Israel and the U.S. – Emergency Measures

Political historian Heather Cox Richardson writes a daily news digest titled Letters from an American. In last night’s edition, she flagged the story about the DOJ secretly seeking emergency powers. She writes:

In the last two days, we learned that the administration and Republican members of Congress heard dire warnings about the coming coronavirus and continued to lie to the American people, telling us the Democrats trying to alert us were simply bent on undermining Trump. 

We also learned that Trump has refused to use the Defense Production Act, passed under President Harry S. Truman, who used it during the Korean War. This law would enable Trump to demand that American industries produce the medical equipment we currently need so badly. Business leaders say the invoking the law isn’t necessary, and Trump claims they are volunteering to produce what the nation needs in a public-private partnership. Currently there is such a critical shortage of medical equipment that some hospitals are asking people to sew basic masks at home, but today Trump announced that the clothing manufacturer Hanes is retrofitting factories to make masks; it has joined a consortium that is expected to produce 5-6 million masks weekly. 

These two stories reveal the same ideology that would underlay a law permitting arrest and imprisonment without trial: that society works best when it defers to a few special people who have access to information, resources, and power. Those people, in turn, use their power to direct the lives of the rest of us in larger patterns whose benefit we cannot necessarily see. We might think we need medical supplies but, in this worldview, using the government to force individual companies to make those supplies would hurt us in the long run. This ideology argues that we are better off leaving the decisions about producing medical supplies to business leaders. Similarly, we need leaders to run our economy and government, trusting that they will lead us, as a society, toward progress. 

But there is another way to look at the world, one that is at the heart of American society. That ideology says that society works best if everyone has equal access to information and resources, and has an equal say in government. In this worldview, innovation and production come from people across society, ordinary people as well as elites, and society can overcome challenges much more effectively with a multiplicity of voices than with only a few who tend to share the same perspective. To guarantee equal access to information, resources, and government, we all must have equality before the law, including the right to liberty unless we have been charged with a crime. 

For decades, now, America has increasingly moved toward the idea that a few people should consolidate wealth and power with the idea that they will most effectively use it to move America in a good direction. But the novel coronavirus pandemic has undercut the idea that a few leaders can run society most effectively. The administration’s response to this heavy challenge has been poor. And now we know that the very people who were publicly downplaying the severity of the coronavirus were told by our intelligence agencies that it was very bad indeed, and they were sharing that information with a few, favored individuals. Their leadership will literally, and quite immediately, cost a number of our lives.

I was struck by parallels in Israel. Dan Yakir, legal advisor to ACRI (the Association of Civil Rights in Israel) shared an email last night–here’s my translation (Dan, I hope I’m staying true to the letter):

On March 21, 2020, we wrote to the Attorney General and expressed concern about government offices acting without legal authority, sheltered by the coronavirus crisis. For example, this week, the spokesperson for the Ministry of Health shared an announcement that included a variety of prohibitions, such as leaving the house for any nonvital purposes and hosting family and friends, with no basis; the legal office at the Ministry of Health demanded, with no legal authorization, that all Deans of health sciences schools provide a list of their students so they can be drafted if there’s a shortage in medical personnel; the Ministry of the Treasury published on its website on Friday instructions to employers about minimizing the number of onsite workers, even though corresponding emergency regulations have not been published yet. 

Most extreme is the Prime Minister, who almost every evening announces new limitations and decrees to the public. He never announces when they will attach. Most of the time, these are instructions with no legal validity and in some cases they are policies that have not yet been solidified and detailed. Ever since the Prime Minister’s announcement on the evening of Feb. 19, 2020, the public has been misled to think that a curfew policy is in effect. The publication of the draft regulation in the news outlets has bolstered this [mistaken] impression, but in this case, also, emergency regulation has not been published and its complete articulation has not been completed. 

Against this backdrop, consider the Minister of Security’s tweet from a few days ago, in which he encourages senior state workers to act at any price to anticipate the coronavirus: “If need be, knowingly violate the rules!”

ACRI’s letter to the Attorney General (in Hebrew) is here.

The whole world, of course, is experimenting with emergency regulation these days. But the striking similarities between the U.S. and Israel in particular are not surprising. In a recent paper, I argue that American influence on Israeli criminal justice policy stems from some similarities between the two political cultures. Drawing on Malcolm Feeley’s argument about viewing American criminal justice through the lens of American Political Development, I argue that the U.S. and Israel are best compared to developing nations where criminal justice is concerned:

Looking at both countries through the lens of development theory highlights several relevant similarities. First, both countries have a strong legacy of ethnic and racial conflict, which impacts the composition of the population subjected to criminal justice control. Second, both countries are characterized by high levels of interpersonal violence and, relatedly, a high concentration of guns. In the United States, gun ownership is the outcome of both illegal purchase and permissive gun laws, and in Israel, guns circulating in civilian hands are related to the wide access—legal and illegal—to military weaponry even in civilian spaces. In both countries, fetishization of protectionism and aggressive bravery plays into the culture of interpersonal violence. Third, both countries are characterized by unusual levels of police overreach and brutality, far beyond their Western industrialized counterparts. And fourth, both countries rank considerably higher than other Western industrialized countries in perception of political corruption—in 2018, the United States at 22 and Israel at 34.

