Post-Election Thoughts

The Scorpion and the Frog

The results of the election did not bring me immediate solace. I’m sure this has been the case for many folks who found it difficult to take off the psychological backpack we have been carrying for so long. In my case, the psychological weight is the product of daily engagement with this administration on various public forums, including having to spend least thrice a week, WEEKLY, for the last four years, in TV stations and radio studios talking about this. In November 2016, when I lost the fight for death penalty abolition and my beloved cat Spade on the week of the election, I made it my mission to be an expert in everything these cartoon villains were cooking up, and every morning I sat up abruptly in my bed, with my first thought being, “it’s already morning in D.C., what has he done today?” Every time I saw an unrecognized number on my phone it was a TV producer or journalist asking me things that I had to cram on. I’ve crawled through information on abominable, underhanded things that I could not have even imagined possible before the last four years. Engaging with this sewer of an administration every day, including weekends, has brought exhaustion and stress into our family life, soured my good humor and my patience at work, and taken a real, measurable toll on my health. Doing upbeat explainers, volunteering, and taking abuse via phone and text from voters has felt like wading through a swamp, and even though I wore my psychological hip waders, I resent and revile this administration for demanding that I set aside my own grief, decency, and decorum, and be constantly on-call to respond to venal, opportunistic excrement. After I gave the explainer on Justice Ginsburg’s replacement process, I could barely get out of bed for a few days.

But the miasma in my soul is slowly dissipating. The first time I felt truly rapturous was when I got a letter from Traci Felt Love, the organizer of Lawyers for Good Government. The letter reminded me of when we started L4GG and brought back the incredible week in which we shut down San Francisco International Airport in reaction to the Muslim ban. It was only then that the magnitude of our success in dethroning this monster started to hit me, and I’ve been slowly digesting it.

One thing that has greatly helped is ignoring the legal pageant of the absurd that Trump is mounting in various courts around the country. I have given myself permission to disengage from all his frivolous lawsuits, antics, last-minute personnel juggling, and desperate cries for attention. In January, no matter what happens in the interim, Joe Biden will be President of the United States. Whether Trump concedes (ya think?), resigns (hmmmm), flees to the Cayman Islands to a mansion with golden toilets (on brand) or is dragged out of the White House in handcuffs (appealing but dangerous), the outcome will be a change in administrations.

It’s useful to keep in mind the story of the scorpion and the frog. A scorpion, which cannot swim, asks a frog to carry it across a river on the frog’s back. The frog hesitates, afraid of being stung by the scorpion, but the scorpion assures the frog he won’t do that: “If I sting you, we’ll both drown, right?” This argument convinces the frog, which agrees to transport the scorpion. Midway across the river, the scorpion stings the frog anyway, dooming them both. The dying frog asks the scorpion why it stung despite knowing the consequence, to which the scorpion replies: “I couldn’t help it. It’s in my nature.”

Trumps are going to Trump. Giulianis are going to Giuliani. McConnells are going to McConnell, with or without us as their audience. It’s far more productive to focus our attention on the upcoming races in Georgia.

Drug Truce

Throughout the country, drug law reform gained more momentum. This wonderful post on the Drug Policy Alliance blog summarizes some of the main reforms, the most impressive of which was Oregon’s approval of Measure 110. The next step in procuring a truce on drugs was always going to be branching beyond marijuana, and for various political reasons that are difficult to explain to people outside California, I expected another state to move in that direction first.

What I find especially thrilling about the passage of Measure 110 is that it could open the door to an important dialogue about the value and benefits of psychedelics. MAPS has been leading the charge on declassifying these important substances and acknowledging their potential to help people with depression and trauma, as well as foster spiritual growth. Little by little, the hypocrisy is dissipating, but it’s going to happen on the state and local level first.

