Facing Criminal Charges for Saving Animals, Part I: Open Rescue

Image result for dxe rescues bird
DxE activists with rescued birds. Image courtesy Indybay.

Hello, friends! I’m writing this from the Harvard Animal Law Policy Program, where I am a Visiting Fellow this fall. My plan for this fellowship is to examine the intersection of criminal justice, social movements, and animal rights–in other words, what happens when animal rights activists engaging in open rescue are criminally charged for their actions?

A brief primer: the conditions of confinement experienced by animals–cows, pigs, chickens, turkeys, and others–in factory farms are beyond atrocious, and this is true not only for conventional farms, but also for so-called “humane” or “cage-free” facilities. I have seen footage that has torn my heart apart. In one video, from a chicken farm, I saw emaciated and sick chickens, some of which were barely moving and clearly close to death. The animals trampled upon each other to breathe and carcasses of trampled chickens were clearly visible on the ground. Parts of the animals’ bodies were torn, likely by other animals trying to push through to obtain food and air. There were some indications that the animals, starving and parched, had turned to cannibalizing each other.

These are difficult things to see and experience, partly because opening our eyes and hearts to animal suffering requires seriously reconsidering our consumption habits that contribute to this cruelty. But the first step is, of course, to raise public awareness to these conditions, and there are very few legal avenues to doing so. Because of that, activist organizations turn to a technique called open rescue.

The Animals and Society Institute defines open rescue as “[t]he process of giving aid, rescue, and veterinary treatment to animals confined in typical factory farm living conditions. The immediate aim of the rescuers, who identify themselves even when trespass is necessary, is to save lives, while documenting the animal suffering inherent in large-scale industrialized food production.” This definition has several important components.

First, it is a “rescue” mission, and therefore often involves not only documenting conditions at the farm, but also removing sick and endangered animals. The activists I spoke to explained that they seek to identify animals that might imminently die or suffer irreparable harm unless they are removed from the facility (this, in itself, requires them to do some selection, because all animals subject to factory farm lives are in dire circumstances.) They also do this because working for animal rights can be emotionally devastating and demoralizing, and rescuing animals provides an optimistic element to the experience.

Second, open rescue is “open”. In an article about the need for solidarity and cooperation in the animal rights movement, Taimie Bryant quotes Paul Shapiro, formerly of Compassion over Killing, who explains that, by contrast to other animal liberation actions in which participants “go to great lengths to conceal their identities”, the point of open rescue is to rescue the animals “completely openly… you videotape yourself doing it, you take full responsibility for the fact that you did it and you openly publicize the fact that you did it.” Shapiro argues that the overt nature of the action garners much more sympathy for the activists and focuses attention away from the morality of their own actions (“should we treat them like orderly criminals, or like political prisoners?”) and toward the conditions suffered by the animals.
–> But, as it turns out, you can’t really avoid the question of how to treat the people, even in the face of the serious question how to treat the animals. Entering factory farms to document conditions does not only violate garden-variety penal code provisions against trespass (and, if animals are rescued, larceny), but also a slew of ag-gag laws–laws lobbied for by the agricultural industry prohibiting entry to, and documentation of, animal factory farms.

As an aside, saving animals turns out to be a fairly dangerous proposition in general. During Hurricane Katrina, the Animal Legal Defense Fund composed a memo offering legal guidance for the brave people who broke into abandoned, flooded homes to rescue animals left behind. Even in the face of the heartbreaking story of Snowball— reportedly, the inspiration behind legislation requiring states to come up with animal rescue planning as a condition for FEMA assistance–the law offered (and still offers) little to no protection even for people who rescue the most sympathetic animals of all: domestic pets. Good Samaritan Laws, which protect emergency rescuers from criminal and/or civil liability, either do not refer explicitly to animals or explicitly use the term “person.” Local animal cruelty laws do not go as far as offer coverage for rescuers.

This is especially true for farmed animals: as reported by the Animal Welfare Institute, several states explicitly exclude farmed animals from the definition of “animal” in their animal cruelty laws, so that these laws do not apply to them. Moreover, the aforementioned ag-gag laws were designed specifically to protect agricultural interests, as exemplified in this Intercept story by Glenn Greenwald. So, from the perspective of the farmers, the legislature, and the prosecutors, open rescuers are trespassers (when they step on the premises) and thieves (when they remove animals from the premises.)

My project involves a study of an organization called Direct Action Everywhere (DxE) which, among other avenues, pursues open rescue and documentations. DxE activists use sophisticated technology–drones, virtual reality filming–to present the horrors of factory farms to the public. And, the organization often rescues animals, whom they name and care for with the help of vets and sanctuaries. Such acts have resulted in several criminal cases against activists. Some of these have been dismissed (such as the case against a woman who gave water to thirsty pigs on their way to slaughter) but some are still pending, in California (Sonoma County), Utah, and North Carolina.

The activists facing trial have, so far, declined plea bargains in favor of jury trials, and they plan to argue for a necessity defense.

The next installment in this blog post series will examine the elements and feasibility of relying on a necessity defense in open rescue cases.

