Restorative Justice in Sex-Positive Communities: What, If Anything, Does It Restore?

It’s always distressing to see situations in which the cure to a social disease looks pretty bad in itself. For me, many of these situations revolve around the concept of progressive punitivism–situations in which social justice activists and advocates pursue equality, fairness, and other good stuff through punitive means (here‘s a podcast I did about this.)

Progressive punitivism can operate through the formal legal system (as it does when mayors call to reverse the burden of proof in criminal cases featuring cross-racial violence or when activists pursue vindictive recall campaigns against judges they deem too lenient) or, at least just as commonly, through the informal punitive machine of hard-to-reverse reputational harm, referred to in social media as “cancel culture.”

Many people have written about the ills of the prevalent virtue signaling and virulent shaming mob campaigns of he progressive left, especially in the context of what is known as “carceral feminism“. Aya Gruber’s recent book The Feminist War on Crime offers a critical examination of the allegation-as-fact narrative and what it means for the carceral state. And Leigh Goodmark’s Decriminalizing Domestic Violence suggests alternatives to the common domestic-abusers-are-inhuman-monsters narrative that permeates even progressive conversations about crime. In short, one of the serious problems with carceral feminism is that the progressive commitment to due process ends the minute we find ourselves facing a defendant we dislike.

Perhaps as a reaction to the contradictions between carceral feminism and cancel culture on one hand, and the abolitionist stance that the same folks tend to hold regarding the U.S. criminal justice system on the other, alternatives have been proposed, including the notion that harms of the patriarchy can be resolved outside the formal legal process, through restorative justice processes. One of these alternative process, Transformational Justice, takes on issues that are typically regarded through a punitive lens among progressives–domestic abuse, sexual assault–and offers a survivor-centered process that involves the community. You can read more about the premises behind transformative justice here. Central to the process is the establishment of “pods”: a “survivor pod” that supports the survivors and amplifies their narratives, and an “accountability pod” that accompanies the perpetrator’s journey toward accepting responsibility and offering redress of harms. The Bay Area Transformative Justice Collective defines the pod as “the people that you would call on if violence, harm or abuse happened to you; or the people that you would call on if you wanted support in taking accountability for violence, harm or abuse that you’ve done; or if you witnessed violence or if someone you care about was being violent or being abused.”

It is not surprising that sex-positive communities, such as the polyamorous and/or kink communities, are eager to adopt restorative practices. Polyamorous people have been on the receiving end of horribly discriminatory legal action, ranging from heart-wrenching custody battles to lack of police support in the face of hostilities. BDSM and kink practitioners have had to defend themselves against criminal charges with meager legal protections. Both communities regard consent as the centerpiece of their ideologies: polyamorous speakers often present polyamorous relationships as the opposite of cheating and kink practitioners develop protocols for consent before engaging in sexual scenes. When cheating and nonconsensual interactions occur in these communities, the harm is not only to the victims, but also the already vulnerable reputation of communities that are underserved and misunderstood. Which is why it makes sense that these communities have recurred to “accountability processes” to resolve these situations. In some cases, there’s fear that seeking recourse through police intervention will be futile at best, or worsen the situation at worst. In other situations, the harms would not trigger legal intervention, either because the incident would not be perceived as serious enough or because it does not constitute a criminal offense, even though it matters a great deal to the participants.

I’ve recently looked through the Internet chronicling of two such processes: the accountability process for sex educator Reid Mihalko and the accountability efforts lobbed at polyamorous author and speaker Franklin Veaux. While I’ve been a long-time researcher of political and legal mobilization in the context of underserved sexual communities (see here, here, and here), I don’t personally know either of these two men or any of their accusers, even though two of the people who participated in the pods and/or wrote about them are friends, acquaintances, and colleagues. I am completely agnostic on the facts and perceptions that surrounded these incidents, except for the obvious fact that the survivors experienced immense suffering and trauma, sometimes spanning years. My only source material is what’s publicly available online, which turns out to be quite a lot, but I haven’t attempted to uncover “the truth,” whatever that means. My commentary on this mostly seeks to understand what these processes seek to achieve and whether (and to what degree) they feel qualitatively different from the process this was supposed to complement or replace.

