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.

Prison Abolitionism, Anti-Zionism, and the Risks of Fashionable Thoughtlessness

More than five years ago, I started noticing that people whose positions on mass incarceration and its discontents were similar to mine were identifying as "prison abolitionists." Whenever I was asked whether I, too, was an abolitionist, I used to defiantly say "no," until I buckled down and wrote this post, which still accurately reflects where I stand on the question of abolition. TL;DR for you: I think crime is real, it has an ontological existence beyond the repressive state and causes real harm for real people, and some people who commit crime--far less we have behind bars, but more than zero--need to be behind bars to protect the public. If anything, the work I've done since that post--writing a book in which an aging Charlie Manson is one of the characters, and participating in crime prevention summits in which victims and perpetrators come together in a call to put an end to real, actual violence happening in the streets--have strengthened my commitment to radical realism.

Last night, at James Forman's excellent talk about Locking Up Our Own at City Arts and Lectures, I had another opportunity to think about this. At the Q&A part of the evening, a young man rose and asked Forman and Lara Bazelon (who was interviewing Forman) whether they were abolitionists, and why or why not. Forman gave a nuanced and interesting answer. He said (I'm paraphrasing from memory) that there is something very appealing in envisioning a system that does not rely on law enforcement and incarceration as the ultimate solution to its problems. At the same time, he said, he was struggling with notions part of him still harbored that prison was still appropriate for some people. The examples he gave were Michael Cohen, Harvey Weinstein, cops who shoot people of color, and perpetrators of hate crimes.

I thought about Forman's answer a great deal later in the evening. My first, facile interpretation of his response was that, like many of my friends, it showed the unbearable lightness of doing away with due process and civil and human rights for defendants we don't like. But we later had a brief conversation in which I realized that Forman and I actually agreed on far more than I thought. We both believe that the prison apparatus is used exponentially more than it should be, that it exposes people to horrific violations of their human rights and to threats to their basic existence, and that it hasn't been shown to reduce crime or rehabilitate people. And we both believe that there is a small minority of people who need to be behind bars--Forman highlighted retribution, I'd be talking more about incapacitation. Also, my shortlist of people that should stay behind bars might include folks that belong to categories of people "we" like as well as those we dislike. Forman's response to the young audience member was a model of humility and honesty, but we end up pretty much in the same place.

Later at night it occurred to me that most of the self-defined abolitionists would probably agree with both of us that there is still room for institutional confinement, though not in its current shape and not to the degree of its current usage. And then I thought that, like so many other terms, the term "prison abolitionism" has suffered from a serious dilution of its meaning. In its original formulation, by Norwegian criminologists such as Thomas Mathiesen, abolitionism meant absolutely no prisons. Or, a revolutionary reversal of fortune - using them to lock up the bankers and environmental destroyers. Crime, Mathiesen argued, is not a real thing, and prison is nothing more than a manifestation of state repression. It is a fairly extreme position, but it has the benefit of being ideologically genuine and undiluted.

In a lot of ways, the fight over the semantics of "abolitionism" reminds me of a similar fight over a term that is fashionable among the same milieu: anti-Zionism. Most of my encounters with self-defined anti-Zionists indicate that they either do not understand what Zionism is, or have such a reductive definition of the term so as to equate it with right-wing Messianic racism. As an Israeli who studied Zionism extensively by reading original texts, and being exposed to the many strains in Zionist thought, including multicultural, liberal and tolerant Zionism, I confess that these New York Times paragraphs really resonate with me:

Israelis experience anti-Zionism in a different way than, say, readers of The New York Review of Books: not as a bold sally in the world of ideas, but as a looming menace to their earthly existence, held at bay only through force of arms. It’s somewhat like the difference between discussing the effects of Marxism-Leninism in an undergraduate seminar at Reed College, circa 2018 — and experiencing them at closer range in West Berlin, circa 1961. 

Actually, it’s worse than that, since the Soviets merely wanted to dominate or conquer their enemies and seize their property, not wipe them off the map and end their lives. Anti-Zionism might have been a respectable point of view before 1948, when the question of Israel’s existence was in the future and up for debate. Today, anti-Zionism is a call for the elimination of a state — details to follow regarding the fate befalling those who currently live in it. 

Note the distinction: Anti-Zionists are not advocating the reform of a state, as Japan was reformed after 1945. Nor are they calling for the adjustment of a state’s borders, as Canada’s border with the United States was periodically adjusted in the 19th century. They’re not talking about the birth of a separate state, either, as South Sudan was born out of Sudan in 2011. And they’re certainly not championing the partition of a multiethnic state into ethnically homogenous components, as Yugoslavia was partitioned after 1991. 

Anti-Zionism is ideologically unique in insisting that one state, and one state only, doesn’t just have to change. It has to go. By a coincidence that its adherents insist is entirely innocent, this happens to be the Jewish state, making anti-Zionists either the most disingenuous of ideologues or the most obtuse. When then-CNN contributor Marc Lamont Hill called last month for a “free Palestine from the river to the sea” and later claimed to be ignorant of what the slogan really meant, it was hard to tell in which category he fell.

When someone who holds oversimplified, reductionist thoughts about the Israeli-Palestinian conflict, which were shaped by American liberal education, tells me proudly that they are anti-Zionist, I have to ask myself: Does this person believe I do not have a right to exist? That my family and friends, whose lives are rife with activism for peace, multicultural friendship and relationships, and a strong commitment to coexist with Muslim, Christian, Druze, and Circassian friends, should drop dead? That it was justifiable, and maybe even laudable, to bomb a university cafeteria and kill nine of my friends? This reductionism worries me greatly, not only because it reflects great ignorance, but also because it is fashionable among well-meaning social justice folks whose understanding of the realities of Israel/Palestine lacks nuance and empathy.

