Why I’m Leery of Racial Confessionals

“Americans, unhappily, have the most remarkable ability to alchemize all bitter truths into an innocuous but piquant confection and to transform their moral contradictions, or public discussion of such contradictions, into a proud decoration, such as are given for heroism on the field of battle.”

James Baldwin, Notes of a Native Son

Thrice in the last two weeks I’ve been required–by my workplace, by my mindfulness meditation teacher training–to participate in a public conversation with colleagues about race. “Required” is perhaps the wrong word; no one’s forcing me to attend, and once I attend, it’s not always mandatory to speak. But given Ibram X. Kendi‘s much-quoted exhortation that you can either be racist or antiracist, it doesn’t feel like there’s much of a choice. Moreover, twice I’ve now been called on by name to speak, and in the upcoming meeting we will all be expected to chime in.

If you’ve read this blog before, you probably know how much I care about social change; working on these issues in the criminal justice field is what I’ve done all my adult life. I’ve “done the work,” as my younger friends like to say, many times, not only when waves of racial horror, police killings, or a new horrifying statistic about economic or health outcomes penetrates the collective consciousness and brings about a wave of white contrition and performance. I’ve been through many iterations of the all-too-familiar dynamic Tre Johnson describes in his Washington Post op-ed (he falls into his own trap, but at least he sees the trap.) You, gentle reader, might have navigated these waters at least as often, as a white person or as a person of color (or anything in between), or you may be new to this. It feels dangerous to offer any heresy, but I hope I’m old enough and have earned enough cred in the social justice milieu that I can be transparent: I have serious reservations about the utility of these public conversations, which puts me in a conflicted position about how to responsibly participate.

 First, I’ve now experienced several settings in which people from other countries were required to participate in a conversation that has a quintessentially USian flavor–the themes, the materials used, the examples, the jargon. I’m a naturalized American citizen and have lived here for twenty years–I went to UC Berkeley, for Heaven’s sake–and even I don’t feel fully at home in these conversations. When I use this vocabulary, this inflection, I don’t sound sincere to myself–I sound like I’m ventriloquizing an American, rather than being one. Moreover, I can see how people who come from totalitarian countries might experience these group conversations, which are earnest and kindly meant in America, as echoing the thought-control confessionals and struggle sessions from their home countries (they certainly feel like that to me sometimes, and I didn’t grow up during the Chinese cultural revolution or in a Siberian gulag.) I also worry about the tendency to lump non-U.S. cultures into our bins of “white people” versus “people of color” for the purpose of forming racial affinity groups, which is an oft-recommended practice in books about race. Many people I like and respect get a lot out of participating in such affinity groups, but people who are outsiders to American culture might not feel like they have much more in common with white Americans than with black Americans (and before you tell me it’s about how someone is perceived, or what privileges they get, let me remind you that, as an American, you actually have no idea how people are or are not perceived in their home countries.) Because of these problems, the common exhortation “talk to your fellow white people!” always puzzles me and many non-US-born people I know. Whenever I encounter these discourses and techniques foisted on people who don’t share the context for them I cringe: how can the people who plan and facilitate these sessions bend over backwards to be culturally sensitive in one way while displaying, at the same time, breathtaking obtuseness in another?

Second, the emphasis on rooting racist thought patterns–and on publicly talking about rooting them–leaves me feeling a bit queasy, because ultimately I don’t believe that the serious problems of racial discrimination and white supremacy in America can be cured through the purge of our internal bigotries. In partnering with community organizations fighting for criminal justice reform, and just in writing about this stuff for as long as I have, I have done significant work to dig out the ways that bigotries and biases which support injustices play a part in my thinking. I believe that this work is never finished, and requires lifelong diligence and, yes, mindfulness. But racism is not a personal feature; it is systemic and pervasive. The authors of the recent crop of antiracist literature often agree with this, but their prescriptions for these conversations, and the way the conversations are carried, suggest otherwise. Too often, these sessions look like confessionals in which people discharge their obligations to do the day-to-day work of donating, voting, organizing, and the like, and feel good about themselves simply by talking the right talk while exhibiting their superiority over others who didn’t get the memo. I’ll take a person who quietly donates to the ACLU, supports a candidate of color for a job, but does not proclaim their enlightenment from the hilltops over a self-proclaimed “antiracist” who beats themselves publicly over for their “white privilege” and does nothing else for the cause of racial equality any day. 

