Nov. 2020 Ballot Endorsement: Yes on 25

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

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

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

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

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

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

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

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

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

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

More Progressive Punitivism: And Today We, the Woke, Will Tell You How to Grieve Your Brother

If you’re anything like me, you might have spared a moment or two from focusing on the impeachment brouhaha to follow the horrific tragedy involving Amber Guyger, the white woman who shot her African American neighbor, Botham Jean, arguing that she mistook his flat for her own. And if you’re anything like me, you were probably surprised, and perhaps moved, to read about Jean’s brother, Brandt, who after Guyger’s conviction and sentence hugged her and expressed forgiveness.

And if you’ve spent any time online in the last day or two, you’ve seen that everyone whose brother was not murdered recently had Opinions about this. As NPR explained, it “sparked a debate.”
I’m in a rush to get a little bit more work done, so I’ll keep this short: There has been a lot of chatter from well-meaning, righteous folks, using all the correct Woke argot, about things we’ve already read in op-eds a thousand times: how forgiveness and restorative justice just give white people a reprieve because they reinforce racial hierarchies and excuse structural inequality yada yada yada. This sort of chatter, right here, is what I argue in both Yesterday’s Monsters and in Progressive Punitivism has been the ultimate paradigm in American criminal justice policy. It doesn’t matter if you’re a fierce punitive right winger or a fierce punitive progressive social justice crusader–you’ve spent decades marinating in a national animus that tells you that everything that is wrong in the world is criminal justice related and that harsh punishment is the only solution. 
It is important to listen to victims. Very. It is important to have all the compassion in the world for victims. And at the same time, first and foremost, our obligation to victims is to help them not be just “victims” as soon as possible. What we are doing with the reification of this punitive perspective is reinforcing the notion that the only appropriate way to deal with social ills is to punish; that to forgive is weak and subservient; and that people should never move on from their own victimization–even if it’s healing TO THEM, even if it helps THEM, even if it is THEIR way of dealing with grief.

Which means that we’re all about listening to victims–but only if they sing the punitive tune we like to hear.

I would humbly suggest to all the self appointed social justice critics of Jean’s big heart that perhaps there isn’t only One Right Way to handle the murder of your sibling, and that perhaps the decent thing to do is to let people grieve and process in whatever way seems appropriate to them. 
I would also suggest that critiquing someone’s admittedly uncommon way of handling his grief as if he doesn’t know what he’s doing is as paternalistic as the hierarchies the commentators supposedly condemn. 

“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. 

Is Race “Baked” into the Criminal Justice System?

Today, San Francisco D.A. George Gascón announced a new program: race-blind prosecutions, aided by machine learning. The San Francisco Chronicle reports:

“When I first became district attorney, one concern was to understand how the criminal justice system impacts people of color disproportionately,” Gascón said. “I wanted to see if there was anything in our practice that we could improve.”
The district attorney decided to reach out to the Stanford Computational Policy Lab, which already had many of the tools available to help create the artificial intelligence.
Racial disparities in San Francisco’s criminal justice system are driven by downstream factors like arrests, Gascón said, and his office tries not to exacerbate the disparities. Even so, he wanted to remove any possibility for implicit bias in his office to ensure “the purity of the decision isn’t questionable.”
The system, Gascón said, will create a model that other prosecuting agencies around the country can use, and Stanford has agreed to publicly release the technology at no cost.
The technology organizes a police report and automatically redacts the race of the parties involved in the incident. It also scrubs the names of officers, witnesses and suspects, along with locations and neighborhoods that could suggest a person’s race.
In the complicated world of artificial intelligence, the technology is relatively simple, said Alex Chohlas-Wood, deputy director of the Stanford Computational Policy Lab. It uses pattern recognition and Natural English Processing to identify which words in a police report should be redacted and fills them in with a general description.
The digital tool uses machine learning, so it can make decisions without human intervention.
The district attorney’s office will start using the tool in the 80% of cases that come in through general intake. Cases like homicides, domestic violence and other specialized units will not immediately use the technology.
During the first review process of general intake cases, prosecutors do not look at evidence like videos or pictures that would reveal a person’s race. The case then goes to a second review where a prosecutor makes a decision on whether the evidence is strong enough to move forward with charges.
If a prosecutor decides to reverse a charging decision between the first and second review, when they will likely learn the race of the parties, he or she will have to document the reason why it’s justified in a report, Gascón said.
The tool, he said, will help streamline charging decisions by expediting the ability to review police reports and quickly analyze the information.

