Sunday, November 22, 2015

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.

Wednesday, November 4, 2015

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

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

Oakland firefighters found an unresponsive man in the driver's seat of a BMW parked near a highway off-ramp one morning in June. They called the police department, saying a handgun was on the passenger's seat.
Police tried for an hour to rouse Demouria Hogg, 30, by using loudspeakers and firing beanbag rounds at the car. Hogg didn’t budge, police said. Hogg finally stirred when police shattered a passenger-side window with a metal pipe. It would be the last movement of his life.
One officer used a Taser on Hogg while another fatally shot him.  
It’s unclear what happened when Hogg awoke. Police said “a confrontation occurred.” An attorney representing the officer who fired the fatal shot said Hogg reached for the handgun.

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 3, 2015

New Issue of Social Justice: Beyond Incarceration

The journal Social Justice has a new issue out, titled Beyond Mass Incarceration: Crisis and Critique in North American Penal Systems. The issue examines the latest developments in incarceration rhetoric and policy and promises to be a very engrossing read. Among the highlights are an article by Marie Gottschalk, who expresses pessimism about the two strands of prison reform--racial justice and bipartisan initiatives. There are also reviews of Jonathan Simon's Mass Incarceration on Trial and of Cheap on Crime. The issue sells for $13.45, which seems like a pretty worthwhile investment in such interesting content.

Tuesday, October 20, 2015

Film Review: The Black Panthers: Vanguard of the Revolution

The new documentary The Black Panthers: Vanguard of the Revolution opens with the renown story of the blind men touching an elephant, and the rest of the movie shows the party, like the proverbial elephant, to be as multifaceted and enigmatic as the people involved in it.

Narrated by many members of the Black Panther party, historians, police officers, FBI agents, and informants, the movie offers a kaleidoscope of perspectives on the history of the party since its inception, through Huey Newton's incarceration, Eldridge Cleaver's escape to Algeria, the infiltrations and struggles, the social programming, the collaboration with other social movements, the internal strife, and the last days. It is a mesmerizing, mature, and complex portrayal of a movement that embraced both revolution and reform; gender progress and traditional gender roles; inclusivity and exclusivity.

While the best part of all is the focus on individual narratives, the historical footage, mostly of Oakland in the 1960s, is stunning and extensive. The Panthers light up the screen with their distinctive appearance--the afros, the jackets, the berets, the weapons--and with their powerful display of black freedom and independence. The movie ingeniously moves from images of prominent Party members to interviews with the same members, many years later, in which they offer mature, reflective commentary about the explosive events. Many Panthers have remained on the public scene as activists; we recently covered Elaine Brown's reentry farm project. Their honesty in describing their experiences in the movement--being watched by the police, conflicted about the aims of the movement, and, for the women--pushed out by Huey Newton's later years, in which he was erratic and abusive--make the movie an unforgettable experience.

The film provoked me to think about two angles. The first is the prominence of the criminal process, and especially police-citizen interactions, with both the formation and the eventual destruction of the movement. One of the main points in the Black Panther platform was the fight against police brutality--and it is that very brutality that is evinced in police reactions to the party, starting with J. Edgar Hoover's institutional plan to "neutralize" the party and prevent a "messiah" from rising (via, as is convincingly argued, the assassination of Fred Hampton. Moreover, the intense and oppressive use of the criminal process against the Panthers, especially the "New York 21" trials, makes the point the Panthers themselves wished to make. In one of the trials covered in the documentary, Bobby Seale (later to unsuccessfully run for Mayor of Oakland) is gagged and bound at his own trial, making the comparison between the old and new Jim Crow painfully evident.

The second angle is the provision of much-needed historical context for the current Black Lives Matter protest movement. First, it is always useful to inform young joiners of the protest that the problems between police and communities of color are not new and run deep. And second, I think the current movement would do well to learn from the Panthers' willingness to reach a hand to other social movements and find common themes in different struggles for justice. It is possible to have a strong voice stemming from one's identity AND to involve allies and partners beyond merely asking them to "shut up" or "check their privilege". It is possible to highlight distinctive experiences AND appeal to a common ember of the human experience and to empathy. Sadly, the Panthers, like other social movements, were not immune to the left's destructive tendency to eat its own. While their internal struggles, such as the strife between Newton and Cleaver, were initially exploited by the FBI, toward the end, all the FBI needed was to watch from the sidelines as the movement destroyed itself.

Sunday, October 4, 2015

Marijuana Legalization Proposition Filed Today!

Today, The Coalition for Cannabis Policy Reform filed a proposition to legalize and tax marijuana in California. All the information on the propsition is on their website, Reform CA. The full text of the initiative is here.

The new law would make the following behaviors legal:

(a) To personally possess, process, share, or transport not more than one ounce of cannabis or cannabis products, solely for personal use, and not for sale. 

(b) To consume cannabis or cannabis products that are obtained and possessed in compliance with this Act when such consumption occurs at a private residence or such other location as permitted under this Act. Nothing in this section shall alter current law regarding the rights of a property owner or landlord to regulate or prohibit smoking on their property. 

