The Rise of the Progressive D.A.

San Francisco is ablaze with the news that a new contender has joined the race for District Attorney: Public Defender Chesa Boudin. The Chron reports:

“We know the system is broken. Everyone knows that,” Boudin said in a recent interview in his Outer Sunset apartment. “I have the perspective, and the creativity, and the insight into the problems to do something other than just double down on harsher convictions and longer sentences.” 

More than nine months ahead of the Nov. 5 election — the first wide-open race for the district attorney’s office in more than half a century — Boudin has secured endorsements from city progressives like Supervisors Hillary Ronen and Aaron Peskin. He hopes to become the latest in a national wave of reform-minded candidates, in some cases public defenders, to run and win elections for district attorney. 

Boudin believes San Francisco can become safer and a leader in national criminal justice reform by prioritizing rehabilitation and reducing recidivism over punishment.

Boudin’s candidacy is making a splash because of his unique background: he is the son of two radicals who, in his infancy, were imprisoned for their part in the robbery of a Brinks armored car that  ended in the murder of two police officers and one safety guard. But in other ways it is characteristic of a recent interesting trend: the rise of progressives interested in reforming the system from a prosecutorial position.

When John Pfaff wrote Locked In he waged what, at the time, was an uphill battle against what he refers to as “the conventional story” of mass incarceration–namely, one that attributes the rise in imprisonment rates to the racialized war on drugs. Relying on statistics, Pfaff disproved the causality: most people are in prison for violent offenses, not drugs, and incarceration flows from criminality, not criminalization. However, notably, it wasn’t that people were committing more felonies: rather, county prosecutors were charging more violent felonies than before. The recession-era reforms I discuss in Cheap on Crime targeted, for the most part, the low-hanging fruit of nonviolent offenders, which made them more politically palatable and easier targets of bipartisan good will. To produce a significant dent in incarceration rates, said Pfaff, we need to embrace reform for violent criminals.

While Pfaff’s explanation was less edgy and politically popular than the mainstream war-on-drugs explanation, he gradually managed to win over mainstream progressive, as this New Yorker essay by Adam Gopnik demonstrates. Among those convinced that the key to reversing incarceration trends is changing prosecutorial policies was activist Shaun King, founder of the PAC Real Justice. The PAC’s goal, per its website, is threefold:

  1. Elect candidates to county prosecutor positions where they can make a material impact on people’s lives by helping to combat discriminatory policing, limiting or eliminating money bail, and rolling back other practices that lead to mass incarceration. Electing reformers to county prosecutor positions will also help restore voters’ faith in public sector to address their problems.
  1. Win county prosecutor races with a systematic, mass participation approach to digital and field pioneered on the Bernie Sanders presidential campaign. Once prosecutors are elected they face enormous pressure from police unions, other elected officials, and the staff in their offices. A campaign that includes volunteer to vote contact, small dollar fundraising, and social media organizing will strengthen the voices of voters as a countervailing, pro-reform voice to hold newly elected prosecutors accountable to the people who helped elect them.
  1. Win races with a mandate for real justice. By working to help candidates with a bold, clearly articulated platform win by the widest possible margin, we help create a mandate for overcoming the barriers to making big changes on day one of a new administration. The 2017 success of Larry Krasner in Philadelphia raised the bar for what reformers could demand once in office — and other elected local officials are following suit such as when the Philadelphia City Council voted to abolish cash bail.

Larry Krasner’s victory became the blueprint for the new prosecutorial candidate: the progressive D.A. Like Boudin, Krasner was a career defense attorney who famously took on law enforcement in high-profile lawsuits.

Do progressive D.A.s live up to their promise? It remains to be seen. David Sklansky study of the change in police demographics was not optimistic about the effect of police diversification on police culture, but we could differ on whether the prosecutorial organizational culture is more amenable to change. Boudin’s candidacy promises a memorable race, but should he win, his tenure as D.A. could be an interesting test case: will he change the face of San Francisco prosecutions, or will the office change him?

Good Intentions, Bad Consequences: Appreciating the Value of “We Blew It” Explanations of Mass Incarceration

In his 1985 masterpiece Visions of Social Control, criminological giant Stanley Cohen starts off by identifying the main features that transformed the way Western industrialized societies control deviance, which were largely completed by the 19th century: increased state involvement, increased classification of deviants, increased segregation into total institutions, and the decline in the infliction of bodily pain. He goes on to sketch three primary templates in which scholarly literature has sought to explain this transformation:

Uneven Progress: this story is an “arc of progress” trope, which essentially sees shifts in social control as overall benign. Not only are they motivated by a desire to do good, but they actually do good: in the overall scheme of things, our ideas of appropriate punishment become more humane and sophisticated, and the occasional misstep along the way will course-correct itself in time.

Good (but Complicated) Intentions – Disastrous Consequences: this story, of which David Rothman’s Conscience and Convenience is the perfect example. Notions of enlightenment and benevolence (often misguided by paternalistic perceptions of who the underclass is and what’s best for them) shape  basic notions of what the solution should be, but along the way the values become diluted and the original plan is undermined by managerial and practical goals.

Finally, the Discipline and Mystification story, whose best representatives are structural Marxists and Foucault, argue that the terrible system we’ve come to create is exactly what it is intended to be. Controlling and repressing the underclass is the goal of the capitalist elite, or the ultimate aim of governmentality. This is a much more cynical view than the one espoused by the previous model: we actually don’t want to do good–what we really want is to produce docile workers and citizens and our social control systems achieve exactly that.

While Cohen mostly addresses the classic subject of the emergence of the prison and other confinement institutions (in other words, the shift that Foucault addressed in Discipline and Punish and Rusche and Kirchheimer addressed in Punishment and the Social Structure), I find that his classification of templates applies well to the study of mass incarceration as well. Visions was published in 1985, when a rise in incarceration patterns in both the United States and the United Kingdom was already becoming evident but not near its maximum rate circa 2008 (and the declining crime rates were probably not a clearly pronounced trend yet.) Since the publication of Visions, many scholars of punishment and social control have provided their own accounts of the rise of mass incarceration, and while the accounts conflict with each other on various theoretical and practical points, one feature they tend to share is eschewing the “uneven progress” perspective. You’d be hard pressed to find an analysis of mass incarceration that thinks that the shift in incarceration patterns has been positive. Criminologists look at the mirror through a negative slant, one that is not solely attributable to bias: in a lot of ways, things *have* gotten worse, or at least it is easy to problematize the argument that they have gone better. For example, is it really better to give lethal injections in highly controlled and supposedly medicalized conditions than to hang people in the town square? The rate of botched executions would suggest not. And, is it really better to put people in county jails ill-equipped to provide for their needs than to warehouse them in giant, overcrowded facilities? The complaints about basic conditions and health care would suggest not. If there are narratives of progress, uneven or not, they are usually to be found in official communiques of correctional authorities and institutional actors, not in scholarly critiques.

As to the more critical paradigms, perhaps because of the dramatic influence of radical criminologies and Foucaultian thinking (see also here), most classic and new accounts of mass incarceration tend to fall into the “discipline and mystification” category. These employ categories of class and race (less frequently, gender) to argue that the system is deliberately shaped to oppress, control, and marginalize the bottom rungs of the social hierarchy. This theme became even more pronounced with the rise to prominence of the conversation about neoliberalism (at least the way we have redefined the concept) and with the vast popularization of critical race analyses of mass incarceration (which not so much offer theoretical novelty, but have had a dramatic effect on the world outside academia.)

It is easy to see the appeal of the “discipline and mystification” approach. First, virtually all punishment and society scholars agree that mass incarceration has been, overall, an unqualified evil, and the natural tendency is to look for blame, mostly among people and institutions we find objectionable. And second, the world of criminal justice does offer clear examples of people and institutions whose bad will cannot be denied. The Southern judge in Mona Lynch’s Hard Bargains comes to mind, as does the prosecutor that opens Nicole Gonzalez van Cleve’s Crook County. Similarly, Joe Arpaio (to whom Lynch has appropriately referred to as a “penal cartoon”) is not someone you have to strain much to ascribe bad will to–and neither is Harry Anslinger.