The New York Times adds:

The only information prosecutors will initially have access to is an officer’s incident report, which generally includes the reason someone was stopped before an arrest, evidence that a crime was committed, witness statements and anything a suspect might say.
Only after assistant district attorneys make a preliminary decision about charges would they be permitted to access other information, including race and other demographic details, body camera footage and photos. In each case, regardless of the initial charging determination, all of the evidence will ultimately be reviewed, prosecutors said. If a prosecutor comes to a different conclusion between the first and second steps, that will be recorded and compared to historical data. Prosecutors will also be required to explain what changed their minds, and those patterns will be studied, the office said.

The decision to try and examine whether biases are at the root of differential charging rates for different races is laudable, but I suspect it will do far better at catching explicit than implicit bias. Here’s why.

It’s true that, in some cases, race works in isolation to create a mental picture of the situation. This is proven by the classic audit study, in which identical resumés are submitted for a job, with only the name of the applicant changed (“Lakisha” or “Jamal” versus “Emily” or “Greg”). There are now enough studies of this ilk to show that the name alone impacts employability. But note that the application does not reveal the applicant’s race; the name implies the applicant’s race. Similarly, in a race-blind prosecution, even with the names and locations removed, prosecutors are likely to implicitly (or explicitly) deduce the race of the suspect from the circumstances of the offense.

The reason for this is simple. As research has shown since the 1960s, part of acquiring professional expertise as a prosecutor or a defense attorney consists of developing sociological “scripts” of the typical ways in which crimes are committed. This means, for example, that particular types of burglaries might suggest to a criminal lawyer that the suspect is probably addicted to drugs, and that particular scenarios of sexual assault might suggest to a prosecutor that the victim is probably a sex worker.

It is not difficult to imagine race playing out as one of the factors an experienced prosecutor or public defender will deduce from ostensibly race-blind facts. To illustrate this, think about the 100:1 crack/powder cocaine sentencing disparity (now diminished to 18:1 through the Fair Sentencing Act). One of the main arguments against the disparity was that the seemingly neutral rule, which simply targeted the type of drugs used, had the effect of disadvantaging African American defendants. Why? because people of different races had different patterns of using drugs. The association of African Americans with crack cocaine and white Americans with powder cocaine is not just stereotypical–it is factually true often enough that a stereotype can confidently build: in an extensive study of four cohorts (2009–2012) of the National Survey on Drug Use and Health (NSDUH) in all 50 states and District of Columbia, “[w]hile blacks were at particularly low odds for powder cocaine use (AOR=0.33, , before controlling for other factors, blacks were actually at increased risk for crack use.” Use fancy Stanford computers to remove race and location of drug using suspects, and experienced San Francisco prosecutors will still assume that the crack user is black and the powder user is white–and what’s more, most of the time they will be correct.


This ability to imply a person’s race from the circumstances surrounding the crime goes beyond cocaine, though it does not always reflect reality. People often assume that serial killers are predominantly white (they’re wrong in the sense that African Americans are overrepresented by a factor of 2:1 among serial killers; but if you run into a serial killer in an alley, he’s still more likely to be white, simply because most Americans are white). People often assume that child molesters are predominantly white and that rapists are predominantly black (the realities are much more complicated). Marijuana arrests tend to target black neighborhoods and populations, though the realities of who uses marijuana are much more complicated. It is unlikely that a prosecutor will assume that a gang shooting over a drug dispute involves white suspects, and she will often enough (but not always) be right.  In other words, racialized perceptions are baked into the sociological narratives of crime that the culture feeds us, and prosecutors and defense attorneys are no exception. Assumptions about the race of crime perpetrators (and, for that matter, victims) are not always borne by empirical evidence, but they are true often enough that prosecutors will start making generalizations, and redacted names are not going to make these generalizations go away.

