When Ya Gotta Go, Ya Gotta Go: Bodily Functions as a Gateway to Compassion

Nothing is worse than to finish a good shit, then reach over and find the toilet paper container empty. Even the most horrible human being on earth deserves to wipe his ass.

Charles Bukowski

Hello, my name is Hadar and I’m a quality-of-life offender.

<Hi, Hadar>

Last week I took our family car to Burlingame for a repair. While the mechanics were working, I took off on a stroll in the town’s beautiful shopping and dining avenue. I had a couple of beverages and some food, and still had some time to kill when I felt the urge to go to the bathroom. Cafés and stores closed their bathrooms to the public, on account of the pandemic, and I was left with no recourse. I walked to the train station, hid in the gravel behind the tracks, and peed. I then walked over to the public park. While there, I needed badly to go again. My experience with San Francisco parks was that they invariably shut down their toilets. I assumed the same was true for this one, so I hid behind a big tree, taking care to be out of sight of the other park visitors, and peed again. Within a few moments, Officer S. Vega of the Burlingame Police called me over, reprimanded me, and became even more upset when I started laughing (“Lady, I don’t understand what’s funny. Children could’ve seen you.”) Turns out there was a bathroom in the park, even though Officer Vega could have understood why anyone would assume there wasn’t one if he were in a more charitable moood (unavailable toilets are the norm, not the exception.) I couldn’t stop laughing–because, really, what more can 2020 throw at you?–as I got photographed, signed paperwork, reported my cellphone number, and was handed a citation without a fine listed (“you’ll be receiving mail from our traffic court.”) My citation reads: Urinating or defecating in a public place. Somehow, that feels unfair: absurdly, I feel outraged at the grouping of urinators with defecators, as if I occupy a more rarified moral sphere than the folks that have to do a number 2, and moreover, I resent the confluence of all public places. Is not a natural spot behind a tree more reasonable than a sidewalk? But that, of course, raises deeper questions.

The issue of public urination remains one of the most insidious aspects of how COVID-19 has reshaped our environment. We have spent our pandemic times in San Francisco County, which exhibited a high level of compliance with pandemic prevention measures. As a consequence, we were full-time workers and full-time parents to our toddler for many months, and the way we coped with this difficult challenge was by spending a lot of time in nature. Park trail bathrooms and water coolers were shut down, and so we did our business in nature.

As stores, cafés, and restaurants have begun to reopen, they have almost invariably shifted to an outdoor service model, offering either only pick-up orders or outdoor dining. Only a handful have opened their restrooms to the public. San Francisco’s public parks, which still feature closed playgrounds (while twentysomethings work out to their hearts’ content in outdoor gyms!) have similarly kept their restrooms closed. This puts people in incredibly difficult situations that have not been discussed at all by politicians and media outlets. It is assumed that bathrooms are dangerous, plague-harboring places. And yet, the inevitable fact remains that people do need to go when they need to go.

Having to cope with this incredible (and silenced) difficulty has been a profoundly educational and humbling experience for me. I’m turning 46 next month and have begun dancing with perimenopause. Consequently, my “holding it in” skills are not what they were, and even when I was more spry I was never a particularly successful camel. On top of that, I’m parenting a young child who hasn’t yet perfected his “holding it in” skills and who sometimes needs to go fairly quickly, so a public restroom with a long line is not an option for either of us, even if such were more widely available. The lack of access to public bathrooms, and even more so, the lack of certainty whether public bathrooms will be available on a particular outing, hampers our lives and our movement in public space in serious ways, and surely we’re not the only ones facing this. I’ve decided to talk about this openly in the hopes that it starts a conversation about the availability of public toilets.

What’s even more remarkable about this challenge is that, while for me and my ilk this is a worsening life condition, for some of my friends and neighbors here in San Francisco this is a living reality–and these humiliating experiences are an opportunity to open a small window of empathy and compassion into the ocean of difficulties that they brave on a daily basis. Much of the reporting about the rising housing crisis in the Bay Area has focused on the horrifying, humiliating solutions that people have to recur to. Two years ago, long before the pandemic was even on the horizon, Heather Knight published this piece, which looked at one neighborhood’s struggle with the realities of dehumanizing existence. The pièce de résistance, if you will, in Knight’s story, was a suitcase full of human excrement found in the neighborhood. Knight quoted one of the residents: “Nobody should have to poop in a suitcase, and nobody should have to find a suitcase full of poop.” But what is one to do when there is no reasonable place to go? How can one toe the line between avoiding legal fines (which, despite the existence of the Community Justice Center, inexplicably end up in traffic court!!!), avoiding health complications from holding it in (there are plenty of people my age and older on the streets), and keeping one’s dignity?

I think about this also in the context of protests. My parents are only two of hundreds of thousands of people who are rising up in Israel and protesting against corrupt premier Netanyahu, Israel’s “Crime Minister” as he’s now known, demanding his resignation. My folks are in their early seventies; actively participating in the protests, complete with travel to and from the location, can take hours. It’s still very hot in Israel and people need to drink water, and that means they need to pee. The protesters take special care in cleaning up after themselves (and Netanyahu’s neighbors, who understandably loathe him, actually support and welcome them.) When talking about protests and public action, we tend to forget about these hidden but important sacrifices that people make in giving up their comfort and their health to be heard. Can we have a moment of empathy with protesters who are in a public place and really, really gotta go?

Bathroom Battlegrounds by Alexander K. Davis

Alternatively, consider how restrooms became the front line of our gender battles. Alexander Davis’ terrific new book Bathroom Battlegrounds offers a rich political and cultural history of the gender, race, and class segregation that goes into the architecture of places for people to pee, culminating, of course, in litigation over laws like North Carolina’s infamous “bathroom bill”. Regardless of your personal gnosis about predetermination and social construction in gender, can we all agree on the fact that making bathrooms–the place where you confront the lowest and most urgent rung in Maslow’s hierarchy of needs–the battle front on trans rights in dehumanizing and horrible? Can we set values and politics aside and just put ourselves in the shoes of a fellow human being–any human being, be they rich, poor, cis, trans, young, old–who desperately needs to pee and can’t find a safe place to do it? Next time you face these indignities, because of COVID-19 or for any other reasons, can you leap on this as an opportunity to find kinship with others who really, really gotta go in an environment that is hostile to their basic bodily functions?