Part II
Part III
Part IV
Part V

Film Review: Once Upon a Time in. . . Hollywood

Once Upon a Time in Hollywood

I just came out of a screening of Quentin Tarantino’s new movie Once Upon a Time in. . . Hollywood, which I somewhat dreaded watching as an expert on the cases. My own forthcoming book about the Manson family, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole, has made me somewhat leery of Mansonsploitation, of which there is plenty as far as the eye can see. Because of the tendency to turn the tragedy of the murders (and the tragedy of five decades of incarceration that followed) into a spectacle, I decided early on I don’t want to make a cent off of the book – all royalties are going to an organization that provides parole representation for indigent lifers – and commercial enterprises centered on the story of the murders give me the creeps.

But Tarantino’s movie is not a spectacular recreation of the murders; in fact, it is a wise, almost lyrical, reflection on their cultural legacy. The main protagonists of his story, actor Rick Dalton and his stuntman Cliff Booth, live a reality adjacent to that of Polanski and Tate, Dalton’s next-door neighbors We see both men confronted with turning points in their professional lives: aging out of acting, aging out of stunts, the importance of career, what does excelling in one’s trade/art mean, big questions for thoughtful and flawed people. DiCaprio and Pitt are at the top of their game, both painting human, sympathetic, charismatic characters, and the movie is full of poignant, moving, and important glimpses into their inner worlds without becoming heavyhanded. The gentleness and nuance with which the two act their roles, and with which Tarantino paints their inner feelings, stands in contrast to the Spaghetti Western world that Tarantino has picked as a foil for the story. Truly a masterpiece.

But I watched the movie not just as a movie, but as an American phenomenon – a commentary on events that changed the course of American history, politics, and criminal justice. The movie is set around two axes of real history: the weekend in February in which Manson stops by the Polanski/Tate residence looking for Terry Melcher (the previous occupant) and the infamous weekend in August. Because we all know what happened in real life, a sense of malaise and foreboding accompanies our glimpses of Sharon Tate, wonderfully portrayed by Margot Robbie, as she lives out a hopeful, sunny existence expecting her child.

Much has been made of Robbie’s few speaking lines; I don’t see her role as diminished because she is not fully fleshed out as a character. Rather, her portrayal looks at her as the symbol she would come to embody – the quintessential California victim: a beautiful, famous, white woman about to give birth to a beautiful, famous, white child. Her joie-de-vivre around town–buying a book for her husband, watching herself on film and enjoying the joy she inspires in her fellow moviegoers, her delight in her friends–is palpable. Even Steve McQueen’s commentary about her and Sebring–their enduring friendship after their breakup–does not taint her wholesomeness. We watch and dread, because we know the only thing that can kill pure, untainted good is pure, uncompromising evil. And we brace ourselves.

In Yesterday’s Monsters I go into the way the narrative of the murders has shaped the California correctional landscape: because the crimes came to be seen as sui generis evil, they were the catalyst for the return of the death penalty; for the creation of life without parole; and for the dramatic changes in parole proceedings, including the gubernatorial veto right. In doing so, California fashioned what I call in the book the “extreme punishment trifecta” – its three most extreme punishments have come to be virtually indistinguishable from each other, creating a regime of interminable incarceration.

The reason these crimes were so instrumental as a rhetorical device in these developments is that the narrative around them was largely shaped by Vincent Bugliosi in his classic book Helter Skelter. As many of Bugliosi’s readers will attest, the book very intently and aggressively promotes a narrative of the crimes as bizarre and apocalyptic, focusing on Manson’s indoctrination of his followers into believing in a race war and helping jump-start it. While this story is not wrong, it is a truth that obscures other truths. The Manson family was a cult, though it was not understood as such until the mid-1970s, when our awareness of brainwashing and cults arose in the context of similar groups. And as a cult, it exploited–physically, psychologically, and sexually–its members, most of them adolescent girls. The crime also had the markings of an “ordinary criminals” crime, with a drug-deal-gone-wrong background (the narrative that Jeff Guinn exposes in his excellent Manson biography). For legal reasons, Bugliosi had to highlight the bizarre and obscure the ordinary. It’s quite possible that a similar crime tried today, through the prism of #metoo sensibilities, would see the girls as victims, not as perpetrators.

What is unique about Tarantino’s portrayal of the Manson family is that he manages to pack into the movie complexity and ambiguity. Manson appears in a brief scene in the middle of the movie, and is unremarkable, almost pathetic. We meet the rest of the family through the eyes of Cliff, the stuntman, who gives one of the girls a ride to Spahn Ranch. There, he encounters a scene that is at once pathetic and menacing. That not all is well at the ranch is obvious to Cliff, and he proceeds to check whether his old friend from his moviemaking days, George Spahn, is well. He is not entirely convinced that is the case, and has some disturbing run-ins with the scrawny, suspicious teenagers around him. The only violent incident happens with “Clem” (Steve Grogan), who is portrayed as small change. Tex Watson is portrayed as menacing and dangerous, but strikes out with Cliff. And throughout the whole scene, Tarantino creates a wonderful sense of duality between the young hippies’ quasi-military readiness and guardedness against the stranger and the obvious squalor in which they live. You are left with the feeling that Tarantino, as opposed to Bugliosi, knows that you are an adult, and let’s you form your own mind about these people and the danger they portend.

Even the eventual depiction of the disturbing night packs some surprises. It’s hard to fully describe them without ruining some classic Tarantino moments, which I might get to at a later time, after many more of you will have seen the film. But I will mention that, even in the most threatening and scary moments leading up to the home invasion, there are moments of “ordinary criminals”, moments of “cult”, and moments of “Helter Skelter”, though the latter are subdued and barely hinted at. Again, the viewers are treated with respect, left with autonomy to form their own impressions of the group, and free to comprehend the murders through the eyes of complex, adult fictional characters. Laudable choices all around.

