Post-Election Thoughts

The Scorpion and the Frog

The results of the election did not bring me immediate solace. I’m sure this has been the case for many folks who found it difficult to take off the psychological backpack we have been carrying for so long. In my case, the psychological weight is the product of daily engagement with this administration on various public forums, including having to spend least thrice a week, WEEKLY, for the last four years, in TV stations and radio studios talking about this. In November 2016, when I lost the fight for death penalty abolition and my beloved cat Spade on the week of the election, I made it my mission to be an expert in everything these cartoon villains were cooking up, and every morning I sat up abruptly in my bed, with my first thought being, “it’s already morning in D.C., what has he done today?” Every time I saw an unrecognized number on my phone it was a TV producer or journalist asking me things that I had to cram on. I’ve crawled through information on abominable, underhanded things that I could not have even imagined possible before the last four years. Engaging with this sewer of an administration every day, including weekends, has brought exhaustion and stress into our family life, soured my good humor and my patience at work, and taken a real, measurable toll on my health. Doing upbeat explainers, volunteering, and taking abuse via phone and text from voters has felt like wading through a swamp, and even though I wore my psychological hip waders, I resent and revile this administration for demanding that I set aside my own grief, decency, and decorum, and be constantly on-call to respond to venal, opportunistic excrement. After I gave the explainer on Justice Ginsburg’s replacement process, I could barely get out of bed for a few days.

But the miasma in my soul is slowly dissipating. The first time I felt truly rapturous was when I got a letter from Traci Felt Love, the organizer of Lawyers for Good Government. The letter reminded me of when we started L4GG and brought back the incredible week in which we shut down San Francisco International Airport in reaction to the Muslim ban. It was only then that the magnitude of our success in dethroning this monster started to hit me, and I’ve been slowly digesting it.

One thing that has greatly helped is ignoring the legal pageant of the absurd that Trump is mounting in various courts around the country. I have given myself permission to disengage from all his frivolous lawsuits, antics, last-minute personnel juggling, and desperate cries for attention. In January, no matter what happens in the interim, Joe Biden will be President of the United States. Whether Trump concedes (ya think?), resigns (hmmmm), flees to the Cayman Islands to a mansion with golden toilets (on brand) or is dragged out of the White House in handcuffs (appealing but dangerous), the outcome will be a change in administrations.

It’s useful to keep in mind the story of the scorpion and the frog. A scorpion, which cannot swim, asks a frog to carry it across a river on the frog’s back. The frog hesitates, afraid of being stung by the scorpion, but the scorpion assures the frog he won’t do that: “If I sting you, we’ll both drown, right?” This argument convinces the frog, which agrees to transport the scorpion. Midway across the river, the scorpion stings the frog anyway, dooming them both. The dying frog asks the scorpion why it stung despite knowing the consequence, to which the scorpion replies: “I couldn’t help it. It’s in my nature.”

Trumps are going to Trump. Giulianis are going to Giuliani. McConnells are going to McConnell, with or without us as their audience. It’s far more productive to focus our attention on the upcoming races in Georgia.

Drug Truce

Throughout the country, drug law reform gained more momentum. This wonderful post on the Drug Policy Alliance blog summarizes some of the main reforms, the most impressive of which was Oregon’s approval of Measure 110. The next step in procuring a truce on drugs was always going to be branching beyond marijuana, and for various political reasons that are difficult to explain to people outside California, I expected another state to move in that direction first.

What I find especially thrilling about the passage of Measure 110 is that it could open the door to an important dialogue about the value and benefits of psychedelics. MAPS has been leading the charge on declassifying these important substances and acknowledging their potential to help people with depression and trauma, as well as foster spiritual growth. Little by little, the hypocrisy is dissipating, but it’s going to happen on the state and local level first.

When the Perfect Is the Enemy of the Good

Amidst my joy about the passage of Prop 17 and the failure of Prop 20–a reactionary law-and-order package–the demise of Prop. 25 brought me some anguish. As I explained elsewhere, all the arguments against the abolition of cash bail were ridiculous except for one, which had superficial appeal: the idea that “algorithms are racist” and that we would end up with “something worse” than cash bail. Aside from the fact that it’s hard to imagine how risk assessment is “worse” than debtor prisons straight out of a Charles Dickens novel, there’s a basic misunderstanding of how algorithms work. I have been explaining and explaining, but for some reason am not getting through to people captivated by woke rhetoric: ALGORITHMS ARE NOT RACIST. They predict the future on the basis of the past. If they have racially disparate outcomes, it’s because they reflect a racist reality in which, for a variety of systemic, sad, and infuriating reasons, people who are treated like second-class citizens in their own country commit more violent crime. The overrepresentation of people of color in homicide offenses and other violent crime categories is not something that progressives like to talk about, but it is unfortunately true–not just a mirage caused by stop-and-frisk in low-income communities. The reasons why more African American people commit more homicides than white people are the same reasons why they are arrested more frequently for the drug offenses they don’t actually commit more than white people: deprivation, neglect, lack of opportunities, dehumanization and marginalization on a daily basis. Solving these problems requires an administration committed to treating its citizenry fairly, not sweeping them under the rug by ignoring predictive tools that show what is actually going on. So powerful is the progressive self-deception that the ACLU, initially a supporter of eliminating cash bail, opted not to have a position on the ballot, because of the optics. I can’t even begin to tell you how many people I like and respect opposed Prop 25 using organizations’ positions as proxy, as if they couldn’t think for themselves. These organizations’ and people’s fears of being perceived as racists by supporting “algorithms,” the bogeymen of the left, was so overpowering that it hijacked the very real possibility to get rid of an actual, real, on-the-ground, in-the-open perversity: the only-in-America notion that people should pay money for their pretrial release.

