Should Therapists Disclose that Patients Have Looked at Child Porn?

Today, the Supreme Court of CA decided, 4-3, that a legal challenge mounted by California therapists against a law requiring them to report patients who have admitted to viewing child pornography - in therapy - may proceed to trial.

The law in question, the Child Abuse and Neglect Reporting Act of 2014, appears benign in that it merely expands the list of "mandated reporters" of abuse and neglect; however, it lists 46 categories of "mandated reporters", many of which work in the therapeutic professions (including marriage counselors and drug and alcohol therapists) and listen to people who assume the information they provide is privileged. The definition of "child abuse" in the new law is very broad, and includes "sexual exploitation", which in turn covers any person who knowingly “downloads,” “streams,” or electronically “accesses” child pornography.

As the plaintiffs--therapists and counselors--argue, this broad disclosure requirement violates the patients'  constitutional rights to privacy. No one, including the plaintiffs, doubts that child pornography is a serious problem, both on the production and on the consumption side; nor do the plaintiffs argue that viewing child porn in itself is shielded from prosecution by a right to privacy. But discussing this kind of behavior with your therapist is a different matter.

The constitutional analysis here is interesting, but what underlines the conversation strikes me as even more interesting. The plaintiffs declared that they “have treated numerous patients who are seeking treatment for sex addiction, sexual compulsivity, and other sexual disorders, many of whom have admitted downloading and viewing child pornography on the Internet, but whom [plaintiffs], based on their considerable training and experience, do not believe present a serious danger of engaging in ‘hands-on’ sexual abuse or exploitation of children or the distribution of child pornography to others. These patients typically have no prior criminal history, have never expressed a sexual preference for children, and are active and voluntary participants in psychotherapy to treat their particular sexual disorder, which often involves compulsive viewing of pornography of all kinds on the Internet.” Plaintiffs “have also treated patients seeking treatment because of sexual disorders involving a sexual attraction to children (including pedophilia), who have admitted to downloading and viewing child pornography, but whom [plaintiffs], based on their training and experience, do not believe present a serious danger of engaging in ‘hands-on’ sexual abuse or exploitation of children or the active distribution of child pornography to others. These patients typically have no prior criminal record . . . , no access to children in their home or employment, no history of ‘hands-on’ sexual abuse or exploitation of children, and often express disgust and shame about their sexual attraction to children for which they are actively and voluntarily seeking psychotherapy treatment.”

When I read this, I was struck by the similarities between this law and the criminalization of Brian Dalton in Ohio in 2003. Dalton, a registered sex offender, wrote (distressing, disturbing, horrible) fictional scenarios involving the torture of young boys in his private journal and--after the journal was discovered by his mom--found himself prosecuted for possession of obscene materials--the obscene material being his own journal. After much turmoil, the Ohio Supreme Court overturned the conviction.

I used to teach Dalton as a first case in criminal law, to remind my students that we do not criminalize people for thoughts--only for actions. Of course, the realities of internet porn make the actions required to participate in the crime so flimsy that the boundary between thoughts and deeds becomes pretty thin. But even so, I am struck by how both Dalton and Mathews highlight our tendency to persecute and hunt down consumers of child porn precisely at the point at which they are finding outlets for their propensities in an effort to get better. 

Underlying this appetite for criminalization is an assumption that propensities to be aroused by prepubescent children--which, as a society, we find abominable, a sentiment shared by many of the folks who harbor such propensities (and feel an incredible amount of shame about them)--overlap with the commission of serious crimes. This link is fiercely contested in the literature. Moreover, there's an assumption that sex offenders are irredeemable--something that Danielle Harris shows is not true; desistance is not uncommon.

There is a difference between making a big show of protecting vulnerable children and actually protecting vulnerable children, and both of these instances--Dalton and the new CA law--are examples of the former, not the latter. I hope we can bring more facts and less revenge fantasies into our sex offender laws.

