tag:blogger.com,1999:blog-81070376094557795572024-02-28T05:56:29.507-08:00California Correctional CrisisThoughts and News on Criminal Justice and Correctional Policy in CaliforniaHadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.comBlogger1164125tag:blogger.com,1999:blog-8107037609455779557.post-55203829626307632842020-04-28T13:12:00.000-07:002020-04-28T13:12:19.586-07:00New Domain!Dear CCC Followers,
After 12 years of blogging, California Correctional Crisis is changing domains!
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Please bookmark <a href="https://www.hadaraviram.com/california-correctional-crisis/">https://www.hadaraviram.com/california-correctional-crisis/</a> to find all your old favorites as well as new posts about COVID-19 and everything else.<br />
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Best,<br />
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HadarHadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-90430984982181385222020-04-21T19:58:00.001-07:002020-04-21T19:58:11.324-07:00Triggers and Vulnerabilities Video Talk<iframe src="https://uchastings.hosted.panopto.com/Panopto/Pages/Embed.aspx?id=5e046856-c5e8-4c12-b54f-aba5000a1428&autoplay=false&offerviewer=true&showtitle=true&showbrand=false&start=0&interactivity=all" width=720 height=405 style="border: 1px solid #464646;" allowfullscreen allow="autoplay"></iframe>Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-52194445454636990752020-04-20T13:04:00.001-07:002020-04-20T13:12:47.085-07:00Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It<div>
When I reviewed the causes and effects of the 2008 Financial Crisis for <a href="https://www.ucpress.edu/book/9780520277311/cheap-on-crime">Cheap on Crime</a>, I relied partly on a series of lectures given by Ben Bernarke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of <a href="https://www.federalreserve.gov/newsevents/speech/bernanke20120413a.htm">"triggers and vulnerabilities:"</a></div>
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The triggers of the crisis were the particular events or factors that touched off the events of 2007-09--the proximate causes, if you will. Developments in the market for subprime mortgages were a prominent example of a trigger of the crisis. In contrast, the vulnerabilities were the structural, and more fundamental, weaknesses in the financial system and in regulation and supervision that served to propagate and amplify the initial shocks. In the private sector, some key vulnerabilities included high levels of leverage; excessive dependence on unstable short-term funding; deficiencies in risk management in major financial firms; and the use of exotic and nontransparent financial instruments that obscured concentrations of risk. In the public sector, my list of vulnerabilities would include gaps in the regulatory structure that allowed systemically important firms and markets to escape comprehensive supervision; failures of supervisors to effectively apply some existing authorities; and insufficient attention to threats to the stability of the system as a whole (that is, the lack of a macroprudential focus in regulation and supervision).</blockquote>
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The distinction between triggers and vulnerabilities is helpful in that it allows us to better understand why the factors that are often cited as touching off the crisis seem disproportionate to the magnitude of the financial and economic reaction. </blockquote>
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Bernarke's distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that <a href="https://www.sacbee.com/news/california/article242128731.html">a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons</a>, and that 59 of his fellow prisoners have tested positive. As of today, we've also seen the f<a href="https://sfist.com/2020/04/16/an-inmate-at-san-francisco-county-jail-has-covid/">irst positive test in the San Francisco jail system</a>. It's all going to mushroom from here. </div>
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Several of my colleagues (see especially <a href="https://slate.com/news-and-politics/2020/03/four-steps-prevent-coronavirus-prison-system-catastrophe.html">here</a> and <a href="https://theappeal.org/every-public-official-with-the-power-to-decarcerate-must-exercise-that-power-now/">here</a>) are making the important argument that the spread of COVID-19 in prisons is a very big deal, to the point that not addressing it properly could negate much of our social distancing effort outside the prison walls. But what is it about prisons that make them such an effective Petri dish for the virus to spread?</div>
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Think of COVID-19 as the trigger, and think of the disappointing--even shocking--<a href="https://www.politico.com/news/2020/04/05/judges-balk-release-california-prisoners-virus-165965">reluctance of federal courts to do the right thing as another trigger</a>. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in <i>Brown v. Plata</i> and some of which emerged from it.</div>
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First, what gets called "health care" in CA prisons really isn't. Litigation about it took a decade and a half to yield the three-judge order to decarcerate, and until then, horrific things were happening on a daily basis. <a href="https://www.theatlantic.com/politics/archive/2019/12/compassionate-release-lets-prisoners-die-free/603988/">Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease.</a> The cases that spearheaded <i>Plata, </i>including the story of Plata himself, were emblematic of this (see Jonathan Simon's retelling of these stories <a href="https://thenewpress.com/books/mass-incarceration-on-trial">here</a>.) </div>
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It is important to think again of what it was, exactly, about overcrowding that made basic healthcare impossible to provide. First, medical personnel were, and still are, difficult to hire and retain. California has gigantic prisons in remote, rural locations, and it is difficult to attract people willing to work healthcare in these locations. Housing, clothing, and feeding so many people in close proximity meant not only that violence and contagion were more likely to occur, but also that the quality of these things--diet, especially, comes to mind--was extremely low. Every time someone had to be taken to receive care, the prison would have to be in lockdown, which meant more delays and big administrative hassles. The administration and pharmacies were total chaos. People would wait for their appointments in tiny cages for hours without access to bathrooms. People's medical complaints were regularly trivialized and disbelieved--not, usually, out of sadism, but out of fatigue and indifference in the face of so much need. Moreover, the scandalously long sentences that a fourth of our prison population serves mean that people age faster and get sick, and make the older population an expensive contingent in constant need of more healthcare and more expense.</div>
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The outcome of the case--reducing the prison population from 200% capacity to 137.5% capacity--was mixed in terms of the healthcare outcomes. But it also yielded four important side-effects. First, it exposed the inadequacy of county jails for dealing with a population in need of both acute and chronic healthcare. Second, it created big gaps in service between counties that relied more and less on incarceration. Third, because the standard was the same for the entire prison system and relied on design capacity (rather than, following the European model, on calculating minimum meterage per inmate), it yielded some prisons in which overcrowding was greatly alleviated alongside others in which the overcrowding situation was either the same as, or worse than, before <i>Plata</i>. And fourth, because of the way we dealt with Plata, we became habituated to resolving overcrowding with cosmetic releases of politically palatable populations (i.e. the "non-non-nons") rather than addressing a full fourth of our prison population--people doing long sentences for violent crime and getting old and sick behind bars.</div>
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So, now we face this trigger--COVID-19--with the following vulnerabilities:</div>
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<ol>
<li>We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.</li>
<li>We're now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.</li>
<li>We already have a lousy healthcare system behind bars, which could not be fixed even with the release of more than 30,000 people, and that was *without* a pandemic going on.</li>
<li>We have gotten used to doing a "health vs. public safety" equation that <a href="https://californiacorrectionscrisis.blogspot.com/2020/04/cause-of-death.html">doesn't make sense</a> and biases us against people who committed violent crimes <a href="https://californiacorrectionscrisis.blogspot.com/2020/04/yes-we-have-to-release-people.html">at the wrong time and for the wrong reasons</a>. In fact, we are so married to the idea that we can't second-guess mass incarceration, that the newest preposterous suggestion has been to protect people from COVID-19 by... <a href="https://www.latimes.com/california/story/2020-04-10/federal-judge-suggests-california-consider-using-private-prisons-to-reduce-coronavirus-danger">introducing private prisons into the mix</a>. </li>
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Stack these vulnerabilities against the trigger, and what you have is an enormous human rights crisis waiting to happen in the next few weeks. It's already started. </div>
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And if you wonder whether this can be contained in prisons, well, it can't. Guards don't live in prison, obviously; <a href="https://www.cdcr.ca.gov/covid19/cdcr-cchcs-covid-19-status/">prison staff has already been diagnosed positive in multiple prisons.</a> Stay at home all your like, wear your home-sewn masks all you wish; we have dozens of disease incubators in the state and apparently very little political will do do anything to eliminate them.<br />
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What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted <a href="https://slate.com/news-and-politics/2020/03/four-steps-prevent-coronavirus-prison-system-catastrophe.html">here</a>, primarily point four: get over your icky political fears about public backlash and let older, sicker people out--even if they committed a violent crime twenty or forty years ago. If you are a governor or a prison warden with some authority to release people, do as Sharon Dolovich <a href="https://theappeal.org/every-public-official-with-the-power-to-decarcerate-must-exercise-that-power-now/">implores </a>in this piece and use your executive power to save lives. </div>
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Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-56037306809157459442020-04-09T10:17:00.001-07:002020-04-09T10:17:23.022-07:00Cause of Death<br />
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjOHVdKWRGlKUvspRkJK4zl15AldyIiLj83ty5cg7qRm0VgGE_3ys3Zv72VrBPcSvbGaZOV1JEK6cQbbT23Jc58f8BdVxJUEXGaBu2rpqmUkgh7LK04n12QekjjodOj6XUPGIYpSkAWtSP2/s1600/Screen+Shot+2020-04-09+at+10.03.01+AM.png" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="409" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjOHVdKWRGlKUvspRkJK4zl15AldyIiLj83ty5cg7qRm0VgGE_3ys3Zv72VrBPcSvbGaZOV1JEK6cQbbT23Jc58f8BdVxJUEXGaBu2rpqmUkgh7LK04n12QekjjodOj6XUPGIYpSkAWtSP2/s640/Screen+Shot+2020-04-09+at+10.03.01+AM.png" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Source <a href="https://public.flourish.studio/visualisation/1845748/?fbclid=IwAR3WvMfeom-kdnblE1fb8bObgaa5Dsw4p2x059uu8ZcIPxIeF9NAnXIJkUk" style="font-size: medium; text-align: start;">here</a><span style="font-size: small; text-align: start;">.</span></td></tr>
</tbody></table>
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Today I came across this sobering table, which struck me as important not only for the obvious reasons. You'll note that homicide is nowhere in the top-ten list of causes of death for Americans. If you look at the <a href="https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_06-508.pdf">CDC reports for causes of death in 2017</a> based on vital statistics, you'll see homicide ranked anywhere between #106-108 (interestingly, "legal intervention" is ranked 109.)<br />
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Yet, to browse through the list of Netflix and Prime Video shows we are offered to numb our souls from the pandemic experience, you could be mistaken to believe that a much higher proportion of Americans succumb to homicide. And to me, this suggests that the current debate about who to release on the basis of "public safety" is guided more by folk devils than by real concerns.<br />
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Assuming that you include people in prison in the overall category of human beings whose lives and health matter (if you don't, thank you for reading this far--we probably don't speak the same language and I hold no hope of convincing you, nor should you hope to convince me), it should be obvious that COVID-19 poses a much greater risk to public safety, broadly defined, than homicide.<br />
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Now, releasing people convicted of violent crimes is not really a trade-off between COVID-19 deaths and homicide deaths, given that the folks most at risk healthwise, as I <a href="http://californiacorrectionscrisis.blogspot.com/2020/04/yes-we-have-to-release-people.html">explained</a> yesterday, are old and sick and also happen to have committed violent crime decades ago.<br />
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So, if there is reluctance to release the folks colloquially known as "violent offenders"--many of whom would barely have a technical write-up or two for the last two or three decades--it's not really coming from concerns for public safety, is it? It's coming from concerns for palatability and an idea that this is the right time for abstract ideas for retribution.<br />
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If I put the state's resistance to do the right thing here together with the <a href="https://www.sfchronicle.com/bayarea/heatherknight/article/SF-City-Hall-was-ahead-of-the-curve-in-its-15185633.php#">mismanagement of homeless populations</a>, it almost seems like, at our time of need, we've simply decided that the bottom rung or two in the American class ladder don't matter. And they do, which makes my heart hurt.<br />
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In Tricycle Magazine, Chenxing Han <a href="https://tricycle.org/trikedaily/coronavirus-racism/">writes so beautifully</a>:<br />
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<blockquote class="tr_bq">
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;">The Buddha is often likened to a physician. He diagnosed the unsatisfactoriness of the human condition and revealed its cause. The Buddha was no doomsayer, however: his teachings were treatments that promised a cure, an ultimate freedom from that which ails us.</span><span style="background-color: white;"> </span>SARS-CoV-2 is a truth-teaching virus. It has revealed to me a deep well of fear: of my loved ones dying, of dying myself (or, during more mundane moments, of running out of brown rice). More incisively, it has revealed society’s disturbing inequities and gross iniquities, forcing us to confront the truth of how the most vulnerable among us—the poor, the disabled, the unhoused, and the otherwise marginalized—bear the brunt of this crisis. </span> </blockquote>
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What this cruel teacher will teach our state about caring for its most vulnerable wards remains to be seen--hopefully before it is too late.Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-81583976453244881112020-04-07T10:02:00.002-07:002020-04-07T10:02:13.449-07:00Yes, We *Have* to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><img alt="Manson follower Susan Atkins loses 13th attempt at freedom -- and ..." src="https://latimesblogs.latimes.com/.a/6a00d8341c630a53ef0120a5433b53970b-600wi" style="margin-left: auto; margin-right: auto;" /></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,<br />James Whitehouse. Photo credit: Ben Margot for the Associated Press.</td></tr>
</tbody></table>
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Latest news on prisoner release: A couple of days ago, the three-judge <i>Plata </i>panel <a href="https://www.theguardian.com/world/2020/apr/06/california-prisons-older-inmates-coronavirus">denied relief for procedural reasons</a> (TL;DR "we are not the appropriate forum for this - go to the original courts.") As good people are scrambling to put together writs for those courts, I wanted to address something that I *thought* would be obvious, but apparently isn't.<br />
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In the aftermath of putting up <a href="https://www.change.org/p/gavin-newsom-release-more-prisoners-from-cdcr-now?recruiter=1066173&utm_source=share_petition&utm_medium=copylink&utm_campaign=share_petition">my petition</a> to release prisoners, I've been hearing commentary that we should limit the releases to "nonviolent criminals." I use the quotation marks because the definitions of what is and is not "violent" and "nonviolent" is not as clear as people think, and because someone's crime of commitment is <a href="https://www.nap.edu/read/4422/chapter/5">not necessarily an indication of their violent tendencies at present</a>, <a href="https://heinonline.org/HOL/Page?handle=hein.journals/saclr53&div=32&g_sent=1&casa_token=joX6q9LHN2QAAAAA:xrrWkARU_fIwCpzj05VvdOsb2UC7tq-g7UbeoudCkw55VmQ05ydEa8eM_pNPAAQ80DZkztsro34&collection=journals">nor does it predict their recidivism</a>.<br />
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In <a href="https://www.ucpress.edu/book/9780520277311/cheap-on-crime">Cheap on Crime</a> and <a href="https://journals.sagepub.com/doi/abs/10.1177/0002716215599938">elsewhere</a> I described the post-recession efforts to shrink prison population, which targeted only nonviolent people; reformers understandably thought that such reforms would be more palatable to the public. The problem with this kind of policy, though--as <a href="https://www.prisonpolicy.org/reports/violence.html">this excellent Prison Policy report explains</a>--is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.<br />
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In addition to this, if we are looking at releases to address a public health crisis, we have to release the people who are vulnerable to the public health threat. And who, in prison, is most vulnerable? Aging and infirm prisoners.<br />
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The math is simple. Out of the prison population, folks who were sentenced for a violent crime are the ones most likely to be (1) aging and (2) infirm. Aging, because the sentences are much longer; and infirm, because spending decades in a hotbed of contagion, with poor food and poor exercise options, does not improve one's health. We know that a considerable portion of the health crisis in California prison is iatrogenic; not so long ago, Supreme Court Justices were horrified to learn that a person was dying behind bars every six days fo a preventable disease. So, a person who has spent decades in prison is more likely to be vulnerable to health threats. Such a person is also more likely to be older (by virtue of having been in prison for 20, 30, 40 years!) and <a href="https://pdfs.semanticscholar.org/d760/21fa78e0084f5e7e60cdd39c8dad2ee84388.pdf">therefore far less of a public risk of reoffending</a> than a younger person who's been inside for a few months for some nonviolent offense.<br />