That is exactly what I feel about the equally fashionable identification with abolitionism. When someone--typically a middle-class, economically comfortable, highly educated white academic--tells me proudly that they are a prison abolitionist, I have to ask myself: Does this person believe that lethal violence over drugs, which ravages lives and destroys cities and neighborhoods, does not have an ontological existence? Does this person understand that the victims of the crime, whom they claim is nothing more than the fabrication of a perverse, oppressive state, are real people who miss their loved ones and need to be taken seriously? Is this person comfortable with some sort of alternative community reaction to, say, serial killers?

Or maybe this person agrees with me that prison is essential, but on a much smaller and humane scale, and adopted the diluted label of abolitionism because that's part of the fashionable argot of this discipline? And if so, what exactly makes them an abolitionist?

I'm curious to hear more from you, especially if you consider yourself an abolitionist. I think you'll find, like me, that we are virtually in agreement on how broken the system is, but I seem to have a more severe allergic reaction to labels.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Progressive Punitivism: Notes on the Pursuit of Social Justice through Penal Means

One reaction I've gotten on my fairly popular post about the Kavanaugh hearings is that many people were feeling some unease around "progressive punitivism" but couldn't quite put their finger on the source of the discomfort until I defined the term. Since then, I've been thinking a bit more about the discontents of pursuing a social justice agenda through a call for harshness, and came up with the following overall framework:

Origins of Progressive Punitivism

The left and the right do not operate in separate universes. Marinating in the American mainstream culture is likely to leave its imprint on social movements of all stripes, and I think progressive punitivism shares quite a bit with its source, conservative punitivism.

Conservatives are largely saddled with having brought about aggressive law enforcement and mass incarceration, though newer works highlight the complicity of Democratic presidents like Kennedy, Johnson, and Clinton, as well as that of middle-class minorities. What is characteristic of this framework, as set forth by Jonathan Simon in Governing Through Crime, is the general tendency to address social malaise (in schools, at work, at home) through a framework of crime. In other hands, holding the crime hammer in your hand makes every problem seem like a nail.

In addition, the tough-on-crime movement was characterized by the reification of victims, or even (to recur to Simon again) to recast the quintessential defining metaphor of the American citizen as a potential victim.

Finally, while the left gets accused often of inventing identity politics, much of the aggressive law enforcement effort--especially in the area of drugs--was driven by identities, i.e. seeing crime in the inner city and as perpetrated by people of color while being blind to crime committed by more powerful people (critical criminologists often identify this identity-based enforcement principle as the main trope of our criminal justice system.

I'm coming to think that, rather than protesting about this, vocal and active parts of the left have coopted this mentality to support their own ideology.

Defining Features of Progressive Punitivism

1. It's identity-driven. Progressive criminal justice reform emphasizes justice for particular contingencies and explicitly excludes leniency or compassion for people who are considered part of the power structure or bearers of entitlement and social advantage.

2. "Leveling Up" punishment. When comparisons are made between disenfranchised people and privileged people, the call is toward harshness for the latter, rather than leniency for the former (or both at once.) While the system as a whole is to be scaled down, the place of entitled wrongdoers is in prison.

3. Retribution is perceived as a catalyst for change. When a person of privilege is called upon to answer for crimes and wrongdoing, the general perception is that a just outcome--one that would provide appropriate, harsh retribution--will have trickle-down effects on social justice and in general on the public good. These morality tales are "conversation starters" that are perceived to bring about reckoning, understanding, and important steps toward remedying structural inequalities.

Key Areas 

1. Police violence and lethal force. Frank Zimring's recent book When Police Kill offers some excellent reasons why our essential struggle against police violence should not focus on the prosecution of individual police officers to the exclusion of training and other forms of systemic reform. And yet, the issues that tend to galvanize large popular movements for police reform have to do with the perceived inadequacies of the criminal justice system in bringing cops to justice, charging them, or convicting them. As we now know, the criminal justice apparatus in Ferguson was broken long before Michael Brown's killing, but the killing galvanized the activists, focusing on Darren Wilson as the face of evil as opposed to looking at the systemic problems (if you have read the grand jury transcript, you have probably realized that this was actually a difficult decision.)

2. Sexual assault and #metoo. The overall commendable #metoo movement started a wave of admissions and sharing on the part of victims of sexual misconduct, but rather than inviting a dialogue about how to reimagine social spaces in which everyone is treated with dignity and respect the movement has tended to focus on bringing down people in high-profile cases (Weinstein, Kavanaugh, and Brock Turner.) This reached a particularly low point with the campaign to recall Judge Persky, which penalized a judge for paying attention to a probation report of a convicted criminal that many people perceived as getting off leniently because of his race and social advantage. The outcome is communicating a message of harshness to judges, and the first people in line to suffer will not be people of social advantage.

3. Bigotry and hate crimes. Oakland Mayor Libby Schaaf recently argued on behalf of changing the burden of proof in hate crime cases. The presumption of innocence, in other words, only exists for people we like. Beyond the dangerous slippery slope that such proclamations might create, in general the movement has focused on taking individual examples of racists and bigots and making the destruction of their reputation into the focus of the movement's energy (I'm thinking of the mariachi party below the home of the lawyer who spewed racist epithets at Spanish-speaking restaurant workers.)

