Death Penalty Debate next Tue: Free and Open to the Public!
Nail Polish, or Why Left Realism Fights Rape Culture Better than Radical Demagogy
An interesting invention is making the rounds on social media website: four college students have invented nail polish that would allow its wearer, by inserting their finger into their drink, to detect whether a roofie–frequently used by rapists to overpower their victims–has been mixed into it. The company is called Undercover Colors.
This is a very practical, simple cautionary tool, and may help to spare many women, and some men, too, a traumatic and horrible experience. But the new invention has found some detractors, who in the name of radical feminism criticize the inventors as facilitating rape culture by placing the preventive responsibility onto the shoulders of the victims (see here and here.)
I’m sorry, I have to call bullshit when I see it. And this presumably feminist critique of prevention is grade-A bullshit.
It should probably go without saying that, like any decent human being on the planet, I am committed to ending rape culture, and that I believe that the fault for rape lies squarely on the shoulders of the rapist, which is why I really liked this campaign. Happily, evaluative research has found it to be effective in teaching men to be more respectful toward their partners.
But I get very, very upset when the people who purport to be fighting rape culture seem to be okay with not fighting rape itself, and especially with the radical demagogy that equates sensible self-protection with embracing rape culture.
Of course it is not the victim’s responsibility to prevent crime. It is, of course, anyone’s right to go anywhere they wish, wearing whatever they wish, without inviting physical or sexual assault. Nonetheless, we know that crime happens when there is opportunity, and many rapists are opportunists. And each of us takes preventive measures daily, to the extent that they are compatible with our lives and appreciation of freedom. We lock our house doors, we don’t leave valuables in the car, we don’t escalate arguments with angry drivers. And sometimes we make the choice not to engage in excessive self-protection, when we feel it infringes upon our lives too much, such as, for example, going out anywhere we wish, at any time of the day, wearing whatever we like. Doing so, of course, does not make us blameworthy if something bad happens to us. But taking measures that don’t infringe upon that feeling of freedom has the potential of minimizing our odds of victimization, and doing that shouldn’t make us blameworthy, either, for inventing such measures, using them, or recommending them to others.
The rhetoric against rape culture also pulls the rug under sensible and empowering acts like taking a self-defense class, even though we know that fighting back significantly reduces the odds of rape completion. Why, in the name of self righteousness and feminist idealism, would I deny myself, my family members and my friends the odds of survival and victory? How is this empowering? How is this preventing rape?
Moreover, as my friend and colleague Edi Kinney mentioned in a Facebook conversation about this:
[T]aking the opportunity to recenter discussions about rape culture to blame rapists is something activists have to do, but to me, we need to take advantage of allyship in its diverse forms and applaud practical efforts to engage in efforts to address sexual violence. What we’ve been doing hasn’t worked. I think we should be emphasizing the fact that the men who developed the product were inspired to do because so many of their own friends had been drugged & sexually assaulted and they wanted to do something to empower their friends and other women w/ tools to identify risks. They apparently had scientific/lab/other expertise that they could deploy to that end, and were motivated to do so out of an effort to give women tools to help them protect themselves. IMHO, their allyship intentions — AND the fact that bros who see social media accounts of this now might think twice re. engaging in predatory behavior at parties, bars, etc. — trump the potential to reinforce ‘blame the victim’ rape culture. Rapists are opportunists, and I’d reckon there’s a slippery slope between date rape and predatory behavior, and any tools to identify folks who engage in such behavior seems like a good start (and at least it’s raising awareness?)
I think we have enough room for short-term and long-term strategies in the war against rape culture. In the long term, our commitment should be to eradicate it off the face of the earth. But in setting our sites on that and firing up our keyboards with feminist rhetoric, let’s not forget that this thing we’re fighting is not just an ideology. IT’S REAL AND IT’S VICTIMIZING WOMEN RIGHT NOW. And our first and foremost commitment to potential victims is to prevent their victimization as effectively and practically as possible, without stigmatizing them for it. Let’s not lose sight of real rape when talking about the culture that produces it.
New Law Bans Inmate Sterilization
In this way, the last few years have exposed several “pains of imprisonment” that harm women in unconscionable ways, particularly pertaining to their autonomy over their own sexuality and reproduction. Interviews with female inmates expose the common occurrence of sexual harassment and abuse on the part of guards. Romantic and sexual relationships between inmates and staff are, by nature, plagued by a power differential that is impossible to bridge, even when not accompanied by brutal coercion. Female reproduction is severely monitored and sanctioned; according to the ACLU, most prisons in the United States still shackle pregnant inmates, even when they are in labor.
