an egregious failure of the appellate process. Systemic inordinate delay in adjudicating criminal appeals is unconstitutional—a denial of due process. Where a right of appeal is afforded, the adjudicatory process must be timely. Currently, the Court of Appeal for the Third Appellate District has yet to calendar at least 66 criminal appeals that have been fully briefed for 12 to 41 months. Expeditious action by this Court is essential to protect dozens of inmates who are threatened with irreparable injury—or the worsening of irreparable injury already suffered—from denial of their constitutional right to timely appellate review. This systemic denial of statutory and constitutional rights is a stain on the integrity of California’s appellate process. This Court should not condone it by inaction.

I. CODE OF CIVIL PROCEDURE SECTION 44 GIVES CALENDAR PREFERENCE TO CRIMINAL APPEALS. Code of Civil Procedure section 44 prescribes two forms of priority in calendaring appeals—among civil appeals, and between civil and criminal appeals. First, the statute requires “preference in hearing in the courts of appeal” for probate, contested election and certain defamation cases. Second, prioritized civil appeals must be placed on the calendar “next after cases in which the people of the state are parties.” These provisions have the effect of mandating calendar preference for all criminal appeals. “Adult criminal appeals receive priority because they are cases ‘in which the people of the state are parties.’” Thus, once a criminal appeal is fully briefed, it must be placed on the next available oral argument calendar—which in most Courts of Appeal usually means three or four months later.

II. SYSTEMIC DELAY IN THE CRIMINAL APPELLATE PROCESS IS UNCONSTITUTIONAL. Although there is no federal constitutional right of appeal, “if a State has created appellate courts as ‘an integral part of the … system for finally adjudicating the guilt or innocence of a defendant,’ [citation], the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the [U.S.] Constitution.” This means a state’s criminal appellate process must be timely. “[F]ederal courts have held that undue delay in processing an appeal may rise to the level of a violation of due process.”  “[A]n appeal that is inordinately delayed is … a ‘meaningless ritual.’”

The Tenth Circuit has enunciated a general rule that delay in adjudicating a noncapital criminal appeal for more than two years after filing of the notice of appeal—including more than 11 months from the completion of briefing to the filing of the opinion—“gives rise to a presumption that the state appellate process is ineffective.” This “rebuttable presumption of prejudice” is applied where “such delays are chronic and systemic and have resulted in the wholesale denial of the right to a reasonably timely appeal.” “Delays of such magnitude produce an unacceptable threat to the integrity of the appellate process.” The most obvious and egregious prejudice from inordinate delay in a criminal appeal occurs when the defendant has already served part or all of a reversed prison term or sentence enhancement—which has happened more than a few times in the Third District. In such instances, the right of appeal is wholly subverted. Prejudice can also occur when delay impairs the defendant’s right to a retrial or resentencing after reversal—for example, due to faded memories or lost evidence. And harm can occur even if a long-delayed appeal eventually proves to be unsuccessful—in the form of emotional damage from the “increased anxiety, mistrust, hopelessness, fear, and depression” that “results from the very thwarting of the hope that liberty will be restored through a right that the State has guaranteed—the appellate process.” The rule should be no different under article I, section 7 of the California Constitution. “[T]he proper and efficient administration of the penal laws of the state, due regard being had to established procedure, demands a speedy resolution of all appeals taken in criminal cases.”