Challenges and Problems

1. The emphasis on punishment of individual wrongdoers as an educational lesson confounds personal pathology with situational evil. The lessons of Milgram and Zimbardo are well taken: bad behavior, including what looks like cruelty and sadism, is largely situational. It is perhaps ironic that movements that set out to prove just how situational and prevalent bad behavior was end up confounding their raison d'être by pursuing remedies in the form of punishing individuals as if the source of the problem is their personal pathology.

2. The dependence on courts ("case and controversy") means that whatever ends up the lightning rod for ire is largely left to chance, or to a movement's preferences and idiosyncrasies. Sometimes, instances of poor behavior--racism, sexual assault, police brutality--that come to light in the context of an individual lawsuit are less egregious than the ones that remain in darkness. But because grand juries and courts take cases on a case-by-case basis, we are not really getting an idea of the scope and breadth of a particular problem by looking at a particular case.

3. The emphasis on criminalization draws efforts away from other laudable, systemic reforms, that don't enjoy as much public appeal. The movement for reform only has so much energy, and it has to be spent in directions that might prove most productive. To focus a movement on mobbing and stigmatizing one particular person is to spend finite capital--money, time, verve--on a particular case under the unproven assumption that the case will produce systemic change.

4. Reifies victimization to a point that is unhealthy not only to offenders, but also to the victims themselves, and sets up "victimization competitions." The victims rights movement from the right brought us many of the excesses of the 1990s and the 2000s, and the current victims rights movement from the left, albeit less destructive on the grand scale, can bring similar destruction to people whose victims get the talking stick with the current movement. But more importantly, we've taken from the right the notion that a necessary condition to being heard is claiming a status of oppression and victimization, which requires people to marinate in their victimization experience longer than their healing would require. It also pits some victims against others--namely, those that would complain versus those who wouldn't.

5. Rankles potential allies and closes avenues for cooperative, inclusive discussion. If the ultimate goal is to bring about social change, ideally the people at the table include those whose behavior we want to change. But when the weapons of choice are stigma and calls for incarceration, it is unlikely to get people to the table with the spirit of cooperation that, say, a truth and reconciliation committee might induce.

6. If it fails--which it often does--sets us back, and while raging against it feels productive, it doesn't really produce change. Rage, I find, is not a finite quality that one can express once and then be liberated from it. Rather, rage is generative, and it produces more rage. With the animus that comes with rage, one might feel that one is being productive. But the recent rage-filled calls for more prosecutions and more punishment have not really yielded anything, and whenever the call is not fulfilled, the rage is an indication that we are still where we were before--and something more for the other side to pick on.

7. It is not without ambiguity when identities collide. Case in point: "Cornerstore Caroline" who complained about being harassed by an 8-year-old boy (the complaint was unfounded). If we're all about believing victims, where does that leave the boy? If we're all about empowering people of color, where does that leave their victims when they commit crime? The universal appeal to "intersectionality" leaves these dilemmas without easy solutions, because the movement confounds the rule of thumb in individual cases (find out the facts and then see what is credible) with the ideological edict to categorically believe or disbelieve specific groups of people.

What Should We Do?

1. With regard to systemic problems, focus on systemic solutions. I often think that these crazy times call for truth and reconciliation commissions after all this is over, because the public debate is so toxic and partisan. There are evils that are rampant, and those need to be fixed through an inclusive conversation and a commitment to training, early education changes, whatever it takes, because spending all the poker chips on a grand jury proceeding of one cop doesn't really offer us as much benefit as systemic reform.

2. Let go of schadenfreude and mobbing. Think a moment before piling on someone online and calling for their firing, incarceration, or otherwise destruction of reputation. If it's all about laughing at someone else's expense, find better things to do with your time.

3. Focus on doing more and saying less. Expressionist tactics have their place - they lift morale and make people feel that they're not alone. But when the shit hits the fan, it's not the marches and the op-eds that make a difference: it's voting, knocking on doors, and donating money. While all avenues for social change are important, it's time to tilt the balance back toward action and away from symbolic expression - just in time for you to vote in the midterms.

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

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

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

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

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

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

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

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

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

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

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




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

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

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

Safe Injections Disappointment: A Call for SF Hamsterdam

The proposal was well thought and empirically backed: According to the principles of harm reduction, the best perspective we have on saving lives that could be claimed by drugs and alcohol, a safe injection site in San Francisco would be a good idea (so would legalizing opioids, but we live in this world, not in a better one.)

Then, Governor Brown, in an incomprehensible statement, vetoed a California bill that would enable San Francisco to pursue a four-year pilot with a safe injection site.

Before we move on to thinking how San Francisco could get around this veto--and I believe it could--let's pause for a moment. Why would Brown veto the proposal? Surely not to curry favor with conservative and moderate California voters--he is not running for reelection. Surely not to curry favor with the Trump administration (we've done our very best, and justifiably so, in the opposite direction.) Surely not to support thoughtful, evidence-based reform, which this proposal surely is. What is going on? Honestly, I don't know, and feel free to chime in with comments.

San Francisco mayor London Breed has declared that she plans to move forward, and so are other cities. But how can San Francisco move forward?

The key to a possible safe injection site lies in the fragmentation of policing and prosecution. As I explained elsewhere, policing in America is conducted on the municipal level. Prosecution is conducted on the county level. San Francisco is one of those rare locations where city and county overlap.

To the extent that the San Francisco District Attorney's office and SFPD are on the same page, there is nothing to prevent San Francisco from establishing enforcement priorities that deemphasize opioid enforcement within a particular area of the city (a-la Hamsterdam from The Wire.)




What Would SF Hamsterdam Entail?

