Narratives Are Hard to Shake

For several weeks, California news reports and true crime outlets focused on the parole bids of Lyle and Erik Menendez, both of which were denied, but the best report on the hearings, by far, was Joe Garcia’s important article on CalMatters. Here is part of his excellent story:

Many parole hearings boil down to whether the board believes the individual is being authentic. Is their rehabilitation and personal transformation genuine and substantial? Or is their grasp of self-help mantras and buzzwords merely performative?

For their hearings, Erik and Lyle Menendez each sat alone before a computer screen in the R.J. Donovan Correctional Facility in San Diego, accompanied only  by two correctional officers. Everyone else — commissioners, attorneys and all other parties — participated virtually.

“The purpose of this hearing is not to retry your case, nor is the purpose of this hearing to put your parents on trial,” presiding commissioner Robert Barton told Erik. “The purpose of this hearing is to determine whether or not you currently pose an unreasonable risk to public safety.”

Commissioners questioned each Menendez about the underlying “nexus” of their crime. Successful parole suitability requires offenders to show insight into why they did what they did.

Without relitigating or making excuses, this line of reasoning is an essential component of rehabilitation. If a person doesn’t fully understand the flaws in their thinking that contributed to their criminal decisions, then they are considered far more prone to repeat them. 

“Two things can be true that seem opposite at the same time and yet be true,” Erik Menendez said in explaining his immense fear of his father while also addressing his need to act out and rebel in small ways.

I’m almost 51 years old, which means that I was a teenager/adolescent when the drama around the Menendez brothers’ trial played out on TV. My first exposure to the crime was a 1994 made-for-TV movie called Menendez: A Killing in Beverly Hills, in which the brothers are presented as spoiled, greedy, and psychopathic, and their claims of parental abuse are ridiculed and disbelieved. It’s interesting to revisit that perspective and see how hard it is to shake off. I know how narratives about horrific crimes tend to calcify–I literally wrote the book about California parole, in which I looked at a very similar calcification that happened when Vincent Bugliosi’s book Helter Skelter, about the Manson family crimes, came out. As I wrote there,

Bugliosi openly admits that he strategically chose to highlight his narrative. He was, after all, a prosecutor in search of a theory of criminal culpability. The Tate-LaBianca murders presented him with two legal difficulties. First, Manson himself was not present when the murders took place (though he arguably was on the scene before the murders occurred, tying up the victims, as he had been at Gary Hinman’s residence before his homicide). To obtain a conviction, Bugliosi would have to convince the jury that Manson was the mastermind behind the murders, contrary to the defense’s argument that Manson’s followers committed the crime on their own, without his knowledge. That would require a strong showing of Manson’s powerful hold over the perpetrators’ will and his hand in planning the murders. On the other hand, Bugliosi could not afford to present the followers as mindless robots ordered around. In that respect, he was somewhat aided by the fact that knowledge about cults, mind control, and brainwashing was not part of the zeitgeist in 1971; however, Bugliosi was determined to seek the death penalty for all defendants, and that called for proof of premeditation on their part. The doctrine of felony murder was not as developed.

This is not to say that the crimes were not horrific, heinous, and cruel, or that the people who were convicted of them were not responsible. But writing about these crimes, and particularly the involvement of teenage girls and adolescent women who were sexually exploited, hopped out of their mind on drugs, starved and sleep deprived, in the era of #MeToo and after we’ve learned more about cults and about the brain development of teens and young adults, suggests that at least Van Houten, if not Krenwinkel and Atkins, and their involvement in the crimes, would have been seen through a less harsh light if it happened today.

Along the same lines, I wonder if a crime similar to that of the Menendez brothers would be viewed through the same lens today. Would Lyle and Erik’s claims that they were sexually victimized be more believable now that we have more awareness of sexual victimization of men? Did the massive sex abuse scandal in the Catholic church–still hidden and unspoken of in the late 1980s and early 1990s–change our tendency to believe boys and men who reveal that they were victimized by people of high stature and good reputation?

I don’t know what it was like to live in the Menendez household, and have spent far less time digging into the court documents in this case than I did, say, in the Adelson case; but it’s obvious to me, from the parts I followed more closely, that what happened at the hearing resembled the patterns I saw in the Manson women’s cases. Notably, the things that the two men were dinged for–having a smuggled cellphone and joining a gang–are fairly common transgressions that tend to surface at hearings and tank people’s parole bids. But the commissioners are aware of the fact that joining a gang, even if it is notorious and ugly, is a survival strategy for men who are otherwise defenseless in prison, and for white prisoners, joining the Aryan Brotherhood is essential even if one is not an avowed Nazi. I’ve spoken to long-term white prisoners who did not join (which I very much admired them for) and paid a dear price in vulnerability to vicious assaults and attacks in the prison yard. This doesn’t make the AB into some sort of benevolent association–it’s anything but–but it does put the motivation for joining in context. Similarly, the prison guards’ publication Corrections One points to how widely prevalent cellphones are in California prisons. Is it a violation of prison regulations? Sure. Is it the ticket to survival inside and to having some semblance of literacy in the modern world upon release? Yes, it is. Indeed, much of what we did during the pandemic to get information to and from people about what was happening inside (including the ridiculous meals they were served when everyone in the kitchen fell ill) came from smuggled cellphones.

I’m not saying that these violations would be ignored if Lyle and Erik weren’t, well, Lyle and Erik. All I’m saying is that they would probably be viewed in context of a long incarceration that started in adolescence were it not for the notoriety of the cases. And now it remains to be seen whether these black marks will reappear and be discussed again in the brothers’ future parole hearings; what I saw in the Manson family transcripts is that some transgressions, even if fairly light or explainable, tend to crop up again and again in successive hearings. I’ll be following the brothers’ next bids for parole with great interest.

