Nonexistent Reentry in CA: When People Are Duped Into Thinking It’s All Their Fault

The opening chapter of Foucault’s Discipline and Punish compares two penal scenes: the drawing and quartering of a regicide and a drab scene from a discipline-heavy juvenile facility, 80 years later. These scenes are emblematic of the change Foucault sees in punishment: from centralized to decentralized, from a “festival of punishment” to drab things behind closed doors, and most importantly–from body to soul. I read this stuff for the first time about twenty years ago, and its enchantment has worn off; I’m pretty clear on the fact that the move from corporal punishment to incarceration was overall a good one. But there are some days when the “soul” element of punishment is especially hard to stomach, especially when it consists of selling justice-involved people the lie that the only cause for their miseries lies in their own action.

I was outraged, albeit not surprised, to read this distressing exposé on Mother Jones. The gist of it is that our enthusiasm for early releases has not been matched by an enthusiasm to actually help people get on their feet after they are released. It opens with a typical–and horrendous–story:

After 15 long years behind bars, Terah Lawyer needed to show the parole board she had somewhere lined up to live. She landed a spot in a facility on Treasure Island and was so grateful to be out that at first she didn’t mind being forced to spend dozens of hours a week in treatment classes for a substance abuse problem she didn’t have, and in fact, as a drug and alcohol counselor, was certified to teach about. But quickly, the program’s strict schedule and tough restrictions, like lockdowns on holidays and limited free time, got in the way of adjusting to real life. Before she left prison, she’d worked hard to secure a job with the California Coalition of Women Prisoners, but her facility’s rules forced her to delay her start date three months, and she lost the opportunity. Most painfully, the program’s structure made it hard to visit with her parents, who lived a couple hours north in Sacramento.  

Once she was finally able to start working, she’d leave the house at 7 a.m., work a full day, and get back in time for the hour-and-a-half class at night. “I was required to still bring in 21 hours of treatment classes in order for me to get my weekend passes to go home, to go shopping, to go out with family or friends, to do things that are considered freedom,” she explains. “It was really difficult being able to hold down a full-time job, which is thankfully now giving me an income, and also meet the program’s requirements of classes that I didn’t even need in the first place.”

Lawyer’s experience reminded me of participant observations I did at the Peer Reentry Navigation Network (PRNN), a group of former lifers now making a life for themselves on the outside that meets monthly in San Francisco, run jointly by an activist who is formerly incarcerated and by a parole officer. The day I was there, everyone talked about housing. In Yesterday’s Monsters I described the conversation:

After a round of advice and information about housing and smartphone tutorials, Cara, a young woman, steps to the front of the room to facilitate an activity. She distributes blank pages and invites attendees to draw a picture frame on the page. She then asks us to write or draw a picture of what success means to us. We work in silence, occasionally sneaking a peek at our neighbors’ work and smiling at them. Cara then invites the audience to share. “Being able to provide for my family.” “Having a job, a stable place to live.” “Finding someone to love and someone who loves me.” One woman shares, “I want two dogs and a Mercedes.” Cara laughs. The woman jokingly adds, “What? You wanted us to define success. Well, that’s what success means to me.”

Then Cara gives us the “bad news”: If you are not actively working to direct your life toward those goals, then perhaps you don’t really want them. For example, she says, if you want to save enough money for a down payment on a house but you end up buying shoes and flashy outfits, then maybe you are not really that driven to be a homeowner. You must pursue your goals with real ferocity, she says.

For many of the people in the room, homeownership in aggressively gentrified San Francisco is a pipe dream. Since the rise of the tech industry, housing in the city has become prohibitively expensive, both for owners and for renters. Even so-called low-income housing requires a considerable income, as well as jumping through multiple bureaucratic hoops. Joe acknowledges these difficulties but encourages attendees to overcome them. “If you want to apply,” he says, “I will help you. We’ll work on your applications together.” It might take sixty applications, he says, but eventually one will succeed. 

My ambivalence grows. On one hand, I admire the spirit of enterprise, mutual aid, and community strength in the room. I recognize the importance of self-focused success and of belief in free agency. On the other, I’m sure that my fellow attendees have learned all too well in the course of their lives that, despite their best efforts, the reentry deck is heavily stacked against them. I recall Alessandro de Giorgi’s recently released subjects who attributed their immense difficulties and abject poverty to their own failings rather than to the systemic difficulties that stood in their way.

There is something maddening about people being led to be convinced that their own flaws are the only thing standing between them and their dreams, but that very message is what the so-called prison rehabilitation apparatus, and particularly the parole hearing process, tries to sell people on a regular basis. When my colleague Alessandro de Giorgi interviewed formerly incarcerated people who faced acute misery at the very bottom of Maslow’s hierarchy of needs (no home; no job; no food), he was struck by how much they attributed their poverty, squalor, and dire need to their own flaws. He explains:

Today, whatever minimal services are available to former prisoners are provided mostly through the non-profit, faith-based, semi-private sector, what Jennifer Wolch (1990, 201) has aptly defined as an emergent shadow state: a “para-state apparatus with collective service responsibilities previously shouldered by the public sector, administered outside traditional democratic politics, but yet controlled in both formal and informal ways by the state.” In this framework, highly individualistic and market-friendly solutions are systematically proposed as the only answers to a broad range of structural obstacles faced by formerly incarcerated people: At every turn in their trajectories through the carceral state, from arrest to reentry, criminalized people are taught that success or failure is entirely dependent upon their own efforts.

But here’s the really depressing bit:

Despite the weight of the structural circumstances they face, the participants to this research appear to have internalized the neoliberal narrative of personal responsibility that is constantly inculcated in prisons, rehabilitation centers, and reentry programs (see also Gowan & Whetstone 2012; Miller 2014; Werth 2012, 2016). They wholeheartedly embrace the dominant rhetoric of free choice, as well as hegemonic definitions of social deservingness and undeservingness. 

In other words, de Giorgi’s subjects themselves believe that the ills that they face when they reenter are their own fault, because they don’t deserve better, and do not seem to see any institutional problem here (when he presented this piece at our Carceral Studies Workgroup, he astutely observed that people do have racial critiques a-la-Michelle Alexander, but not an understanding of class.)

In Yesterday’s Monsters I saw this propaganda apparatus at work: people who see their crimes in a broader social context are chastised for “minimizing.” Here’s an example from the book, in which Patricia Krenwinkel, in the 1980s, tries to frame her crime in the context of the sixties:

It came up about ’65. It was the beginning of the marches. It was the beginning of the civil rights movement. It was the beginning of all the movements of the late sixties, which eventually involved entering the war. . . . I found that I couldn’t seem to find my bearings in this world at that time. . . . I couldn’t seem to find where there was any, on my own—seem to find any reinforcement for doing anything other than kind of letting myself go with the time of what at that time was tune-in and drop-out, as Timothy Leary so put it. I mean, it’s hard to say. There were so many components. I was a child of the sixties. And there definitely is something to be said about the sixties. It was an incredible time in the period of our history. It’s something that I look back on and I see, because there’s thousands of people out there that were not much different than myself.

The prosecutor, Stephen Kay, responds with an astounding lack of empathy and contextual comprehension:

I feel that it’s kind of hard for me to accept Miss Krenwinkel’s statement that she was a child of the sixties, and there were thousands of others like her out there in the sixties. I myself went to law school at Berkeley during the time of Mario Savio and could observe some of these children of the sixties. And they characterized themselves as flower children. Their slogan was “make love, not war.” They weren’t into murdering people.