Chart of Reid Mihalko’s accountability process. Source:

In January 2018, The Daily Beast publicized accusations against Mihalko, according to which, eight years earlier, he pestered Kelly Shibari, an adult performer who attended a workshop of his, into giving him a hand job. The article emphasized two aggravating factors: the exploitation of a sex worker, whose consent is already suspect and vulnerable to doubt, and the incongruence of the incident with Mihalko’s public image, particularly the emphasis he placed on consent at his workshops and events.

Mihalko quickly published a public apology on Facebook and subsequently announced that he would step down from teaching. Two pods formed: An accountability pod for Mihalko and a survivor pod for Shibari. The accountability pod created a link for soliciting more anonymously submitted stories about Mihalko, with a “soft deadline” in early March. The entire process, which consisted of writings by the accountability pod members, writings by Mihalko himself, and accounts of the progress made (including securing a therapist for Mihalko) was publicly shared on The public face of the process included accounts from the survivors; 12 of these stories were included, as well as an “analysis” by the survivor pod members, which concluded:

“Overall, the stories consistently depict a person who, often while under the influence of alcohol, crosses boundaries in both overt and covert ways, and mingles sexual behavior (including flirting and propositions) with connections with people that are not in specifically sexually-appropriate environments. There were multiple mentions that Reid seems to specifically seek out sex from people who may not have strong boundaries around him, possibly due to the assumption that Reid is an expert and/or has professional influence. A number of people noted that Reid seemed to be unaware of the effect of his privilege & power as an educator / expert in gaining consent. Multiple people noted that they did not feel that Reid picked up on cues that they were uncomfortable with being flirted with and/or that they did not want to engage sexually.”

I was struck by how similar this assortment of Medium posts was to the dynamic in parole hearings that I uncovered and analyzed in Yesterday’s Monsters. For one thing, the idea of allegation-as-fact, which Gruber discusses in The Feminist War on Crime, is prevalent in both proceedings. At a parole hearing, the courtroom transcript is king: any deviation from the story as it was told by the prosecutor in the courtroom is “minimizing.” Here, the allegation is queen. The idea that the allegation is true simply by virtue of being alleged shapes the discourse, and is presented as as antithetical to the official process, which would harm victims by questioning their credibility. By contrast, any effort by Mihalko to dispute this assessment would be regarded as a minimization of his role in the incidents.

Similarly, apologies begat criticism, which begat more apologies–for the better part of the few months covered by these posts. Some of Mihalko’s apologies were perceived as undue “centering” of himself, rather than of the people he had harmed. The effort to push more and more self excavation and inquiry reminded me of the decades-long parole hearing efforts to get people to “authentically” talk about the “insight” they have gained. There is the perception that these pods (members of whom are also, in part, celebrities of the sex-positive community–either self-appointed or picked by Mihalko and Shibari) could discern when Mihalko would finally get to the bottom of the apology well and emerge with a fully and appropriately contrite version of his apologies. Until then, apologies begat apologies. I don’t claim to have the power to discern authenticity, or lack thereof, or an instrumental effort to save his reputation, from Mihalko’s contrite posts on Medium (you may come to a different conclusion–read here and judge for yourself–but robust social psychology research suggests we are not good at all at determining this.) They remind me a lot of the parole transcript stuff, echoing the iconic scenes in The Shawshank Redemption in which Red repeatedly assures the board that he is completely rehabilitated: “no danger to society here, and that’s God’s honest truth.”

Another way in which this process reminded me of parole hearings has to do with the role of the survivors. By contrast to the criminal process, where the victims (understandably) perceive themselves as powerless, it was Shibari who asserted control over the survivor pod and the gathering of the other survivors’ stories. This is understandably more empowering to survivors than a situation in which the system takes ownership of the victim’s narrative, but as Kent Roach points out, providing victims/survivors with agency does not necessarily uproot the punitiveness of the process. If this process is focused on the healing of Shibari and the other survivors, it adopts a very particular interpretation of what healing means.