What Tulsa King Tells Us About Reentry

A silver lining of being out of commission with a bad cold is that one is not good for much beyond catching up on streaming series I’ve missed, of which there are plenty: I work full time, study full time, volunteer full time, and parent full time. This morning I belatedly became acquainted with Sylvester Stallone’s Western Mafia series Tulsa King, which tells the story of septuagenarian mobster Dwight Manfredi, released from prison after a 25-year sentence in a federal facility, and banished from the heart of the crime family in NYC to build a crime empire in Tulsa, OK.

There’s plenty to love and admire about Tulsa King, and Stallone’s humor, old-school charm and old-fashioned violence are a big part of it. But I think that the series has important lessons to teach us not about folks in reentry who try to return to organized crime, but about their counterparts who try to live a law-abiding postrelease life.

The vast majority of people who have lived and worked in organized crime do not become kingpins. As one of the classic articles in law and economics teaches us:

A crack gang works pretty much like the standard capitalist enterprise: You have to be near the top of the pyramid to make a big wage. But selling crack is a lot more dangerous than most menial labor. Anyone who was a member of J. T.’s gang for the four years covered in the notebooks stood a 1-in-4 chance of being killed. That’s more than five times as deadly as being a timber cutter, which the Bureau of Labor Statistics calls the most dangerous job in the United States.

So if crack dealing is really the most dangerous job in America, and it pays less than minimum wage, why on Earth would anyone take such a job? Well, for the same reason a pretty Wisconsin farm girl moves to Hollywood. For the same reason that a high school quarterback wakes up at 5 a.m. to lift weights.

They all want to succeed in an extremely competitive field in which, if you reach the top, you are paid a fortune (to say nothing of the attendant glory and power). But in each of these glamour professions, the same problem exists: A lot of people are competing in what is essentially a tournament.

Earning big money in J. T.’s crack gang wasn’t much more likely than the Wisconsin farm girl becoming a movie star or the high school quarterback playing in the NFL. But criminals, like everyone else, respond to incentives.

For this reason, the vast majority of people who end up incarcerated for a long stretch don’t have anything secure lined up for them postrelease–especially not if they are released in middle age and beyond, an age bracket that mellows our penchant for violence, our overestimation of our personal safety, our appetite for taking risks, and our susceptibility to peer pressure. Once they are out, their main concern is basic survival: finding a place to live and a job. And they must adapt to a very different world than the one they left behind when they were first locked up: a world with cellphones, big data collection, GPS, social media, facial recognition and AI. All this, of course, has implications for how crime is committed: cash is no longer king, which changes a lot of how criminal transactions are conducted. Things leave the kinds of digital trail that they did not use to. But it also has implications–much more common ones–for completely lawful behavior. How do you apply for jobs and housing? If you have an independent business (construction? landscaping? manicures?) how do you drum up business? How do you look things up? How do you keep in touch with your loved ones? How do you socialize and date? And how do you even begin to make your way in this new world without feeling completely unmoored and irrelevant?

The reason we root for Manfredi in Tulsa King is, partly, Stallone’s charisma, charm, and humor, but also Manfredi’s almost instantaneous adaptability to the surrounding world. He has quick instincts, finds way to oil social transactions with cash to get people to help him with the things he does not understand (such as asking the hotel concierge to order him an Uber with her app when he doesn’t have one; he doesn’t let on that he has no idea what an app is), and whatever he cannot accomplish with charm, he accomplishes with bravado and violence. How many midlife people will still have such razor-sharp instincts, or be able to translate the ones that served them well on the yard to outside businesses and social situations?

If you find sympathy for Manfredi as you watch the show, see if that sympathy can spill over to the many, many people who will eventually find themselves in his shoes in their fifties, sixties, and seventies–but making their first steps in a law-abiding world and an above-board economy.

Breaking News: Patricia Krenwinkel Recommended for Parole

Readers of Yesterday’s Monsters who followed the legal drama that accompanied the release of Leslie van Houten might want to know: Patricia Krenwinkel, the oldest female prisoner in California, has been recommended for release by the parole board. Bob Egelko of the Chronicle reports the predictable positions of both sides:

In prison, Krenwinkel has a clean disciplinary record, earned a college degree and has taken part in community-service programs, working to support other inmates with mental illnesses. At her 2022 parole hearing, she said that after dropping out of school and becoming an infatuated member of Manson’s so-called family at age 19, “I allowed myself to just start absolutely becoming devoid of any form of morality or real ethics.”

In a statement released by Krenwinkel’s lawyers, Jane Dorotik, a former inmate and now part of  the support group California Coalition for Women Prisoners, said, “Those of us who served time with her came to know her as a thoughtful, gentle, and kind person – someone deeply dedicated to creating a safe, caring environment.”

Relatives of the murder victims have not been persuaded.

“I beg the board to consider parole for Patricia Krenwinkel only when her victims are paroled from their graves,” Anthony Demaria, a nephew of victim Jay Sebring, testified at one of her hearings.

And Patrick Sequeira, a prosecutor in the murder cases, told the board that if Krenwinkel “truly understood her crimes and the horrific nature of it, she wouldn’t be here at a parole hearing. She would just accept a punishment.”

Not so, said her lead attorney, Keith Wattley, executive director of UnCommon Law, an Oakland-based firm that represents inmates seeking parole.

“Pat has fully accepted responsibility for everything she did, everything she contributed to, every twisted philosophy she embraced and endorsed and, most importantly, every life she destroyed by her actions in 1969,” Wattley said in a statement after the board’s latest decision.