Pretty much any reasonable criminologist you’ll meet will tell you that crime is a combination of personal and environmental factors (including what gets defined as crime.) How much of each gets poured into the mix varies across crimes; this is why talking about both drug use and violent assaults as “crime” can be confusing. But you’d have to be extremely naive to assume that crime doesn’t have an ontological existence (some abolitionists in the 1970s advanced this view), just as you’d have to be pretty obtuse and cruel to assume that crime is entirely a function of personal pathology. If it were, why are poor people overrepresented in the criminal justice apparatus?

A lot of the highfalutin’ critical criminology from the last few years uses the term “neoliberalism” to mean a hypercapitalist, highly privatized environment in which people are expected to take responsibility for themselves, with no welfarist contribution from the state. Kicking people out of prison to fend for themselves without any veritable programming designed to put them on their feet–and with an astonishing paucity of solid vocational training behind bars in preparation for life outside–is a manifestation of this neoliberal ideology, and what’s more–this mentality is successful and pervasive because it dupes not only the professionals who administer it, but also the people who are subjected to it. 

Criminal Justice Discrimination for Unseen Categories: The Case of Mizrachi Jewish Israelis


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The case was not unlike hundreds of others in the Israeli army: a soldier, 18 or 19 years old, left his unit to go home and work for a couple of months, and was charged with absence without leave. His lawyer, a military public defender, reached out to his relatives and their caseworker and gathered a large amount of documents attesting to the family’s poor conditions: a mother with five or six kids living in abject poverty, their utilities cut off for lack of payment. The defendant insisted on testifying and portrayed a distressing (and true) picture of misery and squalor.
Then, the military prosecutor cross-examined the defendant. It turned out that one of his brothers had turned 13, and that the trigger for the absence was the need to finance the brother’s bar mitzvah. Which the family celebrated at a fancy party hall, with a thousand invitees, and new festive outfits, haircuts, and makeup for the family.
The judges were horrified by what they considered a warped sense of priorities. The defense attorney, thrust into a position of cultural translator, tried to rely on multiculturalism but was plagued by the uncomfortable feeling that the judges thought of her as the Jane Goodall of poor defendants from disadvantaged backgrounds, charged with explaining that “this is how ‘they’ are”. She felt that something was very wrong, and that there were ethnic undertones to the situation, but could not pinpoint exactly what was going on.
The defense attorney was me, and the discomfort plagued me throughout my military service and later in my academic career. Haunted by the experience of the judges hectoring the defendant (and many other discomfiting situations I encountered in practice) I devoted my doctoral dissertation to the study of conscientious objectors and deserters (here are my main findings.) The point of departure was that both groups challenged the Israeli military service ethos, under which everyone must serve in the army (this is largely a fiction), but did so from positions on the Israeli socioeconomic ladder: the objectors were members of the Israeli intelligentsia, sons and daughters of academics and journalists, refusing to serve in the army for ideological reasons, and the deserters belonged to disadvantaged and underserved sectors in Israeli society: Mizrachi Jews, immigrants from the former USSR and from Ethiopia, Druze and Bedouians. I found that the two groups posed very different types of threats to the military service ethos, and while both ended up convicted and incarcerated, they were treated quite differently by the authorities: the conscientious objectors were subjected to intellectual sparring aimed at securing the legitimacy of the army’s position, whereas the deserters–by far a larger group–were trivialized and handled via an assembly line of “normal crimes” and almost automatic sentencing. Worse, because of the technicalities of military charges, the deserters–but not the conscientious objectors–were saddled with a criminal record that followed them to civilian life. 
In the course of trying to figure out how the system perceived, framed, and treated young people committing AWOLs, I ran a large-scale regression model, controlling for both legal and extralegal variables. I found that the best predictor of sentence length, to a point, was the soldier’s length of absence for service, which turns out to be a rather arbitrary number, dependent upon the work schedule of the military police officers charged with apprehending deserters. My extralegal variables included the characteristics of the offender. 
Among other things, I wanted to measure whether Mizrachi defendants were treated differently than Ashkenazi defendants, but I hit an obvious snag: there is no easy way to distinguish Mizrachim from Ashkenazim. In the absence of a better solution, I coded the defendants’ ethnicities using last names–an imperfect indicator, given intermarriage and ethnically-neutral Hebrew versions of foreign names. Mizrachi origins did not come out significant in influencing sentencing. But I did observe that, between Mizrachi, Russian, Ethiopian, and Druze defendants, there were fairly few Ashkenazim.
This observation was, in itself, problematic, and hit a fertile Petri dish of theoretical and substantive difficulties. As Yifat Bitton writes, the Mizrachi category is invisible in Israeli law, which gives the establishment plausible deniability of any problem. This invisibility is part and parcel of the criminal justice bureaucracy, which does not code the ethnicity of Jewish suspects and defendants at any step of the criminal process–from complaint to sentencing. Nevertheless, there is a persistent stereotype associating Mizrachim with crime. In a study by Arye Rattner, et al., respondents were presented with photographs of people with Ashkenazi, Mizrachi, and Arab appearances, told that these were photographs of criminals, and invited to offer guesses about their crime. The respondents associated more criminality with the Mizrachi and Arab photographs; they also tended to identify Ashkenazim with white collar crime and Mizrachim with street crime. These tendencies are on par with a rich array of popular culture artifacts supporting the Mizrachi-criminality nexus and the idea that Mizrachim “have trouble with the police.” From Salakh Shabbati through the Gashash skit Offside Story to the Yehuda Barkan Aba Ganoov movies, Ashkenazi figures are associated with the law enforcement/social services complex–as judges, lawyers, and psychologists–whereas Mizrachi figures, even when portrayed as positive, warm, down-to-earth characters, are often associated with legal trouble and criminality (these popular movies, as Ella Shochat explains, tend to be self-aware and reflexive.) This association is also bolstered by Israeli true crime classics, such as those written by Sarah Angel and Yitzhak Drory, which draw heavily on ethnic themes. An exception was Jack Cohen’s portrayal of a police officer in Skhunat Haim, but he portrayed a kind, friendly community police officer in a largely Mizrachi community. Even later depictions of Mizrachim as part of law enforcement, such as in Batya Gur’s Michael Ohayon series or Dror Mishani’s The Missing File, do not portray Mizrachim in positions of power and, when they defy stereotypes, do so in an aware way. A self-aware return to these stereotypes can be found in Kobi Oz’s book Moshe Chuato and the Crow (Oz’s work is rich in critical examination of the Mizrachi-crime stereotype.)
Three questions arise from the presence of these stereotypes:
  1. Is the perception that Mizrachim are overrepresented in Israel’s criminal justice system real? 
  2. If, indeed, Mizrachim are overrepresented, what does it mean? Are there insights here on criminality, criminalization, or both?
  3. How can we measure discrimination in the absence of recording categories?
Starting with the first question, measuring overrepresentation is not easy. Israeli bureaucracy, as Bitton explains, does not track Mizrachi identity, and the only possible tracker for panel data–last names–can be misleading in light of intermarriages and the proliferation of “Hebrewcized” names, which is common among both Ashkenazim and Mizrachim. Coding one’s own data from courtroom observations can also be complicated, as physical appearances can be misleading. What’s left is imputing the defendant’s ethnicity from the characteristics of the case. Building on David Sudnow’s idea of “normal crimes”, according to which legal actors develop a quasi-sociological taxonomy of the common ways in which crime is committed, experienced professionals might already have notions of crimes typically committed by Ashkenazim and Mizrachim. Of course, relying on this indicator reproduces exactly the kind of biases that one is trying to detect, and is therefore a poor solution as well as a compounding factor.