Finally, Tarantino and the entire crew is to be congratulated for making a movie that creates a perfect sense of time and place. The songs, the design, the cars, the atomsphere, are so alive around the characters that they provide a solid presence for understanding the crimes. The chaos of the sixties, the class clashes, the unrealness of the movie industry and its dark underbelly, do not, of course, justify violence, but they place it in the context of the late sixties–a time and place so fundamental to the real and fictional events and so lacking from the parole hearings I analyze in Yesterday’s Monsters. As I explain in the book, any effort by the inmates (by now people in their sixties, seventies, and eighties, very different from the squalid teenagers in the movie) to place their actions in the context of time and place is disparaged by the parole board as an effort to “minimize” accountability and as “lack of insight” about their culpability; Tarantino’s movie is a reminder that these particular crimes could only have happened in this particular time and place. It is not an excuse; it is a deep understanding that matters for a culture still obsessed with the crimes and their aftermath.

In his book about the cultural impact of the Manson murders, Jeffrey Melnick critically analyzes the assertion that Manson “killed the Sixties”. Tarantino has brought the Sixties back to life as never before, and you will not know exactly how until you watch this gem of a movie. And after you see it, let’s talk about it.

Assessing the Dangerousness of Redball Criminals: Two Israel Examples

My forthcoming book Yesterday’s Monsters examines the parole hearings of the Manson Family, who have been consistently denied parole for decades. A key issue in the book is the notoriety of the murders and the prevalence of a narrative about them, which I call “the Helter Skelter narrative”, that portrays the crimes as bizarre, sui generis occurrences. You’ll have to read the book to see how the Board of Parole Hearings handles these cases. For now, since I’m visiting Israel for a few weeks, here are two stories of local “redball criminals” and how their requests for parole and vacation have been handled.

A few words about prison sentences for murder in Israel: Until a recent amendment, the only sentence possible for murder was life in prison. The court did not announce a minimum time like in the U.S. (such as “twenty-five to life”); it merely announced “life”. The authority to decide how long “life” lay solely in the hands of the President of Israel–a role he inherited from the British High Commissioner prior to Israeli independence. Life prisoners submitted a request to set the length of their prison sentence, and a special department at the President’s office made a recommendation. From then on the sentence would be treated as a finite sentence for release purposes, whose clock starts ticking after the inmate has served two thirds of the sentence; for example, if the President set the sentence at, say, thirty years, the prisoner would come up for parole after twenty years. There’s been a recent amendment that Americanizes the scheme of homicide offenses in Israel, but it’s not particularly relevant to this post.[1]

Another important note pertains to vacations. Under the Prison Ordinance and relevant regulations, prisoners are eligible for short vacations from prison. These depend on the prisoner’s level of dangerousness, the purpose for the vacation (an important family event, such as a funeral or an important birthday), and the time the prisoner has spent behind bars. Some of my lifer clients from the late 1990s have been receiving vacations regularly.

In 1995, as not only Israeli readers know, Prime Minister Yitzhak Rabin was murdered by political assassin Yigal Amir. The murder shook the country to the core, and as we all know, irrevocably changed the course of history by derailing the peace process, assisting Netanyahu in ascending to the Prime Minister role, and legitimizing hate campaigns against Israeli Arab citizens, Palestinian residents, and the Israeli left-wing. But closer to the events themselves, there was still some horror and shock about the crime, which led the Knesset to legislate a special personal law, colloquially known as the “Yigal Amir Law”: a law that binds the discretion of the parole board in cases of people who murder the Prime Minister for political-ideological reasons. There’s only one such person (so far), and the law was specifically tailored to address his particular case. The President may theoretically disregard the Board’s legally-mandated “recommendation” not to release Amir, and in these times it’s not completely farfetched to imagine a President who might do so, but disincentives abound (the committee is chaired by a Justice of the Israel Supreme Court.)

Interestingly, some members of Meretz, the left-wing, civil-rights political party, abstained from the vote. They explained that creating a special, personal law for just one person was a violation of the principle of legality, no matter who the person was. Others expressed similar trepidation, but thought this was such a rare and unique case that there was no concern about a snowball effect (things have gone so seriously awry in the civil rights arena in Israel to the point that I’m no longer sure this is true.)

Another famous case involved the horrific murder of Asaf Shtierman in 1996, which remained unsolved until 2000. When a woman named Sandrine Ben-David reported severe domestic violence incidents to the police, the investigation revealed that her young husband, Rei Horev, and two young women, Sigalit Heimovitch and Lihi Gluzman, were responsible for the murder. Horev, the main instigator (for psychopathic reasons that are very hard to undestand – Shtierman was a stranger to him), received life in prison, and has been behind bars for nearly twenty years. He is, according to reports, a model prisoner with a clean disciplinary record, entrusted with responsibilities such as working on a computer. When Horev’s son with Ben-David turned 13, Horev received a short vacation from prison to attend his Bar Mitzvah (under heavy Prison Authority guard.) However, when Horev’s son enlisted in the army, Horev’s request for a vacation was denied. The judge who chaired the committee wrote a decision that reminded me a lot of the Californian equivalent Board’s vague justifications to keep the Manson Family behind bars: “According to his employers in prison, he is a responsible, essential prisoner, devoted to work, contributing, serious, and meaningful. . . he participates in educational activities and has successfully completed several therapeutic group. His psychological assessment diagnosed a significant tendency to avoid negative feelings, aggressive urges, and to see the world in an overly optimistic way. This mechanism serves him now, but might make things difficult for him when he confronts situations that evoke strong feelings. Despite a high level of insight about his past, he is lacking a deep understanding about the destructive dynamics of his past close relationships, which could be a source of difficulty in the future.”