The counterargument, made by some thoughtful folks, was that rejecting Prop. 25 would lead to a better proposal to abolish cash bail. But this argument exhibits deep ignorance of how political gains are made. Part of why I’m so upset about this is that I’ve already lived through a horrible round of the Perfect-Is-the-Enemy-of-the-Good game. Back in 2016, when we campaigned for death penalty abolition, I had to respond to arguments by progressives who thought that abolishing the death penalty was going to somehow “retrench” life without parole. The preciousness of this view infuriates me. As I explained until I was blue in the face, political progress is made incrementally. You can’t get to LWOP abolition without death penalty abolition. Expecting ballot propositions, which have to rely on broad coalitions, to be tailor-made to one’s exquisitely purist views about the public good is a recipe for disappointment. And, as Gov. Newsom said, the demise of Prop 25 essentially eliminates any possibility, motivation, or energy for getting together the “more perfect” solution to the bail problem that activists are yearning for. So, instead of celebrating the end of cash bail, progressives have yet again been duped into failing their own cause because the compromise wasn’t photogenic enough for them, and the big winner has been the bail bonds industry–you can see in this piece how effectively these scoundrels have coopted wokespeak to keep Victorian debt prisons alive.

Got a Sane Idea? Great! Wrap It in Sane Packaging

Just read a terrific Mother Jones article, which highlights the success of various local initiatives to divert resources from policing to less confrontational alternatives. Beyond my satisfaction with this outcome, I’m pleased with the rhetorical strategy used in these initiatives.

In the aftermath of the killing of George Floyd, many advocates were making proposals that sounded scary, because they were wrapped in odious movement jargon (defund! abolish! dismantle!). Thing is, the proposals themselves were not radical or insane; they were sane enough that even people who were victimized in scary ways could see the logic in them–if they had the background to understand them. Alternatives to policing are not earth-shattering discoveries. Anyone, not just hyperprogressives, who walks around the Tenderloin these days can sense the palpable shift in energy since the arrival of the wise and conciliatory Urban Alchemy folks. All these propositions are doing is rolling back the Nixonian logic, according to which you somehow get more justice if there are more cops, riot gear, and weapons on the streets. We were sucked into this insanity in the 1970s with the LEAA funding scheme, and later in the 1980s with civil asset forfeiture. You could be forgiven for thinking that “defunding the police” is an extreme proposal if you’re not familiar with how police departments used to be run before they became bloated paramilitary organizations.

But the success of this measures was not only rooted in their inherent reasonableness (and cost-effectiveness.) It was rooted in wise, matter-of-factly packaging, which offered positive alternatives to policing that people could get behind. There is an important lesson here for progressives looking for referendum victories, which I very much hope will be learned: packaging matters. Offering people a realistic vision of humane, therapeutic, preventative public safety works better than wrapping sane, totally plausible ideas in flurries of self-righteous performativity. And that means resisting the cultural zeitgeist, which pushes the movement to flood social media with the most preposterous, off-putting jargon, even when proposing things that would appeal to a broad swath of the population.

When incendiary terminology is used to explain sane, effective reform, more time is spent debating the terminology and performatively defending it than discussing the policies themselves. People who are put off by the rhetoric are exhorted to “check the website,” “do the work,” and “educate themselves” by folks who do not inspire any desire to engage any further with them or with their ideas. Indeed, one of the dumbest aphorisms of this movement is the classic “it’s not my job to educate you.” It’s nobody’s job to educate anyone else (except, in the case of teachers, their actual students.) But hurling insults and disdain on people, piling nonrequired homework on their backs, hiding good ideas behind performative nonsense, and finding fault in people asking to know what they’re expected to support and vote for, is not particularly likely to induce them to take the trouble to learn somewhere else. Decrying the burden of “unpaid emotional labor,” another unfortunate classic, is also not particularly persuasive. Not everyone needs to dance through their revolution like Emma Goldman, but very few people want to get flogged through it. Corollary: If you call yourself an activist, and you want to bring people to your coalition, yes, it is part of your job to educate them. I’m so pleased that the advocacy for these proposals took a different approach, one that voters could get behind. The result will be safer and happier streets in many U.S. cities.

Let Crime Victims Be Themselves, Not the Moral Curators of Criminal Justice

Today’s papers brought forth two news items that I found fascinating. The first, Heather Knight’s piece in today’s Chronicle, reports of San Francisco D.A. Chesa Boudin’s effort to reach out to crime victims and ask about their priorities for his office. The victims in the article were presented with a preselected menu of five priorities to rank by importance: prioritizing rehabilitation over punishment, providing restorative justice options for victims of crime, increasing alternatives to prison, increasing services for victims of crime, and increasing financial resources for victims of crime.

