In a recent decision, Ramos v. Louisiana, the Supreme Court found that Louisiana’s rule allowing convictions by a majority of 10 to 2 jurors was unconstitutional. Except for Louisiana and Oregon, all states (and, of course, the federal government) require a unanimous jury verdict, though not all states require twelve jurors (Florida requires only six, except in capital cases.)
Now, the Supreme Court faces a subsequent question: Is Ramos retroactive?As Josh Blackman explains in this brief entry in Reason, some Justices in Ramos itself opined on this: “Justice Kavanaugh said it could not be applied retroactively. Justice Alito’s dissent faulted Justice Kavanaugh for reaching an issue that was not briefed. Justice Gorsuch’s plurality leaned towards it not being-retroactive, but it was non-committal.”
Now, the Court has an opportunity to address this directly. Edwards v. Vannoy, recently added to the calendar, is a habeas case with facts very similar to Ramos. The facts, as reviewed in the petition, make a compelling case that this is not merely an effort built on a technicality. Edwards was apprehended on suspicion of several robberies and a rape, even though the description of the perpetrators (“black males with masks”) did not identify him, and at his interrogation (while chained to the wall!) was dissuaded from consulting an attorney. Here’s how the petition describes the rest of the evidence against Edwards:
The perpetrators of these crimes were young black males wearing black caps, gloves and bandannas covering their faces from the nose down to the chin. The police dusted for prints and collected DNA samples from the various crime scene locations and none of that forensic evidence implicated the accused. The police executed a search warrant at the residences of the accused and his codefendant but did not recover any stolen property, weapons or clothing involved in these crimes. In fact, the alleged weapons and bandannas were found in a vehicle driven by three black male acquaintances of the defendant, none of whom testified at trial. The defendant’s photo lineup was presented to five witnesses and only one was able to make a positive identification. This identification is best described as a “crossracial” identification made by a victim that had only a few seconds to view his assailant’s face. Another witness made a tentative cross-racial identification of the accused. Regrettably, the three individuals in possession of the weapons and bandannas were not placed into a photo lineup for viewing, although one of the victims did participate in a show up identification of these three, but that procedure failed to produce identification.
Assuming this is a fair description of the evidence, the case against Edwards was not particularly strong. To complicate matters, the prosecution removed all but one of the African American jurors from the panel during voir dire, and Edwards’ convictions, on all counts, were non-unanimous.
A brief primer on retroactivity: In the diagram below, imagine three defendants: No. 1, whose case begins only after the new rule is in effect; no. 2, whose case was decided before the rule change, but is still “alive” in the sense that it is not final–it is under direct review; and no. 3, whose case is already final, but who, encouraged by the new rule, tries to reopen it via collateral review.
The new rule is always going to apply to defendants 1 and 2, but whether or not it will apply to defendant 3 depends on three questions. The, first question is whether the rule is substantive or procedural. If the new rule is substantive, it will act retroactively; that’s what the Supreme Court decided in Montgomery v. Louisiana, which applied Miller v. Alabama retroactively, leading to reconsiderations of life without parole sentences for many people who have spent decades in prison for crimes committed when they were juveniles under statutory schemes that are now impermissible under Miller (to learn more about these folks, read James Garbarino’s superb Miller’s Children. But I digress.) In our case, however, the rule is procedural; it’s about how the jurors are to decide on a person’s guilt. Under Teague v. Lane, new rules cannot be applied retroactively on habeas, only on direct review, and therefore only defendants 1 and 2 (and not 3) will benefit from the rule change.
The second question is whether this is truly a “new rule” or an application of an old rule. In Davis v. Jones, an appeal of the Orange County federal judge’s decision that the death penalty is unconstitutional because of the delays in its application, respondent’s attorney tried (unsuccessfully)to argue that the new rule was merely an application of Furman v. Georgia.
Even if this is a new procedural rule, it might apply retroactively in the rare case that the third situation applies: if the rule is so fundamental that it can be considered a “watershed rule of criminal procedure.” So far, no habeas petitioner has been successful in arguing retroactivity this way.
How should the lawyers in Edwards approach this? Arguing that this is a substantive rule is a nonstarter, but the other two arguments might have merit, even though each requires a bit of creativity.
One approach could be that the rule in Ramos is not actually a “new rule”, but rather an adaptation of Batson v. Kentucky. The holding in Batson, many readers remember, was that it is unconstitutional to disqualify jurors on the basis of race, and making a prima facie showing of a Batson challenge starts with a pattern of exclusion. Well, in both Louisiana and Oregon, the nonunanimous verdict thing has been intended to function, and indeed functions, as a bypass of Batson. A representative example is Edwards itself: Knowing that you only need 10 jurors to convict, the prosecutor will disqualify all African-American jurors but one or two, thus escaping the need to answer to a Batson challenge but achieving the same outcome: disenfranchising African-American jurors through a combination of a sneaky voir dire tactic and an exploitation of a state rule designed for the very purpose of racist disenfranchisement. As Justice Gorsuch explains in the very beginning of Ramon:
Why do Louisiana and Oregon allow nonunanimous convictions? Though it’s hard to say why these laws persist, their origins are clear. Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to “establish the supremacy of the white race,” and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements. Nor was it only the prospect of African-Americans voting that concerned the delegates. Just a week before the convention, the U. S. Senate passed a resolution calling for an investigation into whether Louisiana was systemically excluding African-Americans from juries. Seeking to avoid unwanted national attention, and aware that this Court would strike down any policy of overt discrimination against African-American jurors as a violation of the Fourteenth Amendment, the delegates sought to undermine African-American participation on juries in another way. With a careful eye on racial demographics, the convention delegates sculpted a “facially race-neutral” rule permitting 10-to-2 verdicts in order “to ensure that African-American juror service would be meaningless.” Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.” In fact, no one before us contests any of this; courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.
Ramos v. Louisiana, 590 U. S. __ (2020)
In other words, one approach to the retroactivity question could be that the rule in Ramos, which found this practice to be unconstitutional, can be readily understood as the Court’s effort to undo a tricky loophole in the application of Batson, which dates back to 1986. This reading would date the rule not to 2020, but to 1986, and would apply it to any case that was still in the appellate pipeline when pastels, neons, and shoulder pads were all the rage. Edwards’ appeal was denied only in 2009, so he would benefit from this reading.
Another approach would be to argue that the Ramos holding is a watershed rule of criminal procedure because, in the words of Teague, it “”implicat[es] the fundamental fairness of the criminal proceeding.” An easy probabilistic calculation shows the risk of conviction rises with non-unanimous juries. Think about it this way: with a unanimous 12-person jury, you need one person to insist on acquittal to get to a hung jury. With a non-unanimous 10:2 rule, you need three. With every reduction in the number of people who have to agree to convict, we are decreasing the voice of an unpopular opinion–which, as Henry Fonda reminds us in Twelve Angry Men, is essential for the functioning of the system.
