Exhibition Review: Future Histories at SFMOMA

At dawn, sit at the feet of action. At noon, be at the hand of might. At eventide, be so big that sky will learn sky.

Alice Coltrane (Swamini Turiyasangitananda)

Today I finally visited SFMOMA and enjoyed a wealth of art therein: there are lots of new and exciting exhibitions, and even the permanent collection, complete with the giant expressionist canvasses and sculpture, is always worth seeing again. My favorite, though, were two astounding videos examining Black liberation featured on the seventh floor, by Theaster Gates and Cauleen Smith respectively.

On the exhibition website, you can see a video of Cauleen Smith discussing her film Sojourner (2018) – or you can watch a preview below:

I found the film haunting. Twelve women with amazing presences–she refers to them as “the Zodiac”–inhabit an apocalyptic landscape. Dressed in regal, colorful outfits, they ceremonially walk the terrain, visiting various structures and holding up banners with quotes from Alice Coltrane (above.) In the background, haunting music plays, accompanied by inspiring texts by revolutionary Black feminists (feminist queer collectives and an antebellum Black shaker community). The texts are incredibly moving, the choice of music lends an eerie-but-hopeful sense to the scene, and the terrain, in Joshua Tree, is stunning and inspiring.

Gates’s Do you hear me calling? Mama Mamama or What Is Black Power? (2018) is very different work. It is a film composed of a wealth of visuals, stills and video, which I now read is aimed at exploring the Black Madonna–but to me, it spoke of the complicated relationship between advancement, capitalism, and consumerism. The film features stunning musical numbers (the flute solos were especially marvelous) and juxtaposes statistical data with dance, fashion photography from Ebony and Jet, and landmark political speeches. It is very rich work, evoking a lot of thought.

What I most appreciated about both films is their expansion of our racial imagination beyond the need to address traumas, examining the long haul and the possibilities for growing and thriving. It seems like our engagement with race, prompted by the events surrounding us, is always engulfed by trauma and by the need to provide immediate remedy to what is wrong (of which there is plenty.) Having a chance to watch works that offer broader horizons, which present Black culture in resplendent, hope-inspiring ways, was heart expanding.

SFMOMA offers timed tickets, which you can buy on their website. The restaurant and café are closed (you can eat a great, vegetable-rich market plate at Lemonade afterwards), but everything else is available and marvelous, including the gorgeous one-way color tunnel. Future Histories shows at SFMOMA until May 23, 2021.

Calder-Picasso at the de Young

Today I went to see Calder/Picasso at the de Young. It was superb. The grandsons of the two artists came together and created this interesting dialogue between their art, paying special attention to the five or six junctions in the two artists’ lives in which they met (mostly in Paris.) 
Beyond the obvious beauty and genius of the artifacts themselves, the exhibition in its entirety reminded me that very few of the things referred to as “curation” actually fit the bill; nowadays anyone who makes a list or puts together a gift basket or a playlist fancies themselves a “curator.” This exhibition was an excellent example of the careful act of knowledgeable selection, matching, and sequencing that rises to that level: the pairing of Calder’s mobiles and sculptures with Picasso’s paintings and sculptures was superb. One of my favorite rooms was dedicated to the circus, which figured greatly in the works of both artists in their early years. Calder’s acrobat wire sculptures and Picasso’s circus scenes maintain a marvelous dialogue. I also liked the associations the exhibition made between construction and deconstruction, and the discerning selection of works that exemplify this principle (for example, Picasso’s series of bulls and Calder’s larger mobiles.) Another association was exploring dimensions beyond the medium: Picasso exploring depth through his cubist work, for example, and Calder’s exploration of mobility and sound through his gongs. 

Relatedly, I noticed that both artists had an early figurative phase (Picasso’s blue and pink periods, Calder’s acrobats) and, around the 1930s, started moving toward abstract work. I wonder if other artists of the period in Paris went through a similar transformation. It was certainly an issue of cultural inspiration–Calder went abstract after visiting Mondrian’s studio. 