When the Perfect Is the Enemy of the Good

Amidst my joy about the passage of Prop 17 and the failure of Prop 20–a reactionary law-and-order package–the demise of Prop. 25 brought me some anguish. As I explained elsewhere, all the arguments against the abolition of cash bail were ridiculous except for one, which had superficial appeal: the idea that “algorithms are racist” and that we would end up with “something worse” than cash bail. Aside from the fact that it’s hard to imagine how risk assessment is “worse” than debtor prisons straight out of a Charles Dickens novel, there’s a basic misunderstanding of how algorithms work. I have been explaining and explaining, but for some reason am not getting through to people captivated by woke rhetoric: ALGORITHMS ARE NOT RACIST. They predict the future on the basis of the past. If they have racially disparate outcomes, it’s because they reflect a racist reality in which, for a variety of systemic, sad, and infuriating reasons, people who are treated like second-class citizens in their own country commit more violent crime. The overrepresentation of people of color in homicide offenses and other violent crime categories is not something that progressives like to talk about, but it is unfortunately true–not just a mirage caused by stop-and-frisk in low-income communities. The reasons why more African American people commit more homicides than white people are the same reasons why they are arrested more frequently for the drug offenses they don’t actually commit more than white people: deprivation, neglect, lack of opportunities, dehumanization and marginalization on a daily basis. Solving these problems requires an administration committed to treating its citizenry fairly, not sweeping them under the rug by ignoring predictive tools that show what is actually going on. So powerful is the progressive self-deception that the ACLU, initially a supporter of eliminating cash bail, opted not to have a position on the ballot, because of the optics. I can’t even begin to tell you how many people I like and respect opposed Prop 25 using organizations’ positions as proxy, as if they couldn’t think for themselves. These organizations’ and people’s fears of being perceived as racists by supporting “algorithms,” the bogeymen of the left, was so overpowering that it hijacked the very real possibility to get rid of an actual, real, on-the-ground, in-the-open perversity: the only-in-America notion that people should pay money for their pretrial release.

The counterargument, made by some thoughtful folks, was that rejecting Prop. 25 would lead to a better proposal to abolish cash bail. But this argument exhibits deep ignorance of how political gains are made. Part of why I’m so upset about this is that I’ve already lived through a horrible round of the Perfect-Is-the-Enemy-of-the-Good game. Back in 2016, when we campaigned for death penalty abolition, I had to respond to arguments by progressives who thought that abolishing the death penalty was going to somehow “retrench” life without parole. The preciousness of this view infuriates me. As I explained until I was blue in the face, political progress is made incrementally. You can’t get to LWOP abolition without death penalty abolition. Expecting ballot propositions, which have to rely on broad coalitions, to be tailor-made to one’s exquisitely purist views about the public good is a recipe for disappointment. And, as Gov. Newsom said, the demise of Prop 25 essentially eliminates any possibility, motivation, or energy for getting together the “more perfect” solution to the bail problem that activists are yearning for. So, instead of celebrating the end of cash bail, progressives have yet again been duped into failing their own cause because the compromise wasn’t photogenic enough for them, and the big winner has been the bail bonds industry–you can see in this piece how effectively these scoundrels have coopted wokespeak to keep Victorian debt prisons alive.

Got a Sane Idea? Great! Wrap It in Sane Packaging

Just read a terrific Mother Jones article, which highlights the success of various local initiatives to divert resources from policing to less confrontational alternatives. Beyond my satisfaction with this outcome, I’m pleased with the rhetorical strategy used in these initiatives.

In the aftermath of the killing of George Floyd, many advocates were making proposals that sounded scary, because they were wrapped in odious movement jargon (defund! abolish! dismantle!). Thing is, the proposals themselves were not radical or insane; they were sane enough that even people who were victimized in scary ways could see the logic in them–if they had the background to understand them. Alternatives to policing are not earth-shattering discoveries. Anyone, not just hyperprogressives, who walks around the Tenderloin these days can sense the palpable shift in energy since the arrival of the wise and conciliatory Urban Alchemy folks. All these propositions are doing is rolling back the Nixonian logic, according to which you somehow get more justice if there are more cops, riot gear, and weapons on the streets. We were sucked into this insanity in the 1970s with the LEAA funding scheme, and later in the 1980s with civil asset forfeiture. You could be forgiven for thinking that “defunding the police” is an extreme proposal if you’re not familiar with how police departments used to be run before they became bloated paramilitary organizations.

But the success of this measures was not only rooted in their inherent reasonableness (and cost-effectiveness.) It was rooted in wise, matter-of-factly packaging, which offered positive alternatives to policing that people could get behind. There is an important lesson here for progressives looking for referendum victories, which I very much hope will be learned: packaging matters. Offering people a realistic vision of humane, therapeutic, preventative public safety works better than wrapping sane, totally plausible ideas in flurries of self-righteous performativity. And that means resisting the cultural zeitgeist, which pushes the movement to flood social media with the most preposterous, off-putting jargon, even when proposing things that would appeal to a broad swath of the population.

