In any play, however trivial, there has to be a still point of moral reference against which to gauge the action. In our lives, in the late nineteen-forties and early nineteen-fifties, no such point existed anymore. The left could not look straight at the Soviet Union’s abrogations of human rights. The anti-Communist liberals could not acknowledge the violations of those rights by congressional committees. The far right, meanwhile, was licking up all the cream. The days of “J’accuse” were gone, for anyone needs to feel right to declare someone else wrong. Gradually, all the old political and moral reality had melted like a Dali watch. Nobody but a fanatic, it seemed, could really say all that he believed.. . .
In those years, our thought processes were becoming so magical, so paranoid, that to imagine writing a play about this environment was like trying to pick one’s teeth with a ball of wool: I lacked the tools to illuminate miasma. Yet I kept being drawn back to it.
“Once again, as the latest racial travesty pierces our collective consciousness, I watch many of my white friends and acquaintances perform the same pieties they played out after Trayvon, Eric, Sandra, Korryn, Botham, Breonna. They are savvy, practiced consumers of Meaningful Things: They’ve listened to “Serial” and become expert critics of our broken criminal justice system after just one season. They’ve watched “Insecure” and can suddenly imagine life as Molly or Issa. They’ve shared the preordained “amplifying” social media post that just reads “This,” followed by a link to something profound from a black voice.. . .
“The confusing, perhaps contradictory advice on what white people should do probably feels maddening. To be told to step up, no step back, read, no listen, protest, don’t protest, check on black friends, leave us alone, ask for help or do the work — it probably feels contradictory at times. And yet, you’ll figure it out. Black people have been similarly exhausted making the case for jobs, freedom, happiness, justice, equality and the like. It’s made us dizzy, but we’ve managed to find the means to walk straight.”
Johnson, of course, falls into the trap that everyone else has fallen into, but at least he sees the trap. The combined effect of COVID-19 “content” (what an odious word) and, once more, the merry-go-round of commentaries on yet another horrific racial tragedy, have filled the social media universe with exhortations: Stay the fuck at home! Check your privilege! Wear your mask! Look within yourself! Be a good ally! Educate yourself! Flatten the curve! Dismantle white supremacy! The electronic town square holds trials for the Karens and Beckys of our time, which, given the centuries-old racist marinade we have been submerged in, are never in short supply. Everyone has an opinion about those (me included.) Everyone has an opinion about someone else’s opinion (me included.) Lists upon lists crop up in our social media feeds: Rating activities as to how safe they are (followed by the obligatory argument that the writer refrains from all of them, out of an abundance of caution); do’s-and-don’t’s for protesting “properly” are modified. Well-meaning people sincerely ask whether their white children may raise a fist on TikTok and receive fifty replies, all different. The actual issues are buried under edifices upon edifices of performance, performance, performance. Meta conversations about performance are rabbit holes. Every day some celebrity or other wears something or says something or performs some physical gesture, providing more grist for the mill. Every horrific incident of violence, racism, or racial distress, every photograph of someone out of compliance with the pandemic mandate-de-jour, becomes a morality tale, fueling endless takes, opinions, and new lists of instructions. Pandemic prevention enforcement and “how to be a good ally” have linked hands and are now the new religion of social media. We are in a panopticon, but the Foucaultian roles are reversed: we sit in the watchtower in the middle, and all around us are bloviating pulpits.
(I realize this post is falling into the same trap of exhortation, but this underscores my point–there is no end to a sea of pointing fingers. It’s turtles all the way down.)
If we were half as busy actually doing world improving things as we are performing our goodness in the public square and moralizing others, we might be in a different place. But public image is everything, and “content” (there it comes again!) must be provided. Citizens United has come full circle: now that corporations can speak like people, people speak like corporations. Everyone is a public entity, and so everyone has to issue on-point “messaging” to the public. Jeff Skilling’s infamous statement, “I am Enron,” is now true for everyone. Performance comes before feeling or doing. We must be on brand.
The problem is that “the personal is political” works both ways. It is one hundred percent true that we all play a role not only in pandemic spread, but also in the perpetuation of white supremacy. It is one hundred percent true that every revolution starts with individuals, and that individuals have the power to change the world–especially when organized. But these truths obscure other truths. “Flatten the curve” and “dismantle white supremacy” are big, pompous, vague goals, and in the absence of responsible adults at the helm of the country, there are bound to be differences in how we, the people, parse them into everyday behaviors. We’ve missed the train on testing and contact tracing, and now we’re left to pick at each other for mask violations.
The incessant chatter, be it contrite, derogatory, or both, is not “doing the work” that we are told to do. It is performing the work, which is something else entirely. It is exhorting others to perform the work. All the world’s a stage, and on this particular stage, we are performing The Crucible 24/7. There’s no escape from watching, from participating, from fretting about participating lest our flawed goodness be exposed.
I deeply understand where the urge is coming from. There are good intentions. There is a desperate need to do something in a situation in which we feel particularly powerless; we are sheltering at home, our face-to-face meeting places are closed, this online discourse is a poor substitute to our in-person conversations. As more and more avenues to do good close, either because they are impossible or because they are severely criticized, we are clutching at straws. These bursts of personal propaganda are the best thing we have, and we figure they are better than nothing, because silence is also a problem. And most importantly, there is pain. Searing, unbearable pain and grief. Grief for the sick, grief for the dying, grief for the people being killed and injured and ostracized and ignored. Grief and guilt. It feels overwhelming to sit with it. We take to our keyboards to find some relief, to tell some story about it, to remove the center of grief from our hearts to our heads to our keyboard. But verbose descriptions of grief are not the grief itself.
Can we take an intermission? Not from the work itself–improving the world is the project of a lifetime–but from the performance of it? Can we stop obsessing about our goodness and the goodness of others? Can we stop “messaging” so that we can actually feel something? Can we quiet our nimbly typing fingers to listen to the cries of the world, of friends and neighbors born to disadvantage, of our dying planet? Can we quiet them long enough to hear our own hearts quiver in compassion?
What a treat we all had this evening at the Law & Society Association Annual Meeting! We got to view the excellent Israeli documentary Advocate about attorney Leah Tsemel who represents Palestinian defendants in Israeli courts. Tsemel is revered in some circles and reviled in others for her iconcolasm, bravery, and unwavering commitment to the Palestinian struggle.
The documentary showcases one of Tsemel’s most difficult cases: the defendant, Ahmad, 13 years old, ran around with his cousin with knives. They stabbed an Israeli child, also 13 years old. The cousin (15 years old) was killed by the Israeli police/military. Throughout a horrific, brutal investigation, after sustaining serious beatings and a cracked skull, Ahmad argued that he had no intent to kill, only to frighten, and did not want to attack children. Tsemel faces a tough dilemma: because of his juvenile status, if Ahmad confesses, he won’t be incarcerated but rather sent to six years at an institution. if he goes to trial, he might face imprisonment. She is adamant that she will support his right to continue to tell his truth.
The film also tells the story of Tsemel’s life, from her experience of the 1967 occupation of Jerusalem as a law student, through her activism in socialist anti-Zionist movement Matzpen (“compass”) in the 1970s, her husband’s involvement in radical activities, and her adult children’s thoughtful, complex reflections on their family life in the shadow of their mother’s convictions and unusual career. Tsemel emerges as an unusually brave and committed person.
I was very glad to have the opportunity to see the film, and surprised at the points at which Tsemel’s life choices illuminated my own. I served for five years as a public defender at the Israeli Military Defense Counsel’s main office, where I occasionally represented people who, on the surface, are on the opposite end: Israeli soldiers who looted Palestinian homes and abused Palestinian detainees. I vividly remember an evening at which four of us, who strongly identified as left-wingers, sat at a pub in Tel Aviv and talked about our moral convictions about the occupation. Two of us said they would refuse to represent soldiers in these cases; one of them, still someone I like and admire a lot, explicitly said so to our commander and ended up getting disciplined but insisted on taking on other cases as a trade-off.