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So, if there's any reluctance to release people who are (1) old, (2) sick, and (3) more likely to contract a serious form of disease that will (4) cause more suffering and (5) cost more money, it's time to look in the mirror and ask ourselves - why?<br />
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Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.<br />
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So, is it perhaps because we think of these releases not as an essential public health action, but as some kind of "reward" for people who we think are "worthy" or "deserving"?<br />
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The correctional system's ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book <a href="https://www.ucpress.edu/book/9780520291553/yesterdays-monsters">Yesterday's Monsters</a> I describe the 2009 parole hearing for Susan Atkins, one of the Manson Family members who participated in the murder of Sharon Tate and her friends in 1969. Forty years later, in her early sixties and ravaged by an inoperable brain tumor, Atkins--a devout Christian with a clean disciplinary record for decades--was wheeled into her hearing on a gurney. At her side was her 17-year husband, lawyer James Whitehouse, who represented her in the hope that she be allowed to spend the last few months of her life by his side.<br />
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The Parole Commissioners' treatment of the case was shockingly obtuse. They started by offering the barely conscious Atkins a hearing aid (as if she could hear them), analyzed old psychological reports from her file, and addressed her educational and rehabilitation "prospect." They even mocked her husband for being able to afford palliative care for his wife. Incensed by this facetiousness, Whitehouse exploded:<br />
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<blockquote class="tr_bq">
For the record, she’s lying in her gurney here. She is paralyzed over 85 percent of her body. She can move her head up and down. She can move it to the side. She used to have partial use of her left arm, partial limited use, meaning she can’t wave to you. She can’t give you a thumbs up. She no longer can point at you, I believe. She can’t snap her fingers. And this is the evidence. . . . We haven’t been able to get her in a wheelchair for well over a year. Permanent speech impairment—“does not communicate, speaking or writing”—complex medical needs, assistance needed eating, bathing, grooming, moving, cleaning, permanent speech and comprehension impairment due to underlying medical problems. . . . That’s the only evidence regarding her medical condition. And all those things have to do with what we are supposed to be looking for the future of behavior. In light of that, is there anything that her commitment offense has to do that’s probative to what she’s going to be doing in the future as far as you know? That’s a question.</blockquote>
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The Parole Board refused to release Atkins, arguing that "<span style="font-family: "Times New Roman", serif; font-size: 12pt;">these Manson killings and the rampage that went on is almost iconic and they have the ability to influence many other people, and she still has that ability as part of that group." Atkins, who had no ability to do anything at all, died alone in prison a few months later.</span><br />
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<span style="font-family: "Times New Roman", serif; font-size: 12pt;">If this outcome feels okay to you, ask yourself: what's it to you? Do you have an idea of deservedness, of a price to pay, of just deserts? Do you think your idea of an appropriate time spent behind bars bows to no one, to nothing, not even to old age, sickness, and death?</span><br />
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<span style="font-family: "Times New Roman", serif; font-size: 12pt;">Do you feel comfortable sentencing thousands of California prisoners to death because of these ideas of deservedness, or appropriate retribution, that you have? Will these ideas give you comfort when CDCR has to reckon with thousands of preventable deaths of human beings, just like you?</span><br />
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<span style="font-family: "Times New Roman", serif; font-size: 12pt;">And if your answer is, "well, they didn't consider that when they killed their victims, right?", I have news for you: The victims are not coming back. They've been gone for decades. It's horrible, and tragic, and we can't fix that. Certainly not with another tragedy.</span><br />
<span style="font-family: "Times New Roman", serif; font-size: 12pt;"><br /></span>
<span style="font-family: "Times New Roman", serif; font-size: 12pt;">Get in touch with our common humanity. Write to the Governor. Sign <a href="https://www.change.org/p/gavin-newsom-release-more-prisoners-from-cdcr-now?recruiter=1066173&utm_source=share_petition&utm_medium=copylink&utm_campaign=share_petition">my petition</a>. Do something.</span>Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-15718781743865072032020-04-03T13:02:00.000-07:002020-04-03T13:06:04.363-07:00Gov. Newsom, Please Release More Prisoners to Prevent CDCR from Becoming a Mass GraveDear Gov. Newsom,<br />
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Many thanks for your tireless work on behalf of Californians in their hour of need. I can only imagine the multiple emergencies on your agenda and the many proverbial fires you must put out to "flatten the curve" and give our emergency services a fighting chance against the COVID-19 pandemic.<br />
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I appreciated learning about your <a href="https://www.latimes.com/california/story/2020-03-27/newsom-commutes-prison-sentences-including-for-murder">recent commutations</a>, as well as about the plans you have put in place to <a href="https://www.latimes.com/california/story/2020-03-31/coronavirus-california-release-3500-inmates-prisons">release 3,500 prisoners</a> from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.<br />
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Less than a decade ago, the <a href="https://www.supremecourt.gov/opinions/10pdf/09-1233.pdf">Supreme Court found healthcare conditions at CDCR so appalling</a> that, every six days, a person behind bars died from a preventable, iatrogenic disease. The Court attributed this massive failure to deliver anything that could be even remotely called "health care" to overcrowding in prisons, and supported the federal three-judge panel recommendation to release approximately 30,000 prisoners. That has somewhat improved the situation, but even with massive efforts toward a turnaround on the part of the federal receiver, we are still seeing woefully deficient healthcare--interminable lines and wait times, people treated in cages in which they have to wait for hours, "group therapy" consisting of a semicircle of cages.<br />
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And that's <b>without</b> a pandemic going on.<br />
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Gov. Newsom, our prisons are a Petri dish for contagion and disease. It is impossible to provide minimal health care to this many people with a highly contagious virus on the loose.<br />
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The <a href="https://www.ppic.org/publication/californias-prison-population/">Public Policy Institute of California,</a> relying on CDCR statistics, reports that 23% of California inmates are 50 or older. Aging prisoners may be contributing to California’s prison health care costs—now highest in the nation. The state spent $19,796 per inmate on health care in fiscal year 2015, according to the Pew Charitable Trusts. These costs were more than three times the national average and 25% more than in 2010. Moreover, many California prisoners serve extremely long sentences: Approximately 33,000 inmates are serving sentences of life or life without parole. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.<br />
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Isn't decades in prison enough? How much retribution or deterrence do we still need for people serving sentences of 30, 40, or 50 years, that we must keep them behind bars for longer in the face of a lethal pandemic?<br />
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Robust research about aging in prison confirms that people age much faster behind bars than they do on the outside, and they are much more vulnerable to disease--partly because of confinement conditions and partly due to faulty health care.<br />
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The scale of releases we should contemplate is in the tens of thousands, not in the thousands.<b> If you do not act now, within a few short weeks, the CDCR will become a mass grave.</b><br />
<br />
Please, don't let the current litigation be the only push to do the right thing. You have done the right thing so many times--as Mayor of San Francisco and as our Governor. The prisoners are Californians, too. They can't vote from prison, but <b>they are your constituents and you must consider their welfare.</b><br />
<b><br /></b>
<b>Please, act now, before thousands of lives are lost.</b><br />
<b><br /></b>
Readers, please join this open letter by <a href="http://chng.it/7YFXwGjD2W">signing my Change.org petition.</a>Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-61842736203102320582020-03-31T09:05:00.001-07:002020-04-08T13:58:59.878-07:00Health Measure or Oppressive Social Control? <div class="tr_bq" style="text-align: center;">
<img alt="The 'Splainer: What is a mikvah, and does it have anything to do ..." src="https://religionnews.com/wp-content/uploads/2014/10/thumbRNSROSHHASHANA3.jpg" /></div>
<br />
One of the hottest stories from quarantined Israel is the fierce Haredi (Ultra Orthodox) objection to the closure of <i>mikvaoth</i> (ritual bathhouses.) Almost two weeks ago, Ha'aretz <a href="https://www.haaretz.com/israel-news/.premium-israeli-rabbis-get-with-the-program-against-the-coronavirus-1.8665161">reported</a>:<br />
<br />
<blockquote class="tr_bq">
Another issue of concern is immersion in a mikveh, a ritual bath, especially for women, who must immerse every month under the rules of family purity. </blockquote>
<blockquote class="tr_bq">
“The mikvehs for women’s immersion are under constant supervision, so there is no reason to fear keeping the mitzvah of purity properly,” the Rabbinate’s document states. However, “anyone who must be in quarantine must postpone her immersion until she is permitted back out.” </blockquote>
Indeed, keeping the <i>mikvaoth </i>open is strongly suppported (!) by Israel's health minister Ya'acov Litzman, himself a haredi man. Decrees published late at night confound the Israeli public with contradictory policies: the decree was to <a href="https://www.haaretz.co.il/health/corona/.premium-1.8700172">close the <i>mikvah</i> for men, but keep it open for women</a>. If you're looking for a patriarchal angle, here it is: women's access to the <i>mikvah</i> to purify themselves after their monthly period is a prerequisite for having sex, and is therefore in the best interest of their husbands. Then, they changed course and reopened the <i>mikvah</i> for men also, apparently under the pressure of Ultra Orthodox groups who wanted to ensure access to this prerequisite for visiting holy sites (in itself a can of worms in the context of quarantine.)<br />
<br />
The most recent development is Litzman's insistence to keep the <i>mikvaoth</i> open because <a href="https://www.haaretz.co.il/health/corona/.premium-1.8703209">"it is inconceivable that people should be allowed to take their dog out for a walk and the mikvaoth will be closed."</a> When Netanyahu said, "what can we do, the virus does not respect religion," Litzman replied, "well, we will."<br />
<br />
Setting aside the absurdity of a health minister who apparently does not care for the health of Israeli citizens, particularly <a href="https://www.nytimes.com/2020/03/30/world/middleeast/coronavirus-israel-cases-orthodox.html">those of his own congregation</a>, and who will not use his insider influence to talk the Rabbis into saving their own followers, I was starkly reminded of a similar dark period in history--namely, the tragic days of the 1980s, in which San Francisco was in the throes of the AIDS epidemic and the numbers of the stricken rose every day. Young people were going to funerals incessantly, caring for each other in desperation against an indifferent administration, and waging battle on two fronts - against the disease and against homophobia.<br />
<br />
When Mervyn Silverman, then the Director of Health in San Francisco, decided to close the bathhouses--a hotbed of gay liberation and sexual activity--he encountered vociferous objections from many in the gay community. The New York Times from 1984 <a href="https://www.nytimes.com/1984/10/10/us/14-san-francisco-sex-clubs-told-to-close-to-curb-aids.html">reported:</a><br />
<br />
<blockquote>
Dr. Mervyn Silverman, San Francisco's Public Health Director, said at a news conference that the 14 establishments ''have been inspected on a number of occasions and demonstrate a blatant disregard for the health of their patrons and of the community.''<br />
He said the establishments were among 30 businesses investigated by undercover health officials since an April ordinance went into effect banning ''unsafe'' sexual activity at sex parlors and bathhouses. The 14 that he ordered closed have not complied with the ordinance, said Dr. Silverman, who has been under pressure from Mayor Dianne Feinstein to order the shutdowns.<br />
The authorities posted closing notices effective at noon on the sex club buildings. If a notice is ignored, the city would go to a judge to obtain a court order shutting down the operation.<br />
Dr. Silverman's announcement came just a week after the department released figures showing an increase in reported AIDS cases in San Francisco, where officials estimate that 15 percent of the city's population of 700,000 is homosexual.<br />
Last month 39 new cases of AIDS were reported, for a total of 723 since July 1981. Eighteen AIDS patients died in September, the department said. According to the Centers for Disease Control, a Federal agency based in Atlanta, 6,122 AIDS cases have been reported throughout the United States and 2,734 of those patients died.</blockquote>
Gay liberation activists considered this a thinly veiled effort to push the community, who had just recently achieved a modicum of acceptability, back into the closet. In the context of a similar debate in New York, <a href="https://apnews.com/341795579f9231f8bb2472c61d91ae91">the AP reported</a>:<br />
<br />
<blockquote class="tr_bq">
″My generation sees this (opposition to the bathhouses) as endangering hard-fought, hard-won and well-deserved advances. What they don’t realize is that this was before the virus came along,″ said Caiazza, whose West Side medical practice has become more and more devoted to AIDS in the past three years. </blockquote>
Fascinatingly, there are still people who believe--today, after all those years--that the closure was an unnecessary homophobic move. Gayle Rubin <a href="http://www.foundsf.org/index.php?title=Sex_Panic_Closes_Bathhouses">writes</a>:<br />
<blockquote class="tr_bq">
Proponents of bathhouse closure, such as Randy Shilts, argued that their program was an obvious common sense measure to save lives. They portrayed the debate about closure as one pitting public health against civil liberties. Shilts in particular wrote as if public health professionals were in agreement on the desirability of closing the baths, and that only political considerations were preventing them from doing so. (Shilts 1987)<br />
On the contrary, bathhouse closure, far from being an obvious public health measure impeded by political pressure, was a case of political pressure overwhelming public health considerations. Public health professionals were not unanimous about the necessity or desirability of closing the baths, which stayed open in most other cities. It is ironic that while there are still no legal gay bathhouses within the San Francisco city limits, establishments in nearby municipalities such as Berkeley and San Jose have continued to thrive.<br />
It is arguable that what mattered in the long run was changing behavior, not its location. Closing the baths may have actually impeded the progress of safe-sex education. Even in situations where the ownership did not cooperate, safe sex was spreading, like the epidemic itself, from person to person, through sexual contact, as men would engage each other in discussions of what they were or were not about to do. Wholesale closure eliminated opportunities for sex education along with opportunities for sex. At the baths, the concentrated populations of those at high risk for AIDS provided opportunities for educators to disseminate condoms along with written guidelines for AIDS risk reduction. (Murray & Payne 1988; Bolton 1992)<br />
The social costs of closing the baths were treated cavalierly. Those who pushed for closure appeared to assume that nothing important or good ever happened in the sex palaces. They failed to recognize the baths and sex clubs as important institutions that served many needs within a diverse gay male community. (Brub 1996) The major gay baths had deep pockets and expensive attorneys, and could afford a protracted legal fight. By contrast, many of the leather clubs were relatively small operations in which a dedicated owner had invested most of his capital and a great deal of personal commitment, and they could not afford prolonged litigation. Calls for closure quickly claimed most of the specialized leather, SM, and fisting sex clubs even before any city actions were taken, and as the agitation intensified, most of the men who ran the leather clubs elected to shut down and limit their losses. The wider social and economic fallout from closure was also substantial. While the owners of bathhouses were frequently vilified as greedy capitalists (and some undoubtedly were), the debates never grappled with the importance of the baths to gay male social life or the economic impact of closure on the gay economy.</blockquote>
I vehemently disagree with Rubin: Closing public bathing facilities in the face of a pandemic, whether they cater to the haredi or the gay community, is not a "case of political pressure overwhelming public health considerations." If anything, the vociferous insistence on the opposite policy is a textbook example of precisely that. While it may be true that people who hate <i>haredim</i> or who are deeply homophobic find a measure of schadenfreude in the resulting harm to community morale--and the pain of that should certainly be acknowledged--when saving lives is at stake, we absolutely must do what we can.<br />
<br />
It's instructive to read Silverman's aftermath thoughts about the closures, as he laid them out <a href="https://www.pbs.org/wgbh/pages/frontline/aids/interviews/silverman.html">in an interview in 2004</a>:<br />
<br />
<blockquote class="tr_bq">