A couple of days ago I posted about convicted rapist-murderer Shlomo Haliwa, who gets out in 2024; Horev, if he receives the customary reduction of a third of his sentence ,gets out in 2025. Who is to say which of these men is or is not dangerous? Anyone who’s heard Haliwa on tape explaining to crime documentary producers that he “likes to fuck” and that all his “relationships” were consensual with girls who “wanted them” can conclude that this is not someone who’s shown a smidgeon of insight. When he gets out, he will be 75 years old, and is still a strong, healthy man, probably as easily capable of overpowering and coercing a woman as he did in his thirties. Horev, on the other hand, has expressed remorse for his horrific crime; the extent to which he can be believed is debatable.

These cases raise the same difficulties that Yesterday’s Monsters raise about the Manson Family inmates. To what extent does the notoriety of a case impact decisions to release? And is it a legitimate consideration? Is it legitimate to factor the public’s distaste for a particular murderer in decisions to deny parole or vacations? And is there a proper measure of whether the distaste is justified? Redball crimes matter a lot in creating public policy and fueling the public’s imagination about crime, but they also feature real victims and real perpetrators who are, after all, just people.

Yesterday’s Monsters comes out early 2020 from UC Press.

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[1] It is, however, relevant to some of my other work: I’ve been studying American influences on Israeli criminal justice.

Wrongful Conviction Journalism: Lights and Shadows

I’ve just finished watching the second season of an Israeli documentary series titled Shadow of Truth, which takes on a series of chilling rape-murders that occurred along one of Israel’s main highways in the 1970s and 1980s. Hitchhiking was very common at the time, especially among young students and soldiers, and more than ten women met violent deaths along the highway.

The most famous of these cases was the murder of the soldier Rachel Heller, which the police pinned on a young man called Amos Baranes. Baranes was subjected to the third degree (three consecutive sleepless nights, untold violence, a fabricated reconstruction of the murder) and gave a false confession, and fought for his innocence ever since. He was released after eight years amidst grave doubts about his guilt, and later acquitted in a special hearing because of the immense police misconduct.

But Heller’s murder was only one among many cases that shared forensic findings about the method of committing the crime. Importantly, at the time, each of these murder cases was investigated separately; the concept of a serial killer arrived fairly late to American criminology as well (famously popularized by FBI agent Robert Ressler, whose story is fictionalized and stylized in Mindhunter) and even later to Israel, where most people would doubt the possibility of such monstrosities happening in a small country with a small population. It was only in the late 1980s that a retired police officer, Ezra Goldberg, theorized that all the murders could be attributed to one perpetrator.

The series points the finger at convicted rapist Shlomo Haliwa, serving a life sentence for one of the murders in the series, the murder of soldier Orly Dubi. It’s an attractive theory. Haliwa was convicted of murdering Dubi while on vacation from prison, where he was serving a long sentence for five rapes (American readers may be incredulous that anyone, let alone a dangerous, violent rapist was let out on vacation; Israeli prison sentences allow for vacations, and those were different times. I doubt someone like that would receive a vacation today.) There is some circumstantial, inconclusive-but-disturbing evidence tying him to at least two other murders (including a full confession, albeit one extracted by force by the same team that tortured the false confession out of Baranes.) His prisoner file is missing, so it is impossible to establish whether he was on leave from prison on the nights of some of the murders. He is heard on the series, speaking by phone, threatening the show’s producers, which in itself is not evidence of guilt (it is, however, evidence of being a terrifyingly violent, unpleasant, and psychopathic man, and good reason to be concerned about his impending release in 2024; he will be 75 years old, still healthy, tall, and broad, and still a potential danger to women, I suspect.)

I’m torn on whether I find the effort to pin the murders on Haliwa convincing, and arguably journalists should not be tasked with the same care that the criminal justice system should exercise when pointing fingers. But the series made me think about the broader context of these shows. The 1980s and 1990s were characterized by cop-and-prosecutor shows that tended to be on the side of law enforcement. In a “the making of” featurette about Law and Order, the producers plainly admit that the concept of the show was born of the notion that their audience was getting more conservative and more punitive and would be receptive to this messaging. It was only later, in the late 2000s, that we started experiencing the success of wrongful conviction shows like Serial and Making a Murderer. My unsubstantiated suspicion is that these shows emerged at a time in which the public was perceived as losing its appetite for mass incarceration, and gaining more distaste with police violence, prosecutorial corruption, and the system’s chronic inability to admit its mistakes (the broader context of recession-era politics probably also plays a part.)