Consider the following analogy between the Ramos holding and the rule announced in in re Winship: Before Winship, the burden of proof in juvenile proceedings was preponderance of the evidence (more than 50%.) The Court found this burden to deprive criminal defendants of their fundamental constitutional safeguard against the possibility that their fate be incorrectly decided due to fact-finding errors–the heightened burden of proof required for a criminal conviction. Ramos “implicat[ed] the fundamental fairness of the criminal proceeding” in a very similar way. Suppose, for example, that beyond reasonable doubt requires 90% certainty in each individual juror’s mind. Introduce non-unanimity and you’ve reduced the aggregate burden of proof to 90% certainty in 10 minds and 0% certainty in 2 minds. Those are significantly different odds, and in the aggregate they result in different odds of conviction–in much the same way that reducing the overall burden of proof does.
So much for the legal arguments. Policy-wise, I can see the Court contemplating the scary prospect of invalidating an entire history of trials in both Louisiana and Oregon–new trials for people whose cases have been final for decades! This prospect might have been what propelled Justices Kavanaugh and (to a lesser extent) Gorsuch to jump the gun and offer dicta in Ramos about it not being retroactive. Some of the concern with the mess retroactivity will wreak upon convictions in these states might be ameliorated by requiring, as for any reversal, a harmless error test. Moreover, there is another important policy argument that cuts the opposite way: because this rule has such an obvious racial animus behind it, applying it retroactively, as in Batson, would have a cleansing effect akin to the destruction of a confederate monument.
Growing up, one of my favorite books was Robert Pirsig’s Zen and the Art of Motorcycle Maintenance. It’s everything you want in a 1970 philosophy/spirituality diatribe. The book is a fictionalized autobiography of a 17-day motorcycle trip Pirsig made with his son Chris and, for part of the way, with friends. The journey experiences are interspersed with stories about the past of the protagonist, Phaedrus, whose relentless inquiry into the nature of Quality end up driving him insane. Phaedrus’ story reveals this inner journey, his descent into madness, and his destructive experience with electroconvulsive therapy (like Pirsig himself). Eventually, Phaedrus regains his personality and reclaims his close relationship with his son.
I don’t love the book now as much as I did back then; the main character is difficult to like, the classicism-over-emotions conclusion does not align with my values, and a lot of the stuff rings more pretentious to me now that I’m less impressionable than I was in my teens. But there is one fantastic gem in the book that I want to tell you about.
A starting point for Phaedrus’ journey has to do with his job. A professor at a small college, he tries to motivate his students to write well, but finds himself dismayed with the quality of their essays. He concludes:
Schools teach you to imitate. If you don’t imitate what the teacher wants you get a bad grade. Here, in college, it was more sophisticated, of course; you were supposed to imitate the teacher in such a way as to convince the teacher you were not imitating, but taking the essence of the instruction and going ahead with it on your own. That got you A’s. Originality on the other hand could get you anything…from A to F. The whole grading system cautioned against it. He discussed this with a professor of psychology who lived next door to him, an extremely imaginative teacher, who said, “Right. Eliminate the whole degree-and-grading system and then you’ll get real education.”
Phaedrus ends up inviting a student to write an essay about what it would be like to study without grades. After thinking about it, she becomes a convert to the cause, but her classmates remain skeptical:
Phædrus’ argument for the abolition of the degree-and- grading system produced a nonplussed or negative reaction in all but a few students at first, since it seemed, on first judgment, to destroy the whole University system. One student laid it wide open when she said with complete candor, “Of course you can’t eliminate the degree and grading system. After all, that’s what we’re here for.” She spoke the complete truth. The idea that the majority of students attend a university for an education independent of the degree and grades is a little hypocrisy everyone is happier not to expose. Occasionally some students do arrive for an education but rote and the mechanical nature of the institution soon converts them to a less idealistic attitude.
Intrigued, Phaedrus runs an experiment: he simply stops giving his students grades. Here’s how the experiment goes:
[A]t first almost everyone was sort of nonplussed. The majority probably figured they were stuck with some idealist who thought removal of grades would make them happier and thus work harder, when it was obvious that without grades everyone would just loaf. Many of the students with A records in previous quarters were contemptuous and angry at first, but because of their acquired self-discipline went ahead and did the work anyway. The B students and high-C students missed some of the early assignments or turned in sloppy work. Many of the low-C and D students didn’t even show up for class. At this time another teacher asked him what he was going to do about this lack of response. “Outwait them,” he said. His lack of harshness puzzled the students at first, then made them suspicious. Some began to ask sarcastic questions. These received soft answers and the lectures and speeches proceeded as usual, except with no grades. Then a hoped-for phenomenon began. During the third or fourth week some of the A students began to get nervous and started to turn in superb work and hang around after class with questions that fished for some indication as to how they were doing. The B and high-C students began to notice this and work a little and bring up the quality of their papers to a more usual level. The low C, D and future F’s began to show up for class just to see what was going on. After midquarter an even more hoped-for phenomenon took place. The Arated students lost their nervousness and became active participants in everything that went on with a friendliness that was uncommon in a gradegetting class. At this point the B and C students were in a panic, and turned in stuff that looked as though they’d spent hours of painstaking work on it. The D’s and F’s turned in satisfactory assignments. In the final weeks of the quarter, a time when normally everyone knows what his grade will be and just sits back half asleep, Phædrus was getting a kind of class participation that made other teachers take notice. The B’s and C’s had joined the A’s in friendly free-for-all discussion that made the class seem like a successful party. Only the D’s and F’s sat frozen in their chairs, in a complete internal panic. The phenomenon of relaxation and friendliness was explained later by a couple of students who told him, “A lot of us got together outside of class to try to figure out how to beat this system. Everyone decided the best way was just to figure you were going to fail and then go ahead and do what you could anyway. Then you start to relax. Otherwise you go out of your mind!” The students added that once you got used to it it wasn’t so bad, you were more interested in the subject matter, but repeated that it wasn’t easy to get used to.
Robert J. Pirsig, Zen and the Art of Motorcycle Maintenance (1974.)
I’ll leave it to you to read the book and find out what happened next.
The reason I was reminded of these captivating passages: Today I recorded the review session lecture for my criminal procedure students, who are taking my exam early next week. Under our College’s pandemic grading policy, everyone will receive a credit/no-credit grade for their efforts.
