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

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


INTRODUCTION

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

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

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

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

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


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


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

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

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

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

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

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

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

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

OKLAHOMA: CHEMICALS AND INNOCENCE

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

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

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

CALIFORNIA: DEATH BY MORATORIUM

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

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

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

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

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

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

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

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

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

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

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

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

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

WHAT DEATH PENALTY EUTHANASIA MIGHT LOOK LIKE

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

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

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

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

NOTES


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

25 Bavli Hagiga 16:2.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arresting Folks with Unsettled Lives

I recently came across an interesting Fourth Circuit case dealing with a situation that is probably quite common: what sort of constitutional protection do people have when their living situation is not clear-cut?

According to Fourth Amendment case law, the police need an arrest warrant in order to arrest A at home (Payton v. New York, 1980), but no warrant is necessary to arrest A in public (U.S. v. Watson, 1976). But there is a third situation: what to do when A is in B’s home? Under Steagald v. United States (1981), an arrest warrant is necessary but not sufficient in this situation: the warrant protects A against unreasonable deprivations of freedom, but does not protect B against the invasion of their premises. So, to arrest A at B’s home, the police need to have two documents in hand: an arrest warrant for A and a search warrant for B’s home (with A listed as the person to be seized therein.)

This is all fine. But it turns out that some people’s situations do not map neatly unto this framework. Enter U.S. v. Brinkley (2020), a 4th Circuit case dealing with a not uncommon person with an outstanding warrant: the international man of mystery with a woman at every port.

Law enforcement agents formed a federal-state task force to execute an outstanding arrest warrant against Brinkley. ATF Agent Murphy received intelligence of two possible addresses for Brinkley, one on, let’s say, Oak Street, and one on, let’s say, Elm Street. Because the water bill for the Oak Street address was in Brinkley’s name, Agent Murphy initially believed that address was Brinkley’s most likely residence.

Detective Stark from the local police force looked on the state law enforcement database and found that Brinkley’s many traffic citations were associated with several addresses. The newest citations referenced the Elm Street address, and Detective Stark reasoned that the older addresses were “probably family addresses” where Brinkley did not reside. He looked up Brinkley’s Facebook page and found pictures of Brinkley’s girlfriend, Marnie, who was also associated with the Elm Street address. Based on this information, Detective Stark concluded that Brinkley and Marnie lived together on Elm Street.

Detective Stark reported his conclusion to Agent Murphy, who came to agree that Brinkley probably resided in the Elm Street apartment. Neither officer was certain that they had uncovered Brinkley’s address, and Agent Murphy later testified that, in his experience, it was “common for someone like Brinkley… to have more than one place where they will stay the night.”

The next morning, Agent Murphy and Detective Stark went to the Elm Street apartment to conduct what both Agent Murphy and Detective Stark characterized as a “knock-and-talk” to “start [their] search for Brinkley.” The officers intended to “interview the occupants to find out if [he] was indeed there,” and to arrest him if he was. Agent Murphy acknowledged that he “had no idea if Brinkley was going to be there that morning,” but thought the Stoney Trace apartment was the “most likely address” to “find Brinkley or evidence of his whereabouts.”

Detective Stark knocked and announced, and after a few minutes Marnie, wearing pajamas, slowly opened the door. The officers could hear movement in the background. Detective Stark informed Marnie that the officers were looking for Brinkley and asked to enter the apartment. Marnie denied that Brinkley was there, and according to Detective Stark, she grew “very nervous”; her “body tensed” and her “breathing quickened,” and she looked back over her shoulder into the apartment. Detective Stark asked for consent to search the apartment and Marnie said she did not consent and asked to see a search warrant.The entire exchange with Marnie lasted a few minutes. Both officers testified that, based on Marnie’s demeanor, the movement they heard in the apartment, and the morning hour, they believed Brinkley was inside.

At this point, the officers decided not to follow the original plan to secure the area and wait to see if Brinkley left the home. Instead, Agent Murphy told Marnie that he believed she was hiding Brinkley and that the officers were going to enter the apartment to serve an arrest warrant on him. They walked around the apartment, found Brinkley in the bedroom, and arrested him. The officers proceeded to conduct a protective sweep to check for others hiding in the apartment. They did not find anyone else, but they did find several firearms and seized them.

On appeal from a conditional guilty plea, Brinkley argued that he did not reside on Elm Street and was there as Marnie’s guest, and that the officers’ warrantless entry was unconstitutional.

The Fourth Circuit sets up the problem as if it is about classifying Brinkley’s situation as a Peyton or a Steagald scenario. But what they actually end up doing is asking two questions that differ from each other. The first one is: how certain do the cops have to be that Brinkley both resides, and is currently present, at Elm Street to walk in there without a warrant? The Fourth Circuit panel concludes that the cops would need to have more than they did in order to walk into the Elm Street address with only an arrest warrant.

But the second question has to do with a different set of concerns: for a guy like Brinkley, who has four or five cribs in town, and lives an unsettled life, where is home? Do you forego the special protection that the Fourth Amendment awards to the home if you have several places you call sort-of-home? Do you have standing in each of these places? What makes home home?

BREAKING NEWS: In Blow to Netanyahu Government Agenda, Israeli High Court of Justice Restores Reasonableness Ground for Judicial Review

Today, the High Court of Justice published its 697-page decision (!), in which it granted the Movement for Quality Government and numerous other civil rights organizations a resounding victory against the Knesset and, especially, the Netanyahu government’s agenda to curb judicial review. By a 8-7 majority, the Court found that the amendment to the Basic Law, canceling the reasonableness ground for judicial review (a powerful tool for curbing government behavior that is technically lawful but makes no sense or excessively infringes on people’s rights), is invalid.

In a couple of days, I promise to provide a précis of the decision in English. For now, you can peruse the entire decision verbatim below.

Israel Crisis Q&A for US Audiences

What happened on Monday?

On Monday, Israel’s Knesset approved a basic law that prohibits judicial review of administrative and executive actions on the basis of “extreme unreasonableness.” In anticipation of this legislation, and the general plan to weaken basic democratic protections and civil rights guarantees, hundreds of thousands of Israelis walked, in high-90s temperatures, all the way to Jerusalem to protest. They were met with violent oppression by the police (high pressure hoses, horses trampling them) and some were injured. The protest continues, with millions of people out in the streets on an ongoing basis for the last 28 weeks.

How come I haven’t even heard about this?

Mainstream U.S. reporting on Israel is scant and of low quality, and most of what you hear would suggest that Netanyahu enjoys consensus and that all Israelis are in favor of this. The opposite is true–even people who voted right-wing are opposed to this governmental overhaul, and people have been in the streets nonstop for years now, and almost daily since this government assumed power.