One of the brightest spots in our urban environment has been the emergence of pit stops on our streets. Pit stops are safe, clean, convenient bathrooms, which also offer opportunities to dispose of dog waste and needles, available to anyone for free. They are maintained and supervised by the amazing people at Urban Alchemy, an organization for which I have enormous admiration and affection. Many of the people who work at Urban Alchemy are formerly incarcerated, and much of their people skills, pacifying, conflict deescalation, and problem solving skills were developed on prison yards. They understand where down-and-out folks come from and what they need, and they find ways to provide it with dignity and respect. They’ve been effectively and peacefully running the Safe Sleeping sites, keeping the area around my workplace friendly and safe, saving lives through the use of Naloxone on a weekly basis, and doing all this without recurring to violence or putting anyone at risk. I cannot begin to tell you what a relief my small-bladdered self feels when I see one of these kind, capable people taking care of a public bathroom and keeping it safe and clean for everyone. We all deserve to go to the bathroom with dignity, and my only wish is that we have a Pit Stop on every San Francisco block.

COVID-19 Violations in Streets and in Suites: On the Inequitable Enforcement of Noncompliance

The New York Post reports good news (in itself a newsworthy event):

The NYPD will no longer make arrests or hand out tickets if people flout the mask-covering rules in the Big Apple, the mayor said Friday.

“Absent a serious danger to the public, NYPD will not take enforcement actions for failing to wear face coverings,” Mayor Bill de Blasio said during his daily press conference.

The shift in enforcement comes two days after another controversial video emerged of a police interaction with a woman and her young child in the subway over a mask.

Hizzoner said he wanted to reset the city’s approach on enforcement.

“The reset will be this: We start with the fundamental notion the NYPD is here to protect lives, to save lives, and where we see the greatest danger to lives in terms of the coronavirus and the areas where we can enforce is around gatherings, particularly large gatherings, so that’s where we’re going to focus,” the mayor said.

NY Post, May 15, 2020

Amidst the angry exhortations to “stay the f*ck home” and the like, fervent enforcers and shamers may have missed the news: NYPD has made dozens of arrests, most of them of people of color, and some of them violent. The focus on shaming people for behavior in the outdoors continues: here in San Francisco, people’s aggressiveness toward perceived violations has percolated to a point that one of my favorite journalists, Heather Knight, had to shame the shamers for targeting the (largely nonwhite) children of first responders. Only today at the skate park (our updated stay-at-home order allows us now to be there) someone thought it proper to video film the skating kids, including my 2.5-year-old son; needless to say most of the kids were not white. Of course, it’s not just police that is doing this racialized enforcement, as this ugly incident and these ugly incidents show.

We already know about the racial disparities in COVID infections and deaths, and today’s news highlights the counterpart: people at the bottom of the social ladder are also on the receiving end of the brunt of social distancing enforcement. A good way to make sense of this is to go back to the basics of theoretical criminology.

Conflict criminology, a strain of theoretical criminology originating in the 1960s and 1970s, highlighted the way in which the definition of crimes and enforcement of laws affirmed and exacerbated the existing unequal social order.

Thomas Bernard explains its premises:

  1. One’s “web of life” or the conditions of one’s life affect one’s values and interests.
  2.  Complex societies are composed of groups with widely different life conditions.
  3.  Therefore, complex societies are composed of groups with disparate and conflicting sets of values and interests.
  4.  The behavior of individuals is generally consistent with their values and interests.
  5.  Because values and interests tend to remain stable over time, groups tend to develop relatively stable behavior patterns that differ in varying degrees from the behavior patterns of other groups.
  6.  The enactment of laws is the result of a conflict and compromise process in which different groups attempt to promote their own values and interests.
  7.  Individual laws usually represent a combination of the values and interests of many groups, rather than the specific values and interests of any one particular group. Nevertheless, the higher a group’s political and economic position, the more the law in general tends to represent the values and interests of that group.
  8. Therefore, in general, the higher a group’s political and economic position, the less likely it is that the behavior patterns characteristic of the group (behaviors consistent with their values and interests) will violate the law, and vice versa.
  9. In general, the higher the political and economic position of an individual, the more difficult it is for official law enforcement agencies to process him when his behavior violates the law. This may be because the types of violations are more subtle and complex, or because the individual has greater resources to conceal the violation, to legally defend himself against official action, or to exert influence extralegally on the law enforcement process.
  10. As bureaucrats, law enforcement agencies will generally process easier rather than more difficult cases.
  11. Therefore, in general, law enforcement agencies will process individuals from lower rather than higher political and economic groups.
  12. Because of the processes of law enactment and enforcement described above, the official crime rates of groups will tend to be inversely proportional to their political and economic position, independent of any other factors (such as social or biological ones) that might also influence the distribution of crime rates.

Thomas Bernard, Distinction between Conflict and Radical Criminology

Radical criminology goes even further:

  1.  No consensus exists in society on the basic values and interests of individuals, and on the contrary, society is characterized by conflict on these issues.
  2. Society in general is divided into classes whose members have similar values and interests, the principal classes being those who own the means of production (the ruling class) and those who are employed in production (the working class). The principal conflict in society is between the ruling class and the working class.
  3. Crimes are defined as socially harmful actions that violate basic human rights. That includes both “street” crimes in which the lower class preys on itself and on others, and ruling class crimes in which the lower class is victimized through unemployment, pollution, and exploitation. Because the law is a tool of the ruling class in its conflict with the working class, the socially harmful actions of the ruling class are generally not defined as crimes by the official criminal justice system.
  4.  Conventional criminologists accept the definitions of crime provided by the law, and so assume a technocratic role in the social control of the working class. They do this through “correctionalism,” which attempts to reconcile the working class to the structure imposed by the ruling class, and through “reformism,” which attempts to improve the operation of the criminal justice system and increase its effectiveness in controlling the working class.
  5.  Radical criminologists reject the definitions of crime provided by the law and study all socially harmful behaviors that violate basic human rights. They argue that contradictions in the capitalist economic system are the underlying causes of these behaviors.
  6. The crime problem can be solved only by the overthrow of the capitalist economic system and the establishment of a socialist state. Once capitalism is overthrown, the law in its present form will eventually become unnecessary, as the conflicts between classes will have been resolved.
  7. The principal task of radical criminology is to promote the overthrow of the capitalist economic system, and thus radicals must guard against the danger of “cooptation,” that is, having specific points of radical criminology accepted by mainstream criminology and placed in a context that does not promote the overthrow of capitalism.

