BREAKING NEWS: California Court of Appeal Orders 50% Population Reduction at San Quentin

I am thrilled to provide this update: We won In re Von Staich, the habeas corpus case challenging CDCR’s mishandling of the COVID-19 crisis at San Quentin. Justice Kline wrote: “We agree that respondents–the Warden and CDCR–have acted with deliberate indifference and relief is warranted.” Here is an analysis of the opinion.

Justice Kline begins by stating the magnitude of the San Quentin catastrophe. Even against the horrific history of disease and contagion in prisons–including three separate spikes of the Spanish Flu in 1918–the San Quentin COVID-19 outbreak is “the worst epidemiological disaster in California correctional history.” He then highlights the physicians’ urgent memo (published after they visited San Quentin, at the Receiver’s invitation) recommending a 50% reduction of the prison population. CDCR’s response fell far short of this: between March and August 2020 they achieved a mere 23% reduction, “accomplished, in part, by suspending intake at San Quentin from county jails, which has increased the presence of COVID-19 in those local facilities, and is not likely sustainable.”

Justice Kline then rejects the evasive maneuvers employed by the AG’s office, who tried to play jurisdictional hide-and-seek by claiming that the San Quentin litigation effort was somehow “duplicative” of the federal case Plata v. Newsom. First, the court wrote, San Quentin is a particular, antiquated prison with specific problems, which are not the focus of the federal litigation. Second, these habeas cases are designed to ask for temporary relief, rather than the more systematic remedies sought in Plata. Third, state courts are not limited and bound by the PLRA, as federal courts are. And fourth, which I found inspiring, state courts have the duty and competence to vindicate rights under the California Constitution (which, just like the U.S. Constitution, forbids cruel and unusual punishment–albeit worded slightly differently.)

The court also rejected the AG’s office’s delay tactics, asking that the case be moved back to the Superior Court and/or that an evidentiary hearing be held. As Justice Kline explains, the AG’s declarations that the doctors have it wrong and that a 50% reduction is unnecessary were “conclusions the Attorney General has failed to support with any factual allegations contradicting petitioner’s allegations,” which were based on scientists’ and physicians’ declarations–even with testimony from their own prison physicians. Under these circumstances, “the issue before us is simply whether respondents’ disregard of the experts’ conclusion that a 50 percent population reduction is essential constitutes the ‘deliberate indifference’ necessary to sustain petitioner’s constitutional claim. The issue is one of law, not fact.”

Was CDCR’s response to the risk of infection–of which they concede they were subjectively aware–adequate? They established a central command; installed a tent structure; repurposed the chapel and a furniture factory to care for COVID-19 patients; provided PPE to the population and staff; and released 947 people. At the hearing, the AG representatives claimed that the reduction in case numbers at San Quentin was thanks to these efforts.

The Court of Appeal vehemently disagreed. Relying on the analysis of experts, the Court agreed with us that the reduction in cases was not because, but despite, CDCR’s behavior. The decision quotes Dr. Beyrer: “Had San Quentin done nothing, the rates of infection there would have been roughly the same.” And, while the steps the prison took to alleviate the risk were commendable, they were insufficient without the population reduction, which they refused to do.

The next bit is especially interesting. The AG boasted that they managed to bring the prison population down to a bit more than 100%. Of course, as Justice Kline writes, in a facility such as San Quentin, full occupancy cannot allow for the social distancing needed to fight the pandemic. He quotes extensively from AMEND’s urgent memo, which detailed conditions in specific areas of the prison, notably North Block and West Block, showing that the combination of crowding and high-risk people was unsustainable. What interests me most about this is the extent to which the AG’s office and CDCR have become habituated to the toxic perspective according to which having their prisons 100% is a desirable end, rather than an unhealthy point of departure. We’ve had bloated prisons bursting at the seams for so long that we seem to think that a full prison at “only” 100% is fine.

The opinion then hits the nail on the head: as I explained elsewhere, the release plans are specifically designed to exclude people serving time for “a violent crime as defined by law” when such people are approximately 30% of the prison population. The AG argued that this is reasonable policy, because they, as opposed to the physicians who authored the memo, have to take into account public safety. To that, the Court has two replies. First, the prison authorities may resolve the Quentin problem not just through releases, but through transfers (though the court does mention that a botched transfer is what started this catastrophe in the first place. Second, and more importantly, even from a public safety perspective, lifers are the most obvious target population for release: they don’t pose public safety risks because they’ve aged out of crime, and they themselves face a heightened risk for COVID-19. Justice Kline writes: “Exclusion of lifers and other older prisoners who have committed violent offenses and served lengthy prison terms is also difficult to defend, given their low risk for future violence and high risk of infection and serious illness from the virus.”