Nonexistent Reentry in CA: When People Are Duped Into Thinking It's All Their Fault

The opening chapter of Foucault's Discipline and Punish compares two penal scenes: the drawing and quartering of a regicide and a drab scene from a discipline-heavy juvenile facility, 80 years later. These scenes are emblematic of the change Foucault sees in punishment: from centralized to decentralized, from a "festival of punishment" to drab things behind closed doors, and most importantly--from body to soul. I read this stuff for the first time about twenty years ago, and its enchantment has worn off; I'm pretty clear on the fact that the move from corporal punishment to incarceration was overall a good one. But there are some days when the "soul" element of punishment is especially hard to stomach, especially when it consists of selling justice-involved people the lie that the only cause for their miseries lies in their own action.

I was outraged, albeit not surprised, to read this distressing exposé on Mother Jones. The gist of it is that our enthusiasm for early releases has not been matched by an enthusiasm to actually help people get on their feet after they are released. It opens with a typical--and horrendous--story:

After 15 long years behind bars, Terah Lawyer needed to show the parole board she had somewhere lined up to live. She landed a spot in a facility on Treasure Island and was so grateful to be out that at first she didn’t mind being forced to spend dozens of hours a week in treatment classes for a substance abuse problem she didn’t have, and in fact, as a drug and alcohol counselor, was certified to teach about. But quickly, the program’s strict schedule and tough restrictions, like lockdowns on holidays and limited free time, got in the way of adjusting to real life. Before she left prison, she’d worked hard to secure a job with the California Coalition of Women Prisoners, but her facility’s rules forced her to delay her start date three months, and she lost the opportunity. Most painfully, the program’s structure made it hard to visit with her parents, who lived a couple hours north in Sacramento.  

Once she was finally able to start working, she’d leave the house at 7 a.m., work a full day, and get back in time for the hour-and-a-half class at night. “I was required to still bring in 21 hours of treatment classes in order for me to get my weekend passes to go home, to go shopping, to go out with family or friends, to do things that are considered freedom,” she explains. “It was really difficult being able to hold down a full-time job, which is thankfully now giving me an income, and also meet the program’s requirements of classes that I didn’t even need in the first place.”

Lawyer's experience reminded me of participant observations I did at the Peer Reentry Navigation Network (PRNN), a group of former lifers now making a life for themselves on the outside that meets monthly in San Francisco, run jointly by an activist who is formerly incarcerated and by a parole officer. The day I was there, everyone talked about housing. In Yesterday's Monsters I described the conversation:

After a round of advice and information about housing and smartphone tutorials, Cara, a young woman, steps to the front of the room to facilitate an activity. She distributes blank pages and invites attendees to draw a picture frame on the page. She then asks us to write or draw a picture of what success means to us. We work in silence, occasionally sneaking a peek at our neighbors’ work and smiling at them. Cara then invites the audience to share. “Being able to provide for my family.” “Having a job, a stable place to live.” “Finding someone to love and someone who loves me.” One woman shares, “I want two dogs and a Mercedes.” Cara laughs. The woman jokingly adds, “What? You wanted us to define success. Well, that’s what success means to me.”

Then Cara gives us the “bad news”: If you are not actively working to direct your life toward those goals, then perhaps you don’t really want them. For example, she says, if you want to save enough money for a down payment on a house but you end up buying shoes and flashy outfits, then maybe you are not really that driven to be a homeowner. You must pursue your goals with real ferocity, she says.

For many of the people in the room, homeownership in aggressively gentrified San Francisco is a pipe dream. Since the rise of the tech industry, housing in the city has become prohibitively expensive, both for owners and for renters. Even so-called low-income housing requires a considerable income, as well as jumping through multiple bureaucratic hoops. Joe acknowledges these difficulties but encourages attendees to overcome them. “If you want to apply,” he says, “I will help you. We’ll work on your applications together.” It might take sixty applications, he says, but eventually one will succeed. 

My ambivalence grows. On one hand, I admire the spirit of enterprise, mutual aid, and community strength in the room. I recognize the importance of self-focused success and of belief in free agency. On the other, I’m sure that my fellow attendees have learned all too well in the course of their lives that, despite their best efforts, the reentry deck is heavily stacked against them. I recall Alessandro de Giorgi’s recently released subjects who attributed their immense difficulties and abject poverty to their own failings rather than to the systemic difficulties that stood in their way.

