More Progressive Punitivism, the Manafort Edition: Conservatives, Maoists, and the SCUM Manifesto

Image result for manafort rikers This morning on Twitter, Shaun King took on the schadenfreude festival that surrounded the reports that Paul Manafort–perhaps the shrewdest collaborator with the Russians in the context of the 2016 election and an unscrupulous white collar crime offender–is going to be in solitary at Rikers. King said:

I see people excited to see Paul Manafort sent to Rikers Island and put in solitary confinement.

1. Rikers Island should be closed down
2. Solitary confinement should be ended.

We must be so principled in our calls for reform that we want them even for our enemies.

— Shaun King (@shaunking) June 4, 2019

I couldn’t agree more. This is one more example of the evils of progressive punitivism, which I discussed in this primer. No matter how many resistance-related hashtags are affixed to these expressions of joy, they are the opposite of revolution; rather than deeply upending the rationales of the punitive state, they consist merely of turning it around 180 degrees. Instead of torturing poor people of darker skin, we’ll torture rich people of lighter skin. This is not reform; it’s tribalism.

I’ve written two pieces on progressive punitivism so far. The first, based on my Not Your Typical Kavanaugh Opinion Piece, shows how some aspects of the #metoo movement feed into the most noxious aspects of progressive punitivism, namely the encouragemenet for people to marinate in victimization as a condition of being heard (forthcoming from JCRED). The second, based on this post, argues that the tendency to demonize everyone involved in failed criminal justice reform (particularly painting well-meaning people as racist) is ahistorical and harmful to the movement overall, and that it is much healthier for both academics and reformers to analyze people on their own terms (forthcoming from LSI). The third piece, which I’m working on now, is for the Punishment and Inequality conference at the University of Bologna. In this piece I try to unpack the intellectual roots of progressive punitivism and come to some surprising conclusions.

It turns out there is very little in the history of conflict and radical criminology that tackles the question, “whatever shall we do with the rich after the revolution?” Admittedly, much of the radical criminology paradigm consists of questioning the connection of crime with class; the oft-quoted maxim from Anatole France’s The Red Lily talks about how ‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ To criticize how the law applies to the poor is to implicitly question how it applies to the rich, because criminalization and severity get their meaning from relativity and context. Critical and radical criminologists have highlighted areas in which the rich commit crime with impunity–white collar crime, environmental crime, state crimes, etc.–but save for, say, the post-Enron outrage, there’s been very little to foreshadow the explosion of punitive sentiments on the left that we see today. Perhaps the exception is carceral feminism, which was foreshadowed in Catharine MacKinnon’s writing; she seems to support this aspect of the #metoo movement, opining here that the online outrage and excoriation campaigns we see are an outcome of the incompetence of formal criminal law in addressing sexual harassment. For an even more extreme example of the antecedents of carceral feminism, see this passage from Valerie Solanas’ SCUM manifesto:

SCUM will kill all men who are not in the Men’s Auxiliary of SCUM. Men in the Men’s Auxiliary are those men who are working diligently to eliminate themselves, men who, regardless of their motives, do good, men who are playing pall with SCUM. A few examples of the men in the Men’s Auxiliary are: men who kill men; biological scientists who are working on constructive programs, as opposed to biological warfare; journalists, writers, editors, publishers and producers who disseminate and promote ideas that will lead to the achievement of SCUM’s goals; faggots who, by their shimmering, flaming example, encourage other men to de-man themselves and thereby make themselves relatively inoffensive; men who consistently give things away — money, things, services; men who tell it like it is (so far not one ever has), who put women straight, who reveal the truth about themselves, who give the mindless male females correct sentences to parrot, who tell them a woman’s primary goal in life should be to squash the male sex (to aid men in this endeavor SCUM will conduct Turd Sessions, at which every male present will give a speech beginning with the sentence: `I am a turd, a lowly abject turd’, then proceed to list all the ways in which he is. His reward for doing so will be the opportunity to fraternize after the session for a whole, solid hour with the SCUM who will be present. Nice, clean-living male women will be invited to the sessions to help clarify any doubts and misunderstandings they may have about the male sex; makers and promoters of sex books and movies, etc., who are hastening the day when all that will be shown on the screen will be Suck and Fuck (males, like the rats following the Pied Piper, will be lured by Pussy to their doom, will be overcome and submerged by and will eventually drown in the passive flesh that they are); drug pushers and advocates, who are hastening the dropping out of men.

What does this radical program of punishment, excoriation, required groveling and ceremonial apologies resemble? Unsurprising answer: Communist China’s criminal law. While criminalization, tribunals, and harsh punishment were part and parcel of the cultural revolution, China didn’t actually have an official criminal code until 1979. The Maoist authorities had drafted one, but Mao believed it unwise to codify a criminal law that later might restrain the party. Still, these notions of criminal law as embedded in politics characterized the eventual legislation. As Donald Clarke and James Feinerman argue in Antagonistic Contradictions: Criminal Law and Human Rights in China, the question of what constitutes a crime was nebulous in the criminal code of Communist China, and highly dependent on the perpetrator’s location on the class food chain. As they explain:

The Criminal Law (CL) does not so much define which acts are punishable as prescribe what the sanctions shall be when relatively severe punishments are deemed in order. The definition of crime is accomplished outside the Criminal Law by reference to political exigencies or generally accepted standards of morality. There is little perceived danger in allowing government officials to impose their own standards of morality, since Chinese state ideology does not accept the legitimacy of multiple standards of morality. 