The larger scale sculptures reminded me of a wonderful exhibition I saw a few years ago in Bologna, titled Ex Africa. One of the most stunning rooms of the exhibition featured a terrific video matching surrealist works from the 1930s with traditional African art, showing how much the latter inspired the former (without attribution.) I wish this exhibit had examined more critically the issue of sources of inspiration, even as it paid well-deserved homage to the works themselves.

Finally, I was struck by the difference in the depiction of lovers and family members between the two artists. Picasso, as we all know, juggled many women, rendering them insecure and unstable, driving Dora Maar (and others) to the brink of suicide, and his works deconstructing his lovers are instructive. Calder, by contrast, seems to have been a one-woman man with a stable family life, and the exhibition features a lovely heart mobile made of sheet metal that he made for his wife. There’s a big difference between making art for your lover and making your lover into art. Appreciate both, marry the first kind. 

Calder-Picasso shows at the de Young through May 23, 2021; order your tickets here.

Aging, Trials, Accountability, and Justice – International and Domestic

I’ve just attended the first day of a terrific workshop on the aesthetics and visualities of prosecuting aging and frail defendants. The papers are fascinating and take on not only multiple sites of international criminal trials, but also philosophical positions about the value and drawbacks of putting very old people on trial for very serious crimes. Coming to the workshop with what seems to be the only paper on domestic (albeit internationally renown) criminal justice, I found the similarities and differences very thought-provoking.

For one thing, there is a robust body of literature on the complicated jurisdictional, institutional, and thematic distinction between “international” and “domestic” criminal justice (for just one example, here’s an excellent paper in which Shirin Sinnar complicates the international/domestic distinction for terrorism.) What counts as a “mass atrocity” is also complicated to define. The subjects of my paper–the Manson Family members, whom I wrote about in Yesterday’s Monsters–are not that easily distinguishable from some of the perpetrators of international atrocities tried in international courts. The heinousness and notoriety of the crimes in both places is a factor (the Manson murders were internationally infamous) and the setting for the crimes was not dissimilar: young people during turbulent times committing heinous crimes with mob mentality at the behest/out of fear of charismatic and threatening leadership.

Because of these similarities, I was struck by how much my experience studying aging in the CA prison system has placed my opinions outside the cultural norm of international legal scholarship. The first thing that surprised me was the notion that aging and/or frailty do not matter in the context of criminal dangerousness, which stands in opposition to the robust field of life course criminology, which consistently finds that people age out of crime. I obviously don’t reject the idea that aging, frail people can give orders to do horrible things (we’ve just had four years with just such a person at the helm) but I wonder whether, as to people actually committing the atrocities with their bodies, we should reject life course criminology outright as it applies to defendants before international courts (that these people may continue to uphold racist ideologies in old age is deplorable, but uncoupled from the ability to act upon these ideologies it’s less worrisome unless they’re in some sort of power position.)

Another theme that emerged was the question whether “justice delayed”–because the person was apprehended decades after the fact–necessarily decreased the quality of justice. One of the arguments made was that time has led to a reevaluation of some atrocities (e.g., rape was not seen as a genocide strategy for a long time.) I appreciate the logic but am not sure that, in every single instance, the passage of time is going to bring about more justice, or that our current perceptions of justice are universally better than the ones in times past. Nor do I think it’s fair in 100% of cases to impose our current standards of behavior on people who operated in a different contextual realm (I think it goes without saying that, in the rape example, this is valid–but am not sure that subjecting people who committed crimes in the 1970s to the kind of sentencing that became popular in the 1980s and 1990s is fair.) I also have to wonder why the question of innocence/mistaken identity is absent from the conversation.

Some assumptions were made about defendants in these trials–namely, that they were “posers” and that their frailty was a charade. That may be true for some people–a few examples pop to mind–but my experience studying aging in prisons has taught me that these are the exceptions, rather than the rule.

Finally, there was the idea that treating aging people with leniency was ageist and robbed them of their dignity, which is philosophically interesting; generally speaking, placating people rather than engaging them in debate is infantilizing them. But that assumes that the way accountability and punishment is meted is, indeed, an expression of dignity, and I that is the last word I would use to describe the experience of incarceration in the United States.