There is something maddening about people being led to be convinced that their own flaws are the only thing standing between them and their dreams, but that very message is what the so-called prison rehabilitation apparatus, and particularly the parole hearing process, tries to sell people on a regular basis. When my colleague Alessandro de Giorgi interviewed formerly incarcerated people who faced acute misery at the very bottom of Maslow's hierarchy of needs (no home; no job; no food), he was struck by how much they attributed their poverty, squalor, and dire need to their own flaws. He explains:

Today, whatever minimal services are available to former prisoners are provided mostly through the non-profit, faith-based, semi-private sector, what Jennifer Wolch (1990, 201) has aptly defined as an emergent shadow state: a “para-state apparatus with collective service responsibilities previously shouldered by the public sector, administered outside traditional democratic politics, but yet controlled in both formal and informal ways by the state.” In this framework, highly individualistic and market-friendly solutions are systematically proposed as the only answers to a broad range of structural obstacles faced by formerly incarcerated people: At every turn in their trajectories through the carceral state, from arrest to reentry, criminalized people are taught that success or failure is entirely dependent upon their own efforts.

But here's the really depressing bit:

Despite the weight of the structural circumstances they face, the participants to this research appear to have internalized the neoliberal narrative of personal responsibility that is constantly inculcated in prisons, rehabilitation centers, and reentry programs (see also Gowan & Whetstone 2012; Miller 2014; Werth 2012, 2016). They wholeheartedly embrace the dominant rhetoric of free choice, as well as hegemonic definitions of social deservingness and undeservingness. 

In other words, de Giorgi's subjects themselves believe that the ills that they face when they reenter are their own fault, because they don't deserve better, and do not seem to see any institutional problem here (when he presented this piece at our Carceral Studies Workgroup, he astutely observed that people do have racial critiques a-la-Michelle Alexander, but not an understanding of class.)

In Yesterday's Monsters I saw this propaganda apparatus at work: people who see their crimes in a broader social context are chastised for "minimizing." Here's an example from the book, in which Patricia Krenwinkel, in the 1980s, tries to frame her crime in the context of the sixties:

It came up about ’65. It was the beginning of the marches. It was the beginning of the civil rights movement. It was the beginning of all the movements of the late sixties, which eventually involved entering the war. . . . I found that I couldn’t seem to find my bearings in this world at that time. . . . I couldn’t seem to find where there was any, on my own—seem to find any reinforcement for doing anything other than kind of letting myself go with the time of what at that time was tune-in and drop-out, as Timothy Leary so put it. I mean, it’s hard to say. There were so many components. I was a child of the sixties. And there definitely is something to be said about the sixties. It was an incredible time in the period of our history. It’s something that I look back on and I see, because there’s thousands of people out there that were not much different than myself.

The prosecutor, Stephen Kay, responds with an astounding lack of empathy and contextual comprehension:

I feel that it’s kind of hard for me to accept Miss Krenwinkel’s statement that she was a child of the sixties, and there were thousands of others like her out there in the sixties. I myself went to law school at Berkeley during the time of Mario Savio and could observe some of these children of the sixties. And they characterized themselves as flower children. Their slogan was “make love, not war.” They weren’t into murdering people.

Pretty much any reasonable criminologist you'll meet will tell you that crime is a combination of personal and environmental factors (including what gets defined as crime.) How much of each gets poured into the mix varies across crimes; this is why talking about both drug use and violent assaults as "crime" can be confusing. But you'd have to be extremely naive to assume that crime doesn't have an ontological existence (some abolitionists in the 1970s advanced this view), just as you'd have to be pretty obtuse and cruel to assume that crime is entirely a function of personal pathology. If it were, why are poor people overrepresented in the criminal justice apparatus?

A lot of the highfalutin' critical criminology from the last few years uses the term "neoliberalism" to mean a hypercapitalist, highly privatized environment in which people are expected to take responsibility for themselves, with no welfarist contribution from the state. Kicking people out of prison to fend for themselves without any veritable programming designed to put them on their feet--and with an astonishing paucity of solid vocational training behind bars in preparation for life outside--is a manifestation of this neoliberal ideology, and what's more--this mentality is successful and pervasive because it dupes not only the professionals who administer it, but also the people who are subjected to it. 