Why are all these people so worried?

They know this is merely the opening shot in this government’s battle to weaken democratic protections. The planned judicial overhaul would also politicize judicial elections; undermine judicial tenure and independence; make governmental legal advisors into, essentially, personal assistants to their ministers; etc. This basic law is there to help usher in the rest of these reforms, as well as other outrageous legislation that is already in the pipeline. As Internal Security Minister, terrorist, and convicted criminal Itamar Ben Gvir tweeted on Monday, “the salad bar is open.”

Wait, back up for a minute. What is a basic law?

Israel does not have a written constitution. In the 1950s, efforts to establish one failed due to the irreconcilable differences between religious and secular legislators. A compromise was reached, according to which the Knesset would, from time to time, enact “basic laws” with an enhanced majority. In the 1990s, the Supreme Court awarded these laws a special, quasi-constitutional status, allowing the judiciary to strike down regular laws that contradicted basic laws. All laws that violate or undermine a principle in a basic law must entail minimal injury and be legislated “for an appropriate purpose.”

So what’s up with this “extreme unreasonableness” basic law?

Because Israel does not have the level of democratic control–through checks and balances, or through the constitutional review structures in places like the US–that other countries have, its courts could strike down executive decisions and actions that appear to be purely malicious or don’t make any sense. Now that this amendment is in the books, and enshrined as a basic law, supposedly any government action will be immune to judicial review provided that it is done under proper authority. For example, if a government minister chooses to uproot a Palestinian village, require all women in the office to dress a certain way and earn a quarter of what men earn, award jobs to unqualified people based on whims, etc., courts would not be able to do anything as long as the minister acts within their authority

Why would Netanyahu ram this amendment through? Does he not care at all about what the public wants?

Not even a little bit.

What does this government care about?

Israel has a coalition-based governance, which means that governments are put together out of various political parties that have different, and sometimes contradictory, values and interests, but they all benefit from being in power. In this particular case, what they all have in common is that they don’t care at all about the democratic culture of the country or its citizens (and certainly not the Palestinians.) Netanyahu chose this adventure for a simple reason: he is facing multiple charges of corruption. The offenses are serious and there’s plenty of evidence, and he could be serving years, or even decades, in prison. He will do anything and sell out to anyone to avoid that. These amendments will provide loopholes for him to escape criminal accountability. His partners, to whom he has sold out, are an assortment of convicted criminals (Arye Der’i, bribery; Itamar Ben-Gvir, terrorism); known homophobes (Smotrich, organizer of the Pride counterprotest “the beast march”); and theocracy-bound bureaucrats taking orders from the religious think-tank Kohelet Policy Forum (Yariv Levin, Simha Rothman.) What they want is a theocracy, consisting of Jewish supremacy; an annexation of the West Bank and elimination of any hope or reality of Palestinian independence; the denial of rights to Israel’s Arab citizens and other non-Jews; taking away rights from women and unconventional families; and shifting mountains of money from the tax-paying, military-service-performing secular people to the Ultra-Orthodox, who neither serve nor work or pay taxes.

How do we know that’s what they want?

They have been open about it since day one. Folks like Ben Gvir and Smotrich came into power explicitly to annex the West Bank, obliterate any hope of Palestinian independence, and grind to dust any hope of upward mobility for Arab Israeli citizens. All you need to do is look at the list of laws presented to the Knesset for approval yesterday, the day after they stripped judicial review: a law requiring compensation for “Torah students” to match that of people serving in the army, sometimes at great risk and sacrifice; a law that ministers or legislators suspected of criminal activity can only be removed from office by the coalition’s agreement, not through judicial review; new criminal penalties–three years in prison to anyone blocking roads (i.e., the nonviolent protesters); extensions to the criminal immunity of parliament members; affirmative defenses for rabbis publishing their opinions in religious pamphlets (including incitement to racism, murder, etc.); recognizing rabbinical certificates as the equivalent of academic degrees for all public jobs. And that’s just yesterday. This will not be a democracy for long.

Was Israel ever a democracy, you colonialist monsters?

The occupation of Palestine, whose tragic roots date back to 1948 and arguably, before that, to the British Mandate, is indeed an ugly and horrifying aspect that is inexorable from the rest of this mess. It is arguably the root of much of the problem, and inhumane policies and practices have been a fact of life in Palestinian territories since they were conquered in the Six-Day War in 1967. Many people live in horrid conditions, under a military regime that controls even minute aspects of their lives and accords these lives little to no value. At the same time, all Israeli governments, right and left alike, have allowed Jewish settlers to occupy and expand these territories, and often given them free rein in acts of agricultural vandalism, sabotage, and horrific violence against Palestinians with no consequences. Courts have offered precious little protection to Palestinians in these matters.

So why would Palestinians even care about judicial overhaul?

Even though the situation in Palestine has always been dire, any person who believes things cannot be worse is seriously deluded. With the de-facto elimination of Judicial review, people like Ben-Gvir and Smotrich can run unchecked and unfettered in Palestine. Since their explicit goal is to burn down Palestinian villages–and they’ve been acting on it–you can expect worse. At the same time, it’s understandable that people who have been through so much are cynical about the protest and not participating as the Jewish protesters would hope.

Isn’t there any merit to the claim that this government is trying to disempower the old, oppressive Ashkenazi elites and bring about more equality?

No, this is a cynical ploy that persuades people who have been neglected and kept in ignorance by Netanyahu et al.–the epitome of an oppressive Ashkenazi elite–so that they can be duped into supporting this nonsense. It is true that long-festering resentments have lingered since the 1950s, when immigrants from North Africa and Arab countries were treated condescendingly and appallingly by the local Ashkenazi authorities and residents. Ethnic tensions still exist. But many, many talented, hardworking people who came from nothing are utterly disgusted with the effort to make ethnic tension into a cudgel to foment hatred and schadenfreude and have spoken out publicly about this farce.

Is there nothing that can be done to change course?

Some of the more effective pressure has already been deployed: reservist pilots, military intelligence chiefs, and cyber unit specialists have withdrawn their commitment to volunteer for military service. This has considerably weakened Israel’s security situation and it’s not unlikely that the army is unfit to protect the country at this point. Iranian leadership, who now has nuclear weaponry that can reach Israel, won’t even have to use it. Yoav Galant, the security minister, has announced that, with these retreats, we must pause and reverse course before it’s too late. Similarly, the shekel is in free fall, investors are pulling out of tech companies, and bright minds are fleeing the country on the daily. Both of these things should have given anyone with an iota of public concern some pause (when you think about it, Israel’s survival in the Middle East is largely thanks to a few hundred pilots, some cyber defense systems, and robust scientific invention) but these government ministers are ruthless, unprincipled, and out for whatever they can get, and Netanyahu himself could not care less as long as it keeps his own ass out of the slammer.