Which brings me to my final point: It is deeply important to live an examined life, but this examination, at least for me, loses 100% of its value when it is performed to an audience (see here.) I don’t doubt the good intentions and sincerity of many of my colleagues and friends who have participated in these public conversations, and I’m willing to accept that some may find value in sharing their internal tribulations with others. But I’ll be ruthlessly honest: for me, the minute a ritual of contrition is performed in this public manner, it acquires an unpleasant aftertaste of self-congratulation (and, worse, condemnation of others) that empty it of meaning. Whenever I feel this aftertaste in my own experience, I get suspicious about the authenticity of my perspective, and of my clear alignment with what I’m professing to support. That there are social rewards to reap makes it even worse. My time reckoning for the systemic injustices all around me is far better spent preparing an amicus brief, organizing a press conference, or writing an op-ed, than congratulating myself for my goodness in front of others (and yes, I’m well aware that this can be taken to be another move of moral superiority–“I do, you just talk”–but that’s exactly the point: there’s no end to this if it’s all about a competition of goodness. It’s turtles all the way down.)

This is, by the way, is another way in which the public racial conversation, especially among white progressives, is distinctly American. When I wrote Yesterday’s Monsters, I was struck by the way parole hearings adhered to the formula of a confessional. When people said at their hearings that their way to atone for the murders were to just be as good a person as they could, the Board rejected this; what they wanted was psychic excavation, not pragmatic steps. This was especially poignant in the cases of parole hopefuls who were born-again Christians: the ritual was natural and appropriate for them, but the Board said it was not enough, they needed more. Confession is integral to Catholicism as a vehicle for promoting prosocial behavior–just think of how central Saint Augustine’s confessions of his sinful life were to the demonstration of his profound change. A very similar dynamic is present in Protestant and Evangelical circles. Friends from these worlds, with whom I consulted when working on that part of the book, iterated the rhetorical tendency to up-talk past bad behavior to highlight one’s present transformation (one notable example is George W. Bush, when speaking of his “young and irresponsible” phase before becoming born-again.) This is how a deeply, fundamentally Christian nation–in which just the thought of an atheist President, or one who is not Christian, is still an anathema–performs exercises of moral improvement: You publicly proclaim your sins and someone else tells you it’s not enough. It’s a quintessentially American version of The Pilgrim’s Progress.

I have friends who worked tirelessly for racial equality in the 1960s, 1970s, and 1980s. They are so happy to see new generations wake up and cry out against the horrors of police abuses of force, violent vigilantes, you name it, but they are puzzled by the rituals and processes we’ve come up with. To hear them talk about it, things were much simpler way back when: they marched hand in hand, they helped, and the deeper self examinations of identity stuff were simply not in the mix–either because the language for them did not exist, or because people perceived the existential threats they were battling as so urgent that grappling with their mental hygiene was simply not a priority. I don’t think things were simpler. Reading Bayard Rustin, James Baldwin, and Richard Wright, and of course W.E.B. DuBois, is a solid reminder that the complicated knots of identity have always been there. I know the people who attended the consciousness-raising groups of the 1960s and 1970s struggled with the same knots and performed the same confessions. This country’s identity is as inexorably bound in racial domination as, say, South Africa’s inexorable entanglement with its apartheid past, and no one who lives here can extricate themselves from the tentacles of this legacy. But the simplification, self-congratulation, and jockeying for position in the goodness scale, all that stuff doesn’t feel like the right place to put our energy, and I wish we could find a way to let go of that and do what needs to be done without our various selves getting in the way to the extent that they obscure the path ahead.

Don’t Get Yanked by a Bad Man’s Chain

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

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

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

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

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

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

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

Readings in Deep Ecology and Interconnectedness

Lately I’ve been thinking about environmental ethics quite a bit. I came to it through noticing patterns and values in vegan and animal rights groups, and partnering with my brilliant colleague and precious friend David Takacs to put together and teach our environmental criminology seminar has greatly deepened my interests. Early on in our work together, David and I had fascinating debates about animal ethics, in which he expressed an ecocentric worldview, whereas I took mostly a biocentric perspective. I found the logics and contradictions of my own position interesting, particularly in our debate about trophy hunting regulation, which I recounted here. Long story short, I found myself in the complicated, but ethically juicy, place of trying to reconcile my sense that each individual lion’s life is sacred and nothing short of a complete ban on hunting would reflect the purity of this fact with my understanding that the path toward protecting lions as a species and the indigenous communities that protect them might be regulation and the sale of expensive licenses. I still can’t get over the stumbling block that the lions’ lives are not ours to sell. We have created rules and economies that are alien to the way the world runs, and alien to the way in which we used to live in nature.