Criminal Justice Discrimination for Unseen Categories: The Case of Mizrachi Jewish Israelis

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The case was not unlike hundreds of others in the Israeli army: a soldier, 18 or 19 years old, left his unit to go home and work for a couple of months, and was charged with absence without leave. His lawyer, a military public defender, reached out to his relatives and their caseworker and gathered a large amount of documents attesting to the family's poor conditions: a mother with five or six kids living in abject poverty, their utilities cut off for lack of payment. The defendant insisted on testifying and portrayed a distressing (and true) picture of misery and squalor.

Then, the military prosecutor cross-examined the defendant. It turned out that one of his brothers had turned 13, and that the trigger for the absence was the need to finance the brother's bar mitzvah. Which the family celebrated at a fancy party hall, with a thousand invitees, and new festive outfits, haircuts, and makeup for the family.

The judges were horrified by what they considered a warped sense of priorities. The defense attorney, thrust into a position of cultural translator, tried to rely on multiculturalism but was plagued by the uncomfortable feeling that the judges thought of her as the Jane Goodall of poor defendants from disadvantaged backgrounds, charged with explaining that "this is how 'they' are". She felt that something was very wrong, and that there were ethnic undertones to the situation, but could not pinpoint exactly what was going on.

The defense attorney was me, and the discomfort plagued me throughout my military service and later in my academic career. Haunted by the experience of the judges hectoring the defendant (and many other discomfiting situations I encountered in practice) I devoted my doctoral dissertation to the study of conscientious objectors and deserters (here are my main findings.) The point of departure was that both groups challenged the Israeli military service ethos, under which everyone must serve in the army (this is largely a fiction), but did so from positions on the Israeli socioeconomic ladder: the objectors were members of the Israeli intelligentsia, sons and daughters of academics and journalists, refusing to serve in the army for ideological reasons, and the deserters belonged to disadvantaged and underserved sectors in Israeli society: Mizrachi Jews, immigrants from the former USSR and from Ethiopia, Druze and Bedouians. I found that the two groups posed very different types of threats to the military service ethos, and while both ended up convicted and incarcerated, they were treated quite differently by the authorities: the conscientious objectors were subjected to intellectual sparring aimed at securing the legitimacy of the army's position, whereas the deserters--by far a larger group--were trivialized and handled via an assembly line of "normal crimes" and almost automatic sentencing. Worse, because of the technicalities of military charges, the deserters--but not the conscientious objectors--were saddled with a criminal record that followed them to civilian life. 

In the course of trying to figure out how the system perceived, framed, and treated young people committing AWOLs, I ran a large-scale regression model, controlling for both legal and extralegal variables. I found that the best predictor of sentence length, to a point, was the soldier's length of absence for service, which turns out to be a rather arbitrary number, dependent upon the work schedule of the military police officers charged with apprehending deserters. My extralegal variables included the characteristics of the offender. 

Among other things, I wanted to measure whether Mizrachi defendants were treated differently than Ashkenazi defendants, but I hit an obvious snag: there is no easy way to distinguish Mizrachim from Ashkenazim. In the absence of a better solution, I coded the defendants' ethnicities using last names--an imperfect indicator, given intermarriage and ethnically-neutral Hebrew versions of foreign names. Mizrachi origins did not come out significant in influencing sentencing. But I did observe that, between Mizrachi, Russian, Ethiopian, and Druze defendants, there were fairly few Ashkenazim.