Given that I don’t really buy a hard-and-fast distinction between international and domestic criminality in these respects, I had to think long and hard about why my feelings on aging on parole (particularly, Susan Atkins’ 2009 hearing and the reluctance to release aging people now because of COVID) differed so much from those expressed in the international scholarship, and I realized that there was one pertinent difference: for the most part, the international conversation revolved around the international law equivalents of Joseph DeAngelo, the Golden State Killer, who evaded justice for decades, and whose spectacle of aging is their first encounter with the criminal justice apparatus. The people I studied had been embodying the experience of being subjected to justice for decades.

This is important, because the embodiment of justice matters. It’s not just about how much time has passed; it’s about how it passed. By contrast to corporeality (the relatively unmediated materiality of the body,) by embodiment I refer to the body as a vehicle or medium of social agency (e.g., as related to spaces and contexts that surround it, specifically the carceral space.) When a person’s body is on display at a parole hearing, the body itself is a meaningful social fact in five ways:

  • An aging body is a nonverbal reminder of time that has passed since the offense was committed–more specifically, the contrast between the youthful, violent body at the time of the offense and the aging body present in the room.
  • Moreover, an aging body evinces the impact of decades of prison life on the body (the embodied evidence of the action of “justice”)
  • Because, as I explain at length in Yesterday’s Monsters, performance is a key factor on parole, the body is also a physical container for expressions of insight/remorse (this is why a commissioner telling a large black parole applicant “you seem angry” is a response to embodiment.)
  • Because parole is, at least in part, a site of prediction of the parole applicant’s prospective future on the outside, the body is also a site of prediction of work prospects, healthcare needs, etc.
  • Finally, the very presence of the parole applicant’s body is often explicitly contrasted to the absence of the victim’s body–particularly by the prosecutor and the victim’s next-of-kin.

The impact of this embodiment–a body evincing a life under carceral authority, as opposed to a body allowed to age freely on the outside–cannot be overstated, and can go a long way toward explaining why I saw things differently at today’s workshop. To the workshop participants’ great credit, they could see the important difference between the trial’s role of accountability and social processing and the question of subsequent punishment for someone old and frail.

Full Steam Ahead in the Wrong Direction

You may recall that the Court of Appeal’s population reduction order in Von Staich did not specify the method by which CDCR should go about population reduction (though it did strongly recommend focusing on people aged 60 and over with 25 years of incarceration behind them.) The order specified that CDCR could choose to comply via releases or transfers. As far as releases, the recent Chron exposé shows that they delivered more or less on what was promised back in July: far too few people, 99% of whom were getting out in a few months anyway, and only 0.8% of whom were COVID-19 risks.

What this indicates–and what the AG’s petition for review to the California Supreme Court indicates–is that CDCR intends to address this crisis almost exclusively via transfers. This is also becoming clearer and clearer in the Marin Superior Court, where Judge Howard, who is presiding over hundreds of habeas corpus petitions from San Quentin, issued the following order:

SQ Case Management Order No. 12 by hadaraviram on Scribd

The gist of the decision is this: Judge Howard is proceeding with fashioning the remedies, as he considers Von Staich “persuasive authority” and despite declarations from the AG that they do not intend to comply until they hear back from the Supreme Court. At the same time, he seems unsympathetic to the arguments against transfers, because the Von Staich decision “provided clear guidance that transfer was a viable remedy.” The AG representatives did state that, independently of the Von Staich decision, they are starting their own transfer initiative, which targets people aged 65 and older. Judge Howard has ordered them to provide a list of the people they are transferring, and the petitioners’ lawyers to compile a list of people who are aged 60 and over and/or have COVID-19 risk factors.

How is this playing out on the ground? You can get a sense from the image at the top of this post. In the last week, per the San Francisco Bay View, people inside–both at San Quentin and at other institutions–have been pressured to accept a transfer out of their own volition, and when they refuse–they are asked to sign the form above, in which they waive any future claims about the risk they face. The form requires them to initial the following statements:

I understand that due to my age, I am at high risk for developing serious complications if I get infected with COVID-19.

