Homeopathic Criminal Justice Reform and Its Discontents

In my previous writings about the COVID-19 prison disaster (especially here and here), I relied on Ben Bernanke’s famous “triggers and vulnerabilities” model. I explained that the virus happened on a fertile Petri dish of neglect, both preceding and following the Plata litigation. But it’s just occurred to me that there’s a better way of explaining why the problem lies not only with the prison healthcare crisis that preceded Plata, but also with the Plata remedy itself: Criminal justice reforms in CA (through litigation as well as legislation) are often like homeopathic remedies: a low-concentration of the exact problem they purport to solve. The crisis we are facing now is merely an exaggerated example of the futility of homeopathic criminal justice reform.

Homeopathy, the creation of Eighteenth-century physician Samuel Hahnemann, follows an idea known as the Law of Similars – the idea that, if exposure to substance X causes symptom Y in a healthy person, substance X can cure symptom Y in a person where they occur naturally as part of a disease process. For example, exposure to onions causes an itchy, stinging sensation in the eyes; therefore, the homeopathic remedy for hay fevers or head colds accompanied by such sensation is a low-concentration formula of onion.

I’ve come to see criminal justice reform initiatives in California as low-concentration forms of the underlying problems they purport to solve. The COVID-19 “relief” policies sold to us by the Governor and CDCR are a case in point.

The problem we had to solve was a giant, bureaucratic correctional monster, which we could not wrangle. The Plata solution: we made it more complicated by breaking it into 59 monsters that have an equally unwieldy, though different, structure. We’re now dealing with the ramifications of this homeopathic preparation: inscrutable BSCC reports on jails alongside journalistic exposés of serious outbreaks; four months of delay before numbers were even available; traffic between jails and prisons that is unpredictable and difficult to regulate.

The problem we had to solve was the rate (and percentage of the general prison population) of aging, infirm people serving interminable sentences. The Plata solution, the Prop 47 solution, the Prop 57 solution: reinforce the notion that these people belong in prison by designing all releases around the issue of nonviolent offenders. While removing people from prison (diluting them) this, ironically, increases the concentration of aging and infirm people in prison so that they are the ones exposed to healthcare scandals.

The problem we had to solve was a bloated correctional apparatus, whose provenance was decades-long oversensitivity to victim pressure groups advancing a monolithic vision for alleviating their plight: Monstrous sentencing policies. The solution we’ve devised for COVID-19? Anticipate the sensitivity and address it by avoiding releases of people convicted of violent crime.

The problem we had to solve was a “correctional free lunch”, in which people in the community were largely unaware of the costs of our correctional system because these were concentrated in large facilities in rural and remote areas. The solution? Now we encourage community-prison alienation through jurisdictional jockeying for position between county health officers and the prisons that are literally located amidst these counties and irrational fears that releasing people will infect the community (the opposite is true: incubating the disease in prisons is much more risky for communities.)

As we’ve seen in the COVID-19 release plan (before and after its implementation), and just like homeopathic formulas, diluting the problem results in obtaining a placebo at best, and a worsening of the problem at worst. The logic of the Law of Similars is supposedly an appeal to the idea of a “natural law” principle, but actual science refutes this: what makes sense is to treat an ailment with an antidote, not with a diluted version of the same ailment. The antidotes are obvious to me: Thin out the monster by locking fewer people up in fewer places. Do not lock up aging, sick people. Give victims/survivors better roles than the world curators of what should happen to offenders.

Which brings me to why I think the analogy matters. As I’ve explained elsewhere, I don’t think this is some evil, sadistic ploy at work here. I think what’s stopping state and prison officials from applying the antidotes is institutional intransigence and fear. Homeopathy itself was borne of Hahnemann’s disgust with the medicine practiced during his era: bloodletting, leeching, purging, etc. By contrast to these harmful measures, the delicacy of the diluted solutions was mellow and reassuring. Here, too, there’s immense fear of what would happen if drastic measures were taken. I saw this logic at the recent federal Plata hearing (though, admittedly, the PLRA plays an important role here, too) and also at the two state courts. We don’t like drastic solutions and purging; better to drink a Bach Flower distillation.

Ashley Rubin’s forthcoming book The Deviant Prison looks at why the Pennsylvania incarceration model, practiced at Eastern State Penitentiary, persisted long after it was proven not to work. I see the same form of institutional obstinance at work here. And, by contrast to Eastern State, this is perpetuated because homeopathic criminal justice reform has become the habitual, accepted mode of doing things. It might be sobering to realize that homeopathic preparations are the only category of alternative medicine products legally marketable as drugs. Quackwatch explains that this situation is the result of two circumstances. First, the 1938 Federal Food, Drug, and Cosmetic Act, which was shepherded through Congress by a homeopathic physician who was a senator, recognizes as drugs all substances included in the Homeopathic Pharmacopeia of the United States. Second, the FDA has not held homeopathic products to the same standards as other drugs. Today they are marketed in health-food stores, in pharmacies, in practitioner offices, by multilevel distributors, through the mail, and on the Internet. I think that our habituation to homeopathic criminal justice reform has created a similar situation, where we are willing to accept these placebo solutions because the ideas that drive both the problems and the solutions have been so hammered in, that we can’t imagine anything else.