These folks make for easy cases. But much of the perspectives that assume bad will, or some negative design from inception, do not actually feature ill-willed individuals at the helm, but rather the argument that individuals’ reactions to events are shaped by deeper systemic inequalities. The source of evil, in other words, lies in society, culture, or established state institutions, and people operate largely within these structural boundaries, thus fulfilling the goal of evil that the institutions intend. These larger-scale analyses follow the theoretical frameworks of Foucault and the Marxists, neither of whom pointed fingers at individuals, and all of which, especially Foucault, actually emphasized the impersonal nature of evil.

The appeal of this perspective is obvious in the American context. Many accounts of American mass incarceration start at the outset by pointing fingers toward Richard Nixon and Ronald Reagan as Bad Guys no. 1 and 2 (for a classic example see Katherine Beckett.) In both of these cases, especially regarding Nixon, we have enough evidence to know that there was actual bad animus behind the decisions. The more recent punishment and society works, however, have been expanding the circle of blame to institutions and individuals previously perceived as part of the “good guy” bloc. In Governing Through Crime, Jonathan Simon argues that politicians of every stripe, including progressives, benefit from posturing as tough on crime. In The Prison and the Gallows, Marie Gottschalk places some of the blame for mass incarceration on the shoulders of prisoners’ rights advocates and death penalty opponents. In The First Civil Right, Naomi Murakawa attributes much of the evil of mass incarceration to civil-rights liberals. And in From the War on Poverty to the War on Crime, Elizabeth Hinton argues that Nixon was not so much an aberration, but rather a direct continuation of the oppressive, paternalistic, racist approaches to crime control of his predecessors, Kennedy and Johnson, who were assisted by the oppressive, paternalistic, and racial top-down policies espoused by their academic advisors, criminologists Cloyd Ohlin and Richard Cloward.

We could debate the factual assertions underlying these works. While many of the arguments they advance are grounded in careful historical inquiry, others overlook the ways in which liberals and progressives have fought against the incarceration sprawl (I have some classic examples of this in Yesterday’s Monsters, where I show that, contrary to received wisdom, many civil rights organizations saw right through determinate sentencing and, back in the mid-1970s, warned that it would bring about a bloated correctional apparatus.) Maybe some of the tendency to blame liberals and progressives comes from an effort to “overcorrect” previous literature, which relegated the blame to Nixon, Reagan, and their cronies, without any self introspection on the left. But for our purposes here, I think it’s more helpful to look at tone. To the extent that these folks have “blown it” and contributed to the scale of imprisonment and its adjacent, or embedded, racial injustices, should we spend scholarly effort at looking at their intentions, or at the structural constraints within which they were working? The tendency in the field is clearly to do the latter, which is why I find two recent books so refreshing.

The first of these is James Forman’s Locking Up Our Own, which uses as its case study Washington D.C., a city characterized by robust participation of African American politicians and law enforcement officials in its structure of policymaking structure. Forman takes on the question why these African American stakeholders ended up supporting some of the policies that brought about increased crime control crackdowns in the streets, as well as punitive sentencing policies. The book revolves around several historical axes: the advent of the war on drugs, the crossroad on gun control policies, sentencing policies, the response to the crack epidemic, and the expansion of stop-and-frisk police strategies.

What is important about Forman’s account is that at no point does he make light of the gravity of the problems faced by the African American community. Violent crime and drug-related devastation, as well as the proliferation of illegally-obtained weapons, were all real things that were happening in real neighborhoods to real people, and raised serious problems that imperiled and burdened communities already burdened by institutional racism (of course, these problems themselves originated from institutional racism as well; this is the tragic double-winged problem of racialized law enforcement, that both criminality and criminalization stem from the same poisoned fountain of stunted opportunities and crippling poverty.) Moreover: Forman does not doubt at all the altruistic motivation of the actors–police chiefs, journalists, lawmakers–who, in the name of wanting to assist their community in its plight, ended up espousing policies that, in hindsight, yielded disastrous consequences. The urge to clean up the streets from drugs led to aggressive, disproportionate enforcement. The desire to help people help themselves against armed assailants exacerbated the proliferation of guns. Sentencing reforms filled prisons and fueled punitive animus, and adding stop and frisk to the police’s toolbox disintegrated any trust between the police and the communities they were hoping to serve.

But it is important to recognize that, even as African American stakeholders participated in locking up their own, their own biographies and stories show their genuine good intentions. Forman’s account shines with historical nuance when he delves into the personal history of Burtell Jefferson, Washington D.C.’s first African-American Chief of Police. Jefferson rose through the ranks making ten times the effort of his white counterparts, overcoming immense structural racism and outsmarting the racist selection policies by excelling in the promotion tests so that his blackness could not count against him by those who sought to exclude him from rank. Jefferson shines as someone whose truly admirable rise through the ranks was motivated by a desire to do well for a plighted community, and as someone who spent an enormous effort mentoring others who followed in his footsteps. Jefferson is just one example of the people Forman introduces in the book, most of whom were motivated by a similar genuine desire to help their communities. Their motivations, except when he finds evidence to the contrary, are taken at face value, even as he places them in the context of the structurally rotten situation they were in.

Forman’s answer to the main question animating his book is therefore not one of evil, mystification, and bad faith: it all boils down to lack of imagination. When you have a hammer, he argues, everything looks like a nail. In the absence of workable public health models for handling the drug crisis, or a memory of using more innovative models, people sought, in good faith, to represent the interests of the community and assist it in its plight. It is valuable to acknowledge, as Forman does, the tragedy in the fact that violent crime–which was and is a real problem in urban neighborhoods–disproportionally implicates as well as victimizes people of color. Because of this, the politicians’ and cops’ demands for a crackdown is not merely motivated by racial animus, but by the value of protecting the very community that produced both the crime and the victimization. Was the fix worse than the problem? Sure. Could it be avoided? We can only tell in hindsight. Can we fault the architects of the fix? Only for their lack of prescience.

Heather Schoenfeld’s Building the Prison State offers a similar nuanced analysis, though her take on the reformers is somewhat less benign than Formans. The book looks at the growth of mass incarceration in Florida, identifying the root of the problem as a cynical exploitation of a loophole left in the consent decree in Costello v. Wainwright. In the case of Schoenfeld book, the interventions that paved Florida’s path toward astronomical growth in incarceration were not so much front-end policing reforms, but rather the construction of additional institutions. The growth of the state’s population by two million throughout the sixties,  as well as the actual rise in crime and the new policing techniques, meant that between 1968 and 1972 the prison population grew by 31 percent (p. 74). The warden, Wainwright, was amidst a modernization project, and saw the overcrowded and outdated facilities as hurdles on his path to implement more rehabilitative programming behind bars. Civil rights attorney Toby Simon, who fought for the inmates who suffered from the overcrowding, prevailed, but so did prison officials who wanted updated facilities. Since the entire Florida system was overcrowded, Wainwright would not be able to reduce overcrowding by moving inmates from facility to facility, but by pursuing one of two courses of action: releasing prisoners (via good behavior or parole) or increasing capacity (via building more prisons.) The political developments in the years that followed, argues Schoenfeld, and the law-and-order sense that releasing inmates was a non-starter, led to the latter strategy–which was not only technically compliant with the consent decree, but also true to its spirit: Judge Scott gave equal weight to both strategies. It was the historical aftermath, complete with the rise in racist animus, that led to the increase in incarceration.

At each junction of her narrative, Schoenfeld emphasizes that the disastrous outcomes of the implementation of Costello could have been avoided. But her accounts of the motives of individuals show an interesting mix of institutional agents along the political spectrum, most of whom genuinely wanted to fix what they perceived as substandard incarceration conditions. That the outcome became coopted as the raison d’être of a big construction project does not contradict the fact that, absent evidence to the contrary, people’s good intentions–both Simon’s and Wainwright’s–are taken at face value.