If these problems seem intractable, it’s important to keep in mind that a system that tracks ethnicities is not necessarily better. Think about two obvious comparators: the U.S. system, which thoroughly (and arguably obsessively) tracks Black identity and the Israeli system, which tracks Arabs with at least as much persistence. 
The U.S. system tracks race at every junction. For a category that is presumably a social construct, with no ontological existence, it sure follows the determinations of whoever arrests you; from suspect descriptions, through arrest booking data, through prosecutorial decisionmaking, to trial and sentencing, the distinction black/white is officially recorded throughout the process. Not only that–there’s pressure to track even more: the upshot of Floyd v. City of New York (2012) was that NYPD officers, whose stop and frisk practices indicated a strong tendency toward racial profiling, would now have to produce and record thorough documentation of their stop and frisk activity, complete with the suspects’ races. There are four assumptions underlying this push: that it is possibly to accurately track race (meaning, that race is something that can be “seen”, and that it will be seen in a consistent manner by law enforcement officials); that it is important to track race; that if we track race and find disparate treatment, we can determine the source of the disparities; and that if we do so, we can cure the disparities via police training, “blind” case review, etc etc. None of these assumptions, with the possible exception of the second, are immune to criticism: we know racial determinations can be malleable, and as we’ll see in a bit, even determining that disparities exist doesn’t tell us much about why they happen or what to do to correct them.
To complicate matters, most American scholarship on racial disparities sits at the crux of a dual white/black grid, ignoring the existence and importance of other races. This means that even refined and insightful analyses of institutional racism or overt racist behavior lose important dimensions of the problem; not only are entire ethnic groups completely lost, but the black/white grid leads to a tendency to overfocus on inner city crime, missing out on suburban and rural dimensions. In all fairness to American scholars, it is difficult for them to discuss other categories because state and local systems do not consistently or even systematically track the same ethnicities. When Phil Goodman studied CA prisons, he was told “we don’t do Asian”; when Heather Schoenfeld studied the provenance of prison construction in Florida, she found out that Florida prisons don’t “do” Latino.
Shifting gears to the Israeli example–while Israeli bureaucracy does not track ethnicity of Jews, it obsessively and fairly systematically tracks other identities–again, from suspect descriptions through booking data, etc. Moreover, because of the political situation and the low rate of Jewish-Arab intermarriage, as well as the distinctive characteristics of names, it is easier to correctly code across the Jewish and Arab divide. Over the years, this categorization has enabled Israeli criminologists–primarily Arye Rattner, Gideon Fishman, and Oren Gazal-Ayal–to conduct large-scale quantitative studies showing significant disparities in arrests and sentencing between Jews and Arabs. A qualitative dimension of the disparity, which is difficult to code but easy to perceive, is the imperfect distinction that Israeli law enforcement systematically draws between “criminal” (i.e., domestic) and “security” (i.e., motivated by the Israeli-Palestinian conflict) incidents. While this distinction itself can and should be the subject of critique (how do you characterize stolen Israeli cars that are dismantled in Palestine?), it leads to disparate treatment in the form of bifurcated legal jurisdictions, different procedural and substantive law, segregated incarceration practices, etc. 
What we learn from the American and Israeli examples is that officially tracked categories can teach us about disparities, but they can also be deeply misleading. But even if we are able to observe disparities, where do they come from?
The major pertinent distinction is between criminality and criminalization. In other words, if a particular ethnic group is overrepresented in the criminal justice system, that could either indicate that members of this group commit more crime or that they are being disproportionately targeted by law enforcement (this is what the defendants in Armstrong v. U.S. (1996) tried and failed to prove at the American Supreme Court.) Making this distinction can be tricky for several reasons. First, criminality and criminalization can and do coexist: people can be committing more crimes than their “fair share” AND disproportionately targeted for them (echoing the cliché that stereotypes become stereotypes because they’re true often enough.) Second, any conversation about racial discrimination is mired in political complications and pushes the limits of the sayable in both academic and policymaking circles. Third, and relatedly, there is a tendency to confound the empirical existence of statistical facts with their possible explanations in an essentialist way that discourages people from openly discussing facts if they think the facts have an unsavory explanation.
Let’s talk about the American comparator first. The statistics are stark and obvious, even though no one will candidly discuss them: official statistics misrepresent the share of black defendants in drug crimes; self reports, which are more reliable for this kind of crime, show no significant difference in buying and selling between white and black people. On the other hand, official statistics are much more reliable indicators of violent crime, and black people commit about four times more homicides than their percentage in the population. Because this is a distressing and inconvenient fact, criminologists and sociologists are at pains to discuss drugs, an area in which the disparities can be explained through criminalization (see Michelle Alexander and others), rather than violent crime, in which the disparities reflect differential criminal behavior (for good critiques of this tendency see John Pfaff, James Forman, and Jill Loevy’s works.) 
The outcome of this tendency is that we don’t spend nearly as much time tracking violent crime as we should. It also means that we need to pay attention to confounding variables and what they mean. For example, the racial disparities in bail decisions, which have been the rallying cry to reform bail, go away when one controls for severity of the offense (it’s obvious why: judges use bail schedules, which are like price lists attached to offenses according to severity), and racial disparities in sentencing go away when one controls for class (it’s obvious why: race and class are inexorably linked, a great example of the protean quality of racism in American society.) 
This also means that, despite the fact that black violent crime tends to victimize primarily black people, the question “what about Black-on-Black crime?” becomes a racist trope outside the limits of the sayable. Because of concerns about victimization, over the years Black politicians and police officers have relied on the criminal justice system to try and resolve very real problems in their communities, only to find out that the involvement of law enforcement, such as through stop and frist practices and empowerment of police officers to use force, has led to destructive policies. Nonpunitive victims proposing restorative justice, economic reform, or distributive justice tend to be silenced, and nonpunitive suggestions made by outsiders are seen as unwelcome top-down interventions that receive very little buyout from outsiders. This problem is exacerbated by the nature of the social media conversation about disparities, for reasons I explain here. 
Now, let’s turn to the Israeli comparator. The conversation about Arab on Arab crime is also politically fraught. The Israeli right is at pains to emphasize Arab criminality as inherent and to treat the crime in an essential way, rejecting any responsibility for the squalor, pervasive discrimination, obtuseness, and downright institutional cruelty that might produce crime. The left–including academics–is at pains to silence discussion of the problem (see the pervasive silencing of female left-wing activists sexually harassed by Palestinian activists.) The assumption seems to be that admitting there is a problem is tantamount to making essentialist assumptions about Arab criminality; in some quarters, there is discomfort with the idea of condemning aspects of Arab culture for contributing to patterns of violent crime (e.g., family honor killings). 