Nov. 2020 Ballot Endorsement: No on 20

Many Californians don’t know that our state Constitution requires that any voter initiative have a single subject: “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” You wouldn’t know this from looking at our convoluted, confusing, oft-misleading propositions because, as my colleague Mike Gilbert explains here, the rule is very difficult to enforce.

Prop. 20 is an example of a voter initiative that quite possibly violates the single subject rule. It bundles together four different issues under the general “tough on crime” umbrella. While I find at least two of them deeply objectionable on the merits and have serious problems with the remaining two, what really irks me is the marketing: law-and-order supporting folks are being lobbied to vote for things which are, frankly, untethered from reality, simply because they are ideologically bundled with other stuff that belongs on that side of the political map. My message to everyone, from ardent law-and-order people to rabid abolitionists: Vote no on this stupid package.

The first item in the package is the introduction of two new theft crimes. Background: In 2014, California voters approved prop. 47, which changed the designation of several theft-related offenses from felonies to misdemeanors. This is how we’ve been able to achieve the Plata-mandated prison reduction with no increases in crime rates. Prop. 20 proponents would have you think this is a bad thing, and to remedy our apparent shortage of theft crimes, you’d now have two new wobblers: “serial theft” and “organized retail theft.” “Serial theft” would be shoplifting or petty theft for someone with two prior theft convictions (because apparently we’re hurting for habitual offender enhancements, too.) “Organized retail theft” would be shoplifting or petty theft in concert with other people two or more times within six months. Both of those crimes will be punishable either as felonies or as misdemeanors. Theft, and various theft-like offenses, are still crimes in California, as they’ve always been, and the $250 limit placed by Prop. 20 is way lower than inflation would allow for (just to give you an idea, in 2014 we raised the minimum amount for grand theft to $950.)

The second issue is another effort to fix something that isn’t broken–Prop. 57, which California voters approved in 2016. Under Prop. 57, people convicted of nonviolent offenses with “enhancements”—special provisions that add years to their basic sentences, for example, because of prior convictions—come up before the parole board at the end of their basic sentence, and the parole board may recommend their release after considering their criminal history and behavior in prison. Proposition 20 would change the designation of some offenses from “nonviolent” to “violent”, to make some people ineligible to come up before the parole board, and would create a waiting period of two years before people denied parole under prop. 57 can come up before the Board again. It would also add restrictions to parole board considerations. I’m going to humbly suggest that parole in California is something I actually know a little bit about and tell you that this is absolute nonsense. Getting out on parole in CA is extremely difficult, parole hearings are Kafkaesque, and the last thing we need is pile more difficulties in the path of people who pose low reoffending risk. To appeal to people for whom the word “victim” is a talisman for righteousness, they threw in the need to consult with victims, but guess what: victims are ALREADY NOTIFIED of Prop. 57 hearings, and if they want to get involved, they get registered with the state. This proposition would drag into the punitive rhetoric net even victims who are not registered with the state. For what purpose, if these folks themselves are not interested in participating?

The third part of Prop. 20 would expand our DNA collection practices. Currently, California collects a DNA sample from people arrested or charged with felonies. If Prop 20 passes, DNA samples will be collected from people who are under arrest for certain misdemeanors. Many people have qualms about expanding DNA databases, on account of the mistakes that can happen. I suspect that, in the aftermath of the successful DNA-based prosecution and conviction of the Golden State Killer, this is not going to be super persuasive; I also submit to you that DNA databases have the potential to clear and exonerate, not only to convict, and I would therefore be willing to entertain pros and cons of this part of Prop. 20 if it came to us on its own, without the other issues. As it is, it’s not worth the price and expense of reversing two highly beneficial initiatives that reduced incarceration without risk to public safety, so I’m still firmly on the “no” side.

Finally, Prop. 20 also involves various changes to community supervision of people released from prison or jail. Currently, people released from jail, or from prison for nonviolent or nonserious crimes, are supervised in their counties. If Prop. 20 passes, probation officers will be required to ask a judge to change the terms of supervision if the person under supervision violates them for a third time. In addition, the proposition requires state parole and county probation departments to exchange more information about the people they supervise. In community supervision matters, it’s all about the details, and these are technical issues that are unsuitable for resolution via a yes/no political referendum.

The complicated structure of Prop. 20 makes it difficult to estimate the expense involved in its implementation. Because the proposition overall would lead to more and longer incarceration—more severe crimes, less opportunity for parole—there would be cost increases associated with it. The only silver lining here, and this tells you something, is that a sane court will find that the two first aspects are unconstitutional and strike them down, which will mitigate the expense of incarceration (but require litigation.) In other words, if it ain’t broke, don’t fix it. Vote No on 20.