I admitted to my friends that I saw no ethical problem representing these folks (older than Ahmad, but not by much.) I sometimes worry that expressing this position will be incomprehensible, or even reprehensible, to friends who see the conflict in black and white. It was precisely because of my conviction that the occupation was vile and debased everything and everyone that touched it that I saw it as a duty to represent these soldiers. To me, they were placed by their government and their commanders in morally impossible situations akin to the student participants of the Stanford Prison Experiment. Encouraged by the overwhelming racism and intractable duality created by the conflict, and marinating in a military culture that ignored (at best) or condoned (at worst) their wrongdoing, they were victims of the horrors of the occupation, like their Palestinian counterparts (albeit, of course, not to the same degree.) When I interviewed Israeli conscientious objectors, most of them former combat soldiers, about their experiences, it was evident how tortured and scarred they were by the memories of engaging in things they now considered atrocities; this is one of the reasons I have so much respect for Breaking the Silence (“shovrim shtika”), an organization of former combatants revealing their experiences. If there is ever to be peace, everyone should have the opportunity to exorcise the demons of this horrible, violent conflict, so that real peacemaking work can be done. I see the way the occupation has damaged the occupiers every day in Israeli society–the machismo, the lack of empathy, the culture of not listening, the verbal and physical violence. Of course the other side suffers orders of magnitude more, and both sides are locked in positions in which they ascribe victimhood to themselves and crimes to the other party. These identitarian labels and the truthiness they come with are very hard to shake.
Growing up as a largely nonpolitical nerd, I was fascinated by organizations like Matzpen and by friends who had strong political consciousness, were radicalized since high school, and went to protests and somesuch. I envied, and marveled at, the ability to wake up in the morning with the unwavering feeling that One Is Doing God’s Work and that the adversaries were unquestionably the bad guys. I felt so childish by comparison because my opinions were so unformed. It was much later, in the army, that I found my own political consciousness. There’s nothing like ranks and stupidity and reading Catch-22, which felt like a documentary of my life at the time, to crystallize unfairness, injustice, inequality, and the burning need to help people caught in Kafkaesque situations not of their making. But even then, I simply couldn’t resign to a formula under which one side was the good guys and the other the bad guys. The miasma of the conflict infected everything around it, and the crumbs of ugliness that fell on my professional plate did not always neatly arrange themselves in a way that made moral determinations easy. It didn’t always favor one category of humans over the other, and it made for interesting, reflexive experiences, thinking about what world improving action I could take given what I had in front of me. Much of what I learned in practice, particularly how class differences played a horrible role ruining young people’s later civilian lives, informed and enriched my later scholarly work.
But the sense that the world of good and evil is complicated, and that there is too much suffering around me to take sides and stick with them in perpetuity, seems to have remained as a permanent feature. Today our hearts cry as protesters respond to the horrific killing of George Floyd. Opinions fly back and forth about rioting and property destruction–is it wrong, is it right, who is doing it, what would MLK say about it–and I just find that the heart is big enough to contain and feel, really feel, the suffering of everyone, before being so sure about what I think about every aspect of this situation. Maybe Leah Tsemel would shrug and simply say that the evils of racism justify any means and that it’s not for her to judge the reaction–and would feel comfortable in her unwavering commitment to this ethic, and sleep soundly. Me, I’m not sure of anything, except of the profound sadness I feel–for George Floyd’s family and friends, for his community, for Black people feeling traumatized, for Black lives being devalued, for the rage and grief that prompts people to destroy, for the unloved, cynical emptiness that would lead people to jump on the bandwagon of destruction, for the losses of local businesses, for the people challenged to respond in a human, decent way, and not knowing what to do, for everyone who is angry and sad and afraid and feeling inadequate to mend the sorrows of the world. It is a thicker, more overwhelming sensation, perhaps, of ethical humanity, but I have grown to accept what is in my crying heart–in any human heart–and its miraculous ability to hold the extremes of joys and sorrows. When called upon to rebuild, I trust in my ability to determine, as best I can, how I can reduce suffering in the world. It’s all any of us can do.
This afternoon’s panel, titled Writing as Resistance: The Role of Literature in Law and Society, was delightful and mind opening. Chaired by LSA President Penelope Andrews (New York Law School) and moderated by Kendall Thomas (Columbia), it featured Qudsia Mirza (University of London), Valerie Napoleon (University of Victoria), Ruthann Robson (CUNY) and Patricia Williams (Northeastern.)
I appreciated the different takes on literature and on literacy: the role literature played in pedagogy, mobilizing to seek literacy–all fascinating. But what most spoke to me was Patricia Williams’ observation about the craziness and granularity of interacting with each other via Zoom. “Positivists are held captive in a metaphor,” she said, “and here we are in a world dreamed by a group of positivists.” She also managed to capture the absurdity we all feel but seldom express so well, that speaking to each other on Zoom while viewing our own faces is the ultimate manifestation of W.E.B. DuBois’ concept of double consciousness: “watching myself as I watch others watching me.”
Today we opened the Law and Society Association’s Annual Meeting, an annual highlight of my professional life. Had we not been sheltering in place, I’d be in Denver, learning from all my friends; fortunately, we haven’t had to cancel, and instead we are holding the entire meeting virtually. I’m very proud that my collaborative research network, CRN27–Punishment and Society, has a robust presence at the meeting–21 panels strong! I’ll be blogging about some of the panels here.
The opening panel this morning brought together scholars who conduct risky research in dangerous places. I was very impressed with all my colleagues on the panel–many of them new(er) to the field–who are doing amazing work under incredibly challenging circumstances. Their bravery, wholehearted commitment to the work, reflexivity about their role, and concern for their subjects, shone through all the talks. Here are a few takeaways from the panels:
Egor Lazarev (University of Toronto) opened by speaking about his research on the rule of law in Chechnya. I was struck by his straightforward assessment that things on the ground do not look as uniformly dangerous as they seem on TV, as well as by the way he used regular phone calls with his mother to keep her abreast of his research, fully aware of the fact that the conversation was probably eavesdropped on.
Viviane Weitzner (McGill University), who studies the movement against mining among indigenous communities in Colombia, inspired me by talking about how elders in the communities she studied offered her spiritual protection through protective rituals. I was especially moved by the fact that she included that, in a genuine way, in her account of how she kept safe.
Filiz Kahraman (University of Toronto) spoke of the challenges and dangers that she and her Turkish colleagues faced as a consequence of signing the Academics for Peace and Justice petition. She showed that the punitive consequences against them were arbitrary and stifling, and reminded all of us, when conducting international research, of the importance of partnering with local academics (and giving them credit.)
Hind Ahmed-Zaki (University of Connecticut), who has studied violence against women in Tunisia, spoke about the importance of being reflexive about our dual role as researchers and, often, as supporters and advocates for the movements we study. Among other things, her care and compassion for her subjects meant that she refrained from interviewing some people out of concerns about retraumatizing them.
Walid Salem (University of Washington) spoke of his arrest in Egypt and offered a lot of food for thought about how IRBs can protect scholars facing frightening consequences. He urged universities to be more thoughtful in how they frame permissions and protections for researchers, reminding us that, without institutional protection, a scholar could be stranded (or worse) in a hostile setting.
Kim Lane Scheppele (Princeton University) spoke of her open critique of the Orban regime in Hungary and the death threats she has received as a consequence. She pointed out that most countries do not keep a tally of death threats, and about needing to take them seriously; they are often treated as covered by freedom of speech even though they are not.
Beyond being incredibly grateful for the groundbreaking research these incredible colleagues conduct under such precarious conditions, I am grateful for the online platform. Who knows how many of our colleagues who face such adversities would be able to fly out and attend a physical conference?
A few years ago we had a minor scandal at Hastings. A first-year female student who lived in our dorm reported an intruder to campus police. She came to her apartment, she said, and found an African American man, well dressed (“could pass for a student” was the description we learned through the Jeanne Clery Act disclosure campus police sent us via email) rummaging through her underwear drawer. For a few weeks, our African American students were under surveillance. Then, we got a cryptic message from the police, saying that the investigation had ended and no offense was committed.
I put the whole thing out of my mind until a year or so later, when I taught race and crime and we watched this excellent clip of Gregory Peck as Atticus Finch cross-examining Collin Wilcox as Mayella Ewell:
https://www.youtube.com/watch?v=_6qQ7l8pRGo
My students said, “holy crap, that’s exactly what happened with this girl.”