Justice Kline spends several pages citing robust legal, sociological, and medical materials to show the folly of excluding lifers and strikers from release programs. He refers not only to steps taken by the CA legislature, but to the robust literature on life-course criminology, which constantly finds age a significant factor in desistance. Despite their authority to order the release of aging people who committed violent crimes, and statistics about prison demographics that they themselves provide, the AG’s insistence on mostly ignoring this category of obvious release candidates “render[s] it doubtful whether a 50 percent reduction in San Quentin’s population could soon take place.”

This behavior by prison authorities satisfies the “deliberate indifference” standard; they conceded they knew the risk, and they are recklessly failing to take the necessary steps physicians recommended, while not providing any factual justification. The continued use of spaces in which people sleep in close proximity “is not merely negligent, it is reckless”–and “the recklessness is aggravated by respondents’ refusal to consider the expedited release, or transfer, of prisoners who are serving time for violent offenses but who have aged out of a propensity for violence.”

As to petitioner, Ivan Von Staich, the Court has ordered his immediate release from San Quentin. Von Staich was recommended for parole on October 16, but the Governor can weigh his case for four months, and in the meantime he must be released or transferred to a different facility. In addition, the Court agreed that the habeas corpus process allows them to extend relief to similarly situated people. However, the Court opines that “it would be inappropriate to order the release of prisoners we considerd vulnerable even if we thought we had the power to do so in this proceeding.” The Court raises three concerns in this respect: one, that medical vulnerability is a question of “scientific facts, not law”; two, that they are unsure whether they can extend relief to people who did not file a habeas petition; and three, that the appropriate social distancing via releases/transfers can be created not only by transferring vulnerable prisoners out of San Quentin, but also by releasing other people in sufficient numbers to allow for social distancing or the remaining prisoners.

“Nevertheless,” writes Justice Kline, “we are not without means to expedite the release or transfer from San Quentin of more inmates than are now deemed eligible for release.” These means are provided by Section 1484 of the California Penal Code, which allows the Court such course of action. The Court cites numerous California cases that involved injunctive relief through Habeas. By this authority, the Court orders CDCR to bring the CDCR population down to 50%–“no more than 1,775 inmates.” The Court leaves the manner of doing so in the hands of CDCR, though Justice Kline does offer, as possibilities, “expanding eligibility for the two expedited release programs currently limited to inmates not serving sentences for violent offenses to inmates like Petitioner, who are over age 60 and completed minimum terms of at least 25 years.” Note that, despite the Court’s conciliatory words that CDCR is free to achieve the population reduction in whichever way they like, the decision discusses at length the fact that ignoring aging people serving long sentences for violent crimes is what stands in the way of achieving the desired reduction. The order specifically mentions the criteria above (over the age of 60 with 25 years incarceration) and also makes reference to the need to speed up the Elderly Parole Program.

Because of the need to act rapidly to save lives, the decision becomes final in 15 days, and the Court refers the parties to the Marin Superior Court for future disputes.

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

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

AmiciCuriaeBriefVonStaich.pdf by hadaraviram on Scribd

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

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

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

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

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

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

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

Facing Criminal Charges to Save Animals, Part IV: Planning Legal Strategy

Image result for animal activists in court
Australian animal rights activists protesting during a criminal
trial of an activist for trespassing an animal culling operation.

Part I
Part II
Part III

Trials of animal rights activists can be seen as the site of convergence for two very different legal events: a criminal process against an individual charged with a crime, in which the individual faces the prospect of conviction and punishment (and the dilemmas involved in going to trial vs. pleading guilty), and a landmark case for animal rights. By contrast to impact litigation on issues of animal cruelty, though, the latter meaning is a bit more indirect: the accused are pointing the finger at their own accusers as lawbreakers (of anti-cruelty laws), perpetuators of illegalities (through the pursuit of ag-gag laws that might be struck down as unconstitutional), and moral transgressors (through engaging in cruelty.) This duality in the function of the trial has complicated implications as to the legal strategy employed by the activists.