The emergence of shows like this in Israel is understandable. It’s not a coincidence that Shadow of Truth focused on the two most famous cases of miscarriage of justice in Israel–the wrongful convictions of Baranes and of Roman Zadorov (who is still in prison doing time for a murder that most people who know what they’re talking about are certain he did not commit.) In Israel, too, there’s a sense of disgust with police use of force (especially against minorities) and police corruption; as I write this, members of the Ethiopian Israeli community are protesting the police shooting of young Solomon Tekka, expressing frustration and anger for decades of mistreatment by police. Cases of police officers receiving bribes and exacting sexual favors are unfortunately not rare (these developments really echo what’s been happening in the American discourse lately.) On a less outrageous basis, Israeli citizens are exposed to rudeness, indifference, and lack of professionalism from police officers on a daily basis, starting with traffic stops (what goes on here echoes the findings of Chuck Epp, Steve Maynard-Moody and Don Haider-Markel in Pulled Over.)

At the end of Shadow of Truth, we are told that the police investigation into the highway murders of the 1970s has been reopened. Similar legal developments happened after Serial and Making a Murderer. That, in itself, is great news from my perspective. I’ll take justice over finality any day. The problem is that journalists do not select their topics at random. Documentary series are artworks that seek public viewership, headlines, and ratings. Journalists pick cases that they think will evoke outrage and sympathy: young and attractive victims, heinous violence, and a sympathetic possibly-wrongfully-convicted mark. When a case like this is picked for journalistic attention and sparks a renewed police investigation, how many similar injustices are left in the dark? The history of Israeli law enforcement flaws and corruption raises at least two possibilities for broader examination. For decades, the national Pathological Institute (the equivalent of the coroner’s office) was run by Yehuda Hiss, whose corruption and unprofessionalism was mired in scandals ranging from lying to trading organs. Why have we not reopened every single case he meddled with? Also, since we now know that at least two confessions–by Baranes and Haliwa–were extracted using horrifically coercive means by Shaul Marcus, who was at the time a high-ranking police investigator, why are we not reopening every single case that his violent hand might have touched? I worry about the vast number of miscarriages of justice that we miss when journalists shine a light on cases that they choose for celebrity reasons, rather than through systematic investigation. It is not the journalists’ job, of course, to conduct such investigations. Which is precisely why we shouldn’t be waiting for them to shine the light on injustice for us; the criminal justice system has to do better on its own initiative.

Yesterday’s Monsters Coming Early 2020

I’m very excited to let you know that Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole is already in production and coming out early 2020 from the University of California Press. You are welcome to like the book’s Facebook page for news, updates, links to related media, and book release events. I very much hope that the book will open a window into the little-known world of the California parole process and look forward to the conversations that will ensue.

When Cheap on Crime Becomes Mainstream: Santa Clara to Divert Nonviolent Drug Offenders

Chapter 3 of Cheap on Crime opens with a 2009 headline from the San Francisco Chronicle, which reads, “Many Contra Costa Crooks Won’t Be Prosecuted.” Who are said “crooks”? D.A. Kochly explains: “[B]eginning May 4, his office will no longer prosecute felony drug cases involving smaller amounts of narcotics. That means anyone caught with less than a gram of methamphetamine or cocaine, less than 0.5 grams of heroin and fewer than five pills of ecstasy, OxyContin or Vicodin won’t be charged.”
This was viewed with suspicion and scorn at the time; Kochly lamented the lack of funds and said, “We had to make very, very difficult choices, and we had to try to prioritize things. There are no good choices to be made here. . . It’s trying to choose the lesser of certain evils in deciding what we can and cannot do.”

Compare that to today’s headline: The Mercury News informs us that “Santa Clara County DA will stop filing charges in most minor drug cases.” The policy is basically the same as the one from Contra Costa ten years ago: “the aim of the change is to keep one- and two-time offenders out of the court system, diverting them instead to drug treatment programs and reserving bandwidth for more serious addiction cases that cross over to become community nuisances or public-safety concerns.” Again, costs are cited, in the grand humonetarian fashion: “the policy shift also cuts out an exponentially larger number of corresponding court dates, potential bench warrants and jail stays and thousands of work hours for judges, attorneys and police officers. All of those efforts go to address offenders that everyone agrees might have addiction issues but do not pose a threat to public safety.”

Same news, different spin. What used to be regarded with scorn at the very beginning of the Cheap on Crime era has now gone mainstream. Note how easy and acceptable (and non-radical!) it is for a prosecutor (!) to cite cost expenses (!) as a justification for diverting nonviolent offenders into a public health treatment silo.

In many ways, this is the coda to Cheap on Crime: the ultimate success of the cost-centered rhetoric in normalizing the decarceration of nonviolent offenders. Years after recovering from the recession, the thinking patterns formed during the recession are here: marijuana should be legalized for revenue and so that our resources can be spent on the “real” offenders; treatment and prevention are cheaper than punishment; crime rates are low, and therefore there is no risk to public safety. It’s nice to see this trend continue to play out on the state level, at the heart of the consensus, while War on Drugs dinosaurs rage in the White House.

Is Race “Baked” into the Criminal Justice System?

