Post-Election Thoughts

The Scorpion and the Frog

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

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

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

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

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

Drug Truce

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

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

When the Perfect Is the Enemy of the Good

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

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

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

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

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

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

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

“What About Arab-on-Arab Crime?” Minority Intraracial Violence and How the Left and the Right Both Get It Wrong

As I type this, thousands of Israeli Arab citizens, residents of Magd-al-Crum (an Arab town in the Upper Galilee) are protesting against the Israeli government’s failure to appropriately address violence in Israeli Arab society. Ha’aretz reports:

The day before yesterday two brothers were fatally shot at the town in a browl, and today another young man who was badly injured in the fight, Muhammad Saba, died of his injuries. The protesters are calling out derogatory calls about the police and its crime-fighting abilities, including, “Ardan [the police minister], you’re a coward”, and bearing signs saying, “violence–not in our streets” and “living in peace is already a dream.” Muhammad Baraka, the Chairman of the Supervision Committee for the Arab Population, said at the end of the march that, “if in Magd-al-Crum and [other] Arab towns there won’t be peace–there won’t be peace anywhere. It is not a threat, it is an elementary right for any citizen in a proper society. 

Since the beginning of the year, more than 70 Arab Israeli citizens were murdered throughout the country. Among the marchers were thousands of villagers, as well as citizens from all over the country, mayors, Knesset members and religious leaders. Prominent at the rally were women, who wore black shirts for mourning, called out slogans and marched with their children who carried signs against violence. Even the family members of the two brothers who were murdered in the village, Halil and Ahmed Man’aa, attended the protest.

Homicide victims per 100,000, by religion, 2014-2016 (non-
Jews in red).

The protesters in Magd-al-Crum are not taking a single incident out of proportion–they are responding to a devastating statistical reality. According to a new report from the Knesset’s Center for Research and Information, Israeli Arab citizens are disproportionately represented among homicide victims. Because homicide (like most violent crime) is primarily committed intraracially (this is true in the U.S. as well as in Israel), what this means is that homicide perpetrators are also primarily Arab Israelis.

התפלגות הנאשמים בעבירות רצח לפי דת בין השנים 2014-2016 (מערכת וואלה! NEWS , -)
Homicide defendants by religion, 2014-2016 (non-Jews in red).

The graphs from the report prove the point. Arab Israelis, who constitute about 20% of the Israeli population, are responsible for more than 50% of homicide offenses per annum. This is not the fabricated, misleading product of overenforcement or targeting by Israeli police (many other things are, and we’ll get to it in a moment): it reflects actual bodies on the ground–dead people and the people who shoot them.

Just recently, after the Joint List of Arab parties won a record number of seats in the Knesset. After this electoral triumph, the party leader Ayman Odeh published a wonderful editorial in the New York Times–a testament to his very real qualities of leadership. Many commentators reflected on his blend of idealism and pragmatism and on his willingness to support Gantz as Prime Minister (against Netanyahu) but reluctance to join the government. But as a criminologist, I was more drawn to his important and knowledgeable commentary on the problems that really plague the Israeli Arab population:

Our demands for a shared, more equal future are clear: We seek resources to address violent crime plaguing Arab cities and towns, housing and planning laws that afford people in Arab municipalities the same rights as their Jewish neighbors and greater access for people in Arab municipalities to hospitals. We demand raising pensions for all in Israel so that our elders can live with dignity, and creating and funding a plan to prevent violence against women. 

We seek the legal incorporation of unrecognized — mostly Palestinian Arab — villages and towns that don’t have access to electricity or water. And we insist on resuming direct negotiations between Israelis and Palestinians to reach a peace treaty that ends the occupation and establishes an independent Palestinian state on the basis of the 1967 borders. We call for repealing the nation-state law that declared me, my family and one-fifth of the population to be second-class citizens. It is because over the decades candidates for prime minister have refused to support an agenda for equality that no Arab or Arab-Jewish party has recommended a prime minister since 1992.

What might these resources include? I worry that the facile right-wing and left-wing solutions to Arab-Israeli violence are equally doomed to fail. Let’s start with the left wing. About a year ago I sat in a hotel lobby at the ASC annual meeting and talked to a respected and experienced Israeli criminologist, who told me of his Israeli colleagues’ reluctance to openly discuss Arab crime rates. It’s bad form among left-wing intellectuals to admit that a population that suffers (truly) from overpolicing, overcriminalization, and harsh sentencing, might also be responsible for actual crime on the ground.

This, of course, reminded me of James Forman’s Locking Up Our Own. One of the great strengths of the book is that, by contrast to Michelle Alexander and others to whom racial discrimination seemd to be wholly a product of racist policing, racial profiling, and the war on drugs (note that even Michelle Alexander eventually came around to rejecting this facile explanation, albeit without admitting her own errors), Forman’s protagonists, black politicians and police chiefs, sought what they thought in good faith to be the best for their communities. Why would Burtell Jefferson embrace stop and frisk? Why would black politicians embrace marijuana enforcement and lax gun laws? Because they were attentive to a community that was really–not just in the putrid minds of white supremacists–ravaged with violence. Perpetrated against black people by black people.

