Friday, June 14, 2019

When Cheap on Crime Becomes Mainstream: Santa Clara to Divert Nonviolent Drug Offenders

Chapter 3 of Cheap on Crime opens with a 2009 headline from the San Francisco Chronicle, which reads, "Many Contra Costa Crooks Won't Be Prosecuted." Who are said "crooks"? D.A. Kochly explains: "[B]eginning May 4, his office will no longer prosecute felony drug cases involving smaller amounts of narcotics. That means anyone caught with less than a gram of methamphetamine or cocaine, less than 0.5 grams of heroin and fewer than five pills of ecstasy, OxyContin or Vicodin won't be charged."
This was viewed with suspicion and scorn at the time; Kochly lamented the lack of funds and said, "We had to make very, very difficult choices, and we had to try to prioritize things. There are no good choices to be made here. . . It's trying to choose the lesser of certain evils in deciding what we can and cannot do."

Compare that to today's headline: The Mercury News informs us that "Santa Clara County DA will stop filing charges in most minor drug cases." The policy is basically the same as the one from Contra Costa ten years ago: "the aim of the change is to keep one- and two-time offenders out of the court system, diverting them instead to drug treatment programs and reserving bandwidth for more serious addiction cases that cross over to become community nuisances or public-safety concerns." Again, costs are cited, in the grand humonetarian fashion: "the policy shift also cuts out an exponentially larger number of corresponding court dates, potential bench warrants and jail stays and thousands of work hours for judges, attorneys and police officers. All of those efforts go to address offenders that everyone agrees might have addiction issues but do not pose a threat to public safety."

Same news, different spin. What used to be regarded with scorn at the very beginning of the Cheap on Crime era has now gone mainstream. Note how easy and acceptable (and non-radical!) it is for a prosecutor (!) to cite cost expenses (!) as a justification for diverting nonviolent offenders into a public health treatment silo.

In many ways, this is the coda to Cheap on Crime: the ultimate success of the cost-centered rhetoric in normalizing the decarceration of nonviolent offenders. Years after recovering from the recession, the thinking patterns formed during the recession are here: marijuana should be legalized for revenue and so that our resources can be spent on the "real" offenders; treatment and prevention are cheaper than punishment; crime rates are low, and therefore there is no risk to public safety. It's nice to see this trend continue to play out on the state level, at the heart of the consensus, while War on Drugs dinosaurs rage in the White House.

Thursday, June 13, 2019

Is Race "Baked" into the Criminal Justice System?

Today, San Francisco D.A. George Gascón announced a new program: race-blind prosecutions, aided by machine learning. The San Francisco Chronicle reports:
“When I first became district attorney, one concern was to understand how the criminal justice system impacts people of color disproportionately,” Gascón said. “I wanted to see if there was anything in our practice that we could improve.”
The district attorney decided to reach out to the Stanford Computational Policy Lab, which already had many of the tools available to help create the artificial intelligence.
Racial disparities in San Francisco’s criminal justice system are driven by downstream factors like arrests, Gascón said, and his office tries not to exacerbate the disparities. Even so, he wanted to remove any possibility for implicit bias in his office to ensure “the purity of the decision isn’t questionable.”
The system, Gascón said, will create a model that other prosecuting agencies around the country can use, and Stanford has agreed to publicly release the technology at no cost.
The technology organizes a police report and automatically redacts the race of the parties involved in the incident. It also scrubs the names of officers, witnesses and suspects, along with locations and neighborhoods that could suggest a person’s race.
In the complicated world of artificial intelligence, the technology is relatively simple, said Alex Chohlas-Wood, deputy director of the Stanford Computational Policy Lab. It uses pattern recognition and Natural English Processing to identify which words in a police report should be redacted and fills them in with a general description.
The digital tool uses machine learning, so it can make decisions without human intervention.
The district attorney’s office will start using the tool in the 80% of cases that come in through general intake. Cases like homicides, domestic violence and other specialized units will not immediately use the technology.
During the first review process of general intake cases, prosecutors do not look at evidence like videos or pictures that would reveal a person’s race. The case then goes to a second review where a prosecutor makes a decision on whether the evidence is strong enough to move forward with charges.
If a prosecutor decides to reverse a charging decision between the first and second review, when they will likely learn the race of the parties, he or she will have to document the reason why it’s justified in a report, Gascón said.
The tool, he said, will help streamline charging decisions by expediting the ability to review police reports and quickly analyze the information.
The New York Times adds:
The only information prosecutors will initially have access to is an officer’s incident report, which generally includes the reason someone was stopped before an arrest, evidence that a crime was committed, witness statements and anything a suspect might say.
Only after assistant district attorneys make a preliminary decision about charges would they be permitted to access other information, including race and other demographic details, body camera footage and photos. In each case, regardless of the initial charging determination, all of the evidence will ultimately be reviewed, prosecutors said. If a prosecutor comes to a different conclusion between the first and second steps, that will be recorded and compared to historical data. Prosecutors will also be required to explain what changed their minds, and those patterns will be studied, the office said.
The decision to try and examine whether biases are at the root of differential charging rates for different races is laudable, but I suspect it will do far better at catching explicit than implicit bias. Here's why.

It's true that, in some cases, race works in isolation to create a mental picture of the situation. This is proven by the classic audit study, in which identical resumés are submitted for a job, with only the name of the applicant changed ("Lakisha" or "Jamal" versus "Emily" or "Greg"). There are now enough studies of this ilk to show that the name alone impacts employability. But note that the application does not reveal the applicant's race; the name implies the applicant's race. Similarly, in a race-blind prosecution, even with the names and locations removed, prosecutors are likely to implicitly (or explicitly) deduce the race of the suspect from the circumstances of the offense.

The reason for this is simple. As research has shown since the 1960s, part of acquiring professional expertise as a prosecutor or a defense attorney consists of developing sociological "scripts" of the typical ways in which crimes are committed. This means, for example, that particular types of burglaries might suggest to a criminal lawyer that the suspect is probably addicted to drugs, and that particular scenarios of sexual assault might suggest to a prosecutor that the victim is probably a sex worker.