New Outbreak at CIW: Van Houten’s Fate in Gov. Newsom’s Hands

After a spike in early June and an apparent abatement, COVID-19 is once again tearing through the California Institute for Women (CIW) in Chino. In the last 14 days, the prison tested 1,200 of its 1,413 residents (housed in a facility designed to hold 1,398 people – slightly above 100% capacity.) The testing count on the tracking tool seems to suggest testing done in batches, but we don’t know how they are managing isolation in a crowded facility–hopefully not taking a page from the book of this women’s prison in Texas.

CIW is of special interest to me, because a few days ago we learned that Leslie van Houten, who is serving her sentence there, has been yet again recommended for parole. Van Houten has been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what seems to me, after having pored over 50 years’ worth of her prison record, purely political reasons. 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 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.

I mention van Houten’s case because it is emblematic of the dilemma that Gov. Newsom faces with countless other cases. The right thing to do is to release older prisoners, who are more vulnerable to the virus; these people, who serve long sentences, are serving them for violent crimes they committed decades ago. Everything we know about life course criminology supports the prediction that they pose no risk to public safety–they themselves face a risk by remaining behind bars.

In Yesterday’s Monsters I explain how the Manson family cases came to shape California’s extreme punishment regime, and how these cases were impacted by this new regime in turn. This is the chance for a politician who has consistently ran, and prevailed, on a platform of doing the right thing in the face of baseless political pressures. There is no ambiguity about the right thing to do now. Van Houten is 70 years old, has been consistently found to pose very low risk to public safety by actuarial instruments and by everyone who has interacted with her, and there’s a pandemic going on.

Van Houten is not the only person at CIW facing these risks. Just a few days ago, advocates were overjoyed to welcome home Patricia Wright, a 69-year-old cancer patient who doctors say has mere months to live, after she served 23 years in prison. Wright’s release encouraged me, given the infuriating and heartbreaking scene just eleven years ago at Susan Atkins’ last hearing. Perhaps the pandemic is driving home, finally, the message that allowing an older person to die at home with their loved ones, or live out in peace the few years they have left, is not a weakness, nor a slight to the victims. Perhaps it is driving home the message that compassion is an essential component of our humanity. Will Gov. Newsom choose to do the right thing for van Houten and other women at CIW, from both public health and public safety perspectives, or will he succumb to unfounded public pressure, hysteria, and fear?

How to Reduce California’s Prison Population by 50%

Today’s Chronicle features a great article by Bob Egelko, which tries to parse out who is responsible for the San Quentin catastrophe. Getting into the chain of command that made the botched transfer decision might come in handy at a later date, I think, when the time comes to file the inevitable (and more than justified) lawsuit. But, as I said in the article, the time to squabble over who’s at fault has not come yet. Right now we must have all hands on deck, including Gov. Newsom, Mr. Kelso, and Mr. Diaz, making prison releases their absolute top priority.

By now, regular readers of my COVID-19 prison crisis posts know that Gov. Newsom’s plan to release a mere 8,000 people over the course of the summer will not suffice to curb infections, illnesses, and death in prison. You also know that, at least with regard to San Quentin–an antiquated facility that lacks proper ventilation–the physicians at AMEND recommended an immediate population reduction by 50%. But how is it to be done?

The #StopSanQuentinOutbreak coalition, and the Prison Advocacy Network (PAN) have useful, well-researched answers, which are encapsulated in the lovely infographic above. Here are the coalition’s demands, and here’s the PAN page offering legal resources and pathways to release. I want to spend this post getting into the particulars. Before doing so, though, I need to explain a few important things.The Prisoner Advocacy Network has a list of pathways to release.

A lot of the categories in Newsom’s current release plan make sense and show evidence of public health thinking. They are considering age, medical condition, and time left on people’s sentences. The problem with the categories is that they are unnecessarily restrictive, and I think the restrictions can be attributed to two hangups that many people, including well-meaning, educated folks, share about prison releases: the fear that releasing a lot of people is going to be hugely expensive and the hangup around the violent/nonviolent distinction. So let’s tackle these two first.

Get over the hangup of re-entry costs. You may have read that BSCC is considering offering $15 million to CDCR, and might wonder how we can possibly pay for housing, temporary or permanent, of tens of thousands of people. Of course this is going to cost money; the question is, compared to what. It may shock you to learn that, in the 2018/2019 fiscal year, the Legislative Analyst’s Office estimated that the average cost to incarcerate one person in California for a year was $81,502 – more than a $30k increase since our recession-era prison population reduction in 2010-2011. How much does it cost to help such a person for a year, when their healthcare is funded by Obamacare, rather than by CDCR? Here’s a PPIC report from 2015 detailing alternatives to incarceration. Specifically with regard to COVID-19-related reentries, here’s another great infographic detailing what the needs are going to be. The big one is housing, and there are organizations on the ground that are set up to help with that. Even with transitional housing costs, this does not add up to $80k per person per year.