The context in which these characteristics arise is, of course, different for the two countries. The United States has a long and difficult legacy of slavery, whereas in Israel the ethnic conflict stems from the Israeli-Palestinian conflict and the Occupation, as well as from ethnic and religious tensions within the Jewish population. Moreover, gun ownership has a very different cultural significance in the two countries, though they both share fear and concern about guns ending up in inappropriate hands. And the differences in scale matter a great deal; it has often been said that “American criminal justice” is not a monolith, as there is considerable difference among state criminal justice policies. Still, on a national scale, the cultural comparisons are striking. The trend of comparison is especially evident when comparing the Netanyahu and Trump administrations’ positions on crimmigration, drug enforcement, severity of punishment, and racial/ethnic discrimination in application of laws. Some manifestations of these policies have been particularly similar: The separation of immigrant children from their families at the American border, widely criticized both domestically and internationally, was reverberated in the incarceration of African asylum seekers at Saharonim prison in the desert, a policy move which similarly provoked international critique. Similarly, the Trump Administration’s enthusiasm for the death penalty for drug dealers, even as the penalty is in its final throes, is echoed by legislative efforts in Israel to make capital punishment a de-facto option –with supporters in both countries making deterrence arguments.

I think the same mechanisms are at work in the creation of emergency legislation. The same vulnerabilities and predatory governing techniques are at work in both countries, and they fuel fantasies of despotic governing, for which the global health crisis provides the perfect cover. It’s not that the measures themselves are unreasonable; if adopted through proper parliamentary process, many of them make sense in the current crisis. My concern is that disturbing precedents to proper governance are made in both countries, whose poisonous effects will remain with us long before the virus is abated.

Should Therapists Disclose that Patients Have Looked at Child Porn?

Today, the Supreme Court of CA decided, 4-3, that a legal challenge mounted by California therapists against a law requiring them to report patients who have admitted to viewing child pornography – in therapy – may proceed to trial.

The law in question, the Child Abuse and Neglect Reporting Act of 2014, appears benign in that it merely expands the list of “mandated reporters” of abuse and neglect; however, it lists 46 categories of “mandated reporters”, many of which work in the therapeutic professions (including marriage counselors and drug and alcohol therapists) and listen to people who assume the information they provide is privileged. The definition of “child abuse” in the new law is very broad, and includes “sexual exploitation”, which in turn covers any person who knowingly “downloads,” “streams,” or electronically “accesses” child pornography.

As the plaintiffs–therapists and counselors–argue, this broad disclosure requirement violates the patients’  constitutional rights to privacy. No one, including the plaintiffs, doubts that child pornography is a serious problem, both on the production and on the consumption side; nor do the plaintiffs argue that viewing child porn in itself is shielded from prosecution by a right to privacy. But discussing this kind of behavior with your therapist is a different matter.

The constitutional analysis here is interesting, but what underlines the conversation strikes me as even more interesting. The plaintiffs declared that they “have treated numerous patients who are seeking treatment for sex addiction, sexual compulsivity, and other sexual disorders, many of whom have admitted downloading and viewing child pornography on the Internet, but whom [plaintiffs], based on their considerable training and experience, do not believe present a serious danger of engaging in ‘hands-on’ sexual abuse or exploitation of children or the distribution of child pornography to others. These patients typically have no prior criminal history, have never expressed a sexual preference for children, and are active and voluntary participants in psychotherapy to treat their particular sexual disorder, which often involves compulsive viewing of pornography of all kinds on the Internet.” Plaintiffs “have also treated patients seeking treatment because of sexual disorders involving a sexual attraction to children (including pedophilia), who have admitted to downloading and viewing child pornography, but whom [plaintiffs], based on their training and experience, do not believe present a serious danger of engaging in ‘hands-on’ sexual abuse or exploitation of children or the active distribution of child pornography to others. These patients typically have no prior criminal record . . . , no access to children in their home or employment, no history of ‘hands-on’ sexual abuse or exploitation of children, and often express disgust and shame about their sexual attraction to children for which they are actively and voluntarily seeking psychotherapy treatment.”

When I read this, I was struck by the similarities between this law and the criminalization of Brian Dalton in Ohio in 2003. Dalton, a registered sex offender, wrote (distressing, disturbing, horrible) fictional scenarios involving the torture of young boys in his private journal and–after the journal was discovered by his mom–found himself prosecuted for possession of obscene materials–the obscene material being his own journal. After much turmoil, the Ohio Supreme Court overturned the conviction.

I used to teach Dalton as a first case in criminal law, to remind my students that we do not criminalize people for thoughts–only for actions. Of course, the realities of internet porn make the actions required to participate in the crime so flimsy that the boundary between thoughts and deeds becomes pretty thin. But even so, I am struck by how both Dalton and Mathews highlight our tendency to persecute and hunt down consumers of child porn precisely at the point at which they are finding outlets for their propensities in an effort to get better. 

Underlying this appetite for criminalization is an assumption that propensities to be aroused by prepubescent children–which, as a society, we find abominable, a sentiment shared by many of the folks who harbor such propensities (and feel an incredible amount of shame about them)–overlap with the commission of serious crimes. This link is fiercely contested in the literature. Moreover, there’s an assumption that sex offenders are irredeemable–something that Danielle Harris shows is not true; desistance is not uncommon.

There is a difference between making a big show of protecting vulnerable children and actually protecting vulnerable children, and both of these instances–Dalton and the new CA law–are examples of the former, not the latter. I hope we can bring more facts and less revenge fantasies into our sex offender laws.

Counseling Criminal Clients on Immigration: A Tall Order

In 2010, the Supreme Court decided Padilla v. Kentucky. Padilla, a long-time legal permanent resident of the United States and a Vietnam veteran, was caught with drugs in Kentucky. His lawyer advised him to take a plea deal and told him not to worry about the immigration consequences of the conviction because “he’s been in the country for so long.” Lo and behold, the conviction triggered immigration consequences and Padilla was subject to mandatory deportation.

In a surprising departure from its usual approach to the ineffective assistance of counsel doctrine, the Court found that the defense attorney provided advice that fell beneath the minimum professional requirements and also prejudiced the client, thus failing the test from Strickland v. Washington. Justice Stevens’ opinion explains that immigration consequences of criminal conviction (“collateral” consequences) are often much more serious than the punishment meted out by the criminal justice system. In his words:

We have long recognized that deportation is a particularly severe “penalty”; but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature. . . deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. . . And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. . . . Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult.  