When incendiary terminology is used to explain sane, effective reform, more time is spent debating the terminology and performatively defending it than discussing the policies themselves. People who are put off by the rhetoric are exhorted to “check the website,” “do the work,” and “educate themselves” by folks who do not inspire any desire to engage any further with them or with their ideas. Indeed, one of the dumbest aphorisms of this movement is the classic “it’s not my job to educate you.” It’s nobody’s job to educate anyone else (except, in the case of teachers, their actual students.) But hurling insults and disdain on people, piling nonrequired homework on their backs, hiding good ideas behind performative nonsense, and finding fault in people asking to know what they’re expected to support and vote for, is not particularly likely to induce them to take the trouble to learn somewhere else. Decrying the burden of “unpaid emotional labor,” another unfortunate classic, is also not particularly persuasive. Not everyone needs to dance through their revolution like Emma Goldman, but very few people want to get flogged through it. Corollary: If you call yourself an activist, and you want to bring people to your coalition, yes, it is part of your job to educate them. I’m so pleased that the advocacy for these proposals took a different approach, one that voters could get behind. The result will be safer and happier streets in many U.S. cities.

Nov. 2020 Ballot Endorsement: Yes on 25

Once upon a time, I was at a quantitative research conference, in which I was assigned to comment on a paper by two economist colleagues, Frank McIntyre and Shima Baradaran. They ran the numbers on bail, detention, and pretrial release, and found that, when controlling for severity of the offense and for criminal history, there was no racial discrimination in these pretrial decisions. The math was impeccable–far above my paygrade–because Frank and Shima are excellent at what they do. Their findings were deeply demoralizing: because race is so deeply baked into the American way of life, it turns out that people of color commit more of the kinds of offenses that land them in jail pretrial–either because of pretrial detention or because of bail amounts they can’t pay. It’s one of many examples in which well-intended efforts to scrub out race fail because of its protean quality: you hide it here, it pops up there. Yes, people of color do commit homicides and other violent crimes with more frequency than white people, and this happens for the same reason that they get more frequently arrested for the drug crimes they do not commit with more frequency: systemic racism. If we can’t address basic issues of deprivation, neglect, intergenerational poverty, and lack of opportunities for people of color and in low-income neighborhoods–crime will persist for the same reasons that criminalization persists.

This is the basic issue undergirding the debate about Prop. 25: In a world plagued by systemic classism and racism there are no good choices, but some are better than others. Prop. 25 invites us to affirm a reform adopted by the California legislature two years ago, which has not yet gone into effect: the elimination of cash bail. Lest you be confused, know that a “yes” vote affirms the reform and rejects cash bail; a “no” vote rejects the reform and keeps cash bail in place.

Under a cash bail system, the judge typically looks at a bail schedule–a “price list” that attaches monetary amounts to offenses based on a crude severity scale. The price listed for the offense with which you were charged is your bail amount. Since this is not the kind of money most people have available, there’s a workaround: the bail bonds industry. The defendant or their family pay the bail bondsman a nonrefundable amount, typically a tenth of the bail amount, and the bail bondsman essentially assumes the risk of absconding (“jumping bail”) or reoffending vis-á-vis the court. The existence of this industry negates any risk-based element that the cash bail system might have, because the person doesn’t actually bear the risk of their own pretrial behavior. Worse, as per this amazing exposé by my colleague Josh Page, the predatory bail bonds industry essentially feeds off the sacrifices and risks of women of color, who pay the premiums and co-sign the bonds. Even the amount owed to the bail bondsman is far more than many families can afford, which is why poor people who are at low risk of absconding or reoffending remain behind bars, as my colleagues Hank Fradella and Christine Scott-Hayward explain in their book Punishing Poverty.

The 2018 reform sought to replace this unfair system, which explicitly locks people up pretrial because they are poor, with a risk-based, no-cash model. The judge would use a risk-assessment tool to calculate the risk of absconding and reoffending and decide on release and limiting conditions accordingly.