I’ve spent the last few months working through Joanna Macy‘s writings and attending two wonderful webinars in The Work that Reconnects. I’ve also been spending a lot of time in nature, experiencing plants, animals, and other natural kingdoms in a reverential and playful context that my pre-COVID life did not have space for. We have grown vegetables and herbs in the garden for years, but now, for the first time, I’m immersing myself in mycology and growing mushrooms (so far from kits, but it’s so interesting nonetheless.) Here’s a great documentary about the marvel of the fungal kingdom:


The theme that emerges from this work, which is enriching my mindfulness meditation teacher training, is interconnectedness-both as a scientific concept and as an immediate, natural, somatic understanding of relationships, cause and effect, cooperation and responsibility.

It was this sense of somatic interconnectedness that brought me to the animal rights world in the first place. I had been vegetarian for many years, interrupted by a couple of years of eating meat because I believed my endurance swimming practice required it, and then went to see Judy Irving’s marvelous documentary Pelican Dreams. The film’s starting point is a brown pelican, found starved and disoriented on the Golden Gate Bridge; Irving follows Gigi the pelican to a pelican sanctuary, and learns more about their lives on between Catalina Island and the Bay Area. Here’s the trailer:

Pelican DreamsTrailer from Shadow Distribution on Vimeo.

Along the way, Irving learns that many pelicans sicken and suffocate from large surplus fish parts that commercial fisheries through back in the water. It was then that I realized that the evils of commercial consumption of animal products, and the cruelties of factory farming, were linked to evils to wildlife and the biosphere in ways that I no longer wanted to be part of. In the six years since watching the film, my family (with the exception of the cats, who, as obligate carnivores, did not choose to live with us and do not do well on vegan cat kibble) has shifted to a completely vegan diet. We cook and bake better every day and are very proud of our home cuisine, into which we bring our heritages as well as dishes from around the world, which we pick up from friends and books. My academic work on animal rights, which includes my book in progress on open rescue activism, comes from my deep personal interest in animal ethics.

A lot of the discourse in the animal rights world revolves around anthropomorphizing factory farmed animals, in much the same way that the rest of the world anthropomorphizes pets. I’m not sure that imposing our sensibilities in that way is 100% accurate, but within the limitations of human perception and language, I understand it as valuable shorthand to speak of animal rights. Many friends are shaken (in a good way) when I tell them that chickens can do math and that pigs are amazing problem solvers. But as much affection and love as I have for our nonhuman friends, my deep commitment to veganism and animal rights comes from my gratitude for the natural world as a whole, and from my deep sadness that we have grossly overstepped our place in the interconnected web of life. Animals have to feed on each other; as Peter Godfrey-Smith explains in Other Minds, interacting with each other as predators and prey was an important shift in the evolution of consciousness. But this applies to the overall sense of balance in our ecosphere, in which animals hunt and kill what they can and need to eat and no more. Our bloated, cruel apparatus of animal farming is so removed from that reality that I recoil whenever someone tries to tell me that ordering a plate of bacon or a steak is “natural.” There is nothing natural about how we do this, nothing sustainable; to refer to our horrific food supply system as part of the “food chain” is beyond offensive; and because it is so deeply out of step with everything I believe, the only resort I have is to opt out of it completely.

To be more versed in the scientific and spiritual aspects of natural interconnectedness, I’m doing a lot of wandering, and watching, and growing food, and also reading. Here are some of the books I’m enjoying lately:

Peter Godfrey-Smith, Other Minds: The Octopus, the Sea, and the Deep Origins of Consciousness

Robin Wall-Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants

Sy Montgomery, Soul of an Octopus: A Surprising Exploration into the Wonder of Consciousness

Paul Stamets, Mycelium Running: How Mushrooms Can Help Save the Planet

Peter Wohlleben, The Secret Life of Trees 

Peter Wohlleben, The Inner Life of Animals

Peter Wohlleben, The Secret Wisdom of Nature 

David Abram, Becoming Animal

David Abram, The Spell of the Sensuous

Chris Johnstone and Joanna Macy, Active Hope

Joanna Macy and Molly Young Brown, Coming Back to Life 

John Seed and Joanna Macy, Thinking Like a Mountain: Toward a Council of All Beings

Rachel Carson, The Sense of Wonder: A Celebration of Nature for Parents and Children

As a postscript, I’ll mention that much of the passion behind my work to save lives of people behind bars from COVID-19, and much of my deep outrage about the three federal executions yesterday, come from befuddlement and grief. At a time in which we are seeing so much tragic destruction of human life, it is perplexing and distressing that not all of us awaken to the realization that all life, human and nonhuman alike, is sacred and calls for reverence and protection.