What was unique here was that people could come there and have multiple partners, as many as 20 or 30 a night. Most men, heterosexual men, could not understand how this was possible, but if you are the recipient, then obviously you could have as many partners as you can tolerate. And if you had 30 partners, and one or more of those partners was HIV positive, there was a good chance, not necessarily every night or whatever, but you were placing yourself at great risk -- unknowingly, of course, in the early years -- at risk for getting infected. ...<br />
The mayor at that time said, "If you save one life, then it's worth closing the bathhouses." At the time that this was going on, it was my feeling that we wouldn't save one life; we would lose many more, because the bathhouses represented 5 or 10 percent of the gay community on any regular basis. That's who frequented those bathhouses. That left you with 90 or 95 percent of the community you needed to reach, because if you could make the bathhouses disappear overnight, you weren't going to make the transmission of this virus disappear overnight. One had to think of the entire community, and how do you reach that community and get a behavior change?<br />
Interestingly enough, before any of the drugs were discovered and out in general distribution, the rectal gonorrhea rate in this city dropped from 100 percent that we had figured that we had before down to 15 percent. There was an 85 percent drop. The reason I bring that up is in the early years, that was what we were using as a surrogate marker. We didn't have HIV identified or the test, so we figured if someone had that, there was a good chance they may have whatever this new disease was. This dropped 85 percent before any drugs, and the reason it dropped was the exposure that the Health Department and working with the gay community had in getting the message out and getting behavior change, a behavior change never seen before.<br />
If you have an obesity clinic, a smoking cessation clinic, a drug substance abuse clinic, where you're trying to get people to stop, and you get a 20 percent success rate, ... you feel you've had a success. We're talking here about an 85 percent drop in rectal gonorrhea. That meant that from a public health perspective, we must have been doing something right.</blockquote>
Had Litzman not been, essentially, a mouthpiece for Rabbis who flout state law and regulation, he could have been a bridge that reaches across the abyss with empathy and compassion for the community's plight. There is still an opportunity to do this, because every day that the <i>mikvaoth </i>remain open is another victory for the contagion. I write this being fully aware of the fact that I'm not on the receiving end of such measures, and that--as opposed to Rubin--I didn't live through the worst of the AIDS epidemic and perhaps that dulls my appreciation for the psychological blow that the closures had on the community. While emergency measures must be taken if lives are to be saved, we can do so as we express sensitivity to people's communities, sense of collective identity, and allegiance to community norms.<br />
<br />
There is an additional point that matters a lot. Recently, Cianna Stewart, who worked on the front lines of AIDS prevention in the 1990S, <a href="https://medium.com/@cianna/notes-from-my-second-pandemic-28ad7ab402c6">wrote a piece comparing her personal experiences of the two pandemics.</a> She found many similarities between the two experiences, but some important differences:<br />
<br />
<ul>
<li>this timeline is much faster</li>
<li>this virus is much easier to spread</li>
<li>a racist/xenophobic backlash operates differently from a homophobic backlash because while individuals are being racist against Chinese (and perceived Chinese) people, as a society we have a different understanding of how racism is wrong, in contrast to the societally-supported moral outrage against gays and bisexuals which was widespread then and still lingers to this day (it’s also different that now we have a President who is actively stoking the racism where before the Presidents primarily engaged in homophobia and racism by omission)</li>
<li>the coronavirus is spread through everyday activities, while HIV is spread primarily (although not exclusively) through vilified behavior and actions veiled in secrecy (for example: it’s generally easy to have conversations with family about wanting to play basketball or hug people, but generally hard to talk with family about longing for unprotected sex)</li>
<li>COVID-19 has the potential to spread through families and there are many stories about families in grief about not being able to be with their dying loved ones, in contrast to people getting kicked out of their families for being gay and/or when they contracted HIV (I will note that in the early days of the AIDS crisis there was a lot of fear and misinformation about routes of transmission and some families wanted to be with their dying but were afraid or prevented from doing so)</li>
<li>people don’t have to get infected or know anyone who’s infected in order to feel their lives are being torn apart by this pandemic because it already has had a broad economic impact that is likely to get worse, and in the short term is devastating for so many individuals and in the long(er) term may push us into a depression and is likely to restructure our global economy</li>
<li>many people in epidemiology circles have been predicting a superflu pandemic like this for a long time and we shouldn’t act like it’s a surprise</li>
</ul>
<br />
To the extent that the decision to close the bathhouses in 1984 is still controvesial, a decision to close the <i>mikvaoth</i> should be consensual precisely because of these factors: the fast spread of the virus, the contagion, and the spread through everyday activities that cannot be stereotyped as prioritizing one group over others.<br />
<br />
Mr. Litzman, while it is too late for too many people, it is not too late to save lives in a community ravaged by this virus. Close the <i>mikvaoth</i> now.<br />
<br />
UPDATE: Litzman and his wife have both tested positive to COVID-19 and thus forced government officials into quarantine - this after being the only minister refusing to have his temperature checked at the entrance to the Knesset. Israeli doctors are demanding his resignation.Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-59018707771746678202020-03-22T08:03:00.000-07:002020-03-22T08:05:08.698-07:00Israel and the U.S. - Emergency Measures<span style="font-family: "times" , "times new roman" , serif;">Political historian Heather Cox Richardson writes a daily news digest titled <a href="https://heathercoxrichardson.substack.com/">Letters from an American</a>. In last night's edition, she flagged the story about <a href="https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023">the DOJ secretly seeking emergency powers</a>. She writes:</span><br />
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif;">In the last two days, we learned that the administration and Republican members of Congress heard dire warnings about the coming coronavirus and continued to lie to the American people, telling us the Democrats trying to alert us were simply bent on undermining Trump. </span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif;">We also learned that Trump has refused to use the Defense Production Act, passed under President Harry S. Truman, who used it during the Korean War. This law would enable Trump to demand that American industries produce the medical equipment we currently need so badly. Business leaders say the invoking the law isn’t necessary, and Trump claims they are volunteering to produce what the nation needs in a public-private partnership. Currently there is such a critical shortage of medical equipment that some hospitals are asking people to sew basic masks at home, but today Trump announced that the clothing manufacturer Hanes is retrofitting factories to make masks; it has joined a consortium that is expected to produce 5-6 million masks weekly. </span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif;">These two stories reveal the same ideology that would underlay a law permitting arrest and imprisonment without trial: that society works best when it defers to a few special people who have access to information, resources, and power. Those people, in turn, use their power to direct the lives of the rest of us in larger patterns whose benefit we cannot necessarily see. We might think we need medical supplies but, in this worldview, using the government to force individual companies to make those supplies would hurt us in the long run. This ideology argues that we are better off leaving the decisions about producing medical supplies to business leaders. Similarly, we need leaders to run our economy and government, trusting that they will lead us, as a society, toward progress. </span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif;">But there is another way to look at the world, one that is at the heart of American society. That ideology says that society works best if everyone has equal access to information and resources, and has an equal say in government. In this worldview, innovation and production come from people across society, ordinary people as well as elites, and society can overcome challenges much more effectively with a multiplicity of voices than with only a few who tend to share the same perspective. To guarantee equal access to information, resources, and government, we all must have equality before the law, including the right to liberty unless we have been charged with a crime. </span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif;">For decades, now, America has increasingly moved toward the idea that a few people should consolidate wealth and power with the idea that they will most effectively use it to move America in a good direction. But the novel coronavirus pandemic has undercut the idea that a few leaders can run society most effectively. The administration’s response to this heavy challenge has been poor. And now we know that the very people who were publicly downplaying the severity of the coronavirus were told by our intelligence agencies that it was very bad indeed, and they were sharing that information with a few, favored individuals. Their leadership will literally, and quite immediately, cost a number of our lives.</span></blockquote>
<span style="font-family: "times" , "times new roman" , serif;">I was struck by parallels in Israel. Dan Yakir, legal advisor to ACRI (the Association of Civil Rights in Israel) shared an email last night--here's my translation (Dan, I hope I'm staying true to the letter):</span><br />
<span style="font-family: "times" , "times new roman" , serif;"><br /></span>
<br />
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif;">On March 21, 2020, we wrote to the Attorney General and expressed concern about government offices acting without legal authority, sheltered by the coronavirus crisis. For example, this week, the spokesperson for the Ministry of Health shared an announcement that included a variety of prohibitions, such as leaving the house for any nonvital purposes and hosting family and friends, with no basis; the legal office at the Ministry of Health demanded, with no legal authorization, that all Deans of health sciences schools provide a list of their students so they can be drafted if there's a shortage in medical personnel; the Ministry of the Treasury published on its website on Friday instructions to employers about minimizing the number of onsite workers, even though corresponding emergency regulations have not been published yet. </span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif;">Most extreme is the Prime Minister, who almost every evening announces new limitations and decrees to the public. He never announces when they will attach. Most of the time, these are instructions with no legal validity and in some cases they are policies that have not yet been solidified and detailed. Ever since the Prime Minister's announcement on the evening of Feb. 19, 2020, the public has been misled to think that a curfew policy is in effect. The publication of the draft regulation in the news outlets has bolstered this [mistaken] impression, but in this case, also, emergency regulation has not been published and its complete articulation has not been completed. </span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif;">Against this backdrop, consider the Minister of Security's tweet from a few days ago, in which he encourages senior state workers to act at any price to anticipate the coronavirus: "If need be, knowingly violate the rules!"</span></blockquote>
<span style="font-family: "times" , "times new roman" , serif;">ACRI's letter to the Attorney General (in Hebrew) is <a href="https://01368b10-57e4-4138-acc3-01373134d221.usrfiles.com/ugd/01368b_39571860c3434e8094dbd6da626d5546.pdf">here</a>. </span>
<br />
<span style="font-family: "times" , "times new roman" , serif;"><br /></span>
<span style="font-family: "times" , "times new roman" , serif;">The whole world, of course, is experimenting with emergency regulation these days. But the striking similarities between the U.S. and Israel in particular are not surprising. <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3404281">In a recent paper</a>, I argue that American influence on Israeli criminal justice policy stems from some similarities between the two political cultures. Drawing on Malcolm Feeley's argument about v<a href="http://www.bu.edu/bulawreview/files/2018/06/FEELEY.pdf">iewing American criminal justice through the lens of American Political Development</a>, I argue that the U.S. and Israel are best compared to developing nations where criminal justice is concerned: </span>
<br />
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif; white-space: pre-wrap;">Looking at both countries through the lens of development theory highlights several relevant similarities. First, both countries have a strong legacy of ethnic and racial conflict, which impacts the composition of the population subjected to criminal justice control. Second, both countries are characterized by high levels of interpersonal violence and, relatedly, a high concentration of guns. In the United States, gun ownership is the outcome of both illegal purchase and permissive gun laws, and in Israel, guns circulating in civilian hands are related to the wide access—legal and illegal—to military weaponry even in civilian spaces. In both countries, fetishization of protectionism and aggressive bravery plays into the culture of interpersonal violence. Third, both countries are characterized by unusual levels of police overreach and brutality, far beyond their Western industrialized counterparts. And fourth, both countries rank considerably higher than other Western industrialized countries in perception of political corruption—in 2018, the United States at 22 and Israel at 34. </span></blockquote>
<blockquote class="tr_bq">
<span style="font-family: "times" , "times new roman" , serif; white-space: pre-wrap;">The context in which these characteristics arise is, of course, different for the two countries. The United States has a long and difficult legacy of slavery, whereas in Israel the ethnic conflict stems from the Israeli-Palestinian conflict and the Occupation, as well as from ethnic and religious tensions within the Jewish population. Moreover, gun ownership has a very different cultural significance in the two countries, though they both share fear and concern about guns ending up in inappropriate hands. And the differences in scale matter a great deal; it has often been said that “American criminal justice” is not a monolith, as there is considerable difference among state criminal justice policies. Still, on a national scale, the cultural comparisons are striking. The trend of comparison is especially evident when comparing the Netanyahu and Trump administrations’ positions on crimmigration, drug enforcement, severity of punishment, and racial/ethnic discrimination in application of laws. Some manifestations of these policies have been particularly similar: The separation of immigrant children from their families at the American border, widely criticized both domestically and internationally, was reverberated in the incarceration of African asylum seekers at Saharonim prison in the desert, a policy move which similarly provoked international critique. Similarly, the Trump Administration’s enthusiasm for the death penalty for drug dealers, even as the penalty is in its final throes, is echoed by legislative efforts in Israel to make capital punishment a de-facto option --with supporters in both countries making deterrence arguments. </span></blockquote>
<br />
<span style="font-family: "times" , "times new roman" , serif;">I think the same mechanisms are at work in the creation of emergency legislation. The same vulnerabilities and predatory governing techniques are at work in both countries, and they fuel fantasies of despotic governing, for which the global health crisis provides the perfect cover. It's not that the measures themselves are unreasonable; if adopted through proper parliamentary process, many of them make sense in the current crisis. My concern is that disturbing precedents to proper governance are made in both countries, whose poisonous effects will remain with us long before the virus is abated.</span>
Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-18747616015077625852020-03-21T17:11:00.002-07:002020-03-21T17:22:24.146-07:00Coronavirus and Criminal Justice CompendiumGeneral<br />
<a href="https://www.prisonpolicy.org/blog/2020/03/06/pandemic/">No need to wait for pandemics: The public health case for criminal justice reform</a><br />
<a href="https://docs.google.com/document/d/1XNkWwFajh7WsSbvVCMoaIxiFsXtsoQ5RlEFewOgBX6A/edit">California Coalition of Women Prisoners Syllabus on Coronavirus and Corrections</a><br />
<br />
Crime Rates<br />
<a href="https://www.fastcompany.com/90477075/covid-19-layoffs-recession-jobs-research">Concerns about layoffs leading to rise in crime rates</a><br />
<a href="https://www.recordonline.com/news/20200321/some-police-say-crime-down-during-covid-19-fight">Some police say crime down during COVID-19 fight</a><br />
<a href="https://www.interpol.int/en/News-and-Events/News/2020/INTERPOL-warns-of-financial-fraud-linked-to-COVID-19">INTERPOL warns of financial fraud linked to COVID-19</a><br />
<a href="https://www.justice.gov/usao-wdva/covid-19-fraud">The Virginia Coronavirus Fraud Task Force</a><br />
<br />
Compilations of State Responses<br />
<a href="https://thejusticecollaborative.com/covid19/">Justice Collaborative: COVID-19 (Coronavirus) Response & Resources</a><br />
<a href="https://theappeal.org/political-report/coronavirus-response-state-local/?utm_source=The%20Appeal&utm_campaign=76bc577071-EMAIL_CAMPAIGN_2018_06_22_03_58_COPY_01&utm_medium=email&utm_term=0_72df992d84-76bc577071-58435995&fbclid=IwAR27vQyAuXlUm4KeVQY41enumzXTahY8-D4xiyKoerT6lf7vm2o8ls0assI">The Appeal: The Coronavirus Response: Spotlight on State & Local Governments </a><br />
<br />
Bay Area Jail Releases<br />
<a href="https://sanfrancisco.cbslocal.com/2020/03/20/san-francisco-releasing-26-jail-inmates-to-help-stem-coronavirus-spread/">San Francisco Releasing 26 Jail Inmates To Help Stem Coronavirus Spread</a><br />
<br />
SF Marijuana Dispensary Debacle<br />
<a href="https://www.sfchronicle.com/bayarea/article/Coronavirus-SF-s-cannabis-dispensaries-shut-15138052.php#">San Francisco cannabis dispensaries win reprieve from coronavirus shutdown order</a><br />
<a href="https://www.nbcbayarea.com/news/coronavirus/confusion-plagues-bay-area-cannabis-industry-over-essential-business-designation-during-covid-19-response/2257611/">Confusion Plagues Bay Area Cannabis Industry Over ‘Essential’ Designation</a><br />
