Euthanize the Death Penalty Already: Scenes from Capital Punishment’s Chronic Deathbed

(published: The Green Bag 27(3), Spring 2024)


INTRODUCTION

J.R.R. Tolkien’s immortal Lord of the Rings tells of the crossing of the Bridge of Khazad-dûm, during which members of the Fellowship of the Ring inadvertently awaken the Balrog. A monstrous holdover from ancient times, the Balrog attacks the Fellowship. Gandalf, the wizard leader of the Fellowship, successfully fights the monster, but at the very last moment, as the Balrog plunges to its death, it swings its whip one last time, capturing Gandalf and dragging him along into the abyss under the Bridge of Khazad-dûm.

The U.S. death penalty in the 21st century is like the Balrog – arcane, decrepit, still grasping and lashing its whip even as it approaches its demise. The score, state-by-state, is practically against capital punishment: 23 states have abolished it, and out of the 27 states that retain it, six (plus the federal government under President Joe Biden) have instated moratoria upon its use.

Even in retentionist states, the rate of executions has slowed almost to a grinding halt, and initiatives to abolish the death penalty frequently appear on the ballot. Even as Americans hang on to their support of the death penalty by a thread,3 and these ballot initiatives continue to be defeated,4 the death penalty continues to lose practical ground.5 Much like people on death row, most of whom die natural deaths after decades of incarceration and litigation,6 the death penalty itself is dying a slow, natural death.

As Ryan Newby and I explained more than a decade ago, the slow decline of the death penalty has been caused by a confluence of several factors.7 The first is the advent of cheap-on-crime politics in the aftermath of the Great Recession of 2008, which drew attention to the immense, disproportionate expenditure on capital punishment. 8 The second is the rising prominence of the innocence movement, which has shone a light on the widespread problem of wrongful convictions, supported in recent years by
the popular reach of true-crime podcasts highlighting miscarriages of justice.9 The third is the growing attention to racial disparities in criminal justice which, while a tough argument to bring up in litigation,10 has impacted the national policy field through Obama-era reforms.11

The expense, discrimination, and potential for harrowing mistakes are all aspects of the chronic disease afflicting the death penalty. But like many natural deaths from chronic disease, the end is prolonged, undignified, and sometimes bitingly cruel. Anyone who has cared for a loved one through the end of life can probably recall the chaotic, arbitrary, sometimes contradictory indignities that every day of decline brings in its wings. And so, in this paper, I offer you a safari tour of horrors, injustices, absurdities, and embarrassments that have characterized the death penalty through its prolonged chronic demise.


TRUMP’S LAST KILLING SPREE: RELUCTANT VICTIMS, ALZHEIMER’S, AND JURISDICTIONAL DISPARITIES


Tolkien is a master storyteller, and he sets up the moment when the Balrog’s whip ensnares Gandalf as poignantly tragic – a sudden, unnecessary reminder that, even at its demise, the ancient monster can still unleash vicious harm. The last few days of the Trump administration offered ample proof of this, through the Supreme Court’s decision in Barr v. Lee.12

Like much of latter-day death penalty litigation, Lee focused on chemicals used in federal executions – to wit, a single shot of pentobarbital, a mainstay of state executions as European countries no longer export lethal drugs to the U.S.13 As Ryan Newby and I explained in 2013, this sort of litigation is a classic example of what Justice Harry Blackmun referred to in the early 1990s as “tinkering with the machinery of death.” Blackmun could afford a direct, stop-beating-around-the-bush approach to the tiresome and technical minutiae of postconviction litigation, but capital defense lawyers cannot; arguments about human rights and racial disparities have long been futile, for various procedural reasons, and the limits of the sayable on appeal and on habeas revolve around chemicals and number of injections. Barr v. Lee, decided 5-4, was no exception: the plaintiffs, whose cases were final and cleared for executions, provided expert declarations correlating pentobarital use to flash pulmonary edema, a form of respiratory distress that temporarily produces the sensation of drowning or asphyxiation. The federal government provided contrary expert testimony, according to which pulmonary edema occurs only after the prisoner has died or been rendered
fully insensate. The Supreme Court found, per curiam, that the plaintiffs had not carried the burden of proof and cleared the way for the executions. Justice Stephen Breyer’s dissent echoed Blackmun’s distaste for what death penalty litigation has become, remarking, “[t]his case illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishmen[t].’” Justice Sonia Sotomayor, in turn, remarked on the absurdity of doing justice to fundamental questions via “accelerated decisionmaking.”

Then came three troubling executions. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victims’ families to spare him.14 The judicial and executive branches’ trampling of those requests followed the usual capital punishment theater in which, as Sarah Beth Kaufman explains in American Roulette, prosecutors, governors, and death penalty advocates use victims as props, assuming that punitiveness is faithful to their wishes – a position that does not faithfully represent the diverse views among victims of violent crime.15 According to the first-ever national survey of crime, twice as many victims prefer that the criminal justice system focus more on rehabilitation than on punishment; victims overwhelmingly prefer investments in education and in job creation to investments in prisons and jails, by margins of 15-to-1 and 10-to-1 respectively; by a margin of 7-to-1, victims prefer increased investments in crime prevention and programs for at-risk youth over more investment in prisons and jails; and 6 in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation than on lengthy prison sentences.

Then, the federal government executed 68-year-old Wesley Purkey, who was described by his lawyer, Rebecca Woodman, as a “severely braindamaged and mentally ill man who suffers from Alzheimer’s disease” and does not understand “why the government plans to execute him.”16 The debate over Purkey’s mental illness was emblematic of the decades and billions of dollars spent poring over the fitness for execution of elderly, decadeslong death row residents. It also made a mockery of Atkins v. Virginia,
17 which forbade the execution of mentally challenged people but left it up to individual jurisdictions to duke out the details of who, precisely, they deem smart or sane enough to be injected with pentobarbital.

Finally came Dustin Honken’s execution, which offered a grim reminder of the gap between the inexplicable federal enthusiasm for executions and the waning interest of states in the penalty. Honken was the first person from Iowa to be executed since 1963; Iowa abolished the death penalty in 1965. Honken’s lawyer, Shawn Nolan, said, “There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.”18

Another development was the reintroduction of electrocutions and firing squads as permissible execution methods by the administration of President Donald Trump in late November 2020 – after Biden had defeated Trump in the presidential election. The change was intended to offer federal prosecutors a wider variety of options for execution in order to avoid delays if the state in which the inmate was sentenced did not provide other alternatives. At the same time, the Department of Justice said it would keep federal executions in line with state law: “the federal government will never execute an inmate by firing squad or electrocution unless the relevant state has itself authorized that method of execution.”19

Trump’s appetite for executions was, at least, consistent with his positions on capital punishment since the 1980s, when he regularly purchased large ads and gave interviews advocating for the death penalty for the Central Park Five20 (who have since been exonerated, as is well known). In the early days of his presidency, he chased headlines expressing support for capital punishment for drug dealers.21 While consistent with Trump’s presidential positions, the viciousness of his last-minute addition of federal electrocutions and firing squads seemed pointless, since Biden was known to oppose the death penalty and had made campaign promises to work toward federal abolition.22 Moreover, any effort to electrocute or shoot death row convicts would embroil the federal government in interminable Eighth Amendment litigation, given the always-present risk of botched executions.

The last slew of planned Trump executions included more cases that provoked moral anguish. For example, the execution of Lisa Montgomery, the only woman on federal death row.23 Montgomery’s crime was shockingly brutal. She strangled a pregnant woman before cutting her stomach open and kidnapping her baby. Her own experiences of victimization were torturous and harrowing. She was sexually assaulted by her father starting at 11 years old, trafficked by her mother, and horrifically abused by her stepbrother, who became her husband. She was involuntarily sterilized, deteriorated into severe mental illness, and lived in abject poverty at the time the crime was committed. The uproar about the sentence provoked heated debates about the Trump administration’s appetite for creating controversies that the Biden administration would then have to undo. What is the point, one might ask, of all this cruelty? And the answer, as Adam Serwer wrote in a different context, might be: the cruelty is the point.24

OKLAHOMA: CHEMICALS AND INNOCENCE

A tragic Talmudic story tells how Yehuda ben Tabbai, President of the Sanhedrin, once wrongly convicted a man of perjury. By the time ben Tabbai realized his mistake, it was too late; the man had already been put to death. Shocked by his complicity in injustice, ben Tabbai would never again rule singlehandedly on a legal point, and every day of his life he would prostrate himself on the grave of the wrongly executed man, begging forgiveness and weeping.25

One wishes that more judicial and executive officials would take a page from ben Tabbai’s book. Instead, a sense of confusion, lack of commitment, and being in perpetual limbo has characterized capital punishment for the last decade. The story of Richard Glossip, the lead petitioner in Glossip v. Gross, is a case in point. In 2015, the Supreme Court rejected Glossip’s petition against the use of midazolam in his execution, just a brief time after the same drug played a horrendous part in the botched execution of Clayton Lockett. In line with the aforementioned trend of technical litigation, the decision revolved around whether Glossip had shown that Oklahoma had better execution methods than midazolam.26

Anyone reading the decision could be forgiven for having no idea that Glossip is widely believed to be innocent, and that Oklahoma’s Attorney General, who reviewed his case, does not stand behind the conviction. Nevertheless, the Oklahoma Court of Criminal Appeals would not halt Glossip’s execution. Judge David Lewis wrote that the case “has been thoroughly investigated and reviewed,” with Glossip given “unprecedented access” to prosecutors’ files, “[y]et he has not provided this court with sufficient information that would convince this court to overturn the jury’s determination that he is guilty of first-degree murder and should be sentenced to death.” It took yet another petition to the U.S. Supreme Court to halt the execution.27

