Barr v. Sessions: A Return to Cheap on Crime?

A short while ago I posted about the bipartisan enactment of the First Step Act, a bipartisan compromise bill offering evidence-based rehabilitation programming and early releases for nonviolent drug offenders. Harkening back to the pre-Trump era of cooperation, the animus behind this law is pragmatic, but I does have some important humanitarian provisions, such as the categorical prohibition of shackling pregnant women or women who have just given birth.

William Barr’s confirmation hearings yielded many interesting insights into his future as Attorney General. For me, one interesting moment was when Chuck Grassley (!!!) pressed Barr on his tough-on-crime record. The Brennan Center reports:

“Will you commit to fully implementing the FIRST STEP Act?” asked Sen. Chuck Grassley, a key champion of the law. 

“Yes, senator,” Barr responded. Barr said that when he was last attorney general in the early 1990s, the violent crime rate was high and prison sentences were short. The system had broken down, he said. Barr argued that the growth of the prison population helped bring crime down since then, something the Brennan Center strongly disputes. But he acknowledged that times have changed. 

“I have no problem with the approach of reforming the prison structure and I will faithfully implement the law.”

This excerpt is a real gem. First, note that the question comes from Grassley, not usually who you’d think of as a champion for the oppressed. Second, note that Barr does not just say he’ll uphold the law, but actually goes into the merits of the law and essentially makes the argument that times have changed.

As the Brennan Center reports elsewhere, Barr is no bleeding heart prison reformer himself. The exchange between him and Grassley is an exchange between two Republicans, which confirms that much of the spirit of Cheap and Crime is alive and well.

This makes Sessions’ tenure as Attorney General even more interesting as an outlier. When touring with Cheap on Crime, I met Vikrant Reddy, an interesting and sharp-minded thinker about criminal justice reform on the right side of the political map. When we met, Reddy was working for Right on Crime, a conservative think tank about which I wrote extensively in the book. Right on Crime was making the argument that economic sustainability and small government principles required trimming the criminal justice apparatus, calling a truce on the war on drugs, and considering programs for reducing imprisonment. He has since then changed affiliations and now works for the Koch institute as a Senior Fellow. When we met, I asked Reddy what he thought about the diversity of opinion about criminal justice within the Republican Party. He said something that I found very interesting.

There was a generational gap, Reddy explained, between “old-skool” Republicans, who came of age politically during the era of high crime rates between the 1960s and 1980s, and the newer generation of conservative politicians, who were representing constituencies that experienced much safer streets and communities. The latter group was much more open to political compromise, if only for the sake of financial prudence.

Sessions is definitely a card-carrying member of the former group of politicians. In his confirmation hearings, he referred to marijuana smokers as “bad people”, an approach woefully out of touch not only with empirical research but with public opinion across the political spectrum. In an era of reasonable Republicans invested in reform, the Trump administration had to look long and hard for the only war-on-drugs dinosaur left in the Republican Party, and in Sessions, they found this rare and dying breed, to the detriment of us all: Sessions proceeded immediately to instruct federal prosecutors  to adopt a “zero tolerance” policy, which the prosecutors themselves called him to recant.  He revoked the Obama-era moratorium on the use of private prisons and took part in various other nefarious criminal justice initiatives that could not be justified by humanism or by efficiency.

What is interesting about Barr is that he is not a younger politician. His record on criminal justice from the early days is appalling. And nonetheless, he has been able to look around him, notice that the world has changed, and assure Grassley that criminal justice reformers will find him cooperative and willing to listen to reason. I find a glimmer of hope in this. Old punitive dogs can, and do, learn new tricks sometimes.

—–
Thanks to Jodi Short for our conversation about this.

The First Step Act: Humonetarianism Alive and Well

When my phone buzzed with a new notification, I felt a bit queasy reading that a new crime bill passed in the Senate was regarded “a victory to Trump.” But upon reading the bill, I realized this was the First Step Act, a watered-down bipartisan federal crime reform bill from the people who brought you the Obama-era federal reforms. The New York Times reports:

The First Step Act would expand job training and other programming aimed at reducing recidivism rates among federal prisoners. It also expands early-release programs and modifies sentencing laws, including mandatory minimum sentences for nonviolent drug offenders, to more equitably punish drug offenders.

But the legislation falls short of benchmarks set by a more expansive overhaul proposed in Congress during Barack Obama’s presidency and of the kinds of changes sought by some liberal and conservative activists targeting mass incarceration.