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

All of which is true: deportation is, indeed, a life-altering penalty, and clients must absolutely take it into account when crafting their trial strategy. But where does this leave defense attorneys, who have had to learn an entire new field of law, rife with hypertechnical distinctions, arcane definitions, and jurisdictional messiness?

For the uninitiated, I’ll just say that the terms used by the INA and other immigration legislation do not mean what defense attorneys would be justified in thinking they mean. A “conviction” under the INA is not necessarily a conviction under state law. An “aggravated felony” under the INA need not be aggravated, nor a felony. “Drug crimes”, “domestic violence”, “firearm”, mean very different things in the immigration context than they do under state law. And don’t even get me started on crimes of moral turpitude, the meaning of which is so vague and fluid that immigration courts still refer to a legal dictionary from 1914. Unconvinced? How about a Jamaican citizen and legal permanent US resident busted for having 1.3 oz of marijuana facing deportation and having to take his case all the way to the Supreme Court to clarify whether this counts as an “aggravated felony”? Nor weird enough for you? Then why should it take a certiorary to the Supreme Court to save from deportation a mathematics professor–Green Card holder from Tunisia–caught with a sock containing four orange pills, who got nailed under Kansas law not for the pills, but for possession of the sock?

The point I’m trying to make is not that U.S. immigration law is nuts (that should be obvious), but rather that, in 2010, expecting garden variety defense attorneys to master all this, complete with all the contradictions and differences, was a tall order. Many people in the civil rights community (me included) hailed Padilla for finally drawing attention to the horror that collateral consequences can bring onto a person’s life. But what if Padilla completely backfired, and what we’ve created is an invitation to confusion at best and malpractice at worst?

Consider this: None of the criminal procedure bail-to-jail courses I am familiar with, including mine (this is going to change as of the next time I teach it), includes a crimmigration unit. Not all law schools even offer a crimmigration class, and of course if they do it’s not mandatory. The bar doesn’t test on immigration and certainly not on crimmigration. I did an informal poll among my former students who practice as defense attorneys. Those who work at public defender offices are lucky in that good, conscientious outfits have prioritized hiring immigration experts (this does not dispense with the Padilla requirement, because presumably the ethical responsibility is still the public defender’s, but at least it offers the clients correct advice.) Those who work as private attorneys, or in smaller outfits such as alternate public defender offices in rural places, are left completely in the lurch. They rely on charts and lists such as this one, or they’ll refer the clients to immigration attorneys, but that means that people who are already in dire financial straits incur even more costs. At least one person admitted to me that they pass on cases with immigration consequences because they fear ethical violations and don’t want to do a bad job, and while this reluctance is understandable, one wonders where that leaves clients with immigration issues (who are already among the weakest, most disenfranchised folks in the system) collectively. More commonly (and also disturbing)–my former students admitted their immense discomfort when counseling people not to take good deals, or to go to trial with a very flimsy chance of success, or to take ridiculous deals that are immigration workarounds. They were (understandably) confused about whether advising their client about the least of all evils–taking a suboptimal criminal justice strategy to save them immigrationwise–was ethically clean, even when realistically sound. They also expressed frustration when dealing with ill-informed (at best) or callous (at worst) prosecutors who chide them for asking for something “special” or “preferable” for a client in risk of deportation.

In other words: This is not good.

I have a few thoughts about this. The first is that a solid empirical study of Padilla‘s impact on criminal practice is absolutely essential. This would require a survey of a large group of defense attorneys about how Padilla altered their criminal practice, as well as in-depth interviews with examples. This stuff will have to be triangulated with what we know about criminal representation, to check whether the additional burdens on defense attorneys have resulted in worse access to justice for noncitizen defendants.

The second is that all of us who teach criminal procedure in law schools–I’m going to start this and my chartacourse electronic casebook is available for you to use–have got to revise our curriculum to include a basic crimmigration unit. I’m thinking something between 6-8 hours covering the categorical approach, aggravated felonies, crimes of moral turpitude, some more specific removal categories, and basic situations in which one’s client might interface with the immigration system. In addition, of course, specialty crimmigraiton courses must be offered in every law school that purports to certify ethical defense attorneys for practice. The bar exam, for all its imperfections, can add immigration law to the list of covered subjects, and this would be relatively easy to do in the MBE because it’s federal law.

This is not a perfect solution, given that immigration law changes frequently and is subject to administrative whims (even when not dealing with someone as unhinged as the current occupant of the White House). Because of that, my third thought is that, in offering and taking CLEs, priority must be given to crimmigration updates. If and when we establish a defense bar, crimmigration proficiency has to be prioritized.

Same deal, by the way, for prosecutors: Larry Krasner’s initiative in forming an immigration unit at the D.A.’s office is an essential tool for any prosecutorial outfit that purports to give people what they deserve, rather than indirectly bring about grossly disproportionate punishment. Immigration is not an externality: it is part and parcel of the person’s fate, and has to be treated as such by the D.A.’s office.

If you are a defense attorney and have encountered immigration issues in your criminal practice, I would love to hear from you in the comments.

The Impeachment of Andrew Johnson

Engraving of Andrew Johnson Impeachment trial
Theodore R. Davis’ illustration of Andrew Johnson’s impeachment trial in the Senate, published in Harper’s Weekly.

Much has been made in the last couple of days of Nixon and Clinton comparisons to, ahem, the current brouhaha. But as I was prepping this slideshow for a virtual talk at Manny’s, I was struck by the surprising similarities between our, ahem, situation, and the context of Andrew Jackson’s impeachment in 1868. A quick read of this lucid and helpful Wikipedia article will bring you up to speed. It’s a rather obscure chapter in American history; as early as 1896, Edmund Ross commented that “little is now known to the public” about it. After Ross’s book, three more books were written about the impeachment trial: David Miller DeWitt’s in 1903, Michael Les Benedict’s in 1999, and David Stewart’s in 2010. What is palpable in all of them (perhaps most so in Stewart’s book) is the context: a bitter, partisan, no-holds-barred fight between Lincoln’s successor, a moderate Southern Republican seeking reconciliation with the South, and Congress, which sought more sanctions against Southern States during Reconstruction.