CALIFORNIA: DEATH BY MORATORIUM

For more ambiguity and discombobulation on the death penalty in the 21st century, consider California, where several rounds of abolitionist voter initiatives failed in the last decade.28 I want to spend more time discussing California, not only because I am intimately familiar with capital punishment law where I live and work, but also because I think the last decade in the Golden State perfectly encapsulates what a chronic, slow death for capital punishment looks like. In 2016, while narrowly defeating the abolitionist Prop 62, California voters narrowly approved Prop 66, which was supposed to speed up executions, as well as allow death row residents to be relocated to other prisons where they could pay restitution to their victims. Some aspects of Prop 66 – specifically, those which remove safeguards against wrongful executions – have been found unconstitutional, but most of it has survived constitutional review.29

When explaining what the death penalty in California was like in the late 2010s, I sometimes borrow a framework from the construction world. When planning a project, general contractors might draw a triangle, writing in each corner one word – respectively, “good,” “fast,” and “cheap.” They then say to the client, “you can’t have all three; pick two.” This is an apt description of why death penalty opponents often refer to California’s capital punishment as “broken beyond repair.” A “good” and “cheap” death penalty would require finding some way to seriously litigate postconviction motions on a lengthy timeline and on a shoestring, relying mostly on California’s minuscule existing cadre of capital habeas litigators. Cases would drag on and on, as they do now, until people received representation, a situation that at least one federal judge found to violate the Eighth Amendment.30 A “good” and “fast” death penalty, which is what some supporters of Prop 66 perhaps wanted, would require massive expenditures so that proper, high-quality representation could be found and habeas writs could efficiently work their way through the courts. A “fast” and “cheap” death penalty, which is what Prop 66 might have produced had all its aspects been found constitutional, would do away with many safeguards against wrongful executions and result in more deadly mistakes. Even if
one approves of capital punishment in theory, as many California voters do (for example, through a retributive framework), it is therefore hard to compare its abstract form to the way it is administered in practice: There is no way of fashioning capital punishment in California in a way that guarantees it to be “good,” “fast,” and “cheap.”

These concerns, and many others, led California Governor Gavin Newsom to take a step that his abolitionist predecessors had shied away from: placing a moratorium on the death penalty in California and ordering the
death chamber dismantled.31 Newsom is also turning San Quentin prison, home to the country’s largest death row, into a Scandinavian-style “center for innovation focused on education, rehabilitation and breaking cycles of crime.” For the first time in decades, residents of death row are able to move freely within the facility, and many of them will be transferred to other facilities, a monumental change in their life circumstances that some death row residents, acclimated to their peculiar, restrictive lives, view with apprehension.32 But these are executive, not legislative acts. Because the death penalty still has a legal, if not ontological, existence, people whose lives were saved by the moratorium are still, legally, capital convicts, and costly postconviction litigation on their cases continues, to the tune of $150 million per annum.33

To cynical commenters, who might observe that this new incarnation is not “good,” “fast,” or “cheap,” one might respond, “at least we’re not executing people.” But saying, “no one is being executed on death row” is
far from saying, “no one dies on death row.” In late May 2020, as a San Francisco Chronical exposé revealed – and as a subsequent investigation by the California Inspector General’s office and litigation in state courts confirmed – San Quentin, still home to the country’s largest death row, was overcrowded to 113% of design capacity.34 Alarmed by a horrific COVID19 outbreak at the California Institute of Men in Chino, custodial and
medical officials there sought to mitigate the spread by transferring 200 men out of the facility, 122 of them to San Quentin. The men were not tested for COVID-19 for weeks prior to their transfer. On the morning of
the transfer, several transferees told nurses that they were experiencing COVID-19 symptoms (fever and coughing). According to email correspondence between health officials, these men were treated as malingerers and the transfer proceeded as planned. No effort was made to facilitate social distancing within the buses; the transferees heard and felt their neighbors cough throughout the lengthy journey to the destination facilities.35

The virus spread quickly throughout San Quentin. By the end of June, more than three quarters of the prison population had been infected and 29 had died – 28 prisoners and one worker.36 San Quentin’s death row was especially vulnerable to COVID-19, both because of the low quality of the physical plant – a dilapidated, poorly constructed, and thinly staffed long-term home to approximately 750 men (now many fewer) – and because the death row population tends to be older and sicker than the general prison population. The virus tore quickly through death row, and while prison authorities did what they could to obscure the calamities, San Francisco Chronicle journalists broke the story:

A coronavirus outbreak exploding through San Quentin State Prison has reached Death Row, where more than 160 condemned prisoners are infected, sources told The Chronicle on Thursday. One condemned inmate, 71-year-old Richard Eugene Stitely, was found dead Wednesday night. Officials are determining the cause of death and checking to see whether he was infected.

State prison officials declined to confirm that the virus has spread to Death Row, but three sources familiar with the details of the outbreak there provided The Chronicle with information on the condition they not be named, and in accordance with the paper’s anonymous source policy. Two of the sources are San Quentin employees who are not authorized to speak publicly and feared losing their jobs.

There are 725 condemned inmates at San Quentin, and of those
who agreed to be tested for the coronavirus, 166 tested positive, the
sources said. . . .

It is unclear whether Stitely was infected with the coronavirus. He refused to be tested, according to the three sources with knowledge of the situation.37

By contrast to general population residents, whose identities were hidden from the public for medical privacy reasons, the California Department of Corrections and Rehabilitation sent emails to interested parties about
deaths of people on death row, listing their names and full details. Through subtracting the named casualties from the total death toll, a horrifying truth emerged: More people died on death row from COVID-19 under Newsom’s moratorium than California had executed since the reestablishment of the death penalty in 1978.38

This outcome was deeply ironic, because even after the moratorium, with no death chamber and bereft of lethal chemicals, California courts continued to be clogged with death penalty litigation concerning details
revolving around whether various modes and aspects of the execution process are “cruel and unusual” even as the death penalty itself was still deemed “kind and usual.”39 Flying in the face of this precious and expensive effort to sever the death penalty from any of its potentially cruel and unusual implications were executions clearly not prescribed by the California Penal Code: deaths from a contagious pandemic, compounded by incompetence and neglect.

At the same time, even stalwart supporters of the death penalty realized that capital verdicts that will never be carried out make no sense, logically or practically. In summer 2020, Santa Clara County District Attorney Jeff Rosen, by no means a capital-punishment-shy public prosecutor, announced that his office would no longer seek the death penalty. Rosen claimed that his visit to the Civil Rights Museum in Alabama inspired him to see the death penalty not only “through eyes of the victims and families of those whose lives were taken,” but also “through the lens of race and inequity.” The rationales he offered for the policy change were in line with those behind the penalty’s decline in popularity more generally: “These cases use up massive public resources and cruelly drag on for years with endless appeals that give no finality to the victims’ families,” he said. “There’s the tragic but real risk of wrongful conviction. And, shamefully, our society’s most drastic and devastating law enforcement punishment has been used disproportionately against defendants of color.”40 Rosen was facing an election challenge from a more progressive candidate, which could partly explain his change in position. Nevertheless, his reliance on the more general arguments means that the gubernatorial changes at San Quentin did resonate.

Perhaps even more important was the announcement by George Gascón, upon his election as Los Angeles District Attorney in fall 2020, that the county would no longer seek the death penalty41 – an inflection point for one of California’s four “killer counties” and one of the entire country’s three highest sources of capital sentences. 42 Even more striking is a remarkable data point from Sacramento: Joseph DiAngelo, otherwise known as the Golden State Killer, was finally caught and convicted using innovative forensic investigative tools.43 The Sacramento County prosecutor did not even ask for the death penalty, and rightly so, as it would have allowed DiAngelo to continue litigating at the state’s expense only to die a natural death, like everyone else on death row. Which raises a fair question: If not the most notorious and heinous criminal in the history of California, then who?

WHAT DEATH PENALTY EUTHANASIA MIGHT LOOK LIKE

Capital punishment’s last gasps are, as these examples show, rife with inconsistencies, ironies, and changes of direction, which raise the question when, and how, the end will come. As public opinion and results at the ballot box show, the death penalty retains a symbolic hold over the American imagination. But judges and politicians are exposed to its unsavory sides.

It is hard to provide facile explanations for the different modes of the capital penalty’s demise in recently abolitionist states. In Washington, abolition arrived through a judicial decision about racial disparities in the penalty’s application;44 in Delaware, through a case involving arbitrary jury decisions in capital cases, which was later extended to the remaining cases on death row;45 in New Hampshire, through a non-retroactive statute; 46 in Colorado, through a combination of a statute and gubernatorial commutations;47 in Virginia, the first Southern state to abolish the death penalty, through a bipartisan legislative vote.48

One is left wondering whether it is easier to get rid of the death penalty in retentionist states – such as in Illinois, where abolition followed Governor George Ryan’s mass commutations, largely due to his concerns about innocence and wrongful executions49 – or in states with moratoria – such as California, where one wonders whether the dismantlement of the death chamber and the disbanding of death row, along with the vanishing prospect of an execution as a lightning rod, might be slowing down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole),50 does the effort to abolish a thoroughly defanged (but still expensive) death penalty lose its steam?