Get over the hangup of making the violent/nonviolent distinction. I am still seeing lots of well-intentioned folks who read Michelle Alexander years ago tweeting about how ending the war on drugs (with or without the hashtag), or focusing on so-called “nonviolent inmates” is the key to fighting this outbreak. I can’t really fault them for this misapprehension–what I can do is repeatedly present you with facts to correct it.

Take a look at the graph below. It comes from CDCR’s population data points from 2018. You will note that the vast majority of people in California prisons are serving time for a violent offense. Drug convictions are the smallest contributors to our prison population (this is of course not true for jails or for federal prisons; I’m talking about the state prison system.) I know we all love to say “dismantle” these days, but dismantling the war on drugs will do very little to reduce state prison population.

Now, take a look at CDCR’s Spring 2020 population projection. What you see in the diagram below are the reductions in population since 2010, and some projections for the years to come. The two big reductions were in 2011, following the Realignment, and, to a smaller extent, in 2015, following Prop. 47. Both of those propositions diverted drug offenders to the community corrections systems–jails and probation. If you care about the injustices of the war on drugs, your heart is in the right place, but this is simply not the most dire problem we are facing in the context of prison population reduction.

It is easier to talk about drugs and nonviolent offenders, because these are typically categories of people that evoke more sympathy from the press. My colleague Susan Turner at UCI has shown that risk assessment tools, when used properly and carefully, yield dependable predictive results, and these are not correlated with the crime of commitment. Because we were so married to the idea that only nonviolent folks need help and public support, our three major population reduction efforts–Realignment, Prop 47, and Prop 57–missed the mark on getting more reductions for little to no “price” of increased criminal activity. Whenever you see a headline lambasting the Governor or the Board of Parole Hearings for releasing a “murderer,” immediately ask yourself the two relevant questions: (1) How old is this person now, and (2) how long ago did they commit the crime? The answers should lead you to the robust insights of life course criminology: People age out of violent crime by their mid- to late-twenties, and at 50 they pose a negligible risk to public safety. Moreover, what a person was convicted of doesn’t tell you a full story of what their undetected criminal activity was like before they were incarcerated. Take a look at the homicide solving rates in California, as reported by the Orange County Register in 2017–a bit over 50%–and ask yourself whether the crime of conviction is telling you a story with any statistical meaning.

In short, my friend, take a breath, let go of your attachment to the violent/nonviolent distinction, and let’s find some real solutions. The #StopSanQuentin coalition has a more in-depth breakdown to offer. Generally speaking, the legal mechanisms to achieve this reduction were identified by UnCommon Law in their letter to the Governor–primarily, early releases, commutations, and parole. Section 8 of Article V of the CA Constitution vests the power to grant a “reprieve, pardon, or commutation” in the Governor. The Penal Code elaborates and explains the process. Section 8658 of the California Government Code provides an emergency release valve: “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution.  He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.  the Governor has the authority to grant mass clemencies in an emergency.”

To begin, there are some bulk populations which, if targeted for release, can deliver the kind of numbers we need to stop the epidemic. These three populations largely overlap, which might make it easier to tailor the remedies to capture the right people. About half of the CDCR population are people designated “low risk” by CDCR’s own admission. CDCR uses risk classification primarily for housing purposes, and their methodology–as well as their practice of overriding their own classification–have been found by LAO to be in dire need of overhaul. LAO and other researchers believe that CDCR’s use of the “low risk” category is too restrictive, and their exceptions to their own classification come from hangups around issues of crime of commitment. This chart from the LAO report tells a useful story: Most of our prison population is doing time for violent crime, and a quarter of it is 50 and older; given the length of sentences for violent crimes, and the fact that a quarter of CA prisoners is serving decades on one of the “extreme punishment trifecta” of sentences (death, LWOP, or life with parole), it’s not difficult to figure out where the older, lower risk people fit in.

Between a quarter to a third of the prison population, depends on how you count: People who have already served a long sentence. This is the time to question the marginal utility of serving a few more years after being in prison for decades. According to the Public Policy Institute of California, About 33,000 inmates are “second strikers,” about 9,000 of whom are released annually after serving about 3.5 years. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Approximately 33,000 inmates are serving sentences of life or life without parole. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

23%: People Over 50. Not only does this population intersect with lower criminal risk and higher medical risk, it also correlated with cost. According to the Public Policy Institute of California and Pew center data they cite, in fiscal year 2015 the state spent $19,796 per inmate on health care–more than thrice the national average.

To this, we can add a few smaller populations, numbering a few thousand each. Let’s start with people on death row and people on life without parole, who have been exempted from pretty much any release valve possible. The Governor has the authority to commute both of those sentences to life with parole today, and this is probably the right course of action anyway, pandemic or no pandemic. We have a moratorium on the death penalty, which means no one is getting executed but we are still paying for expensive capital punishment litigation. Cut out the middle man and shift all these folks to life with parole. I talk about how these three sentences are indistinguishable anyway in Yesterday’s Monsters, chapter 2.