It is not difficult to imagine race playing out as one of the factors an experienced prosecutor or public defender will deduce from ostensibly race-blind facts. To illustrate this, think about the 100:1 crack/powder cocaine sentencing disparity (now diminished to 18:1 through the Fair Sentencing Act). One of the main arguments against the disparity was that the seemingly neutral rule, which simply targeted the type of drugs used, had the effect of disadvantaging African American defendants. Why? because people of different races had different patterns of using drugs. The association of African Americans with crack cocaine and white Americans with powder cocaine is not just stereotypical--it is factually true often enough that a stereotype can confidently build: in an extensive study of four cohorts (2009–2012) of the National Survey on Drug Use and Health (NSDUH) in all 50 states and District of Columbia, "[w]hile blacks were at particularly low odds for powder cocaine use (AOR=0.33, , before controlling for other factors, blacks were actually at increased risk for crack use." Use fancy Stanford computers to remove race and location of drug using suspects, and experienced San Francisco prosecutors will still assume that the crack user is black and the powder user is white--and what's more, most of the time they will be correct.


This ability to imply a person's race from the circumstances surrounding the crime goes beyond cocaine, though it does not always reflect reality. People often assume that serial killers are predominantly white (they're wrong in the sense that African Americans are overrepresented by a factor of 2:1 among serial killers; but if you run into a serial killer in an alley, he's still more likely to be white, simply because most Americans are white). People often assume that child molesters are predominantly white and that rapists are predominantly black (the realities are much more complicated). Marijuana arrests tend to target black neighborhoods and populations, though the realities of who uses marijuana are much more complicated. It is unlikely that a prosecutor will assume that a gang shooting over a drug dispute involves white suspects, and she will often enough (but not always) be right.  In other words, racialized perceptions are baked into the sociological narratives of crime that the culture feeds us, and prosecutors and defense attorneys are no exception. Assumptions about the race of crime perpetrators (and, for that matter, victims) are not always borne by empirical evidence, but they are true often enough that prosecutors will start making generalizations, and redacted names are not going to make these generalizations go away.

Moreover, redacting neighborhoods is not going to make much of a difference, because county prosecutors practice law in an area they are already familiar with from previous cases. Go to a D.A.'s office in any town and ask where street crimes are predominantly committed. Odds are the prosecutors will be able to pinpoint particular neighborhoods in which things happen--that's how the police addresses "hot spots", and that's how street-based sex workers know where they might find clients and where police raids are likely to occur. Criminal procedure students know that a "high crime area", which has special rules about "reasonable suspicion", is often a high-arrest area, a high-poverty area, and a high-people-of-color area (this is partly why underenforcement and overenforcement often go together). In the context of San Francisco, the fancy Stanford machine can remove the location of a gang shooting from the facts of the case, and still the D.A.'s office is unlikely to assume that it happened in Noe Valley or Pacific Heights.

In short, race, racialized behavior, and racialized assumptions about behavior are so deeply embedded into the American fabric that it is hard to imagine any process that strips race and location from a scenario without eliminating the basic facts of the scenario. The very facts and circumstances of a crime form a picture in the prosecutor's mind, and because prosecutors live in our very racialized society and are, like all of us, a product of our very racialized culture, the picture is likely to include race. Not because anyone is racist--or at least, no more or less racist than the rest of us--but because that is how heuristics and biases work. Whether this is an interesting aspect of cultural diversity or an unfortunate byproduct of differential opportunity structures depends on the context. But what it means is that this well-intended measure will not capture, or remedy, the natural tendency to make racial assumptions.

Friday, June 7, 2019

Madam Secretary and How Things Could Be: Democracts, What Is your Criminal Justice Agenda?


The wonderful CBS series Madam Secretary, whose fifth season is out, features Téa Leoni as Elizabeth McCord, a Secretary of State in a parallel universe in which responsible adults with nonpartisan interests are at the national helm. It is almost difficult to watch the series against the backdrop of the news; episodes in which the State Department team races to find humanitarian solutions for climate refugees collide with the Trump Administration rescinding English, soccer, and legal aid for migrant children in government custody. In real life, throwbacks to Nixon and Reagan proliferate, dragging us kicking and screaming into the stone age in which the war on drugs was thought to be a good idea; on the show we sign nuclear weapon treaties and command the respect of the civilized world.

Among the many interesting things about the show is its verisimilitude in the face of changing political realities. A moderate Republican President uncomfortable with the isolationist, MAGA-like foreign policy espoused by his challenger decides to run as an independent... and wins. Demographically and ideologically diverse staffer teams come together to find creative solutions for international problems. Lurid scandals do not control the news cycle (or, if they do, we don't see them.) Consummate professionals in the public eye have happy, functional marriages with happy, well-adjusted children. Oh, and a series of real-life reasonable, accomplished, experienced Secretaries of State--Madeline Albright, Colin Powell, Hillary Clinton--GUEST STAR in one of the episodes. In short, if you want to escape to an alternative universe, this show's got your number.

Here's what is interesting for our purposes: the Secretary of State (an accomplished, well-informed middle-class white woman from an academic background, with a strong record of achievements at the federal level--sound familiar?) prepares to run for President, she is asked by her campaign advisor, Mike B., to turn her gaze toward domestic issues. What's the first one that comes to mind for her? Criminal justice reform! Inspired by the plight of a poor single mother she meets while on jury duty, Secretary McCord applies her international perspective to U.S. prisons, reminding Mike B. (and the audience) that we have plenty of work to do in that department before we join the civilized world.