The victims Knight interviewed were frustrated by the survey, which yielded a very low response rate. One of them said: “There was no option to disagree or to even add a suggestion or comment to what could be included in those five very limited options. . . It’s disappointing and disrespectful to survivors.” Others expressed dismay over the fact that the survey seemed like an effort to distort their perspectives to support approaches such as restorative justice, which they thought “may work for petty thieves, but not for violent criminals.”

The other item was a stunning editorial in the L.A. Times, authored by Polly Klaas’ two sisters, Annie and Jess Nichol, in opposition to Prop. 20. This is especially striking because of the contrast to Polly’s father Mark, who became the face of punitive legislation in California. Mark was the force behind the Three Strikes Law and continued advocating against its amendment in 2012 and against Prop. 57 in 2016.

Annie and Jess don’t seem to share their father’s politics. They write that mandatory minimums, and other punitive laws “were strongly supported by people across the political spectrum and by a prominent voice in our own family. The best known of the mandatory sentencing enhancement laws came to be known as ‘three strikes,’ which aimed to keep people in prison for life after a third conviction for a serious offense.” They continue:

Ostensibly, these laws were meant to prevent tragedies like our sister’s murder from being repeated. Yet many of the people who ended up with life sentences under three-strikes laws were convicted of nonviolent crimes — things such as stealing a bicycle, attempting to forge a check, breaking a church window or using drugs. The laws produced a misguided sentencing system benefiting the prison industry, whose survival depends on large numbers of incarcerated people serving extended sentences.

People imprisoned under three-strikes and other mandatory sentencing laws are overwhelmingly Black and Latino, and they are also often mentally ill or homeless. Over the last 26 years, three-strikes laws have significantly contributed to mass incarceration in the United States and have exacerbated the systemic racism inherent in our justice system.

Up until now, we have been reluctant to insert ourselves into the conversation around criminal justiceout of respect fordiffering perspectives in our own extended family. Polly’s dad worked hard to see that stricter sentencing laws were passed after her death. We love and respect him, and it’s been painful to disagree about something that’s so personal for all of us.

But this is a pivotal moment in the history of our country. This summer, millions of brave Americans have taken to the streets to protest the racism and systemic injustices plaguing our country. Their courage has inspired us to speak out, to join the movement to transform our criminal justice system and build a better legacy for our sister.

As much as those who benefit from prisons want you to believe that mass incarceration makes us safer, the data tell a different story. Decades of research show that the harsh and violent prison environment is deeply damaging and sets people up to fail when they reenter society. On the other hand, rehabilitation — providing skills, services and treatment to incarcerated people — can drastically reduce recidivism rates. Legislators have mostly ignored this fact, claiming that tough-on-crime legislation is universally what crime victims want, but an Alliance for Justice survey found that victims of crime and their loved ones — like us — are twice as likely to favor rehabilitative programming and alternatives to incarceration. Clearly, incarcerating our way to safety doesn’t work.

Thankfully, three-strikes and other extreme sentencing laws have undergone some progressive reforms in the last decade to expand rehabilitation, but an initiative on California’s November ballot called Proposition 20 aims to reverse much of that progress. Proposition 20 is an attempt by the prison industry and its allies to yet again weaponize our fear to expand their profits and their prisons.

Like many other victim advocates, we believe that the resources spent on mass incarceration should be used to reinvest in underserved communities for prevention programs. By providing support, job training and rehabilitative services, we can prevent crime at the local level, help formerly incarcerated people successfully reintegrate into society and make our communities safer.

Proposition 20 would move criminal justice in California backwards. As Polly’s sisters, we strongly support systemic interventions that actually work to lift up our communities and keep people safe.

What to make of the juxtaposition of these two items? If nothing else, that crime victims–like everyone else–are a diverse group of people with a range of opinions about their personal experiences and about the policy implications of these experiences. There’s a great 1999 article by Kent Roach titled Four Models of the Criminal Process in which he has not one, but two victim models–a punitive one, which is basically what we’ve had here for decades, and the nonpunitive one, which looks a lot like restorative justice/family circles.

What I see in these new representations of victimization (and let’s not forget to throw in there the backlash against Brandt Jean’s forgiveness and against Christian Cooper’s broadmindedness because, I don’t know, they went through awful experiences and so they owe you something) is an idea I discussed a lot in Yesterday’s Monsters and elsewhere: In this society that won’t offer a quiet, empathetic, nonjudgmental ear to people or care about them unless they perform a spectacle of suffering, your victimization, rather than entitle you to compassion and practical assistance, imbues you with mystical power and moral authority. It matters very much what we call you (victim? survivor?) and it also matters very much what you think about criminal justice, and so people on both sides try to make your feelings about what happened to you into an object lesson. Punitive entrepreneurs rope your feelings, real or hypothetical, into areas that might be completely removed from your consciousness (breathtakingly, Prop. 17 opponents imply in their arguments not only that victims’ feelings about the right to vote for parolees should matter, but that victims even have such feelings at all), and nonpunitive entrepreneurs try to contort your answers to a survey to support a restorative justice agenda.