“Wait, WHAT?” I said. “Explain.”
So they did. It turned out the story was as follows: the student who had made the complaint wanted to move in with her boyfriend. In an effort to show him how dangerous the Tenderloin was, she manufactured the story of the intruder out of thin air. For weeks, the investigation went on, understandably enraging our Black Student Association, and then she finally broke down and admitted she had fabricated the whole thing.
The literature on racial hoaxes is pretty consistent: people make up stories for their intended audience, based on their assumptions of what would be believed. Whenwhitepeopleengagein a racial hoax, it is aimed for a white audience, and usually evokes some version of the hypermasculinized, predatory black man. When black people engage in a racial hoax (yes, this happens, too), it is aimed for an audience of people of color, and revolves around hate crime (admittedly, there are so many true reports of hate crimes that it is hard to assess the rate of the false ones–which is exactly what makes hate crimes believable to people on the receiving end of so many real ones).
I’m not particularly interested in hounding Amy Cooper or in the waves of (understandable but counterproductive) vitriol, threats, and schadenfreude that are coming her way. I’m more interested in the quick, reactive thought process that landed her in threatening-black-man territory after Christian Cooper made his reasonable, polite request (and wisely recorded the aftermath.) The reason white women make accusations against black men is that they know they have the social capital to be believed.
Nothing is new under the sun. Michael Klarman wrote a classic article about the nine black men who were falsely accused of raping two white women on a freight train in Northern Alabama. He comments:
In such cases, guilt or innocence usually mattered little. As one white southerner candidly remarked in 1933, ―If a white woman is prepared to swear that a Negro either raped or attempted to rape her, we see to it that the Negro is executed. Prevailing racial norms did not permit white jurors to believe a black man‘s word over that of a white woman; prevailing gender norms did not allow defense counsel to closely interrogate a white woman about allegations involving sex. As one contemporary southern newspaper observed, the honor of a white woman was more important than the life of a black man.And because most southern white men believed that black males secretly lusted after ―their women, they generally found such rape allegations credible.
Michael Klarman, Scottsboro. Marquette Law Review, 2009.
Nothing is new under the sun. I am nauseous with anger this week over what Christian Cooper has endured, and over how precarious is situation was–how quickly this allegation could have turned into the stomach-turning horrific tragedy of George Floyd’s killing (the heart cries with so much grief this week; how can any of us breathe when some of us are not allowed to?) But this is exactly the crux of the issue: who is and is not believed is a reflection of deeply engrained, sinister, ugly cultural myths, and all the criminal justice reforms in the world has not yet succeeded in sweeping these away.
The New York Post reports good news (in itself a newsworthy event):
The NYPD will no longer make arrests or hand out tickets if people flout the mask-covering rules in the Big Apple, the mayor said Friday.
“Absent a serious danger to the public, NYPD will not take enforcement actions for failing to wear face coverings,” Mayor Bill de Blasio said during his daily press conference.
The shift in enforcement comes two days after another controversial video emerged of a police interaction with a woman and her young child in the subway over a mask.
Hizzoner said he wanted to reset the city’s approach on enforcement.
“The reset will be this: We start with the fundamental notion the NYPD is here to protect lives, to save lives, and where we see the greatest danger to lives in terms of the coronavirus and the areas where we can enforce is around gatherings, particularly large gatherings, so that’s where we’re going to focus,” the mayor said.
NY Post, May 15, 2020
Amidst the angry exhortations to “stay the f*ck home” and the like, fervent enforcers and shamers may have missed the news: NYPD has made dozens of arrests, most of them of people of color, and some of them violent. The focus on shaming people for behavior in the outdoors continues: here in San Francisco, people’s aggressiveness toward perceived violations has percolated to a point that one of my favorite journalists, Heather Knight, had to shame the shamers for targeting the (largely nonwhite) children of first responders. Only today at the skate park (our updated stay-at-home order allows us now to be there) someone thought it proper to video film the skating kids, including my 2.5-year-old son; needless to say most of the kids were not white. Of course, it’s not just police that is doing this racialized enforcement, as this ugly incident and these ugly incidents show.
We already know about the racialdisparitiesinCOVIDinfectionsanddeaths, and today’s news highlights the counterpart: people at the bottom of the social ladder are also on the receiving end of the brunt of social distancing enforcement. A good way to make sense of this is to go back to the basics of theoretical criminology.
Conflict criminology, a strain of theoretical criminology originating in the 1960s and 1970s, highlighted the way in which the definition of crimes and enforcement of laws affirmed and exacerbated the existing unequal social order.
Thomas Bernard explains its premises:
One’s “web of life” or the conditions of one’s life affect one’s values and interests.
Complex societies are composed of groups with widely different life conditions.
Therefore, complex societies are composed of groups with disparate and conflicting sets of values and interests.
The behavior of individuals is generally consistent with their values and interests.
Because values and interests tend to remain stable over time, groups tend to develop relatively stable behavior patterns that differ in varying degrees from the behavior patterns of other groups.
The enactment of laws is the result of a conflict and compromise process in which different groups attempt to promote their own values and interests.
Individual laws usually represent a combination of the values and interests of many groups, rather than the specific values and interests of any one particular group. Nevertheless, the higher a group’s political and economic position, the more the law in general tends to represent the values and interests of that group.
Therefore, in general, the higher a group’s political and economic position, the less likely it is that the behavior patterns characteristic of the group (behaviors consistent with their values and interests) will violate the law, and vice versa.
In general, the higher the political and economic position of an individual, the more difficult it is for official law enforcement agencies to process him when his behavior violates the law. This may be because the types of violations are more subtle and complex, or because the individual has greater resources to conceal the violation, to legally defend himself against official action, or to exert influence extralegally on the law enforcement process.
As bureaucrats, law enforcement agencies will generally process easier rather than more difficult cases.
Therefore, in general, law enforcement agencies will process individuals from lower rather than higher political and economic groups.
Because of the processes of law enactment and enforcement described above, the official crime rates of groups will tend to be inversely proportional to their political and economic position, independent of any other factors (such as social or biological ones) that might also influence the distribution of crime rates.
No consensus exists in society on the basic values and interests of individuals, and on the contrary, society is characterized by conflict on these issues.
Society in general is divided into classes whose members have similar values and interests, the principal classes being those who own the means of production (the ruling class) and those who are employed in production (the working class). The principal conflict in society is between the ruling class and the working class.
Crimes are defined as socially harmful actions that violate basic human rights. That includes both “street” crimes in which the lower class preys on itself and on others, and ruling class crimes in which the lower class is victimized through unemployment, pollution, and exploitation. Because the law is a tool of the ruling class in its conflict with the working class, the socially harmful actions of the ruling class are generally not defined as crimes by the official criminal justice system.
Conventional criminologists accept the definitions of crime provided by the law, and so assume a technocratic role in the social control of the working class. They do this through “correctionalism,” which attempts to reconcile the working class to the structure imposed by the ruling class, and through “reformism,” which attempts to improve the operation of the criminal justice system and increase its effectiveness in controlling the working class.
Radical criminologists reject the definitions of crime provided by the law and study all socially harmful behaviors that violate basic human rights. They argue that contradictions in the capitalist economic system are the underlying causes of these behaviors.
The crime problem can be solved only by the overthrow of the capitalist economic system and the establishment of a socialist state. Once capitalism is overthrown, the law in its present form will eventually become unnecessary, as the conflicts between classes will have been resolved.
The principal task of radical criminology is to promote the overthrow of the capitalist economic system, and thus radicals must guard against the danger of “cooptation,” that is, having specific points of radical criminology accepted by mainstream criminology and placed in a context that does not promote the overthrow of capitalism.
Bernard, see above
This distinction shows radical criminology as much more engaged with the Marxian social structure, and having more to say about what the crimes really are. Even though the two theoretical strains differ in the extent to which they accept the existing definitions of crime, the classic distinction between “crimes in the streets” and “crimes in the suites” comes in handy. The wealthy and socially powerful wreak harms that quite possibly should be defined as crime (corporate malfeasance, environmental crime), but sometimes escape the definitions altogether, because the law serves the interests of the ruling class or, if it exerts autonomy, overall supports the existing unequal social order. When the wealthy and socially powerful *do* commit crimes that are defined as such, they avoid enforcement either because they commit them in places and manners that escape detection, or because they wiggle their way out of criminal entanglement using social advantage and connections.