If Madam Secretary is the reality we aspire to create on Nov. 2020, what do the Democrat challengers think about criminal justice reform? I've started to look at the candidates' websites and it seems like the criminal justice aspects of the campaigns need to be better fleshed out. I'm not particularly surprised these read like clichés from a public protest; after all, with the laudable and welcome public interest in criminal justice reform came oversimplification and misinformation, and these candidates are trying to appeal to people who think they understand mass incarceration and how to end it. Also, there's only so much that the federal government can do--most of the U.S. incarceration problem, together with access to court, bail, policing, and reentry policies, happens at the state and local levels. But even with the fairly slim issue lists we do have, a few themes emerge:

Everyone Loves Legalized Marijuana. Pretty much all platforms advocate for marijuana legalization, for the classic Cheap on Crime/bifurcation reason: "let's stop criminalizing people for smoking a joint so we can spend our energies on the 'real' criminals." Plenty of chatter, also, about "ending the war on drugs"; particularly well informed candidates, like Bernie Sanders, also argues for ending civil asset forfeiture. Nobody, however, talks about legalizing other drugs. The opioid epidemic is discussed as a health problem, but there are no calls for legalization in that respect--only for finding treatment options.

Sentencing Reform. A call to end mandatory minimums and, more generally, pursue "sentencing reform." These can be seen as a continuation of the Obama-Trump trend (this kind of bipartisan reform was the least disrupted Obama-era trend). Not a single peep from anyone except Buttigieg about death penalty abolition.

End Private Prisons. The candidates uniformly call for a divestment from private prisons, echoing Obama's largely-symbolic move to stop domestic incarceration of federal prisoners in private facilities. Not a word about the much wider practice of detaining immigrants in private facilities.

Tough on Criminals We Dislike. Democratic candidates are very clear on the sympathies their constituents have for people caught in the system, and therefore know that these sympathies do not extend to certain categories of criminals: cops who employ excessive force, domestic violence perpetrators, and white mass shooters. With respect to these categories, the reform call is reversed: candidates call for strengthening the Violence Against Women Act, to address police reform so that shootings are avoided, and to push for gun control reforms. Warren emphasizes the need to hold white collar criminals accountable.

I am curious to see whether these folks' fictional counterpart, Elizabeth McCord (will she run as an independent or as a Republican? The show shies away from the possibility that she might become a Democrat) adopts similar principles. It seems like we've pretty much settled on what the candidates imagine that their constituents want, probably with considerable justification.

Wednesday, June 5, 2019

Cruelty to Migrant Kids Is Not "Cheap on Crime"

The Washington Post reports this absolutely heartbreaking piece of news:

The Trump administration is canceling English classes, recreational programs and legal aid for unaccompanied minors staying in federal migrant shelters nationwide, saying the immigration influx at the southern border has created critical budget pressures. 
The Office of Refugee Resettlement has begun discontinuing the funding stream for activities — including soccer — that have been deemed “not directly necessary for the protection of life and safety, including education services, legal services, and recreation,” said U.S. Health and Human Services spokesman Mark Weber.
Since these days things that used to solidly reside in the "needless to say" category need to be explicitly said, I'll open with this: This is monstrous, gratuitous cruelty. And what is the justification?
Federal officials have warned Congress that they are facing “a dramatic spike” in unaccompanied minors at the southern border and have asked Congress for $2.9 billion in emergency funding to expand shelters and care. The program could run out of money in late June, and the agency is legally obligated to direct funding to essential services, Weber said.
Last week I spoke on a mini-plenary about dignity and austerity. The other presenters addressed issues such as takings, welfare cuts, neoliberal banking, and the like, in which "savings" are synonymous with, essentially, letting go of caring for the world's (or the country's) weakest population. Because in criminal justice things don't operate quite that way, I've had to explain that investing money in people in the context of criminal justice is not necessarily to their benefit, and often works to their detriment. The big exception to this statement, though, is rehabilitative programming: the dark side of the developments I discussed in Cheap on Crime (and on the plenary) is the continued trend to deeply cut rehabilitation programs.

Doing so, especially in the context of juvenile populations, is not a wise, "justice reinvestment move". Beyond being cruel, it is penny wise and pound foolish. Educated, physically active, nurtured children are far more likely to have a "stake in conformity", to use Hirschi's term. Are migrant kids deprived of the opportunity to learn the language most prominently spoken in their new country and, for heaven's sake, to play soccer, more or less likely to desire to be law-abiding, proud residents?

Contrast this horror with another piece of news: San Francisco sets out to eliminate its Juvenile Hall. Readers of Nell Bernstein's Burning Down the House, as well as anyone even minimally informed with the realities of juvenile confinement in California, will surely welcome this beneficial development, and look forward to a public health model of handling juvenile transgressions.

How Did Bay Area Cities Reduce Gun Homicides?

An interesting article in the Guardian discusses the impressive drop in gun homicides in the Bay Area. As San Francisco and other cities experience an increase in wealth (my decidedly nonscientific index is the presence of Teslas on the streets) we are also experiencing dramatic waves of homelessness and abject poverty (the article estimates 30,000 homeless people in the Bay Area; a few years ago the conservative estimate for SF alone was almost 7,000). So how did we manage to reduce gun violence? The Bay Area has seen a considerable decline in gun homicide. The map in the article observes that the trend was most pronounced for “gentrifying cities”—San Francisco, Oakland, and Richmond. Homicide rates dropped modestly in other places. The only significant uptick was in Stockton, which is facing bankruptcy.

How did this happen? The article opines:
There’s early evidence that local violence prevention strategies – including a refocused, more community-driven “Ceasefire” policing strategy, and intensive support programs that do not involve law enforcement at all – were a “key change” contributing to these huge decreases.

One of these programs is Operation Advance Peace, which was adopted in Sacramento following its success in Richmond. Also, the legacy of creative, ethical, community-minded policing espoused by previous Richmond Chief of Police, Chris Magnus (now in Tucson, AZ) is to be credited with much of this decline.