In 2013, the Center for Investigative Reporting uncovered a California scandal of massive proportions: the sterilization of female inmates without proper state procedures. A 2014 California Auditor examination uncovered 144 cases of tubal ligations performed in inmates between 2006 and 2010, 39 of which were performed without consent and a further 27 in which the inmates’ physicians did not sign the appropriate forms. Interviews with the inmates that had undergone the procedure reveal disturbing degrees of paternalism and pressure on the part of medical staff.
Thankfully, the California legislature has unanimously adopted SB 1135, which “would prohibit sterilization” of an inmate “except when required for the immediate preservation of life in an emergency medical situation or when medically necessary . . . to treat a diagnosed condition and certain requirements are satisfied, including that patient consent is obtained.” The bill requires special follow-up on sterilizations performed in compliance with these conditions, as well as an annual report of data on sterilizations, disaggregated by race, age, medical justification, and method of sterilization.
In approving the bill, which is now on Gov. Brown’s table, California has taken an important step away from two painful legacies: its historically dysfunctional health care system, lambasted by the Supreme Court in Brown v. Plata (2011) and the history of medical experimentation in inmates with dubious, or nonexistent, consent, now strictly regulated by federal law. But rather than the neglect that categorizes the former or the exploitation that categorizes the latter, the sterilizations are the manifestations of another disturbing factor: supposedly benevolent paternalism and an assumption that the sterilizations are for the benefit of the inmate herself, and perhaps of society as a whole.
A story published today on the Sacramento Bee quotes Crystal Nguyen, a former Valley State Prison inmate, who reports having heard, back in 2007, medical staff asking inmates to agree to sterilization.
“I was like, ‘Oh my God, that’s not right,'” said Nguyen. “Do they think they’re animals, and they don’t want them to breed anymore?”
Also quoted by the Bee is Christina Cordero, who was talked into undergoing the procedure after giving birth to her son while incarcerated. “As soon as [the institution’s OB-GYN] found out that I had five kids, he suggested that I look into getting it done. The closer I got to my due date, the more he talked about it. . . He made me feel like a bad mother if I didn’t do it.”
What these paternalistic notions have in common with medical neglect and scientific exploitation is the lack of recognition that the inmates, regardless of their respective offenses and histories, are human beings, and as such must be given at least a modicum of autonomy regarding the only thing that is still theirs: their own bodies. It is to be hoped that SB 1135 represents not only a remedy for a recently uncovered horror, but a willingness to acknowledge our shared humanity on both sides of the prison gates.
Ferguson Coverage
Just a reminder that I’m blogging about Ferguson and other related law enforcement matters over at Iron in War.
Offshoot Sister Blog: Iron in War
Friends and readers – I have a new sister blog to CCC called Iron in War, in which I blog about matters pertaining to the front end of the criminal process: policing and law enforcement. I’m blogging extensively there about Ferguson and will blog about other issues, such as private policing, criminalization, neighborhood watches, search and seizure, interrogations, and investigations. Come check us out.
Late to the Party: Legalization Frenzy in the NYT and the Guardian
Hey, you! Yes, you! Come over here; I have big news. Did you know that the war on drugs is wasteful and has not made a dent in drug abuse and trafficking? And that some substances should just be decriminalized? Amazing, right? Well, this revolutionary thinking comes to you straight from the nation’s most respected newspaper!
Apparently, the New York Times and the Guardian think this is a major novelty. This from the NYT:
The federal government should repeal the ban on marijuana.
We reached that conclusion after a great deal of discussion among the members of The Times’s Editorial Board, inspired by a rapidly growing movement among the states to reform marijuana laws.
There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.
We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.
But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.
The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.
There is honest debate among scientists about the health effects of marijuana, but we believe that the evidence is overwhelming that addiction and dependence are relatively minor problems, especially compared with alcohol and tobacco. Moderate use of marijuana does not appear to pose a risk for otherwise healthy adults. Claims that marijuana is a gateway to more dangerous drugs are as fanciful as the “Reefer Madness” images of murder, rape and suicide.
There are legitimate concerns about marijuana on the development of adolescent brains. For that reason, we advocate the prohibition of sales to people under 21.
Creating systems for regulating manufacture, sale and marketing will be complex. But those problems are solvable, and would have long been dealt with had we as a nation not clung to the decision to make marijuana production and use a federal crime.
The newspaper invites readers to participate in debate. And it’s great that big periodicals are getting behind the cause. But–really, NYT? You’ve only now reached this conclusion “after a great deal of discussion”? Where the heck were you doing journalism in the last forty years, on Mars?
I think Nate Silver is right on the money when he shows why the NYT is getting on the bandwagon only now that it’s advantageous to do so:
Some of it is that I get irked when elites get credit for publicly taking “bold” positions that other folks came to much sooner. This is particularly the case when the position is one you’d expect them to have held in their private lives all along.