Social distancing violations are no different, in this respect, than any other type of crime. The most tragic example of “crimes in suites” in this pandemic that I can think of is the horrific story of the first known COVID-19 casualty in Brazil, Cleonice Gonçalves. Cleonice worked as a domestic worker at a wealthy Rio de Janeiro neighborhood. Her employer, who had just returned from holiday in Italy, was feeling ill and sought testing for coronavirus, but apparently did not inform Gonçalves, who had worked for the family for decades. The employer recovered; Cleonice died.
But this story holds the key to explaining why, through a conflict criminology lens, it is poor people and people of color that are bearing the brunt. First, wealthy people can avoid violating the law altogether. Some of us are riding this out in vacation homes, where they have extensive grounds, pools, and play structures, while some of us live in apartment buildings and projects devoid of natural beauty and space, who have to look for respite in city parks and beaches. Being able to afford grocery and takeout deliveries spares one the need to go outside and, by consequence, the possible formal and informal social control if one happened to forget their mask at home. Those of us with more social advantages have a more reliable internet connection, more access to toys and books for our children, which allows us more flexibility in entertaining our kids and thus less need to go outside.
Second, when wealthier people violate social distancing mandates, they can afford to do so in ways that keep their behavior undetected. Sneaking out to get your hair cut (or worse, having your hair stylist to come to your house), having your house cleaned by a cleaner who travels over to you (and faces risks outside and, worse, at your home), and quietly socializing with others indoors, allows you to engage in behaviors that are much more harmful to public health than outdoor mask-non-wearers.
Third, relatedly, law enforcement focus and priorities play a role in where crime is enforced. This is not news, of course, though the question of whether high enforcement priorities are necessarily racist is more complicatedthan it seems. But it is rather obvious that privacy concerns and the practicalities of law enforcement target places where people with less social advantage are more likely to be. Even if the police know that so-and-so has a house cleaner, coiffeur, or masseur come in once in a while, there are many practical and ethical disincentives to enforcing inside the home (they should get a warrant, right?).
Fourth, when the people at the lowest rungs of the social order violate the stay-at-home mandates, what they do is more likely to be perceived by all of us, including well-meaning folks, as a problem and a violation. Last week, UC Hastings and other Tenderloin institutions and businesses sued the city of San Francisco for the worsening conditions in the Tenderloin neighborhood. The increasing congregation of unhoused people in tents, in close proximity to each other, without bathrooms or hygienic facilities or reliable healthcare, is risking them first and foremost, but also, of course, others in the neighborhood. And yet the concern is, of course, that when law enforcement intervenes, it will be to “clean” the sidewalks and remove the nuisance-turned-serious-contagion-risk, rather than put together long-term plans to house and treat these folks properly. This is right out of the Anatole France maxim that critical criminologists quote all the time: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”
The irony, of course, is that the “crimes in suites” are much more perilous, from a public health perspective, than the “crimes in streets.” The risk of becoming infected outside is considerably lower than the risk from indoor congregations. The truth is that the ire about the spring break revelers in Florida was misdirected at their daytime beach activities, and should have been directed at the indoor partying later at night. But we focus on enforcement outdoors for the same reason that we look for a lost wallet at night under a street lamp: not because it’s more effective, but because it’s easier.
The tragedy of this is not just the hostile interpersonal environment this creates, but the concern that, if law enforcement intervenes because of some concerned citizen’s complaint, folks who are lacking social advantage to begin with will end up in jails and prisons, where their risk of contagion is so much higher, contributing to the scary incubators of disease that we are fostering in our prisons these days.
I suggest we all think about this the next time we have an urge to scowl at someone on the sidewalk. Your intentions are good, and you want us all to stay healthy, but your ire is misdirected at targets that endanger you less, and who are themselves endangered more by your actions.
There’s a wonderful scene in Monty Python’s Life of Brian in which the titular character meets the People’s Front of Judea. Or, at least, that’s what he thinks. It’s best to let the scene speak for itself:
My book in progress about animal rights activists who open rescue animals from factory farms looks at how a social movement seeking to transform the law uses its own criminalization as landmark litigation for animal liberation. You’d think their major challenges would come from outside the organization itself–say, from a society habituated to the exploitation of animals, ridiculous criminal charges, a hefty lobbying machine, and the like. But these pressures seem matched by destructive conflict from within–not so much between different animal rights organizations, though that’s a factor, of course, but between the existing leadership and disillusioned former members turned fierce opponents.
I have a lot of thoughts about the particulars of the conflicts I’m seeing in my case study, but it made me ponder the role that bitter personal acrimonies play in the life of progressive organizations. It’s hard to keep a movement going with allegations flung back and forth. Some folks soldier on; just a few months ago we saw DeRay Mckesson trash Shaun King and King publicly reply. It’s hard to tell how much damage these accusations do to an organization that overall does very laudable work.
The interpersonal conflict aspect doesn’t get enough attention in social movement literature, and I think we should remedy that, because accusations, hatreds, gossip, and splintering cause real harm: it deprives movements of valuable contributions. As Jo Freeman noted in her legendary essay about trashing in second-wave feminism, people who survive this sort of vicious interpersonal stuff tend to “hang around the fringes of the movement” or peel off, often internalizing the effects of the harsh interpersonal burn. Of the women she met after she was trashed, who met up later and vowed to get together more often, she says: “Instead we each slipped back into our own isolation, and dealt with the problem only on a personal level. The result was that most of the women at that meeting dropped out as I had done. Two ended up in the hospital with nervous breakdowns. Although all remained dedicated feminists, none have really contributed their talents to the Movement as they might have. Though we never met again, our numbers grew as the disease of self-destructiveness slowly engulfed the Movement.” That is such a shame, and I suspect that today this is exacerbated because everything is publicly aired on social media, as Jill Filipovic discusses here. Cancel culture can flatten the often complex backgrounds for these acrimonies and cause real havoc in organizing. They also tend to linger in awful ways: I’m reading and appreciating Starhawk’s The Empowerment Manual, which addresses the interpersonal conflict as a big part of what happens in collaborative spaces. Starhawk has decades of experience with cohousing, progressive spiritual organizing, and other collaborative movements, and it’s telling that she prefaces her case studies by saying that “[m]ost will have names and details changed to protect the privacy of all involved – and to keep me from spending my golden years dealing with hurt feelings and bitter attacks from those I might offend.” Which, even as she is optimistic about the possibility of overcoming these difficulties, tells you something about how resentments over this stuff can fester for decades.
It’s important to think about where these conflicts come from, why they happen, and whether they are inevitable. Because so much of our organizing these days is identity driven, many of the internal conflicts within movements and organizations have to do with identities. Here are a few grounds for conflict that I’m noticing in the organizations around me:
Perceived betrayals of the cause. These often have to do with some members or leaders compromising over values that other members perceive as essential to maintain without compromise, such as coalitions with moderates or conservatives, seeking personal comforts when others are making sacrifices, or eschewing a personal habit that some members perceive as essential to the movement.
Identity revelations and authenticity issues. I’ve seen this come up a lot in context of race and sexuality, where even organizations who ostensibly declare that identity is not a barrier for entry become Petri dishes for criticisms about members and spokespeople who are “not black enough” or “not queer enough” to speak for the membership. I’ve also seen versions of this crop up in organizing around sex worker labor rights.
Not giving credit where credit’s due. This becomes especially objectionable when a member takes credit for an idea or a contribution of someone from a disadvantaged group.
#metoo accusations. This deserves a category of its own, because I often see accusations of sexual misbehavior–not necessarily criminal offenses, even being a jerk in a romantic context suffices–flung on both sides of interpersonal conflicts. The “allegation-as-fact” characteristic of some of the #metoo discourse amplifies the serious nature of this, because to dispute the allegations is to incur an additional negative mark, that of minimizing and disbelieving women.