Johnson’s unbridled anger at Congress will remind you of someone we know: He actively campaigned against Congress, which included a massive speaking tour to “fight traitors in the North.” This campaign backfired spectacularly when the election yielded two Republican houses determined to thwart his agenda, and when he tried to get rid of Edwin Stanton, the Secretary of War he inherited from Lincoln and a staunch Unionist. Congress tried to thwart these efforts by passing the Tenure of Office Act, and Johnson, determined to get rid of Stanton, did so nonetheless. Nine of the eleven articles of impeachment revolved around this effort.

Through the prism of 2019, I can’t help but read this story as that of a small man with no hope of filling the giant shoes of his predecessor, conciliatory and sympathetic to a grim racist heritage, determined to spite anyone placing limitations on his power to appoint and discard people as he chose. It might cheer you up (or not) to learn that the Senate came one vote short of removing him from office. It might also be useful to keep in mind that the failure to secure the additional vote came from four Republicans voting against their own party out of concerns that the evidence presented against Jackson was one-sided–and a good reminder that, in order to garner legitimacy for the impeachment process, it is important to conduct a thorough and objective investigation that might assuage the concerns that some of today’s hesitant Republicans about “witch hunts” and “kangaroo courts.” If Democrats want to secure removal in the senate, which for obvious reasons will be an uphill battle, the process has to be fair and also to be perceived as fair.

Moratorium!!! What Does It Mean?

California’s death chamber: closed. Source:
Office of the Governor.

Today’s stunning, forward-thinking announcement from Governor Newsom requires some careful parsing out. I am on my way to KQED, where I will discuss this with Scott Shafer and Marisa Lagos at 11am. If you can’t listen to the broadcast, here are some initial thoughts about the implication of this announcement and where I think we should go from here.

Moratorium: What It Is

Bob Egelko from the Chronicle reports:

Gov. Gavin Newsom is suspending the death penalty in California, calling it discriminatory and immoral, and is granting reprieves to the 737 condemned inmates on the nation’s largest Death Row.
“I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Newsom said in a statement accompanying an executive order, to be issued Wednesday, declaring a moratorium on capital punishment in the state. “The death penalty is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”
He plans to order an immediate shutdown of the death chamber at San Quentin State Prison, where the last execution was carried out in 2006. Newsom is also withdrawing California’s recently revised procedures for executions by lethal injection, ending — at least for now — the struggle by prison officials for more than a decade to devise procedures that would pass muster in federal court by minimizing the risk of a botched and painful execution.

The elements of Newsom’s orders are therefore: (1) a reprieve for every death row inmate; (2) shutdown of the execution chamber (3) a withdrawal of the continuous effort to revise death protocols, which we discussed on this blog numerous times. So, no more “tinkering with the machinery of death,” for at least a while.

Moratorium: What It Isn’t

Newsom is not commuting anyone’s death sentence. Even though executions will not happen, all death row inmates are still sentenced to death and housed on Death Row. He is also not pardoning anyone. This is far from the last step on the road to death penalty abolition. Shutting down the chamber and the protocol revision process, however, will set back executions even if Newsom’s predecessor misguidedly brings the death penalty back.

Why Didn’t Newsom Commute All Death Sentences?

Not all death sentences are eligible for commutation, and if Newsom were to commute all of them, he would be facing ferocious litigation. Shortly before the end of his gubernatorial career, Jerry Brown offered some commutations, which were reversed by the California Supreme Court, citing “abuse of power.” Some capital convictions, under California law, are not eligible for commutation, importantly in cases of prior felony convictions, which is the case for about half the inmates on death row. The last word on commutations lies with the court, not with the Governor, and if the Newsom administration wants to offer commutations, it will have to offer them on a case-by-case basis.

Why now?

It’s anyone’s guess, so here are some of my speculations. First, even in these cynical times, when the federal government is full of self-interested people for whom values and the good of the country do not rank particularly high on the priority list, there still are folks who do things on the state and local level because they think they are the right thing to do. Newsom is a long-time opponent of the death penalty and what he has done is in line with his personal values (in fact, conservative commentators have already attacked him for putting his values first–as if it is a bad thing.) Other reasons for the timing might involve the Kevin Cooper case, in which Newsom, joining the growing chorus of people with serious doubts about the conviction, recently ordered more DNA testing. Also, keep in mind that this is not a departure from Newsom’s previous gubernatorial acts in the criminal justice area. A classic example is his plan to move juvenile justice out of CDCR’s control into health and human services. He seems to be hell-bent on dragging the California correctional apparatus, kicking and screaming, into the 21st century, and turn us from a national embarrassment to a national leader in criminal justice.

Can Pro-Death-Penalty Activists Stop This?

They can try, and likely will. There’s nothing they can do about the 737 reprieves–those are squarely within the Governor’s ambit–but they could argue that the shutdown of the chamber and withdrawal of the regulations slouches toward an encroachment on a legislative process. It is quite likely that, in the next couple of days, they will seek (and perhaps receive) an injunction against that part of the Governor’s order, and that will drag on in the courts for a while. Meanwhile, though, no one gets executed, and that’s the material thing, and moreover, as of 12:45pm today, the death chamber has already been physically dismantled.

What Happens to Existing Death Penalty Litigation?

Because none of the sentencing has changed, everything in the capital litigation machine remains in place; in fact, just this morning I spoke to a friend who specializes on capital postconviction litigation and he was on his way to court for a death penalty case. So all of that stuff–quibbling over injections and historical miscarriages of justice–continues as scheduled, except perhaps with some less urgency.