I understand that I have one or more medical conditions that makes me high risk for developing serious complications if I get infected with COVID-19.

I understand that COVID-19 could lead to serious complications such as lengthy hospitalizations or even death.

I understand that living in places where individuals are in close contact and physical distancing is difficult to follow, such as prison dormitory [sic], will increases [sic] my risk of being infected by COVID-19.

I understand that COVID-19 could lead to serious implications such as lengthy hospitalization or even death.

I understand that if I change my mind and decided [sic] to be housed in celled housing, I will submit a 7362 or talk to a health staff to request for [sic] celled housing.

I’m hearing from family members and friends of incarcerated people that CDCR is gearing up toward involuntary transfers at Quentin and elsewhere, which are (and always have been) their prerogative, and so, these so-called informed consent forms are actually obsolete. Therefore, it is now more obvious to me than ever that CDCR is worried about a monetary damages lawsuit, and with good reason–I expect we’ll see one in the not-too-far future. If so, I doubt that these waivers, given the circumstances in which they are being procured, will even come close to providing the kind of defense that CDCR, or the AG, think it will provide.

More importantly, the virus doesn’t attend the status hearings at the different courts, and follows its own agenda, which is–as it always has been–to invade cells and replicate itself, which makes this transfer agenda even more inappropriate. As of three days ago, every single CDCR facility has a COVID-19 outbreak, which raises the question–how do CDCR officials purport to improve the situation via transfers, and where are they going to shuffle people to? The information I got from Solano, and a conversation with a relative of someone at SATF, have convinced me that the same pathologies that led to the spread of the virus in San Quentin are now in evidence in other prisons.

Which brings me again to the point of carceral permeability. The logic of lawsuits and court rules doesn’t conform to the realities of geography. By their very nature, they deal with “cases and controversies”, not with proactive solutions to rapidly evolving situations. Order a remedy in one prison, and by the time it’s fashioned, the outbreak will quell there and spike in other places. Exhibit judicial caution and give prison officials the choice between transfers and releases (which is, after all, what courts are supposed to do–express restraint) and they will make the wrong choices. Thinking about this remedy regarding San Quentin alone is part of the brief, but in terms of the actual problem, it makes no sense to implement the remedy in isolation from what is happening in other prisons.

SAVE THE DATE: California Correctional Crisis: Mass Incarceration, Healthcare, and the COVID-19 Outbreak

Dear Friends,

Three UC Hastings journals are coming together to organize an important symposium on incarceration and healthcare, focusing on the COVID-19 prison crisis. We are excited to invite you–details will follow. For now, please SAVE THE DATES!


  • Feb. 5, 12-4pm: California Correctional Crisis, Meet COVID-19
  • Feb. 12, 12-4pm: Focus on reproductive justice, trans incarcerated people, and special populations
  • Feb. 19, 12-4pm: Focus on immigration detention and healthcare

Where? Online (registration details to follow)

The conference will feature amazing speakers: advocates, activists, academics, officials, formerly incarcerated people. Among our confirmed speakers are renown prison historian Prof. Ashley Rubin; prison law expert Prof. Sharon Dolovich, Director of the UCLA COVID-19 Behind Bars Data Project; Adnan Khan, Executive Director of Re:Store Justice; Richard Braucher of the First District Appellate Project, counsel for Ivan Von Staich in the landmark case that resulted in a San Quentin population reduction order.

MCLE Credits for lawyers pending. Please plan on joining us!

Your hosts:

Shelter In Place, Ch. 6

shelter in place



Caleb felt a bit silly amidst the most elegant crowd he had ever seen. He had arrived twenty minutes early and the place was already packed; to make things worse, it took the City Club bouncer five minutes to find his name on the list. Even after Caleb explained he was there with Ellstrom, the bouncer smirked a bit at his hard hat and safety vest. Caleb tugged at the vest as he walked in, wishing that Ellstrom had told him to wear something else. He and the other guys stood out in their fluorescent yellow, and would presumably stand out even more afterwards, when the speeches would begin.