Financial malfeasance. Organizations that are driven by vision and charisma are not always 100% clear, to begin with, on how raised funds will be allocated, and as a consequence there could be bitter disputes about how the money was spent or shared.
This mini-typology is just the beginning–I’m hoping to come up with a more comprehensive framework for understanding this. I’m also hoping to figure out whether this stuff is inevitable, and is simply part of the life cycle of any collaborative effort.
Part of the issue with these identity-driven conflicts is that, in progressive organizing, we tend to subscribe to the notion that “the personal is political.” But if that’s the case, aren’t personal conflicts and their destructive aftermaths also political? They certainly have political impact, in terms of splintering organizations and paralyzing progressive action. As many folks have observed, shaping political action through identity is a mixed bag, in that it can stand in the way of diversity. Starhawk writes:
Some kinds of diversity are not meant to work together: if our goal is to ban the growing of genetically engineered crops in our county, we’re not going to work well with Monsanto. Yet we should also beware of drawing too tight a circle. If everyone in our group has to be a vegan, polyam-orous, non-gender-specific advocate for peace, we’re going to lose. To win, we need a coalition of conventional farmers, organic growers, ranchers, vineyard owners and environmentalists who might hold widely divergent views on gender bending, gay marriage and foreign policy but agree on the food system they want to see.
Starhawk. The Empowerment Manual (p. 32). New Society Publishers. Kindle Edition.
This seems like an application of the more general problem that Francesca Poletta discusses in Freedom Is an Endless Meeting, which looks at participatory democracy through a historical lens. While Poletta is overall sanguine about the potential of collaborative processes to produce real change–she discusses the real successes of depression-era labor educators and Mississippi voting registration workers–she finds that when organizations model their political structure and process after cultural models that don’t work–“familiar nonpolitical relationships such as friendship, tutelage, and religious fellowship”–they face the sort of issues that are a bug, not a feature, for these relationships, but become a bug if one wants to be politically influential: problems of inclusivity and procedural murkiness.
But I suspect there’s another reason why these conflicts become so acrimonious. Working for many progressive causes, such as environmental and social justice, comes with a heaping helping of despair. It is draining to see the suffering and destruction on such a massive scale, and it often feels insurmountable even to the most committed activists. Without solid resourcing tools to contain and sit with the sorrows of the world, a lot of this frustration and despair can fester, looking for a “hook”, and attaching itself, tragically, to the people who might be closest to the sufferer. I don’t mean to suggest that the complaints are always or often baseless. Regardless of their credibility, they evince some channeling of more general, existential despair. It’s the sort of thing that makes all of us, in these scary times, channel our inchoate fears toward lashing at each other for noncompliance. Imagine this happening to a group of people who, on a permanent basis, are facing boulders of fear and grief about the planet as political “first responders” to the griefs of environmental destruction, economic inequality, racism and injustice. That this is deeply upsetting stuff goes without saying.
Which brings me to the real question: Is any of this inevitable? Can we learn to process our grief and outrage, with ourselves and others, in a way that brings about growth and prevents long-term resentments? Is it possible–if not in all cases, than at least in some–to overcome these conflicts and bring people back into the fold? Or is it just the nature of human collaborations that they have a life cycle, and personal stuff poisons the well at some point?
I don’t have an answer yet. I’m thinking about this as I see this unfold in my case study and elsewhere. I want to believe that nothing is insurmountable, but I see a lot of negative examples. Tell me the story of your organization, and how you overcame (or didn’t) a season of interpersonal anger and strife.
When I became Río’s mom, my dear friend Sarah and I, in the throes of sleeplessness, milk, and diapers, started an ongoing conversation and bond that stays strong and joyful to this day. One of our recurring gags is an ongoing mockery of parenting books, their jargon, pretentiousness, and dogma. In the baby years, it was child-led-this and play-based-that, you know the drill. When we were looking at preschools, we attended open schools about parent-involved-this and developmental that. At some point I quipped that I would become the devout groupie of whatever educational method would get us off the waitlist. We often fantasize about writing a parenting book titled “Do Whatever the Fuck Makes Sense to You.”
But this morning I realized I did, however, come up with some sort of credo. I offer it to you with love on this Mother’s Day, whether you are a mother, a daughter, or both; whether you are near your mother or you miss her; whether she could or could not be fully present for you, in person, in body, or in spirit; whether you’ve had to make hard choices about the timing and form of your motherhood; whether motherly love is easy or difficult for you right now; whether you are mothering a human child, animals, plants, colleagues, friends, students, and/or mentees; in whatever form mothering energy manifests in your life.
1. I see my child every day with fresh eyes.
I wake up every morning to the miracle that this little boy is a member of my family. It is a miracle that he is alive–just as it is a miracle that all of us were babies once. Even when things are hard, there is deep appreciation and love of the opportunity to spend the rest of my life being his mom–and the incredible gift of love from Río’s birthparents, who chose us to be his parents.
One night when he was perhaps eight months old, my son woke me, not by crying but by gurgling and laughing. He was in an extraordinary mood. Fully awake, his face broke into a wide smile as I came into his room, his eyes glistening in the glow of the moon above the Brooklyn rooftops. His movements, still uterine, as though he were weightless, were clearly giving him great physical pleasure. And the attention he was directing toward me, the central object of his massive happiness, was as powerful an experience of primal love as I had ever known. Basking in it, stroking my son’s hair, I found a nearly unbearable sensation of regret come over me.
What was it? I asked myself, standing in the moonlit room. Why was such pain attendant on such massive love? The koanic opening line of Yeats’s short poem had long haunted me as an enigma: “A pity beyond all telling/is hid in the heart of love—” koanic because I sensed its truth intuitively, enigmatic because the list of anodynes that followed—regular, everyday occurrences, from markets to clouds—did nothing to explain what that pity was. This night, the poem’s enigma seemed to me more urgent than ever. What is the pity that hides in the heart of love, and why was it overpowering even the magical immediacy of my child’s joy?
Already, I saw, my daughter had transformed from a wondrous baby into a curious, cheerful, intensely imaginative little girl. Already she had friends, interests, secrets. These moments with an infant in a crib—moments stolen from sleep—were likely the last such moments in my life.
I was more right than I knew. My son never again awoke laughing—at least not loud enough to wake me—and soon that eight-month-old face was two years old, then three, and the fat cheeks had smoothed to show my wife’s cheekbones, and the thin baby’s hair had grown into the thick bangs I once had as a boy. And from that night and for a long time after, my experience of my children came to be infused with this pity of love. So much so, in fact, that I thought it was something very like depression. But as I became more versed in this emotion—and particularly as I watched it in my practice of meditation—I became more and more convinced that this pity was not pathological but existential; that there was within it a dharmic insight.
And Mary Talbot writes about awakening to the Four Noble Truths through her children, and awakening them to impermanence and change:
Motherhood—and its corollary, childhood—in their current optimistic models are relatively new historical constructions and haven’t always had such a good rap as pathways to liberation. Until as recently as the 1930s, maternal mortality rates in the Western world were as high as at the time of the American Revolution. And throughout most of human history, infant mortality has been so widespread that well into the 19th century, American parents didn’t name their children until they hit toddlerhood, when the chances for the kid’s survival began to increase. The probability of child death was too extreme to risk developing parental bonds. For anyone who has had a miscarriage or given birth (I’ve done both, twice), fatality feels—is—viscerally close. It’s a painful, perilous business and an ear-splitting wake-up call to the unreliability of this body, this life, these relationships.
Experiencing a child’s life through a parent’s eyes deflates the myth of immortality in other ways, too. Most of us nurse the illusion of having an expansive life because the murky backward stretch of our own childhoods creates a perception of having lived for a very long time. But watching a child grow up explodes that sense of personal timelessness. When my children were in nursery school, I would come across things in the back of my refrigerator that were older than they were. The very phase of life I remembered as stretching out for an eternity was, in fact, over before I could use up a jar of capers packed in sea salt.