Bernard, see above

This distinction shows radical criminology as much more engaged with the Marxian social structure, and having more to say about what the crimes really are. Even though the two theoretical strains differ in the extent to which they accept the existing definitions of crime, the classic distinction between “crimes in the streets” and “crimes in the suites” comes in handy. The wealthy and socially powerful wreak harms that quite possibly should be defined as crime (corporate malfeasance, environmental crime), but sometimes escape the definitions altogether, because the law serves the interests of the ruling class or, if it exerts autonomy, overall supports the existing unequal social order. When the wealthy and socially powerful *do* commit crimes that are defined as such, they avoid enforcement either because they commit them in places and manners that escape detection, or because they wiggle their way out of criminal entanglement using social advantage and connections.

Social distancing violations are no different, in this respect, than any other type of crime. The most tragic example of “crimes in suites” in this pandemic that I can think of is the horrific story of the first known COVID-19 casualty in Brazil, Cleonice Gonçalves. Cleonice worked as a domestic worker at a wealthy Rio de Janeiro neighborhood. Her employer, who had just returned from holiday in Italy, was feeling ill and sought testing for coronavirus, but apparently did not inform Gonçalves, who had worked for the family for decades. The employer recovered; Cleonice died.

But this story holds the key to explaining why, through a conflict criminology lens, it is poor people and people of color that are bearing the brunt. First, wealthy people can avoid violating the law altogether. Some of us are riding this out in vacation homes, where they have extensive grounds, pools, and play structures, while some of us live in apartment buildings and projects devoid of natural beauty and space, who have to look for respite in city parks and beaches. Being able to afford grocery and takeout deliveries spares one the need to go outside and, by consequence, the possible formal and informal social control if one happened to forget their mask at home. Those of us with more social advantages have a more reliable internet connection, more access to toys and books for our children, which allows us more flexibility in entertaining our kids and thus less need to go outside.

Second, when wealthier people violate social distancing mandates, they can afford to do so in ways that keep their behavior undetected. Sneaking out to get your hair cut (or worse, having your hair stylist to come to your house), having your house cleaned by a cleaner who travels over to you (and faces risks outside and, worse, at your home), and quietly socializing with others indoors, allows you to engage in behaviors that are much more harmful to public health than outdoor mask-non-wearers.

Third, relatedly, law enforcement focus and priorities play a role in where crime is enforced. This is not news, of course, though the question of whether high enforcement priorities are necessarily racist is more complicated than it seems. But it is rather obvious that privacy concerns and the practicalities of law enforcement target places where people with less social advantage are more likely to be. Even if the police know that so-and-so has a house cleaner, coiffeur, or masseur come in once in a while, there are many practical and ethical disincentives to enforcing inside the home (they should get a warrant, right?).

Fourth, when the people at the lowest rungs of the social order violate the stay-at-home mandates, what they do is more likely to be perceived by all of us, including well-meaning folks, as a problem and a violation. Last week, UC Hastings and other Tenderloin institutions and businesses sued the city of San Francisco for the worsening conditions in the Tenderloin neighborhood. The increasing congregation of unhoused people in tents, in close proximity to each other, without bathrooms or hygienic facilities or reliable healthcare, is risking them first and foremost, but also, of course, others in the neighborhood. And yet the concern is, of course, that when law enforcement intervenes, it will be to “clean” the sidewalks and remove the nuisance-turned-serious-contagion-risk, rather than put together long-term plans to house and treat these folks properly. This is right out of the Anatole France maxim that critical criminologists quote all the time: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”

The irony, of course, is that the “crimes in suites” are much more perilous, from a public health perspective, than the “crimes in streets.” The risk of becoming infected outside is considerably lower than the risk from indoor congregations. The truth is that the ire about the spring break revelers in Florida was misdirected at their daytime beach activities, and should have been directed at the indoor partying later at night. But we focus on enforcement outdoors for the same reason that we look for a lost wallet at night under a street lamp: not because it’s more effective, but because it’s easier.

The tragedy of this is not just the hostile interpersonal environment this creates, but the concern that, if law enforcement intervenes because of some concerned citizen’s complaint, folks who are lacking social advantage to begin with will end up in jails and prisons, where their risk of contagion is so much higher, contributing to the scary incubators of disease that we are fostering in our prisons these days.

I suggest we all think about this the next time we have an urge to scowl at someone on the sidewalk. Your intentions are good, and you want us all to stay healthy, but your ire is misdirected at targets that endanger you less, and who are themselves endangered more by your actions.

Health Measure or Oppressive Social Control?

The 'Splainer: What is a mikvah, and does it have anything to do ...

One of the hottest stories from quarantined Israel is the fierce Haredi (Ultra Orthodox) objection to the closure of mikvaoth (ritual bathhouses.) Almost two weeks ago, Ha’aretz reported:

Another issue of concern is immersion in a mikveh, a ritual bath, especially for women, who must immerse every month under the rules of family purity. 

“The mikvehs for women’s immersion are under constant supervision, so there is no reason to fear keeping the mitzvah of purity properly,” the Rabbinate’s document states. However, “anyone who must be in quarantine must postpone her immersion until she is permitted back out.” 

Indeed, keeping the mikvaoth open is strongly suppported (!) by Israel’s health minister Ya’acov Litzman, himself a haredi man. Decrees published late at night confound the Israeli public with contradictory policies: the decree was to close the mikvah for men, but keep it open for women. If you’re looking for a patriarchal angle, here it is: women’s access to the mikvah to purify themselves after their monthly period is a prerequisite for having sex, and is therefore in the best interest of their husbands. Then, they changed course and reopened the mikvah for men also, apparently under the pressure of Ultra Orthodox groups who wanted to ensure access to this prerequisite for visiting holy sites (in itself a can of worms in the context of quarantine.)

The most recent development is Litzman’s insistence to keep the mikvaoth open because “it is inconceivable that people should be allowed to take their dog out for a walk and the mikvaoth will be closed.” When Netanyahu said, “what can we do, the virus does not respect religion,” Litzman replied, “well, we will.”

Setting aside the absurdity of a health minister who apparently does not care for the health of Israeli citizens, particularly those of his own congregation, and who will not use his insider influence to talk the Rabbis into saving their own followers, I was starkly reminded of a similar dark period in history–namely, the tragic days of the 1980s, in which San Francisco was in the throes of the AIDS epidemic and the numbers of the stricken rose every day. Young people were going to funerals incessantly, caring for each other in desperation against an indifferent administration, and waging battle on two fronts – against the disease and against homophobia.