What’s interesting is that none of these niceties come from within the Israeli Arab community. In a recent New York Times op-ed, Ayman Odeh, leader of the joint Arab party, explicitly flagged the problem of violent crime rates within the Arab community. Shortly after that, protests broke in Magd-Al-Krum over police inaction regarding violent crime. These protests echo James Forman’s analysis of African American calls for “tough on crime” mentality – a sense of community victimization by intraracial crime and a lack of response from the Jewish Israeli establishment. The dark side of this, of course, is that calling police attention to intra-Arab crime hands control to the police, which will typically resort to essentialist oppressive measures against the Arab population. As in the U.S., efforts by academics and reformers to address the problem head on flail because they are perceived as flagging a problem that people either claim does not exist or ascribe to essentialist characteristics.
What does all this mean for Mizrachi representation in the criminal justice system? If Mizrachim are overrepresented in the criminal defendant population, we have to ask ourselves how much of this is due to criminality and how much due to criminalization. We might find ourselves in a situation similar to that of official markers, where different types of crime manifest in different ways–at least some of the overrepresentation might be because of law enforcement and some might be because of various systemic social conditions that produce criminogenic atmospheres in neglected, disadvantaged communities (and, as in the American example, class and ethnicity might be closely correlated.) Official statistics are, as explained above, to no avail here; victim surveys would also be unhelpful, because there’s no reliable way victims might report the ethnicity of their assailants (because physical appearance is not a good indicator of ethnicity in Israel.) Self-surveys might be best, but would be more reliable in non-stigmatizing offenses (such as personal use or simple possession of marijuana) than in violent crime.
In the military crime context, which started me down this path, absence without leave presents a particularly interesting case. For one thing, official statistics are a very reliable way of determining AWOL, because all units keep records on who is absent from leave. However, the length of absence, which is a strong predictor of punishment, is not a good reflection of severity of the offense. The time between deserting the unit and being apprehended is, more often than not, a function of the military police’s work schedule, as deserter catchers tend to target people in particular neighborhoods on particular dates regardless of the length of their absence. Because enforcement is by neighborhood, deserter catchers might be more focused on targeting high-absence neighborhoods, which might also be low income neighborhoods, because AWOL in the Israeli context is largely predicated by socioeconomic needs. A hidden dimension of this is that “criminality” here is directly a function of means, because well-to-do youngsters can avoid criminalization merely by relying on family and friends to get them out of the service duty in legal ways (e.g., obtaining a private psychologist’s written opinion about mental illness), whereas this option is not available to people from disadvantaged backgrounds, who have to recur to illegality to solve their problem. If so, this might imply that class/wealth mitigates the relationship between ethnicity and AWOL offenses–this doesn’t mean there is no injustice toward Mizrachim happening, but rather that the class-ethnicity nexus is inexorable and that stands in the way of a “clean” statistical analysis. 
The last step is to ask ourselves how to measure disparate sentencing for the people caught in the military justice system. Beside the difficulties with markers such as names or appearances, there is another reason not to use proxies: it doesn’t actually matter what the person’s ethnicity really is (if, indeed, there is such a thing as “real” ethnicity.) Rather, what matters is how that person is perceived by the judicial system.
One way to address these biases is to use experimental design, particularly factorial vignette surveys. The experiment would utilize two imaginary scenarios which are similar in terms of the crime and differ only in the ethnicity of the perpetrator, signaled by a validated marker (such as socioeconomic information about the grandparents’ country of origin.) and examine judicial deliberation, interpretation of factors, and suggested sentences. AWOL would be an ideal test case, because the facts of the incidents tend to be very similar whereas the personal backgrounds might differ. 
Another approach would be to use qualitative approaches. On occasion, overt racism might find its way into judicial decisions (and has definitely appeared in Israeli court decisions): akin to Nicole Gonzalez Van Cleve’s work, in which judges and lawyers ridiculed defendant’s Ebonics, we might find similar things in observations and content analysis. The problem with relying exclusively on this method is that, the more cautious and tactful people are, the less evidence of bias there will be.
Which is why I would like to suggest a mixed-method approach consisting of two steps. The idea behind this one is that what is really behind the judicial approach is what was bothering me throughout all these years: that when judges hear of people’s personal circumstances, they might recognize some lifestyle/preference/family markers that they implicitly (or explicitly) identify as inferior, tasteless, moronic, you name it, and penalize defendants for these cultural markers. Step One would be to create AWOL stories that evoke various such cultural markers and present them to a general population of respondents, asking them to identify scenarios which, to them, “smell” like Mizrachi or Ashkenazi narratives. This phase builds on David Sudnows aforementioned idea of normal crimes–namely, that professionals in the system develop sociological notions of how crimes are typically committed and rank their seriousness accordingly. It may well be that stories such as that of my defendant above “reads” to a general population as a “Mizrachi story”, whereas a story about a young classical musician leaving his unit to play a concert “reads” as an “Ashkenazi story.” Note that this is not to say that the people actually caught in these circumstances are Askhenazim or Mizrachim–just that their stories are perceived as belonging to one group or the other becacuse of their cultural markers. Note also that, by relying on accepted social biases, the researcher is not contributing to the problem s/he is studying, but rather taking a snapshot of social stereotypes.
In Step Two, judicial decisions in AWOL stories would be analyzed to see whether they contain cultural markers that were identified as ethnically appropriate in the previous step, and correlated with sentencing decisions. Again: it doesn’t really matter, and shouldn’t matter, whether the judges associate these stories explicitly (or implicitly) with a particular ethnicity; what this would show is whether a particular perceived “mentality” or “sensibility” is being penalized because it does not correspond to the world of values held by the cops. 
There could be two kinds of critiques of such a study: The first is along the lines of “you say it like it’s a bad thing.” If judges think that their lifestyle critique is legitimate, they would be embracing a disparity in sentencing; they might argue that it is universally commendable to penalize someone for valuing his brother’s lavish bar mitzvah celebration over military service and be more lenient with someone who prioritizes, say, academic studies or helping family members out of poverty in a more readable way. The second is a chicken and egg problem: are “Mizrachi stories” perceived as bad per se, and then associated with Mizrachi defendants, or bad because they are attributed to Mizrachi defendants? And if the ultimate outcome is disparity, why does it matter?
Whichever way we decide to go with this, it is important to accept that methods for measuring disparity are imperfect and open to interpretation. But that doesn’t mean we should despair. This is particularly important in the military justice context because of the considerable importance of military service for mobilization in Israeli society. It’s especially notable that, as military sociologist Yagil Levy observes, the Israeli army has gone through simultaneous processes of demilitarization and remilitarization: Ashkenazi male elites are departing the ranks, shifting from combat to cyber and technology, and as a consequence, other groups, lower in the Israeli socioeconomic hierarchy, fill those voids. If the army is an increasing path for Mizrachi mobility, targeting Mizrachim with harsh consequences for AWOL because of cultural stereotypes is a huge problem. The problem is magnified by the fact that some military criminal records, including AWOL convictions, follow the defendants into civilian life and can seriously derail these efforts at mobilization through service.
It is crucial, however, not to give in to the tendency in some progressive circles to “ratchet up”, i.e., to treat more privileged defendants more harshly. If the roots of the problem are in class or culture, they need to be handled as such. And they are probably both. When criminal justice is the only hammer we have, every problem looks like a nail. 
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Prepared remarks for the Mizrachi Legal Studies Conference, Harvard Law School, Dec. 10-11, 2019