Río is now at a phase in which he is upset at time’s one-directional flow. He eats a banana, and then wants it back. I offer him another banana, and he cries: “No! I want the banana I already ate!” A tower of blocks collapses, but he rails against rebuilding, because even if we build a tower that looks the same, it won’t be the same tower that fell down. Whenever we talk about how we can’t bring things back, I see my own grief of impermanence in him–the grief I felt holding one of his baby suits and knowing that he will never be that little again. Thinking about our children’s past (nostalgia) and future (hope) takes us away from the only mothering moment we truly experience–the one that is happening right now. The fourth of the five remembrances in the Upajjhatthana Sutta is, “I must be separated and parted from all that is dear and beloved to me.” A thousand separations happen every day; our children grow more independent; they leave home; they move far away; we quarrel and put distance between us. And all of them foreshadow the last and final separation that death–ours, theirs–will bring. We are assured of this final loss–we cannot prevent it. What we have is now. And it makes now, which is only now–not before, not after, never to come back– precious and special.
3. Through my child, I love the children of the world.
When I started studying dharma and mindfulness, one of the most impenetrable doctrines was the “doctrine of the no self.” But through Thich Nhat Hanh’s Interbeing and through Joanna Macy’s Greening of the Self, as well as through vision quests and journeys, I learned that the separation between the self and the rest of the world is false and malleable. The miracle that is my child is part of the overall miracle of life. Through the joys and pains of my child I feel the joy and pain of other mothers–human and nonhuman alike. It is through this profound understanding that the separation is false that the courage to fight for the life and dignity of all children emerges. Macy interviews ecoactivist John Seed about what motivates his work:
He replied, “I try to remember that it’s not me, John Seed, trying to protect the rain forest. Rather, I am part of the rain forest protecting itself. I am that part of the rain forest recently emerged into human thinking.” This is what I mean by the greening of the self. It involves a combining of the mystical with the pragmatic, transcending separateness, alienation, and fragmentation. It is a shift that Seed himself calls “a spiritual change,” generating a sense of profound interconnectedness with all life. This is hardly new to our species. In the past, poets and mystics have been speaking and writing about these ideas, but not people on the barricades agitating for social change. Now the sense of an encompassing self, that deep identity with the wider reaches of life, is a motivation for action. It is a source of courage that helps us stand up to the powers that are still, through force of inertia, working for the destruction of our world. This expanded sense of self leads to sustained and resilient action on behalf of life.
Working for human rights and for animal rights, for the liberation of life, is part and parcel of being a mother.
4. I let the self grow as it will.
Many of us are in the habit of boxing ourselves in rigid beliefs about who we are: “I’m not the sort of person who…” As our children’s personalities start taking shape, it is tempting to box them, as well. So many preschool admission forms I filled out ask you to “describe your child.” I can describe my child today. I don’t know if the description will fit tomorrow, or even an hour from now; the self is flexible and boundless. I leave room for my child to surprise me every day.
5. I bring the miracle of compassion into my child’s life.
Earlier this year I found myself facing a difficult situation in my law school class that involved some cruel interpersonal behavior between students. As I was contemplating the unappetizing prospect of “giving a stern lecture,” whatever that means, I thought to myself–why would anyone whose empathy muscles are still growing learn kindness, when our government offers so little in the way of role models? But I was also struck with the poverty of cruelty as a go-to approach to the world. Why would you want to experience the small, petty cackle of the small self, when you can laugh with sympathetic joy and embrace with compassion? I don’t know how to “deliver a stern lecture” on that. All I know is that it has to be experienced. So I offer my son as many opportunities as I can to experience what it feels like to be compassionate–from cheering up a sad friend with a handful of blueberries at daycare to rescuing an errant spider from the tub, unscathed, and gently transporting him outside. We talk about our diet and consumption as choices that come from the desire to live as compassionate a life as possible. It is his choice what to take from this to his future life, but I trust that the experience of compassion itself, which is so rewarding, will be palpable for him.
6. I listen first.
There is a phenomenal children’s book I might have mentioned in a post before called The Rabbit Listened.:
I try to be like the rabbit. It is very tempting to superimpose my own interpretation of the situation, but I am not the one experiencing it. My aspiration is to make as much space as possible for Río to sit with what arises for him, without jumping to offer solutions or framing it in some way. I can help with descriptions, which is also an opportunity to learn how to define feelings, but I need to give the feelings as long as they take to process.
7. I let joy and sorrow grow side by side.
Río’s grandparents, who adore him, live far away from us, in Israel. They visit us for weeks at a time, which are times of joy for both Río and them. When it’s time for them to leave, it is very very hard to say goodbye. I insist on goodbyes in person. Feeling the sadness of parting with a loved relative is a gift. It teaches us that we can contain sorrow and grief, that sadness is a part of life, and that we are accepted and loved all the time, not only when we are happy. It has occurred to me that many of us were not given the gift of being allowed to feel sad by our families, and that’s why we don’t know how to pay it forward. It is very difficult to contain the sadness of someone we love. But it is a precious coping skill that I try to nourish from infancy, so that Río learns not to be afraid of the depths; Khalil Gibran reminds us,
Your joy is your sorrow unmasked. And the selfsame well from which your laughter rises was oftentimes filled with your tears. And how else can it be? The deeper that sorrow carves into your being, the more joy you can contain.
When you are joyous, look deep into your heart and you shall find it is only that which has given you sorrow that is giving you joy.
When you are sorrowful look again in your heart, and you shall see that in truth you are weeping for that which has been your delight.
Nurturing a great capacity of love also means building a receptive container for the joys and sorrows of life. Offering compassion allows children to develop self-compassion.
8. I open doors to grow.
One of the gifts of adoption is that we don’t automatically assume that our child will have our affinities and interests. He is who he is. It turns out that, by contrast to this bookish/weird parents, Río is a natural athlete who enjoys ball games and skateboarding. Who knew? He might grow up to enjoy going to a symphony concert with me, or he might not, but I open doors to the things that interest us as well as to the things that interest him. Through him, we’ have learned a lot about ball sports and about moving around in ways that were less interesting to us before Río joined our family. I think the lesson can be extended to biological parents as well–our children are vast, open canvasses for the world, and the more doors we open, the more curiosity and exuberance they will find. I acknowledge that the ability to enrich and open doors is largely an accident of birth; because I want all children to grow, not just my child, I work to bring about equality and justice so that other people who love their children and want to open doors for them are able to do so.
9. I build a village.
My friend Ifat Matzner-Heruti, who is a parenting coach, recently wrote on Facebook:
It takes a whole village to raise a child. You are not a village. You can’t be. You can’t do it all, it is simply impossible. You can’t care, and work, and teach, and clean, and cook, and train, and launder, and contain, and listen, and educate, and create, and dance, and jump, and write, and breathe. You are not a village and you never will be. You can’t do it all.
She’s right–and I wrote some thoughts about this a couple of weeks ago. The upshot of it all is that, in the absence of paid preschool or caregivers, I realized that we have an unbalanced life. I don’t need more paid care so that i can work more. I need a shorter workday–we all need that, actually, parents and non-parents alike–so that there is more room to be with my child and raise him. Yesterday, out of the blue, Río said, “I don’t want to go back to the teachers. I want to be with you and Aba at home all the time.” That may not be entirely possible or desirable (and I won’t live with him at his college dorm!) but it conveys a deep, strong sentiment that needs to be honored. Love requires time, and if I don’t have all the time in the world, I want to fill this time with loving extended family, friends, and neighbors.
https://www.youtube.com/watch?v=EQ3ePGr8Q7k
10. I mother myself.
I apply all of the above to my own life. I appreciate my own present body, mind, and spirit, even as I work daily to grow. I cultivate love for all beings and aspire to put that love into action every day. I listen to myself, I let myself feel sorrow as well as joy with self compassion. I accept the self as malleable and changing and open doors for transformation. And I cultivate a village around myself and my family, at the same time as I aspire to be part of your village.
Happy Mother’s Day to all of you! May your mothering path be filled with love and compassion.
It was only after he was halfway to the restaurant that John realized he had forgotten his mask. The string he tied around his middle finger to remind him was still tightly looped around the finger, untethered from the memory it was supposed to pull. The deliveries themselves would be fine; John wore a helmet and could wear it on his deliveries with the face shield down. What the clients would think, and then tweet about, tagging his boss, was a different story.