Today, San Francisco D.A. George Gascón announced a new program: race-blind prosecutions, aided by machine learning. The San Francisco Chronicle reports:

“When I first became district attorney, one concern was to understand how the criminal justice system impacts people of color disproportionately,” Gascón said. “I wanted to see if there was anything in our practice that we could improve.”
The district attorney decided to reach out to the Stanford Computational Policy Lab, which already had many of the tools available to help create the artificial intelligence.
Racial disparities in San Francisco’s criminal justice system are driven by downstream factors like arrests, Gascón said, and his office tries not to exacerbate the disparities. Even so, he wanted to remove any possibility for implicit bias in his office to ensure “the purity of the decision isn’t questionable.”
The system, Gascón said, will create a model that other prosecuting agencies around the country can use, and Stanford has agreed to publicly release the technology at no cost.
The technology organizes a police report and automatically redacts the race of the parties involved in the incident. It also scrubs the names of officers, witnesses and suspects, along with locations and neighborhoods that could suggest a person’s race.
In the complicated world of artificial intelligence, the technology is relatively simple, said Alex Chohlas-Wood, deputy director of the Stanford Computational Policy Lab. It uses pattern recognition and Natural English Processing to identify which words in a police report should be redacted and fills them in with a general description.
The digital tool uses machine learning, so it can make decisions without human intervention.
The district attorney’s office will start using the tool in the 80% of cases that come in through general intake. Cases like homicides, domestic violence and other specialized units will not immediately use the technology.
During the first review process of general intake cases, prosecutors do not look at evidence like videos or pictures that would reveal a person’s race. The case then goes to a second review where a prosecutor makes a decision on whether the evidence is strong enough to move forward with charges.
If a prosecutor decides to reverse a charging decision between the first and second review, when they will likely learn the race of the parties, he or she will have to document the reason why it’s justified in a report, Gascón said.
The tool, he said, will help streamline charging decisions by expediting the ability to review police reports and quickly analyze the information.

The New York Times adds:

The only information prosecutors will initially have access to is an officer’s incident report, which generally includes the reason someone was stopped before an arrest, evidence that a crime was committed, witness statements and anything a suspect might say.
Only after assistant district attorneys make a preliminary decision about charges would they be permitted to access other information, including race and other demographic details, body camera footage and photos. In each case, regardless of the initial charging determination, all of the evidence will ultimately be reviewed, prosecutors said. If a prosecutor comes to a different conclusion between the first and second steps, that will be recorded and compared to historical data. Prosecutors will also be required to explain what changed their minds, and those patterns will be studied, the office said.

The decision to try and examine whether biases are at the root of differential charging rates for different races is laudable, but I suspect it will do far better at catching explicit than implicit bias. Here’s why.

It’s true that, in some cases, race works in isolation to create a mental picture of the situation. This is proven by the classic audit study, in which identical resumés are submitted for a job, with only the name of the applicant changed (“Lakisha” or “Jamal” versus “Emily” or “Greg”). There are now enough studies of this ilk to show that the name alone impacts employability. But note that the application does not reveal the applicant’s race; the name implies the applicant’s race. Similarly, in a race-blind prosecution, even with the names and locations removed, prosecutors are likely to implicitly (or explicitly) deduce the race of the suspect from the circumstances of the offense.

The reason for this is simple. As research has shown since the 1960s, part of acquiring professional expertise as a prosecutor or a defense attorney consists of developing sociological “scripts” of the typical ways in which crimes are committed. This means, for example, that particular types of burglaries might suggest to a criminal lawyer that the suspect is probably addicted to drugs, and that particular scenarios of sexual assault might suggest to a prosecutor that the victim is probably a sex worker.

It is not difficult to imagine race playing out as one of the factors an experienced prosecutor or public defender will deduce from ostensibly race-blind facts. To illustrate this, think about the 100:1 crack/powder cocaine sentencing disparity (now diminished to 18:1 through the Fair Sentencing Act). One of the main arguments against the disparity was that the seemingly neutral rule, which simply targeted the type of drugs used, had the effect of disadvantaging African American defendants. Why? because people of different races had different patterns of using drugs. The association of African Americans with crack cocaine and white Americans with powder cocaine is not just stereotypical–it is factually true often enough that a stereotype can confidently build: in an extensive study of four cohorts (2009–2012) of the National Survey on Drug Use and Health (NSDUH) in all 50 states and District of Columbia, “[w]hile blacks were at particularly low odds for powder cocaine use (AOR=0.33, , before controlling for other factors, blacks were actually at increased risk for crack use.” Use fancy Stanford computers to remove race and location of drug using suspects, and experienced San Francisco prosecutors will still assume that the crack user is black and the powder user is white–and what’s more, most of the time they will be correct.


This ability to imply a person’s race from the circumstances surrounding the crime goes beyond cocaine, though it does not always reflect reality. People often assume that serial killers are predominantly white (they’re wrong in the sense that African Americans are overrepresented by a factor of 2:1 among serial killers; but if you run into a serial killer in an alley, he’s still more likely to be white, simply because most Americans are white). People often assume that child molesters are predominantly white and that rapists are predominantly black (the realities are much more complicated). Marijuana arrests tend to target black neighborhoods and populations, though the realities of who uses marijuana are much more complicated. It is unlikely that a prosecutor will assume that a gang shooting over a drug dispute involves white suspects, and she will often enough (but not always) be right.  In other words, racialized perceptions are baked into the sociological narratives of crime that the culture feeds us, and prosecutors and defense attorneys are no exception. Assumptions about the race of crime perpetrators (and, for that matter, victims) are not always borne by empirical evidence, but they are true often enough that prosecutors will start making generalizations, and redacted names are not going to make these generalizations go away.