A look at the bill text provides some more insight. 
The main idea behind the bill is a buzzword we’ve heard a lot in the last few years: evidence-based recidivism reduction. The idea is to develop programs (and provide grants) for risk and needs assessments of federal prisoners, which would predict the recidivism risk of every inmate and then match him or her with evidence-based programs that address that particular person’s needs. These could include visits, institutional transfers, more opportunities to use the commissary service or even email, and other incentive. The most notable of these, perhaps, is time credits attached to the programs, which can be credited toward early release. The usual exceptions apply: As with the Obama-era reforms, these privileges and options will be available to low-level, nonviolent inmates, and not to “non-eligible” inmates, which committed violence offenses.
In short, this is a clear sequel to the trends I pointed out in Cheap on Crime. Effectiveness and efficiency are explicit criteria for the programs; the bill passes with bipartisan support; and the bill applies to the usual clientele of humonetarian reform, i.e., nonviolent, low-level inmates. 
The background to the First Step Act is indicative of the price we have to pay for bipartisan reform. Kamala Harris referred to this as a “compromise of a compromise,” which reminded me of the kind of discussion we had whenever I presented Cheap on Crime to a new audience. How much do we compromise or give up in order to get something? In the Trump Era, this means that bills of this kind are going to carry far less impact than their Obama-era predecessors, who were themselves products of compromise.

Not Your Typical Kavanaugh Opinion Piece

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Book Review: Mona Lynch’s Hard Bargains

Jeff Sessions’ career as Attorney General started exactly with what you would expect from him: a revocation of the Obama Administration’s commitment to end reliance on private prisons for domestic inmates and the promise to ramp up marijuana enforcement. Both of these are examples of this government’s effort to find the most reasonable, fiscally responsible, and decent thing that should be done and then do the exact opposite.

We know that private prisons in the federal system are not big players in the overall incarceration picture. The Obama Administration’s declaration that they would cease to rely on them seemed more a symbolic move than something that would actually make a difference (not that they could intervene in state incarceration matters anyway.) Moreover, throughout that period, private facilities were still used (and are still used) for incarceration of immigrants before deportation, and there was never any talk of stopping that practice.

We also hear the federal government arguing for a dinosaur-era approach to marijuana, featuring a new lie: that marijuana usage is related to opioid overdosing, which is unsupported by research and harkens back to the dark days of the Anslinger war on drugs in the 1920s.

These developments make Mona Lynch‘s new book, Hard Bargains, remarkably timely. In the book, Lynch conducts a careful and perceptive ethnography of three federal district courts: one in the Northeast, one in the Southeast, and one in the Southwest. Lynch is well aware that federal prosecutions are not the driving force behind mass incarceration, but she uses federal drug enforcement as an interesting laboratory for the study of prosecutorial discretion.

Indeed, the main takeaway from the book is the unhealthy combination of two seemingly contradictory factors: the existence of tough sentencing laws, which presumably bind discretion (albeit less so since 2005), and the existence of broad prosecutorial discretion, which allows them full use of these draconian sentencing provisions. On the back cover, Kate Stith, whose excellent book with Jose Cabranes Fear of Judging was a well-informed and passionate cry against sentencing guidelines,  interprets Lynch’s analysis as pointing to lack of discretion. I think the lack of discretion is only half of the problem. With the advent of extreme sentencing laws, how they are deployed is up to individual prosecutorial ideology, and as an outcome, a different culture of federal sentencing develops in the three different districts.

Not that any of these is particularly appetizing. Lynch’s account of the Northeast depicts a court that is captive in the hands of a zealous prosecutor on a mission to “rescue” people from themselves and from the streets, who basically wrangles minor drug cases out of the states’ hands and pushes them into the federal system, sometimes in violation of the Petite policy of refraining from double prosecution. In his enthusiasm to end the drug epidemic, he imposes lengthy and unreasonable restrictions on their freedom, which the court almost invariably approves. In the Southeast, there isn’t even a pretense of rehabilitation: an elderly judge delivers moralizing lectures to defendants on the receiving end of obscene, decades-long sentences for nonviolent drug crimes. And in the Southwest, marijuana backpackers–poor, undocumented immigrants carrying marijuana by foot as payment to their coyotes–are rounded up, summarily shifted to “flip flop court” for misdemeanor charges, where they are made to plead guilty in batches and march off to detention before deportation.

It’s difficult to figure out which of the three models is the most horrible. The variations confirm, though, that when outrageous mandatory minimums, unreasonable calculations of criminal histories, and breathtaking arbitrariness in terms of offense categories, come together, the problem is not, or at least not exclusively, lack of discretion. The problem is that a dazzling array of options, including very frightening and oppressive ones, is on the table, and prosecutors get to pick and choose which of these to deploy.

The extent of prosecutorial power here cannot be underrated. The publication of Hard Bargains coincides with the publication of John Pfaff’s Locked In, which looks at the unfettered discretion and power of county prosecutors (and which I’ll review in a future post). Lynch and Pfaff’s analyses are complementary.

As in her previous book Sunbelt Justice, Lynch is not only a meticulous and perceptive observer but also a master storyteller. The defendants, prosecutors, and judges come to life in her vignettes from court cases she witnessed. Her description of the poor, disenfranchised immigrants forced to plead guilty in batches is particularly disheartening (my students were in tears when I read this section aloud in class yesterday.) Lynch has a keen psychologist’s eye for personalities and motivations, and she realistically captures the ideologies and worldviews that make her characters tick.