Can the U.S. do something?

Emphatically, yes. The U.S. government generously and without asking any questions supports Israel with massive funds (these are sort of a reverse subsidy to American contractors, because the money purchases American weaponry and military equipment.) President Biden’s message to Netanyahu was an opening shot in this direction, and he can and should make it clear that the support is not unwavering or unconditional. Ben Gvir seems to think this is a bluff. Biden can call his bluff.

What can we do?

For heaven’s sake, speak out. It is inconceivable that the only U.S. Jewish voices heard on this topic come from nutty right-wingers or namby-pamby lefties mumbling DEI platitudes. If you don’t like fascism and want Biden to stop funding it, for heaven’s sake, pressure your rabbi, your Jewish organization, your nonprofit, your company, AIPAC, to say something.

I don’t want to seem antisemitic or offend anyone.

You know what’s worse than “seeming antisemitic” or “saying something offensive?” actually ushering in bigotry, discrimination, hatred, and animosity toward Israeli Americans and Jewish Americans by lending credibility to the government that has taken Israel hostage. The more Israel devolves into a decrepit, impoverished backward, theocratic, violent cesspool, the more credibility the bigots will have and the more difficult it will be for Israeli or Jewish people, businesses, and organizations to defend themselves against these noxious phenomena. It is your patriotic duty to both Israel and the U.S. to speak out.

What Democracy Erosion in Israel Means for U.S. Jews and Israeli-Americans

As I write this, hundreds of thousands of friends are protesting in Jerusalem, being beaten up by police thugs, as Israel’s theocratic, messianic government celebrates their massive success in eroding democracy. The first step was curtailing the type of discretion courts may apply when reviewing executive/administrative actions, by ruling out the use of “reasonability” as a standard. It should go without saying that whoever does not want their actions to be reviewed through a lens of reasonability is planning on doing unreasonable things, and given who is in government now and what their aims are–theocracy, annexation of Palestinian territories, etc.–it’s not a secret what these acts will be. After the new law passed, internal security minister Itamar Ben Gvir, a convicted terrorist who assaulted Palestinians and police officers and who never did a day of military service, tweeted, “the salad bar is open.” What more do you need to get a sense of where this is going?

I was going to write a long post, explaining the American implications, but Thomas Friedman did my job for me. Here he lists some ways in which the Israeli catastrophe can affect U.S. interests in the Middle East:

It should be obvious to every U.S. policymaker by now that Netanyahu’s cabinet, one that you described as one of the most “extreme” you’ve ever encountered, has its mind set on two dismantling projects.

One is to dismantle the power of the Supreme Court to rein in this government’s extreme agenda, and the other is to dismantle the Oslo peace process and its road map for a two-state solution, in order to pave the way for a unilateral Israeli annexation of the West Bank. Oslo has been a cornerstone of America’s Middle East policy since 1993.

These twin dismantlings are interconnected: the Jewish supremacists in Netanyahu’s cabinet need to get the Supreme Court out of the way in order to carry out their plans to annex the West Bank. Such a move could easily destabilize Jordan, as it would likely push more and more Palestinians there and change its fragile demographic balance. Jordan is the most important buffer state in the region for the U.S., which operates from Jordanian territory, in collaboration with Jordan, to deal with U.S. security threats from Syria and western Iraq, where ISIS forces continue to operate.

At the same time, Mr. President, you are wrestling with one of the biggest decisions ever involving U.S. strategy in the Middle East: whether to meet Saudi Arabia’s requests for a formal security guarantee from America, for a U.S.-overseen civilian nuclear program and for access to some of the most advanced U.S. arms. In return for this, Saudi Arabia would normalize its relations with Israel (provided that Israel makes some concessions to the Palestinians) and limit its collaboration with China.

It would be both difficult and unfortunate to get such a deal through Congress without strong support from Democrats in the Senate. As you know, Mr. President, Netanyahu and Saudi Crown Prince Mohammed bin Salman are two of the least popular world leaders among progressive Democrats, especially considering the way Netanyahu, over the past decade, moved to make support for Israel a Republican cause and spurned the embrace of secular American Jews for that of Christian evangelicals instead.

In short, winning enough support among Democrats to forge this complex deal with Saudi Arabia will be a huge lift on a good day; it will be even harder if Netanyahu neuters the Israeli Supreme Court — undermining our shared values of an independent judiciary — and moves ahead with plans to annex the West Bank. And without you as president, such a deal would be virtually impossible, because very few Democrats in the Senate would support it if it was pushed by a Republican president. In short, the window for this deal is small.

Moreover, in 2016 you and President Barack Obama signed a 10-year, $38 billion agreement to enhance Israel’s military. Are we supposed to just sit back and watch silently while that military — which we have made such a huge investment in to amplify our power projection in the Middle East — fractures over efforts to restrict the power of the Israeli Supreme Court? That would be a disaster for us and for Israel, which has real enemies like Iran and Hezbollah on its doorstep.

Also, we can already see that the extreme behavior of this Israeli government in expanding settlements in the West Bank is beginning to damage the historic relations forged by President Donald Trump between Israel and the U.A.E., Bahrain and Morocco with the Abraham Accords. All three Arab countries have been forced to cool their diplomatic ties with Israel.

Which leaves me to make a more minor comment, but important to me, anyway. I see a glaring failure on the part of U.S. Jewish authorities here. I suspect that Biden’s move to pick Friedman as his (able and well respected) messenger was calculated to reach the ears and minds of U.S. Jewry, especially those who are too apathetic or too hoodwinked by Netanyahu and Kohelet to reduce their ideological and financial support for this mess. It might have also been calculated for the benefit of the Jewish left (or, really, any left) that just waits to hear of more scandals to tarnish Israel completely, failing to distinguish between the government and its massive opposition.

This is not solely the audience’s fault: Before Friedman’s important reporting on this, U.S. coverage of recent Israel affairs tended to equate Israel’s 37th government with Israel itself. Generally speaking, U.S. media is very domestically focused compared to, well, every other country in the world, and on the rare occasions it reports on foreign affairs, it does so in an infantilizing and paternalistic way. To be fair, Netanyahu has been in government for so long that, for the ill-informed U.S. populace, it’s easy to identify him with the country he’s hijacked. Coverage of this mess has really diverged: U.S. newspapers extensively cover harm to Palestinian towns and villages (with good reason! Israeli media grossly and criminally downplays these horrors!) but remains mostly silent about the size and courage of the anti-government protest movement. To get a better idea of what is not being properly reported, imagine that half the U.S. had marched in the anti-Trump protests and risked serious violence by police and right-wing goons. The temperatures here are in the high 90s and, nonetheless, hundreds of thousands of people have walked by foot to Jerusalem, for days, to protest, and have taken over a park near the Knesset to continue their operations. Some have been injured, seriously even, by police water hoses and horses (poor, sensitive, gregarious creatures, again dragged into the depravity of homo sapiens.)