Consider, for example, the provision for analogy (Article 79 of the CL): a “crime” not stipulated in the CL (or elsewhere) may be punished according to the most nearly applicable article. This shows that if rules defining crime are “law,” then the very notion of “crime” is not a “legal” concept; the determination of whether a particular act constitutes a crime is something that must take place outside the CL. Thus, while the CL tells you what punishment to apply for a particular crime, it is often unhelpful in determining whether a crime has been committed. In this respect, the CL resembles the rules for punishment of Imperial China, which stipulated any number of punishable acts in great detail, but also contained provisions allowing for analogy and punishing “doing what ought not to be done.” 

The Special Part lists various crimes and their punishments. Pride of place goes to counter-revolutionary crimes, which are defined as “all acts endangering the People’s Republic of China committed with the goal of overthrowing the political power of the dictatorship of the proletariat and the socialist system” [but are very rare despite their textual prominence.] . . The other chapters in the Special Part cover crimes of endangering public security, undermining the socialist economic order, infringement of personal and democratic rights, property violation, disruption of the order of social administration, disruption of marriage and the family, and dereliction of duty and corruption. 

The Special Part is a relatively skimpy 103 articles. . . One reason for the relative simplicity of the Chinese CL is that the provision on analogy offers an escape hatch in case of imperfect or careless drafting. Another reason is that the CL is supplemented by numerous other pieces of special legislation either specifically criminalizing a certain act or prohibiting an act and providing vaguely that “where it constitutes a crime, criminal responsibility shall be affixed,” without providing any guidance as to under what circumstances the performance of a prohibited act would constitute a crime. Finally, it must be remembered that the CL is as much a political text as a legal one; its drafters were concerned with providing a legal basis for state action, not with worries about due process, and it was designed to be used by judicial and public security cadres with a low educational level. Although the late 1980s and early 1990s have seen a movement among the Chinese legal community to revise the wording of the Criminal Law in an attempt to make it technically more elegant, no revision has yet taken place.

Essentially, what Clarke and Feinerman are describing is a punishment system that relies on the sentiments of the communist order toward the offender to even make the decision whether a crime has been committed. A poor person stole bread? Revolutionary impetus. A rich person stole bread? Class criminal.

One possible (and reasonable) counterargument could be that all criminal codes are, covertly, Maoist “little red books” by virtue of differential enforcement. After all, isn’t a city ordinance that prohibits any person from sitting or lying on a city sidewalk, but yields fines only against poor, homeless people, exactly the same as a “political texts” that “impose [their] own standard of morality”? Well, of course they are. But the difference between these codes and the Maoist criminal code is the difference between covert and overt intent. The Maoist code explicitly declares its intent to focus on counterrevolutionaries.

So what’s worse, a law that purports to criminalize in a neutral, universal way, but is enforced in a way that targets members of a particular class, or a law that explicitly says that it addresses only members of a particular class? There’s something to be said for the latter: at least it’s honest, which means that if we dislike its overt targeting, we can work to change it. Differential enforcement, on the other hand, can work covertly, and remain undetected. But this rationale does not neatly address what happens in the context of progressive punitivism, for two main reasons.

First, the days in which the mainstream public was in the dark about differential enforcement are long gone. The disparities that critical criminologists have been studying for decades–racialized police activity, ideological bias in charging decisions, sentencing disparities for members of different races and classes–are all there in the open. We studied this stuff before it was cool, but now progressive Millennials are born with the Michelle Alexander playbook in hand. They have come of age, politically, against the backdrop of Ferguson; they have been reading excellent journalistic coverage of the criminal justice system and listening to podcasts about miscarriages of justice for years. Honestly, there’s not much difference now, in terms of the progressive consciousness, between laws that explicitly target the poor and laws that are facially egalitarian but differentially enforced. This is good news for criminologists–we’ve wanted everyone to know this forever, and finally, the combination of colleagues with a desire to address the mainstream and journalists who made it accessible has succeeded in injecting the realities of criminal justice administration into the mainstream conversation (this conversation could use a little, or actually a lot, of nuance, but we’ll turn to that later.)

Second, even with an overt policy, there has to be a desire to change it. If lawmakers and constituents are overall pleased with policies that support a particular political order and target people on the basis of their class affiliation, it will be quite difficult to introduce change. Regardless of whether the class/race/gender bias of law is overt or covert, the ability to move it in one direction or the other depends largely upon whether its targets are people that “we” (for whatever value of “we”) like or dislike.

Which leads me to conclude that, even though we can find Maoist, or radical feminist, antecedents to the appetite for punishing the rich/male/white that permeates progressive discourse, its most obvious intellectual and cultural legacy is… conservative discourse.

Conservatives and progressives don’t live on different planets. The American public (as well as the American academic scene) has experienced decades of exposure to punitive ideologies and policies, and these, as well as their legacies, are bound to leave imprints on social movements of all stripes. Criminal justice and punishment scholarship in the United States is steeped in this punitive legacy–and this is characteristic, as Naomi Murakawa, Elizabeth Hinton, and others tell us not only of Nixon and Reagan, but also of Democrat politicians. After all, as Jonathan Simon explains, no politician, of any stripe, wants to be perceived as “soft on crime.”

Decades of being steeped in a program of conservative punitiveness has taught both conservatives and progressives three important lessons. The first is that criminal justice is the only hammer in the toolbox, and therefore each and every problem must be a nail. If that’s how we have been solving the problems of “inner city delinquency” for years, why would we not welcome any bad behavior on the part of the wealthy and privileged with choruses of “lock him up”?

The second lesson is that it is normal to think of criminal justice as a tool for separating communities across identities. I’m sure I tell you nothing new when I remind you that, while 1 in 100 Americans is behind bars, that figure is much higher for particular segments of the American population: 1 in 9 young Black men is incarcerated, and 1 in 3 is under some form of correctional supervision.  Racial and class inequalities are found at every turn; in policing,  in criminal courtrooms,  and in sentencing,  to name just a few. Many criminal justice critics, in academia and in the activist realm, treat this overrepresentation not as a coincidence, but rather as part of a systemic project of crystallizing and enhancing inequalities. Is it any wonder that, against a backdrop of “walk all over the poor”, a non-imaginative response is, “walk all over the rich”?