When Mervyn Silverman, then the Director of Health in San Francisco, decided to close the bathhouses–a hotbed of gay liberation and sexual activity–he encountered vociferous objections from many in the gay community. The New York Times from 1984 reported:

Dr. Mervyn Silverman, San Francisco’s Public Health Director, said at a news conference that the 14 establishments ”have been inspected on a number of occasions and demonstrate a blatant disregard for the health of their patrons and of the community.”
He said the establishments were among 30 businesses investigated by undercover health officials since an April ordinance went into effect banning ”unsafe” sexual activity at sex parlors and bathhouses. The 14 that he ordered closed have not complied with the ordinance, said Dr. Silverman, who has been under pressure from Mayor Dianne Feinstein to order the shutdowns.
The authorities posted closing notices effective at noon on the sex club buildings. If a notice is ignored, the city would go to a judge to obtain a court order shutting down the operation.
Dr. Silverman’s announcement came just a week after the department released figures showing an increase in reported AIDS cases in San Francisco, where officials estimate that 15 percent of the city’s population of 700,000 is homosexual.
Last month 39 new cases of AIDS were reported, for a total of 723 since July 1981. Eighteen AIDS patients died in September, the department said. According to the Centers for Disease Control, a Federal agency based in Atlanta, 6,122 AIDS cases have been reported throughout the United States and 2,734 of those patients died.

Gay liberation activists considered this a thinly veiled effort to push the community, who had just recently achieved a modicum of acceptability, back into the closet. In the context of a similar debate in New York, the AP reported:

″My generation sees this (opposition to the bathhouses) as endangering hard-fought, hard-won and well-deserved advances. What they don’t realize is that this was before the virus came along,″ said Caiazza, whose West Side medical practice has become more and more devoted to AIDS in the past three years. 

Fascinatingly, there are still people who believe–today, after all those years–that the closure was an unnecessary homophobic move. Gayle Rubin writes:

Proponents of bathhouse closure, such as Randy Shilts, argued that their program was an obvious common sense measure to save lives. They portrayed the debate about closure as one pitting public health against civil liberties. Shilts in particular wrote as if public health professionals were in agreement on the desirability of closing the baths, and that only political considerations were preventing them from doing so. (Shilts 1987)
On the contrary, bathhouse closure, far from being an obvious public health measure impeded by political pressure, was a case of political pressure overwhelming public health considerations. Public health professionals were not unanimous about the necessity or desirability of closing the baths, which stayed open in most other cities. It is ironic that while there are still no legal gay bathhouses within the San Francisco city limits, establishments in nearby municipalities such as Berkeley and San Jose have continued to thrive.
It is arguable that what mattered in the long run was changing behavior, not its location. Closing the baths may have actually impeded the progress of safe-sex education. Even in situations where the ownership did not cooperate, safe sex was spreading, like the epidemic itself, from person to person, through sexual contact, as men would engage each other in discussions of what they were or were not about to do. Wholesale closure eliminated opportunities for sex education along with opportunities for sex. At the baths, the concentrated populations of those at high risk for AIDS provided opportunities for educators to disseminate condoms along with written guidelines for AIDS risk reduction. (Murray & Payne 1988; Bolton 1992)
The social costs of closing the baths were treated cavalierly. Those who pushed for closure appeared to assume that nothing important or good ever happened in the sex palaces. They failed to recognize the baths and sex clubs as important institutions that served many needs within a diverse gay male community. (Brub 1996) The major gay baths had deep pockets and expensive attorneys, and could afford a protracted legal fight. By contrast, many of the leather clubs were relatively small operations in which a dedicated owner had invested most of his capital and a great deal of personal commitment, and they could not afford prolonged litigation. Calls for closure quickly claimed most of the specialized leather, SM, and fisting sex clubs even before any city actions were taken, and as the agitation intensified, most of the men who ran the leather clubs elected to shut down and limit their losses. The wider social and economic fallout from closure was also substantial. While the owners of bathhouses were frequently vilified as greedy capitalists (and some undoubtedly were), the debates never grappled with the importance of the baths to gay male social life or the economic impact of closure on the gay economy.

I vehemently disagree with Rubin: Closing public bathing facilities in the face of a pandemic, whether they cater to the haredi or the gay community, is not a “case of political pressure overwhelming public health considerations.” If anything, the vociferous insistence on the opposite policy is a textbook example of precisely that. While it may be true that people who hate haredim or who are deeply homophobic find a measure of schadenfreude in the resulting harm to community morale–and the pain of that should certainly be acknowledged–when saving lives is at stake, we absolutely must do what we can.

It’s instructive to read Silverman’s aftermath thoughts about the closures, as he laid them out in an interview in 2004:

What was unique here was that people could come there and have multiple partners, as many as 20 or 30 a night. Most men, heterosexual men, could not understand how this was possible, but if you are the recipient, then obviously you could have as many partners as you can tolerate. And if you had 30 partners, and one or more of those partners was HIV positive, there was a good chance, not necessarily every night or whatever, but you were placing yourself at great risk — unknowingly, of course, in the early years — at risk for getting infected. …
The mayor at that time said, “If you save one life, then it’s worth closing the bathhouses.” At the time that this was going on, it was my feeling that we wouldn’t save one life; we would lose many more, because the bathhouses represented 5 or 10 percent of the gay community on any regular basis. That’s who frequented those bathhouses. That left you with 90 or 95 percent of the community you needed to reach, because if you could make the bathhouses disappear overnight, you weren’t going to make the transmission of this virus disappear overnight. One had to think of the entire community, and how do you reach that community and get a behavior change?
Interestingly enough, before any of the drugs were discovered and out in general distribution, the rectal gonorrhea rate in this city dropped from 100 percent that we had figured that we had before down to 15 percent. There was an 85 percent drop. The reason I bring that up is in the early years, that was what we were using as a surrogate marker. We didn’t have HIV identified or the test, so we figured if someone had that, there was a good chance they may have whatever this new disease was. This dropped 85 percent before any drugs, and the reason it dropped was the exposure that the Health Department and working with the gay community had in getting the message out and getting behavior change, a behavior change never seen before.
If you have an obesity clinic, a smoking cessation clinic, a drug substance abuse clinic, where you’re trying to get people to stop, and you get a 20 percent success rate, … you feel you’ve had a success. We’re talking here about an 85 percent drop in rectal gonorrhea. That meant that from a public health perspective, we must have been doing something right.