A side note: One of the things I like about the Guardian article is that, as opposed to much of the academic writing on this, it did not shy away from at least examining whether the decline in gun violence might have something to do with changing demographics in the Bay Area. Before everyone leaps to chastise me for asking, "what about black-on-black crime?" let me remind you that African Americans are not only disproportionately the victims, but the perpetrators, of violent crime in the United States. It is possible to state this fact (which is what it is) without espousing an essentialist, racist explanation ("that's just what they're like" or any variant of this noxious ideology): is it any wonder that years of deprivation, neglect, animosity, awful role models, and indifference create a cultural climate in impoverished neighborhoods in which gun culture can flourish? Does it come as a shock to you that "high crime" areas also tend to be low-income, high-POC neighborhoods, and that policing there is a mix of punitive overenforcement and community-oriented underenforcement? The same structural racism that produces differential enforcement also produces differential criminality. Nothing to see or say here that hasn't been noticed and said by radical realists or plain-old sociologists of delinquency. It's not fancy, postmodern, or ideologically pure, and it won't get me thousands of "likes" on twitter, but it does have the advantage of being true.

And no, the decline in homicides in the Bay Area is not exclusively (or even predominantly) because of white gentrification. The article explains:
In the past 10 years, tens of thousands of black residents have moved out of Oakland and San Francisco, as skyrocketing rents and housing prices have made the cities increasingly unaffordable. But in the region as a whole, the total number of black residents has remained steady, as the number of black residents living in the Bay Area’s outlying suburbs has increased, according to annual census estimates.
Keep in mind that homicide rates have gone down for the outlying suburbs as well, and you'll see that this is not just a by-product of changing demographics.

More Progressive Punitivism, the Manafort Edition: Conservatives, Maoists, and the SCUM Manifesto


Image result for manafort rikers This morning on Twitter, Shaun King took on the schadenfreude festival that surrounded the reports that Paul Manafort--perhaps the shrewdest collaborator with the Russians in the context of the 2016 election and an unscrupulous white collar crime offender--is going to be in solitary at Rikers. King said:

I couldn't agree more. This is one more example of the evils of progressive punitivism, which I discussed in this primer. No matter how many resistance-related hashtags are affixed to these expressions of joy, they are the opposite of revolution; rather than deeply upending the rationales of the punitive state, they consist merely of turning it around 180 degrees. Instead of torturing poor people of darker skin, we'll torture rich people of lighter skin. This is not reform; it's tribalism.

I've written two pieces on progressive punitivism so far. The first, based on my Not Your Typical Kavanaugh Opinion Piece, shows how some aspects of the #metoo movement feed into the most noxious aspects of progressive punitivism, namely the encouragemenet for people to marinate in victimization as a condition of being heard (forthcoming from JCRED). The second, based on this post, argues that the tendency to demonize everyone involved in failed criminal justice reform (particularly painting well-meaning people as racist) is ahistorical and harmful to the movement overall, and that it is much healthier for both academics and reformers to analyze people on their own terms (forthcoming from LSI). The third piece, which I'm working on now, is for the Punishment and Inequality conference at the University of Bologna. In this piece I try to unpack the intellectual roots of progressive punitivism and come to some surprising conclusions.

It turns out there is very little in the history of conflict and radical criminology that tackles the question, "whatever shall we do with the rich after the revolution?" Admittedly, much of the radical criminology paradigm consists of questioning the connection of crime with class; the oft-quoted maxim from Anatole France's The Red Lily talks about how ‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ To criticize how the law applies to the poor is to implicitly question how it applies to the rich, because criminalization and severity get their meaning from relativity and context. Critical and radical criminologists have highlighted areas in which the rich commit crime with impunity--white collar crime, environmental crime, state crimes, etc.--but save for, say, the post-Enron outrage, there's been very little to foreshadow the explosion of punitive sentiments on the left that we see today. Perhaps the exception is carceral feminism, which was foreshadowed in Catharine MacKinnon's writing; she seems to support this aspect of the #metoo movement, opining here that the online outrage and excoriation campaigns we see are an outcome of the incompetence of formal criminal law in addressing sexual harassment. For an even more extreme example of the antecedents of carceral feminism, see this passage from Valerie Solanas' SCUM manifesto:
SCUM will kill all men who are not in the Men's Auxiliary of SCUM. Men in the Men's Auxiliary are those men who are working diligently to eliminate themselves, men who, regardless of their motives, do good, men who are playing pall with SCUM. A few examples of the men in the Men's Auxiliary are: men who kill men; biological scientists who are working on constructive programs, as opposed to biological warfare; journalists, writers, editors, publishers and producers who disseminate and promote ideas that will lead to the achievement of SCUM's goals; faggots who, by their shimmering, flaming example, encourage other men to de-man themselves and thereby make themselves relatively inoffensive; men who consistently give things away -- money, things, services; men who tell it like it is (so far not one ever has), who put women straight, who reveal the truth about themselves, who give the mindless male females correct sentences to parrot, who tell them a woman's primary goal in life should be to squash the male sex (to aid men in this endeavor SCUM will conduct Turd Sessions, at which every male present will give a speech beginning with the sentence: `I am a turd, a lowly abject turd', then proceed to list all the ways in which he is. His reward for doing so will be the opportunity to fraternize after the session for a whole, solid hour with the SCUM who will be present. Nice, clean-living male women will be invited to the sessions to help clarify any doubts and misunderstandings they may have about the male sex; makers and promoters of sex books and movies, etc., who are hastening the day when all that will be shown on the screen will be Suck and Fuck (males, like the rats following the Pied Piper, will be lured by Pussy to their doom, will be overcome and submerged by and will eventually drown in the passive flesh that they are); drug pushers and advocates, who are hastening the dropping out of men.
What does this radical program of punishment, excoriation, required groveling and ceremonial apologies resemble? Unsurprising answer: Communist China's criminal law. While criminalization, tribunals, and harsh punishment were part and parcel of the cultural revolution, China didn't actually have an official criminal code until 1979. The Maoist authorities had drafted one, but Mao believed it unwise to codify a criminal law that later might restrain the party. Still, these notions of criminal law as embedded in politics characterized the eventual legislation. As Donald Clarke and James Feinerman argue in Antagonistic Contradictions: Criminal Law and Human Rights in China, the question of what constitutes a crime was nebulous in the criminal code of Communist China, and highly dependent on the perpetrator's location on the class food chain. As they explain:

The Criminal Law (CL) does not so much define which acts are punishable as prescribe what the sanctions shall be when relatively severe punishments are deemed in order. The definition of crime is accomplished outside the Criminal Law by reference to political exigencies or generally accepted standards of morality. There is little perceived danger in allowing government officials to impose their own standards of morality, since Chinese state ideology does not accept the legitimacy of multiple standards of morality. 
Consider, for example, the provision for analogy (Article 79 of the CL): a "crime" not stipulated in the CL (or elsewhere) may be punished according to the most nearly applicable article. This shows that if rules defining crime are "law," then the very notion of "crime" is not a "legal" concept; the determination of whether a particular act constitutes a crime is something that must take place outside the CL. Thus, while the CL tells you what punishment to apply for a particular crime, it is often unhelpful in determining whether a crime has been committed. In this respect, the CL resembles the rules for punishment of Imperial China, which stipulated any number of punishable acts in great detail, but also contained provisions allowing for analogy and punishing "doing what ought not to be done." 
The Special Part lists various crimes and their punishments. Pride of place goes to counter-revolutionary crimes, which are defined as "all acts endangering the People's Republic of China committed with the goal of overthrowing the political power of the dictatorship of the proletariat and the socialist system" [but are very rare despite their textual prominence.] . . The other chapters in the Special Part cover crimes of endangering public security, undermining the socialist economic order, infringement of personal and democratic rights, property violation, disruption of the order of social administration, disruption of marriage and the family, and dereliction of duty and corruption. 
The Special Part is a relatively skimpy 103 articles. . . One reason for the relative simplicity of the Chinese CL is that the provision on analogy offers an escape hatch in case of imperfect or careless drafting. Another reason is that the CL is supplemented by numerous other pieces of special legislation either specifically criminalizing a certain act or prohibiting an act and providing vaguely that "where it constitutes a crime, criminal responsibility shall be affixed," without providing any guidance as to under what circumstances the performance of a prohibited act would constitute a crime. Finally, it must be remembered that the CL is as much a political text as a legal one; its drafters were concerned with providing a legal basis for state action, not with worries about due process, and it was designed to be used by judicial and public security cadres with a low educational level. Although the late 1980s and early 1990s have seen a movement among the Chinese legal community to revise the wording of the Criminal Law in an attempt to make it technically more elegant, no revision has yet taken place.
Essentially, what Clarke and Feinerman are describing is a punishment system that relies on the sentiments of the communist order toward the offender to even make the decision whether a crime has been committed. A poor person stole bread? Revolutionary impetus. A rich person stole bread? Class criminal.

One possible (and reasonable) counterargument could be that all criminal codes are, covertly, Maoist "little red books" by virtue of differential enforcement. After all, isn't a city ordinance that prohibits any person from sitting or lying on a city sidewalk, but yields fines only against poor, homeless people, exactly the same as a "political texts" that "impose [their] own standard of morality"? Well, of course they are. But the difference between these codes and the Maoist criminal code is the difference between covert and overt intent. The Maoist code explicitly declares its intent to focus on counterrevolutionaries.

So what's worse, a law that purports to criminalize in a neutral, universal way, but is enforced in a way that targets members of a particular class, or a law that explicitly says that it addresses only members of a particular class? There's something to be said for the latter: at least it's honest, which means that if we dislike its overt targeting, we can work to change it. Differential enforcement, on the other hand, can work covertly, and remain undetected. But this rationale does not neatly address what happens in the context of progressive punitivism, for two main reasons.

First, the days in which the mainstream public was in the dark about differential enforcement are long gone. The disparities that critical criminologists have been studying for decades--racialized police activity, ideological bias in charging decisions, sentencing disparities for members of different races and classes--are all there in the open. We studied this stuff before it was cool, but now progressive Millennials are born with the Michelle Alexander playbook in hand. They have come of age, politically, against the backdrop of Ferguson; they have been reading excellent journalistic coverage of the criminal justice system and listening to podcasts about miscarriages of justice for years. Honestly, there's not much difference now, in terms of the progressive consciousness, between laws that explicitly target the poor and laws that are facially egalitarian but differentially enforced. This is good news for criminologists--we've wanted everyone to know this forever, and finally, the combination of colleagues with a desire to address the mainstream and journalists who made it accessible has succeeded in injecting the realities of criminal justice administration into the mainstream conversation (this conversation could use a little, or actually a lot, of nuance, but we'll turn to that later.)

Second, even with an overt policy, there has to be a desire to change it. If lawmakers and constituents are overall pleased with policies that support a particular political order and target people on the basis of their class affiliation, it will be quite difficult to introduce change. Regardless of whether the class/race/gender bias of law is overt or covert, the ability to move it in one direction or the other depends largely upon whether its targets are people that "we" (for whatever value of "we") like or dislike.

Which leads me to conclude that, even though we can find Maoist, or radical feminist, antecedents to the appetite for punishing the rich/male/white that permeates progressive discourse, its most obvious intellectual and cultural legacy is... conservative discourse.

Conservatives and progressives don't live on different planets. The American public (as well as the American academic scene) has experienced decades of exposure to punitive ideologies and policies, and these, as well as their legacies, are bound to leave imprints on social movements of all stripes. Criminal justice and punishment scholarship in the United States is steeped in this punitive legacy--and this is characteristic, as Naomi MurakawaElizabeth Hinton, and others tell us not only of Nixon and Reagan, but also of Democrat politicians. After all, as Jonathan Simon explains, no politician, of any stripe, wants to be perceived as "soft on crime."

Decades of being steeped in a program of conservative punitiveness has taught both conservatives and progressives three important lessons. The first is that criminal justice is the only hammer in the toolbox, and therefore each and every problem must be a nail. If that's how we have been solving the problems of "inner city delinquency" for years, why would we not welcome any bad behavior on the part of the wealthy and privileged with choruses of "lock him up"?