That depends. Hamsterdam could feature merely a lesser-enforcement area, where law enforcement commit to getting involved only if there's violence (agreements like that have been worked out in other contexts, such as Operation Ceasefire.) We would need to carefully thing about protecting the status of employees and volunteers from the helping professions who might offer treatment, 12-step programs, and clean needles at the site, and how to best protect them, and if there's a way to protect them as well, Hamsterdam could feature treatment options as well.

But Won't the Feds Sweep In and Arrest Everyone?

That also depends--this time on how high we are on Jeff Sessions' shit list. Arguably, fairly high--this vile administration has not shied away from attempting to penalize us for our sanctuary city policy--but having a concentrated DEA presence at a municipality might require more energy than the DOJ is willing to spend on a few folks addicted to opioids, with the possible lack of enthusiasm on the part of federal district judges (I'm not sure this is true--Mona Lynch's work has shown judges with a great appetite for draconian sentencing of drug offenders with microscopic quantities, but her book does not cover Northern California.)

What's important to keep in mind, though, is that our status vis-á-vis the feds is the same whether or not there's a state law kosherizing the safe injection site. Possession of narcotics is a federal offense whether or not sanctioned by the state, and we obviously do not have the kind of understanding we used to have with the Obama administration about proper federal priorities in this regard. Even had Brown signed the bill into law, Sessions and the DEA would be able to sweep in, arrest people, and charge them federally with drug laws. Nor do I think the lack of a state law is likely to make them hungrier for these kinds of prosecutions--I think they abhor our state and our city with comparable ferocity (this, by the way, makes Brown's veto even more puzzling.)

Can Jerry Punish Us for Going Through With It?

Theoretically, yes. There is no realistic scenario in which state law enforcement descends upon San Francisco and arrest safe injection patients; for one thing, they would have to be prosecuted in San Francisco absent a change of venue motion. There is, however, the possibility of monetary sanctions or withholding of state funds. But it's hard to see Brown committed to punish San Francisco for going through with this. He has bigger battles to wage in the month he has left in office.

Should We Try Again After November?

DEFINITELY. I think Gavin Newsom will be open to this idea. He has been consistently pro-legalization in the marijuana context and might sign this into law. He is also advocating for an openly anti-Trump position at the gubernatorial mansion, and sticking a thumb in the eye of Trump by approving this plan statewide might play into his symbolic resistance to the feds.

Bottom line: Activists, do not despair. There is plenty we can do to win both this battle and the overall war against the war on drugs.

CCC Voting Endorsements in Upcoming San Francisco Election

San Franciscans go to the ballot boxes on June 5. Here are the CCC blog endorsements for this election:

SAN FRANCISCO MAYOR
We utilize a 1-2-3 ranked choice vote. My #1 choice is, without any reservations, Mark Leno. I've known Mark as an assemblyperson and a senator fr a very long time, especially through his activities at the Public Safety Committee. He has a pragmatic and compassionate approach toward crime control and vast experience in handling a variety of issues, and what's more, he knows how to create coalitions - a very important skill in our city. His politics, and those of Jane Kim, align, but I think he brings to the role experience and cohesion that make him the superior candidate.

#1 Mark Leno
#2 Jane Kim

STATE PROPOSITIONS
Prop 68: $4B Bond for Parks, Drought Protection, Climate Adaption - Yes
Prop 69: Require Diesel Tax to Be Spent on Transportation-Related Items - Yes
Prop 70: Give Republicans & Corporate Democrats Power on Cap’n’Trade Funds - No
Prop 71: Delay Effective Date of Ballot Measures Until All Ballots Are Counted - Yes
Prop 72: Rainwater Capture Systems Won’t Trigger Property Tax Assessments - Yes

REGIONAL MEASURES
Regional Measure 3: Raise Bridge Tolls $3 Over 7 Years to Fund Transportation Projects - Yes

LOCAL PROPOSITIONS
Prop A: Authorize Public Utilities Commission to Issue Clean Energy Bonds - Yes (of course.)
Prop B: Commissioners with conflicts of interest must quit these jobs before becoming political candidates for Board of Supervisors - Yes (this is just sensible, clean politics)
Prop C: Commercial rent tax for child care and early education for all - Yes. Sensible proposition and laudable goal.
Prop D: Commercial rent tax for housing - No. This sounds like a good idea, but the proposition itself is not very sound and would support very little housing.
Prop E: Upholding the ban on flavored tobacco products - Yes. You've probably seen the ads around town stating that "prohibition doesn't work." They are, of course, funded by Newport, the biggest maker of menthol cigarettes. This is a facet of prohibition that exists even in regulatory schemes: these flavored products tend to appeal particularly to teens, which is a segment of the population that needs special protection from tobacco and its harms. Even in Prop. 64, which legalized marijuana, we retained prohibitions and crimes for selling to minors. For more on the tobacco companies' stubborn fight against warning the public of their deadly products, read Siddhartha Mukherjee's excellent book The Emperor of All Maladies.
Prop F: This is crucial: It offers a right to counsel for tenants facing eviction. Sometimes this is a fate worse than what the criminal justice system could dish at you, and civil Gideon rights make a lot of sense. Yes.
Prop G: Parcel tax to offer a raise for teachers. Yes.
Prop H: The San Francisco Police Officer's Association (POA) is strongly pushing this measure, which would give them control over tasing policies, essentially allowing them to establish regulations that will allow San Francisco police to use a taser on someone who is unarmed and poses no immediate physical threat, or on someone who disobeys the police due to mental illness. Vote No. Tasers are extremely dangerous and unhealthy, which is why our Chief of Police, our District Attorney, and our Public Defender oppose the measure.
Prop I: A proposition requiring that San Francisco not steal sports teams from other cities. Do what you want, who cares.