Moreover, redacting neighborhoods is not going to make much of a difference, because county prosecutors practice law in an area they are already familiar with from previous cases. Go to a D.A.’s office in any town and ask where street crimes are predominantly committed. Odds are the prosecutors will be able to pinpoint particular neighborhoods in which things happen–that’s how the police addresses “hot spots“, and that’s how street-based sex workers know where they might find clients and where police raids are likely to occur. Criminal procedure students know that a “high crime area”, which has special rules about “reasonable suspicion”, is often a high-arrest area, a high-poverty area, and a high-people-of-color area (this is partly why underenforcement and overenforcement often go together). In the context of San Francisco, the fancy Stanford machine can remove the location of a gang shooting from the facts of the case, and still the D.A.’s office is unlikely to assume that it happened in Noe Valley or Pacific Heights.

In short, race, racialized behavior, and racialized assumptions about behavior are so deeply embedded into the American fabric that it is hard to imagine any process that strips race and location from a scenario without eliminating the basic facts of the scenario. The very facts and circumstances of a crime form a picture in the prosecutor’s mind, and because prosecutors live in our very racialized society and are, like all of us, a product of our very racialized culture, the picture is likely to include race. Not because anyone is racist–or at least, no more or less racist than the rest of us–but because that is how heuristics and biases work. Whether this is an interesting aspect of cultural diversity or an unfortunate byproduct of differential opportunity structures depends on the context. But what it means is that this well-intended measure will not capture, or remedy, the natural tendency to make racial assumptions.

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.

Reform and Unintended Consequences: The Case of Ban the Box

In early February, Malcolm Feeley won the President’s Award from Western Society of Criminology. It was a real treat to be able to recognize and reward, if only modestly, all he has been and done for me over the years with a mentorship award, and even more of a treat to hear him give a breakfast keynote titled The Failures of the Adversarial Process. In his talk, Malcolm revisited some of his arguments from Court Reform on Trial, and made the sobering observation that, where criminal justice reform is concerned, failure is the norm; it is the occasional success that should surprise us. Malcolm ascribes this to the structural/organizational context in which the reforms happen, and to the underpinnings of racism and hypercapitalism; according to him, the criminal process is in a constant state of market failure, and it’s only outside innovators that have to bail us out once in a while (seems like this is what this new PAC is trying to do.)

I was thinking about Malcolm’s wise words today, when I was invited to an event to support Ban the Box. As my regular readers probably recall, I’d been fighting for Ban the Box for a long time, until finding out in 2015, to my dismay, that it has had disastrous unintended consequences.

I was speaking at a conference in Sacramento when I ran into the good folks from the Urban Institute, whom no one would suspect of being cryptofascist double agents, and talked to them about this. When they mentioned the findings of this study I was beside myself with disillusionment and shock. Essentially, what they found is that, when criminal record information is unavailable to progressive employers, they tend to discriminate against young men of color–possibly because they see race as a proxy for criminal history (which, in itself, is sometimes used as a proxy for race. Sick, sad world.) In their words:

Research on ban the box has shown that it increases callback rates for people with criminal records (Agan and Starr 2016). Agan and Starr (2016) find that ban-the-box policies “effectively eliminate” the effect of having a criminal record on receiving a callback. Case studies from specific cities support these results, showing that hiring rates for people with criminal records increased after ban the box was implemented (Atkinson and Lockwood 2014; Berracasa et al. 2016). Additionally, ban the box as a social movement has drawn attention to the plight of people with criminal records and has increased awareness of the challenges they face beyond employment.