To begin, there is the choice of legal representation. Cases pursued as impact litigation might attract the attention and services of organizations such as the Animal Legal Defense Fund (ALDF) or animal law clinics at law schools (such as the program here at Harvard.) As Bruce Wagman explains here, there’s often a crossover between the litigation and the academic world in this field (Also see this great piece by Kathy Hessler). But most of what these organizations do is litigate with the animals as clients, as it were (now there’s an interesting issue of animal personhood), against factory farms, laboratories, zoos, amusement parks, etc., and they might find it difficult to litigate with a human lawbreaker as a client. This problem might reflect a more general rift in the animal rights community between the “moderates” and the “radicals”: Taimie Bryant writes about this rift, and the hesitation of the former to get behind the latter to provide legal representation, in this piece. There is also the more mundane issue of legal specialization: is it best to hire a criminal lawyer, or an animal rights advocate, for a criminal case involving animal rights advocacy? And how might the choice of representation inform the issues to highlight at the trial? This might also bring out interesting attorney-client conversations (and potentially disputes) as to the value of provocative strategies. 

The activists on trial seek support, financial and otherwise, and the emphasis on one aspect of the case over another might impact the sources of said support. Presenting oneself as an idealistic, otherwise normative person in risk of a considerable prison sentence might be a persuasive strategy in obtaining support on a personal basis from sympathetic people, but it also centers the person, rather than the suffering animals, in the debate. Presenting the criminal case as an effort to produce a landmark outcome is also fairly complicated. If the activists are seeking a jury trial, even in the happy event that they are acquitted, they will not obtain a reasoned, written decision supporting animal personhood and rights (or even animal welfare), and it might be anyone’s guess whether the acquitting verdict is the product of legal analysis or jury nullification due to sympathy for the defendants. So, is the desired outcome a conviction, followed by a reversal on appeal with a written judicial opinion? And if so, how might that affect the ways in which support is sought? 
Image may contain: 24 people, including Almira Tanner, Matt Johnson and Jon Frohnmayer, people smiling, people standing
Activists packing the court at Rachel Ziegler and Jon Frohnmayer’s
trial for open rescue activities, Sep. 9, 2019.
Photo credit: Paul Picklesimer on Facebook.
And what about behavior during the criminal trial? Is filling the courtroom with supporters wearing animal rights t-shirts a winning strategy, or might it prove a turnoff to a jury, especially in a rural farming area? Again, the answer might lie in the question what the activists are trying to achieve at trial.

And then there is the legal strategy itself. The endgame for some (albeit not all) animal liberationists is some recognition of animal personhood. There are fierce debates in the literature about how to conceptualize animal personhood, of course. The granddaddy of animal liberation theory, Peter Singer, seemed revolutionary when the book came out, but in light of later writings on the topic, his writing on food and medical experimentation does allow for some exceptions. Tom Regan’s take on animal personhood relies on the animals’ cognition. In their provocative comparison of the animal rights and pro-life movements, Sherry Colb and Michael Dorf rely on the concept of sentience. And  perhaps the most radical formulation of animal personhood is Gary Francione‘s abolitionist theory, which finds no exceptions to the prohibition against using animals for any purpose. And against these philosophical theorists, whose views are, perhaps best articulated as biocentric, we have the ecocentric views of environmental ethical thinkers, for whom the perpetuation of a species or an ecosystem might be more valuable than the protection of individual animals (see more about this debate in a post I wrote a while ago in my oft-neglected cooking blog, of all places.) The big question is – to what extent would prospective jurors need to “buy” any of these formulations of animal personhood, be they strong or weak, to find that the necessity defense applies and the activists were justified in saving the animals? Since the necessity defense requires a balance of harms, is it necessary that the harm be suffered by someone who has some sort of legal status, some sort of claim to rights? Or are rights and suffering fundamentally different? And to what extent will the activists’ lawyers expect jurors to parse out these different theories? Again, Helena Silverstein’s wonderful Unleashing Rights is relevant here: as she points out in other legal contexts, “lawyers in the movement rarely speak of animal rights in the courtroom.” But importantly, “rights talk itself is not out of bounds in the courtroom. When rights talk is used, however, it is not in the form of animal rights but in the form of human rights. . . lawyers and movement organizations advance human rights claims such as the First Amendment right to freedom of speech in order to promote animal rights.” Is this true in the criminal context as well?
Finally, given the jury’s power to nullify (big debates here about what jurors should do when confronted with unjust laws or their application), there is the question of whether the activists’ lawyers should invest in crafting their arguments within existing law (that is, arguing that the necessity defense, as currently framed, applies to open rescue) or changing the law (that is, arguing that the necessity defense should change because the current conceptualization of animal suffering/rights/personhood in law is insufficient or unjust.) What the lawyers choose to do is also a question of jurisdiction: there might be some states in which it is easier to work within the interpretation of the necessity defense, and those might, ironically, be places in which the defense is not codified, which might create a first-impression situation that gives the lawyers an interesting blank canvas to argue rights and personhood. 
But underlying these important considerations is an important feature of the criminal process: pursuing animal rights through the criminal process means that there is a human individual who might face conviction, and even incarceration, at the end of the day. My last blog post on the project discusses that.