Schoenfeld’s answer to the question why incarceration spiked in Florida is therefore nuanced and complicated. Far from top-down villainy, it seems to be a combination of the federal court’s reluctance to lean on the state, and perhaps a lack of prescience about the possible implications of prison construction.

Both Forman and Schoenfeld’s accounts of mass incarceration are attentive to the structural constraints–as Schoenfeld calls them, racial projects–underlying assumptions about crime, criminality, and the need to protect the public. But neither of them goes as far as to deem the disastrous outcome foreseeable, planned, or self-serving. The characters they describe operate within these constraints, but they are not powerless pawns in the clutches of an oppressive machine: they wield power to do what they genuinely believe will make the situation better. This approach is far from naive: it is sensitive to the convergence of institutional interests and to the dilution and perversion of ideals. But it does not assume “intelligent design” in the carceral architecture.

This approach is very promising for various reasons. First, it is historically genuine. Delving into the micro-level of institutional and individual motivations does not superimpose our current ideas about governmentality or neoliberalism on the factual patterns. Analyses in the tradition of the “discipline and mystification” family of approaches can play out in ahistorical ways, ascribing bad intentions and villainy to people and ideas in ways that were far from obvious in their time. A good example is Hinton’s critique of Ohlin’s support for top-down reforms to address juvenile delinquency. Ohlin, a prominent criminologist, did a substantial amount of public service, as special consultant on delinquency to the United States Department of Health, Education, and Welfare under John F. Kennedy,  associate director of the President’s Commission on Law Enforcement and Administration of Justice under Lyndon B. Johnson, and a member of the National Institute of Law Enforcement and Criminal Justice under Jimmy Carter. Today’s scholarship on racialized criminal control, infused by the deconstructionist approaches exemplified in Khalil Gibran Muhammad’s Condemnation of Blackness, question and critique the emergence of a link between race and criminality; but in a world in which Merton’s now-obvious arguments about inequality and criminality was still fresh, Cloward and Ohlin’s attribution of crime among low income people of color as a product of diminished opportunities was fresh and revolutionary. In other words, they made strides that today seem reactionary but at the time were perceived as progressive, rehabilitative, and far less oppressive than the alternative. Should they have built on community strengths, rather than espousing a top-down approach that looked at the pathologies of the black family as the causes of crime? In hindsight, sure. But in the 1960s, they did not have the benefit of Muhammad and Hinton’s scholarship. Hinton admits that their intentions were likely good, but her analysis for the most part criticizes them for being, essentially, men of their time. In other words, relying on a “good intentions-disastrous outcomes” as the default position fosters another virtue that we tend to fall short on in criminological research: a historically informed approach fosters some understanding, empathy, and forgiveness for reformers, who–like us–wanted to do what they thought as best.

Another advantage of pausing before attributing bad will is that the way we analyze history also shed light on how we should make sense of the present. Many readers of this blog post were (and perhaps still are) ardent supporters of the Ban the Box initiative, because we all want to bring about a reality in which people with criminal records are not excluded from employment and opportunity. Not only do we want to see better reentry and integration of returning citizens into society–especially given what we know of the immense hurdles to successful reentry–but we also harbor serious concerns that discrimination on the basis of criminal records disproportionately burden people of color, widening interracial gaps in employment. But much to our collective dismay, the successful campaign on behalf of Ban the Box has had mixed outcomes.

The policy has increased callback rates for people with criminal records and “effectively eliminated” the effect of having a criminal record on receiving a callback. Case studies from specific cities support these results, showing that hiring rates for people with criminal records increased after ban the box was implemented. Additionally, ban the box as a social movement has drawn attention to the plight of people with criminal records and has increased awareness of the challenges they face beyond employment.  But recent research has concluded that ban the box also reduces the likelihood that employers call back or hire young black and Latino men. These findings suggest that when information about a person’s criminal history is not present, employers may make hiring decisions based on their perception of the likelihood that the applicant has a criminal history. Racism, harmful stereotypes, and disparities in contact with the justice system may heavily skew perceptions against young men of color. In other words, rather than using people’s criminal records as a proxy for their race, in the post-Ban-the-Box world we use people’s race as a proxy for their possible criminal records.

An improvement in reentry odds, employment, and racial equality? Not really. But does this mean that those of us who supported Ban the Box and advocated for it was part of the overall design to continue to oppress marginalized populations? Despite the disastrous consequences of the policy, which we must strive to correct, the very fact that we managed to put together a coalition advocating for reentry and equal opportunity is important. It shows that it is possible to organize and advocate. The lessons from the story might be more complicated. Maybe we should conclude that we have to be more imaginative in our predictions of unintended consequences. Maybe we should be wary of falling in love with particular reforms, and maintain the flexibility required to “course correct” once it is evident that something we espoused does not work as well as we’d hoped. Or, more pessimistically, maybe the embedded racial animus in society means that racism always finds a gap through which to sneak in and sabotage people’s dreams of equality and opportunity, and we have to find ways to work against it while forgiving ourselves for not being perfect. In any case, the Ban the Box example, as well as the examples Forman and Schoenfeld discuss, remind us that some humility is in order whenever assessing failed criminal justice reforms.

Finally, assuming good will on the part of criminal justice reformers that we fear are taking us on the wrong track is more conducive to dialogue, and to the use of facts, than disengaging from opponents because we perceive them as ill-motivated, or as captives in systemic inequality. Of course, sometimes the lack of good will will be obvious, but when there is no evidence of sinister machination, we have nothing to lose from engaging with others–especially when dealing with people on the same side of the political map, who have a largely similar vision for a good society and might disagree only on the way to get there.

Before Leaving Office, Jerry Brown Should Commute All Death Sentences

In a few days, Jerry Brown will end his tenure as Governor of California and cede the gubernatorial seat to Gavin Newsom. Newspapers are already summarizing his career, including a record number of pardons and commutations. Indeed, the Brown administration stands out from previous gubernatorial administrations in the extent to which it intervened in release processes, including, as I write in my forthcoming book Yesterday’s Monsters, considerably more parole grants than Brown’s predecessors.

So one has to wonder: Since Brown is a staunch opponent of the death penalty, why won’t he get rid of it de facto by commuting all death row sentences?

Mass commutations of death row are not new. In 1972, as a consequence of the California Supreme Court’s decision in People v. Anderson, the sentences of all 174 inmates on death row were commuted to life with parole. Among those whose sentences were commuted, as I explain here (and in Yesterday’s Monsters) were Charles Manson and his followers, as well as Sirhan Sirhan. The decision infuriated many in California and led to a backlash legislative workaround (Proposition 17) whose constitutionality was hotly debated in California courts for years.

The difference between then and now was that, in 1972, California law did not include a life without parole option. Moreover, the actual sentences served for homicide offenses were much shorter than they are now. The dramatic gap between the death penalty and a parole hearing after seven years–it was not outlandish at all for a person convicted of murder to be released after ten or fifteen years–infuriated the public.

True, a gubernatorial move here would differ from the post-Anderson situation in that there hasn’t been a court decision forcing the governor into action. But the gap in people’s fates (and the implications to public safety, to the extent that this is even a consideration for aging, sick inmates) would be much smaller than in 1972.

Brown and Kamala Harris, in her prior office as Attorney General, had a chance to bring death penalty abolition a step closer after Jones v. Chappell and chose not to do so, even though all it would require would be doing nothing. But now, doing something is not only possible (free of technicalities) but imperative. Before leaving office, Brown can join a critical mass of abolitionist states by getting rid of death row de facto. He would be handing the Newsom administration a correctional apparatus that is $150 million a year cheaper to administer.

There are still a few days left to do the right thing.

What Counts as a “Deadly Weapon?”

Minor in possession of a deadly weapon?

Last week, the California Supreme Court decided In re B.M., a case that required the Justices to address the meaning of the term “deadly weapon.”

The story, in essence, is this: B.M, a teenaged girl, returned home one night and found that her sister had changed the locks (there’s probably a bigger story here than could be examined through the lens of this case, but we’ll get to that later.) She managed to get in through the window and confronted her sister. In her anger, she picked up a butter knife in the kitchen–a dull metal knife with round serrations at the end, which is usually used for spreading butter rather than for cutting. She came into her sister’s room holding the knife and the sister covered herself with a blanket.