What is often lost in the chatter of those who deem the question “what about black-on-black crime?” racist is the deep understanding that the vast majority of the African American population does NOT commit crime, and that these politicians and cops were operating on behalf of their communities, rather than against them. It could even be argued that this oversight, in itself, is a form of racism. But I see this evasion, the fudging of this truth, everywhere. As a shining example of this, take a look at the NAP commission report on the causes of mass incarceration and how it talks about race and violent crimes:

Note: the relative involvement of blacks in these crimes has “declined significantly”. But what about the graph right below this paragraph, which gives you the plain statistics? In the 2000s, when these rates have decreased, black perpetrators are responsible for “only” 50% of the homicides. African Americans constitute about 12% of the population. So, they are overrepresented in the homicide perpetrator population by a factor of four times their percentage in society. Note how my colleagues conveniently avoid mentioning this simple fact, which is literally staring them in the face. Do the numbers for the other violent crimes: also, considerable overrepresentation. And keep in mind that, by contrast to drug offenses (for which we know the official statistics represent differential enforcement, as we know that using and dealing statistics are more or less equal for blacks and whites), for violent crimes official statistics are a far better representation of actual crime commission rates. 
Why are my American colleagues not talking about this? For the same reason that my Israeli colleagues don’t openly talk about Arab-Israeli crime rates. Because to admit the statistical truth that these groups are overrepresented in the violent crime picture is tantamount to appearing as a racist to your colleagues and friends. Many lefties, both in the academic and in the activist milieus, think that talking about crime rates is tantamount to repeating the racist sayings of the Nixon and Reagan eras about “hoodlums” or “superpredators” or to subscribe to some kind of Lombrosian thinking that “this is how these people are.” Nothing could be farther from the truth. There is not a shred of evidence, from the natural OR social sciences, that shows that any racial group is predetermined to commit more crime. 
The answer is much more simple. It’s become fashionable among some of my colleagues (I see this a lot in the books that came out in the last few years) to criticize liberals and democrats for their contributions to “building prison America” and for their paternalistic assumptions about inner-city black life and the black family. But the bottom line is that, study after study of these supposedly paternalistic, well-meaning white criminologists, has shown that criminality and criminalization basically come from the same place: systematic racism. The same forces that lead entire police departments to structure their stop-and-frisk practices to target African American drivers and pedestrians also account for the poverty, neglect, and lack of legitimate opportunities that produce real violent crime. When people have been oppressed, neglected, dehumanized, relegated to second-class-citizen status for generations, is it any wonder that, in the absence of legitimate opportunities they turn to nonlegitimate ones? And what would be racist or paternalistic about admitting this?
Which is where we come to the other side of the political map. What Forman convincingly argues in Locking Up Our Own is that, faced with the real problems of their community, the policymakers and actors he examined grabbed the only tool available to them: criminal justice and law enforcement. Our recurrence to criminal justice comes, argues Forman, from a lack of imagination: we only have a criminal justice hammer in hand, and therefore everything looks like a nail. Law-and-order types, the likes of which are easy to find in both the Israeli and American governments, are likely to jump on the opportunity to police Arab society (or African-American urban streets, which our caselaw tellingly refers to as “high-crime areas”) more aggressively. The outcome of these methods can only be destructive–as it has been, to the detriment to all of us, in the United States. 
The truth is that Arab villages and American inner cities do not suffer exclusively from overenforcement or from underenforcement: they suffer from a poisonous, unhealthy combination of the worst of both. Politicized law enforcement, infused with racist stereotypes, will resort to doing less real policing (actually investigating and effectively preventing serious, violent crime) and more harassment and humiliation of people in the streets over minutia. The outcome is that everyone suffers–today you are the repeated victim of humiliating stop-and-frisk and demeaning encounters with a police officer, and tomorrow you’re at risk of being the innocent victim of a stray bullet. 
Similar things are true for Arab towns and villages. For decades, Arab cities and towns have been shamefully neglected compared with their Jewish counterparts. People don’t have basic infrastructure–I’m talking electricity and water services. Arab schools are in shambles in terms of the infrastructure. Workplace and education discrimination are rampant and ugly. With this package of systemic discrimination comes both underenforcement (Arab lives are seen as less worthwhile and thus less efforts are expended to protect them) and overenforcement (every one of my Arab friends can tell you stories of police abuse that will make you shudder.) Is it any wonder that both crime AND criminalization are serious problems, at the same time? And is it a huge theoretical overreach that both come from the same poisoned well of systemic discrimination? How is throwing more police officers to do more humiliating things going to help the crime rates? How can we ever achieve real change with just law enforcement and no real investment in the enormous socioeconomic gaps that birth crime and discrimination in the first place?
Ayman Odeh strikes me as an extremely thoughtful, visionary leader. I hope he can leverage these qualities to deeply comprehend the conflation of two deep truths: that violent crime in Arab society is a real problem, and that more aggressive law enforcement is a terrible solution. And I hope that some of us, in academia and in policymaking, can come to the same conclusions about American crime and law enforcement. 