There are also, apparently, a few hundred people still incarcerated who have been recommended for parole and approved by the Governor–coalition members have identified a few dozen in San Quentin alone. If these people have been given the green light to be released, why are they still behind bars? As for people who have been recommended for release and still awaiting the Governor’s authorization, now’s the time to expedite that.

Finally, lifting the offense limitations on people from outbreak epicenters, people with medical conditions, and the like, should expand those numbers considerably, given the significant overlap between crime of commitment, length of sentence, age, and health condition.

My point is that all of this is eminently doable, and there would hardly be any downsides. If we can just let go of the tendency to view only one side of the cost equation, and of our hangup about the nonviolent/violent distinction, we can scale up the proposed release plan to the point that it will be effective. Let me end with this thought: Gov. Newsom announced that the goal is to reduce San Quentin population to close to 100% of design capacity. In a sane world, prisons that are at 100% occupancy are not a goal. They are a starting point.

August 14 Update: Jason Fagone has a gorgeous piece in today’s Chron explaining how we could achieve a 50% reduction today, with negligible impact on public safety.

Yes, We *Have* to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins

Manson follower Susan Atkins loses 13th attempt at freedom -- and ...
Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,
James Whitehouse. Photo credit: Ben Margot for the Associated Press.

Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (TL;DR “we are not the appropriate forum for this – go to the original courts.”) As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn’t.

In the aftermath of putting up my petition to release prisoners, I’ve been hearing commentary that we should limit the releases to “nonviolent criminals.” I use the quotation marks because the definitions of what is and is not “violent” and “nonviolent” is not as clear as people think, and because someone’s crime of commitment is not necessarily an indication of their violent tendencies at present, nor does it predict their recidivism.

In Cheap on Crime and elsewhere I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though–as this excellent Prison Policy report explains–is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.

In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.

The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one’s health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and therefore far less of a public risk of reoffending than a younger person who’s been inside for a few months for some nonviolent offense.

So, if there’s any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it’s time to look in the mirror and ask ourselves – why?

Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.

So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of “reward” for people who we think are “worthy” or “deserving”?

The correctional system’s ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday’s Monsters I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins–a devout Christian with a clean disciplinary record for decades–was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.

The Parole Commissioners’ treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation “prospect.” They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:

For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.

The Parole Board refused to release Atkins, arguing that “these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group.” Atkins, who had no ability to do anything at all, died alone in prison a few months later.

If this outcome feels okay to you, ask yourself: what’s it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death?

Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you?

And if your answer is, “well, they didn’t consider that when they killed their victims, right?”, I have news for you: The victims are not coming back. They’ve been gone for decades. It’s horrible, and tragic, and we can’t fix that. Certainly not with another tragedy.

Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.

Release Party for Yesterday’s Monsters

Hi, Dear Readers! My new book Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole is out from UC Press and I am inviting you to celebrate!

When: Wednesday, March 11

Where: Manny’s, Valencia & 16th

What:

In 1969, the world was shocked by a series of murders committed by Charles Manson and his “family” of followers. Although the defendants were sentenced to death in 1971, their sentences were commuted to life with parole in 1972; since 1978, they have been regularly attending parole hearings. Today all of the living defendants remain behind bars.

Relying on nearly fifty years of parole hearing transcripts, as well as interviews and archival materials, Hadar Aviram invites readers into the opaque world of the California parole process—a realm of almost unfettered administrative discretion, prison programming inadequacies, high-pitched emotions, and political pressures. Yesterday’s Monsters offers a fresh longitudinal perspective on extreme punishment.

Book reading, signing, parole reform, food, drink!

RSVP HERE!

Nonexistent Reentry in CA: When People Are Duped Into Thinking It’s All Their Fault

The opening chapter of Foucault’s Discipline and Punish compares two penal scenes: the drawing and quartering of a regicide and a drab scene from a discipline-heavy juvenile facility, 80 years later. These scenes are emblematic of the change Foucault sees in punishment: from centralized to decentralized, from a “festival of punishment” to drab things behind closed doors, and most importantly–from body to soul. I read this stuff for the first time about twenty years ago, and its enchantment has worn off; I’m pretty clear on the fact that the move from corporal punishment to incarceration was overall a good one. But there are some days when the “soul” element of punishment is especially hard to stomach, especially when it consists of selling justice-involved people the lie that the only cause for their miseries lies in their own action.

