Sirhan Sirhan, Yigal Amir, and the Place of Retribution on Parole

A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal.

Mishna Makkot 1-10

So too for those who are liable for capital punishment or lashes: their death or lashing does not atone for them until they repent [do teshuvah] and confess verbally [do vidui].

Mishne Torah LaRambam, Repentance 1:1

It’s hardly debatable that Richard Nixon’s presidency was a watershed moment in American criminal justice. Even the scholars who point to punitive tendencies among his predecessors will admit that Nixon’s presidential campaign highlighted crime—and particularly judicial permissiveness in the face of rising crime rates—as a key political issue, and that his presidency made good on the promises to become tougher on crime.

Having lived under this regime for 50 years, it’s hard to speculate what our system would look like if Nixon had not been elected. We did come very close: Nixon’s most promising challenger for the presidency was Democratic Senator Robert Kennedy, well-respected and admired, and a former Attorney General. But shortly after Kennedy announced his victory in the California Democratic Primary at an event at the Embassy Hotel, a young Palestinian refugee, Sirhan Sirhan, darted toward the Senator and fired several shots from his revolver. Kennedy was killed and four other people were injured by the gunfire.

Sirhan was sentenced to death, but experienced a stunning reversal of fortune. In 1972, the California Supreme Court found the death penalty unconstitutional, and the 107 people on death row at the time–including the Manson family members and Pinole murderer Dennis Stanworth–had their sentences commuted to life with parole. By the time California brought the death penalty back in 1978, alongside the option of life without parole, the “Class of ’72” people were already preparing for their upcoming parole hearings. One of them was Sirhan Sirhan.

Almost immediately after his arrest, and throughout his trial and incarceration, Sirhan was interviewed by many psychiatrists. They noted his traumatic childhood in Palestine, his harrowing journey to Jordan as a refugee, the horrendous violence he witnessed as a young child. They identified psychosis and paranoia. But by the mid-1970s, he seemed to settle down, to the point that the parole board–on par with how things were done in those days–sat down to set a parole date for him. They settled on 1984; 16 years was plenty for first-degree murder back in those days. If this seems oddly lenient to you, keep in mind that Sharon Tate’s family members thought it would be an uphill battle to keep the Manson girls behind bars in 1978.

Sirhan’s early hearings in the late 1970s were basically status conferences, which followed up on his rehabilitative journey in prison. But things took an interesting turn in 1982. On April 26, a Monday, the parole board convened for a week-long hearing in his case, whose purpose would be to determine whether to rescind his 1984 parole date.

The impetus for this unusual step was threefold. First, as Sirhan’s release date approached, the Board faced unexpected gale force winds of public disapproval. The Commissioners received of 3,961 letters; 8,127 signatures of petitions; and 50 city and county resolutions requesting the recission of Sirhan’s parole date. The November 1981 assassination of Egyptian president Anwar Sadat, on the heels of his historical peace agreement with Israel, reminded the public of yet another anti-Israel act of terrorism, spurring these letters on and drawing connections between the two acts.

Second, the Board explained, new evidence had come to light that called into question the prior portrayal of Sirhan as a docile, rehabilitated inmate. The information included a Playboy article called “inside Sirhan”, as well as numerous threatening letters Sirhan had sent from prison to various individuals, and documentation of his threatening personality in his central file. “Generally,” the Commissioners explained, “the information specified above alleges that Sirhan has made threats against various people, and that he has exhibited other behavior indicating that he is not suitable for parole.”

The third ground for the hearing, however, was legal: the board maintained that its 1975 predecessor, which set Sirhan’s 1984 date, erred in exercising its authority. The question for discussion would be: “[D]id the parole granting panels fail to exercise independent discretion in finding Sirhan suitable or in establishing a period of confinement? The panel’s failing to consider the nature of the offense and the victim in finding Sirhan suitable for or in establishing a period of confinement.” The Board answered this question in the affirmative: they claimed that the 1975 Board abused its discretion by “fail[ing] to appreciate and fully assess the magnitude of the crime for which Sirhan was convicted.”

Sirhan’s attorney, Luke McKissack, balked at these reasons for recission. All the details about Sirhan’s crime, its seriousness, and its magnitude, he said, were widely known at the time of his trial and had no place at his parole hearing. As to Sirhan’s presumably threatening behaviors, McKissack explained, they should be understood in the context of his traumatic upbringing and unusual confinement situation. McKissack recounted some of Sirhan’s traumatizing experiences in Palestine—killings, mutilations, and mass atrocities, which “Sirhan, at four years of age, obviously would be affected by seeing that kind of violence.” He also explained that Sirhan’s threats should not be taken seriously: his 14 years in protective custody “could be the equivalent of twenty or twenty-five years for somebody else. . . from the onset he knew that anybody might kill him” and his threats should be seen as what they were: the airing of frustrations made “ten years ago when Sirhan was depressed, psychologically disturbed and reflective of that situation and not as high-powered as the district attorney makes it out to be.” During those years, McKissack explained, Sirhan witnessed other people—some convicted of multiple murders—being paroled, and it was understandable that he was frustrated and felt that he was singled out: “It doesn’t seem to me that in order to qualify for being paroled, that a person has to think that everything that occurred to him in life is fair.” Sadat’s assassination, he said, had nothing to do with Sirhan, who was being scapegoated: “In 1982, in an election year, with international events out of control, everybody is frustrated. It’s: Find someone to jump on.”