Facing Criminal Charges to Save Animals, Part III: Planning Open Rescue in the Shadow of the Law

Image result for dxe arrested
Arrest during a protest in Petaluma. Photo credit: DxE.

Whether or not the necessity defense applies, or should apply, to open rescue, is a doctrinal legal question. As a law and society scholar, I ask myself questions about the interaction of the law with people, institutions, and movements. Because I have a special interest in social movements, I ask myself: How do animal rights activists understand and perceive the role of the criminal process in their lives? The extent to which the law is present in people’s lives is its own field of study, known as legal consciousness. 

Part I
Part II

In their classic book The Common Place of Law Patricia Ewick and Susan Silbey present three schemas of relating to the law in everyday lives: before the law, with the law, and against the law. People’s experience of the law extends farther than their involvement in official legal institutions, such as calling the police on someone, visiting a courtroom, or hiring a lawyer. While some scholars have supported the idea that the law is present everywhere in everyday lives (see Austin Sarat’s study of the welfare poor) others have found people so busy surviving that they are not even conscious of the law or so skilled and privileged that they can structure even oppressive legal experiences, such as incarceration, as “games”, “experiments”, or “educational experiences”, outside of the legal framework.

But what about social movements? An entire area of study is devoted to this question, looking at the way advocates and activists perceive the law. Idit Kostiner, who studied social justice activists, found that they see the law’s value through three main schemas: instrumental (obtaining rights), political (galvanizing activists and organizing) and cultural (relying on the law to change perceptions.) In expanding the understanding of legal consciousness beyond merely obtaining rights, she follows Michael McCann, who argues that legal mobilization helps social movements even if they don’t get exactly what they advocate for, because it provides them with a framework that is helpful for advancing their cause.

How do animal rights activists map onto all this? The animal rights movement operates within the constraints of a legal order that completely ignores, or negates, what the movement believes in. The law sees animals as property, and much of our economic system is structured around the exploitation of animals (often in conjunction with the exploitation of others.) This could make the activists very cynical about the law. Indeed, a beautiful interview-based study conducted by Erik Fritsvold found that radical environmental activists tend to perceive their relationship to the law as “under the law” and their primary engagement with it through lawbreaking.

Fritsvold’s subjects and mine are not that different from each other. The activists he studies also define their actions as direct action, which, according to Noel Sturgeon, is “a series of ‘actions’ engaged in by groups that organize themselves in a decentralized, nonhierarchical manner . . . which use a participatory, democratic, decision-making process . . . and which prefer direct action to institutionalized, electoral, or interest-group politics. Frequently, such groups are involved in civil disobedience, that is, the principled breaking of the law in the process of political protest.”

For direct action environmentalists, the law is an instrument of injustice to fight against. This schema differs from Ewick and Silbey’s category of “against the law”, because to the activists, “the law veils the illegitimacy of the existing social order and actively represses dissent. Against the Law observes that the law often fails as an asset to achieve justice; Under the Law views this failing as intentional and perceives law as an active agent of injustice.”

Nonetheless, it seems that animal rights activists in general, and DxE activists in particular, somewhat differ from Fritsvold’s interviewees. Helena Silverstein’s wonderful 1996 book Unleashing Rights about animal rights activism shows that, despite thorny philosophical difficulties with the concept of “rights”, which activists saw as anthropocentric, they did not shy from employing this concept when it served their purpose–or from hiding it from sight when it did not. Indeed, my own subjects, when planning open rescues, display some important markers of legal sophistication. Until fairly recently, DxE was led by Wayne Hsiung, an attorney and former legal academic, who is very well-versed in the legal status of animal rights nationally and internationally. Other members of DxE are lawyers, law students, or aspiring law students, and very well aware of the role the law plays in their activism.

Important questions regarding DxE’s legal consciousness involve how open rescue operations are planned. In anticipation of a direct action, do activists reach out to legal authorities to report animal cruelty? Do they expect the authorities to intervene, and on whose behalf? When entering the facility, do activists try to seek detection, avoid detection, or a mix of both? If and when they encounter the facility owners or workers, do they attempt to alert the media or resolve things quietly? When encountering law enforcement in the field, how do they interact with them?

Answers to these questions are strategically tricky, because there are two different legal outcomes looming ahead: the short-term one consists of a possible arrest of the activists, perhaps followed later by a court case. The long-term outcome consists of changing the laws of the animal products industry and, perhaps in our lifetime, even eradicating it. What activists might do to promote one of these outcomes could harm the other, and requires careful thinking ahead. It is also the case that, even with carefully planned actions, unexpected circumstances can change the nature of the encounter and enhance, or diminish, the clash with law enforcement. I plan to look at these questions as well.

The next post in the series will address preparations and strategies for criminal trials, involving both strategic and tactical considerations.