When we voted on this policy, there were many opinions among the faculty and the students about which grading system would accomplish the most in terms of fairness, compassion, and support of our students’ success. Excellent arguments were made on all sides in good faith. And now I’m running a twisted version of Phaedrus’ experiment, with my previous cohorts as my control group. I say “twisted” because this isn’t an experiment, or a game: we are facing extremely unusual circumstances. Financial, medical and psychological factors impact our students in a variety of ways, weighing heavier against students who come to us from less social/financial advantage to begin with. I am committed to reading all the exams with great attention, and I think they have much to teach me, but because there are so many unknown factors, I’m going to take the outcomes with more than a grain of salt.
But I do have a message to students–not just my students, but anyone who finds themselves toiling this final exam season without the usual external motivator of getting good grades. Even though writing a good exam (which I will read) and doing well on the course can eventually pay off in the world of external rewards in the form of, say, a recommendation letter to a future employer, you have been given a much bigger gift.
The only person you have to impress is yourself.
You have three hours to impress yourself with how much you’ve learned this semester, with your knowledge of the doctrine, with your analytical skills, with your creativity, with your penchant for problem-solving, with your organizational skills. Amidst the fear and anger and grief, there will be a bubble of freedom from assessment, in which you can grow and thrive–just for the pleasure of witnessing your own accomplishment. You have been gifted an interesting and challenging puzzle to work at quietly, on your own, without anyone critiquing you or breathing down your neck. You have been gifted the thrill of quietly marveling, without an audience, at your own mastery. You have been gifted the opportunity to shine unseen, where your spark is its own reward, in a time and space free of expectations.
I know some of you are facing very real difficulties this exam season: even having a quiet spot to take an exam with working Internet is not a given. And I also know that it is extremely emotionally hard to take on projects, and that it can feel like a huge presumption to tell you that a scary, negative experience is a gift. Only you know what it means *for you* to excel, or to rise to the occasion, given what is on your plate in this scary time. But to the extent that you have control over your circumstances and surroundings, and to the extent that your emotional bandwidth allows, ask yourself: Do you want a grade and a degree, or real education?
It’s completely up to you. No judgment from me or from anyone else.
When I heard late last night of Gov. Newsom’s decision to close California beaches because of crowds, I was devastated. I observed my thought pattern immediately cycle through the first three of Elizabeth Kübler-Ross’s five stages of grief: denial (“I can’t believe this. It can’t be happening. Surely this won’t happen”), anger (at the Governor, at the mayor, at the lawmakers, at the folks congregating in five SoCal beaches – “you are why we can’t have nice things!”) and depression (“what am I going to do? How will we get through this month?”). This morning I progressed to the bargaining stage (“wait, he said state beaches, right? So SF beaches, which are run by the city, are exempt, right?”) and I might find some acceptance later this afternoon.
In short, my inchoate fear, sadness, and uncertainty, finally found an appropriate coathanger to hook itself to, and I was in emotional turmoil throughout the night.
Now that the emotional storm has passed, I’m thinking a bit about what park and beach closure policies have to teach us about the punitive and cooperative aspects of making public policy. Oftentimes when prohibitive legislation is considered on any topic, ranging from speed laws to tax policy, people forget that any policy brings with it some level of noncompliance. A classic article by Fred Coombs provides a typology of reasons for noncompliance: “(1) lapses or ambiguities in communication; (2) insufficient resources; (3) an objection to the policy itself (i.e., its goals or its assumptions); (4) distaste for the action required; or (5) doubts about the authority upon which the policy is based, or that authority’s agents.”
Looking particularly at (3) and (4), which are different facets of how much one agrees with the policy decision and how much one is inconvenienced by them, reminded me of Tom Tyler’s classic work Why People Obey the Law. Moving away from the “instrumental” explanations (“people obey if there’s something in it for them”), Tyler focuses on normative ones, which are concerned with–
the influence of what people regard as just and moral as opposed to what is in their self-interest. It also examines the connection between normative commitment to legal authorities and law-abiding behavior. If people view compliance with the law as appropriate because of their attitudes about how they should behave, they will voluntarily assume the obligation to follow legal rules. They will feel personally committed to obeying the law, irrespective of whether they risk punishment for breaking the law. This normative commitment can involve personal morality or legitimacy. Normative commitment through personal morality means obeying a law because one feels the law is just; normative commitment through legitimacy means obeying a law because one feels that the authority enforcing the law has the right to dictate behavior. According to a normative perspective, people who respond to the moral appropriateness of different laws may (for example) use drugs or engage in illegal sexual practices, feeling that these crimes are not immoral, but at the same time will refrain from stealing. Similarly, if they regard legal authorities as more legitimate, they are less likely to break any laws, for they will believe that they ought to follow all of them, regardless of the potential for punishment. On the other hand, people who make instrumental decisions about complying with various laws will have their degree of compliance dictated by their estimate of the likelihood that they will be punished if they do not comply. They may exceed the speed limit, thinking that the likelihood of being caught for speeding is low, but not rob a bank, thinking that the likelihood of being caught is higher.
Tom Tyler, Why People Obey the Law, pp. 3-4
Tyler thinks that that fostering compliance from a normative place works better because it requires less enforcement and it fosters more care for people’s values and motivations. He coins the concept “procedural justice” to argue that, when people think a decision has been made fairly–even if it disadvantages them personally–and they have been treated respectfully, they are more likely to comply.
It is inevitable that not all citizens will share the same normative values or the same level of legitimacy in government. While most of us understand the need for extreme social distancing measures to save lives, some of us simply do not believe the facts the government cites as a basis for its decisions. We might think the government is ignorant, or we might think it is deliberately misleading us because of ulterior motives. We might think the government has good intentions, but is missing the mark with the policies. Or, we might simply find the new requirements unbearable.
Looking at my own reaction to the order, it was guided by similar questions. Is it true that there’s noncompliance? Yes, we have evidence of it in SoCal. Is it widespread? No, by the Governor’s own admission: “About 100 beaches, easily defined 100 beaches, and there were five where we had some particular challenges. Overwhelming majority there were no major issues. Quite frankly no issues,” he said. Is the reaction disproportionate to the threat? That’s a matter of perspective. Look at these concerns from local government officials:
California State Assemblymember Melissa Melendez fired back at Newsom’s decision on Twitter, stating “This is not going to end well. Californians are not children you can ground when they don’t ‘behave’ the way you want.”
Orange County Board of Supervisors member Donald Wagner on Wednesday acknowledged the governor’s ability to close the county’s beaches, but said “it is not wise to do so.”
“Medical professionals tell us the importance of fresh air and sunlight in fighting infectious diseases, including mental health benefits,” Wagner wrote.
“Moreover, Orange County citizens have been cooperative with California state and county restrictions thus far. I fear that this overreaction from the state will undermine that cooperative attitude and our collective efforts to fight the disease, based on the best available medical information.”