STATE OFFICES
Governor: Gavin Newsom. I will not apologize for this. Newsom is a solid choice with lots of experience in politics, and given that California will be opposing Trump in and out of court, experience and backbone is more important than political purity.
Lieutenant Governor: Gayle McLaughlin
Secretary of State: Alex Padilla
Controller: Betty Yee
Treasurer: Fiona Ma
Attorney General: Dave Jones
Insurance Commissioner: Ricardo Lara
Board of Equalization, District 2: Malia Cohen

FEDERAL OFFICES
U.S. Senator: Kevin de León, who is taking a brave, strong position against the Trump Administration and its Nazi bans and policies. (I've heard valid points in support of Diane Feinstein, and I think that would also be a reasonable choice here: experience is arguably very important in the situation in which we find ourselves.)
Congress, District 12: Nancy Pelosi
Congress, District 14: Jackie Speier

STATE LEGISLATURE
State Assembly, Districts 17: No Endorsement
State Assembly, Districts 19: Phil Ting

JUDGES

Good arguments on both sides of this one. I was initially inclined to support the defense attorneys running for judge:

Superior Court Judge, Seat 4: Phoenix Streets
Superior Court Judge, Seat 7: Maria Evangelista
Superior Court Judge, Seat 9: Kwixuan Maloof
Superior Court Judge, Seat 11: Niki Solis

It's important to mix things up on the bench, and judges with public defender backgrounds are woefully rare. We need people on the bench who come from the opposite end to dilute the prosecutorial groupthink that prevails there.

But folks who are familiar with the sitting judges remind me that just because something makes political sense in general does not mean it is relevant on the particular. The way to diversify the judiciary is to elect defense attorneys in the first place, not to replace folks that might not necessarily be the ones that need replacing. So, consider your options.

Which brings me to another judicial issue. This is hugely important.

I'd like to add a word here on the Santa Clara ballot. As many readers probably know, there's a huge effort there to recall Judge Persky because of the much publicized Brock Turner sentence. This is a cynical effort to exploit #metoo sentiments and our distaste for Turner to unseat a fair and balanced judge who has followed probation recommendations and who does not discriminate against defendants of color (we know; we checked his record.) Scaring judges with public mobbing yields only one result: harsher sentences, and the first people in line to suffer are defendants of color that look nothing like Brock Turner. This is pointless virtue signaling and identity politics on steroids, designed to appeal to well-meaning but misinformed voters, and while it purports to be about feminism and equality, its outcome will be the exact opposite. Vote on the facts, not on hype and mob hysteria. VOTE NO ON THE RECALL. SUPPORT JUDGE PERSKY.

SCHOOL OFFICES
State Superintendent of Public Instruction: Tony Thurmond

No Big Surprises: Deportation Law Triggered by Criminal Convictions Declared Vague

Today, the Supreme Court decided Sessions v. Dimaya, in which the respondent appealed his deportation. It is an interesting decision both legally and politically.

The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. The definition of "aggravated felony" includes several enumerated crimes, and also a residual definition of a "crime of violence", which reads as follows:

“(a) an offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Dimaya, a documented immigrant from the Philippines, had two convictions for burglary, neither of which involved violence. Nonetheless, immigration authorities found that the convictions satisfied the "aggravated felony" residual clause, and therefore triggered automatic deportation.

Today, SCOTUS struck down the definition as unconstitutionally vague. Justice Kagan, reminding us that the court applies "the most exacting vagueness standard. . . in removal cases", relied on Johnson v. United States to argue that the law in its current form does not provide sufficient warning about deportation consequences of criminal convictions.

Also important is the fact that Justice Neil Gorsuch, Trump's appointee to the Supreme Court, voted with the four liberal Justices to vacate the law. While newsworthy, this is hardly a surprise for those familiar with Gorsuch's record on criminal justice. He has publicly and consistently spoken against the abundance of criminal laws on the books and his position on overcriminalization and vagueness was well known at the time of his appointment.

Moreover, today's decision relies on Johnson, a pro-defendant decision on a similar issue authored by Justice Scalia, also a conservative who would side with defendants in cases involving overcriminalization and vagueness.

While encouraging and fair, today's decision is hardly surprising... except, perhaps, at the White House, where consistency of opinion is valued less than dogged personal loyalty.

ICE Agents Enter Santa Clara Jail

About a week ago, the Chronicle broke this story:

The Santa Clara County Sheriff’s Office allowed federal deportation officers to enter the jail it operates and interview four inmates this month in violation of the agency’s pro-immigrant sanctuary policies, officials said. 

The interviews occurred March 7 and 8, around the time that U.S. Immigration and Customs Enforcement officers visited San Francisco County Jail and interviewed an inmate there in a breach of the city’s sanctuary rules, which restrict local cooperation in deportation efforts. 

That incident prompted an apology from San Francisco Sheriff Vicki Hennessy. But while the recent ICE forays into the jails expose the growing tension between federal immigration authorities and many California leaders, the content of the interviews — and the potential consequences to the inmates — remains unknown. 

Santa Clara County Sheriff Laurie Smith, in a statement to The Chronicle, said members of her staff “mistakenly” let ICE officers into the jail. After learning of the incident, she said, the office “reevaluated and strengthened the clearance procedures in which all law enforcement agencies are permitted to enter our facilities.”