Part IV
Part V

Wrongful Conviction Journalism: Lights and Shadows

I’ve just finished watching the second season of an Israeli documentary series titled Shadow of Truth, which takes on a series of chilling rape-murders that occurred along one of Israel’s main highways in the 1970s and 1980s. Hitchhiking was very common at the time, especially among young students and soldiers, and more than ten women met violent deaths along the highway.

The most famous of these cases was the murder of the soldier Rachel Heller, which the police pinned on a young man called Amos Baranes. Baranes was subjected to the third degree (three consecutive sleepless nights, untold violence, a fabricated reconstruction of the murder) and gave a false confession, and fought for his innocence ever since. He was released after eight years amidst grave doubts about his guilt, and later acquitted in a special hearing because of the immense police misconduct.

But Heller’s murder was only one among many cases that shared forensic findings about the method of committing the crime. Importantly, at the time, each of these murder cases was investigated separately; the concept of a serial killer arrived fairly late to American criminology as well (famously popularized by FBI agent Robert Ressler, whose story is fictionalized and stylized in Mindhunter) and even later to Israel, where most people would doubt the possibility of such monstrosities happening in a small country with a small population. It was only in the late 1980s that a retired police officer, Ezra Goldberg, theorized that all the murders could be attributed to one perpetrator.

The series points the finger at convicted rapist Shlomo Haliwa, serving a life sentence for one of the murders in the series, the murder of soldier Orly Dubi. It’s an attractive theory. Haliwa was convicted of murdering Dubi while on vacation from prison, where he was serving a long sentence for five rapes (American readers may be incredulous that anyone, let alone a dangerous, violent rapist was let out on vacation; Israeli prison sentences allow for vacations, and those were different times. I doubt someone like that would receive a vacation today.) There is some circumstantial, inconclusive-but-disturbing evidence tying him to at least two other murders (including a full confession, albeit one extracted by force by the same team that tortured the false confession out of Baranes.) His prisoner file is missing, so it is impossible to establish whether he was on leave from prison on the nights of some of the murders. He is heard on the series, speaking by phone, threatening the show’s producers, which in itself is not evidence of guilt (it is, however, evidence of being a terrifyingly violent, unpleasant, and psychopathic man, and good reason to be concerned about his impending release in 2024; he will be 75 years old, still healthy, tall, and broad, and still a potential danger to women, I suspect.)

I’m torn on whether I find the effort to pin the murders on Haliwa convincing, and arguably journalists should not be tasked with the same care that the criminal justice system should exercise when pointing fingers. But the series made me think about the broader context of these shows. The 1980s and 1990s were characterized by cop-and-prosecutor shows that tended to be on the side of law enforcement. In a “the making of” featurette about Law and Order, the producers plainly admit that the concept of the show was born of the notion that their audience was getting more conservative and more punitive and would be receptive to this messaging. It was only later, in the late 2000s, that we started experiencing the success of wrongful conviction shows like Serial and Making a Murderer. My unsubstantiated suspicion is that these shows emerged at a time in which the public was perceived as losing its appetite for mass incarceration, and gaining more distaste with police violence, prosecutorial corruption, and the system’s chronic inability to admit its mistakes (the broader context of recession-era politics probably also plays a part.)

The emergence of shows like this in Israel is understandable. It’s not a coincidence that Shadow of Truth focused on the two most famous cases of miscarriage of justice in Israel–the wrongful convictions of Baranes and of Roman Zadorov (who is still in prison doing time for a murder that most people who know what they’re talking about are certain he did not commit.) In Israel, too, there’s a sense of disgust with police use of force (especially against minorities) and police corruption; as I write this, members of the Ethiopian Israeli community are protesting the police shooting of young Solomon Tekka, expressing frustration and anger for decades of mistreatment by police. Cases of police officers receiving bribes and exacting sexual favors are unfortunately not rare (these developments really echo what’s been happening in the American discourse lately.) On a less outrageous basis, Israeli citizens are exposed to rudeness, indifference, and lack of professionalism from police officers on a daily basis, starting with traffic stops (what goes on here echoes the findings of Chuck Epp, Steve Maynard-Moody and Don Haider-Markel in Pulled Over.)

At the end of Shadow of Truth, we are told that the police investigation into the highway murders of the 1970s has been reopened. Similar legal developments happened after Serial and Making a Murderer. That, in itself, is great news from my perspective. I’ll take justice over finality any day. The problem is that journalists do not select their topics at random. Documentary series are artworks that seek public viewership, headlines, and ratings. Journalists pick cases that they think will evoke outrage and sympathy: young and attractive victims, heinous violence, and a sympathetic possibly-wrongfully-convicted mark. When a case like this is picked for journalistic attention and sparks a renewed police investigation, how many similar injustices are left in the dark? The history of Israeli law enforcement flaws and corruption raises at least two possibilities for broader examination. For decades, the national Pathological Institute (the equivalent of the coroner’s office) was run by Yehuda Hiss, whose corruption and unprofessionalism was mired in scandals ranging from lying to trading organs. Why have we not reopened every single case he meddled with? Also, since we now know that at least two confessions–by Baranes and Haliwa–were extracted using horrifically coercive means by Shaul Marcus, who was at the time a high-ranking police investigator, why are we not reopening every single case that his violent hand might have touched? I worry about the vast number of miscarriages of justice that we miss when journalists shine a light on cases that they choose for celebrity reasons, rather than through systematic investigation. It is not the journalists’ job, of course, to conduct such investigations. Which is precisely why we shouldn’t be waiting for them to shine the light on injustice for us; the criminal justice system has to do better on its own initiative.