This observation was, in itself, problematic, and hit a fertile Petri dish of theoretical and substantive difficulties. As Yifat Bitton writes, the Mizrachi category is invisible in Israeli law, which gives the establishment plausible deniability of any problem. This invisibility is part and parcel of the criminal justice bureaucracy, which does not code the ethnicity of Jewish suspects and defendants at any step of the criminal process--from complaint to sentencing. Nevertheless, there is a persistent stereotype associating Mizrachim with crime. In a study by Arye Rattner, et al., respondents were presented with photographs of people with Ashkenazi, Mizrachi, and Arab appearances, told that these were photographs of criminals, and invited to offer guesses about their crime. The respondents associated more criminality with the Mizrachi and Arab photographs; they also tended to identify Ashkenazim with white collar crime and Mizrachim with street crime. These tendencies are on par with a rich array of popular culture artifacts supporting the Mizrachi-criminality nexus and the idea that Mizrachim "have trouble with the police." From Salakh Shabbati through the Gashash skit Offside Story to the Yehuda Barkan Aba Ganoov movies, Ashkenazi figures are associated with the law enforcement/social services complex--as judges, lawyers, and psychologists--whereas Mizrachi figures, even when portrayed as positive, warm, down-to-earth characters, are often associated with legal trouble and criminality (these popular movies, as Ella Shochat explains, tend to be self-aware and reflexive.) This association is also bolstered by Israeli true crime classics, such as those written by Sarah Angel and Yitzhak Drory, which draw heavily on ethnic themes. An exception was Jack Cohen's portrayal of a police officer in Skhunat Haim, but he portrayed a kind, friendly community police officer in a largely Mizrachi community. Even later depictions of Mizrachim as part of law enforcement, such as in Batya Gur's Michael Ohayon series or Dror Mishani's The Missing File, do not portray Mizrachim in positions of power and, when they defy stereotypes, do so in an aware way. A self-aware return to these stereotypes can be found in Kobi Oz's book Moshe Chuato and the Crow (Oz's work is rich in critical examination of the Mizrachi-crime stereotype.)

Three questions arise from the presence of these stereotypes:

1. Is the perception that Mizrachim are overrepresented in Israel's criminal justice system real? 
2. If, indeed, Mizrachim are overrepresented, what does it mean? Are there insights here on criminality, criminalization, or both?
3. How can we measure discrimination in the absence of recording categories?

Starting with the first question, measuring overrepresentation is not easy. Israeli bureaucracy, as Bitton explains, does not track Mizrachi identity, and the only possible tracker for panel data--last names--can be misleading in light of intermarriages and the proliferation of "Hebrewcized" names, which is common among both Ashkenazim and Mizrachim. Coding one's own data from courtroom observations can also be complicated, as physical appearances can be misleading. What's left is imputing the defendant's ethnicity from the characteristics of the case. Building on David Sudnow's idea of "normal crimes", according to which legal actors develop a quasi-sociological taxonomy of the common ways in which crime is committed, experienced professionals might already have notions of crimes typically committed by Ashkenazim and Mizrachim. Of course, relying on this indicator reproduces exactly the kind of biases that one is trying to detect, and is therefore a poor solution as well as a compounding factor.

If these problems seem intractable, it's important to keep in mind that a system that tracks ethnicities is not necessarily better. Think about two obvious comparators: the U.S. system, which thoroughly (and arguably obsessively) tracks Black identity and the Israeli system, which tracks Arabs with at least as much persistence. 

The U.S. system tracks race at every junction. For a category that is presumably a social construct, with no ontological existence, it sure follows the determinations of whoever arrests you; from suspect descriptions, through arrest booking data, through prosecutorial decisionmaking, to trial and sentencing, the distinction black/white is officially recorded throughout the process. Not only that--there's pressure to track even more: the upshot of Floyd v. City of New York (2012) was that NYPD officers, whose stop and frisk practices indicated a strong tendency toward racial profiling, would now have to produce and record thorough documentation of their stop and frisk activity, complete with the suspects' races. There are four assumptions underlying this push: that it is possibly to accurately track race (meaning, that race is something that can be "seen", and that it will be seen in a consistent manner by law enforcement officials); that it is important to track race; that if we track race and find disparate treatment, we can determine the source of the disparities; and that if we do so, we can cure the disparities via police training, "blind" case review, etc etc. None of these assumptions, with the possible exception of the second, are immune to criticism: we know racial determinations can be malleable, and as we'll see in a bit, even determining that disparities exist doesn't tell us much about why they happen or what to do to correct them.

To complicate matters, most American scholarship on racial disparities sits at the crux of a dual white/black grid, ignoring the existence and importance of other races. This means that even refined and insightful analyses of institutional racism or overt racist behavior lose important dimensions of the problem; not only are entire ethnic groups completely lost, but the black/white grid leads to a tendency to overfocus on inner city crime, missing out on suburban and rural dimensions. In all fairness to American scholars, it is difficult for them to discuss other categories because state and local systems do not consistently or even systematically track the same ethnicities. When Phil Goodman studied CA prisons, he was told "we don't do Asian"; when Heather Schoenfeld studied the provenance of prison construction in Florida, she found out that Florida prisons don't "do" Latino.