I was outraged, albeit not surprised, to read this distressing exposé on Mother Jones. The gist of it is that our enthusiasm for early releases has not been matched by an enthusiasm to actually help people get on their feet after they are released. It opens with a typical–and horrendous–story:

After 15 long years behind bars, Terah Lawyer needed to show the parole board she had somewhere lined up to live. She landed a spot in a facility on Treasure Island and was so grateful to be out that at first she didn’t mind being forced to spend dozens of hours a week in treatment classes for a substance abuse problem she didn’t have, and in fact, as a drug and alcohol counselor, was certified to teach about. But quickly, the program’s strict schedule and tough restrictions, like lockdowns on holidays and limited free time, got in the way of adjusting to real life. Before she left prison, she’d worked hard to secure a job with the California Coalition of Women Prisoners, but her facility’s rules forced her to delay her start date three months, and she lost the opportunity. Most painfully, the program’s structure made it hard to visit with her parents, who lived a couple hours north in Sacramento.  

Once she was finally able to start working, she’d leave the house at 7 a.m., work a full day, and get back in time for the hour-and-a-half class at night. “I was required to still bring in 21 hours of treatment classes in order for me to get my weekend passes to go home, to go shopping, to go out with family or friends, to do things that are considered freedom,” she explains. “It was really difficult being able to hold down a full-time job, which is thankfully now giving me an income, and also meet the program’s requirements of classes that I didn’t even need in the first place.”

Lawyer’s experience reminded me of participant observations I did at the Peer Reentry Navigation Network (PRNN), a group of former lifers now making a life for themselves on the outside that meets monthly in San Francisco, run jointly by an activist who is formerly incarcerated and by a parole officer. The day I was there, everyone talked about housing. In Yesterday’s Monsters I described the conversation:

After a round of advice and information about housing and smartphone tutorials, Cara, a young woman, steps to the front of the room to facilitate an activity. She distributes blank pages and invites attendees to draw a picture frame on the page. She then asks us to write or draw a picture of what success means to us. We work in silence, occasionally sneaking a peek at our neighbors’ work and smiling at them. Cara then invites the audience to share. “Being able to provide for my family.” “Having a job, a stable place to live.” “Finding someone to love and someone who loves me.” One woman shares, “I want two dogs and a Mercedes.” Cara laughs. The woman jokingly adds, “What? You wanted us to define success. Well, that’s what success means to me.”

Then Cara gives us the “bad news”: If you are not actively working to direct your life toward those goals, then perhaps you don’t really want them. For example, she says, if you want to save enough money for a down payment on a house but you end up buying shoes and flashy outfits, then maybe you are not really that driven to be a homeowner. You must pursue your goals with real ferocity, she says.

For many of the people in the room, homeownership in aggressively gentrified San Francisco is a pipe dream. Since the rise of the tech industry, housing in the city has become prohibitively expensive, both for owners and for renters. Even so-called low-income housing requires a considerable income, as well as jumping through multiple bureaucratic hoops. Joe acknowledges these difficulties but encourages attendees to overcome them. “If you want to apply,” he says, “I will help you. We’ll work on your applications together.” It might take sixty applications, he says, but eventually one will succeed. 

My ambivalence grows. On one hand, I admire the spirit of enterprise, mutual aid, and community strength in the room. I recognize the importance of self-focused success and of belief in free agency. On the other, I’m sure that my fellow attendees have learned all too well in the course of their lives that, despite their best efforts, the reentry deck is heavily stacked against them. I recall Alessandro de Giorgi’s recently released subjects who attributed their immense difficulties and abject poverty to their own failings rather than to the systemic difficulties that stood in their way.

There is something maddening about people being led to be convinced that their own flaws are the only thing standing between them and their dreams, but that very message is what the so-called prison rehabilitation apparatus, and particularly the parole hearing process, tries to sell people on a regular basis. When my colleague Alessandro de Giorgi interviewed formerly incarcerated people who faced acute misery at the very bottom of Maslow’s hierarchy of needs (no home; no job; no food), he was struck by how much they attributed their poverty, squalor, and dire need to their own flaws. He explains:

Today, whatever minimal services are available to former prisoners are provided mostly through the non-profit, faith-based, semi-private sector, what Jennifer Wolch (1990, 201) has aptly defined as an emergent shadow state: a “para-state apparatus with collective service responsibilities previously shouldered by the public sector, administered outside traditional democratic politics, but yet controlled in both formal and informal ways by the state.” In this framework, highly individualistic and market-friendly solutions are systematically proposed as the only answers to a broad range of structural obstacles faced by formerly incarcerated people: At every turn in their trajectories through the carceral state, from arrest to reentry, criminalized people are taught that success or failure is entirely dependent upon their own efforts.

But here’s the really depressing bit:

Despite the weight of the structural circumstances they face, the participants to this research appear to have internalized the neoliberal narrative of personal responsibility that is constantly inculcated in prisons, rehabilitation centers, and reentry programs (see also Gowan & Whetstone 2012; Miller 2014; Werth 2012, 2016). They wholeheartedly embrace the dominant rhetoric of free choice, as well as hegemonic definitions of social deservingness and undeservingness. 

In other words, de Giorgi’s subjects themselves believe that the ills that they face when they reenter are their own fault, because they don’t deserve better, and do not seem to see any institutional problem here (when he presented this piece at our Carceral Studies Workgroup, he astutely observed that people do have racial critiques a-la-Michelle Alexander, but not an understanding of class.)