“Now it’s the Governor’s turn to show that he believes in law and order when the law requires a person’s release despite public outcry.” 

Will Gov. Newsom try to argue that Krenwinkel has no insight? The predictable political move would be, of course, to oppose her release; he has nothing to lose and the crime is so notorious that considerable sectors of the public will applaud his veto even though Krenwinkel is a 77-year-old woman living a peaceful, laudable, infraction-free existence behind bars who has been incarcerated for 56 years. On the other hand, to the extent that California courts are willing to entertain claims of “lack of insight” insofar as they are connected to the crime of commitment, Krenwinkel’s involvement in the murders was considerably more serious than Van Houten’s.

As you’ll recall, Newsom was clobbered by the Court of Appeal when he tried the “lack of insight” claim in van Houten’s case: after all these years, said the court, you can’t even marshal “some evidence” that there’s no insight, which means the veto is a thinly veiled appeal to optics and infamy. We don’t know yet if there will be a veto here (I’m betting yes) and what form it will take (I’m betting some variation on the lack-of-insight theme with an effort to marshal more evidence than in the Van Houten veto). But if the courts accede to it, it will affirm that we’re preoccupied with optics and not with actual risk to society.

In Yesterday’s Monsters, I talked about the absurdity of expecting people to excavate their personal history for decades and provide carefully crafted narratives of who they were, who they are, why, how come, wherefore–and to come up with new ones every year. I haven’t read the latest parole hearing transcript in Krenwinkel’s case, but I read every parole hearing transcript of hers from 1978 to 2020. It’s hard to imagine what she could possibly say to demonstrate deep reflection that she hasn’t said already; she is an intelligent and thoughtful person. Unless, of course, one might say that there could never be some satisfying explanation for her crimes. But then again, isn’t that true for any heinous crime? Is there ever a scenario where someone could tell you about the crime, and you’d respond with a big sigh of relief and say, “yes, now we all get it; we’ve gotten to the bottom of this”? Why are we hanging our release decisions on this process of psychic excavation–and why is this a political matter?

I’ll keep track of this and report any developments from Sacramento.

Changing the Burden of Proof for Judicial Review of Parole Denials

This week, SB 81, having been approved by the Senate, will land on Governor Newsom’s desk. The bill addresses judicial review of the parole board’s decision to deny parole. The latest edition of the bill, if passed, will add the following language as Section 3041.8 to the California Penal Code:

(a) Upon the denial of parole to a parole candidate, following a parole consideration hearing, the Board of Parole Hearings shall notify the parole candidate of their right, after completion of all applicable review periods, to petition a court for a writ of habeas corpus.

(b) The parole candidate may request that the court appoint counsel for the purpose of preparing the petition. The court may appoint counsel upon this request.

(c) A parole candidate who has been denied parole after reaching their minimum eligible parole date as described in Section 3041, their youth parole eligible date as defined in Section 3051, or their elderly parole eligible date as defined in Section 3055 has made a prima facie case for relief and the reviewing court may not summarily deny a petition for writ of habeas corpus filed pursuant to this section.

(d) The court shall uphold a decision to deny parole only if the court finds, by a preponderance of the evidence, that the person presents a current, unreasonable risk of danger to others. If the court finds the parole denial was not supported by a preponderance of the evidence, the court may issue an order for a new parole hearing, with or without limitations as to what evidence the Board of Parole Hearings may consider.

The most notable aspect of this proposal is that it sets an evidentiary standard for the court’s decision. While the reasons for the parole denial will remain vague (“insight,” “nexus,” etc.), at least the evidentiary side of things will be better grounded.

This is not just semantic or technical. Recall how Gov. Newsom vetoed Leslie Van Houten’s parole, arguing that she was still a risk to public safety? And how the Court of Appeal called his bluff? Here’s what they said: “The Governor’s concern that there is more than meets the eye is, on this record, speculation, but the Governor’s ‘decisions must be supported by some evidence, not merely by a hunch or intuition.'” The latter part is language from In re Lawrence. It will be good to have all this grounded in actual probability and common sense, not just in the gut feelings of people whose default is to be overly cautious about release.

DO SOMETHING! If this seems like a good idea to you, call the Governor’s Office at (916) 445-2841 and express your support for more robust and well-framed judicial overview of parole boards.

Happy New Jewish Year to all. May we all become מתירי אסורים – unchaining those suffering in bondage – this year and always.

The Prospect of Freedom

It looks like the event I hardly imagined could ever happen might happen: Gov. Newsom announced that he would not appeal the Court of Appeal’s decision to reinstate Leslie Van Houten’s parole. The Associated Press reported Newsom’s obligatory statement, as well as some valuable words from Van Houten’s attorney:

In a brief statement, the governor’s office said it was unlikely that the state’s high court would consider an appeal of a lower court ruling that Van Houten should be released.

Gov. Gavin Newsom is disappointed, the statement said.

“More than 50 years after the Manson cult committed these brutal killings, the victims’ families still feel the impact,” the statement said.

. . .

“She’s thrilled and she’s overwhelmed,” [her attorney Nancy] Tetreault said.

“She’s just grateful that people are recognizing that she’s not the same person that she was when she committed the murders,” she said.

After she’s released, Van Houten will spend about a year in a halfway house, learning basic life skills such as how to go to the grocery and get a debit card, Tetreault said.

“She’s been in prison for 53 years. … She just needs to learn how to use an ATM machine, let alone a cell phone, let alone a computer,” her attorney said.