<br />
Drug Addiction Therapy and Response<br />
<a href="https://www.deadiversion.usdoj.gov/coronavirus.html">DEA COVID-19 Response Page</a><br />
<a href="https://www.cato.org/publications/commentary/safe-injection-sites-coronavirus-underlines-why-they-make-sense">Safe Injection Sites: Coronavirus Underlines Why They Make Sense</a><br />
<a href="https://www.aa.org/assets/en_US/en_updatesoncoronavirus.pdf">AA Response to COVID-19</a><br />
<br />
Policing<br />
<a href="https://www.themarshallproject.org/2020/03/18/d-c-cops-balance-bravado-and-caution-during-covid-19-pandemic">D.C. Cops Balance Bravado and Caution During COVID-19 Pandemic</a><br />
<a href="https://www.sanfranciscopolice.org/sfpd-response-coronavirus-covid-19">SFPD Response to COVID-19</a><br />
<br />
Prisons<br />
<a href="https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prison-population-is-so-vulnerable-to-covid-19">This Chart Shows Why The Prison Population Is So Vulnerable to COVID-19</a><br />
<a href="https://www.themarshallproject.org/2020/03/18/what-coronavirus-quarantine-looks-like-in-prison">What Coronavirus Quarantine Looks Like in Prison</a><br />
<a href="https://www.themarshallproject.org/2020/03/17/tracking-prisons-response-to-coronavirus">Tracking Prisons’ Response to Coronavirus</a><br />
<a href="https://www.themarshallproject.org/2020/03/17/as-covid-19-measures-grow-prison-oversight-falls">As COVID-19 Measures Grow, Prison Oversight Falls</a><br />
<br />
Experiencing and Fixing Miscarriages of Justice<br />
<a href="https://www.innocenceproject.org/what-its-like-to-be-freed-from-death-row-during-the-covid-19-pandemic/">What It’s Like to Be Freed from Death Row During the COVID-19 Pandemic</a><br />
<a href="https://www.innocenceproject.org/darrill-henry-new-orleans-new-trial-innocence/">Amidst Coronavirus Pandemic, Darrill Henry Wins a New Trial, But Must Wait in Prison</a><br />
<a href="https://www.waff.com/2020/03/17/alabama-halts-pardon-parole-hearings-due-covid-/">Alabama halts pardon, parole hearings due to COVID-19</a><br />
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Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-91901034852078175782020-02-19T14:36:00.002-08:002020-02-19T14:36:42.693-08:00Body-Worn Cameras in Prison?<div>
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I just got off the phone with a person who is serving a long sentence in a CA prison (I will keep the person's details to myself to preserve their anonymity.) The person heard my <a href="https://kpfa.org/episode/against-the-grain-february-10-2020/">KPFA interview about Yesterday's Monsters</a> and some of the reforms I suggested resonated with them. They had some reform ideas of their own, which struck me as interesting and important, and I promised them I would float them to the criminal justice reform community, and here's the most obvious and interesting one: Why not require that correctional personnel wear body-worn cameras in prison?<div>
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It's certainly an idea whose time has come; I've looked at a few correctional gear websites and <a href="https://www.correctionsone.com/products/body-cameras/">the technology exists</a>. Problems with privacy and technology quality <a href="https://www.correctionsone.com/video-in-corrections/articles/how-to-develop-and-fund-a-body-worn-camera-program-for-corrections-8BnhEo5RBa7qlDF4/">now have solutions</a>. More importantly, everybody wins. I think it's an easy sell to the correctional community: look at <a href="https://www.correctionsone.com/body-cameras/articles/why-all-cos-should-wear-body-cameras-LTyLr5enSR3IHMDD/">this CorrectionsOne article</a> from 2014, before the technology became ubiquitous in police departments around the country. Prison guards might be well served to rely on the proven effects of the technology in improving the behavior of the incarcerated people they interact with, as well as addressing false accusations of brutality and avoiding lengthy and costly litigation. Incarcerated folks could use them to pursue redress in cases of physical or sexual assault. Moreover, footage captured in the course of an incident leading to a disciplinary write-up (115/128 in CA) could be used to explain the circumstances of the write-up to the prison authorities and/or to the parole board. In short, everyone wins. </div>
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The privacy concerns that are often raised in the context of police-worn cameras are largely mitigated in a prison environment. Prisons are already equipped with cameras (apparently woefully antiquated ones compared to the capabilities we have now) and people do not have what the law recognizes as a reasoanble expectation of privacy in prison (e.g., <a href="https://www.law.cornell.edu/supct/html/04-9728.ZS.html">Samson</a>, <a href="https://www.supremecourt.gov/opinions/11pdf/10-945.pdf">Florence</a>). </div>
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<a href="https://ingram-nyu.imgix.net/covers/9781479820177.jpg?auto=format&w=145" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img alt="Cops, Cameras, and Crisis" border="0" src="https://ingram-nyu.imgix.net/covers/9781479820177.jpg?auto=format&w=145" /></a>Aili Malm and Mike White have a <a href="https://nyupress.org/9781479820177/cops-cameras-and-crisis/">wonderful new book</a> out about body-worn cameras for police officers. They review the scientific evidence we have on the impact of body-worn cameras on policing quality, use of force by and against the police, behavior toward the police, complaints (true and false), etc., and offer some helpful policy guidelines for how to regulate the use of cameras. The thorniest issue, I think, is how the footage gets used. Prisons would require careful regulation of the footage use and access to it--even more so than in the police context, because the access to technology to see, let alone use, the footage is so asymmetric. But that something is difficult doesn't mean it should not be done. If it's something that is likely to improve behavior in prisons and prevent violence and abuse, it should be in everyone's benefit to implement it. </div>
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I'd like to hear from you, readers, what you think about this idea. What do we know about current camera coverage of prisons? What gaps are there in the factual accounts of narratives about encounters between prisoners and guards that cameras could fill? How much would it cost to fit the entire correctional staff at CDCR with cameras and to process and store the footage on the cloud? Most importantly, are there any drawbacks to this idea that my correspondent or I might not have thought about?</div>
Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-81957175501434501712020-02-09T13:23:00.002-08:002020-02-09T13:23:57.773-08:00Release Party for Yesterday's MonstersHi, Dear Readers! My new book <a href="https://www.ucpress.edu/book/9780520291553/yesterdays-monsters">Yesterday's Monsters: The Manson Family Cases and the Illusion of Parole</a> is out from UC Press and I am inviting you to celebrate!<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhIwepFGitNQU6YBHdjzyKIimPPgcigximCmR8PZhiL5Eh9QUBzP165HLQFU3CLMw1zoacai7QRi1X0uGJPK6AFJhbqOAYTeUCuyciW17ob2ki567zodNrqjou2n-W0HGaZrO8yvIyXhKbp/s1600/YesterdaysMonsters.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1350" data-original-width="900" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhIwepFGitNQU6YBHdjzyKIimPPgcigximCmR8PZhiL5Eh9QUBzP165HLQFU3CLMw1zoacai7QRi1X0uGJPK6AFJhbqOAYTeUCuyciW17ob2ki567zodNrqjou2n-W0HGaZrO8yvIyXhKbp/s320/YesterdaysMonsters.jpg" width="213" /></a></div>
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When: Wednesday, March 11<br />
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Where: <a href="https://www.welcometomannys.com/">Manny's</a>, Valencia & 16th<br />
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What:<br />
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In 1969, the world was shocked by a series of murders committed by Charles Manson and his “family” of followers. Although the defendants were sentenced to death in 1971, their sentences were commuted to life with parole in 1972; since 1978, they have been regularly attending parole hearings. Today all of the living defendants remain behind bars.<br />
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Relying on nearly fifty years of parole hearing transcripts, as well as interviews and archival materials, Hadar Aviram invites readers into the opaque world of the California parole process—a realm of almost unfettered administrative discretion, prison programming inadequacies, high-pitched emotions, and political pressures. Yesterday’s Monsters offers a fresh longitudinal perspective on extreme punishment.<br />
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Book reading, signing, parole reform, food, drink!<br />
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RSVP <a href="https://www.eventbrite.com/e/yesterdays-monsters-release-party-tickets-88760467949?aff=efbeventtix&fbclid=IwAR2Xm4IjvH4E0ph9AsAr9ZU-ijf-CtozNXV1NxYnyf-0rsi4tGIjuhEob4Q">HERE</a>!Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-20878513886861586242020-01-28T14:59:00.003-08:002020-01-28T15:10:39.482-08:00The Prefrontal Cortex Strikes Again: Bill to Raise Age for Trying Juveniles as Adults to 20<span style="font-family: Times, Times New Roman, serif;">The Sac Bee <a href="https://www.sacbee.com/news/politics-government/capitol-alert/article239716558.html">reports</a>:</span><br />
<span style="font-family: Times, Times New Roman, serif;"><br /></span>
<span style="font-family: Times, Times New Roman, serif;">A California lawmaker argues that 18- and 19-year-olds aren’t mature enough to do prison time if they break the law, and so she has submitted a bill that would treat them like juveniles.</span><br />
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<span style="font-family: Times, Times New Roman, serif;">“When teenagers make serious mistakes and commit crimes, state prison is not the answer,” said bill sponsor Sen. Nancy Skinner, D-Berkeley. “Processing teenagers through the juvenile justice system will help ensure they receive the appropriate education, counseling, treatment, and rehabilitation services necessary to achieve real public safety outcomes.”</span></blockquote>
<span style="font-family: Times, Times New Roman, serif;">Skinner's proposal is the last in a series of legislative and judicial changes reflecting what I referred to, in <a href="https://www.ucpress.edu/book/9780520291553/yesterdays-monsters">Yesterday's Monsters</a>, as the "rediscovery of childhood." Since the early 2000s, our understanding of childhood and its implications as to accountability has undergone a dramatic scientific, legal, and social transformation. Recall the miscarriage of justice depicted in Ken Burns’ documentary <a href="https://www.imdb.com/title/tt2380247/">The Central Park Five,</a> in which five teenagers were accused, and wrongly convicted, of assaulting Trisha Meili in New York’s Central Park in 1985 and leaving her for dead. </span><br />
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<span style="font-family: Times, Times New Roman, serif;">Current audiences bristle at the tough prosecutorial interrogation of children, but the newspaper headlines of the day (as well as rabid ads and media appearances by a younger Donald Trump) depict the youngsters as a “wolf pack” of “superpredators.” This case was no outlier: prompted by the media frenzy over the crack epidemic, young criminal offenders, particularly African Americans, were regularly dehumanized, their age denoting danger rather than mitigation or rehabilitative potential.</span><br />
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<span style="font-family: Times, Times New Roman, serif;">However, the early 2000s, new brain imaging technologies enabled neuroscientists discover that the prefrontal cortex, which is responsible for the ability to delay gratification, exercise emotional regulation, and resist pressure, continuously grows well into our mid-twenties, which explains impatience and rash decisions by teenagers and adolescents.</span><br />
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These developments first permeated the legal field in <i><a href="https://www.oyez.org/cases/2004/03-633">Roper v. Simmons</a></i>, where the Supreme Court struck down the death penalty for minors as unconstitutional. The court found that juveniles to be immature and irresponsible, more vulnerable to peer pressure, and possessing a “more transitory, less fixed” character. These differences “render suspect any conclusion that a juvenile falls among the worst offenders”, and therefore, from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.” <br />
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The decision in Roper energized petitioners serving lengthy sentences for crimes committed when they were minors, and other landmark decisions followed. In <i><a href="https://www.oyez.org/cases/2009/08-7412">Graham v. Florida</a></i>, the Supreme Court struck down life without parole for non-homicide offenses committed by juveniles, citing similar rationales, and explaining that the aims of punishment do not support such a harsh sentence for crimes other than homicide. Subsequently, in <i><a href="https://www.oyez.org/cases/2011/10-9646">Miller v. Alabama</a></i>, the Court invalidated, for juvenile offenders, sentencing schemes under which certain murder convictions yielded mandatory life without parole sentences, finding that such schemes “preclude a sentencer from taking account of an offender’s . . . chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. . . And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.”<br />
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<i>Miller</i> did not explicitly state that it would apply retroactively, to the many inmates already serving lengthy sentences under sentencing schemes that violated Miller. One such inmate was Henry Montgomery, convicted of the murder of a police officer when he was sixteen years old; at the time Miller was decided he was already in his late fifties, still serving time in Louisiana’s notorious Angola prison. Montgomery appealed his sentence, arguing that Miller should apply retroactively.
Under constitutional doctrine, as established in <i>Griffith v. Kentucky</i> and in <i>Teague v. Lane</i>, defendants whose cases are final face an uphill battle in reopening their cases in light of Supreme Court landmark decisions. They must convince the court of one of the following three arguments: first, that the landmark decision does not announce a “new rule,” but merely interprets prior precedent; second, that the “new rule” is substantive, rather than procedural, in nature; or third, that the “new rule” is a “watershed rule of criminal procedure,” of such seminal importance that justice requires it to be retroactively applicable.<br />
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In Montgomery, the Supreme Court was convinced of the second argument. It found that the Miller rule, according to which mandatory life without parole schemes could not apply to juveniles, was a substantive rule—a rule that “rendered life without parole an unconstitutional penalty for a class of defendants because of their status”, and therefore should apply retroactively. The Court was less decisive about the appropriate remedy, and Justice Kennedy opined that parole hearings might be a suitable forum for raising the age argument. <br />
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Before the Supreme Court announced its decision in Miller, a large California campaign waged by criminal justice nonprofits and human rights organizations yielded SB 9, which required holding a judicial resentencing hearing for all juveniles serving life without parole. Subsequently, California lawmakers also adopted SB 260, which expanded the access to resentencing hearings to juveniles serving other extreme sentences, short of life without parole. SB 260 was later amended by SB 261, furth<span style="font-family: Times, Times New Roman, serif;">er expanding the resentencing hearings to those who were under 23 years of age when committing the crime. This amendment better reflects neuroscience developments, according to which the prefrontal cortext continues to develop well into one’s early twenties. In this respect and others, California is ahead of the rest of the nation in acknowledging the contribution of youth to crime. A subsequent bill signed into law in 2017, SB 394, set the date for the first opportunity for a hearing by a minor at 24 years of incarceration.
<span style="font-family: "lyon" , serif;">All of these developments, particularly in CA, explain the logic behind Skinner's proposal.</span></span><br />
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As an aside, because Yesterday's Monsters is about parole hearings, I'll say that these developments did, eventually, find their way into the parole hearing room with the parole grant recommendation for Leslie van Houten in 2016, in which the Board anchored its decision in the new understanding of youth:
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<span style="font-family: Times, Times New Roman, serif;"><span style="font-family: "lyon" , serif;">Your choices that you made in your life at an early age based on the belief system that the family was over when there was a dissolution led you to a lifestyle of drugs, running away, unplanned pregnancy, the abortion, anti-establishment philosophy of the times. You exhibited these hallmarks of youth at the time of the crime as compared to adults, lack of maturity, underdeveloped sense of responsibility, leading a reckless, impulsive lifestyle. So that was 261. That was what the Supreme Court has ruled on, and that is on point with the case factors we see before the Panel here today, so the great weight played a role. Your age played a role. </span> </span></blockquote>
<span style="font-family: Times, Times New Roman, serif;"><br /></span>
<span style="font-family: Times, Times New Roman, serif;"> It remains to be seen whether attention to youth significantly reforms the parole process. Recently, Beth Schwartzapfel observed that parole boards find ways to thwart the Court’s decision in <i>Montgomery</i>, arguing that long-term inmates who committed their crimes at a young age have not yet developed “insight.” The outcome is “a wave of lawsuits from those who claim parole officials are undermining their new constitutional obligations.”
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<span style="font-family: Times, Times New Roman, serif;"><br /></span>
<span style="font-family: Times, Times New Roman, serif;">This is especially true in California, where political considerations might lead the Governor to reverse release recommendations, thus retaining political good will and protecting the gubernatorial office from public backlash. Notably, Governor Brown reversed the Board’s recommendation and denied Van Houten’s parole.</span><br />
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<span style="font-family: Times, Times New Roman, serif;">Nevertheless, it is telling that the Board—albeit more politically insulated than the Governor—felt comfortable recommending the release of a high-profile inmate on the basis of age, a fact widely known from the time the crime was committed but only recently considered. This development bodes well for other inmates, and s</span>pecifically for members of the Manson “family,” whose young age was a deciding factor in their involvement with Manson in the first place.
Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-77445977517299869402020-01-27T15:52:00.000-08:002020-01-27T15:52:32.274-08:00Progressive Prosecution Meets Organizational Discombobulation: Chesa Boudin and the Case of the Police-Citizen Mutual ViolenceLet's start with the important stuff. My wonderful students have established an excellent new journal, the <a href="https://repository.uchastings.edu/hastings_journal_crime_punishment/">Hastings Journal of Crime and Punishment</a> (HJCP). Issue no. 1 is already out, including <a href="https://repository.uchastings.edu/hastings_journal_crime_punishment/vol1/iss1/3/">my essay </a>about how Jeff Sessions hasn't managed to destroy the Cheap on Crime trend. But more importantly, we're holding a terrific daylong symposium titled <a href="https://www.uchastings.edu/event/progressive-prosecutors-symposium/">Progressive Prosecution in the Carceral State</a>. Join us on Feb. 7 at UC Hastings! <a href="https://uchastings.webconnex.com/progressiveprosecution">RSVP via this link</a>.<br />
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Progressive prosecution has been <a href="https://www.amazon.com/dp/B07FS6R3JR/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1">an exciting trend</a>, especially because of the recent tendency to talk about the <a href="https://www.basicbooks.com/titles/john-pfaff/locked-in/9780465096916/">contribution of county prosecutors to mass incarceration</a>. But expecting the election of a professed progressive official at the top of the pyramid misses out on i<a href="https://www.amazon.com/Prisoners-Politics-Breaking-Cycle-Incarceration/dp/0674919238/ref=asc_df_0674919238/?tag=hyprod-20&linkCode=df0&hvadid=346561570539&hvpos=1o1&hvnetw=g&hvrand=13144745442339908536&hvpone=&hvptwo=&hvqmt=&hvdev=c&hvdvcmdl=&hvlocint=&hvlocphy=1014221&hvtargid=pla-645582514282&psc=1&tag=&ref=&adgrpid=70930572718&hvpone=&hvptwo=&hvadid=346561570539&hvpos=1o1&hvnetw=g&hvrand=13144745442339908536&hvqmt=&hvdev=c&hvdvcmdl=&hvlocint=&hvlocphy=1014221&hvtargid=pla-645582514282">mportant institutional dimensions</a> that could stand in the way of progressive reform.<br />
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Take, for example, the recent San Francisco hullaballoo. Our recently elected District Attorney, Chesa Boudin, is in conflict with our police union over his <a href="https://www.sfchronicle.com/crime/article/DA-drops-assault-charges-against-man-who-15004588.php">decision to withdraw charges against Jamaica Hampton</a>, a man who, in a violent altercation with the police, <a href="https://www.sfchronicle.com/bayarea/article/SF-police-release-video-of-officer-involved-14914564.php">allegedly attacked the cops with a vodka bottle</a>:<br />
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Alex Bastian, the spokesman for the district attorney’s office, said the case was set aside to avoid conflicts between two separate investigations — one being the internal officer-involved shooting case and the other being the criminal allegations against Hampton.<br />“Both cases are still under investigation,” Bastian said. “We don't want one investigation to interfere with the other. We are looking into developing a policy to avoid conflicts in cases where multiple investigations are ongoing.”<br />Bastian on Sunday disputed Scott’s characterization that charges against Hampton had been withdrawn, saying that he was never formally charged. The district attorney’s office filed charges in December but Hampton had not been arraigned.<br />Hampton, 24, was originally booked on charges of assault with a deadly weapon, assault upon a police officer and threats to an officer after videos from police body cameras and surveillance footage showed him hitting an officer with a vodka bottle and then being chased through the intersection at 23rd and Mission streets.</blockquote>
The police union is demanding federal intervention but, save for their dissatisfaction with the D.A.'s decision, I'm not sure what would be the basis for that. This is a violent incident against municipal police in an area not governed by federal law. Proximity to a school might throw some federal jurisdiction into it, but it's not a drug case, so I'm not sure whether that would avail the police union.<br />
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But even if there were parallel federal jurisdiction here, there are a few bigger issues. According to the Petite policy, the feds do not interfere with cases charged and adjudicated in states unless these proceedings leave an important federal interest unvindicated. True, there are no formal charges here, but can we really say anything here calls for federal intervention? Politically, sure, but legally? One argument that can be made on Boudin's side (and hasn't been highlighted by his spokesman) is that incidents of mutual violence between police and citizens tend to end with charges against the citizens, rather than against the police, and that these often serve as fig leaf for the police. <a href="https://www.revealnews.org/article/dcs-assaulting-an-officer-charge-could-hide-police-abuse-critics-say/">Crazy</a> <a href="https://www.latimes.com/opinion/readersreact/la-ol-le-lapd-resisting-arrest-20180831-story.html">examples</a> <a href="https://heinonline.org/HOL/Page?handle=hein.journals/afamlpol19&div=5&g_sent=1&casa_token=&collection=journals">abound</a> (even though the Hampton case might not be the textbook example of this, there nonetheless is a problem.) This supports the notion that it is better to wait for the police investigation to play out and then take that into account when making a decision about pressing charges.<br />
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More importantly, is this the harbinger of things to come in terms of obstacles for implementing Boudin's vision for a progressive San Francisco? Boudin has already <a href="https://www.sfgate.com/bayarea/article/SF-DA-Chesa-Boudin-fires-attorneys-14971336.php">fired several prosecutors</a> and, as the Hampton incident shows, will face pushback from cops and judges, as well as from his own subordinates. Progressive prosecution is a great study of how the <a href="https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=53645">organizational culture of lower courts</a> would respond to someone elected for the very purpose of jamming the wheels of the giant machine.<br />
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Want to learn more? Join us at our Feb. 7 symposium. Chesa Boudin will be there, as will other progressive prosecutors from around the nation, scholars, policymakers, and activists!Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-20208726269354156112019-12-26T13:28:00.001-08:002019-12-26T13:28:29.812-08:00Should Therapists Disclose that Patients Have Looked at Child Porn?Today, the <a href="https://www.courts.ca.gov/opinions/documents/S240156.PDF">Supreme Court of CA decided</a>, 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 - <b>in therapy - </b>may proceed to trial.<br />
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The law in question, the <a href="https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PEN&division=&title=1.&part=4.&chapter=2.&article=2.5">Child Abuse and Neglect Reporting Act of 2014</a>, 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.<br />
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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 <b>with your therapist</b> is a different matter.<br />
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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.”<br />
<br />
When I read this, I was struck by the similarities between this law and the c<a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2003/2003-Ohio-3813.pdf">riminalization of Brian Dalton in Ohio in 2003</a>. 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 <b>his own journal.</b> After much turmoil, the Ohio Supreme Court overturned the conviction.<br />
<br />
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 <b>precisely at the point at which they are finding outlets for their propensities in an effort to get better. </b><br />
<b><br /></b>
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 <a href="https://psyarxiv.com/vpydn/">fiercely contested</a> in the literature. Moreover, there's an assumption that sex offenders are irredeemable--something that <a href="https://www.palgrave.com/gp/book/9783319631998">Danielle Harris shows is not true;</a> desistance is not uncommon.<br />
<br />
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.Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-47923931194194020292019-12-06T08:38:00.002-08:002019-12-06T08:39:35.121-08:00Nonexistent Reentry in CA: When People Are Duped Into Thinking It's All Their FaultThe opening chapter of Foucault's <a href="https://www.amazon.com/dp/B007OLYO7I/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1">Discipline and Punish</a> 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.<br />
<div>
<br /></div>
<div>
I was outraged, albeit not surprised, to read <a href="https://www.motherjones.com/crime-justice/2019/12/california-prison-reentry-housing-crisis/">this distressing exposé on Mother Jones</a>. 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:</div>
<blockquote class="tr_bq">
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. </blockquote>
<blockquote class="tr_bq">
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.”</blockquote>
<div>
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 <a href="https://www.ucpress.edu/book/9780520291553/yesterdays-monsters">Yesterday's Monsters</a> I described the conversation:</div>
<blockquote class="tr_bq">
<blockquote class="tr_bq">
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.”</blockquote>
<blockquote class="tr_bq">
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.</blockquote>
<blockquote class="tr_bq">
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. </blockquote>
</blockquote>
<blockquote class="tr_bq">
<blockquote class="tr_bq">
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.</blockquote>
</blockquote>
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 <a href="http://www.socialjusticejournal.org/wp-content/uploads/2018/01/147_05_De-Giorgi.pdf">interviewed</a> 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:<br />
<br />
<blockquote class="tr_bq">
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.</blockquote>
But here's the really depressing bit:<br />
<blockquote class="tr_bq">
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. </blockquote>
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.)<br />
<br />
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:<br />
<br />
<blockquote class="tr_bq">
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.</blockquote>
The prosecutor, Stephen Kay, responds with an astounding lack of empathy and contextual comprehension:<br />
<blockquote class="tr_bq">
<span style="font-size: small;">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.</span></blockquote>
<div class="p1">
<span style="font-size: small;">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?</span></div>
<div class="p1">
<span style="font-size: small;"><br /></span></div>
<div class="p1">
<span style="font-size: small;">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. </span></div>
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<span style="font-size: small;"><br /></span></div>
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</style>Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-71054125224600501132019-12-03T11:58:00.000-08:002019-12-03T11:58:23.230-08:00Criminal Justice Discrimination for Unseen Categories: The Case of Mizrachi Jewish Israelis<!--[if gte mso 9]><xml>
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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.</div>
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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.</div>
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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.</div>
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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 <a href="https://books.google.com/books/about/Managing_Disobedience_as_Crime.html?id=vdA8NwAACAAJ">doctoral dissertation</a> to the study of conscientious objectors and deserters (<a href="https://onlinelibrary.wiley.com/doi/full/10.1111/j.1467-9930.2008.00280.x">here</a> 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 <a href="https://www.jstor.org/stable/798932">"normal crimes"</a> 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. </div>
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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. </div>
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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--<a href="http://eprints.lse.ac.uk/48932/">an imperfect indicator,</a> 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.</div>
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This observation was, in itself, problematic, and hit a fertile Petri dish of theoretical and substantive difficulties. As Yifat Bitton <a href="https://lawjournal.huji.ac.il/article/12/1289">writes</a>, 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 <a href="https://en.wikipedia.org/wiki/Sallah_Shabati">Salakh Shabbati</a> through the Gashash skit <a href="https://www.youtube.com/watch?v=S1ICZO7uLIw">Offside Story</a> to the Yehuda Barkan <a href="https://www.maariv.co.il/culture/movies/Article-594731">Aba Ganoov</a> 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 <a href="https://books.google.com/books?id=F1ot-pVsCmcC&pg=PA271&lpg=PA271&dq=%D7%90%D7%9C%D7%94+%D7%A9%D7%95%D7%97%D7%98+%D7%A7%D7%95%D7%9C%D7%A0%D7%95%D7%A2+1986&source=bl&ots=RnNSINRIGb&sig=ACfU3U3A4YkRpL1S0OS3TdJybQJWyehuLA&hl=en&sa=X&ved=2ahUKEwippbiA-JfmAhXFt1kKHSHPA4YQ6AEwC3oECAsQAQ#v=onepage&q=%D7%90%D7%9C%D7%94%20%D7%A9%D7%95%D7%97%D7%98%20%D7%A7%D7%95%D7%9C%D7%A0%D7%95%D7%A2%201986&f=false">Ella Shochat</a> 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 <a href="https://www.nytimes.com/2005/05/30/obituaries/batya-gur-mystery-writer-and-critic-is-dead-at-57.html">Batya Gur's Michael Ohayon series</a> or <a href="https://www.amazon.com/dp/B008B0OUS4/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1">Dror Mishani's The Missing File</a>, 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 <a href="https://en.wikipedia.org/wiki/Kobi_Oz">Kobi Oz's book Moshe Chuato and the Crow</a> (Oz's work is rich in critical examination of the Mizrachi-crime stereotype.)</div>
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Three questions arise from the presence of these stereotypes:</div>
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<li>Is the perception that Mizrachim are overrepresented in Israel's criminal justice system real? </li>
<li>If, indeed, Mizrachim are overrepresented, what does it mean? Are there insights here on criminality, criminalization, or both?</li>
<li>How can we measure discrimination in the absence of recording categories?</li>
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<div>
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.</div>
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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. </div>
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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 <a href="https://www.law.columbia.edu/sites/default/files/microsites/gender-sexuality/racial-justice-lit-wkshp/case_study_-_floyd_v._city_of_ny.pdf"><i>Floyd v. City of New York </i>(2012</a>) 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 <a href="https://www.sup.org/books/title/?id=20242">race is something that can be "seen"</a>, 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, <a href="https://californiacorrectionscrisis.blogspot.com/2019/06/is-race-baked-into-criminal-justice.html">"blind" case review</a>, 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.</div>
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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.</div>
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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. </div>
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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?</div>
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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 <a href="https://supreme.justia.com/cases/federal/us/517/456/"><i>Armstrong v. U.S.</i> (1996)</a> 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.</div>
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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.) </div>
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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.) </div>
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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 <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3404276">here</a>. </div>
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Now, let's turn to the Israeli comparator. <a href="https://californiacorrectionscrisis.blogspot.com/2019/10/what-about-arab-on-arab-crime-minority.html">The conversation about Arab on Arab crime is also politically fraught.</a> 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 <a href="https://www.haaretz.co.il/news/law/1.1665119">pervasive silencing of female left-wing activists sexually harassed by Palestinian activists.</a>) 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). </div>
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What's interesting is that none of these niceties come from within the Israeli Arab community. In a <a href="https://www.nytimes.com/2019/09/22/opinion/netanyahu-israel-gantz-ayman-odeh.html">recent New York Times op-ed</a>, Ayman Odeh, leader of the joint Arab party, explicitly flagged the problem of violent crime rates within the Arab community. Shortly after that, p<a href="https://www.haaretz.com/israel-news/.premium-israeli-arabs-hold-general-strike-to-protest-police-inaction-on-violent-crime-1.7935212">rotests broke in Magd-Al-Krum</a> 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.</div>
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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.</div>
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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. </div>
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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.</div>
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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. </div>
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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.</div>
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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.</div>
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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. </div>
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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?</div>
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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.</div>
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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. </div>
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__________________</div>
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Prepared remarks for the <a href="https://pjil.law.harvard.edu/mizrahi-legal-studies-conference-program-december-10-11-2019-harvard-law-school/">Mizrachi Legal Studies Conference</a>, Harvard Law School, Dec. 10-11, 2019</div>
<!--EndFragment--><br />Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-40193409275167620082019-10-11T14:30:00.000-07:002019-10-11T14:56:40.059-07:00On Looking for Closure from the Criminal Justice SystemA day after that horrible 2016 election I was mourning not only what was to become a national nightmare, but also the failure of California's Prop 62, which would have abolished the death penalty. <a href="https://californiacorrectionscrisis.blogspot.com/2016/11/a-horrible-setback-to-criminal-justice.html">I was on the radio talking about it</a> and someone asked me what I would say to the victims' families. I replied, "first of all, all the sympathy and empathy in the world. And second, if you have lost someone you love, surely you wouldn't want to revisit this suffering--with a real risk that the person is innocent--on anyone else's family."<br />