III. THE THIRD DISTRICT IS SYSTEMICALLY DENYING STATUTORY CALENDAR PREFERENCE FOR MANY CRIMINAL APPEALS.

A. Hundreds of Criminal Appeals Have Been Denied

Calendar Preference, With Dozens Yet to be Calendared. Justice Raye was appointed to the Third District in 1991 and became its Administrative Presiding Justice in 2010. His predecessor as Administrative Presiding Justice retired in September 2010. That same month, the Third District commenced a decade-long practice of failing to accord calendar preference to many criminal appeals.1 From September 2010 to March 2012, Justice Raye authored four decisions in criminal appeals with lapses of 17 to 25 months from fully briefed to submission for decision. Thereafter, the number of substantially delayed. Third District criminal appeals steadily rose, 1 Previously, such delay was rare. Petitioner has found only two Third District criminal appeals that were prejudicially delayed during the two years preceding Justice Raye’s appointment as Administrative Presiding Justice. (People v. Petit [18 months from fully briefed to submission for decision; adding 112 days conduct credit after sentence completed]; People v. Garcia [14 months from fully briefed to submission for decision; striking 8-month sentence enhancement after sentence completed].) 19 with longer delays. In 2012–2013, Justice Raye authored 17 decisions in criminal appeals with lapses of 13 to 36 months from fully briefed to submission for decision. By 2018, in cases authored by Justice Raye and other Third District justices, the court was failing to accord calendar preference to dozens of criminal appeals annually, some with extraordinary delays. From 2018 to the present, at least 212 criminal appeals had lapses of 12 to 99 months from fully briefed to submission for decision. Each was calendared months or years after the calendaring of civil appeals that were fully briefed long after those criminal appeals were fully briefed.

Other Third District criminal appeals, however, have been accorded calendar preference. As of this writing, at least 66 fully briefed Third District criminal appeals have yet to be calendared, with lapses of 12 to 41 months from fully briefed to submission for decision. (Eisenberg 2 Petitioner determined the numbers of delayed criminal appeals recounted in this petition by manually reviewing online docket entries for some 20,000 Third District filings. Given the limitations of that methodology, the true numbers are likely higher. The Third District’s internal records can complete the picture. Meanwhile, the Third District continues to calendar civil appeals that have been fully briefed for as few as four to eight months. 

B. Calendar Preference Failures Have Prejudiced Many Defendants.

Each of the 278 delayed criminal appeals referenced in this petition exceeds the Harris threshold for the rebuttable presumption of prejudice from unconstitutional delay—more than two years from notice of appeal to filing of opinion, including more than 11 months after completion of briefing. In some of those cases, actual prejudice is demonstrated by the fact that the defendant had already served part or all of a reversed prison term or sentence enhancement by the time of adjudication. For example: This despite the fact that, according to the Third District’s clerk/executive officer, “‘tentative opinions have already been prepared’” in many of those cases.

The Third District has also failed to accord calendar preference to some probate appeals, as Code of Civil Procedure section 44 also requires. [docket entries for four probate appeals with 17 to 21 months from case fully briefed to submission for decision].)

• In People v. Kalac [16 months from fully briefed to submission for decision], the Third District struck a one-year sentence enhancement only after it had been served. The People had conceded the point from the outset.

• In People v. Speegle [53 months from fully briefed to dismissal of appeal], the Third District dismissed as moot the defendant’s appeal from an order denying his transfer out of Napa State Hospital for outpatient treatment—because he had completed his seven-year commitment pending the appeal. 

• In People v. Weathers [41 months from fully briefed to submission for decision], the Third District struck a partially served 10-year sentence enhancement. Again, the People had conceded the point. Weathers is especially noteworthy because, by contrast, in an almost simultaneously filed appeal presenting the same conceded issue, a different Third District panel ruled just 81 days after the concession, thus giving that defendant the benefit of the court’s decision.

• In People v. Wrobel [52 months from fully briefed to submission for decision], the Third District reversed a 44-month prison sentence and remanded for misdemeanor sentencing only after the defendant had completed the sentence.

• In People v. Johnson [24 months from fully briefed to submission for decision], the Third District struck an already served five-year sentence enhancement.

• In People v. Kent [78 months from fully briefed to submission for decision], the Third District struck an already served eight-month sentence enhancement.

The extraordinary delay in these cases, resulting in defendants having served part or all of a wrongly imposed sentence, is an egregious failure of the appellate process.