In the last chapter of Yesterday’s Monsters I looked at factors that might or might not be conducive to the release of any of the people I featured in the book. What paved the way to Van Houten’s release was the reemergence of adolescence as a relevant factor for parole; she had been living an exemplary life of self-reflection and rehabilitation for many years and was nonetheless repeatedly denied based on “lack of insight”, which, as I and others have discussed, is nonfalsifiable. The Commissioners had always known that Van Houten was 19 when she participated in the LaBianca murders, but a series of Supreme Court decisions gave them explicit permission to consider her age, and that’s what tipped the scales.

I now see these cases through the broader prism that Chad Goerzen and I develop in FESTER (coming to a store near you in January 2024), which highlights the travesty of turning our prisons into geriatric facilities. Beyond the obvious issue of medical risk, there is the question of what freedom looks like to a septuagenarian leaving prison after 53 years. Even without the added difficulty of immense stigma and animosity, Van Houten, who is a bright, thoughtful, and talented person, and who has academic degrees, will find it very hard to find and hold a job in this market. She has had to endure a lot behind bars, and her reentry is unlikely to be very easy. I wish her all the best. Our paths did not cross–she did not wish to be interviewed for Yesterdays’ Monsters–but I very much hope they will some day.

CA Court of Appeal Reverses Newsom’s Veto, Reinstates Van Houten’s Parole

Parole drama today! the California Court of Appeal for the Second District reversed Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the board’s parole grant decision.

You can read the decision in full at this link. It’s a 2:1 decision, with the majority opinion recounting Van Houten’s early history, life crime, prison history, and plans for release. Their point of departure is a standard of review that is highly deferential to the governor:

We review the Governor’s decision under the “some evidence” standard, a standard our Supreme Court has called “extremely deferential.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 665 (Rosenkrantz).) Under that standard, a simple modicum of evidence is all that is required to uphold the Governor’s decision. (Shaputis, supra, 53 Cal.4th at p. 210.) “Only when the evidence reflecting the inmate’s present risk to public safety leads to but one conclusion may a court overturn a contrary decision by . . . the Governor.” (Id. at p. 211.)

p. 43

But even under this standard of review, “we nonetheless conclude that the Governor’s reversal in this case is not supported by a modicum of evidence in the record.” (p. 44).

Their support for this assertion echoes what I said in chapter 4 of Yesterday’s Monsters: that the constant refrain that Van Houten has somehow failed to do even deeper psychic excavation into her circumstances and crime is nothing but smoke and mirrors, that it is ridiculous especially in someone so introspective, and that it is thin cover for political optics.

The Governor found that Van Houten’s “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying,” and he was “unconvinced” that Van Houten’s parents’ divorce and her forced abortion “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”

p. 44

To which I’d say, how exactly does he expect anyone to explain a bizarre stranger homicide in the context of a cult? Is there anything she could possibly say that would lead anyone in Sacramento to write, “aha, now I get it”? The Court agreed, walking us through Van Houten’s introspection in a way that shows the Governor’s reasoning for the sham that it is:

It cannot be said that Van Houten has not extensively identified and discussed the factors leading to her life crimes, only some of which briefly are referenced in the Governor’s decision. In both her interview with the CRA evaluator and at the parole hearing, Van Houten expounded at length on the causative factors, beginning with her feelings of anger and abandonment after her parents’ divorce, a stigmatizing event in that era, and how that led to drug and alcohol abuse. She ran away from home with her boyfriend, who had impregnated her. Her mother then forced her to have an illegal abortion against her wishes, unmedicated, in her bedroom, instructed to keep quiet so as to not wake her siblings.

Van Houten spoke of shutting down emotionally and feeling numb after the abortion. The CRA evaluator wrote that, even now, Van Houten “was tearful as she spoke of the abortion and what ‘might have been.’ ” Van Houten described herself at that point in time as being “ ‘[d]esperate to be accepted,’ ” and “ ‘ha[ving] no sense of value. My value came in the eyes of other people.’ ”

Van Houten stated when she met Manson cult member Catherine Share, she “was at an all-time bottom low. I had no income, I did not feel good about either of my parents, and when I met her, it seemed to me that I was being offered a pretty good life.” She described how Manson slowly indoctrinated her, often while she was under the influence of LSD. The cult was not murderous and violent at the outset—rather, she stated her time at the ranch initially “ ‘seemed fun,’ ” and the talk of and preparation for violence and revolution came later. Van Houten said she “ ‘wanted to belong and . . . wanted to belong to something that wasn’t connected to my past.’ ” Van Houten explained how Manson used her anger with her parents and her shame about the abortion to convince her to turn her back on society, accept the alternative lifestyle he offered, and reject the lessons of right and wrong she had learned in her youth. Manson successfully transformed any doubts Van Houten had about the cult into her own self-criticism for failing to achieve the enlightenment he purportedly offered. By the time Manson’s talk turned to violence and murder, Van Houten already had fully committed to him, so much so that she believed he was Christ reborn. She also believed in the impending revolution, and that remaining with Manson was key to her survival.

The Governor found Van Houten’s extensive discussion of the causative factors inadequate to explain her life crimes. This necessarily implies the Governor believes there are additional factors for which Van Houten has failed to account, factors that, unaddressed, create a risk of violent recidivism. There is no indication in the record, however, of a latent underlying factor that potentially could result in violent conduct, nor has the Governor identified one. The CRA evaluator found Van Houten did not meet the criteria for psychopathy or a personality disorder, and there was no evidence of a thought disorder, hallucinations, or homicidal or suicidal thoughts or behavior. The evaluator further found it “very likely” that Van Houten’s youth at the time “significantly impacted” her involvement in the life offense, a factor obviously no longer applicable five decades later. The CRA’s finding that Van Houten presented a low risk of recidivism was consistent with similar evaluations over many years. Van Houten, moreover, has no history of violence either before the life crimes or in the 50 years since, and the prison staff regarded her highly enough to place her in positions of leadership within the prison, including facilitating groups intended to help other inmates with their rehabilitation.