(c) To cultivate homegrown cannabis in an area not to exceed one hundred (100) square feet; to possess the living and harvested plants and results of any lawfully harvested homegrown cannabis pursuant to this Article; and to transport homegrown cannabis between a lawful cultivation site and the cultivator’s residence. 

The new law also eliminates the penumbral legal implications of marijuana:

26012. (a) No person shall be prosecuted for child endangerment pursuant to Section 273(a) of the Penal Code, or any similar or successor statutes, for an action taken that is in compliance with the provisions of this Act, unless it is determined that there exists an immediate and actual threat to the health and welfare of a child. 

(b) Notwithstanding any other provision of law, an action taken that is in compliance with the provisions of this Act, by itself, shall not be sufficient evidence of parental unfitness, or child abuse, or otherwise be used to restrict or abridge custodial or parental rights to minor children, and shall not be the basis of a criminal act nor the basis to diminish parental rights or remove a child from his or her home, unless it is determined that there exists an immediate and actual threat to the health and welfare of a child. 

The law also sets up an office that will steer policy, manage interstate issues, and determine impairment standards, among other things, and a fund for the tax revenue (5% plants, 10% edibles). The money will go toward environmental restoration of damages resulting from cannabis industry.

Still defined as a criminal offense are supplying to a minor and involving people under 21 in cultivation enterprises; and there are still duties imposed on public employees to be sober during the performance of their duties.

Wednesday, September 30, 2015

Who Pays? Impact of Incarceration on Families

The Ella Baker Center's recent report, titled Who Pays? The True Cost of Incarceration on Families employed trained community researchers who reached directly into communities in 14 states, probing into the financial costs faced when a family member goes to jail or prison, the resulting effects on physical and mental health, and the challenges and barriers encountered by all when an individual returns home. The research included surveys with 712 formerly incarcerated people, 368 family members of the formerly incarcerated, 27 employers, and 34 focus groups with family members and individuals impacted by incarceration.

The key findings of the report are as follows (to read the full report, click here):

People with convictions are saddled with copious fees, fines, and debt at the same time that their economic opportunities are diminished, resulting in a lack of economic stability and mobility. Forty-eight percent of families in our survey overall were unable to afford the costs associated with a conviction, while among poor families (making less than $15,000 per year), 58% were unable to afford these costs. Sixty-seven percent of formerly incarcerated individuals associated with our survey were still unemployed or underemployed five years after their release.

Many families lose income when a family member is removed from household wage earning and struggle to meet basic needs while paying fees, supporting their loved one financially, and bearing the costs of keeping in touch. Nearly 2 in 3 families (65%) with an incarcerated member were unable to meet their family’s basic needs. Fortynine percent struggled with meeting basic food needs and 48% had trouble meeting basic housing needs because of the financial costs of having an incarcerated loved one.

Women bear the brunt of the costs—both financial and emotional—of their loved one’s incarceration. In 63% of cases, family members on the outside were primarily responsible for court-related costs associated with conviction. Of the family members primarily responsible for these costs, 83% were women.

In addition, families incur large sums of debt due to their experience with incarceration. Across respondents of all income brackets, the average debt incurred for court-related fines and fees alone was $13,607, almost one year’s entire annual income for respondents who earn less than $15,000 per year.

Despite their often-limited resources, families are the primary resource for housing, employment, and health needs of their formerly incarcerated loved ones, filling the gaps left by diminishing budgets for reentry services. Two-thirds (67%) of respondents’ families helped them find housing. Nearly one in five families (18%) involved in our survey faced eviction, were denied housing, or did not qualify for public housing once their formerly incarcerated family member returned. Reentry programs, nonprofits, and faith-based organizations combined did not provide housing and other support at the levels that families did.

Incarceration damages familial relationships and stability by separating people from their support systems, disrupting continuity of families, and causing lifelong health impacts that impede families from thriving. The high cost of maintaining contact with incarcerated family members led more than one in three families (34%) into debt to pay for phone calls and visits alone. Family members who were not able to talk or visit with their loved ones regularly were much more likely to report experiencing negative health impacts related to a family member’s incarceration.

The stigma, isolation, and trauma associated with incarceration have direct impacts across families and communities. Of the people surveyed, about one in every two formerly incarcerated persons and one in every two family members experienced negative health impacts related to their own or a loved one’s incarceration. Families, including their incarcerated loved ones, frequently reported Post-Traumatic Stress Disorder, nightmares, hopelessness, depression, and anxiety. Yet families have little institutional support for healing this trauma and becoming emotionally and financially stable during and post incarceration.

These impacts hit women of color and their families more substantially than others, deepening inequities and societal divides that have pushed many into the criminal justice system in the first place. Almost one in every four women and two of five Black women are related to someone who is incarcerated.4

Poverty, in particular, perpetuates the cycle of incarceration, while incarceration itself leads to greater poverty. Estimates report that nearly 40% of all crimes are directly attributable to poverty5 and the vast majority (80%) of incarcerated individuals are low-income.6 In fact about two-thirds of those in jail report incomes below the poverty line.7 The research in this report confirms that the financial costs of incarceration and the barriers to employment and economic mobility upon release further solidify the link between incarceration and poverty.