The outcome of all this is all too obvious to me, having lived in the United States for more than two decades. Pretty much every Israeli American has coped with hostile sentiments from both the right and the left. I won’t tire you with my “lived experience” of bigotry and ugliness, in some cases seriously career harming, because we don’t really need more earnest, whiny confessionals, nor will I get dragged into the tiresome and intractable problem of whether these noxious sentiments are antisemitic, anti-Zionist, or anti-Israeli (this is open to interpretation, and the sentiment is misguided and its expression sickening either way.) The bottom line is this: the more unconscionable governmental behavior takes place unchecked and unchallenged by Jewish authorities abroad, and the more Israeli consulates throughout the U.S. parrot it and defend it, the more justified and less objectionable these bigotries will be.

This has several corrosive implications. First, it means far fewer business opportunities, especially in tech, for Israeli companies. Second, it means that the unspoken but quite obvious sentiment that there seem to be “too many of us” in intelligentsia will strengthen and become spoken (back to the “quota system” in university admissions?) Third, it will unfairly and counterproductively target precisely the demographics that are doing what they can to oppose these travesties (this is why I’ve always thought BDS incredibly foolish when applied to academics and/or journalists. And yes, I’ve been on the receiving end of that nonsense as well.)

There are a few things Jewish leadership in the U.S. should be doing right now:

Speak out against all this. Yes, your congregation can and should have at least as much of an opinion about this as it does about Ukraine and Iran. You have a voice. Some of you have Biden’s ear. Sure, your lefty, scrappy, civil-rightsy temple/shul/congregation can marinate in the same advocacy that any progressive organization in the U.S. does–the usual DEI talking points and capitalizing on domestic controversies. Your duty is to expand your congregation’s parochial concerns and figure out how to talk to and about Israel.

Put your money where your mouth is. If you are funding think tanks like Kohelet, stop it immediately. Even Kohelet’s nauseating captains are horrified by the monster they helped create. Instead, put your money, openly and explicitly, in the service of the protest organizations. My friends are being brutalized by cops and fascist goons to cultivate a safe, democratic haven for you and yours. Help them.

Israel is not a fun summer camp for your kids. Stop sending them to Birthright which, at best, sickens them about the settler and antimiscegenation propaganda they are subjected to, and at worst, converts them to be Netanyahu supporters.

Dissent, even abroad, is patriotic. Join a local protest. I’ve seen people express precious qualms about how they don’t have a “right” or a “say” in Israel. And yet, when horrors happen elsewhere in the world you speak up and donate. What I keep hearing from my friends in Israel is how heartened they are when they see pictures from protests around the world.

Fighting Ridiculous Court Fees – One Piece at a Time

I’m attending the Annual Meeting of the American Society of Criminology and finding many of the talks illuminating and refreshing. It could be that the overall quality of work has improved, or that I make better choices about which panels to attend. Either way, this morning I’m following a series of panels about improving indigent representation, and have just come out of a conversation with the folks who run the campaign to End Justice Fees.

Those who followed the report on Ferguson are not strangers to the problem, but the public at large is likely ignorant of the immense (to the tune of billions of dollars!) toll of court fees and warrants. Even to me–who thought nothing would surprise me after learning about pay-to-stay and the resulting lawsuits–some of the details were shocking. The campaign’s website offers a wealth of information on the different things people get charged for: electronic monitoring, probation (yes, you pay for the pleasure of being monitored!), and–much to my horror–legal defense. Remember Gideon v. Wainwright, the landmark Warren Court case that required states to fund the defense of the indigent? Well, it turns out that, in 42 states, free representation means free for those who pay the fees (three figure amounts that many defendants cannot afford.)

Just like I found out in Cheap on Crime about pay-to-stay schemes, the absurdity of padding the pockets of municipalities and counties by charging the poor, rather than the rich, is in plain evidence. The fees are rarely recouped, resulting in crushing debt that kills the spirit of countless families and does not make up for the deficits. Figuring out the expense of keeping this ridiculous system in place is difficult (I wish someone took this on! I would, but my plate is full), but even though the numbers are elusive, I don’t think it’s outlandish to assume that pursuing lawsuits against hundreds of thousands of people for not paying what, for them, is a lot of money, but for the system is pennies, is not an economically efficient scheme. That this is costly beyond the obvious is evident from yet another horrible data point: in the Alabama Appleseed survey of people with court debt, they found that 38% of respondents had to resort to actually committing a crime in order to be able to pay the court fees (which are sometimes imposed for mere infractions or traffic violations.)

The good folks from End Justice Fees have come to the conclusion that advocacy works better than litigation for eliminating these fees. Here are some of the ground that they’ve made in California, per their website:

  • CA AB 199 makes the balance of any court-imposed costs assessed prior to July 1, 2022 unenforceable and uncollectible and vacates any portion of a judgment imposing civil assessments charged by traffic courts
  • Eliminated 17 additional criminal administrative fees and vacated $534 million in outstanding debt (2021).
  • California’s Families Over Fees Act repealed 23 criminal administrative fees and vacated $16 billion in outstanding debt (2020)
  • California ended the assessment of new juvenile fees (2017) and discharged outstanding fees (2020)
  • Ordinance eliminated local criminal administrative fees imposed in San Francisco (2018)
  • San Francisco made all jail phone calls free for incarcerated people and ended commissary markups (2020)
  • San Diego eliminated fees for phone calls and video visits (2022)

I’m also happy to report that, per their presentation, we are among the minority of states that do not charge people for their own representation which, under Gideon, indigent folks should pay for free.

The crux of the problem, with litigation, is that Bearden v. Georgia, the case often used to argue against punishing the poor for being poor, requires an investigation of means before incarceration–but the practice in many places is to arrest people for the purpose of assessing their means, which is technically a violation of Bearden but municipalities and courts claim is the only practical way to get ahold of the person.

This strikes me as the sort of initiative that decent people of all political stripes can and should get behind. It should yield the sort of coalitions I covered in Cheap on Crime and bring about more justice on an everyday level without slogans. Want to “dismantle” “abolish” “repeal” “defund” stuff? Here’s a good place to start on the ground and deliver immediate relief to people struggling with financial craziness.