The record shows no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but the Governor’s “decisions must be supported by some evidence, not merely by a hunch or intuition.” (Lawrence, supra, 44 Cal.4th at p. 1213.)

pp. 45-47

The unwritten part of this is pretty obvious to me: the only factor that can explain this veto is political optics, and California law does not allow Governors to veto people’s parole because it will look bad and people will write mean things on Twitter.

The only remaining question is: What happens next? It is quite possible that Gov. Newsom will instruct Attorney General Bonta to appeal this to the California Supreme Court and to ask for an en banc decision, which will further delay proceedings. I was asked today whether they could hold Van Houten in prison while they do that. I honestly am not sure. I will say, though, that if she’s released pending the CA Supreme Court decision, it’ll be the second time she’s spent some time on the outside–this is what happened when her request for a new trial was approved in 1979.

There is another reason why Newsom’s decision was outrageous: you may not remember this, but when Van Houten’s case was pending before Newsom, CIW, where she is incarcerated, had a horrendous COVID-19 outbreak. As I wrote at the time, to keep a 72-year-old woman in prison when she has no disciplinary record whatsoever and is lauded and appreciated for her superb behavior and personal growth at a time when her congregated facility has a huge outbreak was inhumane. I really hope our leaders in Sacramento can let go of ego and optics, set aside their personal aspirations and dread of negative publicity, and do what is unquestionably the right thing here: let this go and allow this low-risk septuagenarian woman with advanced degrees to live her quiet life on the outside.

How Machine Learning Improves Parole Research

Rabbi Levi son of Rabbi says…The Holy One said to Moshe “You will make a menorah of pure gold” (Shemot 25:31).

Moshe responded: how will we make it?

God responded: “It will be made of hammered work” (Shemot 25:31).

But Moshe struggled and went down and forgot how to make it.

He went up again and said: My Master, how do we make it? God said: “It will be made of hammered work” (Shemot 25:31).

But Moshe struggled and went down and forgot.

He went back up and said: My Master, I forgot it!

God showed Moshe, and Moshe still struggled. God said to him: “See and create” (Shemot 25:40), and took a menorah of fire and showed him how it was made.

But, it was still a struggle for Moshe!

The Holy One said to Moshe: Go to Betzalel, and he will make it.

Moshe told Betzalel, and he immediately made it. Moshe was amazed and said: How many times did the Holy One show me, and I still struggled to make it! But you, who never saw it, knew how to make it by yourself!

BaMidbar Rabah 15

One of the professional events I most look forward to each spring is the Virtual Workshop on Contemporary Parole–a fantastic two-day online gathering of a rigorous group of people producing exceptional work, which we’ve now held for the third year in a row. The papers are always superb and so is the camaraderie and commentary. I got to present a draft version of my new Sirhan Sirhan paper, as well as hear really terrific work on various aspects of parole: gang validation, racial proxies, young adulthood, and others. I can’t go into too much detail, because these are all works in progress and we’ll probably see polished versions of everything getting published soon enough. But one thing that stood out to me was the uptick in really interesting work utilizing machine learning.

I know next to nothing about machine learning and, like Moshe in the midrash above, I might be too old a dog to learn that particular trick. I mean, in the Sirhan paper, n=1. Thing is, the midrash really resonates with me because I, too, feel a lot like Moshe when I hear someone else talk about a fantastic skill they have and how they put it to good use. It looks like, despite God’s repeated tutorials, Moshe’s goldsmithing skills weren’t up to snuff. Thankfully, there were other Israelites with that particular skillset: Betzalel was a gifted goldsmith who made a spectacular menorah on the first try (this is why Israel’s fantastic art school is named after him.) While unable to emulate Betzalel’s feat, Moshe had acquired a basic understanding of the necessary artistry and workmanship, so he could appreciate why Betzalel’s finished product was of such high quality. In other words–I don’t employ machine learning in my own work, but I know enough about it to be amazed when I read a paper that uses it well.

To understand the promise of machine learning, let’s first talk about how we do parole research the old-skool way. A multivariate regression works much like the denouement in an Agatha Christie mystery novel. You know the drill: Poirot gathers all the usual suspects in a room and goes through a litany of their motivations, opportunities, debunked alibis, you name it. He eliminates them one by one until he can point to the culprits. The important point is that Poirot selects who goes into the parlor for that last scene: people get there by invitation, and Christie is careful to craft the scene so that it’s pretty much always a finite and manageable list of people. When I run a regression, I pretty much do the same: I think about the dependent variable–the phenomenon I’m trying to explain–and I try to come up with a list of the independent variables that might explain it. For example, if my determinate variable is a parole grant, I ask myself: Do people who are represented by a private attorney do better than people who are represented by a panel attorney? Do people whose hearings happen in the morning fare better than folks who are heard in the afternoon? If victims and/or prosecutors show up for the hearing, does that make a difference? Does the professional background of the commissioners matter? Do people in some prisons stand a better chance of being granted parole? You can tell that each of these assumptions has a certain logic behind it (you get what you pay for; people are more attentive and in a better mood when they are not tired or hungry; professional background goes into constructing people’s worldviews; some prisons have better rehabilitative offerings than others, which improves one’s case.) I put all of these “suspects” in a room (the regression equation,) run the numbers, and see which comes out significant.