Part V

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.

CDCR Eliminates Inmate Copayments for Health Care

Today CDCR announced that, effective March 1, they will eliminate inmate copayments for healthcare, because an internal analysis reveals that copayments “have minimal fiscal benefit and are not aligned with patient care.” 

Specifically, copayments may hinder patients from seeking care for health issues which, without early detection and intervention, may become exacerbated, resulting in decreased treatment efficacy and/or increased treatment cost. The Department’s health care delivery system, known as the Complete Care Model, is based on a preventative and comprehensive approach to patient care. Early detection and preventative health care aligns with most public and private health care organizations and can prove to be fiscally prudent.


The first thing that occurred to me upon reading this was how many people are probably unaware that incarcerated patients make copayments, just like patients on the outside. How did that come about? CDCR provides background:

In 1994, Section 5007.5(a) was added to the Penal Code (PC) to read: CDCR is authorized to charge a fee in the amount of five dollars ($5) for each inmate-initiated medical or dental visit of an inmate confined in the state prison, which will be charged to the prison account of the inmate. If the inmate has no money in his or her personal account, there shall be   no charge for the medical or dental visit. An inmate shall not be denied medical care because of a lack of funds in his or her prison account. The medical provider may waive the fee for any inmate-initiated treatment and shall waive the fee in any life-threatening or emergency situation, defined as those health services required for alleviation of severe pain or for immediate diagnosis and treatment of unforeseen medical conditions that if not immediately diagnosed and treated could lead to disability or death. Follow-up medical visits at the direction of the medical staff shall not be charged to the inmate.

This section aligns with other savings trends I reviewed in Cheap on Crime. The most egregious one is, of course, the pay-to-stay jail, but less egregious examples abound and participation in health care costs is one of them. 

What I find interesting is that the same savings rationale used for imposing the costs in the first place is now being used for getting rid of them–copayments are not vile and unjust; rather, the problem is that they don’t pay off, because they deter people from seeking health care and thus make their condition worse and therefore more expensive.

The elephant in the room, of course, is the question of quality. Health care in California prisons is becoming more and more expensive and we are once again taking heat from the Ninth Circuit for the disappointing quality of mental health care in prison. But if it’s not getting better, it is at least being offered for free.

Foster v. Chatman and the Limits of the Sayable

This morning, the Supreme Court decided Foster v. Chatman, a case involving race considerations in jury selection proceedings in Georgia.

There are two types of challenges that the prosecution and the defense may use to disqualify prospective jurors from the panel: for cause challenges, in case there’s evidence that the prospective juror is biased and might not be able to decide the case fairly, and a limited number of peremptory challenges, which either side can use for no express reason at all. There is one limitation on the use of peremptories: under a 1986 Supreme Court decision, Batson v. Kentucky, race is not an appropriate reason for a peremptory challenge (J.E.B. v. Alabama extended this decision to gender.)

In cases in which a party suspects that the other party is disqualifying jurors due to their race or gender, that party needs to prove a prima facie case that there is a systematic pattern of disqualification. If successful, the ball moves to the other party’s court, and they have to provide a race-neutral (or gender-neutral) reason for the disqualification. The reason need not be a good one; after all, if there were a good reason they could have used a for-cause challenge. It just needs to be unrelated to race or gender. Then, the court has to decide whether the challenges were race or gender based.