The third lesson, which is perhaps the most painful, is that the quintessential way to get the talking stick in America is to be a victim. Just yesterday we learned that Tricia Meili, the Central Park jogger who was viciously assaulted and left for dead decades ago, is calling for a release of investigation materials in the cases of the Central Park Five, the five teenagers who were falsely accused of assaulting her. We know who did it: the responsible party is in prison, has confessed to the crime, and is tied to it via robust forensic evidence (the only person who is still confused about this is Trump). We have seen footage of the interrogations of the teenagers. Meili is owed compassion and support for her harrowing experiences, as well as admiration for her long recovery process. But why is she an authority on an event she has no memory of? That we award victims an attentive ear on such matters shows how victimization, or more accurately, a spectacle of suffering, is the qualification you need to be an authority on criminal justice in America. #BlackLivesMatter and #metoo have internalized these messages all too well: in the face of victim voices serving the conservative agenda, like the Tate family, Mark Klaas, and Dominick Dunne, is it any wonder that the progressive response is to put victimization and trauma at the forefront of its own struggle?

The problem with these non-imaginative responses, as Shaun King reminds us, is that progressive punitivism is, essentially, a little-changed version of the conservative punitivism playbook. Applauding the incarceration of a reviled man on solitary at Rikers has as much potential for enshrining the practices of solitary, and the conditions at Rikers, as was applauding the incarceration of the people that the progressive movement cares about in identical conditions. We can and should do better than this every day, but that takes imagination, and shaking off the paradigms shaped by decades of criminal injustice doesn’t come easy. Still, we have to try.

The Central Park Jogger and the Reification of Victims’ Perspectives

Those of you familiar with the Central Park Five case should be under no doubt that, despite Trump’s insistence on propagating a strange narrative of the case, the five teenagers railroaded into confessing and sentenced to years in prison have been completely exonerated and compensated, with a single perpetrator’s confession backed up by solid DNA evidence.

You may also recall that the victim, Trisha Meili, who was violently assaulted and left for dead, has no memory of the attack. But she apparently does not see this as a barrier to opining about guilt and innocence.

In my forthcoming book Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (forthcoming Feb. 2020 from UC Press) I discuss the serious problems that happen when we reify the perspectives of people at the heart of trauma regarding things they are not qualified to comment on, such as the sincerity of parole hopefuls, their participation in rehabilitative programming, and even their physical health. And here we have a person who cannot recall the attack pushing for a political outcome, claiming the authority to do so because of her victimization.

Trisha Meili suffered horribly at the hands of someone terrifyingly violent and deserves every sympathy and compassion for that horrible ordeal, as well as respect and admiration for regaining her health. But she has no authority or special knowledge to chime in about events she does not recall or to use her authority as a “moral memory” of the crime to push for processes that completely contradict forensic evidence.

This is what happens when we decide that trauma itself is an admission ticket to the discourse. And lest we forget, the right has not cornered the market on this reification of victims.