One of the problems with this model is that regression models rarely offer a complete and exhaustive prediction of the phenomenon they try to predict. There is even a statistic, the r-square, that measures how much of the dependent variable is explained by the set of independent variables we coded for. But there could be many factors that play into a parole grant that cannot be adequately captured by the variables we identified. In other words, 21st century law enforcement doesn’t solve crime by putting twelve people in a parlor; if there is forensic evidence at the scene, it gets analyzed, plonked into giant databases, and could generate hits that are one-in-a-million, not one in twelve.

Enter machine learning. As we’re all now figuring out through our use of ChatGPT, artificial intelligence excels at digesting large amounts of text, identifying repetitive patterns, and throwing those patterns into a model. AI is intertextual in that it can assess the impact of any factor in the database on any other factor. As my colleague Kristen Bell and others explain in this paper, this allows the tool to mine parole transcripts for repeated words to get a sense of factors that would not be salient to us in a traditional regression. Moreover, the capacity of these tools is enormous, so one can feed the machine tens of thousands of cases and get a very powerful sense of what is going on. There are even tools like SuperLearner, which can apply multiple machine learning tools to a dataset, coming up with the best of several models. My colleagues Ryan Copus and Hannah Laqueur do exactly this.

Machine learning has many applications in criminal justice, as this excellent NIJ article explains. The critiques that are leveled on machine learning often revolve around its most common criminal justice use: predicting reoffending risk. As explained in this solid blog post, critics worry that any predictive analysis based on historical crime data will reflect (and thus reinforce) existing biases embedded in the criminal justice system, and perpetuate misconceptions and fears through the feedback loop of basic predictions on past decisionmaking. In other words, as my colleague Sandy Mayson argues, the problem is with the nature of prediction itself. You rely on a biased past, you get a biased future.

What researchers like Bell, Copus, Laqueur and others contribute is the potential of turning the use of the predictive tool on itself and using it not to predict the risk of those subjective to the system, but rather the factors that impact the decisions that the system itself makes. For example, if private attorneys do a better job than state-funded panel attorneys, wouldn’t we want to know this, and wouldn’t it be important to figure out exactly what it is about their performance that makes the difference in the outcome? Using AI can help identify, for example, terminology used by lawyers, thus giving us a sense of the “flavor” of representation that parole candidates receive.

When done well, this technique has fantastic potential to teach us about the hidden nooks and crannies of the parole hearing machine that we would not be able to flag on our own. You don’t have to be an AI whiz to understand and appreciate machine learning research; you just have to understand what it does and appreciate its strengths and weaknesses.

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

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

Mishna Makkot 1-10

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

Mishne Torah LaRambam, Repentance 1:1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Understanding Newsom as a Politician following Injection Site Bill Veto

The harm reduction community is deeply dispirited over Gov. Newsom’s rejection of the proposed safe drug injection/overdose prevention site in Oakland. Marisa Kendall reports for the Mercury News:

Senate Bill 57 would have allowed the two Bay Area cities to become among the first in the country to open facilities where users could bring drugs and consume them in a safe, supervised setting. The bill passed the state legislature this month. But after rejecting the bill, Newsom expressed worry that the law could actually make the drug crisis worse in those three cities.

“The unlimited number of safe injection sites that this bill would authorize — facilities which could exist well into the later part of this decade — could induce a world of unintended consequences,” he wrote in a veto message. “It is possible that these sites would help improve the safety and health of our urban areas, but if done without a strong plan, they could work against this purpose.”

Newsom added that he is instructing the secretary of Health and Human Services to convene a group of city and county officials to discuss overdose prevention strategies and how to implement a more limited pilot program.

This is a great disappointment, but not a big surprise. Kendall ties this position to Newsom’s possible presidential candidacy:

The move comes amid mounting speculation that Newsom might be eyeing a presidential run. And while it’s unclear whether those ambitions played into his decision, rejecting the bill likely will only help him on the national stage, where the majority of voters would likely balk at the idea of facilitating drug use, said Claremont McKenna College political science professor Jack Pitney.

“There’s a solid policy rationale for the veto,” Pitney said, “but politically, he’s dodged a potentially big problem.”

I have a few thoughts to offer about this observation. For many years–since my graduate school days in the early 2000s–I liked Newsom and believed in him, though I always knew that a politician is a politician, not the messiah (some of the Obama disappointees fell into that trap.) I admired his administration’s bold moves to the point that I was delighted to be considered for his penal code revision commission and sorely disappointed not to have been picked. In hindsight, though, not working for this administration was a blessing. I can’t imagine being able to help the people at San Quentin as much or in the ways that I did if I felt bound by loyalty to the Newsom administration.

Watching Newsom, Bonta, and others handle the executive and judicial aspects of the COVID-19 crisis was sobering. In Chapter 7 of our forthcoming book FESTER (the manuscript is due with UC Press this week!) we make the following observations about Newsom:

[T]he Governor’s [paltry COVID-19 release] program was overly sensitive to public backlash, and featured the classic hallmarks of the age-violence-risk paradox. Bifurcation—applying early releases and good time credits only to nonserious, nonviolent, nonsexual offenses—was in evidence in every category on the plan, despite the lack of correlation between the crime of commitment and risk to public safety. At first blush, such kowtowing to public outcry would seem uncharacteristic of Newsom, whose political path, from his early days as Mayor of San Francisco, featured bold, high-profile moves to advance progressive values and objectives, which he presented as doing the right thing no matter the backlash. His move to legalize same-sex marriage in California—the subject of ferocious litigation that culminated in a Supreme Court victory—was perceived by some, at the time, to be political suicide. Similarly, his moratorium on the death penalty was criticized for not reflecting the wish of a small but consistent majority of Californians. In both of these cases, Newsom correctly read the political winds, and his predictions proved true; his self-styled image of an idealistic pioneer was boosted by the fact that his executive decisions preceded wider societal shifts. But Newsom’s reluctance to release people convicted of violent crime reflected age-old wisdom in California politics that, even in the bluest of counties, it is not a wise political move to flout entrenched fears of violent crime. Reflective of the justifiability of this concern was a disparaging story in the Los Angeles Times about Newsom’s plan titled, “California is releasing some murderers due to COVID-19. Some say it should free more.” After a barrage of phone calls from Coalition members, the newspaper changed the headline, but the content, which rehearsed tired tough-on-crime tropes from the Reagan administration days, remained unaltered: the writers chose to interview crime victims who, while entitled to their personal opinions, were neither the statewide curators of victims’ perspectives nor qualified to offer broad insights on emergency healthcare policies. They also mentioned, without a shred of irony, Willie Horton.