Can Prosecutors Seek the Death Penalty in Cases Pending Today?

Yes, they can, and there are already murmurs around the web by prosecutors that they are required to do the bidding of their constituents (remind me again why we elect prosecutors and politicize our justice system?). But it would be, perhaps, more difficult for a San Bernardino, L.A., Orange, or Riverside county D.A. to justify seeking capital punishment, which is costly litigation (partly because it triggers an automatic appeal)

Should We Try to Abolish through an Initiative Again?

My two cents: Not anytime soon. Here’s why: When several European countries abolished the death penalty when local public opinion still favored it (check out the current struggle in Belarus, which embarrassingly is the only other Western country, beside the United States, with a death penalty). This seems to be one of those things–like, ahem, slavery, antimiscegenation, and homophobic laws about legal recognition of relationships–where top-down decisions tend to precede changes in public opinion and the public falls in line later. Keep in mind that support for the death penalty is at its lowest point since the 1960s and declining; in a recent piece, Daniel LaChance assesses the death penalty in the 21st century and concludes that it is in its last throes.

And remember, Newsom is a sharp and accurate predictor of the arc of progress, as he did with the marriage equality debacle, but he sometimes predicts things too soon for the public. Recall that he was on the right side of the same-sex marriage debate back in 2004, when thousands of our friends and neighbors stood in line in front of San Francisco City Hall to get married. What followed was years of arduous litigation, including a legal change AND a constitutional amendment that were supported by a small majority of Californians (just like the death penalty.) Newsom’s patience in leading struggles like this, it seems, pays off, and even though some criticized it as a political risky move, Kamala Harris’ recent trials and tribulations show that taking the opposite tack (doing politically expedient things that support the death penalty and selling out values for technicalities) also does not exactly pay off. If one has to choose between the fallout from being a careful political tactician and being a leader with values, Newsom has consistently chosen the latter.

Which is why I think we need to let the fallout from this play out for a while without getting public opinion mixed into all this (we know that, in 1865, the Civil War defeat didn’t exactly shift all Southerners toward support of slavery abolition.) Let’s see where the litigation over the order goes. Let’s keep track of homicide rates in the state for a few years, and when we see–as research consistently shows–that the moratorium has not eroded deterrence and that the death penalty has no proven deterrent power, it will be easier to get rid of it. Also, the passage of time plays out into another important aspect of this: the Eighth Amendment interpretation incorporates “evolving standards of decency”, so let’s allow them to evolve and see what the courts do. Which brings us to our last two points:

Nationwide Implications for the Death Penalty?

Eighth Amendment litigation is often shaped by the passage of time. What seemed kind and usual at one time might not seem like that today, and notwithstanding Foucaultian scholars and postmodernists of all stripes, in general the courts’ tendency has been to assume that we are moving forward, not in circles. California becoming a de-facto abolitionist state is a huge boost to the national struggle for abolition. We have the biggest death row in the country and have been very influential in the arena of extreme punishment. This is a big contribution to the critical mass of states that have moved to the abolitionist side–nineteen so far, and with California it’ll be twenty–and this bodes very well for a national abolition, though the current Supreme Court might be a more difficult venue to pursue this than how it was in its pre-Gorsuch and Kavanaugh makeup.

What About LWOP and LWP–the Other Two Components of the Extreme Punishment Trifecta?

Newsom’s decision does not affect the tens of thousands of people serving lengthy life sentences in California–with and without parole. Moreover, keeping death row inmates on death row means that they continue to litigate extensively at the state’s expense, and none of that investment and attention goes into the other two components of what I call, in my forthcoming book Yesterday’s Monsters, the “extreme punishment trifecta.” If anything, taking the mystery out of whether people are getting executed highlights the lack of difference between death row and life sentences and makes the arguments that life sentences are “the other death penalty” starker.

This only means that what happened today is good news. As readers of this blog know, I’ve always been upset with the progressive tendency to assume that reform is the enemy of revolution and that Dismantlement of the Prison Industrial Complex Must Happen Today Or Not At All. Which is why I wrote, back in 2016, this op-ed, titled “Are you against the death penalty? Good. Then vote against the death penalty.” The point that life sentences are cruel and horrible is not lost on me; quite the opposite, I’ve written a book that argues that attacking LWOP is not enough and that LWP is just as draconian given the vicissitudes of the CA parole system. But what we must remember is that reform always happens incrementally. I recently got to talk about this with Marc Mauer, coauthor of The Meaning of Life. Mauer says we must focus on life sentence abolition in all states that have already abolished the death penalty, and I think he’s right. Newsom’s courageous stance means that we can get to that business in California soon, and I, for one, am delighted that we finally get to fight more fights for what’s right.