On Looking for Closure from the Criminal Justice System

A day after that horrible 2016 election I was mourning not only what was to become a national nightmare, but also the failure of California’s Prop 62, which would have abolished the death penalty. I was on the radio talking about it and someone asked me what I would say to the victims’ families. I replied, “first of all, all the sympathy and empathy in the world. And second, if you have lost someone you love, surely you wouldn’t want to revisit this suffering–with a real risk that the person is innocent–on anyone else’s family.”

Some people took offense to that, and I got some hate mail, including a fairly alarming death threat. But I still do feel that the notion that not everyone who has lost a loved one to homicide looks for closure in the form of the death penalty or other severe sentence bears repeating.

I’m writing about this as the verdict has come out in a case involving the murder of my colleague and friend Dan Markel. Sigfredo Garcia was found guilty; there’s a hung jury in Katherine Magbanua’s case; and the people many of us think are the real culprits, the Adelsons, have so far completely escaped the clutches of the criminal justice system.

Susan Bandes has a a few papers about the notion of “closure”, as something that the criminal justice system is supposed to deliver and as something people assume they’ll get out of a conviction and a sentence. Her findings dovetail with what I found when working on the Kavanaugh piece and on the Progressive Punitivism piece: the idea that expressing anger through the criminal justice system will bring some form of cathartic relief is unsupported by behavioral science. In working on Yesterday’s Monsters, one of the things that most filled me with sorrow was how victims who are singlemindedly invested in punitive outcomes against those who killed their loved ones (and the Tate family literally wrote the book on this–it’s called Restless Souls) find so little solace in doing so.

I don’t think that nonretributive, nonpunitive victims are more “saintly” than punitive ones. All emotions, including rancor AND forgiveness, are part of the human experience (as we recently found out, if anything, people find it hard to accept that forgiveness is human, and insist on shining some critical light on it).

Dan, who studied retributive justice (here, here, and here), would have found it interesting that what I most wanted from the criminal justice system was an affirmation of the narrative of What Happened. I’m not at all invested in the Adelsons being  arrested, tried, convicted, and incarcerated, let alone executed–that they have to live with themselves strikes me as the worst possible punishment. Not because I’m some sort of saintly, forgiving creature–I simply found out something about myself and what I want from the criminal justice system. And even if we, Dan’s family and friends, ever get it, it won’t bring our friend back.

Perhaps one of the things that most saddens me in America’s punitive victim rights movement is how it offers you the One and Only Way to be an appropriate victim, without allowing you to sit with your own fresh emotions and feelings–grief? anger? frustration? loss?–and process them with yourself, between you and your soul, without a giant machine of a social narrative to run you over. There’s not nearly enough quiet, be it in the right-wing halls of the anti-superpredator chorus or in the left-wing halls of #metoo, for you to sit with yourself and be whoever you are with your own feelings.

Much love and support to Dan’s family and friends today. What is remembered, lives.

Counseling Criminal Clients on Immigration: A Tall Order

In 2010, the Supreme Court decided Padilla v. Kentucky. Padilla, a long-time legal permanent resident of the United States and a Vietnam veteran, was caught with drugs in Kentucky. His lawyer advised him to take a plea deal and told him not to worry about the immigration consequences of the conviction because “he’s been in the country for so long.” Lo and behold, the conviction triggered immigration consequences and Padilla was subject to mandatory deportation.

In a surprising departure from its usual approach to the ineffective assistance of counsel doctrine, the Court found that the defense attorney provided advice that fell beneath the minimum professional requirements and also prejudiced the client, thus failing the test from Strickland v. Washington. Justice Stevens’ opinion explains that immigration consequences of criminal conviction (“collateral” consequences) are often much more serious than the punishment meted out by the criminal justice system. In his words:

We have long recognized that deportation is a particularly severe “penalty”; but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature. . . deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. . . And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. . . . Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult.  

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

All of which is true: deportation is, indeed, a life-altering penalty, and clients must absolutely take it into account when crafting their trial strategy. But where does this leave defense attorneys, who have had to learn an entire new field of law, rife with hypertechnical distinctions, arcane definitions, and jurisdictional messiness?

For the uninitiated, I’ll just say that the terms used by the INA and other immigration legislation do not mean what defense attorneys would be justified in thinking they mean. A “conviction” under the INA is not necessarily a conviction under state law. An “aggravated felony” under the INA need not be aggravated, nor a felony. “Drug crimes”, “domestic violence”, “firearm”, mean very different things in the immigration context than they do under state law. And don’t even get me started on crimes of moral turpitude, the meaning of which is so vague and fluid that immigration courts still refer to a legal dictionary from 1914. Unconvinced? How about a Jamaican citizen and legal permanent US resident busted for having 1.3 oz of marijuana facing deportation and having to take his case all the way to the Supreme Court to clarify whether this counts as an “aggravated felony”? Nor weird enough for you? Then why should it take a certiorary to the Supreme Court to save from deportation a mathematics professor–Green Card holder from Tunisia–caught with a sock containing four orange pills, who got nailed under Kansas law not for the pills, but for possession of the sock?

The point I’m trying to make is not that U.S. immigration law is nuts (that should be obvious), but rather that, in 2010, expecting garden variety defense attorneys to master all this, complete with all the contradictions and differences, was a tall order. Many people in the civil rights community (me included) hailed Padilla for finally drawing attention to the horror that collateral consequences can bring onto a person’s life. But what if Padilla completely backfired, and what we’ve created is an invitation to confusion at best and malpractice at worst?

Consider this: None of the criminal procedure bail-to-jail courses I am familiar with, including mine (this is going to change as of the next time I teach it), includes a crimmigration unit. Not all law schools even offer a crimmigration class, and of course if they do it’s not mandatory. The bar doesn’t test on immigration and certainly not on crimmigration. I did an informal poll among my former students who practice as defense attorneys. Those who work at public defender offices are lucky in that good, conscientious outfits have prioritized hiring immigration experts (this does not dispense with the Padilla requirement, because presumably the ethical responsibility is still the public defender’s, but at least it offers the clients correct advice.) Those who work as private attorneys, or in smaller outfits such as alternate public defender offices in rural places, are left completely in the lurch. They rely on charts and lists such as this one, or they’ll refer the clients to immigration attorneys, but that means that people who are already in dire financial straits incur even more costs. At least one person admitted to me that they pass on cases with immigration consequences because they fear ethical violations and don’t want to do a bad job, and while this reluctance is understandable, one wonders where that leaves clients with immigration issues (who are already among the weakest, most disenfranchised folks in the system) collectively. More commonly (and also disturbing)–my former students admitted their immense discomfort when counseling people not to take good deals, or to go to trial with a very flimsy chance of success, or to take ridiculous deals that are immigration workarounds. They were (understandably) confused about whether advising their client about the least of all evils–taking a suboptimal criminal justice strategy to save them immigrationwise–was ethically clean, even when realistically sound. They also expressed frustration when dealing with ill-informed (at best) or callous (at worst) prosecutors who chide them for asking for something “special” or “preferable” for a client in risk of deportation.

In other words: This is not good.

I have a few thoughts about this. The first is that a solid empirical study of Padilla‘s impact on criminal practice is absolutely essential. This would require a survey of a large group of defense attorneys about how Padilla altered their criminal practice, as well as in-depth interviews with examples. This stuff will have to be triangulated with what we know about criminal representation, to check whether the additional burdens on defense attorneys have resulted in worse access to justice for noncitizen defendants.