Here is the case’s description of the interaction:

B.M. approached Sophia, who was lying on top of the bed with her knees bent. Sophia testified that B.M. “came . . . at [her] trying to stab [her]” and that from a distance of about three feet, B.M. made several “downward” “slicing” motions with the knife in the area around Sophia’s legs. Sophia further testified that the knife hit her blanketed legs “a few” times and that the amount of pressure B.M. used was “maybe like a five or a six” on a scale from one to ten “if one is the least amount of pressure and ten is the most pressure.” Sophia initially said B.M. poked her with the knife, but she later clarified that B.M. did not poke or stab her and that B.M. did not “hurt” her. B.M. testified she only “wanted to scare [Sophia]” and “had no intentions in actually stabbing [Sophia] with [the knife].”

Reading between the lines, it seems that Sophia had originally exaggerated her description of the events to the cop who showed up, and later retracted some of that when she realized this might have consequences. There’s also clearly a history between B.M. and Sophia that is left unexplored in this decision.

The Supreme Court reversed the Appellate Court decision, which affirmed B.M.’s conviction for assault with a deadly weapon. In doing so, the Court established a realistic, context-driven definition of “deadly weapon”:

We hold, consistent with settled principles, that for an object to qualify as a deadly weapon based on how it was used, the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury. The extent of any damage done to the object and the extent of any bodily injuries caused by the object are appropriate considerations in the fact-specific inquiry required by Penal Code section 245(a)(1). But speculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate.

In other words, in the context of this case, when an inexperienced person ineffectually waves the weapon toward someone covered in a blanket, in a manner that cannot hurt the other party, the weapon is not a “deadly weapon.”

Common sense decisions like this are important, because the trend in the last decades has been to expand the reach of elements and enhancements involving weapons. But the decision has special significance for cases involving women and juveniles. The method by which women and girls commit violent offenses is different than that of men, and ignoring gender context misses out on important parts of the picture. As Lyn Brown, Meda Chesney-Lind, and Nan Stein explain in this paper, there has been an increase in the criminalization of girls, which is perceived as an increase in girls’ violence. This has sparked a moral panic regarding girls. But when you look at the context, what you find is that girls are criminalized with increased frequency for behaviors that are often a response to a larger context of domestic abuse (as might be the.case in B.M.’s case – we simply don’t know the full picture.) Moreover, treating assaults involving weapons more seriously, a seemingly straightforward, gender neutral convention, overlooks a fact that my friend and former student Ryan Newby found plays an important role in violent crime sentencing: the fact that, in domestic assault contexts, women are more likely to use a weapon to even the odds against assailants who are frequently bigger and stronger than they are. Ignoring this context makes it appear as if the assault is more serious because a weapon has been used, when oftentimes the weapon is whatever was at hand in the kitchen–such as the butter knife in this case.

The California Supreme Court decision makes no mention of this broader context, but it is useful to keep it in mind. Gender equity in sentencing is not always straightforward, because the language of the law is neutral and ignores what empirical research tells us about the circumstances of violent offending. This is, therefore, an even better decision than it appears at first blush.

Oh, and the kid in the picture is my very own minor. 🙂

The First Step Act: Humonetarianism Alive and Well

When my phone buzzed with a new notification, I felt a bit queasy reading that a new crime bill passed in the Senate was regarded “a victory to Trump.” But upon reading the bill, I realized this was the First Step Act, a watered-down bipartisan federal crime reform bill from the people who brought you the Obama-era federal reforms. The New York Times reports:

The First Step Act would expand job training and other programming aimed at reducing recidivism rates among federal prisoners. It also expands early-release programs and modifies sentencing laws, including mandatory minimum sentences for nonviolent drug offenders, to more equitably punish drug offenders.

But the legislation falls short of benchmarks set by a more expansive overhaul proposed in Congress during Barack Obama’s presidency and of the kinds of changes sought by some liberal and conservative activists targeting mass incarceration.

A look at the bill text provides some more insight. 
The main idea behind the bill is a buzzword we’ve heard a lot in the last few years: evidence-based recidivism reduction. The idea is to develop programs (and provide grants) for risk and needs assessments of federal prisoners, which would predict the recidivism risk of every inmate and then match him or her with evidence-based programs that address that particular person’s needs. These could include visits, institutional transfers, more opportunities to use the commissary service or even email, and other incentive. The most notable of these, perhaps, is time credits attached to the programs, which can be credited toward early release. The usual exceptions apply: As with the Obama-era reforms, these privileges and options will be available to low-level, nonviolent inmates, and not to “non-eligible” inmates, which committed violence offenses.
In short, this is a clear sequel to the trends I pointed out in Cheap on Crime. Effectiveness and efficiency are explicit criteria for the programs; the bill passes with bipartisan support; and the bill applies to the usual clientele of humonetarian reform, i.e., nonviolent, low-level inmates. 
The background to the First Step Act is indicative of the price we have to pay for bipartisan reform. Kamala Harris referred to this as a “compromise of a compromise,” which reminded me of the kind of discussion we had whenever I presented Cheap on Crime to a new audience. How much do we compromise or give up in order to get something? In the Trump Era, this means that bills of this kind are going to carry far less impact than their Obama-era predecessors, who were themselves products of compromise.

Prison Abolitionism, Anti-Zionism, and the Risks of Fashionable Thoughtlessness

More than five years ago, I started noticing that people whose positions on mass incarceration and its discontents were similar to mine were identifying as “prison abolitionists.” Whenever I was asked whether I, too, was an abolitionist, I used to defiantly say “no,” until I buckled down and wrote this post, which still accurately reflects where I stand on the question of abolition. TL;DR for you: I think crime is real, it has an ontological existence beyond the repressive state and causes real harm for real people, and some people who commit crime–far less we have behind bars, but more than zero–need to be behind bars to protect the public. If anything, the work I’ve done since that post–writing a book in which an aging Charlie Manson is one of the characters, and participating in crime prevention summits in which victims and perpetrators come together in a call to put an end to real, actual violence happening in the streets–have strengthened my commitment to radical realism.

Last night, at James Forman‘s excellent talk about Locking Up Our Own at City Arts and Lectures, I had another opportunity to think about this. At the Q&A part of the evening, a young man rose and asked Forman and Lara Bazelon (who was interviewing Forman) whether they were abolitionists, and why or why not. Forman gave a nuanced and interesting answer. He said (I’m paraphrasing from memory) that there is something very appealing in envisioning a system that does not rely on law enforcement and incarceration as the ultimate solution to its problems. At the same time, he said, he was struggling with notions part of him still harbored that prison was still appropriate for some people. The examples he gave were Michael Cohen, Harvey Weinstein, cops who shoot people of color, and perpetrators of hate crimes.

I thought about Forman’s answer a great deal later in the evening. My first, facile interpretation of his response was that, like many of my friends, it showed the unbearable lightness of doing away with due process and civil and human rights for defendants we don’t like. But we later had a brief conversation in which I realized that Forman and I actually agreed on far more than I thought. We both believe that the prison apparatus is used exponentially more than it should be, that it exposes people to horrific violations of their human rights and to threats to their basic existence, and that it hasn’t been shown to reduce crime or rehabilitate people. And we both believe that there is a small minority of people who need to be behind bars–Forman highlighted retribution, I’d be talking more about incapacitation. Also, my shortlist of people that should stay behind bars might include folks that belong to categories of people “we” like as well as those we dislike. Forman’s response to the young audience member was a model of humility and honesty, but we end up pretty much in the same place.

Later at night it occurred to me that most of the self-defined abolitionists would probably agree with both of us that there is still room for institutional confinement, though not in its current shape and not to the degree of its current usage. And then I thought that, like so many other terms, the term “prison abolitionism” has suffered from a serious dilution of its meaning. In its original formulation, by Norwegian criminologists such as Thomas Mathiesen, abolitionism meant absolutely no prisons. Or, a revolutionary reversal of fortune – using them to lock up the bankers and environmental destroyers. Crime, Mathiesen argued, is not a real thing, and prison is nothing more than a manifestation of state repression. It is a fairly extreme position, but it has the benefit of being ideologically genuine and undiluted.