Police You Can Trust: Enriching Our Imagination about What’s Possible in Criminal Justice

Last night I had a real treat in listening to the wonderful James Forman Jr. speak at the Nourse Theater with Lara Bazelon, as part of the City Arts and Lectures series, about his excellent new book Locking Up Our Own. Among the issues that came up was the big question behind the book: why did so many people in color in a city where African Americans hold power positions–mayors, chiefs of police, prosecutors–make again and again choices that aligned with law and order interests? In the book, Forman does not mince words about how misguided these choices were, but at the same time shows you, through careful analysis of personalities and socio-cultural contexts, where these people were coming from: they were responding to calls of distress coming from their own community. At yesterday’s talk he added that, like all of us, these lawmakers and actors suffered from a lack of imagination in terms of what we might expect as good solutions for social problems. Violence in the streets? The answer is more law and order. War on drugs? The answer is more law and order. Why, asked Forman, do we never pause to think that, given how unsuccessful the previous prison term was, another one might be a waste of time and money?

Part of this “poverty of the imagination” in responding to criminal justice issues, Forman explained, was in tackling various street and quality of life offenses. What if the police, rather than arresting someone, could take that person directly to a drug problem? Or, better still, what if the police were not at all involved and there were social workers or therapists at the frontline of the problem, as befits a true public health model?

Forman’s words reminded me of a fascinating and pragmatic blog post by Broke-Ass Stuart, titled What To Do When Someone Is Having a Mental Health Crisis in the Street. When confronted with that situation, Stuart himself reports of his dilemma:

I knew for sure that I didn’t want to call the police. There’s the great quote by Abraham Maslow that says “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” And unfortunately that’s often how it is with the American police. They are trained in ending crisis situations forcefully, but there isn’t enough training in how to deescalate them so that no one gets hurt or killed. While that is in the process of changing as we speak, I’d still rather involve people who already have the training. 

I understand where Forman and Stuart are coming from. It is scary to consider the possibility that calling the police to an incident site starts a chain reaction that classifies the incident as criminal, the person involved as a threat, and could lead to violence. But I’m wondering if the understandable and well-meaning reaction not to involve the police doesn’t reflect its own version of “poverty of the imagination”, in the sense that it gives up on the possibility of a police force we can trust and believe in.

One of the first cases I teach in my criminal procedure class is City of San Francisco v. Sheehan. Teresa Sheehan, who was severely mentally ill, lived in a group home; one day, when her social worker, who was concerned about her came to check in with her, she threatened him with a knife. The social worker retreated and got the police; the cops, Reynolds and Holder knocked on the door and Sheehan threatened that she would kill them. The case tells what happened next:

Reynolds and Holder had to make a decision. They could wait for backup—indeed, they already heard sirens. Or they could quickly reenter the room and try to subdue Sheehan before more time elapsed. Because Reynolds believed that the situation “required [their] immediate attention,” the officers chose reentry. In making that decision, they did not pause to consider whether Sheehan’s disability should be accommodated. The officers obviously knew that Sheehan was unwell, but in Reynolds’ words, that was “a secondary issue” given that they were “faced with a violent woman who had already threatened to kill her social worker” and “two uniformed police officers.”  

The officers ultimately decided that Holder—the larger officer—should push the door open while Reynolds used pepper spray on Sheehan. With pistols drawn, the officers moved in. When Sheehan, knife in hand, saw them, she again yelled for them to leave. She may also have again said that she was going to kill them. Sheehan is “not sure” if she threatened death a second time, but “concedes that it was her intent to resist arrest and to use the knife.” In any event, Reynolds began pepper-spraying Sheehan in the face, but Sheehan would not drop the knife. When Sheehan was only a fewfeet away, Holder shot her twice, but she did not collapse. Reynolds then fired multiple shots. After Sheehan finally fell, a third officer (who had just arrived) kicked the knife out of her hand. Sheehan survived.

Sheehan sued the city and the cops under  42 U.S.C. §1983 making a novel and interesting argument: In crafting their response to the situation, the cops were providing a “service,” and under the Americans with Disabilities Act had to take her disability into account when doing so. The Supreme Court took the case in order to decide whether the Fourth Amendment’s requirement that search and seizure activities be “reasonable” should be informed by the individual’s condition (in other words, that what is “reasonable” for a healthy person is “unreasonable” for someone suffering from a schizoaffective disorder, such as Sheehan.)