Roe Overrule Leak: An Adoptive Mom’s Perspective

So much has been said and written about the Supreme Court’s leaked majority opinion draft overruling Roe v. Wade that I hardly need to elaborate the basics. I’m not a reproductive justice expert, nor am I particularly surprised that this has happened–they are simply doing precisely what they were hired to do, which is to promulgate a theocratic, sex-negative worldview. The reason I add my voice to the cacophony is that I have a somewhat unorthodox, nuanced position on this debate, which hasn’t (I think) been aired yet–that of an adoptive mom.

We adopted our beloved son as an infant from a state that frowns upon abortions. My son’s amazing birthparents’ struggles, dilemmas, and decisions are their private business and I will not air it here or anywhere else. What I can share is that, throughout our happy life together, I have been beyond ecstatic that the world has been blessed with my son, a sparkling star of a boy–bright, empathetic, loving, friendly, kind, athletic, funny, multitalented, spirited, lively. And at the same time, every adoption involves a huge leap of love and empathy, and much pain, grief, and loss adjacent to the joy. There are no hard or fast rules about the roads taken or not taken with pregnancies. The deep regrets of placing a child for adoption, the sometimes unsurmountable hardships of parenting, and the deep regrets of terminating a pregnancy all float in a realm of possibility that I can only imagine, having been raised in a welfare state with excellent sex education and easily available contraceptives. No assumption can be made, as the right makes, that abortion invariably leads to shame and regret (see this remarkable amicus brief on behalf of law professors who underwent abortions and “believe that, like themselves, the next generation of lawyers should have the ability to control their reproductive lives and thus the opportunity to fully participate in the ‘economic and social life of the Nation’.”) Of course, the opposite assumption–that abortion brings you your life back without a trace of regret or sorrow, is also false, and part of the reason many women can’t quite find themselves in the pro-choice milieu is that, in the fierce struggle for women’s rights, little room is left to contain these sorrows and regrets.

The philosophical debate about when life begins is, to my mind, a red herring. For what it’s worth, and this may surprise my lefty friends, on the abstract philosophy point I’m with the pro-lifers: I do believe that a form of life–sentience–begins at conception, and I find that congruent with my sentiments on other aspects of sentience, such as nonhuman animal rights. The problem is that the pro-life right-wingers lose interest in supporting said life from the moment it emerges from the womb, as evidenced by the lack of parental leave, child care, quality early education, and decent, government-funded healthcare for all. They are also not interested in sparing such life from emerging in the first place through comprehensive sex education and widely available contraceptives.

All of this has already been said, most eloquently, by others; but the right-wingers have a ready-made answer. “Not to worry!” They cheerfully squeal. “That’s what adoption is for!” Which is where, as an adoptive mom, I need to speak up and disabuse some of the truly ridiculous illusions that our right-wing politicos and fundamental Christian buddies are willing to entertain. Namely, the notion that limiting safe, legal abortion is going to result in a boon for adoption should be patently absurd to anyone who has gone through an ethical open adoption process; the opposite is true.

Adoption professionals recoil from the idea that adoption is about “selling children”, and from here flow multiple ethical and legal limitations on the kind of assistance that adoptive parents can offer birthparents and on the interactions between the party. And yet, beyond the niceties, let’s start with the obvious: in virtually every adoption, as ethical and kind and caring as it is, children pass from poor hands to more economically advantaged hands, with money moving in the opposite direction. This means that birthparents–usually birthmoms–are at a considerable socioeconomic disadvantage, often exacerbated by being typically younger than the adoptive moms.

Forcing women who would otherwise have a (legal, safe) abortion to instead carry a pregnancy to term and place their infants for adoption throws more young women and girls with no bargaining power into the mix–often women and girls who now have to hide their pregnancies from families and boyfriends. It is not difficult to predict that women who are less equipped to carry a pregnancy to term would be the ones seeking abortions, and that requiring them to forego that option will result in pregnancies that are less safe, and therefore in infants that are more difficult to place for adoption. Hiding your pregnant belly from your mom or your friends can result in experiencing your pregnancy under conditions that are bad for you (exposure to smoke, exposure to alcohol, unhealthy diets); having such a pregnancy discovered can result in being unhoused for the duration of your pregnancy; all this instability will surely result in less responsible and consistent prenatal care.

A birthmom who knows she can’t parent will then search the Internet high and low for adoption agencies, trying to find one with serious social workers and good services. She’ll then go through an intake interview with a social worker, who will ask her about her medical history, prenatal care, and use of alcohol/drugs. I’ve taken classes with other adoptive parents: the medical history is something that can be scary for prospective parents, and birthmoms can, of course, guess this. So, what happens when someone who has not had the resources to properly care for themselves and their baby tries to place said baby for adoption? Would it surprise anyone if this would result in more deceit and evasion when interviewed by adoption agency social workers?

I can see very unhealthy prospects for the adoption market under such circumstances. With the inability to verify pregnancy details, or to provide proper care to prospective moms, unscrupulous lawyers and corrupt social workers might step in with unhealthy incentives, pressure, and coercion–akin to the worrisome trends we see in the international adoption market. This means less safety and trust precisely in a situation that requires an enormous amount of empathy and mutual trust. It means less careful vetting of adoptive parents–the actual people who are to raise and nurture this precious life. And it also means that women who might withstand the pressure and try to parent their kids might have to later relinquish them by court order, or due to other awful circumstances, which throws kids into the traumatizing world of government care at an early age and creates considerable challenges even in the happy cases that end in fostering and adoption. Many people who can become fantastic parents to infants through open adoption might not have the emotional fortitude and resources to address and heal the trauma of older kids. Corollary: Throwing birthmoms into these situations ahead of time by eliminating a safe, legal option, is not a boon for adoption–the opposite is true.

Additionally, if, indeed, adoption is to be the panacea for the problem of sentient life, then we should also care about the life of the birthmom after adoption–in the form of extended services to help heal the trauma, beyond some meetings with a social worker: I’m talking college money, gym membership, grocery money, job seeking support. Of course, all this assumes that Alito et al. truly want birthmoms, after giving the gift of motherhood to someone like me, to land on their feet and “fully participate in the ‘economic and social life of the Nation.” Do they?

The truth is that none of this is really about abstract notions of sentience nor about seeing the abortion/adoption thing as a zero-sum game, because it is patently clear that neither value is being advanced by forcing women to carry pregnancies to term or risk a dangerous back-alley procedure. Friends, here’s what’s going on: Justice Alito and his buddies are simply out to penalize women (the wrong sort of women?) for having sex. That the punishment might extend to other (sentient) people in the equation–a child, adoptive parents, adoption professionals–simply does not enter into their equation. The idea that someone who receives solid, reasonable, science-based sex education should be able to just say yes to sexual activity with whoever they choose, with however many people they choose, in whatever form, in whatever frequency, so long as all are of sound body and mind and consent and respect each other, is anathema to them. They know that legal prohibitions will not deter young people who have been deliberately left ignorant about the functions of their own bodies from having sex. They don’t care. Because they don’t intend to ever pick up the price tag for the many young lives that will later end up in flux, this is a complete externality to them. And that is what is so atrocious here.