In a lot of ways, the fight over the semantics of “abolitionism” reminds me of a similar fight over a term that is fashionable among the same milieu: anti-Zionism. Most of my encounters with self-defined anti-Zionists indicate that they either do not understand what Zionism is, or have such a reductive definition of the term so as to equate it with right-wing Messianic racism. As an Israeli who studied Zionism extensively by reading original texts, and being exposed to the many strains in Zionist thought, including multicultural, liberal and tolerant Zionism, I confess that these New York Times paragraphs really resonate with me:

Israelis experience anti-Zionism in a different way than, say, readers of The New York Review of Books: not as a bold sally in the world of ideas, but as a looming menace to their earthly existence, held at bay only through force of arms. It’s somewhat like the difference between discussing the effects of Marxism-Leninism in an undergraduate seminar at Reed College, circa 2018 — and experiencing them at closer range in West Berlin, circa 1961. 

Actually, it’s worse than that, since the Soviets merely wanted to dominate or conquer their enemies and seize their property, not wipe them off the map and end their lives. Anti-Zionism might have been a respectable point of view before 1948, when the question of Israel’s existence was in the future and up for debate. Today, anti-Zionism is a call for the elimination of a state — details to follow regarding the fate befalling those who currently live in it. 

Note the distinction: Anti-Zionists are not advocating the reform of a state, as Japan was reformed after 1945. Nor are they calling for the adjustment of a state’s borders, as Canada’s border with the United States was periodically adjusted in the 19th century. They’re not talking about the birth of a separate state, either, as South Sudan was born out of Sudan in 2011. And they’re certainly not championing the partition of a multiethnic state into ethnically homogenous components, as Yugoslavia was partitioned after 1991. 

Anti-Zionism is ideologically unique in insisting that one state, and one state only, doesn’t just have to change. It has to go. By a coincidence that its adherents insist is entirely innocent, this happens to be the Jewish state, making anti-Zionists either the most disingenuous of ideologues or the most obtuse. When then-CNN contributor Marc Lamont Hill called last month for a “free Palestine from the river to the sea” and later claimed to be ignorant of what the slogan really meant, it was hard to tell in which category he fell.

When someone who holds oversimplified, reductionist thoughts about the Israeli-Palestinian conflict, which were shaped by American liberal education, tells me proudly that they are anti-Zionist, I have to ask myself: Does this person believe I do not have a right to exist? That my family and friends, whose lives are rife with activism for peace, multicultural friendship and relationships, and a strong commitment to coexist with Muslim, Christian, Druze, and Circassian friends, should drop dead? That it was justifiable, and maybe even laudable, to bomb a university cafeteria and kill nine of my friends? This reductionism worries me greatly, not only because it reflects great ignorance, but also because it is fashionable among well-meaning social justice folks whose understanding of the realities of Israel/Palestine lacks nuance and empathy.

That is exactly what I feel about the equally fashionable identification with abolitionism. When someone–typically a middle-class, economically comfortable, highly educated white academic–tells me proudly that they are a prison abolitionist, I have to ask myself: Does this person believe that lethal violence over drugs, which ravages lives and destroys cities and neighborhoods, does not have an ontological existence? Does this person understand that the victims of the crime, whom they claim is nothing more than the fabrication of a perverse, oppressive state, are real people who miss their loved ones and need to be taken seriously? Is this person comfortable with some sort of alternative community reaction to, say, serial killers?

Or maybe this person agrees with me that prison is essential, but on a much smaller and humane scale, and adopted the diluted label of abolitionism because that’s part of the fashionable argot of this discipline? And if so, what exactly makes them an abolitionist?

I’m curious to hear more from you, especially if you consider yourself an abolitionist. I think you’ll find, like me, that we are virtually in agreement on how broken the system is, but I seem to have a more severe allergic reaction to labels.

Police You Can Trust: Enriching Our Imagination about What’s Possible in Criminal Justice

Last night I had a real treat in listening to the wonderful James Forman Jr. speak at the Nourse Theater with Lara Bazelon, as part of the City Arts and Lectures series, about his excellent new book Locking Up Our Own. Among the issues that came up was the big question behind the book: why did so many people in color in a city where African Americans hold power positions–mayors, chiefs of police, prosecutors–make again and again choices that aligned with law and order interests? In the book, Forman does not mince words about how misguided these choices were, but at the same time shows you, through careful analysis of personalities and socio-cultural contexts, where these people were coming from: they were responding to calls of distress coming from their own community. At yesterday’s talk he added that, like all of us, these lawmakers and actors suffered from a lack of imagination in terms of what we might expect as good solutions for social problems. Violence in the streets? The answer is more law and order. War on drugs? The answer is more law and order. Why, asked Forman, do we never pause to think that, given how unsuccessful the previous prison term was, another one might be a waste of time and money?

Part of this “poverty of the imagination” in responding to criminal justice issues, Forman explained, was in tackling various street and quality of life offenses. What if the police, rather than arresting someone, could take that person directly to a drug problem? Or, better still, what if the police were not at all involved and there were social workers or therapists at the frontline of the problem, as befits a true public health model?

Forman’s words reminded me of a fascinating and pragmatic blog post by Broke-Ass Stuart, titled What To Do When Someone Is Having a Mental Health Crisis in the Street. When confronted with that situation, Stuart himself reports of his dilemma:

I knew for sure that I didn’t want to call the police. There’s the great quote by Abraham Maslow that says “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” And unfortunately that’s often how it is with the American police. They are trained in ending crisis situations forcefully, but there isn’t enough training in how to deescalate them so that no one gets hurt or killed. While that is in the process of changing as we speak, I’d still rather involve people who already have the training. 

I understand where Forman and Stuart are coming from. It is scary to consider the possibility that calling the police to an incident site starts a chain reaction that classifies the incident as criminal, the person involved as a threat, and could lead to violence. But I’m wondering if the understandable and well-meaning reaction not to involve the police doesn’t reflect its own version of “poverty of the imagination”, in the sense that it gives up on the possibility of a police force we can trust and believe in.

One of the first cases I teach in my criminal procedure class is City of San Francisco v. Sheehan. Teresa Sheehan, who was severely mentally ill, lived in a group home; one day, when her social worker, who was concerned about her came to check in with her, she threatened him with a knife. The social worker retreated and got the police; the cops, Reynolds and Holder knocked on the door and Sheehan threatened that she would kill them. The case tells what happened next:

Reynolds and Holder had to make a decision. They could wait for backup—indeed, they already heard sirens. Or they could quickly reenter the room and try to subdue Sheehan before more time elapsed. Because Reynolds believed that the situation “required [their] immediate attention,” the officers chose reentry. In making that decision, they did not pause to consider whether Sheehan’s disability should be accommodated. The officers obviously knew that Sheehan was unwell, but in Reynolds’ words, that was “a secondary issue” given that they were “faced with a violent woman who had already threatened to kill her social worker” and “two uniformed police officers.”  

The officers ultimately decided that Holder—the larger officer—should push the door open while Reynolds used pepper spray on Sheehan. With pistols drawn, the officers moved in. When Sheehan, knife in hand, saw them, she again yelled for them to leave. She may also have again said that she was going to kill them. Sheehan is “not sure” if she threatened death a second time, but “concedes that it was her intent to resist arrest and to use the knife.” In any event, Reynolds began pepper-spraying Sheehan in the face, but Sheehan would not drop the knife. When Sheehan was only a fewfeet away, Holder shot her twice, but she did not collapse. Reynolds then fired multiple shots. After Sheehan finally fell, a third officer (who had just arrived) kicked the knife out of her hand. Sheehan survived.