Of course, this is not all a manipulation done on unwilling victims. California offers plenty of examples who marshaled the horrific tragedies in their families into a career in punitive advocacy, like Dominick Dunne, the Tate family, and Mr. Klaas. But would people feel compelled to take on moral crusades if they were allowed to feel their feelings, be they punitive, restorative, or anything in between, without the additional responsibility of being the state curators of criminal justice policy? What if someone’s feelings about a horrible experience they went through–whatever these might be–were listened to with compassion and care, and they were just their feelings–no more and no less–and were not imbued with a magical ability to sway criminal justice to and fro? Can we maybe hold a bit less tightly the fashionable notion, which permeates all criminal justice discourse, on the left and on the right, that people’s lived experiences are the policymaking gospel, and that expertise, budgeting, prediction, and project evaluation are somehow heartless and evil? Can we give feelings a space to just be what they are–feelings–without forcing them to be something else?

Whose Goons Are These?

‘Help!’ he shrieked shrilly in a voice strangling in its own emotion, as the policemen carried him to the open doors in the rear of the ambulance and threw him inside. ‘Police! Help! Police!’ The doors were shut and bolted, and the ambulance raced away. There was a humorless irony in the ludicrous panic of the man screaming for help to the police while policemen were all around him. Yossarian smiled wryly at the futile and ridiculous cry for aid, then saw with a start that the words were ambiguous, realized with alarm that they were not perhaps, intended as a call for police but as a heroic warning from the grave by a doomed friend to everyone who was not a policeman with a club and gun and a mob of other policemen with clubs and guns to back him up. ‘Help! Police!’ the man had cried, and he could have been shouting of danger.

Joseph Heller, Catch-22

The image above was screen-captured from a cellphone video, which depicts goons from La Familia, a group of pro-Netanyahu goons with ties to the infamous soccer team Beitar Yerushalayim, attacking anti-Netanyahu protester Sedi Ben Shitreet and a Ha’aretz journalist, but you could be forgiven for mistaking them for actual cops. The image below, also from cellphone footage, depicts the Israeli police beating up 71-year-old protester Ami Dayan for no reason whatsoever.

Looking at these horrific images takes me back to 2014, when I visited Israel and first experienced the phenomenon of right-wing goons following peaceful left-wing protesters home and beating them up under the cover of night. There’s something especially vile about this–it triggers my cultural Jewish imagination and takes it to darker times of pogroms and extinctions–and, of course, it creates strong feelings of kinship and compassion with the horrors that BLM protesters experience at the hand of goons like Kyle Rittenhouse and so many of his ilk.

There’s not a lot new to say about this beyond the obvious, but I will contribute this thought: One of the scariest things about fascist regimes is the deliberate blurring of boundaries between government goons and private goons. It’s a two-way process: governmental encouragement and empowerment of private goons, supporting their policies in ways that legitimize them as the executers of oppressive state policy, and obscuring the visibility of government agents as such to appear as private entities and shirk responsibility for violence and abuses of power.

This boundary blur is merely a reflection of corrupt governments in both countries, in which the state is captured by people who pillage and exploit everything for their sole, selfish benefit and care nothing for the public good. It is only natural that the lack of distinction between their private interests and their government goals will manifest in their choice of goons, in the ways oppressive state-sponsored thuggery is performed in the streets, and in the difficulty their victims face in identifying the responsible parties for violence and bloodshed.

Vote.

CARES Act Relief for Incarcerated People

The Coronavirus Aid, Relief and Economic Security (CARES) Act provides assistance to hospitals, nonprofits, individuals, and businesses. Among other provisions, the CARES Act provides individuals who earn less than $75,000 annually with a direct payment of $1,200, plus an additional $500 for every qualifying child age 16 or under. Married couples who file a joint return and earn less than $150,000 are eligible for up to $2,400 plus an additional $500 for every qualifying child age 16 or under.

On September 24, 2020, Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California issued an Order certifying a nationwide class of people incarcerated in state and federal prisons, and granting the plaintiffs’ motion for preliminary injunction requiring the U.S. Department of Treasury, the U.S. Internal Revenue Service, and the United States of America to stop withholding CARES Act stimulus funds from plaintiffs or any class member on the sole basis of their incarcerated status.

The Judge’s preliminary injunction further ordered the defendants to reconsider their prior denial of advance refund payments to any person based on incarcerated status within 30 days, whether the denial was based on a 2018 or 2019 tax return, or on claims filed through the IRS’s online “Non-Filer” portal.

Earlier, on August 1, 2020, Lieff Cabraser and the Equal Justice Society filed a groundbreaking lawsuit against the United States Department of the Treasury and Internal Revenue Service on behalf of a nationwide class of people who were incarcerated at any time from March 27, 2020 to the present—that is, people serving a sentence in state or federal prison. The lawsuit seeks to have a court order the Defendants to issue CARES Act stimulus relief to all eligible incarcerated people, or up to $1,200 per eligible person plus $500 per qualifying child.

Lieff Cabraser have put together an easy-to-follow FAQ for you, explaining who is eligible and how to file a claim.