But recent research has concluded that ban the box also reduces the likelihood that employers call back or hire young black and Latino men (Agan and Starr 2016; Doleac and Hansen 2016). These findings suggest that when information about a person’s criminal history is not present, employers may make hiring decisions based on their perception of the likelihood that the applicant has a criminal history. Racism, harmful stereotypes, and disparities in contact with the justice system may heavily skew perceptions against young men of color.

Several other studies have found similar outcomes. So, I’m no longer on the Ban the Box bandwagon. But what should we do instead? The Urban Institute team runs us through some options and their pros and cons:

My grim conclusion, inspired by Malcolm’s talk, is that as long as we have the nexus race-crime so embedded in the conversation (read Khalil Gibran Muhammad’s book to figure out where this came from) nothing we try to devise to avoid discrimination will get rid of it entirely.

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.

Film Review: Ant-Man

Future posts will definitely feature some of these interesting things, but today I want to talk about the movie I saw on the flight to DC: Marvel Comics’ Ant-Man. This is not an indie documentary for bleeding-heart progressives who can wax poetic about the prison industrial complex. It’s a mainstream movie, featuring CGI animation, superpowers, gloom, doom, and beautiful people, and as such it is remarkable, because it represents what the filmmakers think the mainstream is open to seeing and accepting onscreen. And what it shows them is a skewed and flawed, and yet refreshing, slice of incarceration and reentry in the Bay Area.
Set in San Francisco, the film’s hero, Scott Lang, starts his journey in prison—notably, not a generic, imagined institution, but an imagined version of the very real San Quentin. And it’s a very different cinematic San Quentin than the one in which Oscar Grant spends an important scene in Fruitvale Station; one that resembles Justice Scalia’s dark fantasies more than it resembles the actual prison we know. Scott’s first scene in Ant-Man sees him engage in a violent fight with another inmate. The many spectators, as well as Scott’s adversary, are large, black, muscular men. But then, the tension breaks, and it becomes obvious that Scott is on friendly terms with his adversary; we are told that this is some sort of rite of passage in honor of Scott’s impending release. Smiling, Scott says to his fellow inmates, “you have strange rituals.”
“You”, not “us”; because early on it is fairly clear that Scott is a special sort of inmate, one for which filmgoers will feel sympathy: he is a conventionally good-looking white man, armed with graduate education (a master’s degree in electric engineering), and his criminal history is that of a high-level hack for the morally allowable purpose of redistributing wealth. In short, Scott is a non-non-non if there ever was one, and we all root for him as he is released—be it because he terms out or because of Realignment.
But even with this relatively privileged starting point, Scott finds it difficult to cope outside. We see him shack up with friends, all of whom are formally incarcerated, and expressing hope of finding a suitable job soon. But his hopes are shattered: he manages to obtain an entry-level job at Baskin Robbins, where he is summarily fired by an unfeeling boss. Not for smart-mouthing a client (which he does, and which would be unthinkable to, say, an uneducated man of color competing for unskilled labor positions); for having a criminal history. Ban the Box, apparently, only gets one through the door; it doesn’t keep him there. And this is a crisis for Scott, who has to provide for, and win back the right to visit, his young daughter. His ex-wife is engaged to a cop, and both of them think of Scott as the deadbeat dad he is. We, however, know better; we’re rooting for Scott, and that’s partly because we haven’t been exposed to his ex-wife’s travails through his trial and incarceration. But we also learn a lesson: when someone is saddled with a criminal record and a history of incarceration, all the whiteness and the education in the world won’t help. It almost goes without saying that this message is deeply flawed. Race, class, and education make a big difference in reentry—as does another thing Scott has going for him, a supportive family. But it drives home the heavy penalty of incarceration and a criminal history with regard to someone with whom some middle-class moviegoers might identify.