Had Litzman not been, essentially, a mouthpiece for Rabbis who flout state law and regulation, he could have been a bridge that reaches across the abyss with empathy and compassion for the community’s plight. There is still an opportunity to do this, because every day that the mikvaoth remain open is another victory for the contagion. I write this being fully aware of the fact that I’m not on the receiving end of such measures, and that–as opposed to Rubin–I didn’t live through the worst of the AIDS epidemic and perhaps that dulls my appreciation for the psychological blow that the closures had on the community. While emergency measures must be taken if lives are to be saved, we can do so as we express sensitivity to people’s communities, sense of collective identity, and allegiance to community norms.

There is an additional point that matters a lot. Recently, Cianna Stewart, who worked on the front lines of AIDS prevention in the 1990S, wrote a piece comparing her personal experiences of the two pandemics. She found many similarities between the two experiences, but some important differences:

  • this timeline is much faster
  • this virus is much easier to spread
  • a racist/xenophobic backlash operates differently from a homophobic backlash because while individuals are being racist against Chinese (and perceived Chinese) people, as a society we have a different understanding of how racism is wrong, in contrast to the societally-supported moral outrage against gays and bisexuals which was widespread then and still lingers to this day (it’s also different that now we have a President who is actively stoking the racism where before the Presidents primarily engaged in homophobia and racism by omission)
  • the coronavirus is spread through everyday activities, while HIV is spread primarily (although not exclusively) through vilified behavior and actions veiled in secrecy (for example: it’s generally easy to have conversations with family about wanting to play basketball or hug people, but generally hard to talk with family about longing for unprotected sex)
  • COVID-19 has the potential to spread through families and there are many stories about families in grief about not being able to be with their dying loved ones, in contrast to people getting kicked out of their families for being gay and/or when they contracted HIV (I will note that in the early days of the AIDS crisis there was a lot of fear and misinformation about routes of transmission and some families wanted to be with their dying but were afraid or prevented from doing so)
  • people don’t have to get infected or know anyone who’s infected in order to feel their lives are being torn apart by this pandemic because it already has had a broad economic impact that is likely to get worse, and in the short term is devastating for so many individuals and in the long(er) term may push us into a depression and is likely to restructure our global economy
  • many people in epidemiology circles have been predicting a superflu pandemic like this for a long time and we shouldn’t act like it’s a surprise

To the extent that the decision to close the bathhouses in 1984 is still controvesial, a decision to close the mikvaoth should be consensual precisely because of these factors: the fast spread of the virus, the contagion, and the spread through everyday activities that cannot be stereotyped as prioritizing one group over others.

Mr. Litzman, while it is too late for too many people, it is not too late to save lives in a community ravaged by this virus. Close the mikvaoth now.

UPDATE: Litzman and his wife have both tested positive to COVID-19 and thus forced government officials into quarantine – this after being the only minister refusing to have his temperature checked at the entrance to the Knesset. Israeli doctors are demanding his resignation.

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.

Facing Criminal Charges for Saving Animals, Part II: The Necessity Defense

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Activist rescuing pigs. Photo courtesy DxE.

Part I here

The necessity defense is recognized in common law as a situation in which a person violates the law in order to prevent or mitigate harm. One way to understand the principle behind necessity is to think of a car swerving off the road to avoid an accident and then running into someone’s fence. Ordinarily, the driver would be responsible for the damage to property, but because she caused it in order to avoid a greater harm, we do not hold her responsible. Necessity belongs to a family of affirmative defenses known as “justifications”: rather than merely excusing an individual for a particular set of circumstances that absolve them of responsibility (because they are insane, too young, or intoxicated, for example), a justification applies more universally, and might be regarded as a legal statement that, when faced with these circumstances, the law wants people to choose the lesser harm.

As Jenni James explains in this excellent article, the necessity defense can be elusive, because over the years judges have narrowed its scope. Most states do not even have it codified into their penal code: for example, to find California’s necessity defense, you’d have to recur to the California jury instructions. The elements vary somewhat across jurisdictions, but for the most part they conform to some general principles:

  1. Serious harm (in CA, defendants have to prove that they acted “in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else)”
  2. No adequate legal alternative.
  3. Proportionality between the harm committed and the harm avoided ( in CA, “[t]he defendant’s acts did not create a greater danger than the one avoided). In other words, the opposite of what the Cowboy Fireman did in this terrific Faith Petric song.
  4. A genuine, subjective belief that the act was necessary to prevent the threatened harm or evil.
  5. Objective support for the subjective belief: In other words, that “a reasonable person would also have believed that the act was necessary under the circumstances.
  6. Lack of culpability on the part of the defendant for the emergency in the first place (CA law requires that the defendant “did not substantially contribute to the emergency.”)

As James argues in her article, the ability to even present the necessity defense in court depends on judicial discretion (typically exercised in the context of a motion in limine to prevent the presentation of the defense.) In one decision, U.S. v. Schoon, the Ninth Circuit held that the necessity defense will only be available to activists who engage in “direct civil disobedience”–that is, directly challenging the rules they protest–and not “indirect civil disobedience” activists, who violate a law that is “not, in itself, the object of protest.” As James explains, open rescuers engage in both forms of civil disobedience, because they challenge both the exploitation and cruelty of the animal industry (indirect) AND ag-gag laws (direct.) But the upshot of the decision was that protesters, by definition, were to be denied the necessity defense–even though lower courts sill allow it on occasion. And of course, as James points out, the necessity defense can be a poor fit for these premeditated and planned operations, because by its very nature it is designed to address emergencies.

This means that activists encounter some serious hurdles in presenting the defense. The first and foremost issue that might come up is the big question whether the suffering of animals constitutes “serious harm,” and also, a harm that is proportional to the harm they cause when they enter the facility or remove an animal. Part of this debate is factual: the activists would have to prove the imminent harm to the animals, and to come up with a way to show that this harm is equal or greater to the harm that their actions caused to the farmers. Video evidence showing sick or dying animals might prove their marginal monetary worth to the farmers as well as the harm and suffering to them (but requires, of course, that activists engage with the legal framework that sees animals as property.) As to how harm and suffering are to be measured, one thing I plan to look at is the extent to which potential jurors are open to considering evidence of animal emotions and theories of animal personhood.

I’m reading Frans de Waal’s Mama’s Last Hug, whose point of departure is the animal behaviorist’s skepticism about proof. De Waal argues that we can, and should, be able to assess and measure animal emotions, which human and nonhuman animals can both exhibit and control. The examples he provides show nonhuman animals as imbued with a sophisticated understanding of their social world, as well as a sense of justice, as well as fairness. Larry Carbone’s interesting What Animals Want, which is set at a lab, raises important questions about assessing physical suffering of animals held in labs for experimentation. My hope is to expand my reading on animal emotion, feelings, and suffering, and think about which theory of animal agency would be persuasive to a jury.