The second is that all of us who teach criminal procedure in law schools–I’m going to start this and my chartacourse electronic casebook is available for you to use–have got to revise our curriculum to include a basic crimmigration unit. I’m thinking something between 6-8 hours covering the categorical approach, aggravated felonies, crimes of moral turpitude, some more specific removal categories, and basic situations in which one’s client might interface with the immigration system. In addition, of course, specialty crimmigraiton courses must be offered in every law school that purports to certify ethical defense attorneys for practice. The bar exam, for all its imperfections, can add immigration law to the list of covered subjects, and this would be relatively easy to do in the MBE because it’s federal law.

This is not a perfect solution, given that immigration law changes frequently and is subject to administrative whims (even when not dealing with someone as unhinged as the current occupant of the White House). Because of that, my third thought is that, in offering and taking CLEs, priority must be given to crimmigration updates. If and when we establish a defense bar, crimmigration proficiency has to be prioritized.

Same deal, by the way, for prosecutors: Larry Krasner’s initiative in forming an immigration unit at the D.A.’s office is an essential tool for any prosecutorial outfit that purports to give people what they deserve, rather than indirectly bring about grossly disproportionate punishment. Immigration is not an externality: it is part and parcel of the person’s fate, and has to be treated as such by the D.A.’s office.

If you are a defense attorney and have encountered immigration issues in your criminal practice, I would love to hear from you in the comments.

More Progressive Punitivism: And Today We, the Woke, Will Tell You How to Grieve Your Brother

If you’re anything like me, you might have spared a moment or two from focusing on the impeachment brouhaha to follow the horrific tragedy involving Amber Guyger, the white woman who shot her African American neighbor, Botham Jean, arguing that she mistook his flat for her own. And if you’re anything like me, you were probably surprised, and perhaps moved, to read about Jean’s brother, Brandt, who after Guyger’s conviction and sentence hugged her and expressed forgiveness.

And if you’ve spent any time online in the last day or two, you’ve seen that everyone whose brother was not murdered recently had Opinions about this. As NPR explained, it “sparked a debate.”
I’m in a rush to get a little bit more work done, so I’ll keep this short: There has been a lot of chatter from well-meaning, righteous folks, using all the correct Woke argot, about things we’ve already read in op-eds a thousand times: how forgiveness and restorative justice just give white people a reprieve because they reinforce racial hierarchies and excuse structural inequality yada yada yada. This sort of chatter, right here, is what I argue in both Yesterday’s Monsters and in Progressive Punitivism has been the ultimate paradigm in American criminal justice policy. It doesn’t matter if you’re a fierce punitive right winger or a fierce punitive progressive social justice crusader–you’ve spent decades marinating in a national animus that tells you that everything that is wrong in the world is criminal justice related and that harsh punishment is the only solution. 
It is important to listen to victims. Very. It is important to have all the compassion in the world for victims. And at the same time, first and foremost, our obligation to victims is to help them not be just “victims” as soon as possible. What we are doing with the reification of this punitive perspective is reinforcing the notion that the only appropriate way to deal with social ills is to punish; that to forgive is weak and subservient; and that people should never move on from their own victimization–even if it’s healing TO THEM, even if it helps THEM, even if it is THEIR way of dealing with grief.

Which means that we’re all about listening to victims–but only if they sing the punitive tune we like to hear.

I would humbly suggest to all the self appointed social justice critics of Jean’s big heart that perhaps there isn’t only One Right Way to handle the murder of your sibling, and that perhaps the decent thing to do is to let people grieve and process in whatever way seems appropriate to them. 
I would also suggest that critiquing someone’s admittedly uncommon way of handling his grief as if he doesn’t know what he’s doing is as paternalistic as the hierarchies the commentators supposedly condemn. 

“What About Arab-on-Arab Crime?” Minority Intraracial Violence and How the Left and the Right Both Get It Wrong

As I type this, thousands of Israeli Arab citizens, residents of Magd-al-Crum (an Arab town in the Upper Galilee) are protesting against the Israeli government’s failure to appropriately address violence in Israeli Arab society. Ha’aretz reports:

The day before yesterday two brothers were fatally shot at the town in a browl, and today another young man who was badly injured in the fight, Muhammad Saba, died of his injuries. The protesters are calling out derogatory calls about the police and its crime-fighting abilities, including, “Ardan [the police minister], you’re a coward”, and bearing signs saying, “violence–not in our streets” and “living in peace is already a dream.” Muhammad Baraka, the Chairman of the Supervision Committee for the Arab Population, said at the end of the march that, “if in Magd-al-Crum and [other] Arab towns there won’t be peace–there won’t be peace anywhere. It is not a threat, it is an elementary right for any citizen in a proper society. 

Since the beginning of the year, more than 70 Arab Israeli citizens were murdered throughout the country. Among the marchers were thousands of villagers, as well as citizens from all over the country, mayors, Knesset members and religious leaders. Prominent at the rally were women, who wore black shirts for mourning, called out slogans and marched with their children who carried signs against violence. Even the family members of the two brothers who were murdered in the village, Halil and Ahmed Man’aa, attended the protest.

Homicide victims per 100,000, by religion, 2014-2016 (non-
Jews in red).

The protesters in Magd-al-Crum are not taking a single incident out of proportion–they are responding to a devastating statistical reality. According to a new report from the Knesset’s Center for Research and Information, Israeli Arab citizens are disproportionately represented among homicide victims. Because homicide (like most violent crime) is primarily committed intraracially (this is true in the U.S. as well as in Israel), what this means is that homicide perpetrators are also primarily Arab Israelis.

התפלגות הנאשמים בעבירות רצח לפי דת בין השנים 2014-2016 (מערכת וואלה! NEWS , -)
Homicide defendants by religion, 2014-2016 (non-Jews in red).

The graphs from the report prove the point. Arab Israelis, who constitute about 20% of the Israeli population, are responsible for more than 50% of homicide offenses per annum. This is not the fabricated, misleading product of overenforcement or targeting by Israeli police (many other things are, and we’ll get to it in a moment): it reflects actual bodies on the ground–dead people and the people who shoot them.

Just recently, after the Joint List of Arab parties won a record number of seats in the Knesset. After this electoral triumph, the party leader Ayman Odeh published a wonderful editorial in the New York Times–a testament to his very real qualities of leadership. Many commentators reflected on his blend of idealism and pragmatism and on his willingness to support Gantz as Prime Minister (against Netanyahu) but reluctance to join the government. But as a criminologist, I was more drawn to his important and knowledgeable commentary on the problems that really plague the Israeli Arab population:

Our demands for a shared, more equal future are clear: We seek resources to address violent crime plaguing Arab cities and towns, housing and planning laws that afford people in Arab municipalities the same rights as their Jewish neighbors and greater access for people in Arab municipalities to hospitals. We demand raising pensions for all in Israel so that our elders can live with dignity, and creating and funding a plan to prevent violence against women. 

We seek the legal incorporation of unrecognized — mostly Palestinian Arab — villages and towns that don’t have access to electricity or water. And we insist on resuming direct negotiations between Israelis and Palestinians to reach a peace treaty that ends the occupation and establishes an independent Palestinian state on the basis of the 1967 borders. We call for repealing the nation-state law that declared me, my family and one-fifth of the population to be second-class citizens. It is because over the decades candidates for prime minister have refused to support an agenda for equality that no Arab or Arab-Jewish party has recommended a prime minister since 1992.