The Board was undeterred. On April 27, 1982, the Commissioners interrogated their predecessor, James Hoover, a member of the committee that set Sirhan’s original parole date. The resulting exchange reads like a remarkable showdown between the rehabilitative, professional, low-key logics of 1970s parole decisions, and the much more emotional and political tenor these decisions would reflect in the 1980s. Hoover had no love for Sirhan, obviously, but he thought his job was to judge Sirhan impartially on the basis of his prison performance:

Brown: It was your impression from 75-20 that everyone had to have a parole date set?

Hoover: That was my impression, as long as there was no negative factors in file.

Brown: Initially you could find no reason to deny the setting of the parole date?

Hoover: I could find no reason. I might mention in my own mind that I wanted to find a reason. . .

You have got to remember that our median time for murder first was only about fifteen years. So that means we had an awful lot of low cases and an awful lot of high cases. . . our legislature in their great wisdom did not say, “Well, if you shot a Senator you ought to do so many years. And if you shot Jose Gonzales down in the barrio, you only do this many years”. . . At that period of time this was what was acceptable. It may not be acceptable today, but at that period of time that was the guidelines. And my feeling was, there was nothing to justify. . . I thought that was ample punishment picking that period of time, that time in space of society and what people expected.

Hoover didn’t want Sirhan to walk, but he did what he thought was his job:

W]hen I saw [the psychiatrist], I said, first thing out of my mouth, ‘Shit. This son-of-a-bitch ain’t going nowhere.’ That was just—it was the flash that came up. And then I think she said, ‘Well, show me why not.’ And that’s when I went to the file. I thought, certainly I’ll be able to have all these negative things in file. I mean, it was just set in my mind. I just walked into it and without review, just off the top of my head.

Hoover’s 1982 colleagues, needless to say, did not see eye to eye with him on this. They rescinded his date, citing not only his threatening behavior but also the 1975 Board’s mistake in discounting the magnitude of his crime. The New York Times story about the recission features clearly retributive rationales:

‘’The people of the world will breathe a sigh of relief tonight because Sirhan will remain in prison,’’ said District Attorney John Van de Kamp of Los Angeles, who had pushed for canceling the Sirhan parole date. ‘’The message must be sent out in clear and unmistakable terms that political assassination will not be tolerated in this society – and those who engage in it must pay the price.’’

‘’He deserves never to be set free,’’ said State Treasurer Jesse Unruh, who as the California manager of Robert Kennedy’s campaign for the 1968 Democratic Presidential nomination was present when the New York senator was shot. ‘’I’ve been battling that parole date since 1975.’’

As we all know, Sirhan, who is now 79 years old, remains behind bars. In 2021 he was recommended for parole, but Governor Newsom reversed; in 2023 he was again found unsuitable for parole. In his last few hearings–probably to heed the California Supreme Court’s admonishment in Lawrence–the Board stopped citing the magnitude of the crime and started giving us, instead, the usual parole word salad about insight and accountability and looking inward, the whole psychic excavation enchilada. But the archaeology of the hearings plainly shows what happened: as of 1982, the parole board started seeing itself responsible not just for assessing the parole candidate’s prison journey, but for curating and appeasing the public sentiment about his or her crime.

To be honest, I’m not sure retribution has no place in release decisions. While working on Sirhan’s parole hearings, I repeatedly thought of another political assassin: Yigal Amir, the third-year Israeli law student who assassinated Prime Minister Itzhak Rabin. In 2023, it is hard to not see Rabin’s assassination as the watershed moment that ushered Binyamin Netanyahu’s ascendance to state leadership and, as Israel faces a severe constitutional crisis that threatens to disproportionately affect Palestinians and other non-Jews, to balk at the possibility that Amir should ever be paroled. In the following video, an excerpt from an excellent satirical show called The Chamber Quintet, actor Rami Heuberger depicts Yigal Amir. He smiles at the camera and said, “in twenty years, I’ll receive clemency. You know that’s true. Deep inside, you know it.” The effect is chilling:

The prospect of parole, clemency, or a pardon for Amir is not farfetched at all under the auspices of Israel’s 37th Government. Would that really be so much more horrible than a parole for Sirhan? What about when Amir is 79 years old? I’m not sure. But I also feel that we need to talk honestly about the role, if any, that retribution should play in parole decisions, and about the extent to which we entrust Board members to properly calibrate the resulting punishment in the face of political and social considerations and public upheaval. In any case, I find it poignant that Sirhan became a victim of the era of punitiveness that he ushered with a bullet.

In Memoriam: Gad Barzilai

Lately, I feel like an increasingly big part of the second half of my life is saying goodbye to people I love. Just recently, we unexpectedly and prematurely lost so many friends. This morning we received the terrible news that our friend and colleague Prof. Gad Barzilai, of Haifa University (formerly of Tel Aviv and University of Washington) has died of heart complications. It was very sudden and he was only 65 years old.

I met Gadi in Tel Aviv, when I was a frustrated postdoc there, and his advice and encouragement through the job search process was invaluable. His humanism and optimism was uplifting. We later worked a lot together at the Israeli Law & Society Association and at LSA, whose conferences he attended without fail.