Explainer on Politics of Replacing Justice Ginsburg

Millions of people grieve the loss of legal giant Justice Ruth Bader Ginsburg today and appreciate her enormous contributions to fairness and equality. I would have loved to discuss Justice Ginsburg’s legacy in criminal justice decisions (I’m planning to do that in class on Monday) but apparently we don’t get a second to mourn and respect, because we’ve already been thrown into an imbroglio of political machinations and cost-benefit tactics. Today I did an explainer with Manny Yekutiel of Manny’s, which I’m happy to share in case it is useful.

Help Floridians Regain the Right to Vote

Florida is one of only four states in which people with felony convictions permanently lose their right to vote. In November 2018, Floridians sought to change this by passing Amendment 4 by a majority of %64.55. Amendment 4 would automatically restore the right to vote for people with prior felony convictions, except those convicted of murder or a felony sexual offense, upon completion of their sentences, including prison, parole, and probation.

Since the passage of Amendment 4, politicians have piled challenge upon challenge in the way of people seeking the right to vote. The latest hurdle came today, when the 11th Circuit ruled en banc that Florida may require people with a past felony conviction to pay off all fines and fees before they can get their right to vote back–even if they cannot afford to do so.

The only explanation I can find for this is an entitlement effect. I grew up in a country in which everyone, even people doing time in prison at the time of the election, can vote, and it would never occur to me that it’s possible or fair to do otherwise. But I suspect that what is at work here is an insidious version of the entitlement effect: They feel comfortable doing this because their point of departure is lifetime disenfranchisement. To them, it’s not about giving people what every citizen has and should have–it’s about gifting people a privilege they haven’t had in a long time.

We can do something about this. Hop on this website and plonk a few shekels to help your fellow Americans – Floridians who want to participate in our democracy and are being thwarted by politicians and courts – vote in the upcoming election. It’s good for Florida, it’s good for racial and economic justice, and it’s good for all of us, because you know that winning Florida is crucial in this election. According to Jeff Manza and Chris Uggen, at least one presidential election (now two, likely) and eight congressional ones would have gone the other way if people with felony convictions could vote. Prove them right by changing history and expanding democracy.

Blackface Scandals Are the Logical Conclusion of the Performative Goodness Race

As if we don’t have bigger tofu slices to fry–with 57 days till the election, we absolutely do–the academic/activist left is atwitter (pun intended) about yet another blackface scandal. This time, it’s Jessica Krug, African and Latin American history professor at George Washington University, whose identity as “Jess La Bombalera” was, as it turns out, fictitious: she grew up Jewish in Kansas City. Facing imminent unmasking by colleagues who suspected that something was awry, Krug published a self-excoriating screed on Medium, in which she admitted to fabricating “a Blackness that I had no right to claim: first North African Blackness, then US rooted Blackness, then Caribbean rooted Bronx Blackness.”

This mess comes to us just a few years after the exposure of Rachel Dolezal, the NAACP official who cultivated an African-American-passing appearance and sparked a debate on whether “transracial” was a “thing,” and a few months after the death of author H.G. Carrillo (“Hache”) of COVID-19, which exposed his lifelong fabrication of a Cuban-American identity. Because of the nature of the identity-manufacturing–white people posing as black–Krug and Dolezal drew understandable ire, and both scandals erupted amidst waves of uprising about racial inequality.

Plenty of personal trauma and pathology is evident in both stories, but Durkheim taught us to see even the most personal phenomena as social facts. Given the progressive obsession with performance, these scandals are a Petri dish for dissection and, faithful to the trappings of the genre, most of these have revolved around the authenticity (or lack thereof) of apologies. But I found an especially insightful twitter thread by Yarimar Bonilla, who astutely remarks that it was “[k]ind of amazing how white supremacy means [Krug] even thought she was better at being a person of color than we were.” Bonilla offers revealing examples of how expertly Krug trafficked in the tropes of progressive oneupmanship:

She always dressed/acted inappropriately—she’d show up to a 10am scholars’ seminar dressed for a salsa club etc—but was so over the top strident and “woker-than-thou” that I felt like I was trafficking in respectability politics when I cringed at her MINSTREL SHOW. In that sense, she did gaslight us. Not only into thinking she was a WOC but also into thinking we were somehow both politically and intellectually inferior.While claiming to be a child of addicts from the hood, she boasted about speaking numerous languages, reading ancient texts, and mastering disciplinary methods—while questioning the work of real WOC doing transformative interdisciplinary work that she PANNED. She consistently trashed WOC and questioned their scholarship. She even described my colleague Marisa Fuentes as a “slave catcher” in the introduction to her book. Kind of amazing how white supremacy means she even thought she was better at being a person of color than we were.That pathology remains evident in her mea culpa article. Somehow she manages to remain ultra woke and strident, still on her political moral high horse, caling for white scholars to be cancelled –in this instance her own white self.

