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.

Who Is a "Violent Offender?" Amending Prop. 57 and Other Populist Adventures

In the last couple of years, several people--John Pfaff, Christopher Seeds, yours truly--have commented on an important feature of criminal justice reform: it consistently makes a distinction between "violent" and "nonviolent" inmates, ignoring the former and offering the latter early releases, parole, and enlightened sentencing changes. In this vein, Prop. 57, which passed by a great majority this November, offered an escape valve from excessive incarceration to people sentenced for nonviolent crimes (approximately 25,000 inmates in state prisons.)

But what constitutes a "violent crime" is under debate, and some CA lawmakers are under the impression that we have excluded some offenses from this category. They propose amending Prop. 57 to include dozens of offenses, which they perceive as "violent."

This is a terrible, wasteful, and pointless proposal, and here's why.

First, a person's offense of arrest (or even offense of conviction) is no proxy as to the risk they might pose to the public. As Susan Turner and Julie Gerlinger found out, there is no significant correlation between the violence involved in an offense and the recidivism of the offender. This distinction we make is largely for optics and public palatability, and it doesn't really address risk.

Second, if anything, the category we need to rethink is that of violent criminals, whose aggressive prosecution is the engine behind mass incarceration according to John Pfaff's Locked In. As long as we continue to retrench our views about violent offender and perceive them as an indistinguishable mass, our correctional crisis will not be resolved.

Third, Prop. 57 does not offer automatic release. It offers the opportunity to appear before a parole board. Presumably the lawmakers proposing the change want us to be safe, right? Well, if the parole board is unconvinced that the person is safe to release, they can simply decline to release them.

Fourth, it's important to understand what "early releases" mean. Over the years, CA sentencing laws have become a patchwork of draconian enhancements and additions. All Prop. 57 does is offer the person an opportunity to show rehabilitation BEFORE all the draconian additions kick in.

Finally, do these legislatures forget the importance of financial accountability? People who spend unconscionably long times in prison become old before their time, and ill, and therefore expensive.

I really hope this horrible idea crawls back to where it came from. In the last couple of months we've come to think of California as an island of reason and progress amidst the national catastrophe. Looks like we have to stand watch at the state capitol as well.

Sex Offenders Remain Most Reviled Category. Film at 11.

Thousands of people called Simon and Schuster in the last few weeks to ask them to cancel the lucrative book deal they offered self-styled libertarian "bad boy", Milo Yiannopoulos. That there are things to loathe about his ideology should be fairly obvious to my readers--his sexism, racism, and even threats to people's life and safety speak for themselves. Despite, and probably because, of the public uproar, S&S persisted in keeping the contract in place.

What eventually led to the book deal's cancelation, as well as the cancelation of his CPAC participation, was his commentary on pedophilia. All around me, people are treating this outcome as good news.

A few folks have bitterly remarked on the fact that all of Yiannopoulos' other transgressions were not sufficient to put him in political and commercial disfavor. I share the bitterness, but I also think it's fairly naive; I am familiar enough with the book publishing business, and have seen enough of the current administration, to understand that any such controversy simply means more publicity and better business. More people clamoring to cancel the book deal directly translate into more books sold. Controversy is good for commerce. I was one of the thousands of callers, but did so reluctantly, for precisely this reason.

The other part of the bitter equation is a bit more difficult to see through the lens of our own biases, and that is the broad consensus, shared apparently by conservatives and progressives alike, that anyone perceived as reaching out to pariahs should become a pariah by association. As Chrysanthi Leon explains in Sex Fiends, Perverts, and Pedophiles, one of the marked trends in our treatment of sex offenders in the last few decades has been to lump everyone into the same reviled group, even though there are many distinctive and different categories of sex offenders, and even though sexually deviant propensities do not necessarily translate into sexually transgressive behavior that victimizes others.

This dangerous focus on pedophiles is a distraction from the fact that most sex crimes against children are perpetrated by someone known to the child--a family member or a friend of the family. And unsurprisingly, it is precisely these crimes that go underreported. We tend to confuse pedophilia (the transgressive propensity) with sexual molestation (the transgressive behavior) because of availability bias: the people whom we know as pedophiles are familiar to us because they were caught. Not all child molesters are pedophiliacs, and not all pedophiliacs are child molesters. If anything, our attitude of revulsion and ostracism against pedophiliacs is what, perversely, might lead some of them to act out their fantasies.

Since the Yiannopoulos affair ended up working in "our" favor (whoever "our" refers to), people are less likely to examine and critique the perniciousness of our treatment of pedophiles, and far less likely to see how this vast consensus stands in the way of people's rehabilitation and therapy. They are also less likely to examine another pernicious aspect of this: that Yiannopoulous happens to be gay is going to lump him, in the eyes of a considerable part of the population, with the pedophiles he was presumably supporting. Even if you don't find that you can extend sympathy to someone who cannot help their proclivities (even though they absolutely can refrain from acting on those proclivities), you might feel less sanguine about this whole situation when you consider that one of its unfortunate outcomes is that it will solidify, for some conservatives and centrists, the link between gay people and child molestation, which we have worked for so many decades to overcome.

The publisher's decision in this case shows not only that controversy sells, but that biases and ostracism are alive and well. I find it a pyrrhic victory.

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.