Not that John had developed fervent loyalty to FoodFairy in the two weeks since he had joined their august ranks; It wouldn’t have been his first choice of a career under any other circumstances. But after a couple of weeks at home, no prospects for the near or far future, and a growing stream of worrisome stories on the Chronicle of Higher Education, he could not sit on his hands hoping for some miracle to happen. The college was closed; his course wrapped up in the previous quarter; and none of his students, who were not exactly living in the lap of luxury, could be expected to angrily march across campus, surrounding the empty administration building (the Dean sent him the proverbial pink slip from the comfort of his St. Francis Wood mansion) demanding that his adjunct contract be renewed.
Ceci FaceTimed him to figure out what to do. They quietly and quickly went through a list of his skills. The problem was that everything he knew how to do—tutor people for their SATs, house-sit people’s pets, to mention just two–was not in particular demand because of quarantine. It was actually Fabian who came up with the delivery idea. “You ride every day anyway and you like it,” he said, “and this way you get to hang out outside, instead of getting bored at home.” The inflection on the last three words was perhaps a bit pointed, probably at Ceci; John regretted that they were not all together at this time, then remembered that his new job required special precautions and was grateful not to put them at risk. He and Ceci were much better friends than spouses, anyway, and Fabian was old enough that he didn’t need his hand held through the crisis. He was a much cooler boy than John had been at his age, and remarkably well adjusted; he could surf, skate, and play guitar, and even though he had lots of friends, they hadn’t turned him mean or cynical. Yet.
Given the alarmingly rising unemployment rate, and John’s apprehension about “being a good fit,” whatever that meant, he was surprised to have nailed the FoodFairy gig right away. The folks he worked with were a nice bunch, though he hardly saw them; most of his day was spent moving around the empty city, ambulating through quiet streets and boarded stores, entering the belly of a different beast every time to retrieve food, and heading off to deliver it to invisible, anxious customers.
The app—proprietary! Disruptive! Innovative! Designed to take the food delivery business to the next level!—was almost unnecessary for him, as he knew the city quite well. He lived in Mission Terrace, which looked just like the Mission in its pre-gentrification time. John considered himself a gentle, kind gentrifier, and quelled the social critic in his belly. After the divorce, which happened when Fabian was little and John was fairly gainfully employed, he managed to outmaneuver the young, shiny South Bay tech workers and land a small rent-protected house, paying a recession-set monthly rent that his adjunct salary from three different places barely covered. The neighbors were lovely; a million small businesses, including his favorite Salvadorean resturant, lined Mission Street within two blocks of his home. Best of all, within a comfortable trip on Ocean Avenue, over near Ocean Beach, lived Ceci and Fabian; Fabian, who was now thirteen, sometimes rode his skateboard between his parents’ homes.
The restaurants were still sprinkled throughout the city, though many closed their brick-and-mortar facades and operated from back kitchens. The food was the same; menus had shrunk, but people were ordering in a frenzy, and favorites were a comfort. Lots of pizza, lots of dumplings, lots of fries—the smells enveloped him even though the food was safely nestled behind his back—and lots of Indian curries. When he was off his shift, John would read articles about people rediscovering cooking and baking and making staples from scratch, but given how busy his day was, he couldn’t fathom who was doing it. What really stunned him was the newly discovered penchant for delivered homemade cocktails; John detested those deliveries, feeling like the princess and the pea as he drove gingerly up and down hilly Dolores street hoping not to spill any of the precious ingredients, separately packed for the customers to mix at home for an added sense of agency. He chuckled about it now, as he opened his throttle, ascended Monterey, and appreciated the glorious day and the strange times that placed him outdoors for much of his workday.
John parked the scooter and backed it neatly into the curb in front of Dumpling King. Keeping his helmet on, so as not to alarm the staff, he walked in. Millie, the owner’s daughter, raised her eyes toward him; he could not discern a smile under her mask. He said, “How ya doin?”
“Crazy today,” Millie said. “But these two, every day at noon, like clockwork. Are you here for the same ones?”
“Yeah,” said John. “The two regulars, the one for Persia and the one for Baden.”
Millie picked up two plastic bags emblazoned with Thank You Thank You Thank You in glaring red letters. She quickly checked them both (to make sure there was soy sauce and vinegar, John assumed) and handed them to him. She lifted the one in her left hand a bit. “This is the one for Persia: the two orders of bao, Mongolian beef, dried green beans with mock chicken, rice. The egg rolls and chow mein are for Baden.”
“How do these people not get sick of eating the exact same thing every single day?” asked John.
“Beats me,” said Millie. “But they are keeping us in business. We’re down to just the family cooking now. As far as I’m concerned, they can go on ordering the same dishes for the rest of their days.”
John nodded, smiled—she probably couldn’t see his smile through the chin guard—and carried the food outside. He opened the Velcro attachment to the cooler and placed both bags, side by side, in it. The bigger lunch rush wasn’t happening yet, or maybe the boss did a less equitable division of labor. Tip-wise, it didn’t matter, he remembered as he slid the key into the ignition; the boss decided early on that, as long as this was going on, they would share in the tips. The app—miraculous! Customizable! Considerate!—did the calculus automatically before they got paid. This was advertised to customers looking to assuage their guilt as “taking care of our community of committed drivers.”
John flipped on the kill switch, squeezed the brakes, and pressed the start button. The scooter responded with a pleasant hum. He pushed any thoughts of minimum wage, exploitation, and the growing sensation of bitterness further into his belly and turned into the road. First stop would be Baden. The new protocol required them to leave the food outdoors and text the owners. Some delivery workers rang the bell; in the first two or three days, John did that instinctively, then considered that, even with his gloves on, this could unnerve customers. He parked the scooter under the house, placed the bag in front of the door and, as he expected, was greeted by no one. He texted the number listed on the app–though the boss encouraged it, he didn’t have it in him to add a food emoji or even the obligatory exclamation mark–and headed back to the road.
The next stop was the house on Persia. Here, too, he had never seen a soul, and never received a reply to his text. Ascending the obligatory San Francisco steps, he thought he’d seen movement in the bay window—a flicker of a face. The door had a stained-glass feature, perhaps an orchid, and through the colorful, textured panels he could discern a figure moving in the living room. He whipped out his phone, and within a second realized the text would not be necessary, because through the stained-glass flower he saw the face of a woman.
Half a face, actually—the woman was wearing a mask inside the house. Her eyes were dark and large, and they seemed to communicate something—sadness?—as a reply to what was likely John’s puzzled expression. To each their own, he thought; battles were raging on his neighborhood’s social media page about the appropriate etiquette for mask wearing, running, jogging, shopping, you name it. Boomers bickered with millennials; millennials bickered with boomers; and Gen-Xers like John read it all, nauseated and despaired and unable to tear themselves from it. Then the obvious explanation hit him: there was likely a sick person inside the house. The woman was taking a break from some harrowing caregiving duty to eat her lunch. She said something, muffled by the door and her mask. It took John a moment to process it as “thank you.” He smiled, said, “you’re welcome,” and walked down the stairs. His phone pinged; time to pick up chicken korma from the Mission and head over to Bernal.
As he drove up San Jose, the darkness of the tunnel and the danger of Muni cables called his attention. But as he emerged from the tunnel and rode into Guerrero, the image of the woman floated back to his mind. The amount of food could have a simple explanation: there was more than one healthy person in the house clamoring for dumplings and main courses. But he was surprised that someone caring for a sick relative did not order plain soup. The reports he’d heard were that severely ill people could not manage a thing and lost their appetite; yes, that could be it. Yet there was something about the woman’s expression that flew in the face of this explanation. Something about the sadness in her eyes—not sadness, exactly. Fear, maybe? He turned right into 18th Street, moved into the curb and killed the switch. Looking at his phone, he saw that the order was made by a Phoenix Williams. Peculiar name, though by all means not the only peculiar name in San Francisco. John shrugged and walked toward the restaurant, allowing the fog in his brain to gently settle over anything that was not the next delivery.
In a recent decision, Ramos v. Louisiana, the Supreme Court found that Louisiana’s rule allowing convictions by a majority of 10 to 2 jurors was unconstitutional. Except for Louisiana and Oregon, all states (and, of course, the federal government) require a unanimous jury verdict, though not all states require twelve jurors (Florida requires only six, except in capital cases.)