Gadi was a scholar of universal renown, whose writings straddled the fields of constitutional law, administrative law, and political science. His book Communities and Law dealt with questions at the heart of Israel’s current crisis: how should majoritarian democracies treat minorities with identifiable community cultures? In the book, Gadi discusses the case of Israel, focusing on three such minorities: Palestinians, women, and ultra-Orthodox Jews. By contrast to much of the political science literature, from Robert Nozick through to Bhikhu Parekh (thank you, Sam Scheffler, for teaching me this literature) Gadi didn’t have a prescription to fit all majority-minority situations. Rather, he thought that each minority culture frames its own interest in, and ability to, engage with the majority culture in a different way, which requires

flexibility in framing the appropriate response within liberal societies.

This idea–of letting disenfranchised groups speak for themselves and understanding them on their own terms–also characterized his pedagogy and administrative work. An expert on Israel’s political culture (and the president of the Association of Israel Studies between 2011 and 2013) Gadi forged relationships with scholars, students, and administrators of varied backgrounds and walks of life. He used to say that research (and life) were “revolutions in a tie.” His administrative career was a testament to this. Under his Deanship, Haifa University bolstered and strengthened its impressive clinical program, with the idea being putting legal studies into practical use by helping those unable to afford legal representation.

Gadi was also a high-profile commentator on current events in Israel, where his vast goodness and common sense made him uniquely qualified to be a straightforward voice of basic morality. His last few posts on Facebook are a testament to this. Upon hearing that the 37th government sabotaged the ability to monitor domestic abusers with electronic cuffs, he said, “this is a clear sign of a country in serious moral crisis; we might be able to save the legal system, but who will save a woman who will be murdered? Shame on you.” His analysis of the convoluted events of the last few weeks was always crystal-clear, spot-on, and prescient. This article (for the Hebrew readers among you) is an example of his ability to convey complicated ideas in ways that everyone can understand and relate to, legally and morally (“the chances of a written constitution in Israel are just like the chances of me being a world champion in running.”) And in this article he warned all of us of the brewing civil war. In one of his last interviews, he articulated his vision for Israel’s constitutional future:

I want a bill that enshrines human rights that, to this day, are only supported by the High Court of Justice–the same “dictatorial” High Court that is now being challenged–which will include freedom of speech, freedom of travel, freedom of religion and freedom from religion. It’s great to be Ultra-Orthodox, but it’s also great to be secular, and every person must have the freedom to live according to their views. At the end, we must improve the existing Basic Laws, to enshrine human and civil rights with an emphasis on minority rights.

I’ve now seen lots of testaments and obituaries online, and interestingly very few of them focus on Gadi’s own scholarship, which was vast and impressive; rather, people are commenting on how Gadi supported and encouraged their own work. Because that’s exactly who he was: devoid of any ego, incapable of pettiness, he was universally generous to all. Always with a kind word to everyone–fancy people in the field as well as undergrads and grad students–and always expressing deep curiosity and interest, a desire to learn, and a sense of partnership and enthusiasm about other people’s work. Always a champion of his friends and colleagues, Gadi was constantly one of my recommenders for any job, award, or grant I went for, and always effusive in his advice and praise. He also chaired the panel that celebrated my first book, Cheap on Crime, and had such wise remarks about it. I think we all felt that Gadi was an expert in our field because he was so knowledgeable in all fields.

Gadi had known for a while that his cardiac condition spelled trouble, and had made lifestyle changes in terms of exercise and diet; but he continued to work himself ragged and worry desperately, from the depths of his big heart, about the future of the country he loved so much and fretted so much about. I really do think that this government broke his heart. It is precisely in these dark times that we need courageous voices of common sense and a strong moral compass to remind us that there is an objective good and that we need to care about everyone, not just let the majority trample human rights. With Gadi’s voice muted and his great light dimmed, I worry more for us all. What is remembered, lives.

When Does Blowing Up a Plea Deal Amount to Judicial Prejudice?

A huge beef is brewing across the Bay Bridge between Alameda County’s new District Attorney, Pamela Price, and Judge Mark McCannon. The backstory involves a plea agreement reached in the case of Delonzo Logwood, who is charged with a triple homicide. Looking at an exposure of 75-to-life, the proposed plea agreement would drop two of the murder charges and consist of only 15 years for the third.

Judge McCannon reportedly balked at the plea deal, saying that he has had sleepless nights over the triple murder case, and that he could not hand out a sentence that was not just and deserving. The judge also scolded Logwood from the bench, saying, “[y]ou can’t think an apology will make this all better. . . What are you sorry for if you didn’t do anything?”

In response, both the prosecution and the defense moved for a recusal, and the judge refused to recuse himself. Now, D.A. Price, elected on a progressive platform, is waging war against the judge, trying to get him disqualified from any case handled by the D.A.’s office. Here’s a video in which she explains why:

The basic doctrine that addresses the situation comes from a D.C. Circuit Court case called U.S. v. Ammidown. The defendant arranged to have his wife murdered by a much younger man, Lee. At the last minute, he changed his mind, and wanted Lee to “only” kidnap her and extort money from her. But Lee did end up killing Mrs. Ammidown, and both men were caught and prosecuted. In return for Ammidown’s cooperation in testifying against Lee–a much younger and more dangerous man–the D.A. agreed to downgrade the charges to second-degree murder; the judge, however, was not on board, and said that the charges were a “tap on the wrist.” He convicted Ammidown of first-degree murder and sentenced him to life.