What might these resources include? I worry that the facile right-wing and left-wing solutions to Arab-Israeli violence are equally doomed to fail. Let’s start with the left wing. About a year ago I sat in a hotel lobby at the ASC annual meeting and talked to a respected and experienced Israeli criminologist, who told me of his Israeli colleagues’ reluctance to openly discuss Arab crime rates. It’s bad form among left-wing intellectuals to admit that a population that suffers (truly) from overpolicing, overcriminalization, and harsh sentencing, might also be responsible for actual crime on the ground.

This, of course, reminded me of James Forman’s Locking Up Our Own. One of the great strengths of the book is that, by contrast to Michelle Alexander and others to whom racial discrimination seemd to be wholly a product of racist policing, racial profiling, and the war on drugs (note that even Michelle Alexander eventually came around to rejecting this facile explanation, albeit without admitting her own errors), Forman’s protagonists, black politicians and police chiefs, sought what they thought in good faith to be the best for their communities. Why would Burtell Jefferson embrace stop and frisk? Why would black politicians embrace marijuana enforcement and lax gun laws? Because they were attentive to a community that was really–not just in the putrid minds of white supremacists–ravaged with violence. Perpetrated against black people by black people.

What is often lost in the chatter of those who deem the question “what about black-on-black crime?” racist is the deep understanding that the vast majority of the African American population does NOT commit crime, and that these politicians and cops were operating on behalf of their communities, rather than against them. It could even be argued that this oversight, in itself, is a form of racism. But I see this evasion, the fudging of this truth, everywhere. As a shining example of this, take a look at the NAP commission report on the causes of mass incarceration and how it talks about race and violent crimes:

Note: the relative involvement of blacks in these crimes has “declined significantly”. But what about the graph right below this paragraph, which gives you the plain statistics? In the 2000s, when these rates have decreased, black perpetrators are responsible for “only” 50% of the homicides. African Americans constitute about 12% of the population. So, they are overrepresented in the homicide perpetrator population by a factor of four times their percentage in society. Note how my colleagues conveniently avoid mentioning this simple fact, which is literally staring them in the face. Do the numbers for the other violent crimes: also, considerable overrepresentation. And keep in mind that, by contrast to drug offenses (for which we know the official statistics represent differential enforcement, as we know that using and dealing statistics are more or less equal for blacks and whites), for violent crimes official statistics are a far better representation of actual crime commission rates. 
Why are my American colleagues not talking about this? For the same reason that my Israeli colleagues don’t openly talk about Arab-Israeli crime rates. Because to admit the statistical truth that these groups are overrepresented in the violent crime picture is tantamount to appearing as a racist to your colleagues and friends. Many lefties, both in the academic and in the activist milieus, think that talking about crime rates is tantamount to repeating the racist sayings of the Nixon and Reagan eras about “hoodlums” or “superpredators” or to subscribe to some kind of Lombrosian thinking that “this is how these people are.” Nothing could be farther from the truth. There is not a shred of evidence, from the natural OR social sciences, that shows that any racial group is predetermined to commit more crime. 
The answer is much more simple. It’s become fashionable among some of my colleagues (I see this a lot in the books that came out in the last few years) to criticize liberals and democrats for their contributions to “building prison America” and for their paternalistic assumptions about inner-city black life and the black family. But the bottom line is that, study after study of these supposedly paternalistic, well-meaning white criminologists, has shown that criminality and criminalization basically come from the same place: systematic racism. The same forces that lead entire police departments to structure their stop-and-frisk practices to target African American drivers and pedestrians also account for the poverty, neglect, and lack of legitimate opportunities that produce real violent crime. When people have been oppressed, neglected, dehumanized, relegated to second-class-citizen status for generations, is it any wonder that, in the absence of legitimate opportunities they turn to nonlegitimate ones? And what would be racist or paternalistic about admitting this?
Which is where we come to the other side of the political map. What Forman convincingly argues in Locking Up Our Own is that, faced with the real problems of their community, the policymakers and actors he examined grabbed the only tool available to them: criminal justice and law enforcement. Our recurrence to criminal justice comes, argues Forman, from a lack of imagination: we only have a criminal justice hammer in hand, and therefore everything looks like a nail. Law-and-order types, the likes of which are easy to find in both the Israeli and American governments, are likely to jump on the opportunity to police Arab society (or African-American urban streets, which our caselaw tellingly refers to as “high-crime areas”) more aggressively. The outcome of these methods can only be destructive–as it has been, to the detriment to all of us, in the United States. 
The truth is that Arab villages and American inner cities do not suffer exclusively from overenforcement or from underenforcement: they suffer from a poisonous, unhealthy combination of the worst of both. Politicized law enforcement, infused with racist stereotypes, will resort to doing less real policing (actually investigating and effectively preventing serious, violent crime) and more harassment and humiliation of people in the streets over minutia. The outcome is that everyone suffers–today you are the repeated victim of humiliating stop-and-frisk and demeaning encounters with a police officer, and tomorrow you’re at risk of being the innocent victim of a stray bullet. 
Similar things are true for Arab towns and villages. For decades, Arab cities and towns have been shamefully neglected compared with their Jewish counterparts. People don’t have basic infrastructure–I’m talking electricity and water services. Arab schools are in shambles in terms of the infrastructure. Workplace and education discrimination are rampant and ugly. With this package of systemic discrimination comes both underenforcement (Arab lives are seen as less worthwhile and thus less efforts are expended to protect them) and overenforcement (every one of my Arab friends can tell you stories of police abuse that will make you shudder.) Is it any wonder that both crime AND criminalization are serious problems, at the same time? And is it a huge theoretical overreach that both come from the same poisoned well of systemic discrimination? How is throwing more police officers to do more humiliating things going to help the crime rates? How can we ever achieve real change with just law enforcement and no real investment in the enormous socioeconomic gaps that birth crime and discrimination in the first place?
Ayman Odeh strikes me as an extremely thoughtful, visionary leader. I hope he can leverage these qualities to deeply comprehend the conflation of two deep truths: that violent crime in Arab society is a real problem, and that more aggressive law enforcement is a terrible solution. And I hope that some of us, in academia and in policymaking, can come to the same conclusions about American crime and law enforcement. 

Which Juveniles May Be Tried As Adults? CA Supreme Court to Decide

A legislative clash regarding the prosecution of juveniles in adult courts has reached the California Supreme Court. Bob Egelko of the Chron reports:

At issue is whether youths under 16 must be tried in juvenile court, where the maximum sentence is until age 25, or can be sent to adult court and face lengthy prison sentences, including life terms for murder. 

A 2000 ballot measure allowed California prosecutors on their own to charge 14-year-olds as adults for serious crimes. Proposition 57, a state constitutional amendment passed by the voters in November 2016, required prosecutors to request such transfers from a juvenile court judge, who would consider the youth’s history and potential for rehabilitation and the nature of the charges before deciding whether to send the case to adult court. 

The new law, SB1391, passed by the Legislature last year and in effect since January, prohibits adult court prosecution for anyone younger than 16. Prosecutors have challenged the law, arguing that it conflicts with Prop. 57, but four appellate courts had upheld the law before Monday.