He noticed a five-piece jazz combo in a corner but could not hear them at all. It was hard to believe that the chit-chat could make so much noise. The place was packed; there was hardly any room to move even on the staircase, and none whatsoever on the balcony overlooking Diego Rivera’s mural. Caleb had never heard of Rivera or his murals, but Ellstrom told him that was the big draw of the place. They had to go big or go home, and a giant benefit there would help the business immensely. Even though the building itself was not far, Ellstrom preferred to separate the two events; earlier that day, they cut the ribbon and did the laying-the-ground thing with the photo op with Willie Brown. Now it was time to talk about all the good it did the city and to get some of its more glittering citizens involved.

The willowy woman in the elegant metallic tunic clanged a dessert spoon against her champagne flute. Surprisingly, the gentle chime cut through the crowd noise, which gradually subsided. The woman approached the microphone and said, “we’re so happy to host you today to celebrate Building Futures’ new contract downtown. You can pass by the building and see their amazing progress. But Neil Ellstrom doesn’t just build office buildings; he builds up young people’s futures from the ground up and we are all so impressed by his incredible work. So, without further ado, here’s Neil!”

A loud applause sounded and Ellstrom emerged from a corner, dressed in a crisp charcoal suit, a shy grin on his face. He gently motioned for the crowd to stop; Caleb, who by now had seen him on a few such occasions, knew that Ellstrom disliked too much attention, and liked him even more because of it. As Ellstrom reached to the microphone, a buzzing feedback sound startled him a bit, and he chuckled a bit. The crowd fell very quiet.

“I am so grateful to see you all here today,” said Ellstrom. “I know how busy you all are. And I also know how often you get called on for donations for so many good causes. We appreciate you and have some great drinks and great food for you. But before doing that, I wanted to introduce you to someone very special.”

Caleb’s heart stopped. He disliked attention, but Ellstrom was not like other people. Caleb’s face and palms grew hot. I can’t talk, he can’t make me, he thought, the warmth spreading around his collar drawing his attention and impeding any thought of some planned words. Ellstrom continued.

“He comes to us from El Salvador, walking the desert with his mother and two siblings. And now he has a full time job with us at Building Futures and is graduating soon from City College.”

Caleb’s hands grew clammy, cold sweat gluing his shit to his back.

Chris stepped up to the microphone, his thousand-watt-smile shining brighter than his yellow hard hat. He reached out to the microphone and said, “Hello, San Francisco!” The crowd applauded and yelled. Caleb’s mouth pursed. He doesn’t fit in here any more than I do, he thought. He’s fronting like some kind of deejay to this flush crowd. “I wanna tell you guys a little bit about where I came from and about this guy—” he pointed at Ellstrom—“giving me a chance. Where I come from, we say, ‘He who comes closer to good tree, good shade shelters him.’ So thank you, Neil, for being my good tree.” The audience applauded again, cheering. Jesus, they’re eating out of his hand, Caleb thought bitterly. An ugly thought popped into his head: Neil wants Chris closer to him, more in the limelight, because he’s Latino. I’m not rags-to-riches enough for him. And he immediately felt guiltier for thinking it.

His guilt intensified when he felt a familiar hand on his shoulder. “Hey, Caleb,” said Neil, “I’m psyched to see you here. Have you had any of the champagne?”

“I don’t… they…” said Caleb. Neil burst out laughing. “You’re kidding me. No one’s going to ask you for an ID tonight. Here,” Neil picked up a flute from a waiter’s tray, “bottoms up.”

Caleb took a sip. Amanda and Steve floated before him. Drinking, going out, and what more? You know where that road leads, they said. Caleb shut his eyes and tossed back the entire flute.

“Wow,” said Neil, “I’ve never seen anyone chug Domain Chandon before.” He laughed so hard that tears dotted his eyes. “I’m just teasing you, relax. Let’s see what Chris is up to.”