Shifting gears to the Israeli example--while Israeli bureaucracy does not track ethnicity of Jews, it obsessively and fairly systematically tracks other identities--again, from suspect descriptions through booking data, etc. Moreover, because of the political situation and the low rate of Jewish-Arab intermarriage, as well as the distinctive characteristics of names, it is easier to correctly code across the Jewish and Arab divide. Over the years, this categorization has enabled Israeli criminologists--primarily Arye Rattner, Gideon Fishman, and Oren Gazal-Ayal--to conduct large-scale quantitative studies showing significant disparities in arrests and sentencing between Jews and Arabs. A qualitative dimension of the disparity, which is difficult to code but easy to perceive, is the imperfect distinction that Israeli law enforcement systematically draws between "criminal" (i.e., domestic) and "security" (i.e., motivated by the Israeli-Palestinian conflict) incidents. While this distinction itself can and should be the subject of critique (how do you characterize stolen Israeli cars that are dismantled in Palestine?), it leads to disparate treatment in the form of bifurcated legal jurisdictions, different procedural and substantive law, segregated incarceration practices, etc. 

What we learn from the American and Israeli examples is that officially tracked categories can teach us about disparities, but they can also be deeply misleading. But even if we are able to observe disparities, where do they come from?

The major pertinent distinction is between criminality and criminalization. In other words, if a particular ethnic group is overrepresented in the criminal justice system, that could either indicate that members of this group commit more crime or that they are being disproportionately targeted by law enforcement (this is what the defendants in Armstrong v. U.S. (1996) tried and failed to prove at the American Supreme Court.) Making this distinction can be tricky for several reasons. First, criminality and criminalization can and do coexist: people can be committing more crimes than their "fair share" AND disproportionately targeted for them (echoing the cliché that stereotypes become stereotypes because they're true often enough.) Second, any conversation about racial discrimination is mired in political complications and pushes the limits of the sayable in both academic and policymaking circles. Third, and relatedly, there is a tendency to confound the empirical existence of statistical facts with their possible explanations in an essentialist way that discourages people from openly discussing facts if they think the facts have an unsavory explanation.

Let's talk about the American comparator first. The statistics are stark and obvious, even though no one will candidly discuss them: official statistics misrepresent the share of black defendants in drug crimes; self reports, which are more reliable for this kind of crime, show no significant difference in buying and selling between white and black people. On the other hand, official statistics are much more reliable indicators of violent crime, and black people commit about four times more homicides than their percentage in the population. Because this is a distressing and inconvenient fact, criminologists and sociologists are at pains to discuss drugs, an area in which the disparities can be explained through criminalization (see Michelle Alexander and others), rather than violent crime, in which the disparities reflect differential criminal behavior (for good critiques of this tendency see John Pfaff, James Forman, and Jill Loevy's works.) 

The outcome of this tendency is that we don't spend nearly as much time tracking violent crime as we should. It also means that we need to pay attention to confounding variables and what they mean. For example, the racial disparities in bail decisions, which have been the rallying cry to reform bail, go away when one controls for severity of the offense (it's obvious why: judges use bail schedules, which are like price lists attached to offenses according to severity), and racial disparities in sentencing go away when one controls for class (it's obvious why: race and class are inexorably linked, a great example of the protean quality of racism in American society.) 

This also means that, despite the fact that black violent crime tends to victimize primarily black people, the question "what about Black-on-Black crime?" becomes a racist trope outside the limits of the sayable. Because of concerns about victimization, over the years Black politicians and police officers have relied on the criminal justice system to try and resolve very real problems in their communities, only to find out that the involvement of law enforcement, such as through stop and frist practices and empowerment of police officers to use force, has led to destructive policies. Nonpunitive victims proposing restorative justice, economic reform, or distributive justice tend to be silenced, and nonpunitive suggestions made by outsiders are seen as unwelcome top-down interventions that receive very little buyout from outsiders. This problem is exacerbated by the nature of the social media conversation about disparities, for reasons I explain here. 