All the noncompliance factors are there: an emotional insult at not being respected enough to follow the rules out of our own volition, doubts about the values behind the approach (punitivism vs. fresh air), concerns that suppressing people too much will backfire and yield more noncompliance. Right out of the Coombs and Tyler playbooks.
The big question is: What, ultimately, will produce more compliance? Do we get more cooperation if we relax the order, counting on people’s common sense (and accepting that some will not display such common sense), or if we impose the order, counting on people’s agreement in principle? My gut tells me that, in the short term, enforcement stuff might be better, but in the long term, people’s sense of legitimacy and compliance will wear off, and we might see worse behaviors all across the state than the ones we saw on the beach. The problem is that levels of compliance are very tricky to model. They depend on demographics, political views, and other factors, which are changing daily, and would make this very difficult to predict even for compliance experts.
Ultimately, I think my personal reaction to this has been a great teacher. It opened some unexpected compassion gates: I managed to find within my soul more than a modicum of empathy for the feelings of Huntington Beach protesters, Spring Break revelers, and anti-vax conspiracy theorists. Don’t get me wrong: I have deep ideological disagreements with all these three groups and a much higher belief in the legitimacy of our local government (let’s talk about Trump some other day, shall we?). But what we share is the deep sense of emotional injury by a curtailment of a freedom we treasure. That’s something I can understand and sit with emotionally even as I ideologically disagree. In our case, my family treasures nature and water, and my son thrives during these difficult times because he has the world’s biggest sensory box to play and learn in. I very much hope our local government will not take this away from him.
Socially distant boy having a blast on a San Francisco beach
The thing everyone was warning you about has happened: the prisons, incubators of COVID-19, are spreading it to the general population. The Columbus Dispatch, reporting on the Ohio prisons rife with infections and disease, reports:
Marion County’s top health official is urging vigilance as the outbreak of the novel coronavirus in a Marion prison spills into the community.
More than 80% of Marion Correctional Institution’s inmates have tested positive for the coronavirus, as have more than 160 corrections officers and other employees, according to the Ohio Department of Rehabilitation and Correction. Those workers live in Marion County and surrounding counties.
More prisoners might have the virus because although a prison spokesperson previously said that mass testing was completed more than a week ago, spokesperson JoEllen Smith said Friday that only 2,300 tests had been administered. She did not clarify whether that included employees, and the prison has about 2,500 inmates.
Even excluding the prisoners who have tested positive, Marion County has a higher number of cases per capita than almost every other county in Ohio, including densely populated ones such as Franklin and Cuyahoga, according to Ohio Department of Health data.
[Health commissioner Traci] Kinsler attributed Marion County’s high number of cases per capita to the prison outbreak.
The idea of prisons as incubators of miasma is as old as the prison reforms of John Howard. Ashley Rubin has a terrific thread on this on Twitter. As she explains, preventing the spread of disease was at the forefront of the reformers’ interests, and for many thinkers was a metaphor for the spread of crime.
Many of the campaigns for releasing prisoners that I’ve seen make the scientifically correct point that, as long as U.S. prisons remain Petri dishes for the virus, nobody’s safe. I want to draw an important distinction between this argument and the equally correct argument that prisoners–better said, people who happen to be in prison during this outbreak–are human beings, too, whose protection from the virus would have to be a priority from a human rights perspective whether or not they endangered others.
I’m wondering whether the former argument is made not only because it is sound (it is) but because of realpolitik. In Cheap on Crime I argued that the post-recession reforms a-la “justice reinvestment”, which led to a decline in the overall U.S. prison population for the first time in 37 years, benefitted from having a morally neutral cost argument, which allowed activists and advocates to break the decades-long impasse between public safety and human rights. It’s quite possible that framing prisoner release as a “what’s in it for me?” argument, rather than an argument on behalf of the prisoners themselves, has more persuasive power, and if so, I’m all for whichever argument gets less people, in and out of prison, sick or dead.
But just so that we get a glimpse of life behind bars, here are some words from Kevin Cooper, an innocent person on San Quentin’s death row (shared with me via email through Innocence Project):
Experiencing COVID-19 on Death Row
By Kevin Cooper
In my humble opinion being on death row with this COVID-19 pandemic raging is like having another death sentence. I can and do only speak for myself in this essay, and I must admit that I am scared of this virus!
I pride myself on not being scared of anything or anyone on death row, not even death itself, because after all this is death row. But this virus is more than just dying, or death. It’s a torturous death, like lethal injection is.
I do all I can to take care of me in here under these traumatic times and stressful circumstances. I social distance, I wash my hands regularly, clean this cage that I am forced to live in on a regular basis, and I often ask myself is this enough?
Every inmate who lives next to me or around me to my knowledge is taking care of themselves too. Quite a few still go outside to the yard every other day as we are allowed to do. I went out for the first time two days ago after a month living non-stop inside this cage. I went out to get fresh air.
This unit, East Block, has staff who have been giving us cleaning supplies such as “cell block” which is a strong liquid cleaning agent, and we use that to spray on a towel and wipe the telephone down before each inmate uses the phone. We have been given hand sanitizer for the first time since this pandemic started. It’s a 6-ounce bottle and the writing on it says World Health Organization Formula. The same World Health Organization that Trump just stopped funding…no joke!
We still have not received any mask* though a memo was sent around last week stating that cloth masks were being made to be passed out to inmates but that they have not yet been finished being made. Who is making them? I don’t know.
We people, we human beings on death row aren’t for the most part cared about by society as a whole. That truth makes some of us wonder, including me, do the powers that be truly give a damn whether we human beings who have been sentenced to death by society care if any of us get the coronavirus and die from it in a tortuous way?
In 2004 I came within 3 hours and 42 minutes of being tortured and murdered/executed by the state of California. I survived that, and have worked very hard with lots of great people to prove that I am innocent, that I was framed by the police and that I am wrongfully convicted. To do all of this and, especially to survive that inhumane and manmade ritual of death in 2004, only to be taken out by COVID-19 is something that honestly goes through my mind on a regular basis. Right now, I am free of this virus and I am doing everything to stay this way. But that thought, that real life and death thought of the coronavirus taking my life is always present, especially under these inhumane manmade prison conditions on Death Row.
*On Monday, April 20th, Kevin called to say: I received a cloth face mask today as did everyone here on death row. We are now instructed to use it every time we leave the cell.
It’s always distressing to see situations in which the cure to a social disease looks pretty bad in itself. For me, many of these situations revolve around the concept of progressive punitivism–situations in which social justice activists and advocates pursue equality, fairness, and other good stuff through punitive means (here‘s a podcast I did about this.)
Progressive punitivism can operate through the formal legal system (as it does when mayors call to reverse the burden of proof in criminal cases featuring cross-racial violence or when activists pursue vindictive recall campaigns against judges they deem too lenient) or, at least just as commonly, through the informal punitive machine of hard-to-reverse reputational harm, referred to in social media as “cancel culture.”