Yeah, let’s, thought Caleb and followed Neil. Chris was standing near the willowy woman. He had just finished talking and a group of people standing near them erupted applauding. Neil left Caleb, moving behind Chris, placing his arm on Chris’ shoulder. “I’m so sorry, folks,” he said. “I gotta take him away for a moment.” Chris flashed a victorious smile at Caleb. Neil raised an eyebrow at Caleb as he gently directed Chris toward Willie Brown. “Willie,” he said, “I want you to meet a very special young man.”

Caleb turned around and looked for the exit. Neil had helped him find a place to stay—a two-bedroom apartment converted into three miniscule studios. They worked long hours; Caleb was a crew leader now. It was true respite to have his own quiet place, small as it was. He looked forward to going there now. But as he angled his way to the door through the crowd, he felt a finger tapping his shoulder.

“What’s up?” Neil asked. “Off so soon?”

Caleb shrugged.

“I know you’re the real deal, Caleb,” said Neil. “You’re not good at making speeches. You’re the guy I need when I gotta get a job done. My right hand man, right?”

Caleb felt his chest soften a bit.

“Listen, I need you to do me a favor. We got this contract through some friends in Public Works, so we’re hosting a party for them at the Ruby tonight.” Caleb wondered whether the afternoon’s fundraiser would pay for the night’s reveling. “I need you to pick up a couple of guests on Cortland and drop them off at the party, okay?”

“Sure,” said Caleb. Neil tossed him the keys to his car. “Just—” he said, “oh, never mind. Look, make sure they’re properly dressed. This is a nice party, with some pretty flush people, and I don’t want any embarrassment.” Caleb nodded. Neil wrote up the directions on a piece of paper and asked him to bring the guests at half past midnight. “They’ll be waiting for you around midnight at this address.” He scribbled the address on the paper.


Cortland looked deserted at midnight. The cafés, the Jamaican restaurant, all were closed; streetlights shed yellow pastel pools on the sidewalks as Caleb drove up and down steep hills. The address seemed odd; it was a regular residential home, not somewhere he expected to find guests for a swanky party. But when he rang the bell, things became clearer.

A girl opened the door. She was short and very skinny, wearing a black minidress and too much eyeshadow. Her long black hair cascaded down her back. “Are you our ride to the Ruby?” she asked, barely moving her lips. Caleb nodded. The girl turned her back to him and called out to the hallway, “Chanel, we gotta go.”

Chanel, in a skimpy dress as well, her head a mess of shiny curls, came toward them through the hallway. “S’okay, I’m ready.”

Both girls sat in the back seat, holding hands. Caleb, sitting alone in front like a taxi driver, wasn’t inclined to ask questions, as he wouldn’t even know where to begin. The look on Chanel’s face seemed familiar—reminded him of things he preferred not to dwell on—and, while he heard the girls whispering to each other, he could not discern what they were saying.

Instead, he allowed a new worry to worm its way through his mind: Ruby was on Powell and there would be no parking. Should he drop off the girls and find parking? Or should all three of them park somewhere, like at the Mason garage, and walk? The girls were both wearing stilettos and he couldn’t really see them negotiating the inclines around Union Square before even getting to the party. But as the car approached the Ruby, he realized he should not have worried. A valet parking station was set up outside, with a man not much older than Caleb dressed in red.

“Here’s the keys” said Caleb. “Hold on, let me get the girls inside.”

The valet gave him a crooked smile. “I was told there would be a girl drop-off,” he said, “but nothing about you going in.”

“I’m with Ellstrom,” protested Caleb.

“You and the whole world and their wife,” said the valet. But Caleb followed the girls inside. The straight-haired one seemed hesitant about going in, but Chanel was raring to go. A bouncer swung open the heavy door and Caleb was instantly nauseated by the smell of stale beer. There were almost no women inside, mostly an assortment of guys Ellstrom’s age, the music was pounding, and the strobing lights were almost blinding.