It is this economic desperation, rather than a personality flaw, that leads Scott back into crime with his housemates—all of whom, except for him, are either men of color or immigrants with heavy accents. The film plays fast and loose with stereotypes, which is par for the course for sidekicks in a comic book. They are capable men, but they are capable in limited ways, and only as assistants to Scott, whose competence and ability are played up in the sophisticated heist they plan. The film occasionally takes pleasure in breaking these stereotypes; Luis’s unfocused chatter and confused narratives include references to his visits to a museum and enjoyment of Mark Rothko oils. But even when doing so, the Bay Area scenes that fly before our eyes as Luis describes the potential heist place him squarely within the imagined East Bay working class colorful subculture of dive bars, bikers, chicks and shady contacts. Luis has the info and the contacts, but he is not the brain of the operation.
The scenes depicting the heist planning elevate Scott and his accomplices to the coveted status of garage startup techies, and it is this subtle analogy that portrays them at their most competent and heroic. This nod to Silicon Valley reminded me of The Last Mile and other programs encouraging the involvement of folks of low income and education in the tech world upon their release. The film makes it clear, though, that reentry is not kind to any of our heroes, and if they are to make their way in the world, they must do so themselves. And so, their entrepreneurship is modeled after the “innovate first, ask questions later” model of South Bay, and sold as admirable and competent.
As viewers of the film know, the heist goes awry, and a chain of events is set in motion that sets Scott up to becoming “ant man”: a superhero capable of shrinking to the size of an ant. The adventure, villains, goals, and betrayals, are fairly predictable for the genre. What is less predictable, and surprisingly touching, is the ant metaphor, and how it connects to the incarceration and reentry theme from the movie.
Ants are eusocial insects. They are indistinguishable from each other. The inventor who employs Scott refers to them by numbers, not by names. When Scott complains, the inventor explains, “they are just numbers; do you have any idea how many ants they are?” We treat ants, apparently, the way we treat people in total institutions; we see them as a population, not as individuals deserving of life, health, and happiness. But Scott, reduced to the size of an ant, sees them as individuals, and names one of them Anthony. He learns from the inventor’s daughter how to control the ants with his mind by becoming part of the eusocial structure. Thus, the ants’ impersonality and collective organization is their great advantage. When one is struck down, ten rise in its stead (in fact, Anthony is struck in one of the final raids; Scott regrets it, but hops over and rides another ant in its stead). And together, because of their commitment to the collective wellbeing of the community, they are invincible.
It is notable that the penultimate scene in the movie marshals some of the laughable stereotypes for the beginning to marshal the ant metaphor of community and apply it to the formerly incarcerated. Luis tells a convoluted story yet again; but the bottom line of the story is that an indirect contact wants Scott to join the Avengers: “We need a guy that shrinks”. It is through this informal Bay Area network that an opportunity awaits our superhero. Because, like ants, the people who exit our prisons may look to policymakers, jailers, and employers all the same, and it might be easy to discount them—but when they look out for each other and act collectively, that is the source of their strength.