. . .

Three examples of such aging, low-risk people drive home the extent to which age-violence-risk paradox was part of the Newsom administration’s calculus. Twice during the pandemic, the parole board recommended parole for Leslie Van Houten, born in 1950 and housed at California Institute for Women (CIW.) Van Houten had been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what appear, in light of her exemplary prison record, pure political spite. Van Houten has maintained a clean disciplinary record, participated in a variety of laudable programs, and incessantly excavated her psyche to show “insight” to the Board. She participated in the Manson murders when she was 19 years old, manipulated and sexually exploited in a setting that, with today’s #MeToo sensibilities, might have shed a completely different light on her involvement.

As one of us has explained elsewhere, the Manson family cases shine a light on the question of redeemability, featuring people who have clearly done their utmost to undergo, live, and exude transformation but whose notoriety stands in their way. But van Houten’s two last hearings featured an additional consideration: the parole hopeful was over 70 years old and CIW, where she was housed, was experiencing an outbreak just as she was denied parole.

Another notorious member of the “Class of ‘72’”—the 107 people condemned to death whose sentences were commuted to life with parole after People v. Anderson—was Sirhan Sirhan, who had assassinated Robert Kennedy. At the time of his COVID parole hearing, Sirhan was 77 years old. The Chronicle’s Bob Egelko forecasted his parole bid:

“Anybody that has ever walked into my office, you have to walk by photographs of Bobby Kennedy’s funeral procession, those famous train photos,” the governor said, according to a transcript provided by his office. “The first photograph, the only photograph you will see in my office is a photo of my father and Bobby Kennedy just days before Bobby Kennedy was murdered.”

At the time of Sirhan’s parole bid, Newsom was facing a recall election in which he had everything to lose, and absolutely nothing to gain, from releasing Sirhan. As Egelko explained, Newsom’s leading opponents in the recall, all of whom were well to his right politically, would seem equally unlikely to approve Sirhan’s parole. Moreover, any decision to release Kennedy’s murderer would surely become a flash point in the 2022 governor’s election.

“I’d be shocked if Newsom didn’t reverse” the parole board’s decision, said Robert Weisberg, a Stanford criminal law professor. Although the governor would have to explain why he believed Sirhan still posed a threat of violence, Weisberg said, he would most likely be “responding to a public view that this guy’s crime was so heinous that he shouldn’t be paroled.”

Predictably, Newsom vetoed Sirhan’s parole and, perhaps hoping to win political points while facing a recall election, took the trouble to pen an op-ed about it in the Los Angeles Times:

“Kennedy’s assassination not only changed the course of this nation and robbed the world of a promising young leader, it also left his 11 children without a father and his wife without a husband. Kennedy’s family bears his loss every day. Millions of Americans lost a unifier in a time of national turmoil and grief, just nine weeks after the assassination of the Rev. Martin Luther King, Jr., and four-and-a-half years after the murder of Kennedy’s brother, President John F. Kennedy.

“Yet, after decades in prison, Sirhan still lacks the insight that would prevent him from making the kind of dangerous and destructive decisions he made in the past. The most glaring proof of Sirhan’s deficient insight is his shifting narrative about his assassination of Kennedy, and his current refusal to accept responsibility for it.”

The language in Newsom’s op-ed echoes the concept of “insight”, which parole researchers broadly agree is a deliberately opaque, vague term used to justify denials based on the now-prohibited consideration of the heinousness of the original crime. Kathryne Young explains that “insight” is. Kristen Bell identifies the same obfuscation with regard to juvenile parole hearings. And Rita Shah, in a review of my previous book Yesterday’s Monsters, pithily explains that “Like rehabilitation, insight seems be a bullshit term as determining whether one has gained insight or is on the road to rehabilitation appears to be the criminal legal system’s equivalent of ‘I’ll know when I see it.’”

But the absurdities in Van Houten and Sirhan’s cases pales in comparison with the continued incarceration of Gerald Albert Oates who, at the age of 94, is the oldest living person incarcerated at CDCR. After a parole denial in 2018 because, unbelievably, Oates is still categorized as “high risk” by CDCR,[8] he remained incarcerated throughout the COVID-19 crisis, apparently surviving the Newsom Administration’s project to identify priorities for release. Oates’ case highlights the extent to which the calcification of fear and loathing of so-called “violent offenders”, wrought by the age-violence-risk paradox, stood in the way of making parole decisions that made sense, practically and medically.

There you have it: a politician I used to respect and admire. Over the course of the last few years, I have come to realize that his true gift is his keen sense of smell for where public opinion will be two weeks from now, appearing as a maverick when pushing initiatives that he knows will shortly enjoy wide public support. Because he knows that people addicted to drugs in the streets and people languishing in overcrowded prisons (1) don’t vote and (2) don’t matter to voters, he can afford to continue running California as if their lives don’t matter at all.