Thank You for Your Courage, Governor Newsom

Governor Newsom’s announcement of a death penalty moratorium is a breath of fresh air after decades of stagnation. Since the reinstatement of the death penalty in California, 13 inmates have been executed, while close to a hundred died of natural causes. Hundreds spend decades waiting for legal representation in interminable appeals whose focus has gradually shifted from big questions of humanity, discrimination, and innocence, to technicalities and chemicals. The death penalty—not in fantasy, but as actually administered in California—is racially discriminatory, risks tragic miscarriages of justice, and offers no comfort or closure to many victim’s families, as it is essentially an expensive version of life without parole in a dilapidated facility, to the tune of $150 million of taxpayer money annually.
Twice in the last decade did abolitionists attempt to marshal the voters’ common sense to retire the death penalty, and twice they came close, but failed. Public support for capital punishment is at its lowest level since the 1960s; almost half of California voters oppose it, and of those who support it in theory, few are aware of its many flaws, potential for mistakes, and ridiculous price tag. European countries that abolished the death penalty did so when it was still supported by most of their voters; sometimes the government and the legal system needs to take a moral stance when the public is not yet ready to do so.
Our political leaders, who could have dragged California’s extreme punishment into the 21st century, did not deliver. Former Governor Jerry Brown, personally opposed to the death penalty, did not use his last term in office—the perfect opportunity for a courageous, progressive move—to do the right thing. Neither did former Attorney General Kamala Harris, also personally opposed to the death penalty, who appealed a federal judge’s decision that the death penalty in California was unconstitutional due to the delays in its application. While upholding the decision would not have dismantled the death penalty, it would have created a political opportunity for doing so, and could have finally ended the political impasse that rendered California a national leader in so many ecological and social areas and a national embarrassment in its criminal justice system.
Californians should applaud Governor Newsom for doing what he can within the limit of his time in office to move the most draconian piece in the California correctional puzzle to its rightful place—the past. It is thanks to this visionary step that we will be able to shift the obscene expenditure on capital punishment toward what truly benefits Californians—not symbolic, fear-driven clinging to a misguided idea of a functional death row, but education, health care, green industry, and infrastructure. Finally, the sun shines on the darkest corner of California’s correctional landscape.

Zen and the Art of Motorcycle Seizure: A Biker’s Perspective on the Fourth Amendment

Recently, SCOTUS decided Collins v. Virginia (2018), in which the Court, by a 8-1 majority, did not uphold a search involving a motorcycle in a driveway. The story is this:

Police officers investigating traffic violations by a distinct black-and-orange motorcycle came upon the realization that their individual investigations involved the same bike, that the bike was likely stolen, and that it was in the possession of Ryan Collins. The officers found Collins’ Facebook page, where he posted photos of said motorcycle parked in his driveway (see image below.)

With these suspicions, and without a warrant, Officer Rhodes drove to the pictured location and parked on the street. He walked toward the bike, which was covered by a tarp. He lifted the tarp and verified that this was, indeed, the motorcycle in question. He radioed the bike’s serial number to the station and received confirmation that it was, indeed, stolen. He then replaced the tarp and waited for Collins.

In his subsequent trial, Collins unsuccessfully moved to suppress the evidence, arguing that it was a warrantless search. Eventually, SCOTUS vindicated Collins.

The facts of the case confront two constitutional doctrines: the curtilage doctrine and the car exception to the warrant requirement. Under the former, the curtilage–the area immediately surrounding the house–is to be treated just like the house for Fourth Amendment purposes, which is to say, entering it counts as a search that requires a warrant. Under the latter, searches of “cars and other conveyances,” due to issues of mobility and regulation, can be performed without a warrant, provided that there is probable cause.

Justice Sotomayor, writing for the majority, finds that the curtilage doctrine trumps (sorry) the car doctrine. This is because the curtilage is invariably analogized to a house. Imagine, she writes,

a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? The reason, is that the scope of the automobile exception extends no further than the automobile itself.  Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle.

The analysis appears flawless to Fourth Amendment scholars, but not to motorcyclists. Because to me, as a motorcyclist, the fact that sticks out is not the location of the motorcycle, but the fact that it is covered. Many urban motorcyclists cannot afford to garage their bikes, either because they don’t have a parking spot, or because the parking spot is taken by a car, theirs or owned by a family member. As a consequence, and to protect the bike from the elements, many people cover their bikes. It’s the poor biker’s garage, if you will. The problem here is not so much that Officer Rhodes stepped into the driveway–the Virginia proposition to distinguish curtilages based on visibility, which the majority rejects, is actually pretty sensible–but with the fact that he lifted the tarp.

In that respect, this case is more similar to Arizona v. Hicks, a case in which SCOTUS found that moving a turntable that was suspected to be stolen to get its serial number went beyond the “plain view” exception because it actually required interfering with Hicks’s possessory interest.

The reason this seems weird to motorcyclists is because the experience of driving, parking, and leaving a motorcycle in public space is different than leaving a car there. Many a motorcyclist will tell you about dismaying experiences they have had in which people have leaned on their bikes, touched them, or even sat on them without permission. Here’s how Jax from Sons of Anarchy handles such a problem:

Even if you have less of a stomach for interpersonal violence than Jax, you probably get the sense that the violations are more frequent and, because of the nature of motorcycle ownership, feel more invasive and personal. Lifting the tarp of a motorcycle is, under these circumstances, a privacy invasion that does not have an easy equivalent in the car world, and that might mean that not all conveyances should be treated similarly for Fourth Amendment purposes.

Incidentally, this raises various other issues that are endemic to motorcycles: the storage compartments–back box and sidebags–do they count as a “trunk” for Fourth Amendment exceptions, or as containers? In the latter case, the car exception applies; in the former case, it does not, and the only exception that would allow opening them is search incident to arrest. A lot of the answers to these questions depend on the cultural place of motorcycles in the American understanding, from The Wild One to Easy Rider and beyond. To be continued.

Not Your Typical Kavanaugh Opinion Piece

To a surrounded enemy, you must leave a way of escape.
                                                                                 –Sun Tzu, The Art of War

Last Friday I spoke at a school-wide forum about the Kavanaugh hearings. Since then, several people have come to thank me for voicing a perspective that is fairly uncommon in the progressive milieu. It is one of the pathologies of the partisan culture we now live in that one must subscribe to positions that often lack nuance and sometimes contradict factual and empirical evidence. The people who spoke to me asked me if I would be willing to share my perspective more widely, so here goes.

I’ll open by saying the obvious: I believe Dr. Ford. Not so much because of any indicia of reliability in her demeanor, but because, for the life of me, I can’t see why anyone would put themselves and their family through this particular variation of hell by lying. The incentives all line up toward the opposite direction. I think a mistaken identity is very unlikely here–even though eyewitness identification is a common source of wrongful convictions in sex crimes, that applies to stranger assaults, not to assaults by people familiar to the victim. It is also not unlikely that my sympathy for Dr. Ford also stems from the fact that she and I share the same milieu: she lives, works, dresses, and talks like me. She uses words like “hippocampus” and “sequelae.” By contrast, the prospect of an aggressively conservative turn in the Supreme Court frightens me because of the risks it poses to basic civil rights and to American democracy, given the corrupted and unprincipled stance of the Trump administration.