This incident raises some interesting Tenth Amendment issues, which are of course in the news almost daily. We all know that immigration is within the provenance of the feds and not a state matter. But what this actually means, in terms of the broad range between cooperation and obstruction, largely depends on who you ask. Just a few days ago, our fascist-in-chief recurred to his usual mode of spewing bile from his seeping id, Twitter, to complain that "something should be done" about Oakland Mayor, Libby Schaaf, who warned her constituents about an upcoming ICE raid (most of whom, by ICE spokesperson's own admission, were peaceful Oakland residents with no records--he was asked to lie about this and resigned his position as a consequence.) Whether what Ms. Schaaf did amounts to obstruction is debatable: our xenophobic administration would claim that it does, I would claim that it does not.

But what about the Santa Clara jail? On a subsequent ICE visit, the federal agents were denied entry into the jails, a corrective move corresponding to the Sheriff's statement that their entry was a "mistake." In times of darkness, uniformed goons depend on their uniforms and badges to scare people, and that can include local authorities, into submission. This should be an object lesson for every Sheriff in California.

Prosecutors in Orange County Sued for Obtaining Unlawful Confessions

More distressing news from the OC. The Guardian reports:

Prosecutors and sheriff’s deputies in California’s Orange County used jailhouse informants in an extraordinary and long-running scheme to illegally obtain confessions from criminal defendants, the American Civil Liberties Union (ACLU) is alleging in a new lawsuit. 

The suit, filed early Wednesday, alleges that the district attorney’s office and sheriff’s department in the suburban county south of Los Angeles routinely employed prisoners – including hardened gang members – as informants and used “threats of violence to coerce confessions” from defendants, violating their rights to an attorney. 

The ACLU cited a mountain of evidence, amassed in criminal cases over the past five years, that prosecutors obtained material illegally, suppressed parts favorable to the defence, and sought to cover up the existence of the scheme. 

“For 30 years, the Orange County sheriff’s department and district attorney’s office have been operating an illegal informant program out of the jails,” the ACLU lawyer Brendan Hamme told the Guardian. “They’ve used it to coerce information from defendants, including with threats of death, and at the same time they’ve been systematically hiding evidence of that program. These sorts of tactics are offensive to basic constitutional principles and ethical duties.”

The sensitivity of using jailhouse informants is well known and well documented. Whether the choice of this dubious, and often unreliable, method for obtaining information is malicious or attributable to tunnel vision, it raises very serious questions about dereliction of duty on the part of those who have the most power in the criminal justice system.

CA Bar Hangs Red Scarlet Letters on Its Members

I just saw this absolutely horrible story on the Mercury news. It's ridiculously headlined, "Is Your Lawyer a Crook?" And goes on to tell us:

What do you call up to 10 percent of lawyers in California? 

Convicted criminals. 

And that’s no rotten-lawyer joke. 

That’s the eye-popping new estimate by the agency that licenses them.
Of California’s 190,000 active attorneys, as many as 19,000 may have unreported criminal activity, from DUIs to more serious offenses, according to the State Bar of California. 

For the first time in California, all active lawyers will have to submit to having their fingerprints live-scanned or taken the old-fashioned way rby April 30 of next year under the plan the state Supreme Court is expected to approve in the coming weeks. The prints will be fed into the state Department of Justice’s database, and previous convictions will be reported to the Bar — as well as all future arrests. 

“If you have an attorney convicted, let’s say of fraud, you would want to know it,” said Leah T. Wilson, the Bar’s executive director, adding that the proposal evolved as Bar starts to “pay more attention to our public protection mission.”

Gosh, it's almost as if Leah T. Wilson doesn't really believe that the California criminal justice system is tasked with... what's the word? Rehabilitation.

I speak from experience. As a law professor in California I teach hundreds of people every year. Given the high percentage of Californians that we incarcerate, inevitably some of my students have criminal records and have spent some time behind bar. As a consequence, they face an uphill battle with their moral character application, a component of their application to the bar. The application requires complete honesty, about expunged records as well as live ones, and undergoes an extreme degree of scrutiny, which people sometimes have to explain in letters and in hearings at the bar court. I've now testified in two bar trials and written four letters of recommendations on behalf of people with criminal records who want to be admitted or readmitted to the bar.

The bias, stigma, and ignorance--not just of the public, but of the bar itself--is breathtaking. At the bar trials in which I testified, I experienced what could only be described as a mediocre community theatre production of a morality tale. Grown people, who have matured and learned from their mistakes, have to recite their contrition. Parole and gubernatorial decisions to release people after decades of introspection and remorse are doubted and ridiculed. Skeletons are dragged out of closets to haunt people for mistakes they did as juveniles.

Honestly, after undergoing the tribulations of punishment in California, sometimes the wringer of repeated parole hearings (and gubernatorial reversals,) and on top of that, the moral character ordeal at the bar, anyone left standing is bound to be so much more thoughtful, reflective, and humble, than various so-called "moral characters" without a criminal record. Anyone with a substance abuse problem would have had time to sort it out and would be so much more mature about it than some so-called "moral character" who is still drinking or snorting, but whose record is squeaky clean. I would so much prefer to have someone from the former category as my lawyer than someone from the latter. But the general public, who is woefully misinformed by articles such as this one about who is a "crook" and who isn't, would not necessarily make that choice, and that is a horrible injury to do to someone, not to mention a horrible privacy violation.

This also raises the issue of the elitism of the profession. We disproportionately incarcerate folks of fewer means and darker skins. As a consequence, our population of lawyers with criminal records is likely to include a disproportionate percentage of people who came to the profession from humble backgrounds. If we also put additional barriers on their gainful employment in the way of revealing their personal and private histories to potential clients, we are just deepening that elitism.