In Yesterday’s Monsters I saw this propaganda apparatus at work: people who see their crimes in a broader social context are chastised for “minimizing.” Here’s an example from the book, in which Patricia Krenwinkel, in the 1980s, tries to frame her crime in the context of the sixties:

It came up about ’65. It was the beginning of the marches. It was the beginning of the civil rights movement. It was the beginning of all the movements of the late sixties, which eventually involved entering the war. . . . I found that I couldn’t seem to find my bearings in this world at that time. . . . I couldn’t seem to find where there was any, on my own—seem to find any reinforcement for doing anything other than kind of letting myself go with the time of what at that time was tune-in and drop-out, as Timothy Leary so put it. I mean, it’s hard to say. There were so many components. I was a child of the sixties. And there definitely is something to be said about the sixties. It was an incredible time in the period of our history. It’s something that I look back on and I see, because there’s thousands of people out there that were not much different than myself.

The prosecutor, Stephen Kay, responds with an astounding lack of empathy and contextual comprehension:

I feel that it’s kind of hard for me to accept Miss Krenwinkel’s statement that she was a child of the sixties, and there were thousands of others like her out there in the sixties. I myself went to law school at Berkeley during the time of Mario Savio and could observe some of these children of the sixties. And they characterized themselves as flower children. Their slogan was “make love, not war.” They weren’t into murdering people.

Pretty much any reasonable criminologist you’ll meet will tell you that crime is a combination of personal and environmental factors (including what gets defined as crime.) How much of each gets poured into the mix varies across crimes; this is why talking about both drug use and violent assaults as “crime” can be confusing. But you’d have to be extremely naive to assume that crime doesn’t have an ontological existence (some abolitionists in the 1970s advanced this view), just as you’d have to be pretty obtuse and cruel to assume that crime is entirely a function of personal pathology. If it were, why are poor people overrepresented in the criminal justice apparatus?

A lot of the highfalutin’ critical criminology from the last few years uses the term “neoliberalism” to mean a hypercapitalist, highly privatized environment in which people are expected to take responsibility for themselves, with no welfarist contribution from the state. Kicking people out of prison to fend for themselves without any veritable programming designed to put them on their feet–and with an astonishing paucity of solid vocational training behind bars in preparation for life outside–is a manifestation of this neoliberal ideology, and what’s more–this mentality is successful and pervasive because it dupes not only the professionals who administer it, but also the people who are subjected to it. 

Film Review: Once Upon a Time in. . . Hollywood

Once Upon a Time in Hollywood

I just came out of a screening of Quentin Tarantino’s new movie Once Upon a Time in. . . Hollywood, which I somewhat dreaded watching as an expert on the cases. My own forthcoming book about the Manson family, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole, has made me somewhat leery of Mansonsploitation, of which there is plenty as far as the eye can see. Because of the tendency to turn the tragedy of the murders (and the tragedy of five decades of incarceration that followed) into a spectacle, I decided early on I don’t want to make a cent off of the book – all royalties are going to an organization that provides parole representation for indigent lifers – and commercial enterprises centered on the story of the murders give me the creeps.

But Tarantino’s movie is not a spectacular recreation of the murders; in fact, it is a wise, almost lyrical, reflection on their cultural legacy. The main protagonists of his story, actor Rick Dalton and his stuntman Cliff Booth, live a reality adjacent to that of Polanski and Tate, Dalton’s next-door neighbors We see both men confronted with turning points in their professional lives: aging out of acting, aging out of stunts, the importance of career, what does excelling in one’s trade/art mean, big questions for thoughtful and flawed people. DiCaprio and Pitt are at the top of their game, both painting human, sympathetic, charismatic characters, and the movie is full of poignant, moving, and important glimpses into their inner worlds without becoming heavyhanded. The gentleness and nuance with which the two act their roles, and with which Tarantino paints their inner feelings, stands in contrast to the Spaghetti Western world that Tarantino has picked as a foil for the story. Truly a masterpiece.

But I watched the movie not just as a movie, but as an American phenomenon – a commentary on events that changed the course of American history, politics, and criminal justice. The movie is set around two axes of real history: the weekend in February in which Manson stops by the Polanski/Tate residence looking for Terry Melcher (the previous occupant) and the infamous weekend in August. Because we all know what happened in real life, a sense of malaise and foreboding accompanies our glimpses of Sharon Tate, wonderfully portrayed by Margot Robbie, as she lives out a hopeful, sunny existence expecting her child.

Much has been made of Robbie’s few speaking lines; I don’t see her role as diminished because she is not fully fleshed out as a character. Rather, her portrayal looks at her as the symbol she would come to embody – the quintessential California victim: a beautiful, famous, white woman about to give birth to a beautiful, famous, white child. Her joie-de-vivre around town–buying a book for her husband, watching herself on film and enjoying the joy she inspires in her fellow moviegoers, her delight in her friends–is palpable. Even Steve McQueen’s commentary about her and Sebring–their enduring friendship after their breakup–does not taint her wholesomeness. We watch and dread, because we know the only thing that can kill pure, untainted good is pure, uncompromising evil. And we brace ourselves.