What signals a new phase in the death penalty’s terminal illness is a combination of factors: a critical mass of abolitionist states; backlash caused by the Trump administration’s execution spree; the absence of capital sentencing nationwide and, especially, in high-profile cases; abolitionist thinking and decisionmaking at the county prosecution level; the specter of COVID-19 deaths; and, of course, the ever-rising costs. We are unlikely to see a definitive kiss of death. Instead, many local developments may eventually mean – perhaps, to our surprise – that, like so many people on death row itself, capital punishment has died a quiet, natural death.

NOTES


1 J.R.R. TOLKIEN, THE LORD OF THE RINGS: THE FELLOWSHIP OF THE RING bk. II, ch. 5
(2012 [1954]).

2 Abolitionist states with date of abolition: Alaska (1957), Colorado (2020), Connecticut (2012), Delaware (2016), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Maryland
(2013), Massachusetts (1984), Michigan (1847), Minnesota (1911), New Hampshire (2019),
New Jersey (2007), New Mexico (2009), New York (2007), North Dakota (1973), Rhode
Island (1984), Vermont (1972), Virginia (2021), Washington (2023), West Virginia (1965),
Wisconsin (1853). Retentionist states (including states with moratoria): Alabama, Arizona,
Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wyoming.
States with moratoria, along with moratorium date: California (2019), Pennsylvania (2023),
Oregon (2022), Arizona (2023), Ohio (2020), Tennessee (2022). The federal moratorium
was put in place by the Biden administration in 2021. Source: Death Penalty Information
Center (“Death Penalty Info”) website, deathpenaltyinfo.org/states-landing. 3 Megan Brenan, “Steady 55% of Americans Support Death Penalty for Murderers,” Gallup, Nov. 14, 2022.

4 AUSTIN SARAT, JOHN MALAGUE, AND SARAH WISHLOFF, THE DEATH PENALTY ON THE
BALLOT: AMERICAN DEMOCRACY AND THE FATE OF CAPITAL PUNISHMENT (2019).

5 DANIEL LACHANCE, EXECUTING FREEDOM: THE CULTURAL LIFE OF CAPITAL PUNISHMENT
IN THE UNITED STATES (2016).

6 166 non-execution deaths, as of 2024: Death Penalty Focus, deathpenalty.org/facts/.

7 Hadar Aviram and Ryan Newby, “Death Row Economics: The Rise of Fiscally Prudent
Anti-Death Penalty Activism,” 28 CRIM. JUST. 33 (2013).

8 HADAR AVIRAM, CHEAP ON CRIME: RECESSION-ERA POLITICS AND THE TRANSFORMATION
OF AMERICAN PUNISHMENT (2015).

9 Keith A. Findley, “Innocence Found: The New Revolution in American Criminal Justice,”
in CONTROVERSIES IN INNOCENCE CASES IN AMERICA 3-20 (2016); Lindsey A. Sherrill,
“Beyond Entertainment: Podcasting and the Criminal Justice Reform ‘Niche,’” and Robin
Blom, Gabriel B. Tait, Gwyn Hultquist, Ida S. Cage, and Melodie K. Griffin, “True
Crime, True Representation? Race and Injustice Narratives in Wrongful Conviction Podcasts,” in TRUE CRIME IN AMERICAN MEDIA 67-82 (2023).

10 McClesky v. Kemp, 481 U.S. 279 (1987).

11 Barack Obama, “The President’s Role in Advancing Criminal Justice Reform,” 130 HARV.
L. REV. 811 (2017).

12 Barr v. Lee, 591 U.S. 979 (2020).

13 “Europe’s moral stand has U.S. states running out of execution drugs, complicating capital
punishment,” CBS NEWS, Feb. 18, 2014.

14 Hailey Fuchs, “Government Carries Out First Federal Execution in 17 Years,” NEW YORK
TIMES, July 14, 2020.

15 SARAH BETH KAUFMANN, AMERICAN ROULETTE: THE SOCIAL LOGIC OF DEATH PENALTY
SENTENCING TRIALS (2020).

16 Khaleda Rahman, “U.S. Executes Wesley Purkey, Who Calls It a ‘Sanitized Murder’ In
Last Words,” NEWSWEEK, July 16, 2020.

17 Atkins v. Virginia, 536 U.S. 304 (2002).

18 Shawn Nolan, “Statement From Shawn Nolan, Attorney For Dustin Honken,” FEDERAL
DEFENDER, July 17, 2020.

19 Matt Zapotosky and Mark Berman, “Justice Dept. rule change could allow federal executions by electrocution or firing squad,” WASHINGTON POST, Nov. 27, 2020.

20 Colby Itkowitz and Michael Brice-Saddler, “Trump still won’t apologize to the Central
Park Five. Here’s what he said at the time.” WASHINGTON POST, June 18, 2019.

21 Michael Krasny, “President Trump Announces Plan to Fight Opioid Abuse, Including
Death Penalty,” KQED FORUM, Mar. 20, 2018.

22 Dakin Andone, “Biden Campaigned on Abolishing the Federal Death Penalty. But 2 Years
In, Advocates See an ‘Inconsistent’ Message,” CNN, Jan. 22, 2023.

23 Reuters, “Lisa Montgomery: US Executes Only Woman on Federal Death Row,” BBC
WORLD, Jan. 13, 2021.

24 Adam Serwer, “The Cruelty Is the Point,” THE ATLANTIC, Oct. 3, 2018.

25 Bavli Hagiga 16:2.

26 Glossip v. Gross, 576 U.S. 863 (2015); Jeffrey E. Stern, “The Cruel and Unusual Execution
of Clayton Lockett,” THE ATLANTIC, June 15, 2015.

27 Glossip v. State, www.okcca.net/cases/2023/OK-CR-5/ (2023); Glossip v. Oklahoma, 143.Ct. 2453 (2023).

28 Prop 34 failed in 2012: David A. Love, “Prop 34 Fails But Signals the Imminent Demise
of California’s Death Penalty,” THE GUARDIAN, Nov. 9, 2012. Prop 66 failed in 2016:
Sarah Heise, “Death Penalty Supporters Claim Victory with Failure of Prop 62,” KCRA3, Nov. 9, 2016.

29 Bob Egelko, “California Supreme Court Upholds Most Of Expedited Death Penalty
Initiative,” SAN FRANCISCO CHRONICLE, Aug. 24, 2017.

30 Jones v. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014).

31 Kyung Lah, “How Kamala Harris’ Death Penalty Decisions Broke Hearts on Both Sides,”
CNN, Apr. 8, 2019; Eric Westervelt, “California Says It Will Dismantle Death Row.
The Move Brings Cheers and Anger,” NPR, Jan. 13, 2023.

32 Nigel Duara, “Gavin Newsom Moves to ‘Transform’ San Quentin as California Prison
Population Shrinks,” CALMATTERS, Mar. 21, 2023; Sam Levin, “The Last Days of Death
Row in California: ‘Your Soul is Tested Here’,” THE GUARDIAN, May 1, 2023.

33 Arthur Rizer and Marc Hyden, “Why Conservatives Should Oppose the Death Penalty,”
THE AMERICAN CONSERVATIVE, Jan. 10, 2019.

34 Mary Harris, “California’s Carelessness Spurred a New COVID Outbreak,” SLATE, July 7,2020; Roy W. Wesley and Bryan B. Beyer, “COVID-19 Review Series, Part Three,” OFFICEOF THE INSPECTOR GENERAL STATE OF CALIFORNIA, Feb. 1, 2021, 1-2, www.oig.ca.gov/wpcontent/uploads/2021/02/OIG-COVID-19-Review-Series-Part-3-%E2%80%93-Transferof-Patients-from-CIM.pdf; “Monthly Report of Population As of Midnight June 30, 2020,”CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, July 1, 2020, 2, www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/07/Tpop1d2006.pdf.

35 For a thorough examination of COVID-19 and California’s death row, see HADAR AVIRAM AND CHAD GOERZEN, FESTER: CARCERAL PERMEABILITY AND CALIFORNIA’S COVID19 CORRECTIONAL DISASTER (2024).

36 Daniel Montes, “Trial Over COVID-19 Outbreak at San Quentin State Prison That Left29 Dead to Begin Thursday,” BAY CITY NEWS, May 20, 2021.Euthanize the Death Penalty AlreadySPRING 2024 193

37 Megan Cassidy and Jason Fagone, “Coronavirus Tears through San Quentin’s Death Row;
Condemned Inmate Dead of Unknown Cause,” SAN FRANCISCO CHRONICLE, June 25, 2020,
www.sfchronicle.com/crime/article/Coronavirus-tears-through-San-Quentin-s-Death15367782.php.

38 Patt Morrison, “California Is Closing San Quentin’s Death Row. This Is Its Gruesome
History,” LOS ANGELES TIMES, Feb. 8, 2022.

39 Aviram & Newby, supra note 7; George Skelton, “In California, the Death Penalty is Allbut Meaningless. A Life Sentence for the Golden State Killer Was the Right Move,” LOSANGELES TIMES, July 2, 2020.

40 Quoted in Michael Cabanatuan, “Santa Clara County DA Jeff Rosen No Longer to SeekDeath Penalty,” SAN FRANCISCO CHRONICLE, July 22, 2020.

41 Alexandra Meeks and Madeline Holcombe, “New Los Angeles DA Announces End to
Cash Bail, the Death Penalty and Trying Children as Adults,” CNN, Dec. 8, 2020.

42 “Death Penalty Info: ACLU Study: Los Angeles Death Penalty Discriminates Against
Defendants of Color and the Poor,” deathpenaltyinfo.org/news/aclu-study-los-angelesdeath-penalty-discriminates-against-defendants-of-color-and-the-poor.