The second lesson is that it is normal to think of criminal justice as a tool for separating communities across identities. I'm sure I tell you nothing new when I remind you that, while 1 in 100 Americans is behind bars, that figure is much higher for particular segments of the American population: 1 in 9 young Black men is incarcerated, and 1 in 3 is under some form of correctional supervision.  Racial and class inequalities are found at every turn; in policing,  in criminal courtrooms,  and in sentencing,  to name just a few. Many criminal justice critics, in academia and in the activist realm, treat this overrepresentation not as a coincidence, but rather as part of a systemic project of crystallizing and enhancing inequalities. Is it any wonder that, against a backdrop of "walk all over the poor", a non-imaginative response is, "walk all over the rich"?

The third lesson, which is perhaps the most painful, is that the quintessential way to get the talking stick in America is to be a victim. Just yesterday we learned that Tricia Meili, the Central Park jogger who was viciously assaulted and left for dead decades ago, is calling for a release of investigation materials in the cases of the Central Park Five, the five teenagers who were falsely accused of assaulting her. We know who did it: the responsible party is in prison, has confessed to the crime, and is tied to it via robust forensic evidence (the only person who is still confused about this is Trump). We have seen footage of the interrogations of the teenagers. Meili is owed compassion and support for her harrowing experiences, as well as admiration for her long recovery process. But why is she an authority on an event she has no memory of? That we award victims an attentive ear on such matters shows how victimization, or more accurately, a spectacle of suffering, is the qualification you need to be an authority on criminal justice in America. #BlackLivesMatter and #metoo have internalized these messages all too well: in the face of victim voices serving the conservative agenda, like the Tate family, Mark Klaas, and Dominick Dunne, is it any wonder that the progressive response is to put victimization and trauma at the forefront of its own struggle?

The problem with these non-imaginative responses, as Shaun King reminds us, is that progressive punitivism is, essentially, a little-changed version of the conservative punitivism playbook. Applauding the incarceration of a reviled man on solitary at Rikers has as much potential for enshrining the practices of solitary, and the conditions at Rikers, as was applauding the incarceration of the people that the progressive movement cares about in identical conditions. We can and should do better than this every day, but that takes imagination, and shaking off the paradigms shaped by decades of criminal injustice doesn't come easy. Still, we have to try.





Tuesday, June 4, 2019

The Central Park Jogger and the Reification of Victims' Perspectives

Those of you familiar with the Central Park Five case should be under no doubt that, despite Trump's insistence on propagating a strange narrative of the case, the five teenagers railroaded into confessing and sentenced to years in prison have been completely exonerated and compensated, with a single perpetrator's confession backed up by solid DNA evidence.

You may also recall that the victim, Trisha Meili, who was violently assaulted and left for dead, has no memory of the attack. But she apparently does not see this as a barrier to opining about guilt and innocence.

In my forthcoming book Yesterday's Monsters: The Manson Family Cases and the Illusion of Parole (forthcoming Feb. 2020 from UC Press) I discuss the serious problems that happen when we reify the perspectives of people at the heart of trauma regarding things they are not qualified to comment on, such as the sincerity of parole hopefuls, their participation in rehabilitative programming, and even their physical health. And here we have a person who cannot recall the attack pushing for a political outcome, claiming the authority to do so because of her victimization.

Trisha Meili suffered horribly at the hands of someone terrifyingly violent and deserves every sympathy and compassion for that horrible ordeal, as well as respect and admiration for regaining her health. But she has no authority or special knowledge to chime in about events she does not recall or to use her authority as a "moral memory" of the crime to push for processes that completely contradict forensic evidence.

This is what happens when we decide that trauma itself is an admission ticket to the discourse. And lest we forget, the right has not cornered the market on this reification of victims.