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Some people took offense to that, and I got some hate mail, including a fairly alarming death threat. But I still do feel that the notion that not everyone who has lost a loved one to homicide looks for closure in the form of the death penalty or other severe sentence bears repeating.<br />
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I'm writing about this as the <a href="https://www.wctv.tv/content/news/Markel-verdict--562814881.html?fbclid=IwAR3Mzp14TXyvPe-banj75NoKJsnY4rkgiOLibvXKXVgR2gkYvEgQJZkw8Rw">verdict has come out in a case involving the murder of my colleague and friend Dan Markel</a>. Sigfredo Garcia was found guilty; there's a hung jury in Katherine Magbanua's case; and the people many of us think are the real culprits, the Adelsons, have so far completely escaped the clutches of the criminal justice system.<br />
<br />
Susan Bandes has a a few papers about the notion of "closure", as <a href="https://scholarship.law.duke.edu/lcp/vol72/iss2/2/">something that the criminal justice system is supposed to deliver</a> and as <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3457952&dgcid=ejournal_htmlemail_criminology:ejournal_abstractlink">something people assume they'll get out of a conviction and a sentence</a>. Her findings dovetail with what I found when working on the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3406146">Kavanaugh piece</a> and on the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3404276">Progressive Punitivism piece</a>: the idea that expressing anger through the criminal justice system will bring some form of cathartic relief is unsupported by behavioral science. In working on Yesterday's Monsters, one of the things that most filled me with sorrow was how victims who are singlemindedly invested in punitive outcomes against those who killed their loved ones (and the Tate family literally wrote the book on this--it's called Restless Souls) find so little solace in doing so.<br />
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I don't think that nonretributive, nonpunitive victims are more "saintly" than punitive ones. All emotions, including rancor AND forgiveness, are part of the human experience (as we recently found out, if anything, people find it hard to accept that forgiveness is human, and <a href="https://californiacorrectionscrisis.blogspot.com/2019/10/more-progressive-punitivism-and-today.html">insist on shining some critical light on it</a>).<br />
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Dan, who studied retributive justice (<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=410922">here</a>, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=567561">here</a>, and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=392880">here</a>), would have found it interesting that what I most wanted from the criminal justice system was an affirmation of the narrative of What Happened. I'm not at all invested in the Adelsons being arrested, tried, convicted, and incarcerated, let alone executed--that they have to live with themselves strikes me as the worst possible punishment. Not because I'm some sort of saintly, forgiving creature--I simply found out something about myself and what I want from the criminal justice system. And even if we, Dan's family and friends, ever get it, it won't bring our friend back.<br />
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Perhaps one of the things that most saddens me in America's punitive victim rights movement is how it offers you the One and Only Way to be an appropriate victim, without allowing you to sit with your own fresh emotions and feelings--grief? anger? frustration? loss?--and process them with yourself, between you and your soul, without a giant machine of a social narrative to run you over. There's not nearly enough quiet, be it in the right-wing halls of the anti-superpredator chorus or in the left-wing halls of #metoo, for you to sit with yourself and be whoever you are with your own feelings.<br />
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Much love and support to Dan's family and friends today. What is remembered, lives.Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-78736184813525536562019-10-11T08:01:00.005-07:002019-10-11T08:36:00.122-07:00Counseling Criminal Clients on Immigration: A Tall OrderIn 2010, the Supreme Court decided <a href="https://supreme.justia.com/cases/federal/us/559/356/">Padilla v. Kentucky.</a> Padilla, a long-time legal permanent resident of the United States and a Vietnam veteran, was caught with drugs in Kentucky. His lawyer advised him to take a plea deal and told him not to worry about the immigration consequences of the conviction because "he's been in the country for so long." Lo and behold, the conviction triggered immigration consequences and Padilla was subject to mandatory deportation.<br />
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In a surprising departure from its usual approach to the ineffective assistance of counsel doctrine, the Court found that the defense attorney provided advice that fell beneath the minimum professional requirements and also prejudiced the client, thus failing the test from <a href="https://www.oyez.org/cases/1983/82-1554">Strickland v. Washington</a>. Justice Stevens' opinion explains that immigration consequences of criminal conviction ("collateral" consequences) are often much more serious than the punishment meted out by the criminal justice system. In his words:<br />
<blockquote class="tr_bq">
We have long recognized that deportation is a particularly severe “penalty”; but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature. . . deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. . . And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. . . . Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. </blockquote>
<blockquote class="tr_bq">
Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a <i>Strickland</i> claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. <i>Strickland </i>applies to Padilla’s claim.</blockquote>
All of which is true: deportation is, indeed, a life-altering penalty, and clients must absolutely take it into account when crafting their trial strategy. But where does this leave defense attorneys, who have had to learn an entire new field of law, rife with hypertechnical distinctions, arcane definitions, and jurisdictional messiness?<br />
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For the uninitiated, I'll just say that the terms used by the INA and other immigration legislation do not mean what defense attorneys would be justified in thinking they mean. A "conviction" under the INA is not necessarily a conviction under state law. An "aggravated felony" under the INA need not be aggravated, nor a felony. "Drug crimes", "domestic violence", "firearm", mean very different things in the immigration context than they do under state law. And don't even get me started on crimes of moral turpitude, the meaning of which is so vague and fluid that immigration courts still refer to a legal dictionary from 1914. Unconvinced? How about <a href="https://www.supremecourt.gov/opinions/12pdf/11-702_9p6b.pdf">a Jamaican citizen and legal permanent US resident busted for having 1.3 oz of marijuana facing deportation and having to take his case all the way to the Supreme Court to clarify whether this counts as an "aggravated felony"</a>? Nor weird enough for you? Then why should it take a certiorary to the Supreme Court to save from deportation a mathematics professor--Green Card holder from Tunisia--caught with a sock containing four orange pills, who got nailed under Kansas law not for the pills, but <a href="https://www.supremecourt.gov/opinions/14pdf/13-1034_3dq4.pdf">for possession of the sock</a>?<br />
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The point I'm trying to make is not that U.S. immigration law is nuts (that should be obvious), but rather that, in 2010, expecting garden variety defense attorneys to master all this, complete with all the contradictions and differences, was a tall order. Many people in the civil rights community (me included) hailed <i>Padilla</i> for finally drawing attention to the horror that collateral consequences can bring onto a person's life. But what if <i>Padilla</i> completely backfired, and what we've created is an invitation to confusion at best and malpractice at worst?<br />
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Consider this: None of the criminal procedure bail-to-jail courses I am familiar with, including mine (this is going to change as of the next time I teach it), includes a crimmigration unit. Not all law schools even offer a crimmigration class, and of course if they do it's not mandatory. The bar doesn't test on immigration and certainly not on crimmigration. I did an informal poll among my former students who practice as defense attorneys. Those who work at public defender offices are lucky in that good, conscientious outfits have prioritized hiring immigration experts (this does not dispense with the <i>Padilla</i> requirement, because presumably the ethical responsibility is still the public defender's, but at least it offers the clients correct advice.) Those who work as private attorneys, or in smaller outfits such as alternate public defender offices in rural places, are left completely in the lurch. They rely on charts and lists such as <a href="https://www.ilrc.org/sites/default/files/resources/n.7-crimes_involving_moral_turpitude.pdf?fbclid=IwAR3DlTMRV9kNb479153qyjAoz8-HzBpaE9Wwt7txRmyWoG_h5uI8zYCfyIo">this one</a>, or they'll refer the clients to immigration attorneys, but that means that people who are already in dire financial straits incur even more costs. At least one person admitted to me that they pass on cases with immigration consequences because they fear ethical violations and don't want to do a bad job, and while this reluctance is understandable, one wonders where that leaves clients with immigration issues (who are already among the weakest, most disenfranchised folks in the system) collectively. More commonly (and also disturbing)--my former students admitted their immense discomfort when counseling people not to take good deals, or to go to trial with a very flimsy chance of success, or to take ridiculous deals that are immigration workarounds. They were (understandably) confused about whether advising their client about the least of all evils--taking a suboptimal criminal justice strategy to save them immigrationwise--was ethically clean, even when realistically sound. They also expressed frustration when dealing with ill-informed (at best) or callous (at worst) prosecutors who chide them for asking for something "special" or "preferable" for a client in risk of deportation.<br />
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In other words: This is not good.<br />
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I have a few thoughts about this. The first is that a solid empirical study of <i>Padilla</i>'s impact on criminal practice is absolutely essential. This would require a survey of a large group of defense attorneys about how <i>Padilla</i> altered their criminal practice, as well as in-depth interviews with examples. This stuff will have to be triangulated with what we know about criminal representation, to check whether the additional burdens on defense attorneys have resulted in worse access to justice for noncitizen defendants.<br />
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The second is that all of us who teach criminal procedure in law schools--I'm going to start this and my chartacourse electronic casebook is available for you to use--have got to revise our curriculum to include a basic crimmigration unit. I'm thinking something between 6-8 hours covering the categorical approach, aggravated felonies, crimes of moral turpitude, some more specific removal categories, and basic situations in which one's client might interface with the immigration system. In addition, of course, specialty crimmigraiton courses must be offered in every law school that purports to certify ethical defense attorneys for practice. The bar exam, for all its imperfections, can add immigration law to the list of covered subjects, and this would be relatively easy to do in the MBE because it's federal law.<br />
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This is not a perfect solution, given that immigration law changes frequently and is subject to administrative whims (even when not dealing with someone as unhinged as the current occupant of the White House). Because of that, my third thought is that, in offering and taking CLEs, priority must be given to crimmigration updates. If and when we establish a defense bar, crimmigration proficiency has to be prioritized.<br />
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Same deal, by the way, for prosecutors: Larry Krasner's initiative in forming <a href="https://whyy.org/articles/a-different-view-of-justice-philly-da-appointee-seeks-to-avoid-deportation-for-some-immigrant-defendants/">an immigration unit</a> at the D.A.'s office is an essential tool for any prosecutorial outfit that purports to give people what they deserve, rather than indirectly bring about grossly disproportionate punishment. Immigration is not an externality: it is part and parcel of the person's fate, and has to be treated as such by the D.A.'s office.<br />
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If you are a defense attorney and have encountered immigration issues in your criminal practice, I would love to hear from you in the comments.Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com1tag:blogger.com,1999:blog-8107037609455779557.post-47472788567362999762019-10-04T15:31:00.001-07:002019-10-04T20:05:52.141-07:00More Progressive Punitivism: And Today We, the Woke, Will Tell You How to Grieve Your BrotherIf you're anything like me, you might have spared a moment or two from focusing on the impeachment brouhaha to follow the horrific tragedy involving Amber Guyger, the white woman who shot her African American neighbor, Botham Jean, arguing that she mistook his flat for her own. And if you're anything like me, you were probably surprised, and perhaps moved, to read about Jean's brother, Brandt, who after Guyger's conviction and sentence <a href="https://abcnews.go.com/GMA/News/botham-jeans-brother-discusses-emotional-courtroom-hug-amber/story?id=66055688">hugged her and expressed forgiveness</a>.<br />
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And if you've spent any time online in the last day or two, you've seen that everyone whose brother was not murdered recently had Opinions about this. As NPR explained, it <a href="https://www.npr.org/2019/10/03/766866875/brandt-jeans-act-of-grace-toward-his-brother-s-killer-sparks-a-debate-over-forgi">"sparked a debate."</a></div>
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I'm in a rush to get a little bit more work done, so I'll keep this short: There has been a lot of chatter from well-meaning, righteous folks, using all the correct Woke argot, about things we've already read in op-eds a thousand times: how forgiveness and restorative justice just give white people a reprieve because they reinforce racial hierarchies and excuse structural inequality yada yada yada. This sort of chatter, right here, is what I argue in both <a href="https://www.ucpress.edu/book/9780520291553/yesterdays-monsters">Yesterday's Monsters</a> and in <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3404276">Progressive Punitivism</a> has been the ultimate paradigm in American criminal justice policy. It doesn't matter if you're a fierce punitive right winger or a fierce punitive progressive social justice crusader--you've spent decades marinating in a national animus that tells you that everything that is wrong in the world is criminal justice related and that harsh punishment is the only solution. </div>
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It is important to listen to victims. Very. It is important to have all the compassion in the world for victims. And at the same time, first and foremost, our obligation to victims is to help them not be just "victims" as soon as possible. What we are doing with the reification of this punitive perspective is reinforcing the notion that the only appropriate way to deal with social ills is to punish; that to forgive is weak and subservient; and that people should never move on from their own victimization--even if it's healing TO THEM, even if it helps THEM, even if it is THEIR way of dealing with grief.<br />
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Which means that we're all about listening to victims--but only if they sing the punitive tune we like to hear.</div>
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I would humbly suggest to all the self appointed social justice critics of Jean's big heart that perhaps there isn't only One Right Way to handle the murder of your sibling, and that perhaps the decent thing to do is to let people grieve and process in whatever way seems appropriate to them. </div>
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I would also suggest that critiquing someone's admittedly uncommon way of handling his grief as if he doesn't know what he's doing is as paternalistic as the hierarchies the commentators supposedly condemn. </div>
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Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-56685622919875134312019-10-03T09:59:00.001-07:002019-10-03T09:59:02.131-07:00"What About Arab-on-Arab Crime?" Minority Intraracial Violence and How the Left and the Right Both Get It Wrong<br />
<div style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;">
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As I type this, thousands of Israeli Arab citizens, residents of Magd-al-Crum (an Arab town in the Upper Galilee) are protesting against the Israeli government's failure to appropriately address violence in Israeli Arab society. Ha'aretz <a href="https://www.haaretz.co.il/news/law/.premium-1.7941571?utm_source=Push_Notification&utm_medium=web_push&utm_campaign=General&fbclid=IwAR3czJ2OwgS7M_qVd2eLofO6qbpAXphD_9F0kvUIChQHhF46POwtxNSdfIg">reports:</a><br />
<blockquote class="tr_bq">
The day before yesterday two brothers were fatally shot at the town in a browl, and today another young man who was badly injured in the fight, Muhammad Saba, died of his injuries. The protesters are calling out derogatory calls about the police and its crime-fighting abilities, including, "Ardan [the police minister], you're a coward", and bearing signs saying, "violence--not in our streets" and "living in peace is already a dream." Muhammad Baraka, the Chairman of the Supervision Committee for the Arab Population, said at the end of the march that, "if in Magd-al-Crum and [other] Arab towns there won't be peace--there won't be peace anywhere. It is not a threat, it is an elementary right for any citizen in a proper society. </blockquote>
<blockquote class="tr_bq">
Since the beginning of the year, more than 70 Arab Israeli citizens were murdered throughout the country. Among the marchers were thousands of villagers, as well as citizens from all over the country, mayors, Knesset members and religious leaders. Prominent at the rally were women, who wore black shirts for mourning, called out slogans and marched with their children who carried signs against violence. Even the family members of the two brothers who were murdered in the village, Halil and Ahmed Man'aa, attended the protest.</blockquote>
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjrT01B9ZcJEUsSu6sHxiO4XYUSXmHj-AG02fHaaVA9nO4YfxZTk75TTSxNpU2BM3Lib28IUywdUa18dosjO07UiRYjC6BLT8Ka6LUwr5tUVhawOujGsTQ3-OiA2LCBgwYrzSoOhUAqHcgu/s1600/Screen+Shot+2019-10-03+at+12.02.04+PM.png" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="360" data-original-width="616" height="187" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjrT01B9ZcJEUsSu6sHxiO4XYUSXmHj-AG02fHaaVA9nO4YfxZTk75TTSxNpU2BM3Lib28IUywdUa18dosjO07UiRYjC6BLT8Ka6LUwr5tUVhawOujGsTQ3-OiA2LCBgwYrzSoOhUAqHcgu/s320/Screen+Shot+2019-10-03+at+12.02.04+PM.png" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Homicide victims per 100,000, by religion, 2014-2016 (non-<br />Jews in red).</td></tr>
</tbody></table>