By contrast to Mihalko’s cooperation with the accountability pod, Franklin Veaux’s case exemplifies how these public processes with “accountability pods” operate when their target does not cooperate. Like Mihalko, Veaux built his public persona as a polyamorous educator around notions of healthy relationships, consent, and healthy communication practices, which he espoused in his public talks and in his book, coauthored with former partner-turned-accuser Eve Rickert. The accusations against him, again, are aggravated by the contrast between this benign public persona and his behavior in private relationships. His survivor pod elaborated in an open letter, which referred to their inquiry into Veaux’s behavior as “polyamory’s #metoo”:

“The women’s experiences indicate that Franklin has patterns of manipulation, gaslighting, and lying; leverages his multiple partners against one another; tests or ignores boundaries; pathologizes his partners’ normal emotions and weaponizes their mental illnesses; exploits women financially; uses women’s ideas and experiences in his work without permission or credit; grooms significantly younger, less experienced, or vulnerable women; lacks awareness of power dynamics and consent; has involved women in group sex and other sexual activities that they experienced as coercive; and accepts no responsibility for the harm he causes by engaging in these behaviors — often blaming other women, or the harmed women themselves, for that harm.

These behaviors escalate when Franklin lives with a partner, and he becomes verbally abusive when his nesting relationships end. The severity of this pattern is illustrated by the fact that none of his former nesting partners will be alone with him. Two of them, over a decade apart, fled the homes they shared with him at the end of the relationships. Their written records from the time of leaving him show evidence of trauma.”

But the process of holding Veaux accountable for these harms went awry from the survivors’ perspectives. In an open letter they wrote on their own behalf (rather than by the pod), also published on Medium, they wrestle with what procedure should be in this kind of “transformative justice” process:

“In our understanding of transformative justice practices, the survivor pod centers the needs and input of the survivors, in turn informing the actions of the accountability pod. That didn’t happen in the part of this process that involved Franklin’s pod. From the time that someone representing an accountability pod first made contact with Reid until just before “An Announcement About Pod Boundaries” was posted, no survivor was consulted or given meaningful opportunity to influence the actions of the survivor pod toward Franklin’s pod, or given access to the communications between the pods. Our list of asks was not sent, and we were not given an opportunity to make additional requests, or to decide what information, if any, to share with Franklin’s pod. The survivor pod has said more about this in their wrap-up statement.

“Those of us who have taken the time to read through the correspondence between the pods do not agree with the approach the survivor pod took and do not believe it represents us, or the values this process was intended to be founded on. We also disagree with some of the characterizations made in the pod boundary statement. Because this cannot be undone and does not materially affect the way forward now, we will leave it at that.

“To be clear, not all of us were even invested in a transformative justice framework when we came forward. Those of us who were, sincerely believed in it. But regardless of intent, it is clear that such a framework was not in place during this process. Nor do we believe that Franklin would ever have engaged in an accountability process in a way that was ever more than performative — we believe his many public pronouncements about us prove as much. This clarification should therefore not be taken in any way as a vindication of Franklin or his own pod members. But it is time to set aside any pretense that a transformative justice or accountability process has occurred here, or will.”

Several things seemed to have gone awry. The survivor pod members admitted that they engaged in some exchanges with Veaux’s pod that were not divulged to the survivors themselves; in a particularly curious procedural twist, the survivor pod appointed Mihalko (yes, the subject of the supposedly exemplary accountability process) to liaise with Veaux on behalf of the pod, a move that was not successful and not coordinated with the survivors themselves (this raises an ancillary question, which is whether people subjected to versions of this process that are deemed successful are ever fully redeemed, to the point that they are regarded as assets in others’ process; I’ve seen this sort of empowering move in peer-to-peer networks of formerly incarcerated people, but this process is supposed to be centered around the wishes of survivors, rather than about the redemption of former accountability process subjects, so it’s a completely different story.) Another part of what went awry, according to the survivor pod, had to do with the fact that the basic assumptions underlying the process were not shared by the two pods–the survivor pod, which sought to amplify the voices of survivors (albeit not in the way the survivors wanted and without informing them or seeking full input from them), and the accountability pod, some of whose members did not accept accountability as given and disputed credibility.