Book Review: Plausible Crime Stories by Orna Alyagon-Darr

Recently, I had the absolute treat to read Orna Alyagon Darr’s new book Plausible Crime Stories, in which she provides a riveting analysis of almost 150 sexual offense cases tried before the British Mandate courts of Palestine, prior to the inauguration of the State of Israel.
The evidentiary process in criminal courts involves efforts by factfinders to establish a factual truth in the face of often conflicting stories about what happened. In doing so, they recur to several different mechanisms, which Alyagon Darr discusses in the book: probability (which the official evidentiary standard endorses), credibility (whether a witness is telling the truth or a lie) and plausibility (which story makes sense.) Alyagon Darr’s book deals mostly with the latter, and its main argument is this: when deciding whether a story is plausible, factfinders rely on a lifetime of experience that is embedded in their place and time. People make assumptions about how a particular event went down on the basis of their beliefs about what makes sense, and these in turn are shaped by their status, ethnicity, and milieu. In this case, the factfinders were British colonial judges, whose approaches were shaped by notions shaped in the British metropole as well as by their stereotypes and understanding of the population of Middle-Eastern colonists they encounter. 
Alyagon-Darr tells, for example, of cases involving homosexual relations, which to the British simply could not entail love or an emotional connection. The narratives that made sense were shaped by what they considered a “typical” story: an older man of higher social status penetrates a younger man of lower status in exchange for money. Stories that fell into this narrative pattern were plausible; stories about love or mutuality were not. Similarly, in Mandatory Palestine relationships between Jewish women and Arab men were so stigmatized and unthinkable that, to make sense of them, the women in question had to be cast as problematic and coming from dysfunctional families.
These are only two examples of many fascinating ones that Alyagon-Darr discusses in the book. Her analysis made me think of Nicola Lacey’s Women, Crime, and Character. Lacey’s argument is that, throughout the 19th century, the treatment of women as offenders morphed as the criminal process evolved from reputation-based to evidence-based. What Alyagon Darr’s book seems to suggest is that this shift–whether or not completed in the British metropole–was not complete in the colonies in the early 20th century. Reputation, or assumptions about reputation, appear to be the lynchpin of both credibility and plausibility. Whether someone’s story about a sexual encounter that happened to them–consensual, nonconsensual, forceful, unexpected–is plausible or not depends on reputational factors such as the character’s ethnicity, age, or assumed sexual practices. In that respect, little has changed–just look at the many unchecked assumptions that underlined the Kavanaugh-versus-Ford debacle. What is interesting about the colonial society brought about by the Pax Britannica is that reputational assumptions pertained not only to individuals, but to entire communities, on the basis of ethnicity as the main characteristic. Which raises another question–should they have set these assumptions aside? Did these stereotypes persist because they were found to be true frequently enough to be valuable tools for judging reputation, character, and plausibility? Alyagon Darr wisely leaves these value questions to the readers, doing the kind of careful historical analysis that we need to do. 
Interestingly, just as I’m writing about this book, I came across the recent embarrassment surrounding Naomi Wolf’s new book Outrage. I was mortified for Wolf–it is regrettable, but very human, to fall in love with one’s theory (in this case, that consensual same-sex relations were harshly punished) to the point of misunderstanding the data. Alyagon Darr’s book is a great counterexample. It leaves open questions, intelligently interrogates the context of the period and the milieus involved, and has enough compassion to understand that not everyone in Mandatory Palestine was born holding the postmodern intersectionality handbook. It is laudable effort to understand historical actors on their own terms, as Ashley Rubin has recently called upon historians and others to do. 
But there’s something else going on here: echoes of Lombroso’s L’Uomo Delinquente, for sure. Alyagon Darr quotes an early 20th century criminologist, Paltiel Dikshtein, discussing “colonial criminology’. It is not a coincidence that the colonists had such appetite for reductionist, essentialist judgments on behavior in the colonies by ethnicity. At the time, Great Britain, particularly in the colonies, was enthralled with the power of science, measurements, and the use of medical tools and classifications. Because of the Lombrosian, scientist-looks-at-primitive-animals perspective, this was especially appealing in the colonies, and could explain Binyamin Blum’s findings about the emergence of forensic science in the colonies. Importantly, as David Horn explains so well, Lombroso’s scientific analysis of crime came of age during the unification of Italy, and should be understood in the context of making sense of differences in crime patterns among different Italian provinces. It’s not a coincidence to find similar mechanisms underpinning the ethnic hodgepodge created by the Pax Britannica, particularly in the complicated, diverse ethnic world of Mandatory Palestine. Similar to the Lombrosian project, what we see in the British is an effort to harmonize norms across the different population under their control. The need to govern and the enthusiasm about scientific inquiry of crime yielded the perfect storm: in criminological laboratories, it would manifest as essentialist diagnoses, and in courtroom settings, as essentialist findings of plausibility. 
Finally, an important word about the emotional impact of the book. It goes without saying that Alyagon-Darr is discussing events that happened a long time ago. Her clear and empathetic writing evinces the kind of compassionate care (without compromising attention to detail) that one would offer a friend of loved one who was hurt five minutes ago. Her descriptions of the horrific crimes people experienced, the betrayals in other people’s versions, the humiliating and dehumanizing medical examinations children had to undergo, read as fresh now as they must have felt to these people a hundred years ago. It makes one wonder about the impact that these open wounds had on the cultural psyche of the Jewish and Arab peoples, and the extent to which unspoken trauma and injury have fed into the larger mess that is today’s Israeli-Palestinian conflict.

Elizabeth Warren’s Laudable Example

The Washington Post is being justly criticized for its ridiculous so-called exposé of Elizabeth Warren earning reasonable attorney/consultant fees for her legal work. There is a debate about whether this display of poor journalism can be attributed to sexism. Though I struggle to imagine a man being criticized for similar earnings, I think it has more to do with a deep misunderstanding of my line of work.

To be clear: I am so very fortunate and grateful to be a tenured professor with a named chair at a time when excellent academics are driven to economic precarity by the corporatization and adjunctification of higher education. I teach a reasonable load, have time and space to research and publish, live comfortably, and want for nothing. These privileges enable me to spend a considerable chunk of each workweek doing public service. As many of you know, I’m on TV several times a week; when there’s some novelty with Trump, Barr, Mueller, et al., it’s sometimes several times a day. Every week I spend several hours consulting with journalists, civil rights attorneys, activist organizations, and others. I write amicus briefs. I speak at public events, not all of them academic, and most of which do not directly advance my professional career. And there’s nothing special about me–I have many colleagues who do things like this.

What seems to be at the root of Warren’s critics is that they perceive this public activity–which requires skill, hard work, time to stay on top of current events, cultivating media savvy, and yes, because this is a lookist society, investment in appearance and in reputation management–not as volunteer work, which is what it is, but as something that we somehow owe to the world to provide for free. This comes either from the perspective that we are cynical, underworked exploiters (“you have the summers off!” “you teach six hours a week and that’s your entire job!”) or obligate servants of The Movement who, for some reason, must do for free a lot of things that everyone else in the universe charges for, in the form of salaries, stipends, or honoraria. Many of us, especially women and people of color, internalize these critiques, mumbling when we should ask for honoraria, lowballing our fees because we don’t know what to charge, muttering “of course” when we’re told to do things for the greater good.

It is entirely reasonable to respond to requests that eat up considerable time and effort, especially when made by clients who can afford to pay, with this:

If anything, we should learn something from Warren’s laudable example. If she managed to have an illustrious academic career and, at the same time, put her impressive skills and industriousness to good use, good for her! The culture of sacrifice and deprivation that sometimes peeks through this critique seems to suggest that the endgame is for people to be paupers so as to lead by example. If that’s the endgame, it’s not worth the fight. The endgame is for people to live with dignity and have what they need, and there is no greater champion for this than Elizabeth Warren.

Thank you, WaPo, for helping me make up my mind about my preferred presidential candidate through your irresponsible journalism. CCC endorses Elizabeth Warren as Democratic candidate for President of the United States.