Friday, May 24, 2019

Book Review: Plausible Crime Stories by Orna Alyagon-Darr




Recently, I had the absolute treat to read Orna Alyagon Darr's new book Plausible Crime Stories, in which she provides a riveting analysis of almost 150 sexual offense cases tried before the British Mandate courts of Palestine, prior to the inauguration of the State of Israel.
The evidentiary process in criminal courts involves efforts by factfinders to establish a factual truth in the face of often conflicting stories about what happened. In doing so, they recur to several different mechanisms, which Alyagon Darr discusses in the book: probability (which the official evidentiary standard endorses), credibility (whether a witness is telling the truth or a lie) and plausibility (which story makes sense.) Alyagon Darr's book deals mostly with the latter, and its main argument is this: when deciding whether a story is plausible, factfinders rely on a lifetime of experience that is embedded in their place and time. People make assumptions about how a particular event went down on the basis of their beliefs about what makes sense, and these in turn are shaped by their status, ethnicity, and milieu. In this case, the factfinders were British colonial judges, whose approaches were shaped by notions shaped in the British metropole as well as by their stereotypes and understanding of the population of Middle-Eastern colonists they encounter. 
Alyagon-Darr tells, for example, of cases involving homosexual relations, which to the British simply could not entail love or an emotional connection. The narratives that made sense were shaped by what they considered a "typical" story: an older man of higher social status penetrates a younger man of lower status in exchange for money. Stories that fell into this narrative pattern were plausible; stories about love or mutuality were not. Similarly, in Mandatory Palestine relationships between Jewish women and Arab men were so stigmatized and unthinkable that, to make sense of them, the women in question had to be cast as problematic and coming from dysfunctional families.
These are only two examples of many fascinating ones that Alyagon-Darr discusses in the book. Her analysis made me think of Nicola Lacey's Women, Crime, and Character. Lacey's argument is that, throughout the 19th century, the treatment of women as offenders morphed as the criminal process evolved from reputation-based to evidence-based. What Alyagon Darr's book seems to suggest is that this shift--whether or not completed in the British metropole--was not complete in the colonies in the early 20th century. Reputation, or assumptions about reputation, appear to be the lynchpin of both credibility and plausibility. Whether someone's story about a sexual encounter that happened to them--consensual, nonconsensual, forceful, unexpected--is plausible or not depends on reputational factors such as the character's ethnicity, age, or assumed sexual practices. In that respect, little has changed--just look at the many unchecked assumptions that underlined the Kavanaugh-versus-Ford debacle. What is interesting about the colonial society brought about by the Pax Britannica is that reputational assumptions pertained not only to individuals, but to entire communities, on the basis of ethnicity as the main characteristic. Which raises another question--should they have set these assumptions aside? Did these stereotypes persist because they were found to be true frequently enough to be valuable tools for judging reputation, character, and plausibility? Alyagon Darr wisely leaves these value questions to the readers, doing the kind of careful historical analysis that we need to do. 
Interestingly, just as I'm writing about this book, I came across the recent embarrassment surrounding Naomi Wolf's new book Outrage. I was mortified for Wolf--it is regrettable, but very human, to fall in love with one's theory (in this case, that consensual same-sex relations were harshly punished) to the point of misunderstanding the data. Alyagon Darr's book is a great counterexample. It leaves open questions, intelligently interrogates the context of the period and the milieus involved, and has enough compassion to understand that not everyone in Mandatory Palestine was born holding the postmodern intersectionality handbook. It is laudable effort to understand historical actors on their own terms, as Ashley Rubin has recently called upon historians and others to do. 
But there's something else going on here: echoes of Lombroso's L'Uomo Delinquente, for sure. Alyagon Darr quotes an early 20th century criminologist, Paltiel Dikshtein, discussing "colonial criminology'. It is not a coincidence that the colonists had such appetite for reductionist, essentialist judgments on behavior in the colonies by ethnicity. At the time, Great Britain, particularly in the colonies, was enthralled with the power of science, measurements, and the use of medical tools and classifications. Because of the Lombrosian, scientist-looks-at-primitive-animals perspective, this was especially appealing in the colonies, and could explain Binyamin Blum's findings about the emergence of forensic science in the colonies. Importantly, as David Horn explains so well, Lombroso's scientific analysis of crime came of age during the unification of Italy, and should be understood in the context of making sense of differences in crime patterns among different Italian provinces. It's not a coincidence to find similar mechanisms underpinning the ethnic hodgepodge created by the Pax Britannica, particularly in the complicated, diverse ethnic world of Mandatory Palestine. Similar to the Lombrosian project, what we see in the British is an effort to harmonize norms across the different population under their control. The need to govern and the enthusiasm about scientific inquiry of crime yielded the perfect storm: in criminological laboratories, it would manifest as essentialist diagnoses, and in courtroom settings, as essentialist findings of plausibility. 
Finally, an important word about the emotional impact of the book. It goes without saying that Alyagon-Darr is discussing events that happened a long time ago. Her clear and empathetic writing evinces the kind of compassionate care (without compromising attention to detail) that one would offer a friend of loved one who was hurt five minutes ago. Her descriptions of the horrific crimes people experienced, the betrayals in other people's versions, the humiliating and dehumanizing medical examinations children had to undergo, read as fresh now as they must have felt to these people a hundred years ago. It makes one wonder about the impact that these open wounds had on the cultural psyche of the Jewish and Arab peoples, and the extent to which unspoken trauma and injury have fed into the larger mess that is today's Israeli-Palestinian conflict.

Elizabeth Warren's Laudable Example

The Washington Post is being justly criticized for its ridiculous so-called exposé of Elizabeth Warren earning reasonable attorney/consultant fees for her legal work. There is a debate about whether this display of poor journalism can be attributed to sexism. Though I struggle to imagine a man being criticized for similar earnings, I think it has more to do with a deep misunderstanding of my line of work.

To be clear: I am so very fortunate and grateful to be a tenured professor with a named chair at a time when excellent academics are driven to economic precarity by the corporatization and adjunctification of higher education. I teach a reasonable load, have time and space to research and publish, live comfortably, and want for nothing. These privileges enable me to spend a considerable chunk of each workweek doing public service. As many of you know, I'm on TV several times a week; when there's some novelty with Trump, Barr, Mueller, et al., it's sometimes several times a day. Every week I spend several hours consulting with journalists, civil rights attorneys, activist organizations, and others. I write amicus briefs. I speak at public events, not all of them academic, and most of which do not directly advance my professional career. And there's nothing special about me--I have many colleagues who do things like this.

What seems to be at the root of Warren's critics is that they perceive this public activity--which requires skill, hard work, time to stay on top of current events, cultivating media savvy, and yes, because this is a lookist society, investment in appearance and in reputation management--not as volunteer work, which is what it is, but as something that we somehow owe to the world to provide for free. This comes either from the perspective that we are cynical, underworked exploiters ("you have the summers off!" "you teach six hours a week and that's your entire job!") or obligate servants of The Movement who, for some reason, must do for free a lot of things that everyone else in the universe charges for, in the form of salaries, stipends, or honoraria. Many of us, especially women and people of color, internalize these critiques, mumbling when we should ask for honoraria, lowballing our fees because we don't know what to charge, muttering "of course" when we're told to do things for the greater good.

It is entirely reasonable to respond to requests that eat up considerable time and effort, especially when made by clients who can afford to pay, with this:



If anything, we should learn something from Warren's laudable example. If she managed to have an illustrious academic career and, at the same time, put her impressive skills and industriousness to good use, good for her! The culture of sacrifice and deprivation that sometimes peeks through this critique seems to suggest that the endgame is for people to be paupers so as to lead by example. If that's the endgame, it's not worth the fight. The endgame is for people to live with dignity and have what they need, and there is no greater champion for this than Elizabeth Warren.

Thank you, WaPo, for helping me make up my mind about my preferred presidential candidate through your irresponsible journalism. CCC endorses Elizabeth Warren as Democratic candidate for President of the United States.

Friday, April 19, 2019

Congratulations, HJCP! And, Moratorium Event

In all the excitement and fury about the Mueller report, I completely forgot to congratulate our new student-run journal at UC Hastings - the Hastings Journal of Crime and Punishment (HCJP) - which held its inaugural event this Tuesday, titled Extreme Punishment in the Age of Moratorium. The event was a big success. We were very proud and happy to host a range of panelists with different life experiences and perspectives to reflect on Newsom's announcement. Kevin Cooper called in from Death Row. Kelly Savage, from the California Coalition of Women Prisoners, provided the perspective of a recently released lifer, identifying long life sentences as "walking death." Alex Post of the State Public Defender's office discussed the continuing litigation on behalf of death penalty inmates. Steve Wagstaffe, the San Mateo District Attorney, discussed the need for extreme punishment and his interactions with victims. And David Crawford of Death Penalty Focus talked about the political aspect of Newsom's announcement.