But there’s a particularly large gap between elite and popular opinion on marijuana policy. Consider that, according to The Huffington Post, none of the 50 U.S. governors or the 100 U.S. senators had endorsed fully legal recreational marijuana as of this April — even though some of them are very liberal on other issues, and even though an increasing number of them represent states where most voters support legalizing pot.
Perhaps some of this is smart politics — older Americans are less likely to support marijuana legalization and more likely to vote. But there’s also a more cynical interpretation: racial minorities, low-income Americans and young people are disproportionately more likely to be arrested for marijuana offenses than senators or newspaper editorial board members (or their sons and daughters). The elites may be setting the policy, but they’re out of touch with its effects.
That reminds me of Obama’s sudden change of heart in favor of same-sex marriage, after basically all ight-minded people had moved to the other side. I expect more trendsetting and leadership from a world-class newspaper than from a politician.
And also, regulation “will be complex”? What about all the hundreds of thousands of good people doing work on this for the last few decades? What about the blueprints easily available, and all the debates already on the record?
Don’t get me wrong; of course this is better than supporting the war on drugs. But I’m dismayed to see such cowardice and Johnny-come-lately behavior from the New York Times. Next time, guys, wake up sooner. Perhaps that would save more lives and futures.
Death Penalty Update
In the last few days, we’ve made a huge effort to circulate a petition to Governor Brown and Attorney General Harris, asking them not to appeal District Court Judge Carney’s decision that the death penalty in California is unconstitutional. We’ve just hit 500 signatures, and I’ve sent the petition to the Governor and the AG. Thank you for your support, signing, and sharing!
What happens next?
Our elected officials decide whether they want to pursue an appeal to the Ninth Circuit.
What if California appeals the decision?
Then, we’ll have to take our chances with the Ninth Circuit. The hope is that we’ll draw a favorable panel, who will affirm Judge Carney’s decision. It’s possible, albeit not very probable. Regardless of the result, a further appeal to the Supreme Court is unlikely to yield a good result for abolitionists.
The best of all worlds would be a decision from the Ninth Circuit affirming the death penalty’s unconstitutionality, and THEN a commitment from the Attorney General that she would not appeal the decision. If that is the case, the decision will apply to all of CA, and would basically mean that the death penalty has been abolished. But for that to happen we have to be lucky twice: the Ninth Circuit has to go our way and the AG has to decide not to appeal that decision. That’s quite a gamble.
What if our elected officials hear our plea and do not appeal the decision?
In that case, we’re left with a great, favorable decision, but by a District Court, which means it doesn’t create immediate effect in all of California. But we also gain an important political advantage: we have a great decision, that became final, AND the political gravitas of the AG’s support for the result. That, then, allows us to consider political pressure on the Governor’s office to commute current capital sentences, which do not conform to constitutional standards, as well as a valuable weapon against various proposals to “fix” the death penalty.
What are the odds that there will be an appeal?
Hard to tell. As you may recall, last time the State did not defend its laws in federal court was in the context of Prop 8, and the initiators of the proposition were ruled by the Supreme Court not to have standing. What this means is that if the AG does not want to defend CA’s death penalty, no one else can do so in her stead.
There is, however, a difference: Prop 8 was a voter initiative, and so the AG could more easily disengage from it by not appealing. Even though the AG is, personally, an opponent of the death penalty, she may think that solid administrative principles require seeing this thing to its end. And maybe she, too, is hoping that if she appeals the decision, the Ninth Circuit will rise to the occasion and decide the case for abolition.
In other words, your guess is as good as mine.
What can we do now?
Keep talking about this with friends of all political persuasions. Talk about the botched execution in Arizona; talk about the immense toll that incarcerating these folks and tending to their litigation effort is taking on the CA budget (to the tune of $150 million annually.) Talk about how we can see abolition in our lifetime, if we run with this ruling and make the most of this opportunity to drag our penal system to the 21st century.
A Bit of Good News: Inmate Reductions Do Not Increase Crime
Yesterday’s Chron reported on a new Sentencing Project report, examining crime rates in California, New York, and New Jersey. Here are the bits about CA:
From 2006 to 2012, the new report said, California reduced its prison population by 23 percent, from nearly 174,000 to 134,000, while the nationwide inmate count dropped by just 1 percent.
The decline accelerated in October 2011 under a state law implementing Gov. Jerry Brown’s “realignment” program, which sentenced lower-level nonviolent felons to county jail instead of state prison and increased the number of convicts who spent part of their sentences on probation.
The state says it will also comply with court orders stepping up parole of elderly, disabled and low-risk prisoners. A 2012 ballot measure sparing some nonviolent felons from life terms under California’s three-strikes law is further reducing the imprisonment rate.