What is the CA Attorney General’s Job?

On July 9, 2020, the #StopSanQuentinOutbreak coalition held a press conference outside the prison gate to draw attention to the medical crisis behind bars. The five weeks that preceded the conference saw the COVID-19 case count in the facility grow from zero to more than a thousand, and when we held the conference, people were already dying. Many people spoke at the conference–family members, formerly incarcerated people, doctors, experts, politicians.

The picture above is from the press conference. On the right side of the picture is then-Assemblymember Rob Bonta, who spoke very movingly and urgently about the need to have Gov. Newsom visit the prison and release people. Bonta’s speech was quoted in the Guardian:

“We are in the middle of a humanitarian crisis that was created and wholly avoidable,” said the California assembly member Rob Bonta at a press conference in front of San Quentin state prison on Thursday.

“We need act with urgency fueled by compassion,” he added. “We missed the opportunity to prevent, so now we have to make things right.”

Fast-forward a year and a half, and Bonta, now California’s Attorney General, is appealing Judge Tigar’s order to vaccinate the guards in CA prisons. The staunch resistance at CDCR and at the Governor’s mansion to the idea of letting old, sick people be released back to their families–purely for optics reasons, as they pose little to no risk to public safety–resulted in a paltry an ineffectual release policy (as I predicted the day it was announced) and, also predictably, in a complete abandonment of the release plan as soon as vaccination emerged on the horizon. Within the activist/advocate community, this presented a problem: while vaccines would slow down, or even end, the COVID-19 crisis, they would not prevent future contagions, which are sure to come given the prison infrastructure, medical understaffing, and chronic neglect and indifference. At the time, when talking to a friend, I said we had to get on the vaccine bandwagon; the fight to save lives now was as important as the fight to save more lives in future years, and we certainly could not afford to let go of the call to make the prison population a top vaccination priority.

Despite some governmental hiccups, and despite the prevalence of ignorant arguments that combined deservedness with medical care, people in correctional facilities educated themselves about the benefits of vaccination and, thankfully, accepted the vaccine at rates exceeding the general population. The credit for this success goes first and foremost to the correctional residents themselves, who had to sift their way through mountains of disinformation from custodial staff and their own mistrust of anything coming out of the authority that caused the outbreak in the first place. It also goes to formerly incarcerated people who encouraged their friends to do the right thing, and to AMEND for targeting correctional populations with excellent, 100% reliable medical advice. It certainly does not go to the government, which deprioritized prisons throughout the process.

More seriously, the staff is still the problem: custodial staff nationwide are still refusing vaccines at mind-boggling rates.

Graph showing vaccination rates among prison staff lagging behind overall rates in nearly all states
Source: UCLA Behind Bars Data Project

In short: Even though the fight to release people is still as urgent and relevant as it was in the summer of 2020, virtually nothing has happened on that front that would make a difference during this pandemic or the next one. Jail populations are back up to pre-pandemic levels; California prisons, which are still overcrowded despite a 18% population reduction, are now responsible for 7 out of the top 10 largest COVID-19 prison clusters in the country.

line graph showing 50 state prison and federal prison population changes from March 2020 to October 2021
Source: Prison Policy Initiative

Against this backdrop–the most important and pressing measure for contagion prevention basically abandoned–the litigation battle lines have been drawn at a much more modest expectation: staff vaccination. As a legislator, Bonta called for the more thorough system fix; as part of the Newsom administration, his employees are defending indefensible arguments and making absurd excuses to shirk responsibility even for the truly modest goal of protecting the lives of staff and incarcerated people.

Bonta/Newsom’s zealous appeal against this modest goal (essentially an incomprehensible support of Trumpist anti-vaccine drivel coming out of the Proud Heroes of the Resistance! or is it?) is even more absurd when compared to the Newsom/Bonta perspective on mandating vaccines in schools, considerably less dangerous settings than correctional facilities from an epidemiological standpoint. Indeed, some anti-maskers are calling Newsom/Bonta to task for forcing them and their kids to vaccinate when they are not imposing such duties in prison (even a broken clock shows the correct time twice a day.) Bonta’s response when a CalMatters journalist confronted him with the hypocrisy? “I have a client” (i.e., CDCR) and “you’ll have to take it up with my client.”

Which brings up an important question: What, actually, is the Attorney General’s job? Is the AG wearing two separate hats when supporting legislation/regulation and when litigating? Can the government speak out of two sides of its mouth on, essentially, the same matter of scientific/medical validity? When litigating in court, is the AG no more than a hired gun for a “client” (the government) with no obligations to support what’s right? Does the AG stop working for us when he works for our government? When protecting anti-masker prison guards, does the AG stop being a public official, holding office for the benefit of all Californians, and become CCPOA’s Tom Hagen?

Here are two instructive scenarios from recent CA history. In the first one, then-Governor Jerry Brown and then-AG Kamala Harris were called upon to defend a new amendment to the CA constitution, otherwise known as Prop 8 (“marriage is between one man and one woman”). You may recall their position then: Harris declined to defend Prop 8 “because it violate[d] the Constitution. The Supreme Court has described marriage as a fundamental right 14 times since 1888. The time has come for this right to be afforded to every citizen.”

Let’s recap: The Eighth Amendment guarantees freedom from cruel and unusual punishment, which in the context of prison conditions means that deliberate indifference to a serious health and safety risk is violative of the Constitution. We now have a ruling that having unvaccinated staff at CDCR facilities is a violation of the Eighth Amendment. AG Bonta, why would you defend this in federal court?

In the other instructive scenario, Harris, again as Attorney General, appealed Jones v. Chappell, a federal court decision that held the death penalty unconstitutional because of the delays. At the Ninth Circuit, they prevailed on a narrow, technical ground–the district court had applied a “new rule” at a habeas proceeding (for my explanation of this technical legal point, see here.) On principle, I still maintain that it was wrong of Harris to appeal the decision (here‘s a summary of my position on that matter.) It was an illustration of a tail-wagging-the-dog scenario: Harris walked away from that incident remembered for upholding a technical retroactivity ruling, rather than for dismantling our dysfunctional and monstrous death penalty. But at least there was some doctrinal support for that position.

This is not the case here: we have a ruling that is not only correct (and extremely narrow) on a policy level, but also on a legal level. Bonta and Newsom know full well that their position is morally and legally indefensible. Why, then, are they appealing, and is this a fulfillment of the AG’s ethical obligations?