BREAKING NEWS: Outbreak at Santa Rita Jail; BSCC to Lift Fog off COVID-19 in Jails

Distressing news from Santa Rita Jail: The Mercury News reports:

At least 40 inmates have tested positive for the coronavirus within nearly a 24-hour period, the jail’s largest outbreak since the pandemic began.

The inmates that tested positive are mostly workers in Santa Rita Jail’s kitchen, or laundry services. When asked if the sheriff’s department was worried the virus could have spread to other parts of the jail through the food, Alameda County Sheriff spokesman Sgt. Ray Kelly said the department is looking into it.

“That definitely would be a concern, wouldn’t it?” Kelly said Thursday.

Kelly said jail officials are conducting “contact tracing” to determine where the exposure could have originated. Evidence so far points to the cluster within the same housing unit, 25, which typically holds minimum-security workers.

Angela Ruggiero, Record number of coronavirus cases reported at Santa Rita Jail, San Jose Mercury News, July 16, 2020

This distressing report is the latest addition to a series of newspaper exposés about outbreaks in other CA county jails. As I explained in previous posts, as well as in our open letter to the Governor, save for a handful of reporting jails, reports about infections in jails have been sporadic, with no guiding hand or uniform style. It is astonishing that we’ve had to wait four months for the BSCC to take action, but it’s gratifying that it is finally stepping up and will begin data collection now. The Sac Bee reports:

California’s jail oversight board on Wednesday said it would collect and publish data about COVID-19 cases in county facilities, a response to months of public criticism and an apparently faltering effort to get similar information from the state’s health department.

Jason Pohl, Five months after outbreak, California to publish COVID-19 data on local jails, Sacramento Bee, July 15, 2020

In her letter to CA sheriffs, Linda Penner, Chair of the BSCC, asked them to collaborate in two ways:

Beginning July 20, 2020, we are urgently requesting that each Sheriff and Chief Probation Officer provide facility-level COVID-19 data directly to the BSCC. The data request will include the number of new positive COVID-19 tests for both residents and staff (reported separately), and deaths at each facility each week. We will also make a one-time request for your facilities’ cumulative COVID-19 case information and deaths to date.

In addition, we are requesting that you ensure that your facility health care providers are immediately reporting detailed case-level COVID-19 data to your county public health agency. (Health & Saf. Code, § 120130 & Cal. Code Regs, tit. 17, § 2500.) Every facility administrator should work with their health care providers to ensure that data are being reported timely and completely to your county public health department. We will begin requesting data from each agency on July 20, 2020, and the target date for launching the BSCC COVID-19 dashboard is July 31, 2020.

BSCC Letter to Sheriffs, July 15, 2020

Note that the instructions to sheriffs only include positive tests and deaths. In order to get a sense of what is being done in counties to curb the virus, we must have additional information about the total number of tests, as well as about the methods of social distancing within the facilities (i.e., use of isolation). It is also essential to know information about hospitalizations vs. in-situ healthcare.

Most importantly, this data is essential because, every day, judges make decisions about pretrial detention. As I explained yesterday on ABC7, the pandemic has raised all sorts of due process questions that require tradeoffs, such as whether, for example, the confrontation clause is better served via in-person masked testimony or via an unmasked Zoom appearance. But the most important factor, I think, is that judges must take COVID-19 infection risks into account when deciding bail. With growing concerns in jails, everyone (the public AND the defendant) will be considerably safer if house arrests are prioritized over pretrial detention at a facility that could be a Petri dish for the virus. Moreover, even jails with no infections could quickly become outbreak epicenters if an asymptomatic carrier is sentenced to pretrial detention without proper testing or quarantine. And holding someone in solitary for 14 days for everyone’s safety while they are still, legally, presumed innocent, sounds disproportionately harsh.

Like many of us, I’ll be eagerly awaiting the BSCC tracking tool, and I hope it’ll also contribute to the UCLA COVID-19 Behind Bars Data Project database, which is trying to lift a fog off the data nationwide. But most importantly, I want to urge judges to look at the tracking tool and make public health their top bail consideration.