Most of all, this report’s collaborative research found that while supportive families and communities can help reduce recidivism rates, these bedrocks of support lack the necessary resources to help incarcerated individuals serve out their sentences and reenter society successfully. It is not enough to reform the criminal justice system without considering its purpose and impact on communities. Institutions with power must acknowledge the disproportionate impacts the current system has on women, low-income communities, and communities of color and address and redress the policies that got us here. Additionally, society as a whole must rethink our approach to accountability and rehabilitation, shift perceptions, and remove barriers that prevent formerly incarcerated individuals and their families from getting another chance at life.

Tuesday, September 29, 2015

Our Friends from the North: Canada's Conservative Turn

As policymakers in the United States are rethinking the country's reliance on mass incarceration, both from a fiscal and a humanistic perspective, disturbing trends in Canada merit some attention--both because they are interesting and disconcerting on their own, and because they provide an interesting comparison to the Nixon and Reagan years.

In The Harper Decade, our Canadian colleagues are examining the impact of the Harper administration on a variety of issues, ranging from public services to environmental protections. Their conclusion across all these areas: Canada has changed, and not for the better.

Of particular interest to us is Lisa Kerr and Anthony Doob's excellent essay The Conservative Take on Crime Policy, which examines Canada's punitive turn during the Harper years. Kerr and Doob write:

There is no question that Harper’s Conservatives have talked tough about criminal justice, departing from the more moderate tone that has characterized Canada’s history on this topic. Before Conservative rule, Canada had a long tradition of allowing criminal justice experts – like judges and prosecutors – to make decisions in ways that were largely insulated from politics.  One result is that Canada has been able to sustain a stable, moderate rate of imprisonment. Even during decades when violent crime was much higher across North America – when the US was busy generating the policies that would deliver its current situation of ‘mass imprisonment’ –  Canada relied on imprisonment comparatively sparingly. Since 1950, imprisonment rates have varied between about 81 and 116 adults per hundred thousand Canadian residents. In 2005 the rate was about 104. Currently it appears to be about 115.

This tone of moderation in crime policy has changed. With the Conservative politicization of the field of criminal justice we have seen an uptick in rates of imprisonment, an increase in the severity of the punishment experience, and a new reliance on crime as a salient topic with which to mobilize political support. Harper’s Conservatives have overseen decisions to close prison farms, fire prison chaplains, strip judges of sentencing discretion, and increase the use of solitary confinement. The overrepresentation of indigenous people in our jails and prisons – already a problem under past governments – has also become worse during Conservative rule.

Kerr and Doob identify three key areas of punitivism: rhetorical change, designed to sweep the public into a tough-on-crime ideology; consequential change, which targets especially people serving long sentences for violent crime by diminishing their hopes for parole; and unconstitutional change, which includes reforms that may be short-lived because of their unconstitutionality, but waste legislative time.

One important difference between the Nixon and Harper administrations is that Nixon's election campaign at least relied on some objective grounds: the massive rise in violent crime. Even commentators who argue that Nixon exploited this development to introduce, top-down, a massive fear of crime and combat the civil rights movement, do not doubt these numbers. By contrast, Kerr and Doob note--

the peculiarity of a desire to reform the criminal justice system – or at least talk about reforming it – at a time when crime is in a longstanding state of decline.  Total crime in Canada peaked in the early 1990s and declined thereafter. Homicide rates peaked in 1977 at 3 per hundred thousand residents. In 2014, the rate was 1.46 homicide victims per hundred thousand residents. These patterns fit a larger story of peak and decline that has occurred in the United States and many other industrialized democracies. For well over a decade, Canada has been enjoying the same drop in crime as similarly situated nations. The causes of the drop in crime are not well understood.  What is known for certain, however, is that the drop in crime in Canada has little to do with criminal justice punishment policies. Indeed, Canada’s imprisonment rate was remarkably consistent in the decades before crime fell.

In that sense, Harper's government may more easily be compared to the increased war on crime and drugs during the Reagan administration. In the 1980s, crime rates in the United States started falling, but punishment continued to increase. Most U.S. commentators do not find a significant causal relationship between mass incarceration and the drop in crime rates, attributing most of the decline to better policing, gun control, and a variety of unrelated factors such as age. But even this factor defies comparison: Even in the years in which crime peaked in Canada, incarceration rates did not change much.

I think that one key factor that has facilitated Harper's rhetoric in the face of overwhelming evidence to the contrary is the fact that his conservative reforms, while senseless and damaging, are not--yet!--unsustainable. Canada was the only G-7 country that managed to avoid the financial crisis, and its recession was much milder than the U.S. recession. Here, the crisis acted as a catalyst of change, bringing together bipartisan allies to initiate cost-centered reforms. There will be many reasons for Canadians to regret Harper's criminal justice policies for years to come, but they may not feel them for a long time because they won't be hitting them in the wallets any time soon. But it's also true that Canadian legislation in such matters is not as driven by financial and fiscal concerns as U.S. legislation, and it may be that, if enough Canadians are sick of Harper on October 19, much of this disturbing trend will go away.