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.

Thank You for Your Courage, Governor Newsom

Governor Newsom’s announcement of a death penalty moratorium is a breath of fresh air after decades of stagnation. Since the reinstatement of the death penalty in California, 13 inmates have been executed, while close to a hundred died of natural causes. Hundreds spend decades waiting for legal representation in interminable appeals whose focus has gradually shifted from big questions of humanity, discrimination, and innocence, to technicalities and chemicals. The death penalty—not in fantasy, but as actually administered in California—is racially discriminatory, risks tragic miscarriages of justice, and offers no comfort or closure to many victim’s families, as it is essentially an expensive version of life without parole in a dilapidated facility, to the tune of $150 million of taxpayer money annually.
Twice in the last decade did abolitionists attempt to marshal the voters’ common sense to retire the death penalty, and twice they came close, but failed. Public support for capital punishment is at its lowest level since the 1960s; almost half of California voters oppose it, and of those who support it in theory, few are aware of its many flaws, potential for mistakes, and ridiculous price tag. European countries that abolished the death penalty did so when it was still supported by most of their voters; sometimes the government and the legal system needs to take a moral stance when the public is not yet ready to do so.
Our political leaders, who could have dragged California’s extreme punishment into the 21st century, did not deliver. Former Governor Jerry Brown, personally opposed to the death penalty, did not use his last term in office—the perfect opportunity for a courageous, progressive move—to do the right thing. Neither did former Attorney General Kamala Harris, also personally opposed to the death penalty, who appealed a federal judge’s decision that the death penalty in California was unconstitutional due to the delays in its application. While upholding the decision would not have dismantled the death penalty, it would have created a political opportunity for doing so, and could have finally ended the political impasse that rendered California a national leader in so many ecological and social areas and a national embarrassment in its criminal justice system.
Californians should applaud Governor Newsom for doing what he can within the limit of his time in office to move the most draconian piece in the California correctional puzzle to its rightful place—the past. It is thanks to this visionary step that we will be able to shift the obscene expenditure on capital punishment toward what truly benefits Californians—not symbolic, fear-driven clinging to a misguided idea of a functional death row, but education, health care, green industry, and infrastructure. Finally, the sun shines on the darkest corner of California’s correctional landscape.

Tomorrow? Newsom? Death Penalty???

This just in:

Governor Gavin Newsom is expected to announce he is taking executive action to try to eliminate the use of the death penalty in California.
Two sources familiar with the governor’s plans tell NBC4’s I-Team that Newsom may use the governor office’s authority to reduce sentences of all condemned inmates on death row.
Newsom has been calling elected officials around the state to share some information, but details are expected to be revealed at a news conference at 10 a.m. Wednesday.

!!!! Stay tuned !!!!