My Years as a Legal Alien

The Trump Administration’s erratic response to the coronavirus has mindlessly pivoted between posing as if the virus does not exist, is a hoax, etc., and taking absurd measures against a variety of undesirable populations in the guise of pandemic prevention policy. After the flop of Trump’s Tulsa rally, this morning ushers new xenophobic measures: limitations on temporary work visas, which have infuriated tech companies. Thankfully, the news are less dire for international students: colleges, employers, and even some Republican Congress members successfully lobbied to remove Trump’s planned restriction of the OPT visa program, which allows students to work in a job related to their field for at least one year after graduation (three in some science and technology fields.)

My professional and social circles feature many non-U.S. folks working in highly skilled jobs in the U.S., and everyone’s stress and relief were palpable. Even those unaffected by the news were rattled by the prospect of having one’s education halted. I get it, viscerally–I was an international student in the U.S. between 2001 and 2005, first on a J-1 visa sponsored by Fulbright and then on a F-1 visa sponsored by UC Berkeley.

My grad school experience was considerably colored by the events of 9/11, which happened just a few weeks after I arrived in the U.S. At first I struggled to grasp the immensity of the catastrophe, as my psyche was desensitized by decades of suicide bombings back home. But it soon became clear that many political, social, and economical assumptions were to be upended by this tragedy. Embroiled in one new war, then another, amidst conspiracies and factual obfuscations, the US transformed its international relations as well as important aspects of its domestic life.

I was at Berkeley; all around me were friends, colleagues, and professors who were vehemently opposed to the war. For the life of me, I could not fathom who had voted for Bush. It was hard to reconcile my distaste for unwinnable, sticky warfare and the massive destruction it would bring with my sense as an Israeli during the Gulf War of 1991 that the Americans had a duty to protect “us”.

It quickly became apparent that the landscape for foreigners in the United States was going to be different. My trips in and out of the U.S. became stressful events involving long lines, paperwork, multiple identification methods and interrogations. In 2003 I flew to Israel to conduct fieldwork for my dissertation. While there, my J-1 visa sponsorship ended (Fulbright sponsored me for two years) and I had to undergo a process to transfer the sponsorship to Berkeley and change the visa type to F-1. My application got bogged down in the general 9/11 paperwork brouhaha and my departure back to school was delayed by months (extremely stressful at the time but, in hindsight, a blessing in disguise, as I was able to conduct a lot more field observations, including two full criminal trials for conscientious objectors.) My return trip in 2003 was unforgettable. At JFK, my passport was taken away from me and I was diverted from the normal immigration line to the secondary room, where we had no access to washrooms and were forbidden the use of our phones. Not a single person in the room, which was full of crying babies and frightened adults and children, held a passport hailing from the global North. It was one of many experiences I had as an international traveler getting a peek (for someone usually carrying considerable social advantage because of my appearance and language fluency) into the lives of people from countries that the U.S. deems “suspect.” After two hours, fearful that I would miss my connecting flight, I obsequiously stammered to the person at the counter. Within a few moments, my passport was returned to me and I left the room, running, leaving behind dozens of equally fearful and timid fellow passengers.

The remainder of my involvement with the U.S. government until I received my citizenship in 2015 was characterized by the dialectic between two conflicting messages. My academic community, including my school, my workplace, and my professional associations, usually (but not always) communicated appreciation for diversity, happiness to have me and other foreigners in the U.S. research world, and a sense of value for my outsider perspective on American criminal justice (a handful of people were dismissive and patronizing, even after decades of living here, but most were great.) All my interactions with the U.S. government, on the other hand, communicated the message that I was an upstart interloper out to steal a job from an American citizen. I remember the hesitation and fear to bring up visa process and funding with potential employers as I was flying to job interviews in America, jetlagged and exhausted. I vividly remember being in a bind when I had to return to the U.S. to take the job at Hastings, with just a few days left to complete my two-years-in-my-home-country Fulbright requirement; they counted every day, including the brief vacation my partner and I took in Istanbul. That the missing days would be spent in Israel during the academic summer vacation, while I would miss the actual semester in the U.S., did not matter. When I found one visa category that would enable me to bypass this problem, the O-1 visas for “extraordinary aliens”, my visa sponsor at Fulbright asked me with a voice full of disdain whether I deigned to think I was extraordinary.

My fear of the government did not subside during the O-1 years, nor did it disappear when I was granted my Green Card in 2009. Any silly, mundane conflict, including a noise complaint to our landlord by our downstairs neighbors, ushered in unreasonable fears of deportation. I steered clear of any environment in which even a whiff of marijuana could be detected, including asking friends (who thought I was paranoid, and probably rightly so) not to keep the stuff in their house while I was there. Before, and especially after, the Snowden revelations, I communicated with all my friends and colleagues under the assumption that every word I uttered or wrote was monitored. Even now, having been an American citizen for five years, my fear has not completely evaporated; I know the Trump administration revokes naturalized citizenships and, living under this unlikely but not impossible cloud, I will never be a 100% inalienable member of my new country.

