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.
Tuesday, October 23, 2018
Thursday, October 11, 2018
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,
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.
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.)
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 theStanford 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
--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.
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
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.
--The Buddha
Wednesday, October 10, 2018
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.
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.
Subscribe to:
Posts (Atom)