In court, things were complicated by the fact that the city chose to rely on particular aspects of Sheehan’s behavior to show that, given the threat she posed, she was not “qualified” for accommodations. The Court, albeit miffed with this change in legal tactics, ultimately sided with the city and the cops. Holder and Reynolds were under no obligation to apply the ADA to the situation at the time, said the Court, because the had no “fair and clear warning of what the Constitution requires.” It didn’t matter, for the Court’s analysis, that “the officers did not follow their training.” According to the expert witness heard by the court,

San Francisco trains its officers when dealing with the mentally ill to “ensure that sufficient resources are brought to the scene,” “contain the subject” and “respect the suspect’s “comfort zone,” “use time to their advantage,” and “employ non-threatening verbal communication and open-ended questions to facilitate the subject’s participation in communication.” Likewise, San Francisco’s policy is “‘to use hostage negotiators’” when dealing with “‘a suspect [who] resists arrest by barricading himself.’” 

Even if an officer acts contrary to her training, however, (and here, given the generality of that training, it is not at all clear that Reynolds and Holder did so), that does not itself negate qualified immunity where it would otherwise be warranted. Rather, so long as “a reasonable officer could have believed that his conduct was justified,” a plaintiff cannot “avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.” Considering the specific situation confronting Reynolds and Holder, they had sufficient reason to believe that their conduct was justified.

But what if the training had been thorough and effective to the point that officers like Holder and Reynolds were more likely to follow it? Our tax dollars pay for the police; policing our streets is, after all, a service that our government provides us–in ADA terms, but also in general. Shouldn’t we want this service to be of exceptional quality, so that you and I would not need to hesitate when calling 911? Wouldn’t you want to rest safe in the knowledge that the people responding to your call would tailor their responses to the situation at hand, including the mental condition of the person involved?

It seems to me that it is best to adopt a dialectic approach toward this. In the near future, until such training is available, Broke-Ass Stuart’s advice is well taken. But I think it is unwise to just give up wholesale on the idea of effective policing, and even as we are concerned about police responses we need to continue pursuing improvement of the police force. Because the ideal endpoint is not doing away with a public order organization altogether, it’s having an organization that is trustworthy, knowledgeable, well trained, and accountable.

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

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

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

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

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

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

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

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

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

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

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

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

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

CJCJ Study: Drug Arrests Plummet, Racial Disparities Persist

drug arrests stats chart

I got a lot of commentary, in person and on Facebook, after my post about Ban the Box backfiring. Folks were expressing serious frustration with how an idea that seemed so good–pushing people away from racial discrimination by proxy–turns out to do something spectacularly bad in the world–pushing people toward direct racial discrimination. Today’s post is along the same vein, but somewhat less depressing.

A new CJCJ study by Mike Males and William Armaline finds a spectacular decline in arrest rates for drug offenses in San Francisco. But when they broke the arrests down by race, this is the pattern that emerged:

Now, several things are notable. First, the decline is significant – even for African Americans. Which is arguably a very good thing for everyone. Second, while the racial disparity is still enormous–felony drug arrests for African Americans were ten times higher than those of people of other races–it is a significant decline from previous levels of disparity (the peak year for discrimination was 2008, when African Americans were 19.2 times more likely to be arrested for a felony drug offense than people of other races.) Finally, disparities typically shrink, rather than disappear overnight, so this could be a move in the right direction.

But this raises the question of how we measure progress. Are things better when there are overall arrests, even when large disparities (which are uncorrelated with other measures of involvement in these offenses) persist? What is the goal of relaxing drug policies?

Recently, the standard war-on-drugs-responsible-for-mass-incarceration story has been criticized, and it does seem to be a bad explanation for the overall picture. But the basic argument that drug arrests tend to target the African American population is not new. Amanda Geller and Jeffery Fagan have an excellent paper about marijuana arrests in NYC that tells a similar story. We really have to do better.

Order Without Oppression: No Police Visibility at Women’s March

San Francisco’s City Hall was lit in pink yesterday as we, more than a hundred thousand residents, rose up to protest and march against the Trump Administration and to support civil rights. It was a powerful and encouraging experience.

San Francisco was not the only city in which huge crowds came together to protest what we fear might roll the course of progress decades back, and crowd scientists estimate that the numbers of protesters far exceeded the number of attendees at the inauguration itself.

Much has already been written, and will be written, about the positive energy of the march. I particularly appreciated the sentiment of unification: rather than carving injured identities and engaging in infighting, the left came together to support civil rights, equality, diversity, feminism, queer rights–all the things that have made our great city what it is. It gave me hope not only for a national movement to take our country back from reactionary fascists, but also for my own city, engaged in bitter conflict between old-timers and newcomers. For a few hours, we were all together, marching and chanting for what we believe in: that love and tolerance are what make a country great.

But as a criminologist, the most notable experience from yesterday’s march was the absence of visible law enforcement. More than 100,000 people got together, cramming some of the busiest streets in the city, and not one arrest took place. Not one expression of animosity by police. No visual police messaging to communicate that violations were expected.