The protesters in Magd-al-Crum are not taking a single incident out of proportion--they are responding to a devastating statistical reality. According to a new report from the Knesset's Center for Research and Information, Israeli Arab citizens are disproportionately represented among homicide victims. Because homicide (like most violent crime) is primarily committed intraracially (this is <a href="https://thecrimereport.org/2017/10/19/half-of-violent-victimizations-are-intraracial/">true in the U.S.</a> as well as in Israel), what this means is that homicide perpetrators are also primarily Arab Israelis.<br />
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://img.wcdn.co.il/f_auto,w_1000/2/5/6/0/2560791-46.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img alt="התפלגות הנאשמים בעבירות רצח לפי דת בין השנים 2014-2016 (מערכת וואלה! NEWS , -)" border="0" height="232" src="https://img.wcdn.co.il/f_auto,w_1000/2/5/6/0/2560791-46.jpg" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Homicide defendants by religion, 2014-2016 (non-Jews in red).</td></tr>
</tbody></table>
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The graphs from the report prove the point. Arab Israelis, who constitute about 20% of the Israeli population, are responsible for more than 50% of homicide offenses per annum. This is not the fabricated, misleading product of overenforcement or targeting by Israeli police (many other things are, and we'll get to it in a moment): it reflects actual bodies on the ground--dead people and the people who shoot them.<br />
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Just recently, after the Joint List of Arab parties won a record number of seats in the Knesset. After this electoral triumph, the party leader Ayman Odeh published a <a href="https://www.nytimes.com/2019/09/22/opinion/netanyahu-israel-gantz-ayman-odeh.html">wonderful editorial</a> in the New York Times--a testament to his very real qualities of leadership. Many commentators reflected on his blend of idealism and pragmatism and on his willingness to support Gantz as Prime Minister (against Netanyahu) but reluctance to join the government. But as a criminologist, I was more drawn to his important and knowledgeable commentary on the problems that really plague the Israeli Arab population:<br />
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Our demands for a shared, more equal future are clear: We seek resources to address violent crime plaguing Arab cities and towns, housing and planning laws that afford people in Arab municipalities the same rights as their Jewish neighbors and greater access for people in Arab municipalities to hospitals. We demand raising pensions for all in Israel so that our elders can live with dignity, and creating and funding a plan to prevent violence against women. </blockquote>
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We seek the legal incorporation of unrecognized — mostly Palestinian Arab — villages and towns that don’t have access to electricity or water. And we insist on resuming direct negotiations between Israelis and Palestinians to reach a peace treaty that ends the occupation and establishes an independent Palestinian state on the basis of the 1967 borders. We call for repealing the nation-state law that declared me, my family and one-fifth of the population to be second-class citizens. It is because over the decades candidates for prime minister have refused to support an agenda for equality that no Arab or Arab-Jewish party has recommended a prime minister since 1992.</blockquote>
What might these resources include? I worry that the facile right-wing and left-wing solutions to Arab-Israeli violence are equally doomed to fail. Let's start with the left wing. About a year ago I sat in a hotel lobby at the ASC annual meeting and talked to a respected and experienced Israeli criminologist, who told me of his Israeli colleagues' reluctance to openly discuss Arab crime rates. It's bad form among left-wing intellectuals to admit that a population that <a href="https://www.jstor.org/stable/23365805?seq=1#page_scan_tab_contents">suffers (truly) from overpolicing, overcriminalization, and harsh sentencing</a>, might also be responsible for actual crime on the ground.<br />
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This, of course, reminded me of James Forman's <a href="https://www.amazon.com/dp/B01M1JHFJA/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1">Locking Up Our Own</a>. One of the great strengths of the book is that, by contrast to Michelle Alexander and others to whom racial discrimination seemd to be wholly a product of racist policing, racial profiling, and the war on drugs (note that even Michelle Alexander <a href="https://www.nytimes.com/2019/03/03/opinion/violence-criminal-justice.html">eventually came around to rejecting this facile explanation, albeit without admitting her own errors</a>), Forman's protagonists, black politicians and police chiefs, sought what they thought in good faith to be the best for their communities. Why would Burtell Jefferson embrace stop and frisk? Why would black politicians embrace marijuana enforcement and lax gun laws? Because they were attentive to a community that was really--not just in the putrid minds of white supremacists--ravaged with violence. Perpetrated against black people by black people.<br />
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What is often lost in the chatter of those who deem the question "what about black-on-black crime?" racist is the deep understanding that the vast majority of the African American population does NOT commit crime, and that these politicians and cops were operating on behalf of their communities, rather than against them. It could even be argued that this oversight, in itself, is a form of racism. But I see this evasion, the fudging of this truth, everywhere. As a shining example of this, take a look at the <a href="https://www.nap.edu/catalog/18613/the-growth-of-incarceration-in-the-united-states-exploring-causes">NAP commission report on the causes of mass incarceration</a> and how it talks about race and violent crimes:<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgwcjaRC-Jr88QOJreQ3JeBtS8K6W1JMzyLtAqZCVNhpC40K_LYg_YK-_zyZ_UzpIANSIXk3WrniU51Xs54dRji4HgV3c63A51ZW4yEN9fzwPZPAop-UDiqYTH_XZ1zsxuSXrQK-7uP4pOK/s1600/Screen+Shot+2019-10-03+at+12.34.17+PM.png" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="592" data-original-width="580" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgwcjaRC-Jr88QOJreQ3JeBtS8K6W1JMzyLtAqZCVNhpC40K_LYg_YK-_zyZ_UzpIANSIXk3WrniU51Xs54dRji4HgV3c63A51ZW4yEN9fzwPZPAop-UDiqYTH_XZ1zsxuSXrQK-7uP4pOK/s400/Screen+Shot+2019-10-03+at+12.34.17+PM.png" width="391" /></a></div>
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Note: the relative involvement of blacks in these crimes has "declined significantly". But what about the graph right below this paragraph, which gives you the plain statistics? In the 2000s, when these rates have decreased, black perpetrators are responsible for "only" 50% of the homicides. African Americans constitute about 12% of the population. So, they are overrepresented in the homicide perpetrator population by a factor of <b>four times</b> their percentage in society. Note how my colleagues conveniently avoid mentioning this simple fact, which is literally staring them in the face. Do the numbers for the other violent crimes: also, considerable overrepresentation. And keep in mind that, by contrast to drug offenses (for which we know the official statistics represent differential enforcement, as we know that using and dealing statistics are more or less equal for blacks and whites), for violent crimes official statistics are a far better representation of actual crime commission rates. </div>
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Why are my American colleagues not talking about this? For the same reason that my Israeli colleagues don't openly talk about Arab-Israeli crime rates. Because to admit the statistical truth that these groups are overrepresented in the violent crime picture is tantamount to appearing as a racist to your colleagues and friends. Many lefties, both in the academic and in the activist milieus, think that talking about crime rates is tantamount to repeating the racist sayings of the Nixon and Reagan eras about "hoodlums" or "superpredators" or to subscribe to some kind of Lombrosian thinking that "this is how these people are." Nothing could be farther from the truth. There is not a shred of evidence, from the natural OR social sciences, that shows that any racial group is predetermined to commit more crime. </div>
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The answer is much more simple. It's become fashionable among some of my colleagues (I see this a lot in the books that came out in the last few years) to criticize liberals and democrats for their contributions to "building prison America" and for their paternalistic assumptions about inner-city black life and the black family. But the bottom line is that, study after study of these supposedly paternalistic, well-meaning white criminologists, has shown that criminality and criminalization basically come from the same place: systematic racism. The same forces that lead entire police departments to structure their stop-and-frisk practices to target African American drivers and pedestrians also account for the poverty, neglect, and lack of legitimate opportunities that produce real violent crime. When people have been oppressed, neglected, dehumanized, relegated to second-class-citizen status for generations, is it any wonder that, i<a href="https://www.tutor2u.net/sociology/reference/cloward-ohlin-illegitimate-opportunity-structures">n the absence of legitimate opportunities they turn to nonlegitimate ones?</a> And what would be racist or paternalistic about admitting this?</div>
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Which is where we come to the other side of the political map. What Forman convincingly argues in Locking Up Our Own is that, faced with the real problems of their community, the policymakers and actors he examined grabbed the only tool available to them: criminal justice and law enforcement. Our recurrence to criminal justice comes, argues Forman, from a lack of imagination: we only have a criminal justice hammer in hand, and therefore everything looks like a nail. Law-and-order types, the likes of which are easy to find in both the Israeli and American governments, are likely to jump on the opportunity to police Arab society (or African-American urban streets, which our caselaw tellingly refers to as "high-crime areas") more aggressively. The outcome of these methods can only be destructive--as it has been, to the detriment to all of us, in the United States. </div>
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The truth is that Arab villages and American inner cities do not suffer exclusively from overenforcement or from underenforcement: they suffer from a poisonous, unhealthy combination of the worst of both. Politicized law enforcement, infused with racist stereotypes, will resort to doing less real policing (actually investigating and effectively preventing serious, violent crime) and more harassment and humiliation of people in the streets over minutia. The outcome is that everyone suffers--today you are the repeated victim of humiliating stop-and-frisk and demeaning encounters with a police officer, and tomorrow you're at risk of being the innocent victim of a stray bullet. </div>
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Similar things are true for Arab towns and villages. For decades, Arab cities and towns have been shamefully neglected compared with their Jewish counterparts. People don't have basic infrastructure--I'm talking electricity and water services. Arab schools are in shambles in terms of the infrastructure. Workplace and education discrimination are rampant and ugly. With this package of systemic discrimination comes both underenforcement (Arab lives are seen as less worthwhile and thus less efforts are expended to protect them) and overenforcement (every one of my Arab friends can tell you stories of police abuse that will make you shudder.) Is it any wonder that both crime AND criminalization are serious problems, at the same time? And is it a huge theoretical overreach that both come from the same poisoned well of systemic discrimination? How is throwing more police officers to do more humiliating things going to help the crime rates? How can we ever achieve real change with just law enforcement and no real investment in the enormous socioeconomic gaps that birth crime and discrimination in the first place?</div>
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Ayman Odeh strikes me as an extremely thoughtful, visionary leader. I hope he can leverage these qualities to deeply comprehend the conflation of two deep truths: that violent crime in Arab society is a real problem, and that more aggressive law enforcement is a terrible solution. And I hope that some of us, in academia and in policymaking, can come to the same conclusions about American crime and law enforcement. </div>
<br />Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-49147359398792115322019-10-01T08:20:00.003-07:002019-10-01T08:20:32.732-07:00Which Juveniles May Be Tried As Adults? CA Supreme Court to DecideA legislative clash regarding the prosecution of juveniles in adult courts has reached the California Supreme Court. Bob Egelko of the Chron <a href="https://www.sfchronicle.com/news/article/Calif-Supreme-Court-likely-to-decide-when-14481288.php?utm_source=newsletter&utm_medium=email&utm_content=briefing&utm_campaign=sfc_baybriefing_am#">reports</a>:<br />
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At issue is whether youths under 16 must be tried in juvenile court, where the maximum sentence is until age 25, or can be sent to adult court and face lengthy prison sentences, including life terms for murder. </blockquote>
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A 2000 ballot measure allowed California prosecutors on their own to charge 14-year-olds as adults for serious crimes. Proposition 57, a state constitutional amendment passed by the voters in November 2016, required prosecutors to request such transfers from a juvenile court judge, who would consider the youth’s history and potential for rehabilitation and the nature of the charges before deciding whether to send the case to adult court. </blockquote>
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The new law, SB1391, passed by the Legislature last year and in effect since January, prohibits adult court prosecution for anyone younger than 16. Prosecutors have challenged the law, arguing that it conflicts with Prop. 57, but four appellate courts had upheld the law before Monday.</blockquote>
To put things in context: Both SB1391 and Prop. 57 aimed to do the same thing - scale back the ridiculous appetite for prosecuting juveniles in adult courts. To put things into perspective, this is a backlash against the "direct filing" policy enacted in 2000, under which the decision to prosecute a juvenile as an adult lay exclusively with prosecutors. Keep in mind that this was five years before the Supreme Court decided <i>Roper v. Simmons</i>, in which they relied on neuroscience and developmental psychology to "rediscover" what we forgot throughout the 1980s and 1990s: children are different than adults, and the prefrontal cortex, which allows for delayed gratification, consideration of consequences, and empathy, continues to grow and develop well into a person's twenties. As we are reeling from the characterization of children as "superpredators" or "sociopaths", especially in the racialized context of the crackdown on crack, we are trying to fix things.<br />
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The problem is that these two laudable propositions are trying to do things that could be interpreted as at odds with each other. Under Prop 57, the discretion in trying juveniles as adults shifted from prosecutors to judges; under SB1391, juveniles under 16 cannot be tried in adult courts at all. Prosecutors, who are losing ground under both propositions, argue that SB1391 prevents them from presenting the case of, say, a 15-year-old boy at a hearing to determine where to try him.<br />
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My hope is that the Supreme Court will rule that these propositions are not actually at odds with each other. SB1391 sets a firm limit of 16 for adult courts; <i>within this firm limit</i>, juveniles--people aged 16 and 17--go through a hearing to determine whether they should be tried as adults. In that sense there is no contradiction. If the Court does find a contradiction, I hope they will resolve it in a similar fashion.<br />
<br />Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-3177373685897248462019-09-29T19:24:00.001-07:002019-09-29T19:24:09.215-07:00Distress Call: Suicide Rates in California PrisonsA couple of years ago, Michael Bien alerted us at his keynote speech at WSC to an alarming trend: mental illness was on the rise in CA prisons even as they were getting decrowded. He and his lawyers ran the numbers lots of possible ways, and couldn't find a comprehensive explanation.<br />
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And now, we have some distressing data about the suicide rates in CA prisons. The Chron <a href="https://www.sfchronicle.com/bayarea/article/Suicides-in-California-prisons-rise-despite-14476023.php?fbclid=IwAR1nvP2jHK06rOskd_NXWqOPvanUCIjvH6R98FiHI5RfXLKJB8KzJWd4Pg0#">reports</a>:<br />
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Last year, an average of three California inmates killed themselves each month in state cells — 34 total suicides in a system with 129,000 inmates. That amounts to an annual rate of 26.3 deaths per 100,000 people, the highest rate in California since at least 2006. </blockquote>
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That figure is higher than the national average for state prisons (20 per 100,000 in 2014) and federal prisons (14.7 in 2018, according to the Washington Post). From 2001 to 2014, according to the Bureau of Justice Statistics, twice as many people killed themselves in California cells than in the entire federal system, which contains more prisons and inmates. There were 448 total suicides in California prisons during that period and 222 in federal prisons. </blockquote>
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The inmate suicide rate has now increased for four straight years in California, and it may rise again in 2019. According to the state, 16 inmates committed suicide during the first six months of this year. Michael Bien, an attorney who represents mentally ill prisoners, said he knows of 10 more inmate suicides since then, for a total of 26 so far in 2019. A state spokeswoman said she couldn’t confirm the 10 recent deaths because “some investigations are still ongoing.”</blockquote>
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Read the article in its entirety: it exposes a disturbing pattern of neglect and cover-your-asses mentality and the futility of the ongoing Coleman litigation. What is wrong? and how can we fix it?Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-77124142371987651622019-09-26T21:36:00.000-07:002019-09-26T21:36:11.706-07:00The Impeachment of Andrew Johnson<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><img height="424" src="https://upload.wikimedia.org/wikipedia/commons/thumb/4/42/Andrew_Johnson_impeachment_trial.jpg/1024px-Andrew_Johnson_impeachment_trial.jpg" style="margin-left: auto; margin-right: auto;" width="640" /></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Theodore R. Davis' illustration of Andrew Johnson's impeachment trial in the Senate, published in Harper's Weekly.</td></tr>