Moreover, redacting neighborhoods is not going to make much of a difference, because county prosecutors practice law in an area they are already familiar with from previous cases. Go to a D.A.’s office in any town and ask where street crimes are predominantly committed. Odds are the prosecutors will be able to pinpoint particular neighborhoods in which things happen–that’s how the police addresses “hot spots“, and that’s how street-based sex workers know where they might find clients and where police raids are likely to occur. Criminal procedure students know that a “high crime area”, which has special rules about “reasonable suspicion”, is often a high-arrest area, a high-poverty area, and a high-people-of-color area (this is partly why underenforcement and overenforcement often go together). In the context of San Francisco, the fancy Stanford machine can remove the location of a gang shooting from the facts of the case, and still the D.A.’s office is unlikely to assume that it happened in Noe Valley or Pacific Heights.

In short, race, racialized behavior, and racialized assumptions about behavior are so deeply embedded into the American fabric that it is hard to imagine any process that strips race and location from a scenario without eliminating the basic facts of the scenario. The very facts and circumstances of a crime form a picture in the prosecutor’s mind, and because prosecutors live in our very racialized society and are, like all of us, a product of our very racialized culture, the picture is likely to include race. Not because anyone is racist–or at least, no more or less racist than the rest of us–but because that is how heuristics and biases work. Whether this is an interesting aspect of cultural diversity or an unfortunate byproduct of differential opportunity structures depends on the context. But what it means is that this well-intended measure will not capture, or remedy, the natural tendency to make racial assumptions.

Madam Secretary and How Things Could Be: Democracts, What Is your Criminal Justice Agenda?

The wonderful CBS series Madam Secretary, whose fifth season is out, features Téa Leoni as Elizabeth McCord, a Secretary of State in a parallel universe in which responsible adults with nonpartisan interests are at the national helm. It is almost difficult to watch the series against the backdrop of the news; episodes in which the State Department team races to find humanitarian solutions for climate refugees collide with the Trump Administration rescinding English, soccer, and legal aid for migrant children in government custody. In real life, throwbacks to Nixon and Reagan proliferate, dragging us kicking and screaming into the stone age in which the war on drugs was thought to be a good idea; on the show we sign nuclear weapon treaties and command the respect of the civilized world.

Among the many interesting things about the show is its verisimilitude in the face of changing political realities. A moderate Republican President uncomfortable with the isolationist, MAGA-like foreign policy espoused by his challenger decides to run as an independent… and wins. Demographically and ideologically diverse staffer teams come together to find creative solutions for international problems. Lurid scandals do not control the news cycle (or, if they do, we don’t see them.) Consummate professionals in the public eye have happy, functional marriages with happy, well-adjusted children. Oh, and a series of real-life reasonable, accomplished, experienced Secretaries of State–Madeline Albright, Colin Powell, Hillary Clinton–GUEST STAR in one of the episodes. In short, if you want to escape to an alternative universe, this show’s got your number.

Here’s what is interesting for our purposes: the Secretary of State (an accomplished, well-informed middle-class white woman from an academic background, with a strong record of achievements at the federal level–sound familiar?) prepares to run for President, she is asked by her campaign advisor, Mike B., to turn her gaze toward domestic issues. What’s the first one that comes to mind for her? Criminal justice reform! Inspired by the plight of a poor single mother she meets while on jury duty, Secretary McCord applies her international perspective to U.S. prisons, reminding Mike B. (and the audience) that we have plenty of work to do in that department before we join the civilized world.

If Madam Secretary is the reality we aspire to create on Nov. 2020, what do the Democrat challengers think about criminal justice reform? I’ve started to look at the candidates’ websites and it seems like the criminal justice aspects of the campaigns need to be better fleshed out. I’m not particularly surprised these read like clichés from a public protest; after all, with the laudable and welcome public interest in criminal justice reform came oversimplification and misinformation, and these candidates are trying to appeal to people who think they understand mass incarceration and how to end it. Also, there’s only so much that the federal government can do–most of the U.S. incarceration problem, together with access to court, bail, policing, and reentry policies, happens at the state and local levels. But even with the fairly slim issue lists we do have, a few themes emerge:

Everyone Loves Legalized Marijuana. Pretty much all platforms advocate for marijuana legalization, for the classic Cheap on Crime/bifurcation reason: “let’s stop criminalizing people for smoking a joint so we can spend our energies on the ‘real’ criminals.” Plenty of chatter, also, about “ending the war on drugs”; particularly well informed candidates, like Bernie Sanders, also argues for ending civil asset forfeiture. Nobody, however, talks about legalizing other drugs. The opioid epidemic is discussed as a health problem, but there are no calls for legalization in that respect–only for finding treatment options.

Sentencing Reform. A call to end mandatory minimums and, more generally, pursue “sentencing reform.” These can be seen as a continuation of the Obama-Trump trend (this kind of bipartisan reform was the least disrupted Obama-era trend). Not a single peep from anyone except Buttigieg about death penalty abolition.

End Private Prisons. The candidates uniformly call for a divestment from private prisons, echoing Obama’s largely-symbolic move to stop domestic incarceration of federal prisoners in private facilities. Not a word about the much wider practice of detaining immigrants in private facilities.

Tough on Criminals We Dislike. Democratic candidates are very clear on the sympathies their constituents have for people caught in the system, and therefore know that these sympathies do not extend to certain categories of criminals: cops who employ excessive force, domestic violence perpetrators, and white mass shooters. With respect to these categories, the reform call is reversed: candidates call for strengthening the Violence Against Women Act, to address police reform so that shootings are avoided, and to push for gun control reforms. Warren emphasizes the need to hold white collar criminals accountable.