I have written about protests and riots before, in the context of the protest gathering against Johannes Mehserle’s verdict. I very vividly remember arriving in downtown Oakland that day and being surrounded by helicopters, police vehicles, cops in riot gear. The messaging there was clear: people were expected to be violent and difficult and the officers were ready for them. The messaging at this march was the opposite. Even though the gathering had racial justice themes, and many of the walkers were people of color, the sense that the masses should be curbed and subdued was just not there. The only visible evidence of peacekeeping we saw were a few volunteers in colorful vests, but they were not vocal or dominant. The crowd controlled itself, and it did so beautifully and peacefully.

Apparently, this experience was not unique to San Francisco. No arrests in D.C., Los Angeles and other places. A handful of arrests in localized incidents the day before.

Cynics might say that the racial composition of the marchers and protesters might have something to do with police response. I think there’s a bigger truth behind that: events that promise to be peaceful, in which families march together with unifying messages, are perceived by law enforcement as being less threatening. This is not to say there aren’t legitimate law enforcement concerns at such events, starting with the obvious–making sure people are marching safely and not interfering with traffic–and continuing with the fear that someone will take advantage of the opportunity to kill and wound the crowd with explosives. I would not have resented calm and respectful police officers had they been there to engage in safety and protection, and I have no doubt that there *were* such officers, and that SFPD braced itself for a big undertaking. Somehow, to the extent that they were there, they were unseen and unfelt, and that was a very powerful experience.

This Election, Say No to Old-Skool Crime Panic: Part 1

Last Monday’s presidential debate was interesting for a variety of reasons. To me, a particularly interesting point was the reemergence of old-skool crime risk narratives. As I explain in Cheap on Crime, the recession years were characterized by a rethinking of our ideas about crime, crime prevention, and crime control, and by a bipartisan understanding that, regardless of one’s stance on the morality of mass incarceration, it is simply not economically sustainable to punish so many people so harshly and for such long periods. This means that, in the last few years, we were exposed to new and surprising declarations from long-time conservatives arguing for more civil rights protections, a truce in the war on drugs, and sentencing reform. This is not just about money, though; new advances in neuroscience and developmental psychology have led to a rediscovery of childhood, which in turn has led to several developments in legislation and in caselaw reforming juvenile justice.

And yet, it seems like some things never change. One such thing was Donald Trump’s argument last Monday that murder rates are up. Anyone who lived through the Nixon campaign must have felt, as Yogi Berra would say, déjà vu all over again. The logic behind this old-skool crime panic argument is: crime rates are rising; the only way to stop them is by cracking down on street offenders; the best way to do it is aggressive policing in the streets. The problem is that none of these things is fairly presented or even true.

First, as my colleague John Pfaff explains in The Nation, it is statistically misleading to focus on a rise in one type of crime in the course of one year:

Despite the increases cited in yesterday’s FBI report—the rise in murders in 2015 was the largest in both absolute and percentage terms since crime started dropping in the early 1990s—the United States remains an historically safe place to live. The murder rate in 2015 is still lower than it was in 2009, and before 2009 the last time the murder rate was as low as it was last year was in 1964. Overall, 2015 had the third-lowest violent crime rate since at least 1970, and probably even before that, since our older crime stats likely understate crime much more than they do today.
Yes, crime went up in 2015. But crime remained at near historic lows in 2015, too. Both of these statements can be, and are true. Despite the rise in violent crime, we remain safer today than we have been in decades.

What happened in 2015 happened in the course of one year, against an opposite trend, and one year cannot be regarded a trend:

Because we have so much less violent crime today than in 1990, any given increase will be a bigger percent jump today than 25 years ago. If we have 100 units of something, five more is just 5 percent, but that same five-unit increase is a 10 percent jump from 50. So while the number of murders rose by 11 percent in 2015, compared to 9 percent in 1990, the total increase in murders in 2015 was about 400 less than in 1990. The percent change looks worse because we are doing so much better.

Second, there are no grounds to fear sensible nonpunitive measures. Remember the vast number of articles in California newspapers quoting cops claiming that criminals have been running rampant in the streets since the early releases of Prop. 47? The proposition passed in November 2014. It is now October 2016 and the numbers are in: there is no correlation, on a county-by-county analysis, between releases under Prop. 47 and crime rates. None. Long prison sentences, serious felony charges, and refraining from paroling people do not make us safer. At all.

Third, cracking down on suspected street offenders via aggressive stop and frisk policies is never a good idea. The odds of actually catching contraband on someone during a brief stop and patdown are very low. In New York City, where the NCLU conducted a multi-year inquiry, they found that nine out of ten people who were stopped and frisked were found to be totally innocent. The benefits of finding contraband on a small percentage of the citizenry are far outweighed by the costs of humiliation, degradation, and the loss of trust between police departments and the communities they serve. Even more importantly, as Jill Leovy’s book Ghettoside demonstrates and as David Simon repeatedly explains in his public appearances, the problem is not just overenforcement: it’s overenforcement of showy, aggressive police power that comes directly at the expenses of enforcement that requires brainy, creative police work. The time and manpower spent on stop and frisk is time not spent solving murders and robberies, which are presumably the serious crimes that Trump wants us to be afraid of.