Now, let's turn to the Israeli comparator. The conversation about Arab on Arab crime is also politically fraught. The Israeli right is at pains to emphasize Arab criminality as inherent and to treat the crime in an essential way, rejecting any responsibility for the squalor, pervasive discrimination, obtuseness, and downright institutional cruelty that might produce crime. The left--including academics--is at pains to silence discussion of the problem (see the pervasive silencing of female left-wing activists sexually harassed by Palestinian activists.) The assumption seems to be that admitting there is a problem is tantamount to making essentialist assumptions about Arab criminality; in some quarters, there is discomfort with the idea of condemning aspects of Arab culture for contributing to patterns of violent crime (e.g., family honor killings). 

What's interesting is that none of these niceties come from within the Israeli Arab community. In a recent New York Times op-ed, Ayman Odeh, leader of the joint Arab party, explicitly flagged the problem of violent crime rates within the Arab community. Shortly after that, protests broke in Magd-Al-Krum over police inaction regarding violent crime. These protests echo James Forman's analysis of African American calls for "tough on crime" mentality - a sense of community victimization by intraracial crime and a lack of response from the Jewish Israeli establishment. The dark side of this, of course, is that calling police attention to intra-Arab crime hands control to the police, which will typically resort to essentialist oppressive measures against the Arab population. As in the U.S., efforts by academics and reformers to address the problem head on flail because they are perceived as flagging a problem that people either claim does not exist or ascribe to essentialist characteristics.

What does all this mean for Mizrachi representation in the criminal justice system? If Mizrachim are overrepresented in the criminal defendant population, we have to ask ourselves how much of this is due to criminality and how much due to criminalization. We might find ourselves in a situation similar to that of official markers, where different types of crime manifest in different ways--at least some of the overrepresentation might be because of law enforcement and some might be because of various systemic social conditions that produce criminogenic atmospheres in neglected, disadvantaged communities (and, as in the American example, class and ethnicity might be closely correlated.) Official statistics are, as explained above, to no avail here; victim surveys would also be unhelpful, because there's no reliable way victims might report the ethnicity of their assailants (because physical appearance is not a good indicator of ethnicity in Israel.) Self-surveys might be best, but would be more reliable in non-stigmatizing offenses (such as personal use or simple possession of marijuana) than in violent crime.

In the military crime context, which started me down this path, absence without leave presents a particularly interesting case. For one thing, official statistics are a very reliable way of determining AWOL, because all units keep records on who is absent from leave. However, the length of absence, which is a strong predictor of punishment, is not a good reflection of severity of the offense. The time between deserting the unit and being apprehended is, more often than not, a function of the military police's work schedule, as deserter catchers tend to target people in particular neighborhoods on particular dates regardless of the length of their absence. Because enforcement is by neighborhood, deserter catchers might be more focused on targeting high-absence neighborhoods, which might also be low income neighborhoods, because AWOL in the Israeli context is largely predicated by socioeconomic needs. A hidden dimension of this is that "criminality" here is directly a function of means, because well-to-do youngsters can avoid criminalization merely by relying on family and friends to get them out of the service duty in legal ways (e.g., obtaining a private psychologist's written opinion about mental illness), whereas this option is not available to people from disadvantaged backgrounds, who have to recur to illegality to solve their problem. If so, this might imply that class/wealth mitigates the relationship between ethnicity and AWOL offenses--this doesn't mean there is no injustice toward Mizrachim happening, but rather that the class-ethnicity nexus is inexorable and that stands in the way of a "clean" statistical analysis. 

The last step is to ask ourselves how to measure disparate sentencing for the people caught in the military justice system. Beside the difficulties with markers such as names or appearances, there is another reason not to use proxies: it doesn't actually matter what the person's ethnicity really is (if, indeed, there is such a thing as "real" ethnicity.) Rather, what matters is how that person is perceived by the judicial system.