To put things in context: Both SB1391 and Prop. 57 aimed to do the same thing – scale back the ridiculous appetite for prosecuting juveniles in adult courts. To put things into perspective, this is a backlash against the “direct filing” policy enacted in 2000, under which the decision to prosecute a juvenile as an adult lay exclusively with prosecutors. Keep in mind that this was five years before the Supreme Court decided Roper v. Simmons, in which they relied on neuroscience and developmental psychology to “rediscover” what we forgot throughout the 1980s and 1990s: children are different than adults, and the prefrontal cortex, which allows for delayed gratification, consideration of consequences, and empathy, continues to grow and develop well into a person’s twenties. As we are reeling from the characterization of children as “superpredators” or “sociopaths”, especially in the racialized context of the crackdown on crack, we are trying to fix things.

The problem is that these two laudable propositions are trying to do things that could be interpreted as at odds with each other. Under Prop 57, the discretion in trying juveniles as adults shifted from prosecutors to judges; under SB1391, juveniles under 16 cannot be tried in adult courts at all. Prosecutors, who are losing ground under both propositions, argue that SB1391 prevents them from presenting the case of, say, a 15-year-old boy at a hearing to determine where to try him.

My hope is that the Supreme Court will rule that these propositions are not actually at odds with each other. SB1391 sets a firm limit of 16 for adult courts; within this firm limit, juveniles–people aged 16 and 17–go through a hearing to determine whether they should be tried as adults. In that sense there is no contradiction. If the Court does find a contradiction, I hope they will resolve it in a similar fashion.

Distress Call: Suicide Rates in California Prisons

A couple of years ago, Michael Bien alerted us at his keynote speech at WSC to an alarming trend: mental illness was on the rise in CA prisons even as they were getting decrowded. He and his lawyers ran the numbers lots of possible ways, and couldn’t find a comprehensive explanation.

And now, we have some distressing data about the suicide rates in CA prisons. The Chron reports:

Last year, an average of three California inmates killed themselves each month in state cells — 34 total suicides in a system with 129,000 inmates. That amounts to an annual rate of 26.3 deaths per 100,000 people, the highest rate in California since at least 2006. 

That figure is higher than the national average for state prisons (20 per 100,000 in 2014) and federal prisons (14.7 in 2018, according to the Washington Post). From 2001 to 2014, according to the Bureau of Justice Statistics, twice as many people killed themselves in California cells than in the entire federal system, which contains more prisons and inmates. There were 448 total suicides in California prisons during that period and 222 in federal prisons. 

The inmate suicide rate has now increased for four straight years in California, and it may rise again in 2019. According to the state, 16 inmates committed suicide during the first six months of this year. Michael Bien, an attorney who represents mentally ill prisoners, said he knows of 10 more inmate suicides since then, for a total of 26 so far in 2019. A state spokeswoman said she couldn’t confirm the 10 recent deaths because “some investigations are still ongoing.”

Read the article in its entirety: it exposes a disturbing pattern of neglect and cover-your-asses mentality and the futility of the ongoing Coleman litigation. What is wrong? and how can we fix it?

The Impeachment of Andrew Johnson

Engraving of Andrew Johnson Impeachment trial
Theodore R. Davis’ illustration of Andrew Johnson’s impeachment trial in the Senate, published in Harper’s Weekly.

Much has been made in the last couple of days of Nixon and Clinton comparisons to, ahem, the current brouhaha. But as I was prepping this slideshow for a virtual talk at Manny’s, I was struck by the surprising similarities between our, ahem, situation, and the context of Andrew Jackson’s impeachment in 1868. A quick read of this lucid and helpful Wikipedia article will bring you up to speed. It’s a rather obscure chapter in American history; as early as 1896, Edmund Ross commented that “little is now known to the public” about it. After Ross’s book, three more books were written about the impeachment trial: David Miller DeWitt’s in 1903, Michael Les Benedict’s in 1999, and David Stewart’s in 2010. What is palpable in all of them (perhaps most so in Stewart’s book) is the context: a bitter, partisan, no-holds-barred fight between Lincoln’s successor, a moderate Southern Republican seeking reconciliation with the South, and Congress, which sought more sanctions against Southern States during Reconstruction.

Johnson’s unbridled anger at Congress will remind you of someone we know: He actively campaigned against Congress, which included a massive speaking tour to “fight traitors in the North.” This campaign backfired spectacularly when the election yielded two Republican houses determined to thwart his agenda, and when he tried to get rid of Edwin Stanton, the Secretary of War he inherited from Lincoln and a staunch Unionist. Congress tried to thwart these efforts by passing the Tenure of Office Act, and Johnson, determined to get rid of Stanton, did so nonetheless. Nine of the eleven articles of impeachment revolved around this effort.

Through the prism of 2019, I can’t help but read this story as that of a small man with no hope of filling the giant shoes of his predecessor, conciliatory and sympathetic to a grim racist heritage, determined to spite anyone placing limitations on his power to appoint and discard people as he chose. It might cheer you up (or not) to learn that the Senate came one vote short of removing him from office. It might also be useful to keep in mind that the failure to secure the additional vote came from four Republicans voting against their own party out of concerns that the evidence presented against Jackson was one-sided–and a good reminder that, in order to garner legitimacy for the impeachment process, it is important to conduct a thorough and objective investigation that might assuage the concerns that some of today’s hesitant Republicans about “witch hunts” and “kangaroo courts.” If Democrats want to secure removal in the senate, which for obvious reasons will be an uphill battle, the process has to be fair and also to be perceived as fair.

Hunger Strike in Calaveras County Jail

Jail
Calaveras County Jail, courtesy
The Calaveras Enterprise.
Chapter 6 of Cheap on Crime dealt with a transition with our perception of inmates–from wards of the state, who need to be clothed and fed and taken care of for the duration of their sentence, to capitalist consumers, whose every need beyond the very bare minimum (and sometimes even the bare minimum!) is monetized. The consumer label, of course, is ironic

Well, the shit finally hit the fan at Calaveras County Jail, where inmates are fed up with the endless monetization of their lives. The Calaveras Enterprise reports:

Seventeen inmates at the Calaveras County Jail have announced their plan to initiate a hunger strike in protest of “outrageous prices” for telephone calls and commissary items including soup and ramen noodles.

“Not only are we afflicted, but our families as well,” the inmates wrote in a letter to the Enterprise. “We have made attempts at every other level to have this situation resolved, to no avail. We are hoping that the public can get involved and know the real situation that is going on here.”

According to the inmates, local calls cost $2.91 for the first minute and 41 cents for each additional minute, while long-distance calls cost only 21 cents per minute. A soup from the jail’s canteen currently costs $1.23. They claim that those prices are far higher than those at other California facilities in which some of them have been detained.

Nineteen-year-old inmate Marc Holocker told the Enterprise on Monday that prices have gone up at the jail since he was incarcerated in May, and that his weekly allowance of $20 provided by his family is no longer sufficient to meet his needs. Outside of the telephone calls to his lawyer, which are free of charge, Holocker no longer calls family members, he said, opting instead to spend his money on food items.

Just recently I posted about how the prison food industry is one small, often unnoticed “piecemeal privatization” that escapes the gaze of the anti-private-prison crowd. The awfulness and meagerness of prison food (nutraloaf anyone?) feeds (no pun intended) directly into the commissary business. The phone call gauging is an ongoing scandal, in CA and elsewhere (and that’s before we even ask hard questions about the calls’ privacy). In Cheap on Crime I bitterly commented that people in prisons and jails who review their institutions on Yelp have drawn the natural conclusions about how they’re being treated, and it seems the people striking in Calaveras are taking to more direct action.