Keep in mind that this narrative comes to you from a standpoint of considerable social advantage. I did not come to the U.S. from the global South or from a Muslim country, but rather from a country occupying a role in the U.S. cosmology somewhere between petulant child, exotic suspect, and privileged protégé; I am a highly educated professional with a comfortable salary working at a public institution in a blue state. Multiply the fears and entanglements manyfold and you’ll get a sense of how many immigrants and nonimmigrant students and workers experience their interactions with the government. Moreover, consider that I became a citizen during the Obama years, welcomed to America at a lavishly decorated venue in which we received warm speeches about the value of diversity we bring to the country, and invited to stand up when our country-of-origin’s name was called out with everyone cheering us. As soon as we exited, smiling, cheerful people welcomed us to booths where we could immediately apply for a passport and register to vote. A friend who naturalized in 2018 reported very different sentiments; by contrast to the beautifully written letter I received from President Obama in 2015, addressing me as his “fellow American”, he received nothing from Trump, and the cold, unpleasant ceremony emphasized themes of assimilation and erasure.

All of which is to say–these developments, ostensibly for pandemic response reasons but truly a continuation of this administration’s xenophobic persecution project, frighten and upset me. My heart goes out to the people whose world is shaky and uncertain today and to the hundreds of thousands of people who do not even have the privilege to experience this shakiness because their entire experience of living here is rife with the peril of discovery and removal. And most of all–the heart goes out to the children. The poor, frightened children, separated from their parents, and held in concentration camps, neglected, abused, sobbing, dying, growing up in fear and trauma. May we all do the right thing this coming November. This nightmare must come to an end.

On Credibility and Goodness

The last few days have seen numerous stories discrediting Tara Reade, the woman who accused Joe Biden of rape, to the point that convictions based on her testimony could be overturned.

After reading these stories, I sat with my emotions, realizing I predominantly felt relief. Now I could vote for Biden, which I was going to do anyway, *and* not feel like a person tainted with badness and dishonesty. I am not the hated, unprincipled centrist! I am not a traitor to the feminist cause! I can be utilitarian and good at the same time! Looking around progressive social media, I could read the same sentiment between the lines of all commentators rushing to malign Reade. We are vindicated as Good People (TM) and can go ahead and do the right thing with our virtue unsullied.

This sense of relief told me something important–something that I had been talking around for years, even as I wrote about the Kavanaugh confirmation hearings and about progressive punitivism in general. Regular readers know that the progressive tendency to fiercely advocate for due process and abolitionism and all that jazz, only as long as it’s not someone we (the collective “we”) hate, has irritated me for years. In my article about progressive punitivism I ascribed this tendency to the overall prevalence of punitivism as the go-to tool to approach any social malaise. Americans of all stripes and political persuasions, I said, have been so steeped in the idea that the only tool they have is the criminal justice hammer that now everything looks like a nail to them.

I’m beginning to think I’ve let progressives off the hook too easily. As I recently said, I’m realizing that, even in the most supposedly benign, nonpunitive, restorative, transformative, call-it-whatever-fancy-name-you-like process, the bottom line–even when wrapped in do-gooder jargon, everything boils down to the underlying question: What happened? Is the victim telling the truth? Is the offender telling the truth? Who should we believe?

My colleagues at the Cultural Cognition Project have conducted a robust series of experiments, using factorial vignette surveys, which have proven again and again that people’s world views, particularly whether they are authoritarian or communitarian (read–roughly equivalent to the stereotypical American right-vs.-left-winger), significantly shape the way they not only form opinions, but perceive facts. Every year I rely on their excellent experiment involving Scott v. Harris, in which their conservative and progressive respondents differed on their perception of the same car chase video–the former believing that the driver risked the public and the police to the point that the police was right to run him off the road, the latter believing that the police was at least partially, if not wholly, to blame for the outcome. This was not a high school debate; the respondents all viewed, with their own eyes, a grainy but informative six-minute black-and-white video of the chase. But what they viewed and what they saw were two different things, with the latter strongly shaped by their life experiences and values.

No one is immune to these distortions; if biases and heuristics didn’t cloud our rationality, Daniel Kahneman and Amos Tversky’s work would not have won the Nobel prize. But from the people who present themselves as the party of truth, the antidote to the Trumpian web of lies and fantasies, one expects better.