Finally, out of a whirlpool of blue lights stepped Ellstrom himself. “Awesome,” said Ellstrom. “Thanks for dropping them off. Who’s Bella? And who’s Chanel?”

Bella did not respond. Chanel flashed a happy smile, which despite—or perhaps because—of her red lipstick made her seem like a little girl. She giggled. “I’m Chanel.”

“Nice to meet you, Chanel,” said Ellstrom. “Let me introduce you to some friends of mine.”

Caleb held out the keys. “No, nah, I don’t need ‘em right now,” said Ellstrom. “You just sit tight outside until Chris shows up. He’ll take ’em off your hands.” He offered an arm to each of the girls and turned away, the doors closing before Caleb. For a few moments, as he looked at them, his mind continued to project the blue strobing lights on them.

CDCR, Don’t Play Tetris with Human Lives

In her 2018 book Building the Prison State, my colleague Heather Schoenfeld provides a retrospective of the incarceration explosion in Florida. The root of the problem–the situation that facilitated the astronomical growth in Florida’s correctional apparatus–was no other than Costello v. Wainwright, a prisoner’s rights case that focused on remedying prison overcrowding.

To understand what happened in Costello we must keep in mind that Florida’s population grew by two million throughout the sixties. That, in combination with an actual rise in crime and the emergence of new, Nixon-sponsored policing techniques, meant that between 1968 and 1972 the prison population grew by 31 percent. This resulted in the horrors and indignities of overcrowding with which we are very familiar in California.

Civil rights attorney Toby Simon, who represented the prison population in Costello, wanted to pursue change–but so did the prison warden. Wainwright was amidst a modernization project, and saw the overcrowded and outdated facilities as hurdles in his path to implement more rehabilitative programming behind bars. Finally, in 1979, a consent decree was reached: Judge Scott ordered a population reduction, and left the method to the state’s discretion. Since the entire Florida system was overcrowded, Wainwright was unable to reduce overcrowding by moving inmates from facility to facility. He had two available courses of action: releasing prisoners (via good behavior or parole) or increasing capacity (via building more prisons.) The consent decree gave equal weight to both strategies.

You can guess what happened: the consent decree gave discretion to the wrong people at the wrong time, and the choice was cynically exploited. Politics in Florida took a decidedly conservative turn, and in the ensuing law-and-order atmosphere, releasing inmates was a non-starter. More prisons were built, and the ensuing outcome followed the classic line from Field of Dreams: “If you build it, they will come.”

Throughout the book, Schoenfeld emphasizes that the disastrous outcomes of the implementation of Costello could have been avoided. I’m not sure I’d go quite that far; I worry that implying that civil rights attorneys have to take into account the cynical exploitation of vaguely decided victories could have the undesirable effect of discouraging them from pursuing remedies for the prison population. But here’s where I completely agree with Schoenfeld: the combination of judicial remedies open to discretion and interpretation with bad-faith actors looking for loopholes because of concerns about political expedience and posturing can be, and indeed has been, poison.

There are important differences between California and Florida, and between the situation in the post-Costello 1980s and the post-Von Staich scenario we have now. But there is an important similarity, and it is this: Population reduction orders that offer the correctional apparatus the option between releases and something else pretty much guarantee that the correctional apparatus will scramble to do the “something else.” In the situation we’re facing now, we’re not going to build new prisons (I think), so instead, in the next few days, we are likely to see CDCR playing a lot of Tetris with human lives.

I would like to caution as emphatically as possible against this course of action. It’s obvious from the decision in Von Staich that this is not what the Court wanted. The opinion didn’t go on and on about elderly, infirm people who have done decades in prison for violent crimes for no reason at all. Would it really hurt so much to consider this? What would be the downside?

Honestly, this is what I think truly worries CDCR officials. As California gradually reopens, we are bound to see somewhat of an uptick in street crime. Crime rates in California, as elsewhere in the nation, are at their lowest rates since the 1960s, and they were further impacted by COVID-19, because the need to shelter in place changed the opportunity structure for committing crime. There are considerably fewer burglary and car break-in opportunities with everyone at home and vigilant in their neighborhoods. Violent crime (with the exception of stress-exacerbated domestic violence) is also down.