Many people have written about the ills of the prevalent virtue signaling and virulent shaming mob campaigns of he progressive left, especially in the context of what is known as “carceral feminism“. Aya Gruber’s recent book The Feminist War on Crime offers a critical examination of the allegation-as-fact narrative and what it means for the carceral state. And Leigh Goodmark’s Decriminalizing Domestic Violence suggests alternatives to the common domestic-abusers-are-inhuman-monsters narrative that permeates even progressive conversations about crime. In short, one of the serious problems with carceral feminism is that the progressive commitment to due process ends the minute we find ourselves facing a defendant we dislike.
Perhaps as a reaction to the contradictions between carceral feminism and cancel culture on one hand, and the abolitionist stance that the same folks tend to hold regarding the U.S. criminal justice system on the other, alternatives have been proposed, including the notion that harms of the patriarchy can be resolved outside the formal legal process, through restorative justice processes. One of these alternative process, Transformational Justice, takes on issues that are typically regarded through a punitive lens among progressives–domestic abuse, sexual assault–and offers a survivor-centered process that involves the community. You can read more about the premises behind transformative justice here. Central to the process is the establishment of “pods”: a “survivor pod” that supports the survivors and amplifies their narratives, and an “accountability pod” that accompanies the perpetrator’s journey toward accepting responsibility and offering redress of harms. The Bay Area Transformative Justice Collective defines the pod as “the people that you would call on if violence, harm or abuse happened to you; or the people that you would call on if you wanted support in taking accountability for violence, harm or abuse that you’ve done; or if you witnessed violence or if someone you care about was being violent or being abused.”
It is not surprising that sex-positive communities, such as the polyamorous and/or kink communities, are eager to adopt restorative practices. Polyamorous people have been on the receiving end of horribly discriminatory legal action, ranging from heart-wrenching custody battles to lack of police support in the face of hostilities. BDSM and kink practitioners have had to defend themselves against criminal charges with meager legal protections. Both communities regard consent as the centerpiece of their ideologies: polyamorous speakers often present polyamorous relationships as the opposite of cheating and kink practitioners develop protocols for consent before engaging in sexual scenes. When cheating and nonconsensual interactions occur in these communities, the harm is not only to the victims, but also the already vulnerable reputation of communities that are underserved and misunderstood. Which is why it makes sense that these communities have recurred to “accountability processes” to resolve these situations. In some cases, there’s fear that seeking recourse through police intervention will be futile at best, or worsen the situation at worst. In other situations, the harms would not trigger legal intervention, either because the incident would not be perceived as serious enough or because it does not constitute a criminal offense, even though it matters a great deal to the participants.
I’ve recently looked through the Internet chronicling of two such processes: the accountability process for sex educator Reid Mihalko and the accountability efforts lobbed at polyamorous author and speaker Franklin Veaux. While I’ve been a long-time researcher of political and legal mobilization in the context of underserved sexual communities (see here, here, and here), I don’t personally know either of these two men or any of their accusers, even though two of the people who participated in the pods and/or wrote about them are friends, acquaintances, and colleagues. I am completely agnostic on the facts and perceptions that surrounded these incidents, except for the obvious fact that the survivors experienced immense suffering and trauma, sometimes spanning years. My only source material is what’s publicly available online, which turns out to be quite a lot, but I haven’t attempted to uncover “the truth,” whatever that means. My commentary on this mostly seeks to understand what these processes seek to achieve and whether (and to what degree) they feel qualitatively different from the process this was supposed to complement or replace.
Chart of Reid Mihalko’s accountability process. Source: Medium.com.
In January 2018, The Daily Beast publicized accusations against Mihalko, according to which, eight years earlier, he pestered Kelly Shibari, an adult performer who attended a workshop of his, into giving him a hand job. The article emphasized two aggravating factors: the exploitation of a sex worker, whose consent is already suspect and vulnerable to doubt, and the incongruence of the incident with Mihalko’s public image, particularly the emphasis he placed on consent at his workshops and events.
Mihalko quickly published a public apology on Facebook and subsequently announced that he would step down from teaching. Two pods formed: An accountability pod for Mihalko and a survivor pod for Shibari. The accountability pod created a link for soliciting more anonymously submitted stories about Mihalko, with a “soft deadline” in early March. The entire process, which consisted of writings by the accountability pod members, writings by Mihalko himself, and accounts of the progress made (including securing a therapist for Mihalko) was publicly shared on Medium.com. The public face of the process included accounts from the survivors; 12 of these stories were included, as well as an “analysis” by the survivor pod members, which concluded:
“Overall, the stories consistently depict a person who, often while under the influence of alcohol, crosses boundaries in both overt and covert ways, and mingles sexual behavior (including flirting and propositions) with connections with people that are not in specifically sexually-appropriate environments. There were multiple mentions that Reid seems to specifically seek out sex from people who may not have strong boundaries around him, possibly due to the assumption that Reid is an expert and/or has professional influence. A number of people noted that Reid seemed to be unaware of the effect of his privilege & power as an educator / expert in gaining consent. Multiple people noted that they did not feel that Reid picked up on cues that they were uncomfortable with being flirted with and/or that they did not want to engage sexually.”
I was struck by how similar this assortment of Medium posts was to the dynamic in parole hearings that I uncovered and analyzed in Yesterday’s Monsters. For one thing, the idea of allegation-as-fact, which Gruber discusses in The Feminist War on Crime, is prevalent in both proceedings. At a parole hearing, the courtroom transcript is king: any deviation from the story as it was told by the prosecutor in the courtroom is “minimizing.” Here, the allegation is queen. The idea that the allegation is true simply by virtue of being alleged shapes the discourse, and is presented as as antithetical to the official process, which would harm victims by questioning their credibility. By contrast, any effort by Mihalko to dispute this assessment would be regarded as a minimization of his role in the incidents.
Similarly, apologies begat criticism, which begat more apologies–for the better part of the few months covered by these posts. Some of Mihalko’s apologies were perceived as undue “centering” of himself, rather than of the people he had harmed. The effort to push more and more self excavation and inquiry reminded me of the decades-long parole hearing efforts to get people to “authentically” talk about the “insight” they have gained. There is the perception that these pods (members of whom are also, in part, celebrities of the sex-positive community–either self-appointed or picked by Mihalko and Shibari) could discern when Mihalko would finally get to the bottom of the apology well and emerge with a fully and appropriately contrite version of his apologies. Until then, apologies begat apologies. I don’t claim to have the power to discern authenticity, or lack thereof, or an instrumental effort to save his reputation, from Mihalko’s contrite posts on Medium (you may come to a different conclusion–read here and judge for yourself–but robust social psychology research suggests we are not good at all at determining this.) They remind me a lot of the parole transcript stuff, echoing the iconic scenes in The Shawshank Redemption in which Red repeatedly assures the board that he is completely rehabilitated: “no danger to society here, and that’s God’s honest truth.”