Congratulations, HJCP! And, Moratorium Event

In all the excitement and fury about the Mueller report, I completely forgot to congratulate our new student-run journal at UC Hastings – the Hastings Journal of Crime and Punishment (HCJP) – which held its inaugural event this Tuesday, titled Extreme Punishment in the Age of Moratorium. The event was a big success. We were very proud and happy to host a range of panelists with different life experiences and perspectives to reflect on Newsom’s announcement. Kevin Cooper called in from Death Row. Kelly Savage, from the California Coalition of Women Prisoners, provided the perspective of a recently released lifer, identifying long life sentences as “walking death.” Alex Post of the State Public Defender’s office discussed the continuing litigation on behalf of death penalty inmates. Steve Wagstaffe, the San Mateo District Attorney, discussed the need for extreme punishment and his interactions with victims. And David Crawford of Death Penalty Focus talked about the political aspect of Newsom’s announcement.

The first issue of HCJP, which is forthcoming, will feature, among other wonderful things, a summary and/or transcript of the panel.

Not Your Typical Mueller Report Opinion Piece

Let’s start with the obvious: Like all the other opinion pieces said, we’re dealing with a corrupt mob boss, a culture of lying and obfuscation, a paranoid president who was saved from himself by aides who, selfishly or selflessly, stopped short of doing his bidding. We’re dealing with an administration of enthusiastic recipients of information and illegalities from a foreign power. And, Mueller explicitly places the ball in the court of Congress: I won’t indict, but you can impeach, and you can certainly indict once he’s out of office (the report twice reminds us, explicitly, that Trump’s supposed immunity while in office–which, by the way, is a topic hotly debated by constitutional scholars–ends when he is no longer president.)

All of these things are true.

It takes a bit of time for the emotional dust from reading the report to settle (I spent about nine hours, give or take, on providing summaries of Volume 1 and Volume 2 yesterday.) Some of what I read was news to me, such as the phonemail Trump received while en route to the airport with Rick Gates

17. Page 54: It seems like Trump and Gates were going to the airport, Trump got a call and then told Gates that more emails were forthcoming.

— Hadar Aviram (@aviramh) April 18, 2019

and the direct hacking of the election systems in an unnamed Florida county)

15. The GRU also directly intervened in the election by targeting election administrators and hacking computer systems, specifically in Illinois and Florida. B/c of redactions, unclear from this version which of these interventions were successful.

— Hadar Aviram (@aviramh) April 18, 2019

I was also somewhat surprised by Assange’s partisanship. I had been under the impression that he was a “chaotic neutral”, who was just about nonpartisan free access to everything, but in fact he acted because he was interested in a GOP election win.

12. WikiLeaks were not neutral parties, and their collaboration was fostered by partisanship. Assange explicitly said to WikiLeaks employees that “it would be better for the GOP to win.”

— Hadar Aviram (@aviramh) April 18, 2019

But I have to say, the moment I will most remember from this tweeting enterprise is the brainwave I had when I read about Paul Manafort’s dealings with Kilimnik and, through Kilimnik, with Yanukovych, the ousted Ukrainian president. This came into clearer focus when I read about Petr Aven, and especially about Kyrill Dmitriev, and their efforts to insinuate themselves into the Trump transition team.

The whole thing reminded me, in a nauseating way, of a post I wrote here a while ago, about one of my favorite TV shows as a child: Mission: Impossible. Gentle reader, if you’re a person of a certain age, you probably remember the show not as a flashy Tom Cruise movie, but as a series of episodes involving sophisticated U.S. interventions abroad. At the time, I wrote that the show–

evoke[d] a feeling of nostalgia for a past that never was; a past in which good and evil are clearly delineated in the opening sequence, and in which our secret service works for the undisputed good while we all sleep soundly in our beds. A past in which power is never abused, but tempered with talent and an old-fashioned gentlemanly code. A past in which the United States is a benevolent patriarch, deftly and subtly governing its childlike counterparts. A past in which women and people of color play cameo roles in the world of secret service, and women are praised and utilized for their sexual appeal without complain or critique. 

The problem is that this past never existed. In the late sixties, when this show aired on American television, the US was already angling toward a questionable and destructive elective war in Vietnam, and was already involved in fixing (not unfixing!) the elections in various foreign countries, not to mention the ones it was yet to fix. Involvement in attempted and successful assassinations of foreign politicians and dignitaries has been, since then, clearly documented. And let’s not even start discussing foreign military interventions. 

How comforting it was to live in the Mission: Impossible world, in which these developments could be either disbelieved or explained away as benevolent and necessary. Which just makes the courage of people like Daniel Ellsberg, who actually saw what was what and brought it into the realm of public consciousness, all the more impressive.

How the tables have turned! Mueller’s investigation reveals a sophisticated, ruthless Russian machinery, consisting of both the GRU and private corporations, that is able to manipulate American social and technological vulnerabilities to an astounding degree. The reason I felt comfortable writing in my tweet thread that Russia “procured” and not just “sought to procure” is because, when you put together Mueller’s findings about the direct interference in Florida and the calculations done by Nate Silver et al. a clear picture of successful intervention emerges. The surges and declines in public support for Trump and Clinton map neatly onto the leaked emails, and the leaked emails were obtained via the well-oiled Russian machine.

But what is most shocking about this is that all of this efficiency and technological acumen was put to work not in the service of politics. Or, I should say–not ultimately in the service of politics. And this is what I realized: Gaming the U.S. election was perhaps a step toward solidifying a peace agreement that guarantees Russian control of the Ukraine, but even that’s not the endgame.

Ask yourself: What are the oligarchs in this for? Why so much public-private cooperation? Why are Russian billionaires in bed with American businessmen/politicians?