It strikes me as a pretty solid prediction that, as the state continues to reopen, these numbers will reverse themselves to a small degree–regardless of who and how many people are released from prison. But there is the very real concern that the media might foment public hysteria about rising crime rates and tie them causally to releases. You will recall that the same thing happened after Realignment (hysteria, no corresponding rise in crime), Prop. 47 (hysteria, no corresponding rise in crime) and after Prop. 57 (hysteria, no corresponding rise in crime.)

Against the tendency to do the political expedient thing, the only thing to do is to exhort our state officials to be responsible adults and rein in CDCR’s appetite for playing Tetris with human lives. The most tragic outcome of Von Staich might be a choice to round up the young and healthy folks and transfer them, untested and unsequestered, to another prison, where this catastrophe could play out again. Even if we get lucky, and it doesn’t, it leaves the older, more infirm people in a facility that is ill-equipped to serve their health needs. What we need is a tribune who will do the right thing and stop this predictable-but-counterproductive pattern from playing out. I think Gov. Newsom can be that tribune, and I urge him to exercise his power to make real, lasting change.

Blackface Scandals Are the Logical Conclusion of the Performative Goodness Race

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

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

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

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

Yarimar Bonilla on Twitter, Sep. 3, 2020

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

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

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

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

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

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

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

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

Brief on Behalf of Amici Curiae Filed in Von Staich, and an Extra Helping of Cruelty

Today I submitted an Amicus Curiae brief on behalf of the ACLU of Northern California and eighteen criminal justice scholars in In re Von Staich, another San Quentin-related COVID-19 relief case pending before the Court of Appeal. You can find the brief here:

AmiciCuriaeBriefVonStaich.pdf by hadaraviram on Scribd

Part of what I discuss in the brief has to do with CDCR’s evasive maneuvers. There are now three COVID-19 prison cases pending before the courts: Plata v. Newsom in federal court, the Marin County consolidated cases, and Von Staich. In each of these cases, the Attorney General representatives are claiming that the court is not the appropriate forum for handling the matter. Not only does this argument lack legal merit–judicial review is part and parcel of the struggle in prison conditions cases, and people are expected to exhaust state remedies before going federal–it is also a cynical evasive maneuver, designed to put off resolution in these cases until people either get well on their own or die. Indeed, at a status conference I attended last week, the AG representative led with the argument that there’s no longer a problem at San Quentin because the rates of new cases are slowing down. I cannot emphasize enough how misguided this line of argument is. San Quentin is not winning the battle against COVID-19. The virus has won–it’s infected almost all the available hosts, two thirds of the prison population, and killed 26 people–and will win again if there’s a repeat outbreak and no measures are taken to prevent it, as it has in five other prisons so far: Avenal, CIW, Corcoran, LAC, and ISP.

It may be that I’m feeling especially livid about this having read Jason Fagone’s story in yesterday’s Chron, according to which grieving relatives of incarcerated people who die of COVID get, in addition to their grief and anger, a cremation bill for $900:

Since the start of the pandemic, 54 incarcerated people have died of COVID-19 in California’s 35 prisons, and even though the deceased were in state custody until they drew their last breaths, the state expects their loved ones to pay burial costs, which can run into the thousands of dollars.

Families and advocates for incarcerated people say the policy is not only cruel, it discriminates against those without means to pay the sudden expenses. And with death numbers rising in the state prisons, the issue isn’t likely to go away.

“It’s a pretty disgusting policy,” said attorney Michael Bien, who represents tens of thousands of California prisoners and knows families struggling to scrape up money to bury incarcerated loved ones felled by the virus. He said the state has a moral duty to pay for a basic burial or cremation of people who die in their custody.

“This is basic human decency here,” Bien said, emphasizing that the financial burden is falling not on those convicted of crimes but on their “children and wives and moms.”

I wonder if CDCR also charges the families for the burial of incarcerated firefighters who are risking their lives to save my life and yours as I type this.