Because cash bail is so atrocious, it is difficult to find a “no on 25” argument that isn’t equally atrocious (“people have a right to pay bail” takes the cake–I swear it’s in the voter brochure), but there is one that has superficial appeal: risk-assessment algorithms, even when they don’t explicitly factor in race, can factor in variables that closely correlate with race (including, for example, one’s arrest history) and thus exacerbate racially discriminatory outcomes. In other words, we are replacing the existing system with something that might be just as discriminatory, made worse by the facade of statistical/actuarial neutrality.

The problem with this seemingly appealing argument is that it completely misses the point of why race correlates with these race-neutral variables in the first place. My colleague Sandy Mayson has a fantastic paper, aptly titled “Bias In-Bias Out”, in which she explains:

[T]he source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology. The deep problem is the nature of prediction itself. All prediction looks to the past to make guesses about future events. In a racially stratified world, any method of prediction will project the inequalities of the past into the future. This is as true of the subjective prediction that has long pervaded criminal justice as of the algorithmic tools now replacing it. What algorithmic risk assessment has done is reveal the inequality inherent in all prediction, forcing us to confront a much larger problem than the challenges of a new technology. Algorithms shed new light on an old problem.

Ultimately. . . redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk. [C]riminal law and policy should, first, more clearly delineate the risks that matter, and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion—in which case they cannot justify state coercion. To the extent that we can reliably assess risk, on the other hand, criminal system actors should strive to respond to risk with support rather than restraint whenever possible. Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support.

In other words, the algorithm is not “racist” in itself, and it can’t “scrub” racism out of the system. It reflects a racist reality in which, for a variety of systemic, sad, and infuriating reasons, people who are treated like second-class citizens in their own country commit more violent crime. In fact, the same problem is baked into Frank and Shima’s findings about the existing cash bail system: At the conference, our colleague W. David Ball, who was in the audience, astutely pointed out that the outcome was pretty much to be expected given the fact that, in California as in many other states, judges make pretrial release decisions on the basis of bail schedules–“price lists” that attach monetary amounts to offenses based on a crude severity scale. The overrepresentation of people of color in homicide offenses and other violent crime categories is an inconvenient truth for progressives–look at the report of the National Academy of Sciences on mass incarceration and at the evasive rhetorical maneuvers they use when they talk about this. Unfortunately, it is true, and as I explained above–the reasons why more African American people commit more homicides than white people are the same reasons why they are arrested more frequently for the drug offenses they don’t actually commit more than white people: deprivation, neglect, lack of opportunities, dehumanization and marginalization on a daily basis.

When you vote yes on 25, you are not exacerbating potentially racist outcomes from the algorithm. I can already tell you that the outcome will be racist, because it will reflect the reality, which is racist also. What you would do is eliminate the existing approach, which removes risk from the equation (because of the bail bondsman as the middleman) and lands people in jail simply because they cannot pay the bail amount. It won’t fix what is already wrong in the world, but it will take one slice of it–screwing people over because they are poor–and make it better. Vote Yes on 25.

Bail: Freedom, Capitalized

This video, produced by the ACLU and Beyond Bars, was posted in a story that appeared this week on The Nation, titled, Should It Cost Less to Get Out of Jail If You’re Rich?  It is an introduction to the bail bonds industry, its budgetary backing, and the way it affects people of different economic backgrounds.

Bail research is fascinating. In the late 1980s, Michele Sviridoff found out that judges gave a “discount” to defendants making bail in cash. G.P. Monks found that the police was ineffective in assuring that people showed up for trial. But research from 2011 shows the extent to which the bond industry has been privatized. Mary Phillips, doing research in New York, finds that bail bondsmen’s share of the industry has significantly grown, and that their actions magnify the alredy-existing socioeconomic gaps.  Brian Johnson and Ruth Stevens find that states place very few regulations on the bonds industry and on licensing to become a bail bondsman. According to this Justice Policy Institute report, the bail industry is not cheaper than the alternatives, and it is incredibly prone to overcharging and corruption. It is also backed by powerful profiteers. Shadd Maruna and colleagues even predict that people will be able to leave prison on parole after posting “post-conviction bail.“

Conversations about prison privatization often ignore bail bonds, which are one of the first stops on the criminal justice train. It is worthwhile to take a look at costs, incentives, and class disparities even in these early stages of the criminal process.

———-
Props to Amir Paz-Fuchs for The Nation link.