This, I think, is the crux of the matter. Reading the different facebook posts, Medium posts, and Quora questions, is complicated, because transformational justice (like a lot of formal and informal processes) is heavily laden with jargon and terms of art (“transformational” “pods” “accountability” “centering” “amplifying”, and that’s on top of the relationship jargon (“harm”, “gaslighting”, “problematic”, etc) and the considerable specialized verbiage developed around consent and relationships specifically for poly and kink communities. But underneath this intricate terminology there seems to be a simple idea: a necessary condition for supporting survivors is accepting their narratives at face value. Questioning their credibility in any way is a violation of the basic assumptions of the accountability process. In other words, if you “plead not guilty”, or even ask for the transformational justice version of an Alford plea (acknowledging the suffering but not taking on full responsibility for it), you are not deemed a good-faith participant in your accountability process and the whole transformational justice edifice breaks down. What seems to have gone awry, beneath the layers of process and prose, is that Veaux did not accept the survivors’ narrative (he argued that he was the victim of a smear campaign orchestrated by Rickert); the members of his pod who spoke publicly also expressed less than wholesale acceptance of the survivors’ versions of the events (albeit to a much lesser degree than Veaux himself.)

Indeed, eventually, the breakdown of the process because of this basic gap in factual accounts saw the survivors break with the pod and the prcess and assert ownership of their own narratives. The culmination of this break was the publication of their stories, as interviewed by Louisa Leontiades, in a website called “I tripped on the (polyamorous) missing stair.” The open letter refers to it as a “survivors’ archive. Nothing more, or less.” Indeed, the suffering is evident and heartbreaking. Reading the testimonials feels like watching a train wreck–tragic, elegant, generative of questions. In an odd subversion of the allegation-as-fact ethos, the document collection itself has evoked debates and disputes not only about credibility, but about methodology, and about the interpretation of methodology, and about the methodology of interpretation of methodology. These posts feel a bit like the story of the blind men who set out to inspect an elephant and, underneath all the fancy analysis, they all revolve around the inescapable conundrum of credibility.

Looking at the presumably successful process in Mihalko’s case, and at the unsuccessful (assessed by the survivors themselves) process in Veaux’s case is instructive. It is clear that, in both cases, the people running the process are doing so with good intentions, but it is not entirely clear what those intentions are, or whether there is consensus about them. It’s clear that the process is supposed to be “survivor centered”, and that the survivors play a role in it that is greater than what they would play in the official legal system. Indeed, since a lot of the experiences that the survivors and pods describe are examples of poor (and traumatizing) interpersonal behavior, but do not constitute criminal offenses, they certainly get more agency naming their grievances than they would get if they filed a complaint with the police. Nonetheless, it’s not at all clear what the survivor participation/leadership means or even that the survivors, as a group, are clear on it themselves or in agreement amongst themselves. It is pretty clear that the pod members are well meaning in stepping in, but it is not at all clear what the yardstick is for naming them, and what sort of authority and expertise they claim, nor is it clear whether their determinations or guidance would or should be acceptable to the person who is to be held accountable (when the person flouts their presumed authority, such as in Veaux’s case, what does this authority even mean?) It is pretty clear that some measure of sincere accountability needs to flow from the perpetrator–and it’s clear that none was forthcoming from Veaux–but it is not clear at all what the yardstick is for determining what sort of contrite expression will be deemed sufficient, how sincerity is measured, and how the pod determines when the penance is done and the person (who, in both cases, holds himself out as a public celebrity educating others on good relationships) “gets” to resume his public life. What does the “certification” that the person has “done the work,” as they say in progressive circles, mean? Even in the event that, as in Mihalko’s case, the pod eventually rinses him of the reputational stain, is the stain really gone when the process is public for the sake of transparency?

I applaud the earnest and well-meant effort to find an alternative to the criminal process on one hand, and to the social media mob-shaming spectacle on the other. Both of these things are destructive, and the project of empowering survivors to tell their stories is laudable. But overall, I’m not sure that transformative justice really has presented a better alternative. It appears to be a more elaborate, erudite, and articulate version of the trial-by-social-media that is Twitter; it retains much of the pathology and does not present a fully salutary alternative. Moreover, it seems not to have bypassed two of the central problems of all processes designed to address interpersonal and sexual misbehavior: the engagement with the credibility of narratives and the buy-in (call it “admission of guilt” or “accountability”) on the part of the accused party.