Aquarius, Episode 9: Spoiler Alerts

Like Episode 8, Episode 9 deals with issues of race and racism within the police force, this time through the story of Joe Moran, who, unbeknownst to his wife, kids, and fellow officers, is Cuban. Having benefitted from the ambiguity in his last name, Moran persuasively convinced his wife that he was Irish, and advanced through the ranks, until… a Latino journalist, Sandoval, found out the truth and decided to “out” Moran as Cuban.

Moran’s fear that his wife will leave him leads him to attempt suicide, and Hodiak, who comes into the room, tries to help. He reveals to Moran that his father was Jewish, a fact that he also does not share widely in the department. It’s understandable why: in both episodes, the idea of affirmative action or of representation of women or “spics” is considered ridiculous. There’s not, I should mention, a black officer in sight.

Moran and, to a lesser degree, Hodiak, are examples of the quiet tragedies of “passing” and living a lie, which are echoed by the series’ exposure of sexual and marital hypocrisies. Moran reminds me a bit of Silk, the hero of Philip Roth’s novel The Human Stain, which is based on the life of Roth’s friend, Melvin Tumin.

Moreover, Moran reminded me of Osagie Obasogie’s recent book Blinded by Sight, in which he problematizes the idea that race is something that is “seen” by interviewing people who have been blind since birth about their experiences of race. The interviewees told Obasogie something fascinating: like seeing people, blind people experience race visually. Race is, therefore, not something that just “is” (Obasogie calls this faulty assumption “‘race’ ipsa loquitur“) but something that is created, manufactured, as presumably visual.

In one of the book’s vignettes, Obasogie tells an incredible, and horrible, tale of a trial for marriage fraud. The story is so astounding that I quote it in its entirety:

Leonard Rhinelander was the socialite son of a wealthy New York family. In the fall of 1921, he met Alice Jones through her sister Grace and the couple quickly became quite fond of each other. On at least two occasions during their first few months together, the couple–Alice was then twenty-two, four years Leonard’s senior–secluded themselves for days in New York City hotels where they were intimate. Over the next few years, Leonard took several extended trips at his father’s request that separated the couple, but they remained in touch through frequent letters proclaiming their love for one another. Leonard returned to New York in May of 1924, and the couple secretly married that October, as Leonard’s family was not fond of the former Ms. Jones. The couple lived in secret with Alice’s family for about a month, until a story appeared in the Standard Star, a local paper in New Rochelle, titled: “Rhinelanders’ Son Marries the Daughter of a Colored Man.” Thus, a wealthy White man from 1920s New York high society was exposed as having committed one of the biggest social faux pas one could imagine at the time: marrying a Black woman.

Alice was the biracial daughter of an English mother and a father described as “a bent, dark complexioned man who is bald, except for a fringe of curly white hair.” A few days after the story broke, Leonard was shown a copy of Alice’s birth certificate that documented her race as Black. Two weeks later, Leonard filed suit for an annulment. The reason? Fraud: Leonard alleged that Alice misrepresented that she was not colored to trick him into marrying her. The stage was now set for what some might characterize as, up until then, the race trial of the century: a legal determination of whether Alice committed fraud by “passing” as White or if Leonard knew Alice’s race before their marriage. Put differently, the question became what did Leonard know and, more importantly, what should he have known?

The strategy developed by Isaac Mills, Leonard’s attorney, portrayed him as mentally challenged and Alice’s physical features as racially ambiguous. The defense from Alice’s counsel, Lee Parsons Davis, was quite simple: there was no fraud as Alice’s blackness was visually obvious. Davis mockingly said to the jury:

I think the issue that Judge Mills should have presented to you was not mental unsoundness but blindness. Blindness . . . [Y] ou are here to determine whether Alice Rhinelander before her marriage told this man Rhinelander that she was white and had no colored blood. You are here to determine next whether or not that fooled him. Whether or not he could not see with his own eyes that he was marrying into a colored family.

After raising serious doubts about Leonard’s cognitive disability, much of Davis’ defense rested on showing that Alice’s race could be known by simply looking at her body. This became a central theme in Davis’ argument; he repeatedly asked Alice and her sisters to stand up and show the jury their hands and arms. But to hammer home this point, Davis wanted the jury to see all of Alice’s body–not just hands and arms that might darken over time with routine exposure to sunlight. Given the couple’s pre-marital relations, Davis argued that Leonard had seen all of Alice before being married, and that it was crucial for the jury to see the same intimate details of Alice’s body that Leonard did before marrying her. Against objections from Leonard’s attorneys, the judge allowed it. And what transpired was one of the biggest race spectacles of the twentieth century. From the Court record:

The Court, Mr. Mills, Mr. Davis, Mr. Swinburne, the jury, the plaintiff, the defendant, her mother, Mrs. George Jones, and the stenographer left the courtroom and entered the jury room. The defendant and Mrs. Jones then withdrew to the lavatory adjoining the jury room and, after a short time, again entered the jury room. The defendant, who was weeping, had on her underwear and a long coat. At Mr. Davis’ direction she let down her coat, so that the upper portion of her body, as far down as the breast, was exposed. She then, again at Mr.Davis’ direction, covered the upper part of her body and showed to the jury her bare legs, up as far as her knees. The Court, counsel, the jury and the plaintiff then re-entered the court room.