Because the political aspects of this, friend, are all a sideshow. The things you and I care about–vanishing civil rights, children in cages, starving Central American nations, planetary destruction–all of this is a sideshow. Manafort, with his deep connections in Russia and the Ukraine, is the key to understanding all of this. He is not a stepping stool toward Trump. He, and Kilimnik, and Yanukovych, and Aven, and Dmitriev, they are the lynchpin of the whole thing. This is all about making money. Obscene amounts of money that you and I cannot even imagine. The U.S. election, which has enormous importance for you and me, is just a means to an end. The real game is not played in D.C., no matter how great or influential Trump thinks he is. The real game is played in Moscow, and probably not even by Putin, but by the oligarchs.

And this is the big shocker. That you and I might devote our lives to public policy, to incarceration and criminalization and confinement conditions and all sorts of things like that, which are the whole world to the people caught in the clutches of the system, but ultimately, they, you, and I, are merely playthings in the lives of the obscenely rich. Just pawns to be moved along in order to make money. Their economic hold on the world is so vast that winning the U.S. election is just a means to an end for them.

And this makes me profoundly sad, and angry, and fearful for our future.

On Populism in Criminal Justice Policy, and the Death Penalty Moratorium

Gavin Newsom’s recent announcement of a death penalty moratorium drew critique from supporters of capital punishment who argued that Newsom employed his executive power in a way that flies in the face of what the people of California want (which is, by a small majority, the death penalty to stay.) In the last week I’ve had to debate this issue on TV and on the radio with a few commentators, some more erudite than others, and even though the pace of public appearances was rather frantic, I made a mental note that I need to take the counterargument more seriously and think about populism more deeply.

Thankfully, life provided a really interesting opportunity to do so: I’m just returning home from a beautiful day in New York City, which I spent as Author-in-Residence at St. John School of Law‘s Journal of Civil Rights and Economic Development. I spent the day discussing various implications of a piece I wrote for the journal, which was loosely based on this blog post.The schedule for the day was beautifully student-centered and my gracious hosts made sure that their students got the most out of an informal conversation about writing in the morning, a great lunch conversation, and a more formal presentation with Q&A in the afternoon. 
We talked about lots of things: the perniciousness of social media mobbing, whether rage was exhaustive or generative, whether reputations soiled by formal or informal social control can be redeemed (and at what cost), whether there’s any hope for bipartisan civil discourse—in short, the things that ail and worry us all. Among the students’ excellent comments was a polite-but-passionate disagreement a student had with my position on Judge Persky’s recall. As regular blog readers know, I think the recall was a vile example of the scorched earth mentality that drives a lot of lefty activism nowadays and a terrible message for judges to be harsh. The student who disagreed with me saw it quite differently. He saw it as an important message to the judge (and other judges) that he should respect the will of the people.
After the talk, the student came over and we continued our conversation. It turned out that the student was a community organizer who was appalled by the New York State legislature’s imperviousness to impassioned public calls to change the statute of limitations in a way that would allow prosecuting prominent Catholic Church priests involved in the massive sexual abuse scandal. He expressed regret that New York had so little referendum-based legislation, because he suspected that, had the statute-of-limitations issue come up on referendum, about 80% of state voters would support eliminating barriers for prosecution. 
As the student was explaining his position, I realized something important. My hosts and I live in states that are very different, respectively, in terms of their political culture. New York is governed largely through professional, elitist bureaucracy, whereas California is governed through political and emotional populism. As Vanessa Barker argues in The Politics of Imprisonment, these divergent political cultures have shaped two very different criminal justice systems, with California’s characterized by much more punitive excess in terms of legislation and policy. Of course, the criminal process in New York is not clean of problems—the NYPD scandals and the conditions at Rikers are but two notable examples—but the sheer size of the California apparatus and its patchwork of aggressive sentencing laws reflect the punitive animus stoked in a public that votes for criminal justice policies via referendum. Because of these different cultures, our respective natural tendencies are to see the blemishes in our own environment and perceive the other system in a more favorable light. In other words, while I’m used to seeing the serious problems, excesses, and miscarriages of justice that come from a money-flooded direct democracy rife with oversimplification and disinformation, the student who came to speak to me was used to seeing the legislative elite turn a cold shoulder to the values and expectations of their constituents. 
Reasonable people can disagree, I think, on how much direct democracy is appropriate for a particular political culture. But it’s important to make this call on the basis of facts. Does the public tend to be punitive? And how punitive, and in what contexts? There is rich literature on this, which I reviewed extensively in Chapter 7 of Cheap on Crime. The gist of it is that, while the public holds complicated views on punishment and rehabilitation, it is possible (and easy) to craft questions and provide information in a way that yields punitive outcomes. For example, surveys reveal that people are significantly less likely to support lengthy incarceration when they are provided with real data about how much it costs. The problem is that, in a partisan—indeed, polarized—legislative atmosphere, there’s very little guarantee that the public will actually get credible, dependable facts; instead, supporters and opponents of a particular bill will provide a lot of noise and spin, leaving people with good will, but with little background in public policy and economics, to make their own decisions. 
One example is the idea that someone might support the death penalty in good faith because they believe that capital punishment is good for victims and that victims want it. But we know that different people process tragedy in different ways, and that not everyone sees the death penalty as conducive to their healing from a devastating loss. I can say that, in my visits to the violence prevention coalitions in Santa Rosa and in Sacramento, I heard victims’ family members espouse exactly the opposite—and those are, typically, poor people of color, whose voices do not usually ring very loud in the policymaking arena. Is it elitist, or undemocratic, to consider the possibility that the public has been systematically misinformed about what victims want, and therefore lacks valuable and relevant knowledge?
Similarly, consider this horrifying piece of news I read this morning. The violence, the sheer amount of defense required for mere survival, the blood and bodily secretions at all places… a friend posted today on Facebook that if the public knew just a little of what happens in these institutions, we would not have them. It’s not malice–it’s ignorance. Is it elitist, or undemocratic, to suggest that people who call for lengthy incarceration terms have never been inside a prison, have no idea what it looks and feels like, and cannot imagine themselves or their loved ones go through it?