Then, there are questions about the subjective and objective intents of the activists, as well as the extent to which they recurred to legal means before taking illegal action (reports to the police, etc.) – this element can be difficult to handle, because often one can know of the specific harms that are occurring only via illegal means. In short, as James argues in her article, “[j]udges seldom have to overtly pit commercial privacy interests against an animal’s right not to suffer. Instead, judges often assume the practice causing the animal’s suffering was legal and thus not harmful for purposes of the necessity defense balancing of harms. Rescuers who wish to remove animals from industrial facilities, then, should be careful to select only animals suffering from clearly illegal activity, which, ideally, should also be documented. However, to avoid the appearance of vigilantism, rescuers might consider using this documentation sparingly and perhaps even sharing it with law enforcement promptly.”

But that raises other questions, which are a proper subject for ethnographic research: How do animal rights activists relate to the law, and to the prospect of criminal justice in their activities? More on that in Part III.

Part III
Part IV
Part V

Facing Criminal Charges for Saving Animals, Part I: Open Rescue

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DxE activists with rescued birds. Image courtesy Indybay.

Hello, friends! I’m writing this from the Harvard Animal Law Policy Program, where I am a Visiting Fellow this fall. My plan for this fellowship is to examine the intersection of criminal justice, social movements, and animal rights–in other words, what happens when animal rights activists engaging in open rescue are criminally charged for their actions?

A brief primer: the conditions of confinement experienced by animals–cows, pigs, chickens, turkeys, and others–in factory farms are beyond atrocious, and this is true not only for conventional farms, but also for so-called “humane” or “cage-free” facilities. I have seen footage that has torn my heart apart. In one video, from a chicken farm, I saw emaciated and sick chickens, some of which were barely moving and clearly close to death. The animals trampled upon each other to breathe and carcasses of trampled chickens were clearly visible on the ground. Parts of the animals’ bodies were torn, likely by other animals trying to push through to obtain food and air. There were some indications that the animals, starving and parched, had turned to cannibalizing each other.

These are difficult things to see and experience, partly because opening our eyes and hearts to animal suffering requires seriously reconsidering our consumption habits that contribute to this cruelty. But the first step is, of course, to raise public awareness to these conditions, and there are very few legal avenues to doing so. Because of that, activist organizations turn to a technique called open rescue.

The Animals and Society Institute defines open rescue as “[t]he process of giving aid, rescue, and veterinary treatment to animals confined in typical factory farm living conditions. The immediate aim of the rescuers, who identify themselves even when trespass is necessary, is to save lives, while documenting the animal suffering inherent in large-scale industrialized food production.” This definition has several important components.

First, it is a “rescue” mission, and therefore often involves not only documenting conditions at the farm, but also removing sick and endangered animals. The activists I spoke to explained that they seek to identify animals that might imminently die or suffer irreparable harm unless they are removed from the facility (this, in itself, requires them to do some selection, because all animals subject to factory farm lives are in dire circumstances.) They also do this because working for animal rights can be emotionally devastating and demoralizing, and rescuing animals provides an optimistic element to the experience.

Second, open rescue is “open”. In an article about the need for solidarity and cooperation in the animal rights movement, Taimie Bryant quotes Paul Shapiro, formerly of Compassion over Killing, who explains that, by contrast to other animal liberation actions in which participants “go to great lengths to conceal their identities”, the point of open rescue is to rescue the animals “completely openly… you videotape yourself doing it, you take full responsibility for the fact that you did it and you openly publicize the fact that you did it.” Shapiro argues that the overt nature of the action garners much more sympathy for the activists and focuses attention away from the morality of their own actions (“should we treat them like orderly criminals, or like political prisoners?”) and toward the conditions suffered by the animals.
–> But, as it turns out, you can’t really avoid the question of how to treat the people, even in the face of the serious question how to treat the animals. Entering factory farms to document conditions does not only violate garden-variety penal code provisions against trespass (and, if animals are rescued, larceny), but also a slew of ag-gag laws–laws lobbied for by the agricultural industry prohibiting entry to, and documentation of, animal factory farms.

As an aside, saving animals turns out to be a fairly dangerous proposition in general. During Hurricane Katrina, the Animal Legal Defense Fund composed a memo offering legal guidance for the brave people who broke into abandoned, flooded homes to rescue animals left behind. Even in the face of the heartbreaking story of Snowball— reportedly, the inspiration behind legislation requiring states to come up with animal rescue planning as a condition for FEMA assistance–the law offered (and still offers) little to no protection even for people who rescue the most sympathetic animals of all: domestic pets. Good Samaritan Laws, which protect emergency rescuers from criminal and/or civil liability, either do not refer explicitly to animals or explicitly use the term “person.” Local animal cruelty laws do not go as far as offer coverage for rescuers.

This is especially true for farmed animals: as reported by the Animal Welfare Institute, several states explicitly exclude farmed animals from the definition of “animal” in their animal cruelty laws, so that these laws do not apply to them. Moreover, the aforementioned ag-gag laws were designed specifically to protect agricultural interests, as exemplified in this Intercept story by Glenn Greenwald. So, from the perspective of the farmers, the legislature, and the prosecutors, open rescuers are trespassers (when they step on the premises) and thieves (when they remove animals from the premises.)

My project involves a study of an organization called Direct Action Everywhere (DxE) which, among other avenues, pursues open rescue and documentations. DxE activists use sophisticated technology–drones, virtual reality filming–to present the horrors of factory farms to the public. And, the organization often rescues animals, whom they name and care for with the help of vets and sanctuaries. Such acts have resulted in several criminal cases against activists. Some of these have been dismissed (such as the case against a woman who gave water to thirsty pigs on their way to slaughter) but some are still pending, in California (Sonoma County), Utah, and North Carolina.

The activists facing trial have, so far, declined plea bargains in favor of jury trials, and they plan to argue for a necessity defense.

The next installment in this blog post series will examine the elements and feasibility of relying on a necessity defense in open rescue cases.

Part II
Part III
Part IV
Part V

Prison Abolitionism, Anti-Zionism, and the Risks of Fashionable Thoughtlessness

More than five years ago, I started noticing that people whose positions on mass incarceration and its discontents were similar to mine were identifying as “prison abolitionists.” Whenever I was asked whether I, too, was an abolitionist, I used to defiantly say “no,” until I buckled down and wrote this post, which still accurately reflects where I stand on the question of abolition. TL;DR for you: I think crime is real, it has an ontological existence beyond the repressive state and causes real harm for real people, and some people who commit crime–far less we have behind bars, but more than zero–need to be behind bars to protect the public. If anything, the work I’ve done since that post–writing a book in which an aging Charlie Manson is one of the characters, and participating in crime prevention summits in which victims and perpetrators come together in a call to put an end to real, actual violence happening in the streets–have strengthened my commitment to radical realism.

