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.