I am curious to see whether these folks’ fictional counterpart, Elizabeth McCord (will she run as an independent or as a Republican? The show shies away from the possibility that she might become a Democrat) adopts similar principles. It seems like we’ve pretty much settled on what the candidates imagine that their constituents want, probably with considerable justification.

Cruelty to Migrant Kids Is Not “Cheap on Crime”

The Washington Post reports this absolutely heartbreaking piece of news:

The Trump administration is canceling English classes, recreational programs and legal aid for unaccompanied minors staying in federal migrant shelters nationwide, saying the immigration influx at the southern border has created critical budget pressures. 

The Office of Refugee Resettlement has begun discontinuing the funding stream for activities — including soccer — that have been deemed “not directly necessary for the protection of life and safety, including education services, legal services, and recreation,” said U.S. Health and Human Services spokesman Mark Weber.

Since these days things that used to solidly reside in the “needless to say” category need to be explicitly said, I’ll open with this: This is monstrous, gratuitous cruelty. And what is the justification?

Federal officials have warned Congress that they are facing “a dramatic spike” in unaccompanied minors at the southern border and have asked Congress for $2.9 billion in emergency funding to expand shelters and care. The program could run out of money in late June, and the agency is legally obligated to direct funding to essential services, Weber said.

Last week I spoke on a mini-plenary about dignity and austerity. The other presenters addressed issues such as takings, welfare cuts, neoliberal banking, and the like, in which “savings” are synonymous with, essentially, letting go of caring for the world’s (or the country’s) weakest population. Because in criminal justice things don’t operate quite that way, I’ve had to explain that investing money in people in the context of criminal justice is not necessarily to their benefit, and often works to their detriment. The big exception to this statement, though, is rehabilitative programming: the dark side of the developments I discussed in Cheap on Crime (and on the plenary) is the continued trend to deeply cut rehabilitation programs.

Doing so, especially in the context of juvenile populations, is not a wise, “justice reinvestment move”. Beyond being cruel, it is penny wise and pound foolish. Educated, physically active, nurtured children are far more likely to have a “stake in conformity”, to use Hirschi’s term. Are migrant kids deprived of the opportunity to learn the language most prominently spoken in their new country and, for heaven’s sake, to play soccer, more or less likely to desire to be law-abiding, proud residents?

Contrast this horror with another piece of news: San Francisco sets out to eliminate its Juvenile Hall. Readers of Nell Bernstein’s Burning Down the House, as well as anyone even minimally informed with the realities of juvenile confinement in California, will surely welcome this beneficial development, and look forward to a public health model of handling juvenile transgressions.

How Did Bay Area Cities Reduce Gun Homicides?

An interesting article in the Guardian discusses the impressive drop in gun homicides in the Bay Area. As San Francisco and other cities experience an increase in wealth (my decidedly nonscientific index is the presence of Teslas on the streets) we are also experiencing dramatic waves of homelessness and abject poverty (the article estimates 30,000 homeless people in the Bay Area; a few years ago the conservative estimate for SF alone was almost 7,000). So how did we manage to reduce gun violence? The Bay Area has seen a considerable decline in gun homicide. The map in the article observes that the trend was most pronounced for “gentrifying cities”—San Francisco, Oakland, and Richmond. Homicide rates dropped modestly in other places. The only significant uptick was in Stockton, which is facing bankruptcy.

How did this happen? The article opines:

There’s early evidence that local violence prevention strategies – including a refocused, more community-driven “Ceasefire” policing strategy, and intensive support programs that do not involve law enforcement at all – were a “key change” contributing to these huge decreases.


One of these programs is Operation Advance Peace, which was adopted in Sacramento following its success in Richmond. Also, the legacy of creative, ethical, community-minded policing espoused by previous Richmond Chief of Police, Chris Magnus (now in Tucson, AZ) is to be credited with much of this decline.

A side note: One of the things I like about the Guardian article is that, as opposed to much of the academic writing on this, it did not shy away from at least examining whether the decline in gun violence might have something to do with changing demographics in the Bay Area. Before everyone leaps to chastise me for asking, “what about black-on-black crime?” let me remind you that African Americans are not only disproportionately the victims, but the perpetrators, of violent crime in the United States. It is possible to state this fact (which is what it is) without espousing an essentialist, racist explanation (“that’s just what they’re like” or any variant of this noxious ideology): is it any wonder that years of deprivation, neglect, animosity, awful role models, and indifference create a cultural climate in impoverished neighborhoods in which gun culture can flourish? Does it come as a shock to you that “high crime” areas also tend to be low-income, high-POC neighborhoods, and that policing there is a mix of punitive overenforcement and community-oriented underenforcement? The same structural racism that produces differential enforcement also produces differential criminality. Nothing to see or say here that hasn’t been noticed and said by radical realists or plain-old sociologists of delinquency. It’s not fancy, postmodern, or ideologically pure, and it won’t get me thousands of “likes” on twitter, but it does have the advantage of being true.

And no, the decline in homicides in the Bay Area is not exclusively (or even predominantly) because of white gentrification. The article explains:

In the past 10 years, tens of thousands of black residents have moved out of Oakland and San Francisco, as skyrocketing rents and housing prices have made the cities increasingly unaffordable. But in the region as a whole, the total number of black residents has remained steady, as the number of black residents living in the Bay Area’s outlying suburbs has increased, according to annual census estimates.

Keep in mind that homicide rates have gone down for the outlying suburbs as well, and you’ll see that this is not just a by-product of changing demographics.