On appeal to the D.C. Circuit Court, the sentence was vacated and the judge was ordered to accept Ammidown’s original guilty plea. Judge Leventhal, who wrote the opinion, explained that judges are not bound by plea agreements and are allowed to “blow up” these deals. But this course of action must be reserved for rare occasions, and follow these guidelines:

First, the trial judge must provide a reasoned exercise of discretion in order to justify a departure from the course agreed on by the prosecution and defense. This is not a matter of absolute judicial prerogative. The authority has been granted to the judge to assure protection of the public interest, and this in turn involves one or more of the following components: (a) fairness to the defense, such as protection against harassment; (b) fairness to the prosecution interest, as in avoiding a disposition that does not serve due and legitimate prosecutorial interests; (c) protection of the sentencing authority reserved to the judge. The judge’s statement or opinion must identify the particular interest that leads him to require an unwilling defendant and prosecution to go to trial.

We now turn to the content of these components, and begin by passing any discussion of fairness to the defense, since it is not directly involved in the case at bar and it has already been identified in the precedents referred to earlier in this opinion. As to fairness to the prosecution interest, here we have a matter in which the primary responsibility, obviously, is that of the prosecuting attorney. The District Court cannot disapprove of his action on the ground of incompatibility with prosecutive responsibility unless the judge is in effect ruling that the prosecutor has abused his discretion. The requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons. That much, indeed, was proposed by the Advisory Committee, and the Supreme Court’s amendment obviously did not curtail the proposed authority of the judge. The judge may withhold approval if he finds that the prosecutor has failed to give consideration to factors that must be given consideration in the public interest, factors such as the deterrent aspects of the criminal law. However, trial judges are not free to withhold approval of guilty pleas on this basis merely because their conception of the public interest differs from that of the prosecuting attorney. The question is not what the judge would do if he were the prosecuting attorney, but whether he can say that the action of the prosecuting attorney is such a departure from sound prosecutorial principle as to mark it an abuse of prosecutorial discretion.

In like vein, we note that a judge is free to condemn the prosecutor’s agreement as a trespass on judicial authority only in a blatant and extreme case. In ordinary circumstances, the change in grading of an offense presents no question of the kind of action that is reserved for the judiciary.

U.S. v. Ammidown (1973), Op. Ct. by Judge Leventhal.

The takeaway for judges is a strong discouragement from blowing up deals unless they have an excellent reason. Any time a judge flouts a plea deal, the sentence is more vulnerable on appeal, so most judges don’t do it lightly. Judges usually respect plea deals because they have long-standing working relationships with the DA’s office and they have to trust their judgment. Moreover, blowing up a deal is such an unusual occurrence that judges have to explain themselves in a lot of detail (to legitimize the sentence and protect it from appellate reversal). This, of course, requires going into why the judge does not trust the D.A. to have taken the public interest sufficiently into consideration. In doing so, judges sometimes use strong words, but per Ammidown, speaking too strongly is also a problem.

Does blowing up one deal amount to judicial prejudice of the sort that can be said to sour the judge’s relationship with the entire D.A.’s office? In other words, will D.A. Price prevail in trying to get Judge McCannon disqualified from all cases her office handles? That seems a bit of a stretch, and it speaks volumes about the underlying political issues surrounding her election and what her office stands for. Newspapers have reported that the office is somewhat is turmoil, with people quitting and openly challenging the office’s values and priorities. This is a pretty natural consequence of the office changing political direction with the election of a progressive leader–we saw this during Chesa Boudin’s tenure in San Francisco, also. As we see in the video, D.A. Price disputes these former prosecutors’ allegations.

The usual way of addressing possible judicial prejudice is by asking for recusals on a case-by-case basis. There are some situations where a more general disqualification is appropriate: consider, for example, a situation where the judge marries the D.A., in which case they really should not handle cases that the office brings (and best for everyone if the two work in different counties altogether.) This is quite unusual, and I wait to see how it unfolds. Regardless of whether Price will be successful in her bid, starting a massive feud with a judge on YouTube does not portend well for Alameda County.

Your One-Stop-Shop for Trump Indictment Explainers

Well, here we are: the arraignment of Individual One for a 34-felony indictment, has happened, and by tomorrow, many questions and explainers will be swirling around, so I gathered a few of the basics in this post (I would say I curated them for you, but I’m fed up with everyone saying “especially curated” as if compiling any list of thingamajigs were an artistic accomplishment comparable to putting together an exhibit at the Louvre. Thank you for listening to my TED talk.) If you’d like to take another look at the original materials, here’s the indictment and here’s the statement of facts. The NYT has provided an annotated version. For more, click here for a KPFA interview in which I discussed the indictment and next steps with veteran journalist Mitch Jeserich. Things to watch out for:

1) Why aren’t they listing the crime Trump was trying to commit by paying the hush money? This article suggests it’s a strategic choice (but wouldn’t they have to prove that, as an element of the felony? the NYT seems to think they don’t have to prove that, only the intent. I’m not 100% sure this is true.) And there’s also a jurisdictional question: Can that crime be a federal crime? Here’s coverage on Vox explaining this problem and how the rule of lenity plays into this. 

2) Why no conspiracy charges? I haven’t seen this covered anywhere and, honestly, I’m perplexed. Under NY law, here are the various permutations of conspiracy. If they can prove what’s in the statement of facts beyond reasonable doubt, they have conspiracy in the bag. Odd. 

3) Is everyone rejoicing? Look at this Gallup poll. Big shocker: opinions vary across the political spectrum. 60% of people approve of the decision to indict, and 76% think the decision was politically motivated (this obv. includes a big chunk of those who approve of the indictment.)

4) Is there going to be a mug shot? Not unless it’s photoshopped (I know fake ones are already in wide circulation.) He did get fingerprinted, but here are the prosaic reasons for the lack of a mugshot. 