Last night, at James Forman‘s excellent talk about Locking Up Our Own at City Arts and Lectures, I had another opportunity to think about this. At the Q&A part of the evening, a young man rose and asked Forman and Lara Bazelon (who was interviewing Forman) whether they were abolitionists, and why or why not. Forman gave a nuanced and interesting answer. He said (I’m paraphrasing from memory) that there is something very appealing in envisioning a system that does not rely on law enforcement and incarceration as the ultimate solution to its problems. At the same time, he said, he was struggling with notions part of him still harbored that prison was still appropriate for some people. The examples he gave were Michael Cohen, Harvey Weinstein, cops who shoot people of color, and perpetrators of hate crimes.

I thought about Forman’s answer a great deal later in the evening. My first, facile interpretation of his response was that, like many of my friends, it showed the unbearable lightness of doing away with due process and civil and human rights for defendants we don’t like. But we later had a brief conversation in which I realized that Forman and I actually agreed on far more than I thought. We both believe that the prison apparatus is used exponentially more than it should be, that it exposes people to horrific violations of their human rights and to threats to their basic existence, and that it hasn’t been shown to reduce crime or rehabilitate people. And we both believe that there is a small minority of people who need to be behind bars–Forman highlighted retribution, I’d be talking more about incapacitation. Also, my shortlist of people that should stay behind bars might include folks that belong to categories of people “we” like as well as those we dislike. Forman’s response to the young audience member was a model of humility and honesty, but we end up pretty much in the same place.

Later at night it occurred to me that most of the self-defined abolitionists would probably agree with both of us that there is still room for institutional confinement, though not in its current shape and not to the degree of its current usage. And then I thought that, like so many other terms, the term “prison abolitionism” has suffered from a serious dilution of its meaning. In its original formulation, by Norwegian criminologists such as Thomas Mathiesen, abolitionism meant absolutely no prisons. Or, a revolutionary reversal of fortune – using them to lock up the bankers and environmental destroyers. Crime, Mathiesen argued, is not a real thing, and prison is nothing more than a manifestation of state repression. It is a fairly extreme position, but it has the benefit of being ideologically genuine and undiluted.

In a lot of ways, the fight over the semantics of “abolitionism” reminds me of a similar fight over a term that is fashionable among the same milieu: anti-Zionism. Most of my encounters with self-defined anti-Zionists indicate that they either do not understand what Zionism is, or have such a reductive definition of the term so as to equate it with right-wing Messianic racism. As an Israeli who studied Zionism extensively by reading original texts, and being exposed to the many strains in Zionist thought, including multicultural, liberal and tolerant Zionism, I confess that these New York Times paragraphs really resonate with me:

Israelis experience anti-Zionism in a different way than, say, readers of The New York Review of Books: not as a bold sally in the world of ideas, but as a looming menace to their earthly existence, held at bay only through force of arms. It’s somewhat like the difference between discussing the effects of Marxism-Leninism in an undergraduate seminar at Reed College, circa 2018 — and experiencing them at closer range in West Berlin, circa 1961. 

Actually, it’s worse than that, since the Soviets merely wanted to dominate or conquer their enemies and seize their property, not wipe them off the map and end their lives. Anti-Zionism might have been a respectable point of view before 1948, when the question of Israel’s existence was in the future and up for debate. Today, anti-Zionism is a call for the elimination of a state — details to follow regarding the fate befalling those who currently live in it. 

Note the distinction: Anti-Zionists are not advocating the reform of a state, as Japan was reformed after 1945. Nor are they calling for the adjustment of a state’s borders, as Canada’s border with the United States was periodically adjusted in the 19th century. They’re not talking about the birth of a separate state, either, as South Sudan was born out of Sudan in 2011. And they’re certainly not championing the partition of a multiethnic state into ethnically homogenous components, as Yugoslavia was partitioned after 1991. 

Anti-Zionism is ideologically unique in insisting that one state, and one state only, doesn’t just have to change. It has to go. By a coincidence that its adherents insist is entirely innocent, this happens to be the Jewish state, making anti-Zionists either the most disingenuous of ideologues or the most obtuse. When then-CNN contributor Marc Lamont Hill called last month for a “free Palestine from the river to the sea” and later claimed to be ignorant of what the slogan really meant, it was hard to tell in which category he fell.

When someone who holds oversimplified, reductionist thoughts about the Israeli-Palestinian conflict, which were shaped by American liberal education, tells me proudly that they are anti-Zionist, I have to ask myself: Does this person believe I do not have a right to exist? That my family and friends, whose lives are rife with activism for peace, multicultural friendship and relationships, and a strong commitment to coexist with Muslim, Christian, Druze, and Circassian friends, should drop dead? That it was justifiable, and maybe even laudable, to bomb a university cafeteria and kill nine of my friends? This reductionism worries me greatly, not only because it reflects great ignorance, but also because it is fashionable among well-meaning social justice folks whose understanding of the realities of Israel/Palestine lacks nuance and empathy.

That is exactly what I feel about the equally fashionable identification with abolitionism. When someone–typically a middle-class, economically comfortable, highly educated white academic–tells me proudly that they are a prison abolitionist, I have to ask myself: Does this person believe that lethal violence over drugs, which ravages lives and destroys cities and neighborhoods, does not have an ontological existence? Does this person understand that the victims of the crime, whom they claim is nothing more than the fabrication of a perverse, oppressive state, are real people who miss their loved ones and need to be taken seriously? Is this person comfortable with some sort of alternative community reaction to, say, serial killers?

Or maybe this person agrees with me that prison is essential, but on a much smaller and humane scale, and adopted the diluted label of abolitionism because that’s part of the fashionable argot of this discipline? And if so, what exactly makes them an abolitionist?

I’m curious to hear more from you, especially if you consider yourself an abolitionist. I think you’ll find, like me, that we are virtually in agreement on how broken the system is, but I seem to have a more severe allergic reaction to labels.

Safe Injections Disappointment: A Call for SF Hamsterdam

The proposal was well thought and empirically backed: According to the principles of harm reduction, the best perspective we have on saving lives that could be claimed by drugs and alcohol, a safe injection site in San Francisco would be a good idea (so would legalizing opioids, but we live in this world, not in a better one.)