Foster, an African-American man, was charged with the sexual assault and murder of a 79-year-old white woman. The prosecution, which under Georgia law has ten peremptory challenges, used nine of them, and four of those were used to strike all four black prospective jurors. Foster immediately lodged a Batson challenge, which the court rejected. And here is where things get dicey.

At the time of trial, the prosecutors provided various race-neutral reasons for their use of peremptory challenges, relying partly on their perception that some of the black jurors were hesitant about the death penalty (which was on the table, given the severity of Foster’s crime.) However, on appeal Foster was able to produce the papers on which the prosecutors scribbled notes for themselves. You can see a section of one of those at the top of these post. The prosecutors marked black jurors with a “b” next to their name. In one occasion, a prosecutor scribbled, “no black church” next to a juror’s name. The author of those “b” letters and other comments could not be ascertained, but it had to be someone in the prosecutor’s office.

The Supreme Court decision analyzes carefully the race-neutral reasons the prosecutor provides, and shows that these were pretextual. Chief Justice Roberts’ method of analysis is to compare the black jurors to white counterparts on the panel who had similar circumstances and, yet, were not disqualified. In the Opinion of the Court, he therefore finds these reasons pretextual, “reek[ing] of afterthought”, or in short: a mere coverup for the real reasons for the disqualification: race, the reason expressly prohibited in Batson.

From a doctrinal perspective, the decision in Foster is the correct one. I have no doubt in my mind that they got the facts completely right. There is a clear contradiction between the reasons the prosecutors proffered for the disqualifications and the reasons that their paperwork clearly suggests. Their complicated race-neutral explanations easily fall apart when comparing jurors to each other. The court’s thorough analysis is a great example for why we need federal review of state practices: federal courts are removed from the judicial and legal climate on the states, and this is especially important in the context of racially controversial proceedings.

It’s also a decision that supports solid values, and one that heralds back to the reason the death penalty was temporarily abolished in Furman v. Georgia in 1972: jury selection and trial processes designed to disfavor African American defendants.

And yet, I’m left feeling very uneasy about the lessons prosecutors might learn from Foster. There’s no reason to pretend, or be facetious, about consistent social science findings, which confirm again and again that people’s demographics–including their race and gender–correlate significantly with their criminal justice perspectives. In experimental settings, when confronted with incidents of police brutality, race is a significant predictor of whether prospective jurors support the police or the suspect.  In mock jury experiments, white male jurors significantly and disproportionately sentence black defendants to death, and influence other jurors to do the same. According to Gallup data, men support the death penalty significantly more than women. With race, the differences are even more stark: whites support the death penalty 75 to 24, whereas blacks oppose it 49 to 44. I could cite dozens, if not hundreds, of studies coming to the same conclusions.

This shouldn’t come as a big shocker to anyone. The reason race is influential in forming criminal justice opinions is the racialized nature of criminal justice itself, its history as a system of racial domination, and its massively disparate impact based on race. Some might not like Paul Butler’s prescription to fellow African-American jurors to nullify in every case involving race, but at least he’s honest about the fact that many folks see our system of incarceration as the battlefront in race war–and with substantial justification.

So what is really going on? Prosecutors, defense attorneys, and judges, all know what social science clearly tells them: that racial identity, and racialized life experiences, are one important and influential way in which people form opinions about the world. They will not excise this piece of information from their memory. What they have learned this morning from the Supreme Court is that they need to find better ways to hide what they know. Indeed, post-Foster, we probably won’t see better race-neutral explanations; we just won’t see racial notations on papers, and whatever texts the prosecutors might send each other under the table will be deleted before discovery proceedings find what’s there. Maybe the prosecution will recur to various real or perceived proxies for race (neighborhood, income, family structure), and maybe, as is increasingly the case, professional trial consulting firms and software will come up with some corporatespeak or sciencespeak that will appear to be racially neutral. Because that’s what we do every time a word becomes offensive and unsayable: we put it through the laundromat and it comes out worded differently, within the realm of the sayable, and the discrimination creeps underground.