The problem, of course, is not only with this atrocious decision of the CA bar to injure its own members; it is with the kind of journalistic reporting that makes this into salacious gossip material. Who the hell uses the word "crook" as a euphemism for a criminal record, like something out of a Damon Runyon short story? And who the hell uses lawyer jokes to talk about people who have gone through so much to redeem themselves and find a professional future?

Does rehabilitation actually mean anything to the bar, when it decides to admit folks back to its ranks and then backstabs them by reducing their employment prospects? This is not a move that "protects the public." This is elitism, bigotry, and ignorance.

Parkland Shooting: A Month's Retrospective

It's been a month since the horrific shooting at Parkland, and today students nationwide are walking out in memory of the victims and in protest of state and federal inaction on gun control. In preparation for a special report on KTVU this afternoon, I'm reviewing what we know about the efficacy of various methods to prevent school shootings, followed by a critical assessment of the Florida, federal, and (for good measure) California gun legislation.

As of 2014, roughly 371 million firearms were owned by U.S. civilians and domestic law enforcement. Estimates on household guns are that 36%-49% of American households have guns, or 23%-36% of adults. Sixty percent of gun owners are motivated by the need to protect themselves and their households against crime.

Roughly 16,459 murders were committed in the United States during 2016. Of these, about 11,961 or 73% were committed with firearms. According to President Obama's commissioned report on research into gun violence causes:

“Defensive use of guns by crime victims is a common occurrence, although the exact number remains disputed….”

“Almost all national survey estimates indicate that defensive gun uses by victims are at least as common as offensive uses by criminals, with estimates of annual uses ranging from about 500,000 to more than 3 million….”

“[S]ome scholars point to a radically lower estimate of only 108,000 annual defensive uses based on the National Crime Victimization Survey,” but this “estimate of 108,000 is difficult to interpret because respondents were not asked specifically about defensive gun use.”

“Studies that directly assessed the effect of actual defensive uses of guns (i.e., incidents in which a gun was ‘used’ by the crime victim in the sense of attacking or threatening an offender) have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies….” (source)

There is a sort-of-controversy among gun scholars about the effectiveness of gun ownership on crime control. By sort-of, I mean that John Lott (author of the classic More Guns, Less Crime) claims that gun ownership has a deterrent effect. Pretty much everyone else disputes these claims and finds Lott's methodology problematic. Specifically, a recent study by Stanford's John Donohue III found the exact opposite. You'll find the full paper here, and here's the abstract:

The 2005 report of the National Research Council (NRC) on Firearms and Violence recognized that violent crime was higher in the post-passage period (relative to national crime patterns) for states adopting right-to-carry (RTC) concealed handgun laws, but because of model dependence the panel was unable to identify the true causal effect of these laws from the then-existing panel data evidence. This study uses 14 additional years of state panel data (through 2014) capturing an additional eleven RTC adoptions and new statistical techniques to see if more convincing and robust conclusions can emerge. 

Our preferred panel data regression specification (the “DAWmodel”) and the Brennan Center (BC) model, as well as other statistical models by Lott and Mustard (LM) and Moody and Marvell (MM) that had previously been offered as evidence of crime-reducing RTC laws, now only generate statistically significant estimates showing RTC laws increase overall violent crime and/or murder when run on the most complete data. A LASSO analysis finds that RTC laws are always associated with increased violent crime. To the extent the large increases in gun thefts induced by RTC laws generate crime increases in non-RTC states, the panel data estimates of the increase in violent crime will be understated. 

We then use the synthetic control approach of Alberto Abadie and Javier Gardeazabal (2003) to generate state-specific estimates of the impact of RTC laws on crime. Our major finding is that under all four specifications (DAW, BC, LM, and MM), RTC laws are associated with higher aggregate violent crime rates, and the size of the deleterious effects that are associated with the passage of RTC laws climbs over time. Ten years after the adoption of RTC laws, violent crime is estimated to be 13-15 percent higher than it would have been without the RTC law. Unlike the panel data setting, these results are not sensitive to the covariates included as predictors. The magnitude of the estimated increase in violent crime from RTC laws is substantial in that, using a consensus estimate for the elasticity of crime with respect to incarceration of .15, the average RTC state would have to double its prison population to counteract the RTC-induced increase in violent crime.

In other words: more right-to-carry is correlated with more violent crime. Now, keep in mind that correlation does not equal causation, and there are cultural differences between states that can't be captured even by the most careful model, but this team has also found longitudinal correlations, which bolsters the causal claim. This study is currently being presented as evidence in a lawsuit brought by the NRA against the state of California, which bans assault rifles. The lawsuit, which was filed at the Superior Court in Fresno, claims that the burdens on the path to purchasing an assault rifle infringe upon people's privacy and Second Amendment rights. California requires background checks for all firearms transactions, including those conducted between private individuals; these transactions do not require background checks according to federal legislation.

California is at the more controlling end of the gun legislation spectrum. In general, states fall into one of two categories: “shall-issue” states, where concealed carry permits are issued to all qualified applicants, and “may-issue” states, where applicants must often present a reason for carrying a firearm to an issuing authority, who then decides based on his or her discretion whether the applicant will receive a permit. The latter category is quite diverse, and includes states, such as Connecticut, which effectively act as shall-issue states, and states such as New Jersey, which effectively act as no-issue states.

As of July 2016, 42 states had "shall issue" laws, including Florida. Eight states had "may issue" regimes: California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and New York.