Then, Governor Brown, in an incomprehensible statement, vetoed a California bill that would enable San Francisco to pursue a four-year pilot with a safe injection site.

Before we move on to thinking how San Francisco could get around this veto–and I believe it could–let’s pause for a moment. Why would Brown veto the proposal? Surely not to curry favor with conservative and moderate California voters–he is not running for reelection. Surely not to curry favor with the Trump administration (we’ve done our very best, and justifiably so, in the opposite direction.) Surely not to support thoughtful, evidence-based reform, which this proposal surely is. What is going on? Honestly, I don’t know, and feel free to chime in with comments.

San Francisco mayor London Breed has declared that she plans to move forward, and so are other cities. But how can San Francisco move forward?

The key to a possible safe injection site lies in the fragmentation of policing and prosecution. As I explained elsewhere, policing in America is conducted on the municipal level. Prosecution is conducted on the county level. San Francisco is one of those rare locations where city and county overlap.

To the extent that the San Francisco District Attorney’s office and SFPD are on the same page, there is nothing to prevent San Francisco from establishing enforcement priorities that deemphasize opioid enforcement within a particular area of the city (a-la Hamsterdam from The Wire.)

What Would SF Hamsterdam Entail?

That depends. Hamsterdam could feature merely a lesser-enforcement area, where law enforcement commit to getting involved only if there’s violence (agreements like that have been worked out in other contexts, such as Operation Ceasefire.) We would need to carefully thing about protecting the status of employees and volunteers from the helping professions who might offer treatment, 12-step programs, and clean needles at the site, and how to best protect them, and if there’s a way to protect them as well, Hamsterdam could feature treatment options as well.

But Won’t the Feds Sweep In and Arrest Everyone?

That also depends–this time on how high we are on Jeff Sessions’ shit list. Arguably, fairly high–this vile administration has not shied away from attempting to penalize us for our sanctuary city policy–but having a concentrated DEA presence at a municipality might require more energy than the DOJ is willing to spend on a few folks addicted to opioids, with the possible lack of enthusiasm on the part of federal district judges (I’m not sure this is true–Mona Lynch’s work has shown judges with a great appetite for draconian sentencing of drug offenders with microscopic quantities, but her book does not cover Northern California.)

What’s important to keep in mind, though, is that our status vis-á-vis the feds is the same whether or not there’s a state law kosherizing the safe injection site. Possession of narcotics is a federal offense whether or not sanctioned by the state, and we obviously do not have the kind of understanding we used to have with the Obama administration about proper federal priorities in this regard. Even had Brown signed the bill into law, Sessions and the DEA would be able to sweep in, arrest people, and charge them federally with drug laws. Nor do I think the lack of a state law is likely to make them hungrier for these kinds of prosecutions–I think they abhor our state and our city with comparable ferocity (this, by the way, makes Brown’s veto even more puzzling.)

Can Jerry Punish Us for Going Through With It?

Theoretically, yes. There is no realistic scenario in which state law enforcement descends upon San Francisco and arrest safe injection patients; for one thing, they would have to be prosecuted in San Francisco absent a change of venue motion. There is, however, the possibility of monetary sanctions or withholding of state funds. But it’s hard to see Brown committed to punish San Francisco for going through with this. He has bigger battles to wage in the month he has left in office.

Should We Try Again After November?

DEFINITELY. I think Gavin Newsom will be open to this idea. He has been consistently pro-legalization in the marijuana context and might sign this into law. He is also advocating for an openly anti-Trump position at the gubernatorial mansion, and sticking a thumb in the eye of Trump by approving this plan statewide might play into his symbolic resistance to the feds.

Bottom line: Activists, do not despair. There is plenty we can do to win both this battle and the overall war against the war on drugs.

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.

Ganja in Trumpland: An Introduction

The campaigns for and against Prop. 64, the Adult Use of Marijuana Act, revolved around the minutiae of the proposition: Will the big guns get rich at the expense of mom-and-pop growers? Do we have to give away our medical marijuana cards and pay more for our pot? What do we do with impaired drivers?

It seems like pretty soon we’ll have more serious problems on our hands as a result of legalization. Trump’s planned nominee for Attorney General, Alabama senator Jeff Sessions, does not share the opinions espoused by reasonable, cost-minded Republicans about the harms of overcriminalization or the sensibility of a public health model for substance abuse. Instead, we will have to contend with a man whose acquaintances define as a “war on drugs dinosaur”, and who claims that good people don’t smoke marijuana.

(how do good people get their marijuana, then? Do they munch on edibles? Vape? Or maybe they smoke something else? What is it?)

The regime of state regulated-marijuana, as established by the Supreme Court in Gonzalez v. Raich (2005), means that Congress, despite its federal prohibition of marijuana, has not preempted the states from regulating it within their borders. On the other hand, it is perfectly permissible for the use of marijuana to be legal statewise and illegal vis-a-vis the federal government: after all, citizens can freely choose to obey both laws by not using cannabis. Granted, this reason was more upsetting with regard to the original plaintiffs in Raich, who suffered from debilitating medical conditions, than with regard to the prospective users of recreational marijuana in 2016. Still, it is a reminder that, while the State of California has decided to opt out of a criminal justice model, the feds can freely ignore Eric Holder and James Cole’s memos about federal restraint in enforcement.

In other ways, gentle reader, there is nothing to stop Jeff Sessions from taking away your pot.

The progressive and libertarian outcry against prospect of federal intervention in recently-legalizing states is understandable. The Trump victory makes the marijuana victory hollow. Federal law enforcement can make, and has in the past made, the lives of marijuana growers, sellers, and users impossible, even in states with lack or no enforcement of their own. And some of the outcomes of this contradiction are downright bizarre. For example, gun salespeople are not allowed to sell guns to anyone who is a “unlawful user and/or an addict of any controlled substance”–including medical marijuana, as the Department of Justice clarified in 2011. Technically speaking, this state of affairs is legally permissible, because Americans can comply with both legal systems by not using marijuana, in which case nothing can stop them from buying guns. But to some commentators this is inappropriate federal intervention in state affairs.

This little example is nothing compared to what we might see during the tenure of a man who finds moral fault in cannabis users: a renewal of the federal war on drugs, with its futility, noxious tactics and tragic outcomes–but this time, with the disturbing history of the Nixon and Reagan eras to school police departments and states in carceral expansion. In this grotesque carnival mirror caused by the election, blue states will now be the ones crying out for state rights.