43 Paige St. John, “The Untold Story of How the Golden State Killer Was Found: A Covert
Operation and Private DNA,” LOS ANGELES TIMES, Dec. 8, 2020.

44 State v. Gregory, 427 P.2d 621 (Wash. 2018).

45 “Death Penalty Info: Delaware,” deathpenaltyinfo.org/state-and-federal-info/state-by-state/
delaware.

46 “Death Penalty Info: New Hampshire,” deathpenaltyinfo.org/state-and-federal-info/stateby-state/new-hampshire.

47 “Death Penalty Info: Colorado,” deathpenaltyinfo.org/state-and-federal-info/state-by-state/
colorado.

48 “Death Penalty Info: Virginia,” deathpenaltyinfo.org/news/virginia-legislature-votes-toabolish-the-death-penalty.

49 Sarah Schulte, “20 Years After Commuting 167 Illinois Death Sentences, Ex-Gov.
George Ryan Has No Regrets,” ABC7 CHICAGO, Jan. 10, 2023.

50 HADAR AVIRAM, YESTERDAY’S MONSTERS: THE MANSON FAMILY CASES AND THE ILLUSION
OF PAROLE (2020).

Are You a Self-Made Job Market Kryptonite? Develop Some Common Sense or Suffer the Consequences. Also, a First Amendment Primer Tailored for Your Campus Needs

Since writing this, and reading this, I expected things to deteriorate, and of course, they have: students who have publicly supported terrorists are suing private law firms that rescinded their job offers. This is absurd for reasons I’ve explained in a prior post:

It is also important to distinguish the right to free speech from the consequences of putting oneself out in public espousing horrendous views. Several law students in fancy schools are finding out, to their shock and surprise, that law firms are not all that keen to hire people who publicly extol the virtues of slaughtering, raping, maiming, burning alive, beheading, and kidnapping people. That being an antisemitic idiot with repugnant views is not a professional asset and has consequences in the job market shouldn’t be particularly surprising, unless you spent your undergraduate years under the tutelage of morally bankrupt people for whom espousing these “edgy” and “interesting” views was a calculated career strategy that catapulted them to prominence in fields like ethnic studies (read here a courageous letter by a UC Regent calling out the Ethnic Studies faculty council letter for what it is.) No wonder these students think they can spew horrid opinions in public and face no consequences whatsoever. What I find most amazing about the whole thing is that some of my colleagues are surprised by what they see on the campus quad. How is any of this surprising? Academic institutions, including the ones I work for, have breathed life into this Golem for years, and the last thing they should find astonishing is when it comes for them. They taught these people, but they didn’t educate them, and the proof’s in the rancid pudding.

But the thing that really gets my goat about this ridiculous lawsuit is that I’ve spent years either representing, or consulting for, activists, direct action folks, civil disobedients, etc. Doing this kind of work hones one’s fine sense of smell for who is the real deal and who is a performative, egomaniacal joke, i.e., who truly wants to effectuate change in world and who wants people to applaud them online. One tell-tale sign is that people who truly and selflessly believe in what they are doing are willing to take the risk of harsh consequences for what they believe. The animal rights folks I helped defend did not believe they were committing a crime by saving animals and documenting animal abuse in factory farms, but they did know that the counties that house these farms and the Farm Bureau lobbyists that fund the justice system in these counties would consider what they did a crime, and the result could be arrest, prosecution, conviction, and incarceration. They welcomed this eventuality, which would be very unpleasant for them, because they thought that criminal trials would be a way to raise the issues publicly whether or not they won and lost (of course, these are not all animal rights activists: many of them would rather make pig noises at Jewish speakers in City Hall than to do actual animal rights work, i.e., help the many animals who suffer from the war on both sides of the border. But that’s neither here nor there).

Anyone who thinks that a private lawsuit against a firm to protect one’s own bright future and pecuniary interests is going to move the needle on war in the Middle East is either disingenuous or an idiot (or both). Perhaps as disingenuous, or as much of an idiot, as the NLG clowns who advised law students that disrupting an event at someone’s private residence, which you are attending thanks to the owner’s personal generosity, somehow counts as consequence-immune free speech. Since it appears that all these supposed lawyers and law students have completely forgotten what they were taught in constitutional law, here are some reminders of the basics, complete with examples.

The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Like the entire U.S. Constitution, the First Amendment operates in the individual-versus-government space. It is the government that is forbidden from curtailing one’s free speech in public, not private entities–be they individuals, faculty members, students, student groups, etc.–and certainly not in private spaces. This is why suing a private employer who doesn’t want a shrill terrorism supporter to draw a salary from them is absurd. Here are a few other examples:

Also, odious as the “context” comments of the university presidents were at the hearing were, they were legally correct: when deciding whether something is protected or not, context does matter a lot:

Here are some recognized exceptions to the freedom of speech:

And here are the rules about some of the exceptions that come up most frequently in the context of student and faculty opinions about the war:

Fighting Words. These are defined, per Chaplinsky v. NH (1942), as words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” The burden of proof is pretty high–Clear and Present Danger, per Termiliano v. Chicago (1949).

Defamation. I’ve seen examples of horrific maligning of people on social media. Insofar as these people are public figures, it will be hard to prevail on defamation. Per NYT v. Sullivan (1964), “[t]he constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Incitement to Imminent Lawlessness/Violence. Here, too, hyperbole doesn’t suffice to create the exception: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The example given in Schneck v. U.S. (1919) is the classic “shouting ‘fire!’ in a crowded theatre.”

True Threat. It is not protected speech to “direct a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death” (VA v. Black (2003)), but most of the stuff that gets yelled around campus would not be classified as “true threat” but rather as “political hyperbole.” For example, to say during the Vietnam war, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” is the latter (Watts v. U.S. (1969)).

Solicitation to Commit Crime. In criminal law, at common law, the term “solicitation” applies to a scenario where a person requests or induces another person to commit an act that would amount to a felony. In the context of the First Amendment, the Supreme Court has punted on opportunities to clearly define criminal solicitation. Again, judging from the other exceptions, specificity would be key here.

As you can see, this means that free speech is very broad in the U.S. context. Which doesn’t mean that using it incessantly is necessarily a good idea. Recently, a beleaguered Harvard concluded that the best policy is to stay away from statements and proclamations on matters that do not directly concern the educational mission of the school (Syracuse is following, and I expect other schools as well–my own workplace does this, and this letter from the Dean of Stanford Law makes the same point.) But this does not apply, obviously, to individuals within the university. I know very well what it’s like to work and study when surrounded by behaviors that are covered by the First Amendment, none of which on its own is beyond the pale, but whose cumulative effect is corrosive. Because, just like the people yelling and distributing terrible flyers, you are an individual with free speech rights, use them! Take a page out of Ron Hassner’s initiative. I joined him for one night at my office and it felt good to do or say something, too, not just remain mute in the face of upsetting things happening.

That said, you and your psyche come first, and we could all immensely benefit from stopping the ridiculous concept creep of the phrase “I felt unsafe.” Choose your battles, act accordingly, and shrug off any nonsense that will not move the needle one way or the other. If you think that this stuff will affect your actual safety (not just your job satisfaction), then I think you should act.

Left Realism Matters More than Ever in Criminology

Houston, we have a bit of a problem. Having just finished writing my term papers at the GTU, I’ve turned to grading exams (will be done soon! I promise!) and to some writing obligations in my areas of expertise, only to find out that I seem to have outgrown things I promised to finish and send out. It’s not exactly writer’s block: the challenge is not dishing out words, but rather the specific words that I’m supposed to be dishing. I committed to write something about the anticarceral literature of the last few years, its contributions and the ways in which it falls into the same traps it identifies (basically, a scholarly version of this thing), except I can’t shake a sense of “what’s the use?” It’s simply no longer clear to me how “contributing to the debate” makes the world a better place.

I’ve now spent more than 25 years in criminology and penology and have come to realize that there is nothing new under the sun. Maybe this is true of all social sciences, maybe humanities, too, maybe all disciplines; I can only speak about my own area of expertise. New terms and jargons are banded about often enough, but very little of the substance changes. Do the conference and publication thing, year in and year out, and you’ll risk catching whatever new viral tic is going around, infecting the crop-de-jour of publications and talks: the X industrial complex, postcolonialism, decolonialism, neoliberalism, extractionism, or whatever is in vogue this year (I’m sure there’s something, but I’ve been out of the loop for a few months, mourning my father and shellshocked from the massacre and the war and bereft of appetite for mundane job stuff.) If you scrape the jargon off, you find that the basics have changed very little in more than a century, and when articulated simply and without flourishes, they pretty much reflect what we know: what counts as “crime” varies, and although some things (e.g., serious violence) tend to generate consensus, others (e.g., white collar crime and environmental crime) are treated more nebulously; what is treated more seriously sometimes, but not always, correlates with what causes the most social harm. Disadvantage and deprivation can bring about pathological behavior both on the part of the people experiencing it and on the part of the people policing it. Militarized and aggressive policing is a low-yield, high-alienation strategy that makes communities bitter and mistrustful and harms efforts to actually solve crime. Locking people up can create conditions for cruelty and neglect and can bring about change (due to deterrence or rehabilitation) only under very specific conditions that, more often than not, do not materialize. Generally, the folks on the receiving end of the uglier aspects of criminal justice–whether too much or too little–tend to have less money and darker skins.