Now, the Supreme Court faces a subsequent question: Is Ramos retroactive?As Josh Blackman explains in this brief entry in Reason, some Justices in Ramos itself opined on this: “Justice Kavanaugh said it could not be applied retroactively. Justice Alito’s dissent faulted Justice Kavanaugh for reaching an issue that was not briefed. Justice Gorsuch’s plurality leaned towards it not being-retroactive, but it was non-committal.”
Now, the Court has an opportunity to address this directly. Edwards v. Vannoy, recently added to the calendar, is a habeas case with facts very similar to Ramos. The facts, as reviewed in the petition, make a compelling case that this is not merely an effort built on a technicality. Edwards was apprehended on suspicion of several robberies and a rape, even though the description of the perpetrators (“black males with masks”) did not identify him, and at his interrogation (while chained to the wall!) was dissuaded from consulting an attorney. Here’s how the petition describes the rest of the evidence against Edwards:
The perpetrators of these crimes were young black males wearing black caps, gloves and bandannas covering their faces from the nose down to the chin. The police dusted for prints and collected DNA samples from the various crime scene locations and none of that forensic evidence implicated the accused. The police executed a search warrant at the residences of the accused and his codefendant but did not recover any stolen property, weapons or clothing involved in these crimes. In fact, the alleged weapons and bandannas were found in a vehicle driven by three black male acquaintances of the defendant, none of whom testified at trial. The defendant’s photo lineup was presented to five witnesses and only one was able to make a positive identification. This identification is best described as a “crossracial” identification made by a victim that had only a few seconds to view his assailant’s face. Another witness made a tentative cross-racial identification of the accused. Regrettably, the three individuals in possession of the weapons and bandannas were not placed into a photo lineup for viewing, although one of the victims did participate in a show up identification of these three, but that procedure failed to produce identification.
Assuming this is a fair description of the evidence, the case against Edwards was not particularly strong. To complicate matters, the prosecution removed all but one of the African American jurors from the panel during voir dire, and Edwards’ convictions, on all counts, were non-unanimous.
A brief primer on retroactivity: In the diagram below, imagine three defendants: No. 1, whose case begins only after the new rule is in effect; no. 2, whose case was decided before the rule change, but is still “alive” in the sense that it is not final–it is under direct review; and no. 3, whose case is already final, but who, encouraged by the new rule, tries to reopen it via collateral review.
The new rule is always going to apply to defendants 1 and 2, but whether or not it will apply to defendant 3 depends on three questions. The, first question is whether the rule is substantive or procedural. If the new rule is substantive, it will act retroactively; that’s what the Supreme Court decided in Montgomery v. Louisiana, which applied Miller v. Alabama retroactively, leading to reconsiderations of life without parole sentences for many people who have spent decades in prison for crimes committed when they were juveniles under statutory schemes that are now impermissible under Miller (to learn more about these folks, read James Garbarino’s superb Miller’s Children. But I digress.) In our case, however, the rule is procedural; it’s about how the jurors are to decide on a person’s guilt. Under Teague v. Lane, new rules cannot be applied retroactively on habeas, only on direct review, and therefore only defendants 1 and 2 (and not 3) will benefit from the rule change.
The second question is whether this is truly a “new rule” or an application of an old rule. In Davis v. Jones, an appeal of the Orange County federal judge’s decision that the death penalty is unconstitutional because of the delays in its application, respondent’s attorney tried (unsuccessfully)to argue that the new rule was merely an application of Furman v. Georgia.
Even if this is a new procedural rule, it might apply retroactively in the rare case that the third situation applies: if the rule is so fundamental that it can be considered a “watershed rule of criminal procedure.” So far, no habeas petitioner has been successful in arguing retroactivity this way.
How should the lawyers in Edwards approach this? Arguing that this is a substantive rule is a nonstarter, but the other two arguments might have merit, even though each requires a bit of creativity.
One approach could be that the rule in Ramos is not actually a “new rule”, but rather an adaptation of Batson v. Kentucky. The holding in Batson, many readers remember, was that it is unconstitutional to disqualify jurors on the basis of race, and making a prima facie showing of a Batson challenge starts with a pattern of exclusion. Well, in both Louisiana and Oregon, the nonunanimous verdict thing has been intended to function, and indeed functions, as a bypass of Batson. A representative example is Edwards itself: Knowing that you only need 10 jurors to convict, the prosecutor will disqualify all African-American jurors but one or two, thus escaping the need to answer to a Batson challenge but achieving the same outcome: disenfranchising African-American jurors through a combination of a sneaky voir dire tactic and an exploitation of a state rule designed for the very purpose of racist disenfranchisement. As Justice Gorsuch explains in the very beginning of Ramon:
Why do Louisiana and Oregon allow nonunanimous convictions? Though it’s hard to say why these laws persist, their origins are clear. Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to “establish the supremacy of the white race,” and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements. Nor was it only the prospect of African-Americans voting that concerned the delegates. Just a week before the convention, the U. S. Senate passed a resolution calling for an investigation into whether Louisiana was systemically excluding African-Americans from juries. Seeking to avoid unwanted national attention, and aware that this Court would strike down any policy of overt discrimination against African-American jurors as a violation of the Fourteenth Amendment, the delegates sought to undermine African-American participation on juries in another way. With a careful eye on racial demographics, the convention delegates sculpted a “facially race-neutral” rule permitting 10-to-2 verdicts in order “to ensure that African-American juror service would be meaningless.” Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.” In fact, no one before us contests any of this; courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.
Ramos v. Louisiana, 590 U. S. __ (2020)
In other words, one approach to the retroactivity question could be that the rule in Ramos, which found this practice to be unconstitutional, can be readily understood as the Court’s effort to undo a tricky loophole in the application of Batson, which dates back to 1986. This reading would date the rule not to 2020, but to 1986, and would apply it to any case that was still in the appellate pipeline when pastels, neons, and shoulder pads were all the rage. Edwards’ appeal was denied only in 2009, so he would benefit from this reading.
Another approach would be to argue that the Ramos holding is a watershed rule of criminal procedure because, in the words of Teague, it “”implicat[es] the fundamental fairness of the criminal proceeding.” An easy probabilistic calculation shows the risk of conviction rises with non-unanimous juries. Think about it this way: with a unanimous 12-person jury, you need one person to insist on acquittal to get to a hung jury. With a non-unanimous 10:2 rule, you need three. With every reduction in the number of people who have to agree to convict, we are decreasing the voice of an unpopular opinion–which, as Henry Fonda reminds us in Twelve Angry Men, is essential for the functioning of the system.
Consider the following analogy between the Ramos holding and the rule announced in in re Winship: Before Winship, the burden of proof in juvenile proceedings was preponderance of the evidence (more than 50%.) The Court found this burden to deprive criminal defendants of their fundamental constitutional safeguard against the possibility that their fate be incorrectly decided due to fact-finding errors–the heightened burden of proof required for a criminal conviction. Ramos “implicat[ed] the fundamental fairness of the criminal proceeding” in a very similar way. Suppose, for example, that beyond reasonable doubt requires 90% certainty in each individual juror’s mind. Introduce non-unanimity and you’ve reduced the aggregate burden of proof to 90% certainty in 10 minds and 0% certainty in 2 minds. Those are significantly different odds, and in the aggregate they result in different odds of conviction–in much the same way that reducing the overall burden of proof does.
So much for the legal arguments. Policy-wise, I can see the Court contemplating the scary prospect of invalidating an entire history of trials in both Louisiana and Oregon–new trials for people whose cases have been final for decades! This prospect might have been what propelled Justices Kavanaugh and (to a lesser extent) Gorsuch to jump the gun and offer dicta in Ramos about it not being retroactive. Some of the concern with the mess retroactivity will wreak upon convictions in these states might be ameliorated by requiring, as for any reversal, a harmless error test. Moreover, there is another important policy argument that cuts the opposite way: because this rule has such an obvious racial animus behind it, applying it retroactively, as in Batson, would have a cleansing effect akin to the destruction of a confederate monument.