Yarimar Bonilla on Twitter, Sep. 3, 2020

Bonilla is not the only scholar who blamed white supremacy–in this particular case, Krug’s whiteness–for the scandal: elsewhere on twitter, Sofia Quintero quipped that “[n]othing says white privilege like trying to orchestrate your own cancellation.” But I think there’s something else going on here. As many people have observed, Krug materially benefitted from her deceit, through fellowships and opportunities open to underrepresented people of color. The benefits, however, don’t end there, and it’s time to be honest about this. Overall (no matter how much our Attorney General chooses to ignore this), white people enjoy preferential treatment across the board, starting with the very basic good fortune to avoid humiliating, dangerous, and sometimes lethal encounters with the police, and continuing through intergenerational wealth, opportunity, and representation. However, there are pockets and milieus–and they are not minuscule or insignificant–where being a person of color confers real, valuable social advantages. I happen to know this milieu, the academic-activist pocket, quite well, and I think the social dynamics in it explain a lot. It’s not just scholarships and fellowships (though there are examples of material benefits.) It’s the mantle of authenticity, the uncontested ability to hold a moral high ground, and the sometimes-explicit, sometimes-tacit permission to treat others publicly with disdain.

The moral high ground is not unrelated to material benefits in academia (such as they are, given the initial barriers to academia for people from marginalized backgrounds in the first place), but the mantle of superior morality in itself is a precious commodity for some academics/activists. Because white people cannot be black (or can they? Read Adolph Reed’s take on racial essentialism, if you can get around his disregard for Caitlyn Jenner), the next best thing is to be the best white person they can possibly be, which is why we engage in the pageantry of racial confessionals every time yet another horrific killing of a black person produces a swell of uprising against racial inequality (that there’s immense grief and rage is understandable, and it has to go somewhere, but it’s telling that it goes into this variant of moral theatre.) Krug and Dolezal knew full well that, in this competition, it’s turtles all the way down, and simply drew the obvious conclusion: the only way to win the performative goodness race, the ultimate white progressive oneupmanship, is to subvert the whole thing by becoming black yourself.

Except, as Bonilla astutely tells us, and as Krug and Dolezal have taught us, it doesn’t end there, because it turns out that white people haven’t cornered the market on performative goodness. It plays out in remarkably similar ways among academics and activists of color, where strident and edgy performance of authenticity confers the symbolic benefits of being better than other (less radical, less woke, more white-conforming) nonwhite people. Inevitably (and this is true even if you aren’t a white person pretending to be nonwhite), someone’s going to be woker than you, purer than you, more authentic and edgy than you (as Touré Reed wrote, the demand for this kind of performance is a problem in itself.) One’s own goodness is a helluva drug; one needs larger and larger doses, ad infinitum. On the brink of being unmasked, Krug correctly deduced that the only move left on the chessboard was self-cancelation: embracing an ethos of zero forgiveness and zero redemption must exact the ultimate price. After all, she says, “my politics are as they have ever been, and those politics condemn me in the loudest and most unyielding terms.”

Is there another way out of this grim festival of condemnation and self-condemnation? Yes, but only if we see the recent slew of blackface scandals differently. Whether or not Dolezal or Krug “get”, to use another odious idiom from this milieu, to be redeemed, is not particularly interesting to me; like Bonilla, I don’t think we can or should spend energy marinating in the bacchanalia of punishment that this sort of thing dredges up. Instead, I suggest that people like Dolezal, Krug, and Carrillo–like the many people who “passed” before them across racial lines in America–have valuable lessons to teach us about the social cost-benefit calculus of passing. If we view these scandals as social facts, we learn where the perceived advantages and drawbacks lie, and might come to important conclusions.

I remember reading Philip Roth’s The Human Stain with great interest and great discomfort. Roth’s protagonist, Coleman Silk, is an academic widely perceived as a Jew, whose life is destroyed following innocent quip at a classroom–using the word “spooks” for “spies”, a term that also carries racially-derogatory connotations. Subsequently, it is revealed that Silk is actually African American but had been passing as a Jew since a stint in the Navy. He completed graduate school, married a white woman and had four children with her, never revealing his African-American ancestry to his family. As Roth writes, Silk chose “to take the future into his own hands rather than to leave it to an unenlightened society to determine his fate”.

The Human Stain is crafted around a real story–the witchhunt against Roth’s friend Melvin Tumin for a similar innocent utterance. It’s not the only example: John McWhorter relays a similar incident, and if you want something more recent, this idiotic USC reaction to absolutely nothing is a prime example. Roth’s spin on this story of “cancelation” teaches us the same conclusions: endless competitions of moral superiority, lacking in compassion and forgiveness and hingeing on identity as the ultimate arbiter of all things, end up with the snake swallowing its own tail. It’s not a coincidence that Roth chooses to contrast the witchhunt with its logical conclusion: it’s the perfect confluence of our search for racial benefits and our appetite for meting out costs.

In other words, Krug, Dolezal, et al. are being reviled for being exceptions, aberrations, when they are mere corollaries of the game that everyone around them plays on the regular–a game of excoriations, public apologies, public rejections of apologies, obsessions with performance and appearance. I’m going to venture a not-very-wild guess that they are not the only ones. People of all colors in this mileu are so invested in this game, so I’d be surprised if there weren’t other passers around, trying to circumvent the white goodness competition only to find themselves playing the person-of-color goodness competition. Racism and racial inequality have wrought many ills, but this is one we can actually fix ourselves. Let’s stop playing this game, okay? It’s occupying so much cultural room that there isn’t enough left to do the actual work of racial equality–donating to worthy causes, supporting political candidates that move us farther in terms of racial and economic equality, revamping business to allow all families the chance of intergenerational wealth. How about, rather than tying ourselves up in knots about how we can come up with more, better, symbolic representation of our goodness, we call it quits and focus on quietly and efficiently doing the right thing? We could if we learned the right lesson from these scandalous morality tales, but I’m not holding my breath.