This dramatic revealing of Alice’s body to the jury composed of all White married men was stunning, especially for 1920s sensibilities. Once back in the courtroom, Davis asked Leonard, “Your wife’s body is the same shade as it was when you saw her in the Marie Antoinette [hotel] with all of her clothing removed?”Leonard responded affirmatively, to which Davis said “That is all.” Shortly after this display of Alice’s body to the jury and Leonard’s acknowledgement, the jury returned with a verdict in favor of Alice, finding that there was no fraud. To put a finer point on this: an all White male jury in 1925 ruled against a wealthy White male socialite and in favor of a working class Black woman because her race was found to be so visually obvious that there could have been no deception. The jury found that Alice’s body, and race in general, visually spoke for itself. Alice did not have to take the stand at any point during the trial. Her body, and the jury’s ability to observe it, was all of the evidence that was needed.

Joe Moran’s story is a televised representation of the lives of many people, such as Alice Jones, whose racial identity had to be constructed as “seen”. And it is a sobering reminder that, as late as the late 1960s, there were still people who were embarrassed and terrified to openly acknowledge their racial identities.

Aquarius, Episode 8: Spoiler Alerts

My commentary on Episodes 8 and 9 will focus, if you don’t mind, away from Manson and his antics, and on what I found more interesting: diversity within the police force as a prism for overall racial attitudes and discrimination.

Both episodes focus on “others” within the largely male and white police hierarchy. Episode 8 focuses on the “othering” of Charmain Tully, whom we all know already from previous episodes as a hardworking, talented cop. Charmain gets permission from the captain to go on patrol with the boys, which turns into a parade of sexual harassment and unmerited jokes at her expense at a diner. But as the viewers become more and more indignant on her behalf, a gunman approaches the table and shoots her two colleagues.

Charmain is, understandably, in shock, but Hodiak immediately orders her to compose herself, attempting a primitive version of hypnosis to extract the details. Charmain is certain that the shooter was white. Nonetheless, the captain declares open season on a black neighborhood. Hodiak is only able to dissuade him from that by cutting a deal with Bunchy, his Black Panther acquaintance, who helps him find the true culprit via his car model.

Here’s what happens next: Hodiak and Shafe quickly fall in line with the other officers, out to catch and “fry” the cop shooter. They find someone who matches the description, and there is circumstantial evidence, but no physical evidence. In a display of oppressive peer pressure, Hodiak makes it clear to Charmain that she must change the description she provided to match the culprit, and by doing so, to prove that she is “one of us”. To my disappointment, but unsurprisingly, she conforms to the pressure and the suspect is apprehended.

Some things, clearly, have changed, and some have stayed the same. At around the period portrayed in the episode, Jerome Skolnick first published his book Justice Without Trial, documenting what he referred to as the “blue wall of silence.”Much has been written about this since then, by Skolnick and others. Some are more optimistic than others, with some commenting on the deplorable approach toward whistleblowers and on the spillover effect of police perjury and ‘testilying’. As David Sklansky explains in Not Your Father’s Police Department, the increased diversification of the police force since the setting of Aquarius has not dented police culture. Female officers, GLBT officers, and officers of color, simply become “blue inside” and socialized to police norms. Which explains Charmain’s behavior in this episode.

I have some doubts about the plausibility of the scenario, though. Hodiak’s hypnosis of Charmain has her flash back to the crime, noticing mostly the hand holding the gun. We now know that such eyewitness evidence is very unreliable, due to the effect of weapon focus: it is a human tendency to focus on a weapon, which reduces the reliability of identification from scenarios that involve guns. While the police’s focus on their preferred suspect is a textbook example of attitudinal bias, I’m not at all convinced that Charmain described the right guy.