Florida became a shall-issue state on October 1, 1987. To carry a gun in Florida, one needs to be 21 years of age or older, have clean criminal/mental health records, and complete a firearms safety/training course. As of June 30, 2016, Florida had issued 3,173,630 permits and had 1,598,213 active licensees, constituting roughly 11% of the state’s population 21 years of age or older. The revocation rate is minuscule: From the outset of the Florida right-to-carry law through June 30, 2016, Florida has revoked 10,909 or 0.3% of all issued permits. The vast majority of revocations were for crimes committed after licensure.

Following the Parkland massacre, the Florida legislature adopted a new gun statute, titled the Marjory Stoneman Douglas High School Public Safety Act. The new law authorizes the awarding of grants through the Crime Stoppers Trust Fund for student crime watch programs; establishes the Office of Safe Schools within the Department of Education; provides that each sheriff may establish a Coach Aaron Feis Guardian Program and appoint certain volunteer school employees as school guardians (who can carry firearms); prohibits people who have been adjudicated mentally defective or been committed to a mental institution from owning or possessing a firearm until certain relief is obtained (there is no correlation between mental illness and school shootings;) prohibits a person younger than a certain age from purchasing a firearm; prohibit specified acts relating to the sale and possession of bump-fire stocks; and creates the  Marjory Stoneman Douglas High School Public Safety Commission within the Department of Law Enforcement. These funds and grants are to be funded to the tune of $400 million in appropriations. 

Essentially, what this boils down to is some restrictions on gun licensure based on mental health and age, and permission for some school employees to carry guns in schools. The latter aspect of the law is the most controversial, as several recent anecdotes show considerable potential for accidents and problems. If anything, *less* guns in school, rather than *more*, would be a better idea. The genesis of this "school guardian" idea lies in the notion that guns in the hands of good guys can protect against bad guys. But this premise is rather questionable, and might apply differently to different victims and different situations. A meta-research conducted in 2004 shows that the availability of guns increases, rather than decreases, the risk of homicide, and this was confirmed in a RAND study from 2018.

On the federal level, no big surprises: after some talk about increasing background checks and raising the age for gun licensure, Trump seems to have caved to the NRA and abandoned gun control initiatives.

I would be remiss in ending this review without inviting you to watch KTVU today at 4pm for the conversation about this, and also expressing my admiration of the Parkland high school students who are actively pursuing change. My heart breaks at the fact that we are failing our children, and at the fact that they are battling a particularly obtuse federal and state governmental cadre with particularly obtuse and uninformed views about gun control.

From "Nothing Works" to "Something Works"

This morning, the Guardian is covering a great vocational program in Southern California called Manifest Works, "an immersive workforce development and job placement organization; we turn real-world experience into learning opportunities for those impacted by foster care, homelessness, and incarceration." From the Guardian story:

One of the most common entry points into the entertainment industry is as a production assistant, or PA. The PA might get coffee, run electrical cords, or break down the set; the job’s chameleonic nature makes it a behind-the-scenes linchpin. Manifest Works, a not-for-profit based in Los Angeles, ties the hustle of a PA job to its training program for people affected by incarceration, homelessness and foster care. Some participants had been out of prison as little as three months. 

Williams spoke softly and deliberately, rocking back and forth in his crisp white sneakers. He applied to the program after an alum recommended him. He was doing security before that. “Not what I wanted to do with my life,” he said. “This is giving me an opportunity to pursue something closer to what I wanted for myself.” 

He still wasn’t sure what on-set role he’d like most. “Everybody wants to be the director,” he said, knowingly. 

California, as the country’s most populous state, has one of its highest prison populations, and the highest population of people on probation or parole. It is also home to the multibillion-dollar entertainment industry. 

A 2017 study in the Economic Journal evaluated the career trajectories of 1.7 million people released from California prisons between 1993 and 2008, and concluded that, while employment curbs recidivism among the released, the quality of opportunities may be more important than the quantity available. 

Sixty-three people have completed the Manifest Works program since it began in fall 2014. Many have established steady freelance careers doing production work. No alum has gone back to prison.

What do they mean by "quality of opportunities?" The study referred to in the Guardian story is by Kevin Schnepel, an economist from the University of Sydney and you can find it here. The abstract reads:

I estimate the impact of employment opportunities on recidivism among 1.7 million offenders released from a California prison between 1993 and 2008. The institutional structure of the California criminal justice system as well as location, skill, and industry-specific job accession data provide a unique framework for identifying a causal effect of job availability on criminal behaviour. I find that increases in construction and manufacturing opportunities at the time of release are associated with significant reductions in recidivism. Other types of opportunities, including those characterised by lower wages that are typically accessible to individuals with criminal records, do not influence recidivism.

This kind of careful study is exactly what we need to counter the despair of the "nothing works" legacy. Because of the dramatic cuts to rehabilitation and vocational programs, which I discuss in Cheap on Crime, opportunities in California prisons really vary. San Quentin benefits from its proximity to the Bay Area, which guarantees an influx of volunteers--but are they programs they offer really effective? More importantly, why are opportunities in construction and manufacturing more important in curbing recidivism than opportunities in other fields, such as service?

A few things come to mind: construction and manufacturing are opportunities that structure one's day in addition to providing an income. It's easier to stay the course when you have to be somewhere and perform a job that shows tangible improvement (i.e., putting together a kitchen or producing X gadgets.) They are also jobs that, in the right setting, can provide camaraderie, and have fairly strong unions. But who knows if this is true? To understand why some job opportunities are more effective, we'd need to interview formerly incarcerated folks who are employed in these jobs and ask them about their day and their thoughts about this.

In any case, it's important for prisons to follow up on studies such as Schnepel's and on the success of programs such as Manifest Works. Resources are limited, and they need to be invested where they'd yield real results.