Health Measure or Oppressive Social Control?

One of the hottest stories from quarantined Israel is the fierce Haredi (Ultra Orthodox) objection to the closure of mikvaoth (ritual bathhouses.) Almost two weeks ago, Ha'aretz reported:

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. 

“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.” 

Indeed, keeping the mikvaoth 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 close the mikvah for men, but keep it open for women. If you're looking for a patriarchal angle, here it is: women's access to the mikvah 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 mikvah 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.)

The most recent development is Litzman's insistence to keep the mikvaoth open because "it is inconceivable that people should be allowed to take their dog out for a walk and the mikvaoth will be closed." When Netanyahu said, "what can we do, the virus does not respect religion," Litzman replied, "well, we will."

Setting aside the absurdity of a health minister who apparently does not care for the health of Israeli citizens, particularly those of his own congregation, 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.

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 reported:

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.''
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.
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.
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.
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.

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, the AP reported:

″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. 

Fascinatingly, there are still people who believe--today, after all those years--that the closure was an unnecessary homophobic move. Gayle Rubin writes:

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)
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.
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)
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.

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 haredim 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.

It's instructive to read Silverman's aftermath thoughts about the closures, as he laid them out in an interview in 2004:

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. ...
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?
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.
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.

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 mikvaoth 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.

There is an additional point that matters a lot. Recently, Cianna Stewart, who worked on the front lines of AIDS prevention in the 1990S, wrote a piece comparing her personal experiences of the two pandemics. She found many similarities between the two experiences, but some important differences:

• this timeline is much faster
• this virus is much easier to spread
• 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)
• 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)
• 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)
• 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
• 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

To the extent that the decision to close the bathhouses in 1984 is still controvesial, a decision to close the mikvaoth 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.

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 mikvaoth now.

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.

Israel and the U.S. - Emergency Measures

Political historian Heather Cox Richardson writes a daily news digest titled Letters from an American. In last night's edition, she flagged the story about the DOJ secretly seeking emergency powers. She writes:

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. 

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. 

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. 

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. 

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.

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):

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. 

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. 

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!"

ACRI's letter to the Attorney General (in Hebrew) is here.

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. In a recent paper, 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 viewing American criminal justice through the lens of American Political Development, I argue that the U.S. and Israel are best compared to developing nations where criminal justice is concerned:

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.

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.

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.

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

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

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

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

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

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

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

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

Three questions arise from the presence of these stereotypes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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