5) What is the defense going to do in terms of pretrial motions? If I were the defense here, I would try to move to dismiss on the basis of general due process concerns (political targeting, the vagueness in the indictment.) If I were unsuccessful, I would move to change venue out of New York, where it will be difficult to find a sympathetic jury, but this maneuver is likely to fail (exposure to the upcoming media circus will be a factor anywhere in the country.)

6) What did Trump say at his press conference at Mar-a-Lago? As expected, he denounced Bragg as politically motivated. Here’s the coverage on Fox News (!).

Judicial Overhaul in Israel – The End of Democracy?

The news from Israel are unprecedented – the whole country is ablaze with protests against Netanyahu’s government’s plan to reform the judicial system. Netanyahu announced a pause, but the bill is still on the Knesset’s agenda for after the High Holidays, and this is a good time for English-speaking folks to figure out what is happening. So, I’ve uploaded a lecturette I created that walks you through the basics of this serious civil conflict.

I’m also organizing two events: a lecture at UCLSF on Thursday at 12:30 and a public event with colleagues and friends at Manny’s on Monday, 4/3, at 7:30. If you want to learn more about the situation.

Please, treat the Israelis and Palestinians around you with extra kindness this week. It is hard to be away from family and friends when hundreds of thousands of people are out in the streets, facing violent government-sponsored goons and Ben Gvir’s oppressive police (the cops are throwing stun grenades on protesters and hosing them from trucks.) It is also very hard for our Palestinian friends who face even more violent provocations under this horrendous government (anyone who thinks their situation is already at its worst and the government makes no difference is seriously deluded.) And please consider how you can help the fight against U.S.-based think tank Kohelet Policy Forum, which is puppeteering and funding this illiberal government from here.

Not Guilty Verdict in Foster Farms Trial!

What a day of good news! First, we hear winds of reform at San Quentin. Then, Chad Goerzen and I receive word that FESTER has been approved for publication by the UC Press Editorial Committee (and coming to a bookstore near you in January 2024.) And then, I hear the verdict in the Foster Farms trial: NOT GUILTY!

As explained in this Los Angeles Times story by Christian Martinez, two activists, Alexandra Paul and Alicia Santurio, faced misdemeanor charges for rescuing two chickens, Ethan and Jax, from a truck, moments before they were brought to a slaughterhouse. This video depicts the rescue:

This is the second time that activists rescuing animals prevail in criminal courts. I’ll know more about the trial later next week, though I do know that a legal opinion I wrote in 2018 played a role. When I learn more about the legal issues, I’ll post a follow-up. For now, good news all around. Saving animals is not a crime!

Newsom Announces Quentin “Scandinavian” Revamp

Big news regarding San Quentin today: Gov. Newsom announced a complete reorganization of San Quentin as a rehabilitation and training center, along the lines of Scandinavian prisons. Nigel Duara of CalMatters reports:

Gov. Gavin Newsom is expected to say that the state will spend $20 million to begin the reorganization of San Quentin State Prison from an institution that houses 3,300 incarcerated people at a high-security site on the San Francisco Bay to a “center for innovation focused on education, rehabilitation and breaking cycles of crime.”  

The new plan would complete the closing of death row and shut a Prison Industry Authority warehouse. The facility would be renamed the San Quentin Rehabilitation Center. 

Some of the larger questions about the reorganization will remain unanswered until the prison’s advisory committee decides them, including which imprisoned people are eligible for the rehabilitation center. 

The new facility will also offer job training, according to the governor’s office, though the advisory committee will have to decide for which jobs inmates will be trained. In prisons in other states that emphasize vocational training, the jobs include plumbing and long-haul trucking. 

The plan for the new facility is modeled on prisons in Scandinavian countries, including Norway, which significantly improved its rate of recidivism from 60%-70% in the 1980s to about 20% today when it began to allow prisoners more freedom and focused its prisons on rehabilitation. 

In those prisons, incarcerated people can wear their own clothes, cook their own food and have relative freedom of movement within the prison walls. That model has taken root in states as disparate as deep-blue Connecticut and deep-red North Dakota. 

Drawing inspiration from Scandinavian facilities is nothing new, and in fact, continues a trend that AMEND SF have begun in partnership with Norwegian prisons. Here’s an interesting report on the CDCR website about a trip some custodial staff took to Norway and what they learned from it. They’ve also brought Norwegian custodial staff to CDCR and to prisons in Washington State to inspire improvements in correctional culture.

It’s important to keep in mind that not all is peachy in Scandinavian criminal justice. In her book Nordic Nationalism, Vanessa Barker highlights the price of preserving a humanist welfare state–gatekeeping against immigrants. Keramet Reiter, Lori Sexton and Jennifer Sumner also wonder about the extent to which the humane and rehabilitative treatment of prisoners in Denmark can be imported to the United States given the difference in political cultures. And, in their fieldwork, they ask and answer some complicated questions about the Danish prison experience:

First, we find that harsh punishment can and does exist in Danish prisons.They are not, after all, uniformly humane; there are scratches in the “polished glass” and certainly reasons to resent the system. Second, the “responsibilization,”which Larson describes (and which, we argue, is fundamental to modern incarceration), can only be enacted through staff and institutional frameworks, which necessarily impose limits on individual freedoms. The particular ways that prisoners and staff describe the negotiation of limits—in the context of both open and closed prisons in Denmark—sheds light on the shortcomings of ScandinavianExceptionalism as both a substantive explanatory model as an ideological agenda that other countries might emulate.