Contributions of value to this situation come, basically, in two packages: either a truly groundbreaking understanding of how the world works, or someone willing to put in the work to make things better. Publications and talks of the former variety are rare, which makes sense–we stand on the shoulders of giants, even if we no longer recognize the giants or remember to cite them. As to the latter variety, practical effort to improve things is hard to do, and also thankless, because even fairly mediocre folks know how to write the sort of gloomy diatribe that gets an applause: People did A, which was bad. Or people did B and meant to do a good thing, but it turned out bad because of systemic problems. Or people did C and pretended to do a good thing, when they were doing a bad thing all along. It matters very little which tack you take, as long as your conclusion is that things turned out worse than they were before. Writing this sort of thing gets a lot more respect in the social science spaces where I spent two and a half decades of my life than actually working in policy or government, where you are branded either as an idiot or as complicit with the bad guys, and it’s not nearly as much work, so even grad students realize fairly quickly where the incentives lie.

Because saying what other people have said for decades is not innovation, and because true innovation is not on the menu, we have simply found new ways to say old things. Which is why I find myself asked, at a book talk, how FESTER relates to “doing crip theory,” because apparently saying, “people with disabilities and chronic conditions were horrifically neglected and their conditions deteriorated” is less hip than calling it “crip theory,” which is exactly the same thing, except without the fancy name. Same goes for saying “the neglect and mismanagement of COVID-19 in prison caused horrific outbreaks and alarming rates of mortality, which affected people on the outside as well” without dressing it up as “eugenic logics.” When I say that overtheorizing is not a virtue, it’s an ego-driven intellectual game (and not a particularly impressive one), and that the facts are horrifying enough without calling them all sorts of things that don’t actually do any explanatory work, I get blank stares.

Thank you for listening to my grumpy TED talk so far. I know I can play this game just like everyone else–I just don’t want to anymore. But this is not about me–I’m trying to make a more general point, which is this: The big debates in the field today–the reform-vs.-non-reformist-reform stuff and the abolitionism-vs.-non-abolitionism stuff–are little more than iterations of a debate we already had in the 1970s and 1980s, namely, the debate between left idealism and left realism.

Ask any American criminologist or penologist about radical realism, and nine times out of ten you’ll get a blank stare. Punishment theory tends to be fairly parochial, and had I not been lucky to study with people trained in Europe and Canada, odds are I wouldn’t be familiar with Jock Young’s important work. A towering figure in criminology in the 1970s, Young was part of the pioneers of The New Criminology, then a groundbreaking work that responded to the challenges of British working class neighborhoods with a systemic analysis of deprivation and inequality, and challenged the mainstream assumptions of classicists and positivists by asking questions about the provenance of criminal categories and criminalization and positing that power played a role in crafting them.

It’s not a huge stretch to see that Young was not a starched, stuffy conservative. He was well aware of what we all know to be true, which is that the folks at the bottom of the social ladder are on the receiving end of the worst that we have to offer, both in terms of coercive state power and in terms of governmental neglect. But he was not willing to sign on to the fanciful idea, then banded around by Scandinavian abolitionists, that crime had no ontological existence and was essentially an invention by the bad guys at the top to perpetuate their superiority and make everyone else miserable. Crime, Young said, was a real thing, it victimized real people and caused real suffering, and it required a real response, rooted in the world that these people inhabited: those who committed the crimes and those who suffered from them.

Along with John Lea, Young offered a multifaceted understanding of the causes of crime, tying it to three factors: relative deprivation, subcultures, and marginalization. Poverty alone could not explain rising crime rates; standards of living had risen since the 1950s, and so had crime rates. But in an increasingly wealthy society, everyone’s material expectations rise: we are wealthier, but we feel poorer, and thus there is more pressure to get more stuff to keep up with everyone else, which generates historically high crime rates.

Relatedly, Lea and Young built on some of the proto-conflict criminologists of the 1950s (Merton, Albert Cohen, and others) to combine the problem of relative deprivation with systemic neglect (which they refer to as “marginalization) and the rise of criminal subcultures. Recall that Merton flagged the basic problem with the American dream: the mismatch between the goal (to get ahead materially) and the means (blocked opportunities due to structural inequalities, lack of representation, and being pushed out of fully participating in society.) People who adhere to the conventional goals but lack legitimate opportunities to accomplish them, said Albert Cohen, experience “status frustration,” which can lead to cynicism and bitterness and fuel criminal subcultures.

What produces crime, therefore, is a combination of factors, which Young captures in the “square of crime.” This framework can accommodate multiple criminological questions: why people commit crime, what makes crime victims vulnerable, what factors affect public attitudes toward crime, and what impacts the state’s formal response to crime. Any criminological theory that is a one-trick pony can ridicule any corner of the square of crime: knee-jerk left idealists can complain about the offender corner, arguing that crime is a capitalist, white supremacist invention, while knee-jerk conservatives (and, say, some carceral feminists) can complain about blaming the victim. But grownups understand that complex phenomena have complex etiologies.

Complex problems call for complex solutions, and left realism focuses on two types of practical, high-yield strategies: prevention through early intervention (tearly-age education and high quality programming for youth) and community-based approaches that focused on raising living standards, creating jobs, and improving quality of life. Because crime prevention is at its best when initiated by the community, the police must invest in building the community’s trust, opting for proactive problem-solving, rather than low-yield, high-antagonism tactics like militarized raids and stop-and-frisk activities.

You can probably see where i’m going with this. Left realism is an approach that sees social inequalities as fueling two sides of the same coin: criminality and criminalization. They are cognizant of the fact that the world can be very unfair toward those of us with less resources, and they also know that both perpetrators and victims tend to belong to the less fortunate sectors of society. There’s no preemptive assumption that victims and offenders must develop class solidarity and hold hands in peace circles, because crime is a serious thing and not everyone feels forgiving. There’s also no preemptive assumption that people who commit crime are uniformly innocuous and, without exception, lovely to be around, even as the source of their suffering can be very complicated. And, there is a basic trust in the common sense and power of community, because even though many people are poor and disadvantaged, most poor and disadvantaged people do not commit crime, nor do they like being around criminal activity. All of this makes as much sense to me in 2024 as it did to Young between the 1970s and the 1990s.

Why am I thinking about this now? In trying to discern my current opinions about carceral-this and anticarceral-that, I came across a crisp, clear analysis of our current political moment by the one and only Nate Silver. You can (and should) read the whole thing here, but here are a few handy paragraphs:

SJLs and liberals have some interests in common. Both are “culturally liberal” on questions like abortion and gay marriage. And both disdain Donald Trump and the modern, MAGA-fied version of the Republican Party. But I’d suggest we’ve reached a point where they disagree in at least as many ways as they agree. Here are a few dimensions of conflict:

  1. SJL’s focus on group identity contrasts sharply with liberalism’s individualism.
  2. SJL, like other critical theories that emerged from the Marxist tradition, tends to be totalizing. The whole idea of systemic racism, for instance, is that the entire system is rigged to oppress nonwhite people. Liberalism is less totalizing. This is in part because it is the entrenched status quo and so often is well-served by incremental changes. But it’s also because liberalism’s focus on democracy makes it intrinsically pluralistic.
  3. SJL, with its academic roots, often makes appeals to authority and expertise as opposed to entrusting individuals to make their own decisions and take their own risks. This is a complicated axis of conflict because there are certainly technocratic strains of liberalism, whereas like Hayek I tend to see experts and central planners as error-prone and instead prefer more decentralized mechanisms (e.g. markets, votes, revealed preferences) for making decisions.
  4. Finally, SJL has a radically more constrained view on free speech than liberalism, for which free speech is a sacred principle. The SJL intolerance for speech that could be harmful, hateful or which could spread “misinformation” has gained traction, however. It is the predominant view among college students and it is becoming more popular in certain corners of the media and even among many mainstream Democrats.

Silver goes on to explain why these differences have become even more stark in the aftermath of October 7:

I suspect that an increasing number of liberals will a) more clearly recognize that they belong to a different political tribe than the SJLs and even b) will see SJLs as being just as bad as conservatives. And this will cut both ways; some SJLs will regard liberals as just as bad as conservatives — enough so that they might even be willing to deny a vote to Biden. All of this is quite bad for the progressive coalition between liberals and the left that’s won the popular vote for president four times in a row.

The liberal-vs-SJL distinction Silver makes is echoed, in the criminological area, in the perennial distinction between left realists and left idealists, which then became the distinction between reformers and revolutionaries, which then became the distinction between, say, not-quite-abolitionist and abolitionist folks. Left realists are not the perfect equivalent of traditional liberals, but in terms of how the field is organized, they might as well be, because for the hardcore abolition/anticarceralism folks, anyone who is willing to treat crime as a phenomenon with ontological reality, regard incarceration as an institution that has some public safety payoff (if only to incapacitate people who are truly dangerous to their immediate environment), and ask hard questions about racial disparities in violent crime rates (and not only in criminalization), might as well be a rabid Trumper. I see this again and again at conferences. I hear incessant chatter about how prison “should not exist in its current form” but no practical proposals for what form it should take. I hear conversations about disenfranchised people being harmed by crime, but nothing about the fact that there are actual people, also disenfranchised who are doing the harming, and about the possibility that restorative justice circles might not be the only solution for this situation. Thing is, as a staunch left realist, I have serious axes to grind with fatuous analyses and suggestions from both these-people-are-monsters fearmongerers and psychopaths and crime-is-nothing-but-white-supremacist-scapegoating idiots and fantasists. And I also know that there’s a silent majority of reasonable people hovering around those two points that doesn’t quite accept those positions in their caricatured forms, but are afraid to write nuanced things that can contribute to practical improvements in the real world out of fear that no one in their respective milieus will treat them seriously or want to have coffee with them. And I don’t really have a solid plan for how to make this slouch toward unseriousness and hyperbole any better, beyond saying again and again: Jock Young was right, there are no easy answers, and left realism matters now more than ever in criminology.