Moreover, even accepting Bonta’s peculiar distinction between his role in legislation and in “client” representation, even the most zealous and unprincipled gun-for-hire private attorney will have situations in which it will be necessary to sit down with the client and explain that a position that the latter wants to advance in court is untenable (e.g., there’s no hope for an insanity defense because the defendant is sane; there’s no self-defense because there’s ample proof that the defendant shot someone in the back for profit with no provocation whatsoever.) In situations in which the client insists on a particular line of legal argumentation, lawyers who cannot pursue that line with a straight face need to withdraw from representation. It is long past time for Bonta and his employees to have a come-to-Jesus conversation with their “clients” and explain that vaccinating the staff is a minimal, modest expectation, barely enough to pass the already eroded Eighth Amendment standard, and that balking at it is not a move that the AG’s office can support.

The Hidden Side of the Prison Labor Economy on Marketplace

When prison records stand in the way of getting work

This morning I spoke with David Brancaccio of Marketplace Morning Report about the perversions and frustrations of the job market for formerly and currently incarcerated workers. The broadcast version is above – here’s the longer version from Marketplace:

This interview is part of our series Econ Extra Credit with David Brancaccio: Documentary Studies, a conversation about the economics lessons we can learn from documentary films. We’re watching and discussing a new documentary each month. To watch along with us, sign up for our newsletter.

There’s a striking scene in Brett Story’s documentary “The Prison in 12 Landscapes” that captures the complicated and exploitative aspect of rehabilitative prison labor programs: An incarcerated firefighter, explaining how they’re not allowed to talk to others on the job, adds that — because of their criminal record — they have a slim chance of becoming a firefighter upon leaving prison.

It’s an experience that’s common not just for prison firefighters, but for people who work making telemarketing calls, care for elderly or infirm people in prison, and more, according to UC Hastings law professor Hadar Aviram.

“There are many limitations on people working in these occupations, and because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people,” Aviram said in an interview with “Marketplace Morning Report” host David Brancaccio. 

While there are laws in place to protect formerly incarcerated people from hiring discrimination, Aviram noted that many barriers to employment remain, including the scarcity of rehabilitative work programs and their stringent terms and conditions.

“The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based,” Aviram said, “so oftentimes they will train people to do jobs that they can’t actually get on the outside.”

Below is an edited transcript of Brancaccio’s conversation with Aviram on the other jobs prisoners commonly do, the challenges facing formerly incarcerated people who are trying to find work and what Aviram thinks can be done to increase their chances of finding meaningful jobs that take advantage of skills learned while in prison.

David Brancaccio: In this film, we see a California wildfire at first. It turns out that one of those working on the fireline, to keep it from spreading, is a person in prison, in a special prison work program. Would a program like that be common or fairly rare?

Hadar Aviram: Here in California, it’s extremely common. And among the people who saved probably thousands of lives in the last summer, when we had the wildfires, were many, many incarcerated people working as firefighters.

“The range of occupations that people have in prison”

David Brancaccio: It’s interesting, right? Because often people don’t know that, in fact, there’s a ban on people who are incarcerated speaking with members of the public while out there fighting the fire.

Aviram: Yes, there are many limitations on people working in these occupations and, because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people. A lot of the customer service on the phone, a lot of the furniture, things that are being manufactured — sweatshirts for dozens of Ivy League universities are made in a prison in Kansas, where people are getting paid 50 cents a day. It’s really astounding, the range of occupations that people have in prison. And I think that firefighting is an especially interesting example, because they are saving lives and they are working shoulder to shoulder with professional, non-incarcerated firefighters. The big irony, of course, is that then they get out and, at least until recently, they couldn’t get a job as firefighters, despite being trained, because they have a criminal record.

When formerly incarcerated people are unable to get jobs

Brancaccio: I mean, that’s the thing. There’s, of course, a move that we’ve spent some time covering on this program to ban employers from, for the first initial part of a job application, asking if you have a criminal record, but employers have a way finding out anyway, or it comes up during the background check.

Hadar Aviram

Aviram: Absolutely. I was one of the big pushers for this kind of, we call it “ban the box” initiatives, to screen people without knowing their criminal record. But, it turns out, colleagues of mine at the Urban Institute did a study and they found out that rather than employers discriminating on the basis of criminal records, they have started discriminating on the basis of race as a proxy for criminal records. So, for example, they’ll get job applications, and they don’t know which of the people have a criminal record, but they will interview the person called “Brad” rather than the person called “Jamal,” under the assumption that they are using this as a proxy for the criminal record that they don’t have an access to. It’s very frustrating, because you’re trying to create equal opportunities for everybody, but these things have such a protean quality that they pop up no matter what kind of protections you introduce in the workplace.

“Oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself.”

Hadar Aviram, UC Hastings law professor

Brancaccio: What do you do about that? I mean, you know, there’s an ongoing national discussion, at some level, about what we’re addressing here. But, in part, when people have worked alongside people that they find out have criminal records, and they see firsthand that they’re like the rest of us, sometimes that can help break down these stereotypes?

Aviram: Absolutely. And this is a truth that has been found in studies all over. I mean, people have done studies, for example, of members of fundamentalist churches that, you know, will be railing against single mothers and gay people, but then they have a gay uncle or a niece who’s a single mom and they love them to bits, and that softens, a little bit, this approach.

And the same thing holds for people with criminal records. I just saw a study done at a college where there was a strong correlation between students who personally knew fellow students who were formerly incarcerated and their opinions about: Would they befriend somebody with a criminal record? Would they be willing to date somebody who had been in prison? So, truly, personal acquaintances and education and exposure is the most important thing that we can do to break down these barriers.

Brancaccio: Back to this notion of labor done by people in prison: When the phone rings at our house, it could be someone who is incarcerated at the other end of the line?

Aviram: Yes, absolutely. This is just one of many, many, many occupations that people engage in in prisons. Phone solicitation, customer service, a lot of manufacturing of everyday items that you wouldn’t even have an idea come from prison. And, of course, a lot of the work inside prisons. I don’t know that a lot of people know this: We have a high population of people who are aging and infirm in prison. And oftentimes the people taking care of them are trained caregivers who are incarcerated themselves. So a lot of the things that we think the state is providing, it’s actually people from inside the prison who are incarcerated themselves who are doing it.

Is prison labor, by definition, exploitative?

Brancaccio: What’s your sense, having studied this — I mean, is it, by definition, prison labor, exploitative? I mean, no one’s paid market rates for that labor.