For a more lighthearted take on this, I highly recommend this hilarious conversation between Trevor Noah and Michelle Wolf. It suffers from some of the essentialist ailments I talked about (if she “passes” for a person of color, how can she “cry her way out of a ticket?”), but it’s so enjoyable nonetheless.

Nov. 2020 Ballot Endorsement: Yes on 17

Currently, the California Constitution, in Article II, Section 4, provides that “The Legislature shall. . . provide for the disqualification of electors while . . . imprisoned or on parole for the conviction of a felony.”

Accordingly, people who are serving a sentence in a state or federal prison, or have been released and are on parole, cannot be registered to vote. As of 2016–after our litigation efforts to get it done sooner failed–this restriction does not include people who are doing time in jail, even for felonies, nor does it include folks on community probation. But this leaves people on parole disenfranchised. According to the Prison Policy Initiative, as of Dec. 31, 2016, there were 89,586 people on parole. This is not a big number, because after Realignment, most people with felony convictions are supervised by the counties in the community (in addition to the already existing large probation population)–as of Dec. 31, 2016, we had 235,918 on probation. According to the Yes on 17 campaign, the number of parolees now is even smaller–they estimate that 50,000 people on parole are ineligible to vote under the CA constitution.

Prop 17 would change that. It is a Constitutional amendment that would grant people who served a federal or state prison sentence the right to vote as soon as they complete their sentence. If we pass this proposition, we’ll join the following states, which allow parolees to vote: Hawaii, Illinois, Indiana, Maine, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, and D.C.

A “yes” vote on 17 has many benefits. As Jessica Willis and I wrote elsewhere, civic reengagement of people after they return home from a prison sentence is a crucial step in restoring their trust, loyalty, and sense of a stake in their community. It makes communities safer by ameliorating the already-difficult trajectory of reentry and reducing recidivism. It mitigates racial injustices (most parolees are people of color.) And it brings much-needed perspectives, with important experiences, into the democratic process, which includes voting for people like prosecutors and judges.

If anything, Prop 17 does not go far enough–like everyone else, the person would need to register to vote, which is an extra step that creates a hindrance; if it passes, many people might not even know, upon release, that they are eligible to vote. But this goes to my general gripe with a system that requires registering to vote, as opposed to rendering all citizens automatically eligible to vote when they reach voting age; I’ve written before about how U.S. illogical obstinance about a simple measure–the provision of a national identity card to every American citizen when they turn 18–perpetuates a problem that is very easy to solve. But even within the constraints of the existing system (every country has tics and wrinkles–the ones here are obvious to me because I didn’t grow up here,) I can see a solution. When I became a citizen in 2015, as soon as all of us new Americans exited the beautiful Paramount Theatre where our naturalization ceremony was held, we passed through three booths: passport application, social security application, and a happy and energetic voter registration posse. Putting together a similar setup at the exit door of the prison is a piece of cake. All CDCR needs is a computer with a working Internet connection and this handy link, and everyone–EVERYONE–on the day of their release can leave CDCR facilities as a registered voter. As to the expense involved in doing all this, LAO estimates a one-time expense in updating state systems, followed by an annual expense representing the need to print and mail additional ballots and voter materials–exactly what you and I get as registered voters.

There really are no downsides, unless you’re a moralistic curmudgeon who for some reason believes that we should continue disenfranchising people after they’ve served their prison sentence. Let’s bring more people into our democracy. Vote Yes on 17.

2020 Presidential Endorsement: Biden-Harris

As has been my custom, I’m going to provide blog endorsements for criminal justice propositions and candidates as the November election approaches. Today we start with the top of the ticket–candidates for President and Vice-President.

If you’re anything like me, you’ve been getting dozens of idiotic political fundraising gambits via email and text. One of my favorites was the faux survey: “Do you prefer Sanders and Klobuchar/Biden and Warren/Harris and Castro to Trump and Pence?” To which I often replied, “I prefer a colonoscopy and a root canal to Trump and Pence.” I think what we have here is not what I would have wanted, but it’s nowhere near a colonoscopy and a root canal, and it’s a light-years-far cry from Trump-Pence.

***

Suppose, for your birthday, you receive a catalog with two gift choices: a steaming pile of poop and a basketball. You must have one or the other; if you pick, you get the one you chose, and if you don’t pick, one will be chosen for you. You can’t opt out. Alas, you wanted a pony. But a pony is not on offer.

What do you do? You might pout, you might shout, but eventually you pick the basketball. Because there’s something you know for sure: you don’t want the pile of poop.

You don’t scribble, “I WANTED A PONY!!!!!” with your colored pencils all over the catalog. There is no #%^@ing pony. There’s only poop and basketball.