This is even more depressing considering that the legal system itself has a massively ambivalent approach to the social science truth that demographics impact opinions. Under Taylor v. Louisiana, when the legal process excludes a distinctive social group (again, the clearest cases are race and gender), we don’t like this, and the court says that we lose a “distinctive flavor” or a special perspective. In that context, we’re perfectly comfortable admitting that a person’s experiences–including her race and gender–might impact the way she sees a criminal justice issue. But when the day comes to pick the actual jury, when lawyers draw the exact same conclusion, and use it in a partisan fashion, we get upset and would like them to do a better job pretending that they’re not doing that. The difference is that blocking groups of people from the venire and disqualifying individuals, whom you can presumably question to detect bias, are two different types of enterprise. And yet, how much can you possibly learn about a stranger’s inner life and worldview in open court?

The bottom line: this decision, while correct and certainly better than the opposite, is a mere band-aid on a problem that is intractable. I cannot see, in the current climate or in any future version of it, a time in which people’s racial identity will not be inexorably linked to their criminal justice opinions. Teaching prosecutors to do a better job hiding these considerations from view does not make them less racially motivated; they’ll keep their opinions, which happen to be aligned with scientific findings, and become so good at covering their tracks that post-Foster defendants will have a difficult time uncovering them. Holding our nose doesn’t make something smell better; it just helps better disguise the smell. If the current presidential campaign teaches us anything, it’s that hiding our ugly racism problem under the rug, in the realm of the unsayable, has done little to improve racial equality in the United States. What we’re seeing now, when Trump makes the unsayable sayable, is merely the ugly truths that were there all along.

The Ninth Circuit: The Feds are Responsible for the Health of Inmates in Privately-Managed Prison

Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory

Today the Ninth Circuit decided Edison and Nuwintore v. U.S.–two cases involving the government’s responsibility for the valley fever epidemic at Taft, a federal prison located in Kern County. Taft is owned by the U.S. government but operated by the GEO Group, the second largest private prison company in the country.

Gregory Edison and Richard Nuwintore were sent to Taft without warning about the dangers of valley fever. The disease, also known as coccidiodomycosis, has a severe variation that disproportionally manifests in African American patients. Both Edison and Nuwintore fell ill; Nuwintore, who has been released, is now treated under Obamacare, and Edison is being released soon and will also receive care under Obamacare. The condition is chronic and can make people too sick to work.

Is the United States responsible for their illness? The federal government tried to argue that, under the independent contractor exception to the Federal Tort Claims Act, it cannot be held responsible for the actions of a private contractor. Today, the Ninth Circuit found that, due to the government’s special responsibility for the plaintiffs (as their jailer), the exception does not apply and the government is liable. I had the great pleasure to correspond with Ian Wallach of Feldman and Wallach, who told me a bit more about the case:

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility which is owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility.  I don’t know why the arrangement is so rare.  It did create some novel issues with the application of the independent contractor exception.  Colleagues have wondered if it is because of the valley fever issue.  It may sound like a conspiracy theory, but there are some legitimate concerns.  The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die.  And the USA has less liability if someone else is operating the facility, even though the USA sends people there.  And the facility is, for unknown reasons, primarily a pre-deportation facility.  That means that people facing low terms, or people about to be deported, are held there.  If they get sick, and are deported, there is not much practical legal recourse available.  Worse than that — there isn’t much access to medical care.  This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft’s unique status as government-owned and privately operated, would the government’s responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure.  As to the failure to warn claim.  And the negligent implementation of policy claim — if the USA developed and implemented policy.  And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is “is there an independent basis for liability?”

If yes, then the claim should stand. As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn’t really delegate the duties at issue.  I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here).  I should clean them up before circulating them, and today has been busy, but let me know if I should send them along.  The standard was too high for us to meet, so we didn’t make that argument on appeal (we did below).  And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely.  And that may be what happened here.  Plus privatization of prisons is messy.  I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate’s prison in determining parole).  And these corporations have a financial incentive for parole to be denied.  That’s flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today’s decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today’s case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities.  Which are awful.  In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was “cruel and unusual”, there was no “clearly identified right” at issue.  We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards.  That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today’s decision, that spoke of the Jailer’s duty to inmates, and set forth a special relationship.  It’s a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur.  A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request.  In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation.  These cases (People v. Hammond, Sutton, and Aluya) were also dismissed on summary judgment — because the court bought it.  This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever.  Add that there are no attorney’s fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them.  Which is why these dangerous practices continue, as there is very little accountability).  Regulation is a great idea — but in the interim, I’ll keep suing.