It is horrifying to think of how this system, already bloated, draconian, and rotten in the Obama years, could wreak more havoc and destruction in Trumpistan, and the news from the last two days suggest at least two directions in which things could get even worse: reintroducing the profit mechanisms that drove private incarceration by improving these companies’ relationship with the feds, and inflicting the awful drug sentencing scheme on marijuana defendants to an even greater extent (with the obvious potential victims being the people at the bottom of the Trumpistani social ladder: poor immigrants from Mexico.) I dread to think that the horrors and inhumanities described by Lynch could be something we might come to miss in the years to come.

On Protesting, Rioting, and Fighting Nazis

It has been a week of rage and action, as decent people have been astounded by the government’s actions to oppress the vulnerable. The trauma of the inauguration was closely followed by a series of horrifying executive orders and a slew of appointments of unqualified billionaire bullies to important positions, where they will have the power to essentially obliterate the bottom rungs of the American socio-economic ladder.

Horrifying as all of this was, the worst from my perspective was the anti-Muslim travel ban, which has already derailed lives and broken families, with Jeff Sessions’ looming appointment coming in as a close second. This was a strong reminder that all criminal justice scholars and practitioners need to also have at least basic proficiency in immigration law, and I’m planning on filling the gaps in my own education and taking some courses.

I have spent my week in street protests, starting with our epic takeover of the San Francisco International Airport (SFO) over the weekend. The protest made me fall in love with my city all over again. I saw all of San Francisco–old and new, techie and artist and construction worker, parents and grandparents and children, come together in a way that can move mountains. I saw people being firm and effective, and at the same time unfailingly kind and nonviolent, even in the face of some aggression from impatient passengers. I saw lawyers receive the respect and gratitude they deserve. I saw police officers, including the tactical team, taking on difficult jobs and opting for nonviolence when they could have opted for much worse. I saw strangers being kind and generous toward each other. I saw one of the busiest airports in the United States grind to a complete halt–and a statement from airport management supporting “the members of the public who have so bravely taken a stand against this action by speaking publicly in our facilities.” I saw my friends and neighbors at their best, resisting the Neo-Nazi regime, coming together in solidarity for vulnerable and frightened people, and being both capable and reasonable in doing so. Mostly, I saw the light of basic goodness and dignity shine out of a thousand faces, and that gave me more than a modicum of hope about what lies ahead.

On Tuesday I was in Oakland, for the teddy bear protest against the appointment of Betsy DeVos. I am a product of public education, all the way through my Berkeley Ph.D., and am disheartened at the prospect of it being ruined and dismantled by a clueless billionaire. And yesterday, I was at UC Berkeley, protesting against the arrival of Milo Yiannopoulos, who was to address his Neo-Nazi supporters and, I presume, dehumanize women and people of color, as he tends to do. Later journalistic reports described “student violence” and “protesters throwing stuff and burning things.”

As in the case of prior demonstrations I have attended, I may have been lucky in that I left shortly after we were told that the talk was canceled. While I was there I saw no violence on the part of the protesters. What I *did* see was a handful of Yiannopoulos fans–one of them particularly vocal, in a fuzzy green beanie and a phone he kept shoving in the protesters’ faces–trying to goad the crowd into violence.

Since apparently things got a bit dicier after I left–though I think the reports in the media are fairly exaggerated–I feel I have to say something. What on earth would anyone expect with the combination of Nazi provocateurs and nineteen-year-olds, whose prefrontal cortex has yet to develop? Even the Supreme Court acknowledges that adolescents are less able to be restrained and controlled. Would anyone in their right mind expect a protest against Nazis at UC Berkeley to *not* get dicey?

To be clear: violence, at this stage, is not only unlawful: it is harmful and underproductive, not only because it taints us with the violence of the government but because it offers them the opportunity to act all offended. Case in point: last night’s protest caught the attention of our fascist-in-chief, who tweeted that he will withhold federal funding if there’s no “free speech.” He doesn’t know the meaning of the word, and has been hard at work dampening the free speech exercised by hundreds of thousands of people in the last week who rose up against him. But I think it is important to continue holding the moral high ground. When they go low… you know the rest.

And yet – my grandma’s cousin, Yehoshua Gold, fought the Nazis in the woods as a partisan guerrilla warrior in WWII. I find myself thinking about him a lot these days. Things are deteriorating fast, but I wonder, if and when they become as terrible as they were in WWII, whether I’m made of the same stuff that Uncle Yehoshua. I hope we don’t have to find out, and I hope that, if we do find out, we will all rise to the occasion.

We will prevail, and we will take our country back, and we will work hard and fix all the direct and collateral damage this administration has wrought.