Sheehan sued the city and the cops under  42 U.S.C. §1983 making a novel and interesting argument: In crafting their response to the situation, the cops were providing a “service,” and under the Americans with Disabilities Act had to take her disability into account when doing so. The Supreme Court took the case in order to decide whether the Fourth Amendment’s requirement that search and seizure activities be “reasonable” should be informed by the individual’s condition (in other words, that what is “reasonable” for a healthy person is “unreasonable” for someone suffering from a schizoaffective disorder, such as Sheehan.)

In court, things were complicated by the fact that the city chose to rely on particular aspects of Sheehan’s behavior to show that, given the threat she posed, she was not “qualified” for accommodations. The Court, albeit miffed with this change in legal tactics, ultimately sided with the city and the cops. Holder and Reynolds were under no obligation to apply the ADA to the situation at the time, said the Court, because the had no “fair and clear warning of what the Constitution requires.” It didn’t matter, for the Court’s analysis, that “the officers did not follow their training.” According to the expert witness heard by the court,

San Francisco trains its officers when dealing with the mentally ill to “ensure that sufficient resources are brought to the scene,” “contain the subject” and “respect the suspect’s “comfort zone,” “use time to their advantage,” and “employ non-threatening verbal communication and open-ended questions to facilitate the subject’s participation in communication.” Likewise, San Francisco’s policy is “‘to use hostage negotiators’” when dealing with “‘a suspect [who] resists arrest by barricading himself.’” 

Even if an officer acts contrary to her training, however, (and here, given the generality of that training, it is not at all clear that Reynolds and Holder did so), that does not itself negate qualified immunity where it would otherwise be warranted. Rather, so long as “a reasonable officer could have believed that his conduct was justified,” a plaintiff cannot “avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.” Considering the specific situation confronting Reynolds and Holder, they had sufficient reason to believe that their conduct was justified.

But what if the training had been thorough and effective to the point that officers like Holder and Reynolds were more likely to follow it? Our tax dollars pay for the police; policing our streets is, after all, a service that our government provides us–in ADA terms, but also in general. Shouldn’t we want this service to be of exceptional quality, so that you and I would not need to hesitate when calling 911? Wouldn’t you want to rest safe in the knowledge that the people responding to your call would tailor their responses to the situation at hand, including the mental condition of the person involved?

It seems to me that it is best to adopt a dialectic approach toward this. In the near future, until such training is available, Broke-Ass Stuart’s advice is well taken. But I think it is unwise to just give up wholesale on the idea of effective policing, and even as we are concerned about police responses we need to continue pursuing improvement of the police force. Because the ideal endpoint is not doing away with a public order organization altogether, it’s having an organization that is trustworthy, knowledgeable, well trained, and accountable.

Progressive Punitivism: Notes on the Pursuit of Social Justice through Penal Means

One reaction I’ve gotten on my fairly popular post about the Kavanaugh hearings is that many people were feeling some unease around “progressive punitivism” but couldn’t quite put their finger on the source of the discomfort until I defined the term. Since then, I’ve been thinking a bit more about the discontents of pursuing a social justice agenda through a call for harshness, and came up with the following overall framework:

Origins of Progressive Punitivism

The left and the right do not operate in separate universes. Marinating in the American mainstream culture is likely to leave its imprint on social movements of all stripes, and I think progressive punitivism shares quite a bit with its source, conservative punitivism.

Conservatives are largely saddled with having brought about aggressive law enforcement and mass incarceration, though newer works highlight the complicity of Democratic presidents like Kennedy, Johnson, and Clinton, as well as that of middle-class minorities. What is characteristic of this framework, as set forth by Jonathan Simon in Governing Through Crime, is the general tendency to address social malaise (in schools, at work, at home) through a framework of crime. In other hands, holding the crime hammer in your hand makes every problem seem like a nail.

In addition, the tough-on-crime movement was characterized by the reification of victims, or even (to recur to Simon again) to recast the quintessential defining metaphor of the American citizen as a potential victim.

Finally, while the left gets accused often of inventing identity politics, much of the aggressive law enforcement effort–especially in the area of drugs–was driven by identities, i.e. seeing crime in the inner city and as perpetrated by people of color while being blind to crime committed by more powerful people (critical criminologists often identify this identity-based enforcement principle as the main trope of our criminal justice system.

I’m coming to think that, rather than protesting about this, vocal and active parts of the left have coopted this mentality to support their own ideology.

Defining Features of Progressive Punitivism

1. It’s identity-driven. Progressive criminal justice reform emphasizes justice for particular contingencies and explicitly excludes leniency or compassion for people who are considered part of the power structure or bearers of entitlement and social advantage.

2. “Leveling Up” punishment. When comparisons are made between disenfranchised people and privileged people, the call is toward harshness for the latter, rather than leniency for the former (or both at once.) While the system as a whole is to be scaled down, the place of entitled wrongdoers is in prison.

3. Retribution is perceived as a catalyst for change. When a person of privilege is called upon to answer for crimes and wrongdoing, the general perception is that a just outcome–one that would provide appropriate, harsh retribution–will have trickle-down effects on social justice and in general on the public good. These morality tales are “conversation starters” that are perceived to bring about reckoning, understanding, and important steps toward remedying structural inequalities.

Key Areas 

1. Police violence and lethal force. Frank Zimring’s recent book When Police Kill offers some excellent reasons why our essential struggle against police violence should not focus on the prosecution of individual police officers to the exclusion of training and other forms of systemic reform. And yet, the issues that tend to galvanize large popular movements for police reform have to do with the perceived inadequacies of the criminal justice system in bringing cops to justice, charging them, or convicting them. As we now know, the criminal justice apparatus in Ferguson was broken long before Michael Brown’s killing, but the killing galvanized the activists, focusing on Darren Wilson as the face of evil as opposed to looking at the systemic problems (if you have read the grand jury transcript, you have probably realized that this was actually a difficult decision.)

2. Sexual assault and #metoo. The overall commendable #metoo movement started a wave of admissions and sharing on the part of victims of sexual misconduct, but rather than inviting a dialogue about how to reimagine social spaces in which everyone is treated with dignity and respect the movement has tended to focus on bringing down people in high-profile cases (Weinstein, Kavanaugh, and Brock Turner.) This reached a particularly low point with the campaign to recall Judge Persky, which penalized a judge for paying attention to a probation report of a convicted criminal that many people perceived as getting off leniently because of his race and social advantage. The outcome is communicating a message of harshness to judges, and the first people in line to suffer will not be people of social advantage.

3. Bigotry and hate crimes. Oakland Mayor Libby Schaaf recently argued on behalf of changing the burden of proof in hate crime cases. The presumption of innocence, in other words, only exists for people we like. Beyond the dangerous slippery slope that such proclamations might create, in general the movement has focused on taking individual examples of racists and bigots and making the destruction of their reputation into the focus of the movement’s energy (I’m thinking of the mariachi party below the home of the lawyer who spewed racist epithets at Spanish-speaking restaurant workers.)

Challenges and Problems

1. The emphasis on punishment of individual wrongdoers as an educational lesson confounds personal pathology with situational evil. The lessons of Milgram and Zimbardo are well taken: bad behavior, including what looks like cruelty and sadism, is largely situational. It is perhaps ironic that movements that set out to prove just how situational and prevalent bad behavior was end up confounding their raison d’être by pursuing remedies in the form of punishing individuals as if the source of the problem is their personal pathology.

2. The dependence on courts (“case and controversy”) means that whatever ends up the lightning rod for ire is largely left to chance, or to a movement’s preferences and idiosyncrasies. Sometimes, instances of poor behavior–racism, sexual assault, police brutality–that come to light in the context of an individual lawsuit are less egregious than the ones that remain in darkness. But because grand juries and courts take cases on a case-by-case basis, we are not really getting an idea of the scope and breadth of a particular problem by looking at a particular case.

3. The emphasis on criminalization draws efforts away from other laudable, systemic reforms, that don’t enjoy as much public appeal. The movement for reform only has so much energy, and it has to be spent in directions that might prove most productive. To focus a movement on mobbing and stigmatizing one particular person is to spend finite capital–money, time, verve–on a particular case under the unproven assumption that the case will produce systemic change.