In Yesterday’s Monsters I go into the way the narrative of the murders has shaped the California correctional landscape: because the crimes came to be seen as sui generis evil, they were the catalyst for the return of the death penalty; for the creation of life without parole; and for the dramatic changes in parole proceedings, including the gubernatorial veto right. In doing so, California fashioned what I call in the book the “extreme punishment trifecta” – its three most extreme punishments have come to be virtually indistinguishable from each other, creating a regime of interminable incarceration.

The reason these crimes were so instrumental as a rhetorical device in these developments is that the narrative around them was largely shaped by Vincent Bugliosi in his classic book Helter Skelter. As many of Bugliosi’s readers will attest, the book very intently and aggressively promotes a narrative of the crimes as bizarre and apocalyptic, focusing on Manson’s indoctrination of his followers into believing in a race war and helping jump-start it. While this story is not wrong, it is a truth that obscures other truths. The Manson family was a cult, though it was not understood as such until the mid-1970s, when our awareness of brainwashing and cults arose in the context of similar groups. And as a cult, it exploited–physically, psychologically, and sexually–its members, most of them adolescent girls. The crime also had the markings of an “ordinary criminals” crime, with a drug-deal-gone-wrong background (the narrative that Jeff Guinn exposes in his excellent Manson biography). For legal reasons, Bugliosi had to highlight the bizarre and obscure the ordinary. It’s quite possible that a similar crime tried today, through the prism of #metoo sensibilities, would see the girls as victims, not as perpetrators.

What is unique about Tarantino’s portrayal of the Manson family is that he manages to pack into the movie complexity and ambiguity. Manson appears in a brief scene in the middle of the movie, and is unremarkable, almost pathetic. We meet the rest of the family through the eyes of Cliff, the stuntman, who gives one of the girls a ride to Spahn Ranch. There, he encounters a scene that is at once pathetic and menacing. That not all is well at the ranch is obvious to Cliff, and he proceeds to check whether his old friend from his moviemaking days, George Spahn, is well. He is not entirely convinced that is the case, and has some disturbing run-ins with the scrawny, suspicious teenagers around him. The only violent incident happens with “Clem” (Steve Grogan), who is portrayed as small change. Tex Watson is portrayed as menacing and dangerous, but strikes out with Cliff. And throughout the whole scene, Tarantino creates a wonderful sense of duality between the young hippies’ quasi-military readiness and guardedness against the stranger and the obvious squalor in which they live. You are left with the feeling that Tarantino, as opposed to Bugliosi, knows that you are an adult, and let’s you form your own mind about these people and the danger they portend.

Even the eventual depiction of the disturbing night packs some surprises. It’s hard to fully describe them without ruining some classic Tarantino moments, which I might get to at a later time, after many more of you will have seen the film. But I will mention that, even in the most threatening and scary moments leading up to the home invasion, there are moments of “ordinary criminals”, moments of “cult”, and moments of “Helter Skelter”, though the latter are subdued and barely hinted at. Again, the viewers are treated with respect, left with autonomy to form their own impressions of the group, and free to comprehend the murders through the eyes of complex, adult fictional characters. Laudable choices all around.

Finally, Tarantino and the entire crew is to be congratulated for making a movie that creates a perfect sense of time and place. The songs, the design, the cars, the atomsphere, are so alive around the characters that they provide a solid presence for understanding the crimes. The chaos of the sixties, the class clashes, the unrealness of the movie industry and its dark underbelly, do not, of course, justify violence, but they place it in the context of the late sixties–a time and place so fundamental to the real and fictional events and so lacking from the parole hearings I analyze in Yesterday’s Monsters. As I explain in the book, any effort by the inmates (by now people in their sixties, seventies, and eighties, very different from the squalid teenagers in the movie) to place their actions in the context of time and place is disparaged by the parole board as an effort to “minimize” accountability and as “lack of insight” about their culpability; Tarantino’s movie is a reminder that these particular crimes could only have happened in this particular time and place. It is not an excuse; it is a deep understanding that matters for a culture still obsessed with the crimes and their aftermath.

In his book about the cultural impact of the Manson murders, Jeffrey Melnick critically analyzes the assertion that Manson “killed the Sixties”. Tarantino has brought the Sixties back to life as never before, and you will not know exactly how until you watch this gem of a movie. And after you see it, let’s talk about it.

Yesterday’s Monsters Coming Early 2020

I’m very excited to let you know that Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole is already in production and coming out early 2020 from the University of California Press. You are welcome to like the book’s Facebook page for news, updates, links to related media, and book release events. I very much hope that the book will open a window into the little-known world of the California parole process and look forward to the conversations that will ensue.