C. These Systemic Failures Were Presaged.

These systemic failures of calendar preference for Third District criminal appeals may lack bad intent, but they have effectively operated to implement a proposal the Legislature 23 rejected four decades ago—that in criminal cases there should be no absolute right of appeal at all, much less calendar preference. In 1979, this Court held that the Court of Appeal may not summarily affirm a criminal conviction without full briefing and the right to oral argument, as guaranteed by statute and the California Constitution. In 1981, Justice Raye, at the time Senior Assistant Attorney General for Legislative Affairs, urged the Legislature to supersede Brigham, testifying in support of a bill the Attorney General’s office was sponsoring—Senate Bill No. 1197—which would have eliminated appeals as a matter of right in criminal cases and made criminal appellate review conditioned on the trial judge’s discretionary issuance of a “certificate of appeal.” The bill failed. Immediately before Justice Raye’s testimony, Court of Appeal Justice Winslow Christian testified in opposition to summary affirmance of criminal convictions and urged the Legislature not to alter the statutory calendar preference for criminal appeals, stating: “[T]hat’s a priority that I think is sound. It should not be changed.” Justice Raye then testified:

• “[W]e think there should be some limitation on the right to appeal in consideration of the fact that over 90 percent of criminal appeals result in affirmance and a substantial number of that 90 percent could be characterized as frivolous appeals.”

• Under proposed Senate Bill No. 1197, “[a]ppeal would be only by a certificate of appeal granted by a trial court… Another proposal that we’re considering is vesting discretion not with the trial court but with the court of appeal to decide whether an appeal, on its face, presents substantial issues that warrant consideration by a panel [of] the court of appeal … and the court of appeal would have discretion to refuse to entertain an appeal.”

• “We think this Committee should consider a procedure whereby our office on behalf of the people can move for [summary affirmance] of appeals filed with the court of appeal. We attempted to do this under existing law about three years ago and regrettably the Supreme Court ruled the procedure … improper as not being authorized and in fact being at odds with court rules and with statute … The case name is People v. Brigham.”

A month before this legislative hearing, Justice Raye wrote to members of the Senate opposing an ultimately successful bill to increase the number of Court of Appeal justices statewide. Justice Raye argued that “the more appropriate remedy is to curtail the filing of the frivolous appeal” and “[t]he Courts of Appeal must also become selective in the cases they hear.” During Justice Raye’s tenure as Administrative Presiding Justice, the Third District has only selectively complied with Code of Civil Procedure section 44, thus effectively undermining Brigham by withholding meaningful appellate review in many criminal appeals—sometimes with serious consequences.

IV. MANDATE LIES TO COMPEL STATUTORY COMPLIANCE.

This Court has original jurisdiction to adjudicate this petition. Under such jurisdiction, mandate lies to compel public entities and officers to perform ministerial duties. A ministerial duty may be created “either by statute or by constitutional compulsion.” “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a 26 given state of facts exists.’” The statutory duty of appellate courts to accord calendar preference to every criminal appeal is plainly ministerial. The “act” they are “required to perform in a prescribed manner” is to put fully briefed criminal appeals on the next available calendar. The “given state of facts” (ibid.) is a criminal appeal having become fully briefed. Code of Civil Procedure section 44 affords no discretion “concerning such act’s propriety or impropriety.” The gravity of the Third District’s mismanagement of its criminal docket amply justifies exercise of this Court’s original jurisdiction to compel compliance with Code of Civil Procedure section 44. Expeditious restoration of statutorily mandated calendar preference for all Third District criminal appeals is essential to protect dozens of inmates currently facing irreparable injury—or the worsening of irreparable injury already suffered— from denial of their constitutional right to timely appellate review. 

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The California Supreme Court formally denied Eisenberg’s petition, but wrote: 

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We recommend that within 180 days of this order, the Judicial Council complete an investigation of alleged delays in the Third District Court of Appeal’s disposition of criminal appeals and, if appropriate, propose measures that the Judicial Council and the Court of Appeal should employ to address any problems that are identified.

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As a consequence of the investigation, three appellate judges resigned (see here, here, and here.)