4. Reifies victimization to a point that is unhealthy not only to offenders, but also to the victims themselves, and sets up “victimization competitions.” The victims rights movement from the right brought us many of the excesses of the 1990s and the 2000s, and the current victims rights movement from the left, albeit less destructive on the grand scale, can bring similar destruction to people whose victims get the talking stick with the current movement. But more importantly, we’ve taken from the right the notion that a necessary condition to being heard is claiming a status of oppression and victimization, which requires people to marinate in their victimization experience longer than their healing would require. It also pits some victims against others–namely, those that would complain versus those who wouldn’t.

5. Rankles potential allies and closes avenues for cooperative, inclusive discussion. If the ultimate goal is to bring about social change, ideally the people at the table include those whose behavior we want to change. But when the weapons of choice are stigma and calls for incarceration, it is unlikely to get people to the table with the spirit of cooperation that, say, a truth and reconciliation committee might induce.

6. If it fails–which it often does–sets us back, and while raging against it feels productive, it doesn’t really produce change. Rage, I find, is not a finite quality that one can express once and then be liberated from it. Rather, rage is generative, and it produces more rage. With the animus that comes with rage, one might feel that one is being productive. But the recent rage-filled calls for more prosecutions and more punishment have not really yielded anything, and whenever the call is not fulfilled, the rage is an indication that we are still where we were before–and something more for the other side to pick on.

7. It is not without ambiguity when identities collide. Case in point: “Cornerstore Caroline” who complained about being harassed by an 8-year-old boy (the complaint was unfounded). If we’re all about believing victims, where does that leave the boy? If we’re all about empowering people of color, where does that leave their victims when they commit crime? The universal appeal to “intersectionality” leaves these dilemmas without easy solutions, because the movement confounds the rule of thumb in individual cases (find out the facts and then see what is credible) with the ideological edict to categorically believe or disbelieve specific groups of people.

What Should We Do?

1. With regard to systemic problems, focus on systemic solutions. I often think that these crazy times call for truth and reconciliation commissions after all this is over, because the public debate is so toxic and partisan. There are evils that are rampant, and those need to be fixed through an inclusive conversation and a commitment to training, early education changes, whatever it takes, because spending all the poker chips on a grand jury proceeding of one cop doesn’t really offer us as much benefit as systemic reform.

2. Let go of schadenfreude and mobbing. Think a moment before piling on someone online and calling for their firing, incarceration, or otherwise destruction of reputation. If it’s all about laughing at someone else’s expense, find better things to do with your time.

3. Focus on doing more and saying less. Expressionist tactics have their place – they lift morale and make people feel that they’re not alone. But when the shit hits the fan, it’s not the marches and the op-eds that make a difference: it’s voting, knocking on doors, and donating money. While all avenues for social change are important, it’s time to tilt the balance back toward action and away from symbolic expression – just in time for you to vote in the midterms.

Zen and the Art of Motorcycle Seizure: A Biker’s Perspective on the Fourth Amendment

Recently, SCOTUS decided Collins v. Virginia (2018), in which the Court, by a 8-1 majority, did not uphold a search involving a motorcycle in a driveway. The story is this:

Police officers investigating traffic violations by a distinct black-and-orange motorcycle came upon the realization that their individual investigations involved the same bike, that the bike was likely stolen, and that it was in the possession of Ryan Collins. The officers found Collins’ Facebook page, where he posted photos of said motorcycle parked in his driveway (see image below.)

With these suspicions, and without a warrant, Officer Rhodes drove to the pictured location and parked on the street. He walked toward the bike, which was covered by a tarp. He lifted the tarp and verified that this was, indeed, the motorcycle in question. He radioed the bike’s serial number to the station and received confirmation that it was, indeed, stolen. He then replaced the tarp and waited for Collins.

In his subsequent trial, Collins unsuccessfully moved to suppress the evidence, arguing that it was a warrantless search. Eventually, SCOTUS vindicated Collins.

The facts of the case confront two constitutional doctrines: the curtilage doctrine and the car exception to the warrant requirement. Under the former, the curtilage–the area immediately surrounding the house–is to be treated just like the house for Fourth Amendment purposes, which is to say, entering it counts as a search that requires a warrant. Under the latter, searches of “cars and other conveyances,” due to issues of mobility and regulation, can be performed without a warrant, provided that there is probable cause.

Justice Sotomayor, writing for the majority, finds that the curtilage doctrine trumps (sorry) the car doctrine. This is because the curtilage is invariably analogized to a house. Imagine, she writes,

a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? The reason, is that the scope of the automobile exception extends no further than the automobile itself.  Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle.

The analysis appears flawless to Fourth Amendment scholars, but not to motorcyclists. Because to me, as a motorcyclist, the fact that sticks out is not the location of the motorcycle, but the fact that it is covered. Many urban motorcyclists cannot afford to garage their bikes, either because they don’t have a parking spot, or because the parking spot is taken by a car, theirs or owned by a family member. As a consequence, and to protect the bike from the elements, many people cover their bikes. It’s the poor biker’s garage, if you will. The problem here is not so much that Officer Rhodes stepped into the driveway–the Virginia proposition to distinguish curtilages based on visibility, which the majority rejects, is actually pretty sensible–but with the fact that he lifted the tarp.

In that respect, this case is more similar to Arizona v. Hicks, a case in which SCOTUS found that moving a turntable that was suspected to be stolen to get its serial number went beyond the “plain view” exception because it actually required interfering with Hicks’s possessory interest.

The reason this seems weird to motorcyclists is because the experience of driving, parking, and leaving a motorcycle in public space is different than leaving a car there. Many a motorcyclist will tell you about dismaying experiences they have had in which people have leaned on their bikes, touched them, or even sat on them without permission. Here’s how Jax from Sons of Anarchy handles such a problem:

Even if you have less of a stomach for interpersonal violence than Jax, you probably get the sense that the violations are more frequent and, because of the nature of motorcycle ownership, feel more invasive and personal. Lifting the tarp of a motorcycle is, under these circumstances, a privacy invasion that does not have an easy equivalent in the car world, and that might mean that not all conveyances should be treated similarly for Fourth Amendment purposes.

Incidentally, this raises various other issues that are endemic to motorcycles: the storage compartments–back box and sidebags–do they count as a “trunk” for Fourth Amendment exceptions, or as containers? In the latter case, the car exception applies; in the former case, it does not, and the only exception that would allow opening them is search incident to arrest. A lot of the answers to these questions depend on the cultural place of motorcycles in the American understanding, from The Wild One to Easy Rider and beyond. To be continued.

Not Your Typical Kavanaugh Opinion Piece

To a surrounded enemy, you must leave a way of escape.
                                                                                 –Sun Tzu, The Art of War

Last Friday I spoke at a school-wide forum about the Kavanaugh hearings. Since then, several people have come to thank me for voicing a perspective that is fairly uncommon in the progressive milieu. It is one of the pathologies of the partisan culture we now live in that one must subscribe to positions that often lack nuance and sometimes contradict factual and empirical evidence. The people who spoke to me asked me if I would be willing to share my perspective more widely, so here goes.

I’ll open by saying the obvious: I believe Dr. Ford. Not so much because of any indicia of reliability in her demeanor, but because, for the life of me, I can’t see why anyone would put themselves and their family through this particular variation of hell by lying. The incentives all line up toward the opposite direction. I think a mistaken identity is very unlikely here–even though eyewitness identification is a common source of wrongful convictions in sex crimes, that applies to stranger assaults, not to assaults by people familiar to the victim. It is also not unlikely that my sympathy for Dr. Ford also stems from the fact that she and I share the same milieu: she lives, works, dresses, and talks like me. She uses words like “hippocampus” and “sequelae.” By contrast, the prospect of an aggressively conservative turn in the Supreme Court frightens me because of the risks it poses to basic civil rights and to American democracy, given the corrupted and unprincipled stance of the Trump administration.

A widely publicized letter signed by law faculty was circulated, in which many people I like and respect challenged Kavanaugh on account of his demeanor, which they perceived to suggest lack of judicial temperament. I did not sign this letter for two reasons.