***

Six years ago, an Orange County federal judge, Judge Cormac Carney, ruled that the death penalty in California was cruel and unusual because of the delays in its administration. This decision provoked much excitement in the anti-death-penalty community. It did not mean immediate abolition, because it was just one habeas case. But it could lead to abolition, and all the Attorney General had to do was refrain from appealing the decision and get out of the way. At the time, I organized a petition, which 2,178 people signed, essentially urging then-Governor Brown and then-Attorney General Harris, both of whom were personally opposed to the death penalty, “don’t just do something! Sit there.” Many lawyers and advocates were extremely excited about the prospect of finally getting to work on ridding ourselves from the shame and the expense of California’s broken death penalty. And then, two days before the appellate clock was to run out, the AG’s office decided to appeal the decision.

To my surprise, and to their credit, one of AG Harris’ assistants called me on my cellphone and explained why they decided to do so. They interpreted Judge Carney’s decision as making new law on habeas, which is prohibited, per Teague v. Lane (1989), because of retroactivity issues. The technical wrinkle is this: habeas petitioners’ cases are already final, and if a new law is announced in their cases, it cannot apply to similarly situated defendants, because their cases are also final. So the Supreme Court decided to relegate habeas to the law of yesterday, which is unfair and outrageous, but it is technically the law.

Jones v. Chappell then landed at the Ninth Circuit as Davis v. Jones. At the oral argument, Jones’ attorney made a valiant effort to argue that Judge Carney did not make new law, but rather applied good old Furman v. Georgia. The effort failed, though it did have some merit. The decision was a big disappointment, and we ended up with six more years of a death penalty in which no one was executed but your tax dollars, and mine, funded $150 million a year per death row person in litigation fees. Our effort to repeal via voter initiative didn’t work, and met with nasty resistance in the form of a competing, misleading, unjust proposition, which is still tangled up in litigation to this day. It also met with the preciousness of progressives who believe that the good was the enemy of the perfect, and astoundingly voted no on abolition. So it went until Gov. Newsom finally pulled the plug, but of course, without judicial support (or legislation,) we’re still paying the litigation fees, and we will continue to pay until some brave judge does something or until a majority of Californians finally votes to abolish.

I was very upset about the AG’s decision. I thought it was the wrong call, policywise and moralitywise, and said so on numerous occasions.

I am writing this because phone calls from news agencies looking to do some muck racking have already begun. I’m going to decline any and all interviews about Harris, and I want to be crystal clear why. My target audience is the folks who were hoping for a different ticket. I explained the background above to clarify that I, too, had a different ticket in mind. I wanted Elizabeth Warren to be the Presidential nominee. But Elizabeth Warren is not on the ticket.

Joe Biden and Kamala Harris are.

I want to make it crystal clear that I am shelving any and all reservations about the Democratic 2020 ticket, and am urging you to vote Biden-Harris, with or without enthusiasm. Your enthusiasm is not that important (though, if you can muster some, you’ll feel better.) Your vote is. Monumentally so.

In the coming months, we will hear a lot about who Biden and Harris are, but one thing I’m pretty clear on is that they are colossally different than the criminal junta that has been running things in the last three and a half years, buying their way to power through treason and backroom deals with enemies, locking up children, letting families starve, making nepotistic appointments of unsuitable, barely-literate idiots who ruin whatever they are in charge of, destroying our precious planet, sending government goons to beat and abuse protesters, encouraging and goading non-government goons to shoot, run down, and murder people, trafficking in horrific tropes to ally themselves with actual Nazis.

The situation, in short, is this, my friends. Behind Curtain no. 1: Nazis. Behind Curtain no. 2: not Nazis.

The pony is not on the ballot. The bedrock of our democracy is. You’re not getting a custom-fit ticket, you’re choosing from a catalog with two products. The choice is obvious.

Don’t Get Yanked by a Bad Man’s Chain

By all rights, we should spend our day mourning a national civil rights hero and taking heed of his stirring words of inspiration, as well as his eulogy given by another national hero. But a man who is their exact opposite–the psychopathic, semi-literate career criminal in the White House–won’t let attention drift from him and his infantile antics for a second, and so we now have this stupidity to deal with. The two-dime reality show host did what two-dime reality show hosts do: create some distraction to send you reeling and make your heads spin. And suddenly I’m prepping for a TV interview about this nonsense, which happens in 20 minutes, and there’s nothing to say, because it’s a nonstarter.

Yet again, our self-styled despot has composed some poorly-worded tweet with his signature preschool syntax and too many exclamation marks that threatens the basic civic fiber of governance and, like the circus masters of yore, whips everyone into a frenzy: exclamations, explainers, constitutional law primers, apologies, predictions, only to tell us that it was a joke.

He’s a bad man and an idiot. Leave him alone. Focus on John Lewis’ inspiring legacy:

Though I may not be here with you, I urge you to answer the highest calling of your heart and stand up for what you truly believe. In my life I have done all I can to demonstrate that the way of peace, the way of love and nonviolence is the more excellent way. Now it is your turn to let freedom ring.

When historians pick up their pens to write the story of the 21st century, let them say that it was your generation who laid down the heavy burdens of hate at last and that peace finally triumphed over violence, aggression and war. So I say to you, walk with the wind, brothers and sisters, and let the spirit of peace and the power of everlasting love be your guide.

John Lewis, Together, You Can Redeem the Soul of Our Nation, Washington Post, July 30, 2020

Let’s bring change to this land and cleanse it from this scourge on November 3.