Another way in which this process reminded me of parole hearings has to do with the role of the survivors. By contrast to the criminal process, where the victims (understandably) perceive themselves as powerless, it was Shibari who asserted control over the survivor pod and the gathering of the other survivors’ stories. This is understandably more empowering to survivors than a situation in which the system takes ownership of the victim’s narrative, but as Kent Roach points out, providing victims/survivors with agency does not necessarily uproot the punitiveness of the process. If this process is focused on the healing of Shibari and the other survivors, it adopts a very particular interpretation of what healing means.
By contrast to Mihalko’s cooperation with the accountability pod, Franklin Veaux’s case exemplifies how these public processes with “accountability pods” operate when their target does not cooperate. Like Mihalko, Veaux built his public persona as a polyamorous educator around notions of healthy relationships, consent, and healthy communication practices, which he espoused in his public talks and in his book, coauthored with former partner-turned-accuser Eve Rickert. The accusations against him, again, are aggravated by the contrast between this benign public persona and his behavior in private relationships. His survivor pod elaborated in an open letter, which referred to their inquiry into Veaux’s behavior as “polyamory’s #metoo”:
“The women’s experiences indicate that Franklin has patterns of manipulation, gaslighting, and lying; leverages his multiple partners against one another; tests or ignores boundaries; pathologizes his partners’ normal emotions and weaponizes their mental illnesses; exploits women financially; uses women’s ideas and experiences in his work without permission or credit; grooms significantly younger, less experienced, or vulnerable women; lacks awareness of power dynamics and consent; has involved women in group sex and other sexual activities that they experienced as coercive; and accepts no responsibility for the harm he causes by engaging in these behaviors — often blaming other women, or the harmed women themselves, for that harm.
These behaviors escalate when Franklin lives with a partner, and he becomes verbally abusive when his nesting relationships end. The severity of this pattern is illustrated by the fact that none of his former nesting partners will be alone with him. Two of them, over a decade apart, fled the homes they shared with him at the end of the relationships. Their written records from the time of leaving him show evidence of trauma.”
But the process of holding Veaux accountable for these harms went awry from the survivors’ perspectives. In an open letter they wrote on their own behalf (rather than by the pod), also published on Medium, they wrestle with what procedure should be in this kind of “transformative justice” process:
“In our understanding of transformative justice practices, the survivor pod centers the needs and input of the survivors, in turn informing the actions of the accountability pod. That didn’t happen in the part of this process that involved Franklin’s pod. From the time that someone representing an accountability pod first made contact with Reid until just before “An Announcement About Pod Boundaries” was posted, no survivor was consulted or given meaningful opportunity to influence the actions of the survivor pod toward Franklin’s pod, or given access to the communications between the pods. Our list of asks was not sent, and we were not given an opportunity to make additional requests, or to decide what information, if any, to share with Franklin’s pod. The survivor pod has said more about this in their wrap-up statement.
“Those of us who have taken the time to read through the correspondence between the pods do not agree with the approach the survivor pod took and do not believe it represents us, or the values this process was intended to be founded on. We also disagree with some of the characterizations made in the pod boundary statement. Because this cannot be undone and does not materially affect the way forward now, we will leave it at that.
“To be clear, not all of us were even invested in a transformative justice framework when we came forward. Those of us who were, sincerely believed in it. But regardless of intent, it is clear that such a framework was not in place during this process. Nor do we believe that Franklin would ever have engaged in an accountability process in a way that was ever more than performative — we believe his many public pronouncements about us prove as much. This clarification should therefore not be taken in any way as a vindication of Franklin or his own pod members. But it is time to set aside any pretense that a transformative justice or accountability process has occurred here, or will.”
Several things seemed to have gone awry. The survivor pod members admitted that they engaged in some exchanges with Veaux’s pod that were not divulged to the survivors themselves; in a particularly curious procedural twist, the survivor pod appointed Mihalko (yes, the subject of the supposedly exemplary accountability process) to liaise with Veaux on behalf of the pod, a move that was not successful and not coordinated with the survivors themselves (this raises an ancillary question, which is whether people subjected to versions of this process that are deemed successful are ever fully redeemed, to the point that they are regarded as assets in others’ process; I’ve seen this sort of empowering move in peer-to-peer networks of formerly incarcerated people, but this process is supposed to be centered around the wishes of survivors, rather than about the redemption of former accountability process subjects, so it’s a completely different story.) Another part of what went awry, according to the survivor pod, had to do with the fact that the basic assumptions underlying the process were not shared by the two pods–the survivor pod, which sought to amplify the voices of survivors (albeit not in the way the survivors wanted and without informing them or seeking full input from them), and the accountability pod, some of whose members did not accept accountability as given and disputed credibility.
This, I think, is the crux of the matter. Reading the different facebook posts, Medium posts, and Quora questions, is complicated, because transformational justice (like a lot of formal and informal processes) is heavily laden with jargon and terms of art (“transformational” “pods” “accountability” “centering” “amplifying”, and that’s on top of the relationship jargon (“harm”, “gaslighting”, “problematic”, etc) and the considerable specialized verbiage developed around consent and relationships specifically for poly and kink communities. But underneath this intricate terminology there seems to be a simple idea: a necessary condition for supporting survivors is accepting their narratives at face value. Questioning their credibility in any way is a violation of the basic assumptions of the accountability process. In other words, if you “plead not guilty”, or even ask for the transformational justice version of an Alford plea (acknowledging the suffering but not taking on full responsibility for it), you are not deemed a good-faith participant in your accountability process and the whole transformational justice edifice breaks down. What seems to have gone awry, beneath the layers of process and prose, is that Veaux did not accept the survivors’ narrative (he argued that he was the victim of a smear campaign orchestrated by Rickert); the members of his pod who spoke publicly also expressed less than wholesale acceptance of the survivors’ versions of the events (albeit to a much lesser degree than Veaux himself.)
Indeed, eventually, the breakdown of the process because of this basic gap in factual accounts saw the survivors break with the pod and the prcess and assert ownership of their own narratives. The culmination of this break was the publication of their stories, as interviewed by Louisa Leontiades, in a website called “I tripped on the (polyamorous) missing stair.” The open letter refers to it as a “survivors’ archive. Nothing more, or less.” Indeed, the suffering is evident and heartbreaking. Reading the testimonials feels like watching a train wreck–tragic, elegant, generative of questions. In an odd subversion of the allegation-as-fact ethos, the document collection itself has evoked debates and disputes not only about credibility, but about methodology, and about the interpretation of methodology, and about the methodology of interpretation of methodology. These posts feel a bit like the story of the blind men who set out to inspect an elephant and, underneath all the fancy analysis, they all revolve around the inescapable conundrum of credibility.