One way to address these biases is to use experimental design, particularly factorial vignette surveys. The experiment would utilize two imaginary scenarios which are similar in terms of the crime and differ only in the ethnicity of the perpetrator, signaled by a validated marker (such as socioeconomic information about the grandparents' country of origin.) and examine judicial deliberation, interpretation of factors, and suggested sentences. AWOL would be an ideal test case, because the facts of the incidents tend to be very similar whereas the personal backgrounds might differ. 

Another approach would be to use qualitative approaches. On occasion, overt racism might find its way into judicial decisions (and has definitely appeared in Israeli court decisions): akin to Nicole Gonzalez Van Cleve's work, in which judges and lawyers ridiculed defendant's Ebonics, we might find similar things in observations and content analysis. The problem with relying exclusively on this method is that, the more cautious and tactful people are, the less evidence of bias there will be.

Which is why I would like to suggest a mixed-method approach consisting of two steps. The idea behind this one is that what is really behind the judicial approach is what was bothering me throughout all these years: that when judges hear of people's personal circumstances, they might recognize some lifestyle/preference/family markers that they implicitly (or explicitly) identify as inferior, tasteless, moronic, you name it, and penalize defendants for these cultural markers. Step One would be to create AWOL stories that evoke various such cultural markers and present them to a general population of respondents, asking them to identify scenarios which, to them, "smell" like Mizrachi or Ashkenazi narratives. This phase builds on David Sudnows aforementioned idea of normal crimes--namely, that professionals in the system develop sociological notions of how crimes are typically committed and rank their seriousness accordingly. It may well be that stories such as that of my defendant above "reads" to a general population as a "Mizrachi story", whereas a story about a young classical musician leaving his unit to play a concert "reads" as an "Ashkenazi story." Note that this is not to say that the people actually caught in these circumstances are Askhenazim or Mizrachim--just that their stories are perceived as belonging to one group or the other becacuse of their cultural markers. Note also that, by relying on accepted social biases, the researcher is not contributing to the problem s/he is studying, but rather taking a snapshot of social stereotypes.

In Step Two, judicial decisions in AWOL stories would be analyzed to see whether they contain cultural markers that were identified as ethnically appropriate in the previous step, and correlated with sentencing decisions. Again: it doesn't really matter, and shouldn't matter, whether the judges associate these stories explicitly (or implicitly) with a particular ethnicity; what this would show is whether a particular perceived "mentality" or "sensibility" is being penalized because it does not correspond to the world of values held by the cops. 

There could be two kinds of critiques of such a study: The first is along the lines of "you say it like it's a bad thing." If judges think that their lifestyle critique is legitimate, they would be embracing a disparity in sentencing; they might argue that it is universally commendable to penalize someone for valuing his brother's lavish bar mitzvah celebration over military service and be more lenient with someone who prioritizes, say, academic studies or helping family members out of poverty in a more readable way. The second is a chicken and egg problem: are "Mizrachi stories" perceived as bad per se, and then associated with Mizrachi defendants, or bad because they are attributed to Mizrachi defendants? And if the ultimate outcome is disparity, why does it matter?

Whichever way we decide to go with this, it is important to accept that methods for measuring disparity are imperfect and open to interpretation. But that doesn't mean we should despair. This is particularly important in the military justice context because of the considerable importance of military service for mobilization in Israeli society. It's especially notable that, as military sociologist Yagil Levy observes, the Israeli army has gone through simultaneous processes of demilitarization and remilitarization: Ashkenazi male elites are departing the ranks, shifting from combat to cyber and technology, and as a consequence, other groups, lower in the Israeli socioeconomic hierarchy, fill those voids. If the army is an increasing path for Mizrachi mobility, targeting Mizrachim with harsh consequences for AWOL because of cultural stereotypes is a huge problem. The problem is magnified by the fact that some military criminal records, including AWOL convictions, follow the defendants into civilian life and can seriously derail these efforts at mobilization through service.

It is crucial, however, not to give in to the tendency in some progressive circles to "ratchet up", i.e., to treat more privileged defendants more harshly. If the roots of the problem are in class or culture, they need to be handled as such. And they are probably both. When criminal justice is the only hammer we have, every problem looks like a nail. 

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Prepared remarks for the Mizrachi Legal Studies Conference, Harvard Law School, Dec. 10-11, 2019