Theoretically, a good compromise between my position and that of the student might be a referendum system that also delivers nonpartisan information about the bills (particularly the budget) and limits expenditure and propaganda to a minimum. How that is to be achieved in a country in love with an absolute First Amendment is a difficult question. What leads me to despair is the fact that, in general, we’re experiencing a fairly shaky hold on the truth in the last few years, intensifying the already existing problem of voter ignorance and campaign misinformation that plagues referendum systems.

It’s pretty distressing to end up with this position, which seems to dovetail with Tom Lehrer’s introduction to one of his songs, where he says that “the reason folk songs are so atrocious is that they were written by the people.” An old friend who grew up in Saudi Arabia told me of going to public executions at the ripe age of 9 and seeing the crowds cheer. Sometimes we need to be dragged, kicking and screaming, away from a site of an atrocity by a responsible adult. I think what Newsom is trying to do is be that adult for us. 

Oh, and let’s talk more about this on April 9 at 7:30pm at Manny’s. Here’s the link to the event–I hope to see many of you there.

Upcoming Cheap on Crime Appearance at Manny’s

Hello Everyone,

I’m writing to invite you to an upcoming talk at Manny’s, the new café/civic engagement center in San Francisco (Valencia and 16th). 

When: April 9, 7:30pm-9pm
Where: Manny’s, 3092 16th Street, San Francisco
What: Cheap on Crime talk, with a special emphasis on the Trump Administration era. A little abstract:

Literature on “late mass incarceration” observed a contraction of the carceral state, with varying opinions as to its causes and various degrees of optimism about its potential. But even optimistic commentators were taken aback by the Trump-Sessions Administration’s criminal justice rhetoric. This paper maps out the extent to which federal, state and local actions in the age of Trump have reversed the promising trends to shrink the criminal justice apparatus, focusing on federal legislation, continued state and local reform, and the role of criminal justice in 2020 presidential campaigns. In this talk, I argue that the overall salutary trends from 2008 onward have slowed down in some respects, but continued on in others, and that advocacy concerns should focus on particular areas of the criminal justice apparatus, notably the intersection of crime and immigration and the issue of violent crime.

Come in your thousands and bring friends!

Moratorium!!! What Does It Mean?

California’s death chamber: closed. Source:
Office of the Governor.

Today’s stunning, forward-thinking announcement from Governor Newsom requires some careful parsing out. I am on my way to KQED, where I will discuss this with Scott Shafer and Marisa Lagos at 11am. If you can’t listen to the broadcast, here are some initial thoughts about the implication of this announcement and where I think we should go from here.

Moratorium: What It Is

Bob Egelko from the Chronicle reports:

Gov. Gavin Newsom is suspending the death penalty in California, calling it discriminatory and immoral, and is granting reprieves to the 737 condemned inmates on the nation’s largest Death Row.
“I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Newsom said in a statement accompanying an executive order, to be issued Wednesday, declaring a moratorium on capital punishment in the state. “The death penalty is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”
He plans to order an immediate shutdown of the death chamber at San Quentin State Prison, where the last execution was carried out in 2006. Newsom is also withdrawing California’s recently revised procedures for executions by lethal injection, ending — at least for now — the struggle by prison officials for more than a decade to devise procedures that would pass muster in federal court by minimizing the risk of a botched and painful execution.

The elements of Newsom’s orders are therefore: (1) a reprieve for every death row inmate; (2) shutdown of the execution chamber (3) a withdrawal of the continuous effort to revise death protocols, which we discussed on this blog numerous times. So, no more “tinkering with the machinery of death,” for at least a while.

Moratorium: What It Isn’t

Newsom is not commuting anyone’s death sentence. Even though executions will not happen, all death row inmates are still sentenced to death and housed on Death Row. He is also not pardoning anyone. This is far from the last step on the road to death penalty abolition. Shutting down the chamber and the protocol revision process, however, will set back executions even if Newsom’s predecessor misguidedly brings the death penalty back.

Why Didn’t Newsom Commute All Death Sentences?

Not all death sentences are eligible for commutation, and if Newsom were to commute all of them, he would be facing ferocious litigation. Shortly before the end of his gubernatorial career, Jerry Brown offered some commutations, which were reversed by the California Supreme Court, citing “abuse of power.” Some capital convictions, under California law, are not eligible for commutation, importantly in cases of prior felony convictions, which is the case for about half the inmates on death row. The last word on commutations lies with the court, not with the Governor, and if the Newsom administration wants to offer commutations, it will have to offer them on a case-by-case basis.

Why now?

It’s anyone’s guess, so here are some of my speculations. First, even in these cynical times, when the federal government is full of self-interested people for whom values and the good of the country do not rank particularly high on the priority list, there still are folks who do things on the state and local level because they think they are the right thing to do. Newsom is a long-time opponent of the death penalty and what he has done is in line with his personal values (in fact, conservative commentators have already attacked him for putting his values first–as if it is a bad thing.) Other reasons for the timing might involve the Kevin Cooper case, in which Newsom, joining the growing chorus of people with serious doubts about the conviction, recently ordered more DNA testing. Also, keep in mind that this is not a departure from Newsom’s previous gubernatorial acts in the criminal justice area. A classic example is his plan to move juvenile justice out of CDCR’s control into health and human services. He seems to be hell-bent on dragging the California correctional apparatus, kicking and screaming, into the 21st century, and turn us from a national embarrassment to a national leader in criminal justice.