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Much has been made in the last couple of days of Nixon and Clinton comparisons to, ahem, the current brouhaha. But as I was prepping <a href="https://www.slideshare.net/HadarAviram/impeachmentology-101-176586639?qid=fc03f012-801d-47fe-ba48-f053724b07d3&v=&b=&from_search=1">this slideshow</a> for a virtual talk at <a href="https://www.welcometomannys.com/">Manny's</a>, I was struck by the surprising similarities between our, ahem, situation, and the context of Andrew Jackson's impeachment in 1868. A quick read of <a href="https://en.wikipedia.org/wiki/Impeachment_of_Andrew_Johnson">this lucid and helpful Wikipedia article</a> will bring you up to speed. It's a rather obscure chapter in American history; as early as 1896, Edmund Ross <a href="http://public-library.uk/ebooks/47/98.pdf">commented</a> that "little is now known to the public" about it. After Ross's book, three more books were written about the impeachment trial: <a href="https://books.google.com/books?hl=en&lr=&id=fw1ABAAAQBAJ&oi=fnd&pg=PA1&dq=andrew+johnson+impeachment&ots=_y8Lyn96QS&sig=zuP1p4wQwDEarEija_JinKdzU6g#v=onepage&q=andrew%20johnson%20impeachment&f=false">David Miller DeWitt's</a> in 1903, <a href="https://books.google.com/books?hl=en&lr=&id=4SZNiUAqCJAC&oi=fnd&pg=PP9&dq=andrew+johnson+impeachment&ots=CKxceskF1Y&sig=BloOid9UyCbH8attUnuum2tODRo#v=onepage&q=andrew%20johnson%20impeachment&f=false">Michael Les Benedict's</a> in 1999, and <a href="https://books.google.com/books?hl=en&lr=&id=nV4mDwAAQBAJ&oi=fnd&pg=PA1&dq=andrew+johnson+impeachment&ots=mINITzDPUo&sig=IP3bRBu4zFa67TcRCem0sI-WoQs#v=onepage&q=andrew%20johnson%20impeachment&f=false">David Stewart's</a> in 2010. What is palpable in all of them (perhaps most so in Stewart's book) is the context: a bitter, partisan, no-holds-barred fight between Lincoln's successor, a moderate Southern Republican seeking reconciliation with the South, and Congress, which sought more sanctions against Southern States during Reconstruction.<br />
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Johnson's unbridled anger at Congress will remind you of someone we know: He actively campaigned against Congress, which included <a href="https://millercenter.org/president/johnson/campaigns-and-elections">a massive speaking tour to "fight traitors in the North."</a> This campaign backfired spectacularly when the election yielded two Republican houses determined to thwart his agenda, and when he tried to get rid of <a href="https://www.history.com/topics/american-civil-war/edwin-m-stanton">Edwin Stanton</a>, the Secretary of War he inherited from Lincoln and a staunch Unionist. Congress tried to thwart these efforts by passing the <a href="https://www.history.com/topics/reconstruction/tenure-of-office-act">Tenure of Office Act</a>, and Johnson, determined to get rid of Stanton, did so nonetheless. Nine of the eleven articles of impeachment revolved around this effort.<br />
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Through the prism of 2019, I can't help but read this story as that of a small man with no hope of filling the giant shoes of his predecessor, conciliatory and sympathetic to a grim racist heritage, determined to spite anyone placing limitations on his power to appoint and discard people as he chose. It might cheer you up (or not) to learn that the Senate came one vote short of removing him from office. It might also be useful to keep in mind that the failure to secure the additional vote came from four Republicans voting against their own party out of concerns that the evidence presented against Jackson was one-sided--and a good reminder that, in order to garner legitimacy for the impeachment process, it is important to conduct a thorough and objective investigation that might assuage the concerns that some of today's hesitant Republicans about "witch hunts" and "kangaroo courts." If Democrats want to secure removal in the senate, which for obvious reasons will be an uphill battle, the process has to be fair and also to be perceived as fair.<br />
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<br />Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-80714010759531717752019-09-26T21:05:00.001-07:002019-09-26T21:05:07.038-07:00Hunger Strike in Calaveras County Jail<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><img alt="Jail" height="240" src="https://bloximages.chicago2.vip.townnews.com/calaverasenterprise.com/content/tncms/assets/v3/editorial/0/e7/0e7766f8-dfe6-11e9-bb1f-67035ef897ff/5d8bee224a2eb.image.jpg?resize=400%2C300" style="margin-left: auto; margin-right: auto;" width="320" /></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Calaveras County Jail, courtesy<br />The Calaveras Enterprise.</td></tr>
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Chapter 6 of Cheap on Crime dealt with a transition with our perception of inmates--from wards of the state, who need to be clothed and fed and taken care of for the duration of their sentence, to capitalist consumers, whose every need beyond the very bare minimum (and sometimes even the bare minimum!) is monetized. The consumer label, of course, is ironic</div>
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Well, the shit finally hit the fan at Calaveras County Jail, where inmates are fed up with the endless monetization of their lives. The Calaveras Enterprise <a href="http://www.calaverasenterprise.com/news/article_992cb920-dfe5-11e9-b03e-ef91fee9cb54.html?fbclid=IwAR02hp07vMa4KGCHx447SaOUcYcEHoRi3MMvgyzX79aPtUaqfqzO8YGGBAU">reports</a>:<br />
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Seventeen inmates at the Calaveras County Jail have announced their plan to initiate a hunger strike in protest of “outrageous prices” for telephone calls and commissary items including soup and ramen noodles. </blockquote>
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“Not only are we afflicted, but our families as well,” the inmates wrote in a letter to the Enterprise. “We have made attempts at every other level to have this situation resolved, to no avail. We are hoping that the public can get involved and know the real situation that is going on here.” </blockquote>
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According to the inmates, local calls cost $2.91 for the first minute and 41 cents for each additional minute, while long-distance calls cost only 21 cents per minute. A soup from the jail’s canteen currently costs $1.23. They claim that those prices are far higher than those at other California facilities in which some of them have been detained. </blockquote>
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Nineteen-year-old inmate Marc Holocker told the Enterprise on Monday that prices have gone up at the jail since he was incarcerated in May, and that his weekly allowance of $20 provided by his family is no longer sufficient to meet his needs. Outside of the telephone calls to his lawyer, which are free of charge, Holocker no longer calls family members, he said, opting instead to spend his money on food items.</blockquote>
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Just recently I posted about how <a href="http://californiacorrectionscrisis.blogspot.com/2019/09/ca-divests-from-private-prisons.html">the prison food industry is one small, often unnoticed "piecemeal privatization"</a> that escapes the gaze of the anti-private-prison crowd. The awfulness and meagerness of prison food (<a href="https://californiacorrectionscrisis.blogspot.com/2012/04/gruel-and-unusual-punishment.html">nutraloaf </a>anyone?) feeds (no pun intended) directly into the commissary business. The phone call gauging is an <a href="https://www.prisonpolicy.org/phones/">ongoing scandal</a>, <a href="https://www.prisonphonejustice.org/state/CA/">in CA</a> and <a href="https://topclassactions.com/lawsuit-settlements/jail-prison/879951-global-tellink-class-action-says-inmates-overcharged-phone-calls/">elsewhere</a> (and that's before we even ask <a href="https://www.correctionsone.com/lawsuit/articles/lawsuit-seeks-500m-in-calif-jail-phone-scandal-nyj72Rmt0VKNZomu/">hard questions about the calls' privacy</a>). In Cheap on Crime I bitterly commented that people in prisons and jails who review their institutions on Yelp have drawn the natural conclusions about how they're being treated, and it seems the people striking in Calaveras are taking to more direct action.Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.com0tag:blogger.com,1999:blog-8107037609455779557.post-63854606678256152632019-09-26T11:56:00.001-07:002019-09-26T11:56:05.924-07:00Crimmigration Meets Sentencing: Assimilating the Apprendi Doctrine to Simplify the Categorical AnalysisAs part of my visitorship at Harvard, I'm having the great pleasure of auditing <a href="https://hls.harvard.edu/faculty/directory/11283/Torrey">Philip Torrey</a>'s terrific Crimmigation class and learning a lot about this relatively new, but hugely important, legal field. After <a href="https://supreme.justia.com/cases/federal/us/559/356/">Padilla v. Kentucky</a>, knowing the immigration consequences of criminal convictions are not just "nice to know"--they are an ethical obligation for criminal attorneys, and our shameful immigration policy means that many, many criminal cases <i>will </i>have immigration consequences.<br />
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Because removal from the U.S. is one of the most severely destructive things you can do to a person's life--far more destructive than the domestic sentences for many offenses--it is imperative that these consequences be foreseeable. Indeed, when you read caselaw written about crimmigration the judges will often say "this is obvious", but it is not obvious at all. The categories are nebulous and complex, the overlap between federal and state law is far from complete, and on the receiving end of this are people who have to figure out their criminal case strategy with an eye toward the immigration consequences. So, simplifying the analysis is overall a good thing.<br />
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In this post I'm presenting one idea/suggestion on a possible simplification of crimmigration, which in the grand tradition of the field, requires importing an idea from the criminal to the immigration realm--namely, <b>planting the <i>Apprendi </i>analysis regarding the definition of an "element" of the offense to the categorical analysis done in immigration removal cases</b>. Let's explain.<br />
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When a person is removable from the United States on criminal grounds--whether as "inadmissible" (having not been legally admitted into the country) or "deportable" (having initially arrived here legally)--the law governing the removal can be found in sections 212 and 237 of the INA. These sections enumerate the sorts of criminal consequences that trigger removal. In general--and this is hugely simplified--"inadmissible" noncitizens can be removed following a conviction for a "crime of moral turpitude", a controlled substances offense or two or more convictions of some seriousness, or for being known as a controlled substance trafficker or a trafficker in persons or engaging in prostitution or other commercialized vice. "Deportable" noncitizens can be removed following a conviction for a recent crime of moral turpitude (or a combination of older crimes of moral turpitude), an "aggravated felony" (which need not be aggravated nor a felony), high-speed flight from an immigration checkpoint, failure to register as a sex offender, or an offense involving controlled substances, firearms, or domestic violence (more detail on all this in my colleague Richard Boswell's <a href="https://agora.aila.org/product/detail/2938">excellent book</a>.)<br />
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The challenge in applying these categories lies in that the federal definition of these offenses, as well as of the concept of "conviction", can differ from the state definition where the person was tried and convicted. Setting aside the issue of "conviction", which in itself is complicated, how can we tell whether a state conviction for a violation of a particular state statute is the equivalent of a conviction for an "offense involving controlled substances" as per immigration law?<br />
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To resolve this question, immigration courts recur to the "categorical approach": the analysis focuses on the content of the relevant statutes (the state criminal statute and the federal immigration statute) rather than on the facts that gave rise to the incident. Basically, the court will analyze the offense from the immigration statute, analyze the elements of the criminal statute, and if the former is narrower or equal to the latter (at its least culpable version), the person is deportable on criminal grounds. This kind of analysis is reminiscent of the analysis of several criminal procedure and sentencing doctrines, starting with the <a href="https://www.ussc.gov/sites/default/files/pdf/training/primers/2017_Categorical_Approach.pdf">application of the ACCA</a> (<a href="http://myattorneyusa.com/descamps-v-united-states-and-its-effects-on-immigration-law">Descamps, despite having nothing to do with immigration, is regarded as precedent for immigration cases</a>) and continuing with the <a href="https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1894&context=fss_papers">Blockburger test for "same offense"</a> in the double jeopardy context.<br />
<br />
But wait! Things get complicated, because state statutes are seldom straightforward. They often include several alternative actions, circumstances, or mental states. When faced with such complexity, immigration judges have to figure out whether it is a "divisible" or an "indivisible" statute. A "divisible" statute is a statute that includes several alternative elements, in which the jury has to find positively, beyond a reasonable doubt, that a particular subset of these alternatives (as opposed to the other alternatives) occurred. If that's the case, the "modified categorical approach" allows the court to go beyond the face of the statute and look at actual documents from the case--say, the indictment, the plea colloquy, the jury instructions--to figure out which version of the divisible statute the person was convicted of. Then, the court proceeds with the categorical analysis with respect to that particular subdivision. By contrast, some statute will enumerate alternative features, but those don't rise to the level of "elements"--they are merely "means", which is to say, a criminal jury is not required to specify which of these they found occurred in the case. If so, the regular categorical analysis stands and the court won't be permitted to go beyond the language of the statute.<br />
<br />
Corollary: It is very important, for immigration law purposes, to know whether the alternative wording in the statute constitute "elements" or "means".<br />
<br />
For an example of this analysis, look at the <a href="https://www.ilrc.org/sites/default/files/resources/rendon_cal_burglary_divisible.pdf">Ninth Circuit decision in <i>Rendon v. Holder</i> (2014)</a>. The case involved the California burglary statute, which prohibits entry with intent to commit “grand or petit larceny or any felony.” Because not any felony is larceny, there's a possible argument that this is a divisible statute; but the Ninth Circuit analogized this case to <a href="https://www.supremecourt.gov/opinions/12pdf/11-9540_6k47.pdf">Descamps</a>, which deals with the exact same statute in the ACCA context, to say that it is not a divisible statute. The reason? A California jury deliberating a burglary case would not be required to unanimously decide between “larceny” versus “any felony,” or to unanimously agree as to the “felony.”<br />
<br />
How do we know this? One tell-tale sign would be if the burglary statute affixed different sentences to people entering to commit "larceny" and people entering to commit some other felony. That would be an indication that these elements have to be found by a jury. But this is not the case here, so the courts in Descamps and Rendon have to go into the statute and into jury instructions etc.<br />
<br />
The thing is, we don't actually need the middle man. In 2000, SCOTUS decided <i><a href="https://www.law.cornell.edu/supct/html/99-478.ZS.html">Apprendi v. New Jersey</a>,</i> which is not an immigration case but a sentencing case. The story was as followed: Apprendi fired several shots into the home of an African-American family and made a statement–which he later retracted–that he did not want the family in his neighborhood because of their race. He was charged under New Jersey law with second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. But New Jersey also had a hate crime statute, which was not mentioned in Apprendi's charge, and which doubles the sentence of a crime if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a hate motive. Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence, and the judge found by a preponderance of the evidence that the shooting was racially motivated. As a consequence, Apprendi got 12 years - 2 more than the maximum sentence for the basic firearms conviction. On appeal, Apprendi argued that the hate motive should have been mentioned in the charging document and proven to a jury beyond a reasonable doubt--in other words, according to the classification that was valid at the time, that the "hate motive", despite appearing in a separate statute, was an "element of the offense" and not merely a "sentencing enhancement." Writing for the majority of the Court, Justice Scalia found that the distinction between an "element" and an "enhancement" was unclear and unnecessary, and that the 6th Amendment, as well as the principle of legality, required a jury decision beyond a reasonable doubt regard<span style="font-family: Times, Times New Roman, serif;">ing "<span style="background-color: white;">any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction."</span></span><br />
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;"><br /></span></span>
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;"><i>Apprendi</i> yielded a whole series of cases dealing with the question of what counts as an "increase in penalty", but that's not of concern here: what I argue is that <b>the same test can be used in the immigration context, and it renders unnecessary the whole distinction between "elements" and "means."</b> If the ruling in <i>Apprendi</i> is adopted in the immigration context, immigration judges looking at a complex statute need only ask about a particular part of the statute: does this part impact what sentence the person's going to get? If so, the statute is divisible, and this fact is the subdivision we have to apply the modified categorical approach to. If not, the statute is indivisible, and we don't have to worry about this part and we apply the straightforward categorical approach.</span></span><br />
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;"><br /></span></span>
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;">Why is this a good suggestion? Well, for one thing, it makes things simpler. This in itself is a virtue in immigration, and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1692891">the reason why the categorical approach was adopted to begin with</a>: clear administrative decisionmaking and uniformity. This is especially important, because while the logic behind not getting into the facts was supposedly to make things easier, it hasn't, and courts bumbling through doctrinal analysis don't necessarily do a better job than courts bumbling through case facts. If there's something we can do to simplify the doctrinal analysis, we're actually helping.</span></span><br />
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;"><br /></span></span>
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;">In addition, adopting <i>Apprendi</i> in immigration removal cases the trend of adopting criminal law logic in immigration contexts, and would do something to <a href="https://scholarlycommons.law.wlu.edu/wlulr/vol64/iss2/3/">correct the imbalance in the interface between the two areas of law</a>. It would also harmonize the tendency to prefer these kind of clean, element-based analysis with other areas of criminal law, such as <a href="https://constitutionallawreporter.com/2019/01/24/blockburger-v-united-states-1932/">double jeopardy</a>. </span></span><br />
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;"><br /></span></span>
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;">Finally, this is not a bleeding-heart-open-borders suggestion: presumably, if you are the "you do the crime, you do the time, you leave the country" type, without fair warning as to what the "crime" consists of, you don't have much of a moral basis for your retributive stance.</span></span><br />
<br />
<span style="font-family: Times, Times New Roman, serif;"><span style="background-color: white;">I'd love to hear your thoughts.</span></span><br />
<br />
<br />
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