Last comment: Whatever Newsom is doing is playing out marvelously in California, where a recent poll shows him a reelection shoe-in (long-time readers will recognize his opponent, Brian Dahle, an old-skool law and order guy who opposed the recent prison closure in Susanville.) But it might not earn him as many points as he hopes in less-blue pastures on the national stage; he’s not getting any love for this on Fox News, where they can see right through it (even a broken clock shows the right time twice a day.)

My Chesa Recall Punditry: The View from Bayview-Hunter’s Point

Last night provided me a unique vantage point on the Boudin recall effort: I was an inspector at a polling station in Bayview-Hunter’s Point, which is a neighborhood with a long history of neglect and criminalization. It is also unique in its demographics: 33.7% African American in a city that is just under 6% African American as a whole. There were approximately 650 registered voters in our precinct. 18 voted by mail and 17 voted in person, for a grand total of 35 voters. That’s 5% of the electorate. Things were somewhat better, but not by much, elsewhere in the city. By stark contrast to the 2020 Presidential election, pre-election mail-in voting in this local election–the third in 2022!–was very low. Our Federal Election Deputy (FED), who came to visit us throughout the day, reported that the polls were quiet and dormant throughout the whole day, pretty much everywhere.

Why does this matter? Take a look at a map published in today’s Chron of the neighborhoods that voted against Boudin:

At first glance, the story appears to be that neighborhoods associated with Asian-American populations tended to support the recall more fervently. This is unsurprising, and only talked about in hushed tones even though I think it is a big part of the story. In the last few weeks I saw concerted, fervent activism in support of the recall from very similar crowds to the ones who drove the SFUSD recall from a few months ago: it’s not all about out-of-town Republican millionaires conning unsuspecting masses into false consciousness. These are pretty much the same parents who resented the performative woketalk from the Board about school renaming and lottery admissions to Lowell. I suspect that some residual energy poured over from the previous recall (which I think was 100% justified) to this one (which I think was not.) The superficial narrative might be that a permissive and forgiving attitude toward prosecuting some people (read: presumably, young African American men) incentivizes crime and victimization (read: toward, presumably, Asian American victims) in the same way that lowering standards and talking about reparations and abolitionism (read: a narrative that supports, presumably, a monolithic African American interest) harms the pursuit of hard work and excellence in education (read: the purview, presumably, of Asian American students and parents.)

This story, which suggests the fomenting of racial animus between these two groups, building on the racial conflict undertones of the previous recall, is not completely preposterous. Most of the people who came to vote in person yesterday at our precinct were African American, and from their conversations, I gathered they all came motivated to vote against the recall. But this assumes that we can understand and generalize trends from a pretty minuscule percentage of San Franciscans. It’s not that the people who live in my beautiful city don’t care about criminal justice administration. NextDoor and other social media outlets are full of people chewing each other’s heads off about whether this or that wave of smash-and-grab, retail theft, or other incident is Chesa’s fault. But how many people care enough about this to put work into reading a hefty booklet and considering their positions on a three-page ballot, in which Prop H was the very last voting issue on the back side of the third page, for the third time in a row in the same year?

Over the years, I’ve returned again and again to Vanessa Barker’s excellent book The Politics of Imprisonment. Barker conducts a three-way comparison of penal politics in three states: California, Washington, and New York, finding that California’s political culture more easily lends itself to punitive experiments because of its polarization and populism. I write about this culture in Yesterday’s Monsters, when I show how politicized and emotion-driven the issue of parole is. In this kind of political environment, where money and strong interests can push something into the ballot as well as foment a well-oiled promotion machine (complete with all the tricks and deceptions we’ve come to expect from the initiative process), it is not difficult to swing the pendulum back and forth, from big reforms to big cancellations, from experiments in jurisdictional shifts to draconian policies masquerading as victim’s rights policies, and everything in between.

Ultimately, I think that what we saw here was just an exercise in manipulating this big machine and effectuating huge change through a relatively small number of voters. Direct democracy can be, and is, too direct when it imposes this burden thrice a year on already exhausted, grieving, anguished, and ticked off people with an empathy deficit from three years of awfulness that followed four years of a different kind of awfulness. In sum, whether or not the small minority who bothered to show up at the polls has false or true consciousness matters much less, sadly, than the forces exploiting the initiative process far beyond the Bay Area.

Would it have made a difference if the entire Bayview-Hunter’s Point electorate showed up en masse and voted against this recall? Of course it would. But after everything we’ve all been through–the impoverished folks in the neglected parts of town disproportionately suffering–we just didn’t have it in us to make yesterday a proud, sparkling moment for people-powered government, and even though it’s not our fault, we will all have to live with the consequences. Increased incarceration and the return of cash bail will not deter violent crime (but people’s attention will wander, and those who supported the recall will stop paying attention). Crime might go up (despite the recall, the supporters will say, or because of the recall, the opponents will say) or it might go down (because of the recall, supporters will say, or despite it, opponents will say) and we will continue to delude ourselves that dumbing down complicated policy decisions, deceiving people with oversimplified campaigns, and seasoning everything with some piquant interracial conflict, is how democracy should work.

The truth is that crime rates are like the weather. They rise and fall for a variety of reasons, only a few of which we can measure, and most of which have nothing to do with who is in charge. They have very little to do with big punishment trends (though, in localized situations, they do depend on effective police work in solving crime, which is a damn difficult thing to do when the community doesn’t trust the police enough to help.) It takes a real sea change in policy to effectuate changes in criminality patterns. But our megalomanic assumption that we can control crime rates through tinkering with policies will persist, and we will keep tinkering, until no one has any energy left to vote.

I offered a few more thoughts on KCRW here.