Can Pro-Death-Penalty Activists Stop This?

They can try, and likely will. There’s nothing they can do about the 737 reprieves–those are squarely within the Governor’s ambit–but they could argue that the shutdown of the chamber and withdrawal of the regulations slouches toward an encroachment on a legislative process. It is quite likely that, in the next couple of days, they will seek (and perhaps receive) an injunction against that part of the Governor’s order, and that will drag on in the courts for a while. Meanwhile, though, no one gets executed, and that’s the material thing, and moreover, as of 12:45pm today, the death chamber has already been physically dismantled.

What Happens to Existing Death Penalty Litigation?

Because none of the sentencing has changed, everything in the capital litigation machine remains in place; in fact, just this morning I spoke to a friend who specializes on capital postconviction litigation and he was on his way to court for a death penalty case. So all of that stuff–quibbling over injections and historical miscarriages of justice–continues as scheduled, except perhaps with some less urgency.

Can Prosecutors Seek the Death Penalty in Cases Pending Today?

Yes, they can, and there are already murmurs around the web by prosecutors that they are required to do the bidding of their constituents (remind me again why we elect prosecutors and politicize our justice system?). But it would be, perhaps, more difficult for a San Bernardino, L.A., Orange, or Riverside county D.A. to justify seeking capital punishment, which is costly litigation (partly because it triggers an automatic appeal)

Should We Try to Abolish through an Initiative Again?

My two cents: Not anytime soon. Here’s why: When several European countries abolished the death penalty when local public opinion still favored it (check out the current struggle in Belarus, which embarrassingly is the only other Western country, beside the United States, with a death penalty). This seems to be one of those things–like, ahem, slavery, antimiscegenation, and homophobic laws about legal recognition of relationships–where top-down decisions tend to precede changes in public opinion and the public falls in line later. Keep in mind that support for the death penalty is at its lowest point since the 1960s and declining; in a recent piece, Daniel LaChance assesses the death penalty in the 21st century and concludes that it is in its last throes.

And remember, Newsom is a sharp and accurate predictor of the arc of progress, as he did with the marriage equality debacle, but he sometimes predicts things too soon for the public. Recall that he was on the right side of the same-sex marriage debate back in 2004, when thousands of our friends and neighbors stood in line in front of San Francisco City Hall to get married. What followed was years of arduous litigation, including a legal change AND a constitutional amendment that were supported by a small majority of Californians (just like the death penalty.) Newsom’s patience in leading struggles like this, it seems, pays off, and even though some criticized it as a political risky move, Kamala Harris’ recent trials and tribulations show that taking the opposite tack (doing politically expedient things that support the death penalty and selling out values for technicalities) also does not exactly pay off. If one has to choose between the fallout from being a careful political tactician and being a leader with values, Newsom has consistently chosen the latter.

Which is why I think we need to let the fallout from this play out for a while without getting public opinion mixed into all this (we know that, in 1865, the Civil War defeat didn’t exactly shift all Southerners toward support of slavery abolition.) Let’s see where the litigation over the order goes. Let’s keep track of homicide rates in the state for a few years, and when we see–as research consistently shows–that the moratorium has not eroded deterrence and that the death penalty has no proven deterrent power, it will be easier to get rid of it. Also, the passage of time plays out into another important aspect of this: the Eighth Amendment interpretation incorporates “evolving standards of decency”, so let’s allow them to evolve and see what the courts do. Which brings us to our last two points:

Nationwide Implications for the Death Penalty?

Eighth Amendment litigation is often shaped by the passage of time. What seemed kind and usual at one time might not seem like that today, and notwithstanding Foucaultian scholars and postmodernists of all stripes, in general the courts’ tendency has been to assume that we are moving forward, not in circles. California becoming a de-facto abolitionist state is a huge boost to the national struggle for abolition. We have the biggest death row in the country and have been very influential in the arena of extreme punishment. This is a big contribution to the critical mass of states that have moved to the abolitionist side–nineteen so far, and with California it’ll be twenty–and this bodes very well for a national abolition, though the current Supreme Court might be a more difficult venue to pursue this than how it was in its pre-Gorsuch and Kavanaugh makeup.

What About LWOP and LWP–the Other Two Components of the Extreme Punishment Trifecta?

Newsom’s decision does not affect the tens of thousands of people serving lengthy life sentences in California–with and without parole. Moreover, keeping death row inmates on death row means that they continue to litigate extensively at the state’s expense, and none of that investment and attention goes into the other two components of what I call, in my forthcoming book Yesterday’s Monsters, the “extreme punishment trifecta.” If anything, taking the mystery out of whether people are getting executed highlights the lack of difference between death row and life sentences and makes the arguments that life sentences are “the other death penalty” starker.

This only means that what happened today is good news. As readers of this blog know, I’ve always been upset with the progressive tendency to assume that reform is the enemy of revolution and that Dismantlement of the Prison Industrial Complex Must Happen Today Or Not At All. Which is why I wrote, back in 2016, this op-ed, titled “Are you against the death penalty? Good. Then vote against the death penalty.” The point that life sentences are cruel and horrible is not lost on me; quite the opposite, I’ve written a book that argues that attacking LWOP is not enough and that LWP is just as draconian given the vicissitudes of the CA parole system. But what we must remember is that reform always happens incrementally. I recently got to talk about this with Marc Mauer, coauthor of The Meaning of Life. Mauer says we must focus on life sentence abolition in all states that have already abolished the death penalty, and I think he’s right. Newsom’s courageous stance means that we can get to that business in California soon, and I, for one, am delighted that we finally get to fight more fights for what’s right.