A possible answer to this might be–duh, it’s prison. If it takes you out of your ordinary life against your will, it will involve *some* form of suffering. But I think there’s something else we have to ask ourselves.

I suspect that the energy behind the proposed Quentin overhaul–which, if it comes to fruition, will be overall a welcome development–has a lot to do with the Quentin COVID-19 disaster that we cover in FESTER. Yes, the physical plant at Quentin requires special attention because it is dilapidated and almost 200 years old, and basically allows disease to run rampant. But at the same time, it was no wonder that when CDCR tried to address COVID with transfer policies many people fretted and objected. As we explain in the book, Quentin benefits immensely from its location in the Bay Area, near nonprofits, universities, and a plethora of progressive do-gooders. Which means that, if you want to make parole, this is the place that will offer you the kind of programming and positive reports (“chronos”) that the parole board wants to see. People from all over the state jostle to try and get to Quentin. Investing even more in making Quentin a jewel of enlightened incarceration will make these disparities even worse.

This is not a good reason, of course, not to change things. But it is a good reason to rethink how things are going in the system as a whole. Given what we know about the practicality of population reduction–namely, that you could release 50% of CA’s prison population tomorrow without an appreciable rise in crime if the political good will was there–shouldn’t we try to spread the love toward Susanville and Central Valley, where lifers are parched for programming? And wouldn’t it do wonders for everything prison related–health-care, rehabilitation, the works–if there were overall fewer people in the system? If each prison, individually, were populated to 50% of design capacity, and this were the norm, wouldn’t that free up resources and professional attention to invest in Denmark-izing other prisons beyond the Bay Area?

How True Crime Podcasts Diversify and Decentralize the Victims’ Rights Movement

In the last few months, due to a combination of insomnia and long workouts, I’ve been listening to a lot of podcasts, many of which are true-crime themed. Some of these are long-form podcasts, which follow an individual case, and some feature numerous cases, devoting an episode or two to each. This has led me to rethink about the victims’ rights movement and consider how the new landscape of crime podcasting has changed its focus.

The criminological literature tends to paint the emergence of the victims’ rights movement in the U.S. as a monolith: comprised primarily of white, middle- or upper-class people whose relatives were victims of stranger homicide, pioneers in victim advocacy have tended to advocate for harsher punishments, the death penalty, abolition of parole, harsher prison conditions, etc. In some cases, as Josh Page documents in The Toughest Beat, they partnered with California’s prison guards union. In other cases, as I documented in Yesterday’s Monsters, they pioneered victim presence at parole hearings, with the only possible approach being clamoring for parole denial. Our harsh habitual offender laws were largely the product of Mark Klaas’ advocacy, in the aftermath of the murder of his daughter Polly.

And yet, evidence abounds to the fact that victims are not, actually, a monolith. In my partnership with violence prevention coalitions, I’ve met many victims’ families–mostly black, working-class people–who don’t feel at home with this punitive approach, and call for social change instead. We’ve seen some stunning examples of victim forgiveness (even as know-it-alls on the Internet tell them how to mourn their relatives.) It looks like victims of acquaintance homicide, rather than stranger homicide, are less punitive, and that punitiveness declines when victims and offenders encounter each other.

My extensive, though unsystematic, course of listening to true-crime podcasts suggest that today’s true-crime media lends its voice to multiple victim perspectives, incorporating some critiques of punitiveness, excessive policing, and mass incarceration, and rejecting the victim/offender dichotomy that characterized so much of the early days of the movement. Many episodes include frank descriptions of victims’ lives, including their criminal records, drug abuse, and mental illness–not to blame them, or cast a negative light on them, but rather to point out that even people who struggled in their lives deserve to be found and for their fate to be discovered. Many episodes explicitly feature victims of color, victims who worked in the sex industry close to their demise, and victims who had complicated relationships with their suspected killers or abusers. In many of these episodes, the podcasters explicitly point out that they are looking to bring attention to these left-behind cases.

I’m also noticing that the podcasts feature plenty of rage over inappropriate policing, such as the forceful extraction of confessions or sloppy forensic works. This falls in line with much of what I’ve been thinking about recently: that the problem is not so much overpolicing or underpolicing, but rather the wrong kind of policing altogether (more focus on stop-and-frisk harassment and humiliation than on, well, solving crimes.) Podcasters’ voices become emotional not only when describing the victims’ plight, but also when describing harsh incarceration conditions suffered by wrongly convicted suspects. Notably, podcasters feature ambivalence toward family members who (wrongly) maintain that someone cleared of all connection to the crime (through DNA and, say, proof that a confession was coerced) is guilty: they offer empathy but, plainly and politely, state that they disagree.

Because podcasters have to provide what their public is interested in hearing, one can tell that criminal justice issues percolate from public debate into these programs–first among which is the issue of racial justice. I’ve seen extensive coverage of hate crimes, complete with fundraisers for racial justice organizations, and in cases that involve black perpetrators and victims the focus is on getting justice and attention for the victim, rather than punishment for the offender.

Relatedly, these podcasts also choose to feature a variety of different victim voices. Some families, you’ll hear, are staunch supporters of the death penalty, wishing for the murderers of their loved ones to suffer. Others say that they don’t much care about the punishment, but rather about solving the crime. Many podcasts offer no judgment, letting the victims be themselves rather than the world curators of criminal justice. I really appreciate this perspective.