First, the credibility. The idea of allegation-as-fact, or #believewomen, emerged as a contrary notion to the pathological lack of respect and credibility questioning that victims of interpersonal misbehavior, particularly domestic violence (“why didn’t she leave?” and sexual assault (“what were you wearing?”) survivors encounter in police stations and courtrooms. But it seems that the effort to either present these narratives without testing their credibility, or with an explicit statement that they are to be believed, does not quell the understandably human urge to “find out what happened.” Even the folks that have done the erudite meta-analyses, particularly in Veaux’s case, are concerned with credibility; within this women-positive, sex-positive process, they engage in contrasting factual stories. Rather than believing that people have suffered–which should be obvious just from the tenor of the narrative, before even engaging with the particulars–the focus becomes on believing their account of what happened; the former is seen as an insult, and expressing regret just for the suffering, without giving the allegation full credibility, is a worthless “non-apology apology.” Pretty much what you get from the legal system and/or the social media cancel culture machine. Ultimately, transformative justice can only transform perpetrators who walk into the process fully prepared to accept the narrative of the survivors. Any effort at insisting on transformation if this basic condition is not met is not only futile, but destructive.

Relatedly, assuming–and I’m not sure that assumption is true at all for all the survivors, given their own statements–that there’s value in being offered an apology, and assuming–and I now this assumption is not true, because social science literature refutes it–that it is possible to detect sincerity in apologies, the success of an apology or an acceptance of accountability depends entirely on the extent to which the perpetrator even buys into the process. With public figures, even in a progressive, feminist, queer-friendly space, there are huge disincentives from buying into the process. The threat of withdrawal of social capital has to be considerable to convince someone to participate. And even when the buy-in is complete, as in Mihalko’s case, one is left with the unsatisyfing taste that an apology that is offered in the context of a tribunal that offers you a stamp of approval back into public life can never be 100% genuine. This is what Nick Smith talks about when he argues against court-ordered apologies. Which raises the question: Does buy-in matter for what the survivors get out of the process? I’m not sure whether Shibari and the other survivors in Mihalko’s eventually walked away from his accountability process feeling fully satisfied with the outcome, but we do know that Rickert and the survivors in Veaux’s case were unhappy with the aftermath and attributed its failure in part to the pod’s positions and process. Again, it is hard to argue that the question of credibility is not a big part of this. 

I wish I knew how to offer an alternative to this process that would bring about healing without the aftertaste of credibility testing and punitivism. I used to think that the problem is that we’ve been steeped in the idea of punitivism for so long. But after having read Paul Bloom’s Just Babies, I think that notions of retribution are an important part of our psychological makeup since infancy, and dealing with them inevitably requires us to wrestle with the complicated question of “what really happened.” Much as we try to escape it with concepts of survivor empowerment, we end up exactly where we started: comparing shards of narrative, selling ourselves unknowable truths, and refusing to accept that incidents can be experienced in radically different ways by different people. And maybe, when we experience immense suffering at the hand of someone else, the most important thing to us is not just to be listened to, but also to be found credible, to be believed. And if that’s the case, I don’t know how we square this with due process, restorative process, or any process.

This conversation goes straight to the heart of the non-choice we face in the November 2020 election: vote for the Democratic candidate, who has been accused of sexual misconduct, or for the incompetent, psychopathic, semi-literate, despotic career criminal. If we are to save the country, we have to figure out how we handle the moral and factual vagueness around these accusations, and sit with what it means to walk through the woods of credibility. That there is no real alternative (an abstention or a write-in is a vote for Trump, I’m pretty clear on that) makes this even more confusing. And yet, we should wrestle with the meaning of supporting suffering, and whether that is inexorably tied to questions of credibility and buy-in.


A good place to start a conversation about equanimity is the serenity prayer from Alcoholics Anonymous: God grant me the serenity to accept the things we cannot change, courage to change the things I can, and the wisdom to know the difference.

And there is a popular meme that has emerged in the activist community that emerged as an answer to that, which says, “I want to change the things I cannot accept.”