This election, Californians have an opportunity to say no to old-skool crime panic by voting on sensible criminal justice reforms that will save us money and help us treat our neighbors and fellow residents more humanely. Vote Yes on 57 to eliminate prosecutorial monopoly on trying juveniles as adults and to give nonviolent adult offenders a chance on parole. Vote Yes on 62 to eliminate the costly and failed death penalty. Vote Yes on 64 to save money on marijuana prohibition and to bring in much-needed tax revenue. Vote No on 66 to refuse a costly and dangerous death penalty “tweak” that will provide (and pay) undertrained attorneys and risk wrongful executions. Say no to unfounded crime panics. We’ve been there before and we know it doesn’t help. And say yes to sensible reforms.


 

Facts, Values, and Cameras: Police Use of Lethal Force

The Oakland police is being sued for the killing of Demouria Hogg. The Huffington Post reports:

Oakland firefighters found an unresponsive man in the driver’s seat of a BMW parked near a highway off-ramp one morning in June. They called the police department, saying a handgun was on the passenger’s seat.

Police tried for an hour to rouse Demouria Hogg, 30, by using loudspeakers and firing beanbag rounds at the car. Hogg didn’t budge, police said. Hogg finally stirred when police shattered a passenger-side window with a metal pipe. It would be the last movement of his life.

One officer used a Taser on Hogg while another fatally shot him.  

It’s unclear what happened when Hogg awoke. Police said “a confrontation occurred.” An attorney representing the officer who fired the fatal shot said Hogg reached for the handgun.

This is an interesting case. What with the intense politicization of police use of force and partisan heated proclamations of value over fact, we tend to forget the standard in Tennessee v. Garner, and the fact that it’s an objective one: force is justified when a reasonable officer would have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. The fact that the suspect had a gun nearby (rather than, as in so many cases, an innocent item that officers claim appeared to be a gun) does not automatically exonerate the officers, but with the suspect dead, there’s little to contradict their version that he reached for it. The strange part: the suspect was apparently sound asleep in the car for a long time before the police shot him.

But the fact that the officers, like all Oakland police officers, had lapel cameras that captured the event, makes things even more interesting. Note this bit:

“The video absolutely supports the officers,” said attorney Stephen Betz, who represents the female cop who shot Hogg, whose name hasn’t been released. “But if you’re suspicious of the police, the video that I saw doesn’t necessarily show what happened inside the car.”

Betz has hit on an inconvenient truth for those who support openness, disclosures, and social media activism: Cameras do not show “the truth”. Footage of cameras is often grainy and confusing, especially if people are running or moving quickly. Moreover, to a disturbing degree, cameras show what we want to see.

In 2007, the Supreme Court decided a case called Scott v. Harris. Harris sued police officers for a car chase that ended in an accident (the police basically ran Harris off the road and he became paraplegic.) The jury awarded Harris compensation, but the Supreme Court took it back, relying on camera footage. Justice Scalia wrote:

There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. . . The videotape tells quite a different story [than Harris’s version]. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.6 We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.

But is it? Dan Kahan, Dave Hoffman, and Donald Braman decided to find out. They asked hundreds of respondents to view the following video and answer a series of questions:


Kahan et al. found considerable variation in the respondents’ assessment of the danger Harris posed and on the appropriateness of police conduct here. More disturbingly, they found that these assessments strongly correlated with people’s political values.[1]

I haven’t seen the tape that depicts Hogg’s killing, but I don’t know that a tape alone can condemn or exonerate anyone. This is, perhaps, why the Oakland police is trying different strategies with the footage: a few months ago, they showed tapes to the media, then to the public. The plethora of responses they are getting proves Kahan et al.’s point: the camera is not an undisputed arbiter of the justification of police action, and what it shows can be interpreted in dramatically different ways. On the other hand, not releasing the footage gives rise to serious concerns that the police has something to hide; moreover, there are instances in which the police officer’s version of the events clearly contradicts the footage, such as in the killing of Samuel DuBose.

So, what is the police to do? It seems like the camera technology’s availability has preceded any law or policy on such matters. This coming Friday, the Hastings Race and Poverty Law Journal is hosting a one-day symposium on policing, in which we will have a panel on body cameras including the Oakland Chief of Police. I very much look forward to hearing from him, and from two public defenders who have confronted issues involving lapel cameras, about the proper policies to handle such incidents and the evidentiary value of the cameras–in a way that respects people’s diverse values, but does not tout them over the important inquiry about the facts.

[1] by the way: almost every year I replicate this study with my Criminal Concentration students, except I add a question to the demographic part: I ask them whether they want to be prosecutors or defense attorneys. The answers are independent of people’s political perspectives–most, albeit not all, my students are liberal, vote Democratic, and self-identify as progressive–and, unsurprisingly perhaps, people’s assessment of the video, including of facts such as Harris’s speed, wildly diverges based on their future career choice.