Looking at the presumably successful process in Mihalko’s case, and at the unsuccessful (assessed by the survivors themselves) process in Veaux’s case is instructive. It is clear that, in both cases, the people running the process are doing so with good intentions, but it is not entirely clear what those intentions are, or whether there is consensus about them. It’s clear that the process is supposed to be “survivor centered”, and that the survivors play a role in it that is greater than what they would play in the official legal system. Indeed, since a lot of the experiences that the survivors and pods describe are examples of poor (and traumatizing) interpersonal behavior, but do not constitute criminal offenses, they certainly get more agency naming their grievances than they would get if they filed a complaint with the police. Nonetheless, it’s not at all clear what the survivor participation/leadership means or even that the survivors, as a group, are clear on it themselves or in agreement amongst themselves. It is pretty clear that the pod members are well meaning in stepping in, but it is not at all clear what the yardstick is for naming them, and what sort of authority and expertise they claim, nor is it clear whether their determinations or guidance would or should be acceptable to the person who is to be held accountable (when the person flouts their presumed authority, such as in Veaux’s case, what does this authority even mean?) It is pretty clear that some measure of sincere accountability needs to flow from the perpetrator–and it’s clear that none was forthcoming from Veaux–but it is not clear at all what the yardstick is for determining what sort of contrite expression will be deemed sufficient, how sincerity is measured, and how the pod determines when the penance is done and the person (who, in both cases, holds himself out as a public celebrity educating others on good relationships) “gets” to resume his public life. What does the “certification” that the person has “done the work,” as they say in progressive circles, mean? Even in the event that, as in Mihalko’s case, the pod eventually rinses him of the reputational stain, is the stain really gone when the process is public for the sake of transparency?
I applaud the earnest and well-meant effort to find an alternative to the criminal process on one hand, and to the social media mob-shaming spectacle on the other. Both of these things are destructive, and the project of empowering survivors to tell their stories is laudable. But overall, I’m not sure that transformative justice really has presented a better alternative. It appears to be a more elaborate, erudite, and articulate version of the trial-by-social-media that is Twitter; it retains much of the pathology and does not present a fully salutary alternative. Moreover, it seems not to have bypassed two of the central problems of all processes designed to address interpersonal and sexual misbehavior: the engagement with the credibility of narratives and the buy-in (call it “admission of guilt” or “accountability”) on the part of the accused party.
First, the credibility. The idea of allegation-as-fact, or #believewomen, emerged as a contrary notion to the pathological lack of respect and credibility questioning that victims of interpersonal misbehavior, particularly domestic violence (“why didn’t she leave?” and sexual assault (“what were you wearing?”) survivors encounter in police stations and courtrooms. But it seems that the effort to either present these narratives without testing their credibility, or with an explicit statement that they are to be believed, does not quell the understandably human urge to “find out what happened.” Even the folks that have done the erudite meta-analyses, particularly in Veaux’s case, are concerned with credibility; within this women-positive, sex-positive process, they engage in contrasting factual stories. Rather than believing that people have suffered–which should be obvious just from the tenor of the narrative, before even engaging with the particulars–the focus becomes on believing their account of what happened; the former is seen as an insult, and expressing regret just for the suffering, without giving the allegation full credibility, is a worthless “non-apology apology.” Pretty much what you get from the legal system and/or the social media cancel culture machine. Ultimately, transformative justice can only transform perpetrators who walk into the process fully prepared to accept the narrative of the survivors. Any effort at insisting on transformation if this basic condition is not met is not only futile, but destructive.
Relatedly, assuming–and I’m not sure that assumption is true at all for all the survivors, given their own statements–that there’s value in being offered an apology, and assuming–and I now this assumption is not true, because social science literature refutes it–that it is possible to detect sincerity in apologies, the success of an apology or an acceptance of accountability depends entirely on the extent to which the perpetrator even buys into the process. With public figures, even in a progressive, feminist, queer-friendly space, there are huge disincentives from buying into the process. The threat of withdrawal of social capital has to be considerable to convince someone to participate. And even when the buy-in is complete, as in Mihalko’s case, one is left with the unsatisyfing taste that an apology that is offered in the context of a tribunal that offers you a stamp of approval back into public life can never be 100% genuine. This is what Nick Smith talks about when he argues against court-ordered apologies. Which raises the question: Does buy-in matter for what the survivors get out of the process? I’m not sure whether Shibari and the other survivors in Mihalko’s eventually walked away from his accountability process feeling fully satisfied with the outcome, but we do know that Rickert and the survivors in Veaux’s case were unhappy with the aftermath and attributed its failure in part to the pod’s positions and process. Again, it is hard to argue that the question of credibility is not a big part of this.
I wish I knew how to offer an alternative to this process that would bring about healing without the aftertaste of credibility testing and punitivism. I used to think that the problem is that we’ve been steeped in the idea of punitivism for so long. But after having read Paul Bloom’s Just Babies, I think that notions of retribution are an important part of our psychological makeup since infancy, and dealing with them inevitably requires us to wrestle with the complicated question of “what really happened.” Much as we try to escape it with concepts of survivor empowerment, we end up exactly where we started: comparing shards of narrative, selling ourselves unknowable truths, and refusing to accept that incidents can be experienced in radically different ways by different people. And maybe, when we experience immense suffering at the hand of someone else, the most important thing to us is not just to be listened to, but also to be found credible, to be believed. And if that’s the case, I don’t know how we square this with due process, restorative process, or any process.
This conversation goes straight to the heart of the non-choice we face in the November 2020 election: vote for the Democratic candidate, who has been accused of sexual misconduct, or for the incompetent, psychopathic, semi-literate, despotic career criminal. If we are to save the country, we have to figure out how we handle the moral and factual vagueness around these accusations, and sit with what it means to walk through the woods of credibility. That there is no real alternative (an abstention or a write-in is a vote for Trump, I’m pretty clear on that) makes this even more confusing. And yet, we should wrestle with the meaning of supporting suffering, and whether that is inexorably tied to questions of credibility and buy-in.
When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernanke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of “triggers and vulnerabilities:”
The triggers of the crisis were the particular events or factors that touched off the events of 2007-09–the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).
The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction.
Several of my colleagues (see especially here and here) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?
Think of COVID-19 as the trigger, and think of the disappointing–even shocking–reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.
First, what gets called “health care” in CA prisons really isn’t. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon’s retelling of these stories here.)