Much of this pluralistic, multifaceted approach relates to the fact that many true crime podcasts focus on unsolved crimes. The main question driving the narrative is what happened, rather than what the sentence will be. This, to a great degree, depoliticizes the content, focusing it on something we presumably all want: to solve serious crime cases.

This change of focus reminds me of something different, but related. In a really interesting, clear-eyed piece, Keith Findley argues that the emergence of innocence as a topic of conversation has, to some extent, broken the impasse between crime control and due process enthusiasts. Even the staunchest crime control proponent would not like to see an innocent person behind bars; even the scrappiest due process advocate wants solid proof of a crime at trial. I think a similar maneuver happens with these podcasts. The idea that we need to find out what happened eclipses the focus on retribution, just deserts, and what happens later, breaking the impasse and finding some depolicitized commonality among victims of unsolved crime.

I may write something about this at a later date; I think that these podcasts offer an interesting counterpart to the usual crime daytime TV, reviewed by Danny LaChance and Paul Kaplan in their book Crimesploitation. Let there be no mistake: true-crime podcasts crimesploit to the Nth degree. But I think they do it in a different way that is worth exploring.

“Sanctuary Cities” Are Not Biblical Sanctuaries

It’s been a month since I posted here! Life is thick with responsibilities and joys–family, athletics, spirituality, the daily grind of work–and so I haven’t had a chance to come up for air. But I wanted to briefly comment on a recent Chron story that one of my students (thank you!) sent me. It involves an unusual request by San Francisco’s D.A., Brooke Jenkins, to solicit federal cooperation in a matter involving two men accused of (unrelated) heinous crimes who are currently abroad, having fled our jurisdiction: she wants them extradited and tried here in San Francisco.

The simple and accurate response to this is exactly the one that Supervisor Aaron Peskin, often the voice of reason on the Board, voices in the article:

[T]he waiver Jenkins is pressing for is unnecessary, because nothing in San Francisco’s sanctuary city law prevents Homeland Security from apprehending and extraditing the two fugitives so that they can be prosecuted in San Francisco. He added, moreover, that the board would have to approve an ordinance to grant the exception, which means it would have to be debated in committee, subjected to two board hearings, signed by the mayor and set on the books for 30 days before taking effect, in late March at the earliest. 

By contrast, he said, “the feds can apprehend these people tomorrow.”

I feel like I need to highlight this because, in my circles and more generally, there seems to be an exaggerated sense of the protections that sanctuary cities or states can afford undocumented immigrants and other noncitizens. It seems we have forgotten the Trump days in which ICE personnel roamed the streets of the Mission looking for potential people to deport and we all had our cellphones at the ready in case someone was nabbed off the streets and needed help. They were not doing anything unlawful; they were doing something meanspirited and cruel, which is a completely different problem. While the federal government and the state of California are two separate sovereigns, they do operate in the same physical territory, a little bit like China Miéville’s book The City and the City. We don’t have to cooperate with them, but we can’t stop them from operating throughout the same geographic space on their own accord.

This has a few important corollaries. First, it is one more example in which the concept of geographic space needs to enter the criminal justice conversation. I have high expectations of carceral geography as a field of study, but I worry that it’s become basically like sociology of punishment with more abstruse jargon and a lot of metaphor, when there’s lots to be said about the practicalities of physical space. In that respect, our forthcoming book FESTER espouses a really pedestrian understanding of geography with immediate practical implications: you can’t treat prisons as if they exist apart from their surrounding counties when a deadly pandemic is on the loose. The same spatial problem, also with eminently practical implications, is present in the sanctuary city context: if you operate in the same space as someone you don’t cooperate with, at some point you will collide, and you’ll have to figure out how to work out the collision (in Miéville’s book, by the way, these situations require a third police force, called “breach.”)

Second, and related, people tend to forget the many points of contact between local and federal justice that cannot be avoided even with the most assiduous sanctuary city laws, and even if everyone on the local level religiously complies with them (some don’t.) Anytime someone is arrested, their fingerprints find their way into a federal database, where they are matched with the people who are here lawfully. If they are not, it’s not particularly challenging to figure out where they are. If local jail authorities will not allow ICE into their facilities (which, under sanctuary state/city laws, is okay), ICE officers can ambush noncitizens who are heading to meet their probation officers and arrest them in the parking lot. ICE holds on people serving state sentences are lawful and, the minute the person exits the state facility, they will end up in the feds’ hands.

The only thing limiting federal intervention is the extent to which the feds are interested in intervening, which is a direct function of presidential policy. Removal rates in the Biden era were much lower than in the Trump era. During the Obama era, they were fairly high, but federal policy emphasized people convicted of serious crimes, whereas under Trump there was the deliberately inflammatory persecution of DACA recipients (some of the most upstanding Americans I know.) Who gets targeted, and how many get targeted, is purely the function of who is president and what they (or their constituents) care about. This is stuff that local authorities can do very little about, given the many interfaces these systems share.

Legal historian Karl Shoemaker, an acclaimed Medieval historian and fellow JSP alum, wrote a fantastic book about the legal and moral rationales behind sanctuary in the Middle Ages and its decline toward the Early Modern period. As Shoemaker explains in the book, during these times, in which ecclesiastic authorities governed the legal universe, claiming sanctuary truly meant escaping any legal responsibility for one’s crime. It is no coincidence that these rationales, which seeped into British common law from ecclesiastic law, faded in the Sixteenth century, with the advent of the idea of a secular state.