The issue of false allegations and #believewomen is a classic example. There is factual disagreement, which maps neatly unto political dividing lines, on what percentage of complaints about sexual harassment/assault/abuse are false. The actual percentage is obviously unknown, so our life experiences and values fill it in. Thing is, the progressive side of the map has wrapped its beliefs about this in an issue of virtue. The groupthink is so powerful not just because this is what we believe, but also because anyone who believes otherwise is a bad person. Progressive ideology props itself up by the self righteousness of its devotees. To be deemed a bad person, a person without virtue, is destructive in this milieu. To minimize the very real and understandable distress that people feel at being discredited morally, publicly, via social media as some sort of expression of liberal-centrist privilege or “white tears” is to miss out completely on how oppressive this thought control machine has become, and how even questioning the bon ton can discredit and destroy people’s careers, relationships, and reputations.

There are many harms stemming from this equivalence between factual perceptions and moral virtue. As some have pointed out apropos the Tara Reade business, every false complaint harms the credibility of true complainants. But this story has also brought into crystalline focus the discomfort people feel when they have to backtrack from one of these #believewomen situations that turn out to be unmerited. We already know the truth doesn’t matter anymore. What matters is that now there is plenty out there, circulating around social media and people’s minds, about Joe Biden and rape. What matters is that people with valuable information who might question or discredit unproven allegations have hesitated–and will continue to hesitate–to come forward out of fear of appearing to be bad people, with all the professional and personal implications of lack of virtue that are all too real for progressives. What matters is that our feet are glued into the sticky cesspool of virtue, like flies caught in molasses, and it keeps us from coming to every situation we encounter, particularly those with very high stakes, with a beginner’s mind, ask ourselves, “is it true?” and answer, “I don’t know.”

State Asks Federal Court to Modify Plata Requirements

In a late filing on Friday, the State of California argued it cannot comply with Plata requirements to reduce the inmate population by 33,000, and should not be made to do so. The Chron reports that CDCR –

. . . said it can provide adequate medical care at higher population levels – about 6,000 higher – than the Supreme Court required in its May 2011 ruling.
Department officials rejected the three-judge court’s suggestion that the state could comply with the population standards by releasing some prisoners early without endangering the public. Those possibilities would include granting inmates greater sentence reductions for good behavior and expanding Gov. Jerry Brown’s realignment program, which has moved low-level felons from prisons to county jails.

“The Supreme Court did not authorize the early release of prisoners,” state lawyers told the court. Continued enforcement of the requirement to reduce the inmate population to 112,000 by next June, they argued, “will come at a significant, and legally unnecessary, cost to the state” and also “interferes with the state’s democratic processes.”

Instead, state lawyers said, the court should increase the population target to 118,000, a goal the prisons can meet by March 2013. Recent improvements in prison health care – which has been under federal court supervision since 2006 – show that “constitutionally adequate” care can be provided without further reductions, the lawyers said.

Ironically, CDCR now openly argues that the path to “compliance” involves some people-shuffing rather than a real effort to decarcerate:

If that target stands, state lawyers said, California’s only recourse would be to cancel plans to return about 5,000 inmates from prisons in other states, where they have been temporarily transferred. That would help lower the population to 112,000 by December 2013, they said, at a cost of more than $300 million to the state, while keeping the inmates separated from their families.

Readers – do you think, as Don Specter argues in the article, that CDCR never “meant to comply” with the Plata order? Or that there was a bona-fide attempt to do so and, confronted with the realities, they changed their minds?

A 175-Year Sentence for a Juvenile: Is It Life Without Parole?