A widely publicized letter signed by law faculty was circulated, in which many people I like and respect challenged Kavanaugh on account of his demeanor, which they perceived to suggest lack of judicial temperament. I did not sign this letter for two reasons.

First, I have years of experience defending people in criminal courts against charges of sexual assault. During my time as a military defender, one of my responsibilities was to represent people in the special military court. What was so “special” about the special court was that its jurisdiction extended to high-ranked officers (colonel and up). These are, of course, career officers; the lower ranks in the Israeli army are occupied by young people aged 18-21 in mandatory service. This puts 40-something-year-old men in regular contact with 18-year-old women, in the context of a hierarchical institution that adds rank and military power to age and seniority. The outcome is that a considerable chunk of my legal practice was devoted to defending career officers against charges of sexual harassment and sexual assault.

My experience with these cases taught me a lot of things. One lesson was that most bad behavior is largely situational (as the Stanford Prison Experiment taught us, and as Ashley Rubin recently reminded us.) Another was that two people could be telling you widely divergent versions of an incident and both would be telling the truth, which is shaped through subjective experiences and feelings to a surprising degree. It also taught me that the best strategy for sex crime defense is to agree with the complainant’s version as much as possible. We called this “narrowing the scope of dispute.” The less contradictions there are between the prosecution’s version and the defendant’s version, the less there is to impeach the defendant with.

That Kavanaugh chose as his line of defense absolute denial was against any sort of sensible advice I ever gave a client in these circumstances. It is a sad testament to the partisan culture we live in that people were predisposed to believe him even though his strategy would have been disastrous in court. In addition, Kavanaugh’s religious background, and his base of supporters, would have been receptive to a cultural trope that is very common both in Catholicism and in Evangelical Christianity–talking up bad behavior in the past to emphasize change. Had he admitted to being wild and drinking in his adolescence, this milieu would have embraced his rehabilitation as a moral and religious victory. A similar strategy certainly underlined similar confessions from both George W. Bush and Barack Obama about their drug use. Again, that Kavanaugh did not recur to these sympathy-garnering tactics and still prevailed is an indication that the real mechanism behind this confirmation is partisan animosity, rather than factfinding.

But why did he do that? Here’s where I differ from my friends who signed the judicial temperament letter. I have spent a lot of time in the company of people who were (falsely OR truthfully) accused of sexual misconduct. I have spent time with their wives. I have heard them react to the complainant’s versions. I have seen them contemplate the real possibility that their personal and professional lives will fall apart. And each and every one of them–the guilty and the innocent–reacted in exactly the same way: yelling, tearing up, clenching fists, demonizing their accusers. It is not a peculiar reaction indicating a personal pathology. It is how humans universally react when they face an existential threat.

Now, every progressive outlet I know wrote the same op-ed, published the same meme, and made the same tired argument: Privileged white man, just a job interview, yada yada yada, what is he whining about? These arguments and memes completely miss the point. Everyone–yes, everyone, even you–deals with the emotional bind of the entitlement effect. Everyone tends to attribute the benefits and perks of their social position, no matter how high or low, to their own merit, and their deprivations to the failings of others. Everyone subjectively believes that they worked hard to earned what they have and react poorly to the prospect of losing that. That there is entitlement, privilege, and hubris at work here is obvious. This man’s problems seem perhaps, to you, as not very big problems compared to those of the poor and disenfranchised. But they are his problems. And, to him, the threat is palpable. His personal integrity has been besmirched, his personal life in tatters in front of the whole world, his family publicly humiliated and pitied by millions. This is the sort of thing that makes anyone react in that way–even people who exhibit calm tempers and evenhanded decisionmaking when dealing with other people’s problems. His behavior is not an indication of some sort of unique individual failing. It is the behavior of a person who is threatened and suffering.

My second reason for not signing the letter has to do with a personal decision I have made for the sake of upholding my own values: I do not mob people online for any reason, no matter who they are or how vile their failing is. I do not call for anyone’s firing, incarceration, or public shaming. When I join a political struggle–of which there are many–I join it toward something, not against something. I have found that online mobbing, which is rife on both sides of the political divide, carries with it plenty of mobilized rage (a hot commodity these days) and a detectable dose of schadenfreude. My personal experience marinating in these qualities is that they debase and depress me. I want to be part of positive change, not negative bashing.

The progressive variety of the call to mob, trash, annihilate the objectionable person, which I have come to call progressive punitivism, is especially pernicious. For people who overall fight for rehabilitation, for improved prison conditions, for a lessened reliance on confinement and stigma, it is surprising how quickly these lofty ideals are thrown by the wayside the minute they apply to a person they don’t like. This is why I refused to get on the bandwagon of diminished protections against prosecutions of police officers, vocally objected to the dangerous  and counterproductive recall campaign against Judge Persky, and spoke up against Oakland Mayor’s Libby Schaaf call to lower the burden of proof in trials of people she dislikes. Constitutional protections and a rehabilitative stance are really not worth much if they only exist for the people we like. Changing regimes and preferences might mean that the next target for harshness and stigma might be you or me–as we have daily proof on the federal level–and removing them for one is removing them for all.

Progressive punitivism is not worse than conservative punitivism, but it stings more, because it comes from people who understand the system enough to know better. It also strengthens other pathologies of the progressive left, such as the exclusive and vitriolic ideological purity, which demonizes and ostracizes any potential ally who is not 100% on board with every word you say, and the regrettable tendency to sometimes ignore facts because they are not politically expedient.