First, I have years of experience defending people in criminal courts against charges of sexual assault. During my time as a military defender, one of my responsibilities was to represent people in the special military court. What was so “special” about the special court was that its jurisdiction extended to high-ranked officers (colonel and up). These are, of course, career officers; the lower ranks in the Israeli army are occupied by young people aged 18-21 in mandatory service. This puts 40-something-year-old men in regular contact with 18-year-old women, in the context of a hierarchical institution that adds rank and military power to age and seniority. The outcome is that a considerable chunk of my legal practice was devoted to defending career officers against charges of sexual harassment and sexual assault.

My experience with these cases taught me a lot of things. One lesson was that most bad behavior is largely situational (as the Stanford Prison Experiment taught us, and as Ashley Rubin recently reminded us.) Another was that two people could be telling you widely divergent versions of an incident and both would be telling the truth, which is shaped through subjective experiences and feelings to a surprising degree. It also taught me that the best strategy for sex crime defense is to agree with the complainant’s version as much as possible. We called this “narrowing the scope of dispute.” The less contradictions there are between the prosecution’s version and the defendant’s version, the less there is to impeach the defendant with.

That Kavanaugh chose as his line of defense absolute denial was against any sort of sensible advice I ever gave a client in these circumstances. It is a sad testament to the partisan culture we live in that people were predisposed to believe him even though his strategy would have been disastrous in court. In addition, Kavanaugh’s religious background, and his base of supporters, would have been receptive to a cultural trope that is very common both in Catholicism and in Evangelical Christianity–talking up bad behavior in the past to emphasize change. Had he admitted to being wild and drinking in his adolescence, this milieu would have embraced his rehabilitation as a moral and religious victory. A similar strategy certainly underlined similar confessions from both George W. Bush and Barack Obama about their drug use. Again, that Kavanaugh did not recur to these sympathy-garnering tactics and still prevailed is an indication that the real mechanism behind this confirmation is partisan animosity, rather than factfinding.

But why did he do that? Here’s where I differ from my friends who signed the judicial temperament letter. I have spent a lot of time in the company of people who were (falsely OR truthfully) accused of sexual misconduct. I have spent time with their wives. I have heard them react to the complainant’s versions. I have seen them contemplate the real possibility that their personal and professional lives will fall apart. And each and every one of them–the guilty and the innocent–reacted in exactly the same way: yelling, tearing up, clenching fists, demonizing their accusers. It is not a peculiar reaction indicating a personal pathology. It is how humans universally react when they face an existential threat.

Now, every progressive outlet I know wrote the same op-ed, published the same meme, and made the same tired argument: Privileged white man, just a job interview, yada yada yada, what is he whining about? These arguments and memes completely miss the point. Everyone–yes, everyone, even you–deals with the emotional bind of the entitlement effect. Everyone tends to attribute the benefits and perks of their social position, no matter how high or low, to their own merit, and their deprivations to the failings of others. Everyone subjectively believes that they worked hard to earned what they have and react poorly to the prospect of losing that. That there is entitlement, privilege, and hubris at work here is obvious. This man’s problems seem perhaps, to you, as not very big problems compared to those of the poor and disenfranchised. But they are his problems. And, to him, the threat is palpable. His personal integrity has been besmirched, his personal life in tatters in front of the whole world, his family publicly humiliated and pitied by millions. This is the sort of thing that makes anyone react in that way–even people who exhibit calm tempers and evenhanded decisionmaking when dealing with other people’s problems. His behavior is not an indication of some sort of unique individual failing. It is the behavior of a person who is threatened and suffering.

My second reason for not signing the letter has to do with a personal decision I have made for the sake of upholding my own values: I do not mob people online for any reason, no matter who they are or how vile their failing is. I do not call for anyone’s firing, incarceration, or public shaming. When I join a political struggle–of which there are many–I join it toward something, not against something. I have found that online mobbing, which is rife on both sides of the political divide, carries with it plenty of mobilized rage (a hot commodity these days) and a detectable dose of schadenfreude. My personal experience marinating in these qualities is that they debase and depress me. I want to be part of positive change, not negative bashing.

The progressive variety of the call to mob, trash, annihilate the objectionable person, which I have come to call progressive punitivism, is especially pernicious. For people who overall fight for rehabilitation, for improved prison conditions, for a lessened reliance on confinement and stigma, it is surprising how quickly these lofty ideals are thrown by the wayside the minute they apply to a person they don’t like. This is why I refused to get on the bandwagon of diminished protections against prosecutions of police officers, vocally objected to the dangerous  and counterproductive recall campaign against Judge Persky, and spoke up against Oakland Mayor’s Libby Schaaf call to lower the burden of proof in trials of people she dislikes. Constitutional protections and a rehabilitative stance are really not worth much if they only exist for the people we like. Changing regimes and preferences might mean that the next target for harshness and stigma might be you or me–as we have daily proof on the federal level–and removing them for one is removing them for all.

Progressive punitivism is not worse than conservative punitivism, but it stings more, because it comes from people who understand the system enough to know better. It also strengthens other pathologies of the progressive left, such as the exclusive and vitriolic ideological purity, which demonizes and ostracizes any potential ally who is not 100% on board with every word you say, and the regrettable tendency to sometimes ignore facts because they are not politically expedient.

An adjacent problem is the fact that, as Jonathan Simon argues in Governing Through Crime, the quintessential American citizen is no longer the yeoman farmer or the small business owner: it’s the potential victim. By rewarding (or compensating) victimization, real or potential, with social capital, we have created a situation in which people are essentially forced to deprioritize their personal healing and marinate in their own victimhood as a condition of being heard. It’s true on the right, and has shaped some truly atrocious sentencing policies, and it’s true on the left, and has shaped some of the more egregious instances in which the overall commendable #metoo campaign became a victim of its own success. My law professor Ruth Gavison used to say that the first and foremost thing we owe victims is that they stop being victims as soon as possible. American public discourse propagates exactly the opposite.

The overwhelming conservative response to the Kavanaugh confirmation, and the energized Republican base as we go into the midterms that may decide the face of our democracy, is proof that the antagonism and demonization of individual wrongdoers is a failing strategy. Whaling on Kavanaugh or Brock Turner (righteous as it might feel) does not, sadly, bring us even a bit closer to eradicating sexual violence. Sexual domination, patriarchal hierarchies, and entitlement based on gender, class, and race, are systemic. People who exploit these to hurt other people do it largely in the context of situational factors that are bigger than their own pathologies. Calling out these pathologies by stigmatizing individual perpetrators and demanding their head on a stick does not lead to deep social reckoning, because it is not an environment that invites any sort of restorative conversation. Demonize people in public and what you’ll get is what you got  from Kavanaugh: counteraccusations, yelling, crying, clenched fists. When people’s liberty, employment, prestige, and family are at stake, and when they feel attacked, they are very unlikely to feel reflective, and they will not feel safe to offer an apology. More to the point, whatever apology they offer, because of its circumstances, is not something you or I would find genuine (as an aside, one hopes against hope that this experience will have offered Kavanaugh a window of empathy into the lives of criminal defendants and suspects, but I’m not holding my breath. He is likely to remember this as an effrontery, not a teaching moment, to the detriment of us all.)

The answer to hurt and violence is not propagating more hurt and violence. The answer lies, I think, in early education. Children are open to the idea that other children–regardless of their gender, color, or wealth–are human beings that can be their friends. Aiming at a diverse group of friends for your young child and prioritizing social experiences that place them in the company of people who live different lives of their own is essential. Teaching children gratitude for what they have can counter the bitterness that can accompany the entitlement effect. Teaching happiness, resilience, and compassion are antidotes to the zero-sum thinking that accompanies the excesses that come with entitlement. If the current administration does not prioritize this kind of administration, let’s go to the polls in November and vote for people who will. And let’s start the revolution inside our own homes, by instilling a sense of community and mutual responsibility in our children.

Hatred is never appeased by hatred in this world.
By non-hatred alone is hatred appeased.
This is a law eternal.
                                                                      –The Buddha