Finally, a big part of today’s decision involved the government’s duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress.  Had they been warned, they could have done the following:

  • Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.
  • Seek an administrative remedy the day they arrive, seeking transfer.  Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.
  • Change their lifestyle while there. This is largely a camp facility with tons of leisure time.  Which, if warned, would be better spent inside. 
  • And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil).  They can wear N95 filtration masks if they wish.  

And these changes may greatly decrease their exposure.

The Ninth Circuit decision sheds an interesting light on the malleability of the public-private divide in the context of prison privatization. Congratulations to the plaintiffs and their attorneys, and wishes of good health to everyone impacted by the epidemic.

SCOTUS Offers Hope for Lifers Without Parole Sentenced When They Were Juveniles

In 1963, Henry Montgomery killed a police officer. His murder conviction in Louisiana, for “guilty without capital punishment”, carried a mandatory life without parole sentence. That is, under Louisiana law, Montgomery could not present mitigating evidence–he was automatically sentenced to life without parole. At the time the crime was committed, Montgomery was 17 years old. Today he is 70 years old, and he’s been in prison ever since.

In 2009, decades after Montgomery’s sentence, the Supreme Court decided Miller v. Alabama, which rendered mandatory life without parole statutes unconstitutional insofar as they apply to juveniles. The decision was one of several decisions, starting with Roper v. Simmons, which incorporated insights from developmental psychology into criminal justice. We now know that the brain continues developing well into our mid-twenties, and that impulse control, resistance to peer pressure, and the ability to consider long-term goals  are not quite there yet for juveniles. So, sentencing them to a lengthy period of time, without option to reconsider, now seems unjust in light of what we know of their cognitive capabilities.

But what about people who were sentenced to automatic life without parole before Miller v. Alabama? Thousands of these folks, who were teenagers when they were sentenced, are now middle-aged or even elderly (certainly by prison standards.) Many of them have spent most of their life in jail. Should their sentences be reconsidered? In other words, does Miller apply retroactively? This morning, the Supreme Court ruled that it does–and that states who used to apply these schemes to juveniles should now award them remedial parole hearings to reconsider their possible release.

The technical question at the heart of Montgomery has to do with the retroactivity rules. Imagine a situation in which a criminal justice rule is changed in a way that could benefit defendants.

Under constitutional doctrine in a case called Teague v. Lane, defendant no. 1, whose case hasn’t even started yet, will of course benefit from the new rule, which applies prospectively. Defendant no. 2’s case is still alive–that is, it’s undergoing an appellate process or the time to appeal hasn’t run out yet–and because the case is not “final” yet, she will also benefit from the rule change. But Defendant no. 3, whose case has already become final–which is to say, she exhausted her direct appeals, or the time to appeal has run out–will not be able to benefit from the rule change. There are two exceptions to this doctrine: the new rule will apply retroactively if it is either a “substantive rule of Constitutional Law”, which includes  “rules forbidding criminal punishment of certain primary conduct,” as well as “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense” or a “watershed rule of criminal procedure”, which is to say, a very momentous change (most rules are not that important; when SCOTUS thinks of such a rule, they think about things like the right to counsel and somesuch.)

According to the today’s ruling, Teague v. Lane applies not only to federal defendants on habeas, but also to defendants like Montgomery, who have been using their state’s collateral proceedings. Or, as Justice Kennedy stated for the majority,

The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts.

The rule in Miller is, according to the majority, a “substantive rule of Constitutional Law”, as it doesn’t merely address process–it addresses the question whether a certain category of punishment (in this case, mandatory life without parole) is applicable to a certain category of people (in this case, juveniles.) It stems from the string of cases that recognized that children are different from adults in their “diminished culpability and greater prospects for reform.” These differences mean that imposing automatic LWOP on children “poses too great a risk of disproportionate punishment.” While the decision has a procedural component–the need to hold a hearing before imposing LWOP on juveniles–it is, in essence, a substantive statements that juveniles should simply not be subject to that category of punishment. The Court is not concerned about the extent to which this hinders finality–in this case, the state really can no longer exercise its punitive power by sending juveniles to prison for the rest of their lives without discretion, and once there is a social agreement there, finality arguments really do not apply.