It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things–diet, especially, comes to mind–was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People’s medical complaints were regularly trivialized and disbelieved–not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.
The outcome of the case–reducing the prison population from 200% capacity to 137.5% capacity–was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before Plata. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the “non-non-nons”) rather than addressing a full fourth of our prison population–people doing long sentences for violent crime and getting old and sick behind bars.
So, now we face this trigger–COVID-19–with the following vulnerabilities:
We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
We’re now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.
We have gotten used to doing a “health vs. public safety” equation that doesn’t make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. In fact, we are so married to the idea that we can’t second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by… introducing private prisons into the mix.
Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It’s already started.
And if you wonder whether this can be contained in prisons, well, it can’t. Guards don’t live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.
What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, primarily point four: get over your icky political fears about public backlash and let older, sicker people out–even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich implores in this piece and use your executive power to save lives.
Today I came across this sobering table, which struck me as important not only for the obvious reasons. You’ll note that homicide is nowhere in the top-ten list of causes of death for Americans. If you look at the CDC reports for causes of death in 2017 based on vital statistics, you’ll see homicide ranked anywhere between #106-108 (interestingly, “legal intervention” is ranked 109.)
Yet, to browse through the list of Netflix and Prime Video shows we are offered to numb our souls from the pandemic experience, you could be mistaken to believe that a much higher proportion of Americans succumb to homicide. And to me, this suggests that the current debate about who to release on the basis of “public safety” is guided more by folk devils than by real concerns.
Assuming that you include people in prison in the overall category of human beings whose lives and health matter (if you don’t, thank you for reading this far–we probably don’t speak the same language and I hold no hope of convincing you, nor should you hope to convince me), it should be obvious that COVID-19 poses a much greater risk to public safety, broadly defined, than homicide.
Now, releasing people convicted of violent crimes is not really a trade-off between COVID-19 deaths and homicide deaths, given that the folks most at risk healthwise, as I explained yesterday, are old and sick and also happen to have committed violent crime decades ago.
So, if there is reluctance to release the folks colloquially known as “violent offenders”–many of whom would barely have a technical write-up or two for the last two or three decades–it’s not really coming from concerns for public safety, is it? It’s coming from concerns for palatability and an idea that this is the right time for abstract ideas for retribution.
If I put the state’s resistance to do the right thing here together with the mismanagement of homeless populations, it almost seems like, at our time of need, we’ve simply decided that the bottom rung or two in the American class ladder don’t matter. And they do, which makes my heart hurt.
The Buddha is often likened to a physician. He diagnosed the unsatisfactoriness of the human condition and revealed its cause. The Buddha was no doomsayer, however: his teachings were treatments that promised a cure, an ultimate freedom from that which ails us.SARS-CoV-2 is a truth-teaching virus. It has revealed to me a deep well of fear: of my loved ones dying, of dying myself (or, during more mundane moments, of running out of brown rice). More incisively, it has revealed society’s disturbing inequities and gross iniquities, forcing us to confront the truth of how the most vulnerable among us—the poor, the disabled, the unhoused, and the otherwise marginalized—bear the brunt of this crisis.
What this cruel teacher will teach our state about caring for its most vulnerable wards remains to be seen–hopefully before it is too late.
Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband, James Whitehouse. Photo credit: Ben Margot for the Associated Press.
Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (TL;DR “we are not the appropriate forum for this – go to the original courts.”) As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn’t.
In Cheap on Crime and elsewhere I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though–as this excellent Prison Policy report explains–is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.
In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.
The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one’s health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and therefore far less of a public risk of reoffending than a younger person who’s been inside for a few months for some nonviolent offense.
So, if there’s any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it’s time to look in the mirror and ask ourselves – why?
Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.
So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of “reward” for people who we think are “worthy” or “deserving”?
The correctional system’s ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday’s Monsters I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins–a devout Christian with a clean disciplinary record for decades–was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.
The Parole Commissioners’ treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation “prospect.” They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:
For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.
The Parole Board refused to release Atkins, arguing that “these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group.” Atkins, who had no ability to do anything at all, died alone in prison a few months later. If this outcome feels okay to you, ask yourself: what’s it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death? Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you? And if your answer is, “well, they didn’t consider that when they killed their victims, right?”, I have news for you: The victims are not coming back. They’ve been gone for decades. It’s horrible, and tragic, and we can’t fix that. Certainly not with another tragedy. Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.
Many thanks for your tireless work on behalf of Californians in their hour of need. I can only imagine the multiple emergencies on your agenda and the many proverbial fires you must put out to “flatten the curve” and give our emergency services a fighting chance against the COVID-19 pandemic.
I appreciated learning about your recent commutations, as well as about the plans you have put in place to release 3,500 prisoners from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.
Less than a decade ago, the Supreme Court found healthcare conditions at CDCR so appalling that, every six days, a person behind bars died from a preventable, iatrogenic disease. The Court attributed this massive failure to deliver anything that could be even remotely called “health care” to overcrowding in prisons, and supported the federal three-judge panel recommendation to release approximately 30,000 prisoners. That has somewhat improved the situation, but even with massive efforts toward a turnaround on the part of the federal receiver, we are still seeing woefully deficient healthcare–interminable lines and wait times, people treated in cages in which they have to wait for hours, “group therapy” consisting of a semicircle of cages.
And that’s without a pandemic going on.
Gov. Newsom, our prisons are a Petri dish for contagion and disease. It is impossible to provide minimal health care to this many people with a highly contagious virus on the loose.
The Public Policy Institute of California, relying on CDCR statistics, reports that 23% of California inmates are 50 or older. Aging prisoners may be contributing to California’s prison health care costs—now highest in the nation. The state spent $19,796 per inmate on health care in fiscal year 2015, according to the Pew Charitable Trusts. These costs were more than three times the national average and 25% more than in 2010. Moreover, many California prisoners serve extremely long sentences: Approximately 33,000 inmates are serving sentences of life or life without parole. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.
Isn’t decades in prison enough? How much retribution or deterrence do we still need for people serving sentences of 30, 40, or 50 years, that we must keep them behind bars for longer in the face of a lethal pandemic?
Robust research about aging in prison confirms that people age much faster behind bars than they do on the outside, and they are much more vulnerable to disease–partly because of confinement conditions and partly due to faulty health care.
The scale of releases we should contemplate is in the tens of thousands, not in the thousands. If you do not act now, within a few short weeks, the CDCR will become a mass grave.
Please, don’t let the current litigation be the only push to do the right thing. You have done the right thing so many times–as Mayor of San Francisco and as our Governor. The prisoners are Californians, too. They can’t vote from prison, but they are your constituents and you must consider their welfare. Please, act now, before thousands of lives are lost. Readers, please join this open letter by signing my Change.org petition.