The key to understanding the feeble protection that sanctuary state laws offer our noncitizen friends and neighbors is to remember that, back in the Middle Ages (and certainly in Biblical times, whence the idea of sanctuary emerged,) there were no competing secular jurisdictions jockeying for position. What we call “sanctuary” is a far cry from the ironclad religious protection of yore, and would be better described as “noncooperation” with a legitimate sovereign occupying the same physical space. Can the feds find these two men who are accused of heinous crimes, see to their extradition, and hand them over to Brooke Jenkins? Sure. The question is whether they want to.

Rise of the Innocence Podcast

A short while ago, I chaired a panel to celebrate Paul Kaplan and Daniel LaChance’s new book Crimesploitation, which examines the lowbrow and middlebrow shows that shed glamorous and lurid light on crime: Cops, To Catch a Predator, etc. As I wrote in my review of the book, this read coincided with the week in which Adnan Syed, whose case was the subject of the first season of the podcast Serial, was set free by a Baltimore court after serving 23 years of incarceration. Here is a timeline of Syed’s case, which clearly indicates that the push to exonerate him came from the investigation in the podcast. Following in Serial’s footsteps was Undisclosed, a more pro-defense oriented podcast, which highlighted more discoveries.

In the book, Kaplan and LaChance examine a TV show that came out more or less when Serial emerged on the scene: Making a Murderer, which followed the murder case against Steven Avery and Brendan Dassey. It’s hard to argue against anything that creates a push for justice, and the authors don’t do that, but they do voice a critique against these wrongful conviction media products: by singling out specific cases of injustice, Kaplan and LaChance argue, they “fail[] to achieve the goal of critiquing the substance and structure of the criminal justice system and the bigger picture of hegemonic power relations in the United States that supports it” (94). In other words, “the protection of factually innocent people from the devastation of incarceration. . . becomes the most pressing criminal justice policy imperative, leaving untouched the question of why such a devastating punishment is so easily and readily meted out.” 

Kaplan and LaChance’s critique is well taken. The concern is that the focus on innocence will gloss over the fact that guilty people, as well as the innocent ones, don’t deserve neglect, sadism, cruelty, incompetence, and other cruel and, sadly, not unusual aspects of incarceration. I saw some of this play out in the conversation about vaccines, when jail vaccine advocates referred to the presumption of innocence to make a bid for vaccines that everyone, guilty and innocent alike, should have received immediately simply by virtue of being human and in a congregate setting with little control over their surroundings (and said so here.) But wrongful convictions are their own genre of awfulness, and while we need to support everyone who is incarcerated, I don’t think that infighting between innocence projects and prison advocacy projects helps the overall goal of making the world a better place.

Moreover, I think I am more optimistic than Kaplan and LaChance about these shows. For every person who might watch them and think, “wow, this is a unique instance of miscarriage of justice” there must be several who walk away from it thinking “if this atrocity happened in a case that was highlighted by a podcast, imagine how many more people are languishing in prison for crimes they did not commit who haven’t been featured in podcasts yet.” I said as much in my commentary on the podcast and on the radio.

Happily, the high-profile success of the vanguard shows of this genre led to a whole slew of podcasts seeking justice for the wrongfully convicted. Just recently, the podcast Proof led to the exoneration of two men in Georgia. At the same time, a seemingly contradictory trend is visible: podcasts that reopen cold cases and present theories of the case can help revive interest in unsolved murders and sometimes put terrifyingly violent people behind bars, as well as highlight atrocious behavior that might or might not be criminally defined in an effort to get justice for the victims. I say “seemingly” because, in both cases, the underlying assumption seems to be: podcasters can grease and speed up the wheels of justice faster and better than, say, Innocence Project lawyers.

Why is that? Consider what might be the first example of this genre: Paradise Lost and Paradise Lost 2, the documentaries about the murders of three children in West Memphis, Arkansas, and the convictions of Damien Echols, Jesse Miskelley and Jason Baldwin. The documentaries evoked enormous interest in the cases, and with the weight of celebrities and advocates, within a few years, everyone who knew something about these cases became convinced that the three were wrongly convicted. This newly fueled interest led to some movement in the case, ending in a new trial for Echols and, eventually, in an Alford plea for all defendants that set them free. Shortly after the plea, understanding the power of media, Echols and his wife Lorri Davis produced a documentary of their own in 2012, which featured better forensics and more novel analyses of the evidence.

What happened with the West Memphis Three case is instructive. The media can bring to the public voices form the scene. Unbound by technicalities and rules of evidence and of legal ethics, they can reinterview witnesses, examine forensic evidence with improved technologies, and have candid conversations with legal actors (some of whom might be retired at that point.) They can tell a story in emotionally artful ways that can persuade the public that an injustice has been done. I’m beginning to think that the Innocence Project might want to invest a considerable part of its budget in podcasting.

One argument against the use of podcasts in this way might be that they draw arbitrary, sporadic attention to certain cases at the expense of others. That is surely a problem. But isn’t sporadic, arbitrary attention that corrects injustice better than no attention at all?

The other challenge might be that the proliferation of these podcasts, with every fresh journalist or journalism aspirant hoping to be the one to stand on the courtroom stairs and celebrate, their impact will become marginally smaller, to the point that we will stop paying attention. I don’t think we’re at that inflection point yet. Moreover, the exoneration technologies (primarily the improvement and lower costs of DNA testing) are exposing more and more of these cases (there are also stark racial patterns) and I think we still need all the podcasts we can get.