The Court also gives states that used to have mandatory LWOP schemes for juveniles a corrective path: they should award people who are currently serving time under these schemes for crimes committed when they were juveniles an appropriate opportunity to be heard and to provide evidence for their rehabilitation, in which their young age at the time they committed the crime (and all we know about the implications of age to development) shall be taken into account.

Justices Scalia, Alito, and Thomas dissented, on the grounds that the Court had no jurisdiction to decide the case and that its classification of the Miller rule as a substantive rule was overbroad beyond the original intent in Teague.

Podcast Review: Serial

On the last episode of the acclaimed podcast Serial, Sarah Koenig speaks to a retired police detective and asks him whether any murder case would raise the difficult questions raised by the case she focuses on. The detective replies that most cases are straightforward and few would present so many difficulties.

But is that true? It’s hard to tell. After all, in his book In Doubt, Dan Simon provides a conservative estimate of the percentage of wrongful convictions: about 4-5% of all convictions. Rabia Chaudry, a family friend of Adnan Syed, thinks that his conviction for the 1999 murder of his high-school girlfriend, Hae Min Lee, is one of those. She enlists Sarah Koenig and the team to investigate, and they spend hours upon hours reinterviewing witnesses, digging up forensic evidence, and recreating the crime.

Indeed, Serial, and the subsequent show by Syed supporters Undisclosed, have raised considerable public interest in Syed’s case, which had only provoked some local interest at the time. And the latest news are that Syed has been granted a hearing to present new evidence. Which leaves me wondering the same thing that Koenig asked the detective: how many other cases, murder or otherwise, would merit a rehearing if they received the benefit of hours of careful, NPR-quality attention?

In his famous 1965 essay Normal Crimes, David Sudnow shows how defense attorneys manage to dispose of cases in negotiation with prosecutors. Their professional expertise allows them to fit each case to an existing prototype of cases, thus facilitating the attachment of a “price list” to each case. This means that the cases don’t really receive individual attention, leaving the bulk of professional time and attention for the few “abnormal” cases that go to trial. Whenever we hear about a dramatic exoneration, what we envision is someone who had been aggressively litigating and protesting for years, and who had been railroaded by the police and prosecution.

The interesting thing about Serial is that it doesn’t try to tell one of those stories. I wouldn’t go as far as to call it a “normal crime”, but the show drags into the limelight what would appear to be fairly run-of-the-mill in terms of criminal trials. It is not a defense-oriented, the-government-is-the-worst-criminal sort of narrative that we’re used to hearing in cases of serious miscarriage of justice, such as the West Memphis Three and so many others. No one is particularly at their best, but no one seems to be at their absolute worst, either. Yes, there’s some racism; there’s some unexplained defense behavior (this is important, because habeas review is almost impossible without proof of ineffective assistance of counsel); but none of it rises to the level of shock we’ve been used to experience when reading Innocence Project stories.

To me, that’s the strength of Serial: showing the banality of a situation in which the factual disposition remains unclear. And it does so through Koenig’s persona, who remains agnostic about the facts. In a way, Koenig is a stand-in for a diligent juror; she repeatedly refers to procedural and technical details as “boring”, and classifies the evidence into “bad for Adnan” and “good for Adnan”. Her congenial, soft manner never pushes the witnesses to the point of big revelations (to the extent that those are even possible, fifteen years after the crime.) When she says, at the end of the series, that she feels like shaking up the witnesses “like an aggravated cop”, you almost wish she had done that in the previous eleven episodes.

And yet, it is precisely this softness and indecisiveness that lends the show its charm and magic. I haven’t yet listened to Undisclosed, and I’m hesitant to do so, because Koenig’s agnosticism makes me feel more respected and active than an enraged partisan party trying to enlist me to Syed’s defense. Which brings me to another thought: what Koenig is trying to accomplish resembles the role of the inquisitor judge in a civil law country: impartial, out there to find out What Happened. The adversarial system calls for partisanship under the assumption that the competition between the parties will yield the best evidence. But the resulting games of obfuscation result in anything but, and Koenig’s interviews with the jurors reveal just how much they were manipulated by the parties throughout the trial–regardless of whether they reached the factually correct answer.

I don’t know what will happen to Syed now that his case has been picked up. But I wish that many more seemingly simple, run-of-the-mill cases received this careful attention–if not from investigative journalists then from more active jurors and with less partisan manipulation.