Offensive Speech in Terrible Times

Like many other campuses around the United States, mine is papered with despicable flyers espousing an ignorant perspective on the Israel-Hamas war. My Jewish students are understandably upset and infuriated, and so am I. Every day brings fresh, unbearable details about the massacre. The contrast between that and my outside surroundings is a dissonance that fractures me to the core. In the coming days, many campuses, including ours, will see abominable displays of hatred, antisemitism, and a breathtaking level of illiteracy regarding international affairs. We’ll see laughable, imaginary coalitions between, say, Hamas and the fight for trans rights. This will be ugly and it will be emotionally difficult to stomach. It already has been a difficult struggle to function at work and it’s likely to endure for some time.

At such times, supporting a legal regime that has absolute free speech is deeply distressing and challenging. I finally found out who first wrote, “I detest what you write, but I would give my life to make it possible for you to continue to write”–it was Voltaire biographer Evelyn Beatrice Hall, in 1906. For First Amendment enthusiasts, this era epitomizes that sentiment–the price of freedom is walking around with a broken heart, even if the open goal of the speakers is to break it.

The image above depicts the Illinois Holocaust Museum in Skokie, IL; in the 1970s, Skokie was the setting for a free speech debate culminating in a Supreme Court decision that in many ways reminds me of the situation on the ground today. David Goldberger, at the time the legal director of the ACLU of Illinois (and later an Ohio State law professor specializing in free speech) has written a fascinating account, complete with images, of his representation of the Nazis in this case–not only what it was like to have them for clients, but also the public response. I really recommend that you read it verbatim. Among many things I didn’t know was the fact that Meir Kahane, in many ways the ideological granddaddy of murderous Jewish nationalists like Ben Gvir et al., started his activity in the US with the Jewish Defense League, who appeared at the ACLU offices with baseball bats! Another thing I didn’t know was that the ACLU’s choice to represent the Nazis in the Skokie trial led to tens of thousands of resignations, but also to some support letters from holocaust survivors who said that “they wanted to be able to see their enemies in plain sight so they would know who they were.” The ACLU is taking the same approach regarding the protests we are experiencing now.

I really recommend reading Goldberger’s entire account, and it’s even more interesting to ponder it through a comparative lens. Not all countries have absolute free speech; many place limitations on hate speech and incitement to racism or violence. That approach ushers its own host of problems: what is and is not “hate speech” or “incitement” is a subjective determination, and judicially delving into these questions inevitably brings in ideological perspectives and heuristics. I’m already seeing some troubling incidents in Israel in which universities and schools waste precious time and energy on McCarthyist investigations of their students, faculty, and staff.

It’s important to distinguish the general question of what should and should not be legally allowed from the more particular question, what these opinions tell us about the quality of the education we provide and about the quality of the people who espouse them. For some idea on how these ideas fester and infect people to this degree, read Julia Steinberg’s account of her own education. It exposes many of the flaws of what passes nowadays for progressive education, and dovetails with my unwillingness to responsibly participate in similar indoctrination efforts at my workplace and elsewhere. Steinberg’s piece was an important reminder that hateful idiots don’t spring into being, fully formed, in college or law school; they are raised to be the way they are in their K-12 years. I, for one, plan to keep a very watchful eye on my child’s education, to ensure that essentialist, separatist identitarian rubbish isn’t inflicted on the kids in this mindless manner.

It is also important to distinguish the right to free speech from the consequences of putting oneself out in public espousing horrendous views. Several law students in fancy schools are finding out, to their shock and surprise, that law firms are not all that keen to hire people who publicly extol the virtues of slaughtering, raping, maiming, burning alive, beheading, and kidnapping people. That being an antisemitic idiot with repugnant views is not a professional asset and has consequences in the job market shouldn’t be particularly surprising, unless you spent your undergraduate years under the tutelage of morally bankrupt people for whom espousing these “edgy” and “interesting” views was a calculated career strategy that catapulted them to prominence in fields like ethnic studies (read here a courageous letter by a UC Regent calling out the Ethnic Studies faculty council letter for what it is.) No wonder these students think they can spew horrid opinions in public and face no consequences whatsoever. What I find most amazing about the whole thing is that some of my colleagues are surprised by what they see on the campus quad. How is any of this surprising? Academic institutions, including the ones I work for, have breathed life into this Golem for years, and the last thing they should find astonishing is when it comes for them. They taught these people, but they didn’t educate them, and the proof’s in the rancid pudding.

Georgia Indictment Calls Trump & Co. What They Are: A Criminal Organization

One more indictment! This time, it comes from Fulton County, Georgia, where Trump tried to bulldoze the Secretary of State into “finding” him enough votes to win. Eighteen additional friends (and 30 unnamed co-conspirators, probably anonymized to entice them to flip on the named defendants as in the recent federal indictment) come aboard for the ride with RICO violations and a conspiracy. Read the indictment in full here.

This is a lengthy indictment, containing 41 charges, the first of which is a violation of the Georgia RICO Act, which requires that the defendants “while associated with an enterprise, unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, such enterprise through pattern of racketeering activity.” Beyond the strategic value of using the RICO Act as a framework for the conspiracy (it is easier to prove than its federal equivalent, and it encompasses a lot of the remaining charges, thus helping create a streamlined narrative), there’s something symbolic about relying on a statutory machine birthed for the purpose of bringing down crime organizations, which, come to think of it, is exactly what this enterprise was.

One’s gotta love the simplicity of the opening paragraph:

Defendant Donald John Trump lost the United States presidential election held on November 3, 2020. One of the states he lost was Georgia. Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined conspiracy to unlawfully change the outcome of the election in favor of Trump. That conspiracy contained common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and in other states.

After defining the relationship between the defendants and their co-conspirators as an “enterprise,” the indictment continues its on-the-nose organized crime reference by listing the “manner and methods of the enterprise”: holding hearings in which they issued false statements about the election results, repeating these falsehoods to various office holders in Georgia, convening a fake slate of electors (complete with forged documentation–as part of the Eastman-Chesebro scheme), false accusations of election workers, stealing data, soliciting the assistance of Pence and the DOJ to bring about the reversal of fortune in Georgia and, of course, the inevitable coverup, including perjury.

As per RICO requirements, the indictment then lists 161 racketeering acts, breaking the aforementioned modus operandi into discrete events. These are a real eye opener even for those of you who were following the events in real time. At the time, I was under the impression that the Trump phone call to Georgia Secretary of State Brad Raffensperger was the coup de grâce of the whole thing, and I don’t think that was far from the truth, particularly if you listen to the whole thing:

I remember listening only to the critical bit, in which Trump bullies and threatens Raffensperger, but in the full recording you can hear his usual tactics: bombard the listeners with facts that sort of sound valid but are completely false, and revert to insults, etc., when that doesn’t yield immediate submission.

Thing is, reading each of the additional acts fleshes out a story of brutal, systematic intimidation, complete with utter disregard for the safety of election workers who simply did their job and were rewarded with death threats. The remaining 40 charges are of more particular crimes: forgeries, impersonations, threats against public office holders, etc. The emerging picture is well worth the criminal enterprise framing; this indictment, even more than the federal ones, calls Trump and his lackeys what they are.

The Call Is Coming from Inside the House

The image above, captured by movement photographer Gal Mosenson, comes from a protest held yesterday in Tel Aviv in support of the Arab-Israeli population. As some commentators have mentioned, Arab-Israelis are conspicuously and understandably absent from the pro-democracy, anti-government protests; the proliferation of Israeli flag and the coalition with centrist movements, obscuring the occupation of Palestinian land and the horrors visited not only on Palestinian refugees but on Israeli citizens who are ethnically Palestinian, are huge hindrances to collaboration. Yesterday’s protest organizers asked their Jewish allies to show up without protest t-shirts or Israeli flags.

I’ve previously posted about rising crime rates amongst Arab-Israelis, and things have grown even more dire since then: the number of murder victims is skyrocketing. The confusion among civil rights organizations whether to support the Arab-Israeli demand for assistance from a police force that oppresses and uses violence echoes some of the dilemmas that James Forman spelled out in Locking Up Our Own. But there’s something deeply patronizing about downplaying calls from thoughtful citizens who have realized that they simply cannot have their kids leave the house out of fear of shoot-outs and family vendettas gone wrong.

Meanwhile, in the New World, similar calls are being heard regarding crime rates in Oakland and San Francisco. The Oakland call comes from no other than the NAACP:

Oakland residents are sick and tired of our intolerable public safety crisis that overwhelmingly impacts minority communities. Murders, shootings, violent armed robberies, home invasions, car break-ins, sideshows, and highway shootouts have become a pervasive fixture of life in Oakland. We call on all elected leaders to unite and declare a state of emergency and bring together massive resources to address our public safety crisis.

African Americans are disproportionately hit the hardest by crime in East Oakland and other parts of the city. But residents from all parts of the city report that they do not feel safe. Women are targeted by young mobs and viciously beaten and robbed in downtown and uptown neighborhoods. Asians are assaulted in Chinatown. Street vendors are robbed in Fruitvale. News crews have their cameras stolen while they report on crime. PG&E workers are robbed and now require private security when they are out working. Everyone is in danger.

Failed leadership, including the movement to defund the police, our District Attorney’s unwillingness to charge and prosecute people who murder and commit life threatening serious crimes, and the proliferation of anti-police rhetoric have created a heyday for Oakland criminals. If there are no consequences for committing crime in Oakland, crime will continue to soar.