Ryan Gosling in Fracture (2007).
Image courtesy Allmoviephoto.com. 
We’re coming in from our semi-hiatus to report on an unusual sentencing decision currently on appeal at the California Supreme Court, People v. Núñez. The New York Times reports:
The California Supreme Court is currently reviewing a case in which a juvenile defendant received a sentence of 175 years, which the state attorney general insisted “does not foreclose the possibility that he may one day be eligible for parole.”
The absurdly high sentence is an attempt, of course, to bypass the Supreme Court’s decision in Graham v. Florida, which declared life without parole unconstitutional for juveniles for any offense other than homicide. 
The Appellate Court in Núñezwrote:
Here, we explain again that juveniles who commit nonhomicide offenses do not share identical culpability with adult offenders who receive LWOP sentences for the same offenses.  (Nuñezsupra, 173 Cal.App.4th at p. 726 [“Age . . . matters” and “Youth is generally relevant to culpability”].)  The United States Supreme Court recently determined the immature and potentially malleable nature of juveniles precludes a judgment at the outset that a nonhomicide juvenile offender will never be fit to reenter society.  (Graham v. Florida (2010) __ U.S. __; 130 S.Ct. 2011 (Graham).)  Graham invalidated a de facto sentence of life without the possibility of parole as a sentencing option for juveniles who do not kill.  (Id. at p. 2030.)  As a practical matter, the consecutive life sentences the trial court imposed here denied Nuñez any possibility of receiving a parole hearing.  We perceive no sound basis to distinguish Graham’s reasoning where a term of years beyond the juvenile’s life expectancy is tantamount to an LWOP term. 
Beyond the obvious facetiousness in remarking that one might be eligible for parole after 175 years, there’s a deeper issue here, which has to do with the sort of creative “tricksterism” on the part of the prosecution that results in asking the court for this sort of sentence. In a really great law review article, Carrie Menkel-Meadow argues that the abundant representation of lawyers in popular culture has created multiple models of viewing their ethics. Here’s the table she uses to analyze the various sources based on their treatment of lawyers’ acts or character:

It strikes me that a good way to transcend the positive/negative distinction, for both professional acts and professional character traits, could be examining the extent to which the lawyer deviates from an uninspired, technical adherence to the obvious black letter law. The acts in question could be dragging unexpected parties into the trial, making an unexpected argument, or engaging in some unusual sleuthing maneuver. Let’s call the character trait that informs such acts, for the sake of discussion, creativity.
I haven’t empirically tested it, but my sense is that we see a lot more portrayals of creative defense attorneys than prosecutors. We sort of expect defense attorneys to be represented as using legal loopholes for “getting their clients off on a technicality.” Portrayals of creative prosecutors, who come up with original arguments and use legal loopholes for conviction and harsh sentencing, are few and far between, but they do exist. One notable example that comes to mind is Kelly McGillis’ portrayal of the prosecutor in The Accused, where following an unsuccessful rape prosecution she tries – and succeeds in – convicting the spectators and bystanders. Another one is Ryan Gosling’s portrayal of the prosecutor in Fracture, who is involved in a battle of wits with the defendant. Both of those portrayals evoke a great deal of sympathy for the prosecutors, who are using the tools that they have to put despicable and dangerous people behind bars. And it is this sort of positive representation of prosecutorial creativity that I have a serious problem with.
There is no absolute symmetry in the criminal process. Defense attorneys represent the client (setting aside for a minute the problematic perception of public defense) but prosecutors represent the state.This distinction has important implications: Prosecutors have an array of police and state power tools at their disposal. Since most defendants are not like the Anthony Hopkins character, but disproportionately poor people of color, prosecutors wield even more power, and resorting to trickery and creativity to “nail” someone strikes me as cynical abuse of authority. Arguing that “well, theoretically this kid could live to the ripe age of 200, in which case he could potentially come up for parole” reads as if the prosecution is smirking. And smirking has no room in representation of the State.
And I haven’t even started on the trial court that accepted this sort of argument. What could the judge possibly be thinking? Hurray, I’m so smart that I managed to bypass Graham and subvert the Supreme Court?
We’ll be closely following this case and hoping that the CA Supreme Court reaches the right decision. Because there should be no smirking when sentencing a juvenile offender, no matter how heinous his act, to decades in prison. It is a tragedy, and creative maneuvering has no room in a tragedy.

60% of Louisana prison doctors have been disciplined


60 percent of prison doctors have been disciplined

SF Gate – Associated Press

Nearly two-thirds of the doctors working in Louisiana’s prisons have been disciplined by the state medical board for issues ranging from pedophilia to substance abuse. The Times Picayune reports about 60 percent of the state’s prison doctors have disciplinary records, compared with 2 percent of the state’s 16,000 or so licensed medical doctors

Dr. Casey McVea, the medical director and sole full-time physician at Rayburn Correctional Center, pleaded guilty in 2004 to possessing 41 images of hardcore child pornography and a movie containing prepubescent child porn. He served four years in federal prison and is still on federal probation. The medical board has restricted him to adult patients.
Dr. Randy Lavespere, the assistant medical director at the Louisiana State Penitentiary at Angola, spent two years behind bars for purchasing $8,000 worth of crystal meth from an informant at a Home Depot parking lot. His medical license was reinstated in October 2009 on the condition that he practice in an “institutional, prison or other structured setting.”