During the same six-year period, the report said, the rate of violent crime – murder, forcible rape, robbery and assault – fell 21 percent in California, compared with 19 percent nationwide.
. . .
Despite the improvements, the study said, California’s violent crime rate remains above the national average. The state’s property crime rate is slightly below the national average, although the rate of decline from 2006 to 2012 was 13 percent in the state and 15 percent nationwide, the study said.
Another finding was that auto thefts in California have increased since realignment took effect in 2011, bringing the rates for that crime back up to 2009 levels. Overall, however, the study said the prisons-to-jails program does not appear to have increased serious crime in the state.
The original report can be found here.
There Is No Right Way to Kill People
Yesterday, the web was ablaze with gruesome news. The execution of Joseph Rudolph Wood took much longer than expected and has created a huge controversy about lethal injection. CBS reports:
Arizona Attorney General Tom Horne’s office said Joseph Rudolph Wood was pronounced dead at 3:49 p.m., one hour and 57 minutes after the execution started.
Wood’s lawyers had filed an emergency appeal with the U.S. Supreme Court while the execution was underway, demanding that it be stopped. The appeal said Wood was “gasping and snorting for more than an hour.”
Word that Justice Anthony Kennedy denied the appeal came about a half hour after Wood’s death.
Wood, 55, gasped more than 600 times before he died.
You can go and read more about the execution, but I can already tell you what you’ll find: the defense attorney and abolition advocates arguing that the execution was botched, cruel, and horrific; the family and district attorney reminding everyone of the death of the victims; this or that doctor saying that, actually, he wasn’t suffering, just “snoring” – interpretations of pain, interpretations of suffering, moral equations, this, that.
But the bottom line–as argued by Austin Sarat as well as by Forbes Magazine’s David Kroll, is this: There is no right way to kill people. For all the effort we’ve made to make the procedure “appear swift and medical” as Kroll said, it still serves no purpose beyond killing people.
Death is suffering. The idea that we can surgically separate death–which is, according to the Supreme Court, constitutional, fine and dandy–from suffering, which is a violation of the 8th Amendment, is ludicrous. There have been botched hangings, electrocutions, gas chamber killings, lethal injections–every year, 3 percent of executions are botched. That everything is sterile and medical, and people were white robes and not executioners’ capes and hoods, means it’s more difficult to see the difference, but in a way it reveals a deeper truth: that the idea that there’s a “clean” execution, done “right”, is absurd.
In 1980, Justice Blackmun wrote this in a slightly different context:
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.
He was so wise. If he could only see the futile tinkering. This chemical, that chemical, one shot, three shots. There is no right way to kill people. Of course many of these people committed horrendous crimes and merciless killings of innocent victims. But do we really want to license the state to achieve symmetry in that department?
If, like me, you’re sick of tinkering with the machinery of death, sign my petition to the CA Attorney General not to appeal the recent decision that declared capital punishment in CA unconstitutional. We need 50 more signatures to make it to 500 before tomorrow. Let’s make it happen.
Ms. Harris, Do Not Appeal Judge Carney’s Decision!
Usually I’m fairly lukewarm about online petitions. They are often targeted at the wrong person, asking them to do something that they should do free of public influence.
Not so with this one.
I started a petition addressing the CA Attorney General, Kamala Harris, and Governor Brown, asking Ms. Harris not to appeal Judge Carney’s decision from a few days ago, which found the death penalty unconstitutional because of the delays involved in its application.
You can find the petition here.
I am asking YOU, gentle reader, to sign the petition, and to share it far and wide with your friends. Ms. Harris is an elected public official, and her decisions regarding charging and appealing should take into account the will and priorities of her constituents. Those constituents are you.
Ask yourself:
- What can California do for YOU with $150 million in annual savings?
- How much more retribution, deterrence, justice, and fairness are YOU getting from a dysfunctional death row?
- If you are for the death penalty, how do you feel about the rarity of its administration?
- If you oppose the death penalty, how do you feel about joining hundreds of signees that stand behind an argument that seems to make headway where human rights arguments have failed?
- How comfortable are YOU with the prospect of the state making mistakes in death penalty application? Would YOU be okay with the elimination of the post-conviction quality control mechanisms we have in place?
- Finally, are YOU comfortable with the criminal justice energy spent in this state–in time, dollars, public activity–on 724 people, when our correctional system encompasses 170,000 people statewide and locally in whose rehabilitation we could invest?
This is YOUR money, YOUR business, YOUR government. Please ask your government to usher us into the 20th century (not to mention the 21st) and leave Judge Carney’s just, fair, and prudent decision alone.
All you have to do is click a bit online and email a few friends, or share on Facebook.
All our Attorney General needs to do is–nothing.
Let’s do this.