People are moving out of Oakland in droves. They are afraid to venture out of their homes to go to work, shop, or dine in Oakland and this is destroying economic activity. Businesses, small and large, struggle and close, tax revenues vanish, and we are creating the notorious doom-loop where life in our city continues to spiral downward. As economic pain increases, the conditions that help create crime and criminals are exacerbated by desperate people with no employment opportunities.

Notably, their call to action recognizes the progressive shaming that hinders action, and they call out the relevant communities without mincing words:

We urge African Americans to speak out and demand improved public safety. We also encourage Oakland’s White, Asian, and Latino communities to speak out against crime and stop allowing themselves to be shamed into silence.
There is nothing compassionate or progressive about allowing criminal behavior to fester and rob Oakland residents of their basic rights to public safety. It is not racist or unkind to want to be safe from crime. No one should live in fear in our city.

A somewhat more tepid call, but still important, comes from San Francisco’s NAACP President:

It can be difficult to exercise compassion when the situation is this dire. In one of the wealthiest cities in the world, poverty remains a significant problem, made worse by ever-increasing income inequality. Too often, our reaction to this suffering is to call for it to be removed in sweeps that only create more suffering by moving the problem to a new place in the city.  We have seen regrettable responses, such as the owner of a North Beach art gallery who sprayed an unhoused woman with a hose when she refused to move from the sidewalk in front of his business. I understand his frustration, but as difficult as it is, we must exercise compassion; today, I am working with the gallery owner to help him through this challenge.

But compassion must be accompanied by responsibility.

First and foremost is for people in this city to take personal responsibility, even in the most difficult of circumstances of being unhoused.

Setting up an encampment underneath an occupied building and setting open fires, as has happened recently in the Haight, is utterly unacceptable. So is erecting a tent city that prevents others from safely walking in their neighborhoods or makes it dangerous for them to come and go from their own homes. Engaging in open drug use, committing violence and carelessly creating unsanitary conditions are all the outcome of a lack of personal responsibility.

We also must practice community responsibility. Those who need help should be able to receive it, and we need to take the steps to streamline the creation of safe, affordable housing to get people off the streets permanently. At the same time, there must be consequences for those who refuse help yet continue to refuse to take personal responsibility for their actions.

Perhaps the most important thing we need, however, is accountability — by the city, by the array of agencies and organizations that serve the unhoused and those dealing with addiction, and by the larger community. Too much money is spent without effective oversight, coordination and collaboration. We can provide an individual with some of the help they need but fail to connect them with other essential resources. Organizations duplicate efforts, work at odds with one another, and in the end, fail to solve the problem they all profess to be fighting.

I assume the culture wars will now lead to an argument that the NAACP has sold out to white supremacy or whatever (the term “personal accountability” in particular, as my friend Paul Belonick notes, will be read by some as a right-wing dog whistle), but that would be reductive, disappointing, and mostly disrespectful. At some point, this movement will have to contend with the fact that the call is coming from inside the house, and that the big talk about “lived experience” means we should believe people who tell us they can’t live with crime around them.

Twenty years ago, when I studied radical/critical criminology, it struck me that the biggest weakness of Marxist/critical race theories were that, for all the political incentives of the oppressed to fight against the machine, the vast majority of poor people of color do not commit crime. And the fact that crime, especially violent crime, tends to operate intraracially. The radical rhetoric was intoxicating, but after years in the military defense, seeing how the haves and the have-nots fared, I realized that left realism was the best framework for understanding what I saw around me. What is novel and worthwhile about the calls for help from the Arab-Israeli community and from the Bay Area NAACP chapters is that it’s not just about oppression: they realize that enforcement must come hand in hand with opportunities for youth, otherwise there is no hope for the community. The Oakland NAACP writes:

Our youth must be given alternatives to the crippling desperation that leads to crime, drugs, and prison. They need quality education, mentorship, and, most importantly, real economic opportunities. Oakland should focus on creating skilled industrial and logistics jobs that pay family sustaining wages, and vocational training so Oakland residents can perform those jobs. With this focus we can produce hundreds, if not thousands, of the types of jobs desperately needed to stem economic despair. Unfortunately, progressive policies and failed leadership have chased away or delayed significant blue collar job development in the city, the Port of Oakland, and the former Army Base. That must change!

We also must continue with mentoring programs like the Oakland branch of the national OK Program that steers youth away from criminal activity. We believe that young people currently in the criminal life will choose another path if they are shown a way.

The idea that improving opportunities reduces crime is not new. It comes from Cloward and Ohlin, architects of Opportunities Theory. Even in the late 1950s it was evident that young people treated as second-class citizens make use of the opportunities available to them, and those tend to be illegitimate opportunities. This is common sense, but what I see all around me (Elizabeth Hinton’s From the War on Poverty to the War on Crime is a prime example, but there are others for sure) is derision of Cloward and Ohlin as white, top-down do-gooders who are almost (if not absolutely) worse than rightwingers. The appeal of Hinton’s argument is that it is clever and counterintuitive, and it is just perverse enough to appeal to academics who don’t have to actually deal with the people victimized by crime in dilapidated neighborhoods. Margo Schlanger presents this critique against another one of these lefties-are-worse-than-conservatives books, Naomi Murakawa’s The First Civil Right.

The secret truth–the thing that happens to best reflect reality, but does not fill auditoriums or gets you coffee with the cool people at socio-legal conferences and punishment workshops–is that Cloward and Ohlin were right. It’s not sexy to talk about namby-pamby proposals for reform, but Lyndon Johnson had the right idea initially, as did Kennedy, and the reason it didn’t work is related to a lot of things, but not to the fact that crime was just a figment of the conservative imagination. Crime was real in the 1950s, and it was real in the 1980s, when lots of people had to live in environments saturated with lethal violence brought about by the crack epidemic. That the CIA is now widely, and rightfully, acknowledged as having at least negligently brought that about by turning a blind eye from midlevel drug dealers, doesn’t mean those years did not exist. It does not mean that thousands of people did not die from addiction or addiction-adjacent violence, and many more ended up incarcerated for the same reasons. Reality is not spicy, but it’s an essential ingredient in cooking up criminal justice policy. And who best to obtain a reality check from than the people who have to live with the outcomes?

If I’m going to be truly respectful–listening to people’s “lived experience” in crime-ravaged zones not only when it fits my politics, but whenever they opine about something they actually know best–I have to respect that the call for crime control is coming from inside the house, from unimpeachable, reliable sources, and that the wave of pretending that crime doesn’t exist either has crested or is very close to cresting. Criminal justice professionals like Pamela Price might realize that her constituents don’t actually want the sort of nonjustice her office is doling out (I read that scenario as different from Chesa’s recall, but there are parallels.) Whoever brings about nonjustice ends up with Nancy O’Malley or Brooke Jenkins as DAs, and that is not a scenario in which anyone, right to left, can thrive.

______

Hat-tip to Paul Belonick and Emily Murphy for the NAACP links.

Yet Another Trump Indictment Explainer

It’s a surreal experience to read the new Trump indictment, which you can find here verbatim with NYT annotations, while in Israel – it reads disturbingly prophetic about other parts of the world. It’s also been deeply unpleasant to relive the events from last year, as they are narrated chronologically and concisely (rather than revealed daily through the news cycle.) I just spoke about this with the one and only Mitch Jeserich on KPFA and here’s a link to the show. Here are some of the basics.

Charges

The indictment consists of four counts, all of which are based on the same factual basis:

  1. Conspiracy to Defraud the United States, which requires proving that (a) two or more people (b) conspire to commit an offense against or defraud the United States and (c) at least one of them commits an act to further the conspiracy (5yrs max and/or a fine);
  2. Conspiracy to Obstruct Justice, which requires proving that (a) two or more people (b) conspire to obstruct justice [see below] and (c) at least one of them commits an act to further the conspiracy (sentence is the same as for obstruction, a 3yr exposure);
  3. Obstruction or Attempted Obstruction of Justice, which requires proving that the defendant (a) knowingly (b) use intimidation/threats/corruption to (c) persuade or attempt to persuade another person to (d) change documents or withhold records needed for an official proceeding, or, which is more directly applicable here, that the defendant (a) corruptly (b) obstruct, influence, or impede, (c) an official proceeding (3yr exposure); and
  4. Conspiracy Against Rights, which requires proving that (a) two or more persons (b) conspire to injure, oppress, threaten, or intimidate any person (c) in the free exercise or enjoyment of any right or privilege [in this case, the right to vote.]

Who

Only Trump is listed by name in the indictment, with six other co-conspirators referenced by numbers. The purpose is, likely, to leave the door open for any of them to decide to testify against Trump before they are named and officially charged. Five of the co-conspirators are fairly easy to identify based on the information we already have about the 2020 election putsch: Co-conspirator 1 is Rudy Giuliani, Trump’s right-hand and spreader-par-excellence of manufactured election fraud conspiracies; co-conspirator 2 is John Eastman, the spirit behind the effort to puppeteer Pence, VP and President of the Senate, into subverting his ceremonial role by refusing to certify the electors for Biden and certifying fake electors for Trump in their stead; co-conspirator 3 is Sidney Powell, disgraced attorney who tried (and lost) Trump’s baseless election cases; co-conspirator 4 is Jeffrey Clark, Trump’s man in the Department of Justice who met with Trump behind his bosses’ back to further the conspiracies even they would not back and tried to fire his own boss; co-conspirator 5 is likely Kenneth Chesebro, the mind behind the fake electors’ scheme and the operator filing sham legal proceedings so as to swindle the fake electors into agreeing to participate in the scam; I’m unclear on who the sixth co-conspirator can be, and it looks like mainstream media commentators are also unsure. This person, who is described as a “political consultant,” was behind some of the memos that crafted the language submitted to the fake electors.