The first issue of HCJP, which is forthcoming, will feature, among other wonderful things, a summary and/or transcript of the panel.

Not Your Typical Mueller Report Opinion Piece

Let's start with the obvious: Like all the other opinion pieces said, we're dealing with a corrupt mob boss, a culture of lying and obfuscation, a paranoid president who was saved from himself by aides who, selfishly or selflessly, stopped short of doing his bidding. We're dealing with an administration of enthusiastic recipients of information and illegalities from a foreign power. And, Mueller explicitly places the ball in the court of Congress: I won't indict, but you can impeach, and you can certainly indict once he's out of office (the report twice reminds us, explicitly, that Trump's supposed immunity while in office--which, by the way, is a topic hotly debated by constitutional scholars--ends when he is no longer president.)

All of these things are true.

It takes a bit of time for the emotional dust from reading the report to settle (I spent about nine hours, give or take, on providing summaries of Volume 1 and Volume 2 yesterday.) Some of what I read was news to me, such as the phonemail Trump received while en route to the airport with Rick Gates
and the direct hacking of the election systems in an unnamed Florida county)

I was also somewhat surprised by Assange's partisanship. I had been under the impression that he was a "chaotic neutral", who was just about nonpartisan free access to everything, but in fact he acted because he was interested in a GOP election win.

But I have to say, the moment I will most remember from this tweeting enterprise is the brainwave I had when I read about Paul Manafort's dealings with Kilimnik and, through Kilimnik, with Yanukovych, the ousted Ukrainian president. This came into clearer focus when I read about Petr Aven, and especially about Kyrill Dmitriev, and their efforts to insinuate themselves into the Trump transition team.

The whole thing reminded me, in a nauseating way, of a post I wrote here a while ago, about one of my favorite TV shows as a child: Mission: Impossible. Gentle reader, if you're a person of a certain age, you probably remember the show not as a flashy Tom Cruise movie, but as a series of episodes involving sophisticated U.S. interventions abroad. At the time, I wrote that the show--
evoke[d] a feeling of nostalgia for a past that never was; a past in which good and evil are clearly delineated in the opening sequence, and in which our secret service works for the undisputed good while we all sleep soundly in our beds. A past in which power is never abused, but tempered with talent and an old-fashioned gentlemanly code. A past in which the United States is a benevolent patriarch, deftly and subtly governing its childlike counterparts. A past in which women and people of color play cameo roles in the world of secret service, and women are praised and utilized for their sexual appeal without complain or critique. 
The problem is that this past never existed. In the late sixties, when this show aired on American television, the US was already angling toward a questionable and destructive elective war in Vietnam, and was already involved in fixing (not unfixing!) the elections in various foreign countries, not to mention the ones it was yet to fix. Involvement in attempted and successful assassinations of foreign politicians and dignitaries has been, since then, clearly documented. And let's not even start discussing foreign military interventions. 
How comforting it was to live in the Mission: Impossible world, in which these developments could be either disbelieved or explained away as benevolent and necessary. Which just makes the courage of people like Daniel Ellsberg, who actually saw what was what and brought it into the realm of public consciousness, all the more impressive.
How the tables have turned! Mueller's investigation reveals a sophisticated, ruthless Russian machinery, consisting of both the GRU and private corporations, that is able to manipulate American social and technological vulnerabilities to an astounding degree. The reason I felt comfortable writing in my tweet thread that Russia "procured" and not just "sought to procure" is because, when you put together Mueller's findings about the direct interference in Florida and the calculations done by Nate Silver et al. a clear picture of successful intervention emerges. The surges and declines in public support for Trump and Clinton map neatly onto the leaked emails, and the leaked emails were obtained via the well-oiled Russian machine.

But what is most shocking about this is that all of this efficiency and technological acumen was put to work not in the service of politics. Or, I should say--not ultimately in the service of politics. And this is what I realized: Gaming the U.S. election was perhaps a step toward solidifying a peace agreement that guarantees Russian control of the Ukraine, but even that's not the endgame.

Ask yourself: What are the oligarchs in this for? Why so much public-private cooperation? Why are Russian billionaires in bed with American businessmen/politicians?

Because the political aspects of this, friend, are all a sideshow. The things you and I care about--vanishing civil rights, children in cages, starving Central American nations, planetary destruction--all of this is a sideshow. Manafort, with his deep connections in Russia and the Ukraine, is the key to understanding all of this. He is not a stepping stool toward Trump. He, and Kilimnik, and Yanukovych, and Aven, and Dmitriev, they are the lynchpin of the whole thing. This is all about making money. Obscene amounts of money that you and I cannot even imagine. The U.S. election, which has enormous importance for you and me, is just a means to an end. The real game is not played in D.C., no matter how great or influential Trump thinks he is. The real game is played in Moscow, and probably not even by Putin, but by the oligarchs.

And this is the big shocker. That you and I might devote our lives to public policy, to incarceration and criminalization and confinement conditions and all sorts of things like that, which are the whole world to the people caught in the clutches of the system, but ultimately, they, you, and I, are merely playthings in the lives of the obscenely rich. Just pawns to be moved along in order to make money. Their economic hold on the world is so vast that winning the U.S. election is just a means to an end for them.

And this makes me profoundly sad, and angry, and fearful for our future.

Mueller Report, Redux

Yesterday I read the Mueller Report in preparation for a few TV appearances and created a Twitter thread condensing the entire report into about 180 tweets. Many people emailed and said they found it very useful. Here are the links to the thread:

Volume 1 - contacts between Russia and the Trump campaign

Volume 2 - obstruction of justice

I will provide analysis in a separate post.