Aviram: This is a complicated question, because there’s the world that we would want to live in, in which everybody gets minimum wage and in which you are actually trained for the reality of the marketplace. And there’s the realities of the world we’re in, in which prison labor, to different extents, is exploitative, and we therefore try to sort of improve people’s lot within the conditions that they’re in.

We have to keep in mind the fact that, to some extent, prison labor is training people for conditions in the market on the outside. But the problem is that oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself. The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based, so oftentimes they will train people to do jobs that they can’t actually get on the outside. Up until recently, the firefighting was one such example, but there are many other examples. The programs that do have occupations where people can work on the outside, like marine technology or carpentry, are highly selective; very, very few people can get in. Overall, a more realistic prospect for people coming out is to become independent contractors and work for themselves.

The kind of work formerly incarcerated people end up doing

Brancaccio: That’s what people end up doing? Working for themselves?

Aviram: Exactly. For example, you’ll find people that are putting together landscaping companies, house work companies. And there are some examples that are really amazing, of nonprofits that people have put on the outside, where they’re working in the marketplace and just doing amazing things. Right next to Hastings, which is where I teach, is a neighborhood called the Tenderloin in San Francisco, which, during the pandemic, became pretty much an open-air drug market — lots of homeless people, lots of misery, mental health, substance abuse, oftentimes people overdosing. And the mayor was upset by this, and a couple of times they sent the police to clean up the neighborhood with everything that stems from that. That was extremely difficult, because there were no solutions for people other than just sort of cleaning up the aesthetics.

And then a nonprofit stepped in called Urban Alchemy. They operate public restrooms, which is incredibly important in these kinds of neighborhoods. They operated safe sleeping sites during COVID. They calmed down violence, they actually revived people with Naloxone who had overdosed multiple times every week. They did amazing things. And what enables them to do this work more effectively and more peacefully than the police, and almost without any show of force, is the fact that they are former lifers, that the people who work at Urban Alchemy acquired these peacemaking and mentoring skills that they use every day on the job in decades in prison. They were elders and mentors on the yard when they were inside, and they retain this kind of calm mentorship role on the outside. And they have done such an amazing job that the change in energy in the neighborhood is palpable.

Brancaccio: Those are special skills that are in demand. It’s a shame that some employers don’t fully recognize this.

Aviram: Exactly. There are many ways in which we look at a criminal record or a previous prison stay as a liability. This is of course difficult, because at any given moment, 1% of the entire population of the United States is incarcerated. So we have a lot of people who actually have acquired skills and strengths where they were that we can use in the marketplace. I’m not just thinking about occupations that are entry-level jobs, I’m thinking even about entry into, say, the California bar, as lawyers. Think about what somebody brings in, coming in with an insider perspective on a criminal justice system, reassuring their clients about what’s going to happen to them, you know, being able to present a realistic perspective. There are so many strengths that you acquire.

One of the most successful programs we have in California is called marine technologies, it’s people who work underwater fixing ships and underwater structures. And this is partly a skill where it’s a great advantage to be used to being in a very overcrowded environment. This is difficult for a lot of people. But people, unfortunately, who spent time in our grossly overcrowded prisons have acquired this skill. This is a market strength that is being undervalued and stigmatized for no good reason.

Brancaccio: I was reading about that marine program. Recidivism, going back to the ways of crime, is near zero for people who’ve gone through that program.

Aviram: Those are good jobs. If you get a job like that, there is no reason for you to commit crime, because you have gainful employment. We have to think more evidence-based about these kinds of programs and strengths in the market and prepare people for that.

Brancaccio: Those programs often can be expensive within the prison. Sometimes when budgets are tight, as you’ve written, that’s the program that gets cut.

Aviram: Exactly. It’s one of the downsides. And this is something that I wrote in my first book “Cheap on Crime,” that we, overall, saw the prison population shrink since 2009. This was a result of the the recession of 2008. But one of the side effects of that that was more sinister was that there were drastic cuts to rehabilitative programming. And that created a big difference, a big gap, between prisons that are set in urban centers, where there’s lots of volunteers and do-gooders that step in and create these programs. Here, for example, in San Quentin [State Prison], we have Silicon Valley entrepreneurs volunteering to teach people the internet, which is very difficult when you don’t have internet behind bars. So we have all of this programming because of the volunteers, because they’re stepping in to fill in the gaps that the state cannot fill. But there are many, many prisons in the United States that are located in these remote, rural locations, very, very difficult to get there, and very difficult to get quality programming that actually prepares people to get good jobs once they get released.

Support A.B. 1210 – Diversify the Parole Board

This morning I’m scheduled to testify before the Senate Public Safety Committee in support of AB 1210 (Ting). The proposition is to diversify the parole board by including commissioners with a variety of professional backgrounds, including therapeutic backgrounds.

Those of you who read Yesterday’s Monsters may recall that, while the Board is diverse in terms of race and gender, it is not diverse in terms of professional background. The vast majority of commissioners come from law enforcement backgrounds: former sheriffs, police chiefs, and correctional officers. This has far-reaching implications as to the nature and result of the hearings.

The current composition of the board dates back to several transformations in California punishment that happened throughout the late 1970s and 1980s. Over the years, the time before the initial hearing and between hearings increased; actuarial risk assessment replaced correctional counselors and psychologists; the role of prosecutors and victim supporters vastly increased; and voters approved a gubernatorial veto on parole board decisions to release. Despite repeated instruction from the California Supreme Court to focus on future prospects and risks, the Board acts defensively, finding ways to bypass this requirement and deny parole on the basis of crimes that happened decades ago—even to people who, according to vast criminological research, have long ago aged out of crime. As a consequence, recommendations for release are rare, accounting for only 16-17% of all hearings.

It is unsurprising that a group comprised almost exclusively of law enforcement officers is professionally and culturally predisposed to accept court records and disciplinary write-ups as incontrovertible truth, makes biased assumptions about people from their demeanor and body language, and tends to accept simplistic narratives at the expense of more complicated stories involving people’s environment and circumstances. The commissioners also exhibit complacency regarding the woeful inadequacies of our prison programming system, laying the blame for inaccessible or nonexisting rehabilitation programs on the parole applicants themselves. Despite some continuing education workshops, the commissioners as a group do not possess deep professional knowledge on issues such as substance abuse and mental health.

The commissioners regularly pride themselves for being able to detect false remorse or lack of insight. Unfortunately, this self-assessment claim is contradicted by robust empirical research. In experiments, law enforcement officers regularly express significantly more certainty about their ability to detect lies–and regularly do significantly WORSE than general population in telling truth and lies apart.

We are at a unique moment in history, in which we acknowledge that multiple forms of wisdom and expertise—not only the expertise of law enforcement officers—are essential to solve social problems and offer hope to families and communities. Tune in to the hearing today and make your voice heard in support of this important change.