What They Did

The story of what happened before January 6th was eclipsed by the violent putsch that follows, which is why you can be forgiven for forgetting the details (they were also doled out chaotically and serially while the events were happening.) Reading the indictment brought the story and the characters back into clear focus, and here’s a simple (hopefully not oversimplified) chronology.

The way the U.S. presidential election works is this: each state has its own regulations for figuring out the popular vote.

This means that, when challenging presidential election results, candidates have to interact with state bureaucracies and pursue litigation in the different states attacking the integrity of the election. The indictment does not attack all of Trump’s litigation challenges which, while frivolous (32 submitted, 0 won) were not unlawful. It focuses on illegitimate pressures and threats that Trump & Co. placed upon various state bureaucrats, most famously in Georgia (the “find me enough votes” threat emitted to the Georgia Secretary of State, now the focus of a state criminal investigation that might ensnare Trump in more criminal proceedings.) Trump’s incessant harassment of state bureaucrats–most of them loyal to Trump, people who worked for his campaign and hoped he would win but did not go as far as to throw the election his way–consisted of banding around (and repeating) false theories of fraud (which Giuliani and others parroted around social media), consistently ignoring the refutations of state officials, lying to them about supposed evidence that backed up the conspiracy theories, threatening them with criminal charges or political consequences, and repeatedly pestering them to deliver results in the face of no factual support for fraud claims.

Severe as these behaviors were, the heart of the indictment has to do with how Trump and his co-conspirators attempted to manipulate the electoral college process to thwart the popular vote. This NPR story, published during Trump’s scheming but before January 6th, offers a good primer to how states select their electors. In short, there are 538 electors, one for each U.S. senator and U.S. representative, plus three for Washington, D.C. Electors are selected by the state, usually from lists made by state parties. In 32 states and D.C., electors must vote for the candidate the party has nominated, and the Supreme Court has found that laws that bind electors to the outcome of the popular vote are constitutional. The list of electors by party is certified at the state level and then sent, through a special verification process, to the senate, where it is ceremonially certified by the Vice President. The electors then cast their votes–if a candidate won by majority, he or she receives all the electoral votes–and thus the presidential election is decided (watch this video of how the electors announce their vote casting.)

Trump’s conspiracy targeted this process. [Probably] John Eastman and [probably] Kenneth Chesebro concocted a legal theory according to which the Vice President, who is also the President of the Senate, holds an authority over the electoral process that goes beyond his purely ceremonial role of certifying the electors. According to their theory, Mike Pence could simply refuse to certify the electors’ votes, opting instead to certify votes by a slate of alternative electors casting their votes for Trump. To make this theory into reality, they reached out to prospective electors to persuade them to participate in this scheme. Some refused to have anything to do with it, and many others expressed doubts about the legality of this plan. To mollify and assuage them, the co-conspirators lied to some of the alternative electors in some of the states, telling them that their votes for Trump would only be used in the event that litigation produces evidence of election fraud. For verisimilitude of these false claims, Trump’s operatives–Giuliani, Powell, and their lackeys–actually filed frivolous cases in the seven states in which this plan was pursued, persuading the so-called alternative electors that things were being set in motion that could result in their votes counting (the plan was to push forward these fictitious votes regardless of the lawsuits.) In some cases, the co-conspirators (notably, Chesebro) crafted the fallacious elector certificates themselves. The co-conspirators tried to push these slates of electors onto the Vice President’s staff, in some cases with the staff members declining to receive them on his behalf.

Pence also had to be convinced to go along with this scheme, and so, Trump et al. conducted numerous meetings with Pence, putting direct pressure on him to participate in the face of his repeated declarations that he did not believe he had the authority to thwart the popular vote. Trump’s choice of words at these meetings matters: he threatened Pence to publicly criticize him for his refusal to participate in the plan (this rebuke reverberating in the social networks during the ramp-up toward January 6) and included only certain people at the meetings (notably, not the White House Counsel, who repeatedly stated that the plan was not legitimate.) Trump also used Jeff Clark to pressure his superiors at the Justice Department (notably, Jeffrey Rosen, then the Acting Attorney General) to go along with the electoral thwarting plan. You can find more information about the near-catastrophe in the Justice Department in this Washington Post piece. Essentially, if Rosen et al. were not going to go with the fraudulent electoral votes, Trump would fire them and place Jeff Clark atop the Justice Department; he backed down from this plan only when told by White House counsel that mass resignations would ensue.

Even though the indictment does not tackle Trump’s role in inciting the Jan. 6 putsch, it does tie those events to the charged offenses. While engaging in the machinations required for the fraudulent electoral plan, Trump continuously manufactured public belief in the integrity of the plan by tweeting about it to his fans and stoking their anger toward Pence and others who would not play ball. This was the trigger for the Jan 6 gathering, which Trump initiated, and the hook for the insurgents’ rage.

Criminal Behavior vs. Atrocious Behavior that Isn’t Criminal

The indictment seeks to provide clarity on what parts of Trump’s behavior surrounding the elections were and were not criminal. Much of his truly atrocious behavior, such as the lies he massively and systematically spread about the legality of the election, were the epitome of maliciousness and political irresponsibility, but according to the indictment do not constitute criminal offenses, as they fall under the umbrella of free speech: Trump had “a right, like any American. . . to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” He also had a right–which he used, by engaging in frivolous litigation–to use legitimate means to challenge the results of the election. The indictment distinguishes these behaviors from the unlawful steps Trump and his co-conspirators undertook to change the results of the election–namely, threats, pressure, and efforts to bring about a fictitious and delusional legal process by which Pence, singlehandedly, would discount the votes of American citizens and instead would hand the decisionmaking process to fake electors.

This distinction might be clear to me and you, but I decided to take a trip through the looking glass and read up on Fox News to see what Jonathan Turley and Andy McCarthy are peddling. Out of all the drivel in that story (political witchhunt yada yada) the least preposterous proposition comes from Andy McCarthy, who has this to say about the fake electors theory: “[I]n this country, what we do with frivolous legal theories is we figure that the jury system will take care of it or the political system will. We don’t criminalize them. And that’s what this indictment attempts to do.” In other words, McCarthy seems to bundle John Eastman and Ken Chesebro’s fake electors plan with the legitimate efforts to reverse the course of the election: rather than a malicious, fictitious scheme to wrest the election results from the hands of the electorate, this was merely a legal theory–and don’t all legal theories stand a chance? The answer the indictment provides is this: there’s a difference between submitting to a court the possibility that the Dominion machines were flawed or that people who shouldn’t vote did (nonexistent folks, nonresidents, noncitizens, dead people), all of which are legitimate challenges to the election whether they succeed or (as in this case) fail, and submitting a proceeding according to which it is, on this planet, totally fine to substitute actual votes for imaginary ones and then threaten, pressure, and push people to pretend that the imaginary votes are real. At least McCarthy admits the theory was “frivolous”; even a broken clock shows the right time twice a day.

The Mental Element (Mens Rea)

All the charges pursued in the indictment require a fairly high degree of intent: conspiracy calls for intent to further the aims of the conspiracy itself, and obstruction of justice requires general intent. For our purposes, a criminal conviction here could result only if a jury agrees that Trump actually knew that the false fraud theories he was peddling on social media and threatening state secretaries to accept were, indeed, false. The indictment spends a long time elaborating how we know that Trump was lying, rather than delusional. I’m not sure the distinction is as clear to me as it is to them. We’re clearly talking about someone with serious delusions of grandeur, and I think that serial liars and psychopaths are successful in what they do because, on some level, they believe the lies they tell. I wonder whether the defense theory here will be that the lies were actually true (this is not a winning proposition in court, but they might luck out with some Trumper jurors) or that Trump thought they were true (which is also going to be tough to prove, given the multiple sources, including people close to him and credible to him, who repeatedly tried to disabuse him of these notions.) I’m betting his ego will not let him claim any sort of mental deficiency or clinical delusion.

What This Portends for 2024

Dan Rather (whose newsletter Steady is always a worthy read) wrote today:

Today marks a reckoning, but it’s far from a resolution. The danger Trump and his legions of MAGA supporters pose remains very present, very real, and very dire. The polls indicate this con man, divisive charlatan, and wrecking ball to the rule of law is running away with the Republican nomination for the presidency. And he looks, at this point, despite everything, to be competitive with President Biden. He could be reelected.

The more scrutiny he receives, the more evidence of his unfitness for office is laid out publicly, the more his stalwarts rally behind him. Trump has no coherent or persuasive rejoinders to the numerous charges he faces. He instinctively relies on his overused playbook of lies, divisiveness, and dystopian rhetoric. It’s all he’s got. Nevertheless, his crowds roar their delight without hesitation. 

This is certainly true with respect to the Fox News commentators whose takes I read this morning, and I’m sure the talking points were set long ago. Nothing will persuade the truly faithful. A lot of what will happens here depends on timing. Should Trump be able to run and, perhaps, get elected, all this effort will come to naught, and if, Goddess forbid, I were on the defense team, my number one mission would be to file for continuances upon continuances. It’s not likely that there will be immediate movement on this in a criminal courtroom anytime soon. The voir dire will be absolute hell and the media coverage will be ridiculous.

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 (!).

“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.