An adjacent problem is the fact that, as Jonathan Simon argues in Governing Through Crime, the quintessential American citizen is no longer the yeoman farmer or the small business owner: it’s the potential victim. By rewarding (or compensating) victimization, real or potential, with social capital, we have created a situation in which people are essentially forced to deprioritize their personal healing and marinate in their own victimhood as a condition of being heard. It’s true on the right, and has shaped some truly atrocious sentencing policies, and it’s true on the left, and has shaped some of the more egregious instances in which the overall commendable #metoo campaign became a victim of its own success. My law professor Ruth Gavison used to say that the first and foremost thing we owe victims is that they stop being victims as soon as possible. American public discourse propagates exactly the opposite.

The overwhelming conservative response to the Kavanaugh confirmation, and the energized Republican base as we go into the midterms that may decide the face of our democracy, is proof that the antagonism and demonization of individual wrongdoers is a failing strategy. Whaling on Kavanaugh or Brock Turner (righteous as it might feel) does not, sadly, bring us even a bit closer to eradicating sexual violence. Sexual domination, patriarchal hierarchies, and entitlement based on gender, class, and race, are systemic. People who exploit these to hurt other people do it largely in the context of situational factors that are bigger than their own pathologies. Calling out these pathologies by stigmatizing individual perpetrators and demanding their head on a stick does not lead to deep social reckoning, because it is not an environment that invites any sort of restorative conversation. Demonize people in public and what you’ll get is what you got  from Kavanaugh: counteraccusations, yelling, crying, clenched fists. When people’s liberty, employment, prestige, and family are at stake, and when they feel attacked, they are very unlikely to feel reflective, and they will not feel safe to offer an apology. More to the point, whatever apology they offer, because of its circumstances, is not something you or I would find genuine (as an aside, one hopes against hope that this experience will have offered Kavanaugh a window of empathy into the lives of criminal defendants and suspects, but I’m not holding my breath. He is likely to remember this as an effrontery, not a teaching moment, to the detriment of us all.)

The answer to hurt and violence is not propagating more hurt and violence. The answer lies, I think, in early education. Children are open to the idea that other children–regardless of their gender, color, or wealth–are human beings that can be their friends. Aiming at a diverse group of friends for your young child and prioritizing social experiences that place them in the company of people who live different lives of their own is essential. Teaching children gratitude for what they have can counter the bitterness that can accompany the entitlement effect. Teaching happiness, resilience, and compassion are antidotes to the zero-sum thinking that accompanies the excesses that come with entitlement. If the current administration does not prioritize this kind of administration, let’s go to the polls in November and vote for people who will. And let’s start the revolution inside our own homes, by instilling a sense of community and mutual responsibility in our children.

Hatred is never appeased by hatred in this world.
By non-hatred alone is hatred appeased.
This is a law eternal.
                                                                      –The Buddha

No Big Surprises: Deportation Law Triggered by Criminal Convictions Declared Vague

Today, the Supreme Court decided Sessions v. Dimaya, in which the respondent appealed his deportation. It is an interesting decision both legally and politically.

The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. The definition of “aggravated felony” includes several enumerated crimes, and also a residual definition of a “crime of violence”, which reads as follows:

“(a) an offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Dimaya, a documented immigrant from the Philippines, had two convictions for burglary, neither of which involved violence. Nonetheless, immigration authorities found that the convictions satisfied the “aggravated felony” residual clause, and therefore triggered automatic deportation.

Today, SCOTUS struck down the definition as unconstitutionally vague. Justice Kagan, reminding us that the court applies “the most exacting vagueness standard. . . in removal cases”, relied on Johnson v. United States to argue that the law in its current form does not provide sufficient warning about deportation consequences of criminal convictions.

Also important is the fact that Justice Neil Gorsuch, Trump’s appointee to the Supreme Court, voted with the four liberal Justices to vacate the law. While newsworthy, this is hardly a surprise for those familiar with Gorsuch’s record on criminal justice. He has publicly and consistently spoken against the abundance of criminal laws on the books and his position on overcriminalization and vagueness was well known at the time of his appointment.

Moreover, today’s decision relies on Johnson, a pro-defendant decision on a similar issue authored by Justice Scalia, also a conservative who would side with defendants in cases involving overcriminalization and vagueness.

While encouraging and fair, today’s decision is hardly surprising… except, perhaps, at the White House, where consistency of opinion is valued less than dogged personal loyalty.

Prosecutors in Orange County Sued for Obtaining Unlawful Confessions

More distressing news from the OC. The Guardian reports:

Prosecutors and sheriff’s deputies in California’s Orange County used jailhouse informants in an extraordinary and long-running scheme to illegally obtain confessions from criminal defendants, the American Civil Liberties Union (ACLU) is alleging in a new lawsuit. 

The suit, filed early Wednesday, alleges that the district attorney’s office and sheriff’s department in the suburban county south of Los Angeles routinely employed prisoners – including hardened gang members – as informants and used “threats of violence to coerce confessions” from defendants, violating their rights to an attorney. 

The ACLU cited a mountain of evidence, amassed in criminal cases over the past five years, that prosecutors obtained material illegally, suppressed parts favorable to the defence, and sought to cover up the existence of the scheme. 

“For 30 years, the Orange County sheriff’s department and district attorney’s office have been operating an illegal informant program out of the jails,” the ACLU lawyer Brendan Hamme told the Guardian. “They’ve used it to coerce information from defendants, including with threats of death, and at the same time they’ve been systematically hiding evidence of that program. These sorts of tactics are offensive to basic constitutional principles and ethical duties.”

The sensitivity of using jailhouse informants is well known and well documented. Whether the choice of this dubious, and often unreliable, method for obtaining information is malicious or attributable to tunnel vision, it raises very serious questions about dereliction of duty on the part of those who have the most power in the criminal justice system.