I love that meme, because there’s just something so human about railing against our universal predicament. Why are there things I cannot change? There is so much suffering, and I want to fix everything! Especially because so many of the things that are wrong are our fault—climate change, infection, mortality rates, injustice, inequality, access to resources.

But many of us are activists and advocates, and people who do world-improving work, and we have found out, the hard way, that this desire to change everything has a price.

First, the world at large sometimes resists our grand plans. Think about the efforts to educate people to self-isolate. I’ve seen really good people go bananas online in the face of evidence that others are not staying home. It makes so much sense to isolate and stay home, and yet—how can it be that this logic, that is so obvious to you, is not obvious to others? And I’m seeing millennials blame boomers, and boomers blame millennials, and Gen Xers blaming everyone else, and this place of compassion for humanity and care for others just becomes a battlefield of mudslinging—and people get more and more frustrated that the world doesn’t fall in line with their plans to fix everything, and their frustration leads to anger, and the anger doesn’t help, because—have you ever seen anyone being blamed and chided and yelled at smiling a beatific smile and saying, “now that you’re yelling and cussing and offending me and publicly humiliating me, I get it, and I’ll change my ways”?

Second, the indiscriminate struggle to change everything has an impact on the person who is struggling. Psychology Today reports that compassion fatigue used to be a problem that was most commonly seen among health care professionals. Because their work puts them in situations where they commonly see or hear about ongoing and sometimes unspeakable suffering, it is not unusual to see some of the most skilled, caring, and compassionate “helpers” fall victim to compassion fatigue. I’ve seen really interesting and heart-wrenching literature on secondary trauma among human rights lawyers, public defenders, asylum attorneys, people who see awfulness at work every day. However, in today’s world, where every tragedy is instantly broadcast directly into our living rooms (TV), laps (laptop), and/or hands (smartphone), compassion fatigue is no longer unique to certain professions. As Dr. Amit Sood points out in his book, The Mayo Clinic Guide to Stress-Free Living, “… we are inundated with graphic images of the unimaginable suffering of millions. We can fathom the suffering of a few, but a million becomes a statistic that numbs us.”

Sometimes, this incessant stream of suffering makes us feel burdened by the suffering of others, and occasionally we slip into blaming others for their suffering. We could also develop our own destructive habits – sinking into overeating, or excessive use of drugs or alcohol, or being glued to the TV, and we can start closing our hearts with deprecating humor, and worst of all—we can deny ourselves self-compassion by denying that there’s anything wrong going on.

In fact, according to the Compassion Fatigue Awareness Project, “denial is one of the most detrimental symptoms” because it prevents those who are experiencing compassion fatigue from accurately assessing how fatigued and stressed they actually are, which prevents them from seeking help.

I’m going to suggest that this feeling is real, and yet if someone told you to just shut it all out and distract yourself with a new purchase or a bubble bath, that would ring very wrong to those of us who want to open our hearts. Clarissa Pincola Estes writes in Women Who Run with Wolves about talking to women who are very invested in social justice work. Sometimes they’ll tell her, “I just can’t go on with all the suffering that’s going on.” But when she says, well, why don’t you just go ahead and give up, they say, “give up??? How can you tell me to just give up with all the suffering that’s going on?”

Great ecological and spiritual teacher Joanna Macy pioneered “Despair work”, otherwise known as “Despair and Empowerment.” this approach acknowledges despair and “burnout” as honorable, springing as they do from the interconnectedness of all being. Macy posits that if these feelings are not blocked or ignored or covered over, they can be a tremendous source of further energy.

So, equanimity is not ignoring other people’s suffering or being cold. On the contrary, it’s all about sitting with the suffering with a full heart and accepting the nature of the suffering, to the point that your acceptance gives you a moment to make the right choices about where to put your energy. Because of that, equanimity is the virtue that balances the other three immortal virtues. It makes sure that you are not so attached and embroiled in the suffering of others that you can’t make good choices about how to help them.

Now, the traditional phrase used to meditate on equanimity is:

“All beings are the owners of their karma; their happiness and unhappiness depend upon their actions, not on my wishes for them.”

The term “karma” can be rather loaded, because it is used in two very different contexts. The first one is as part of a complicated belief system, which actually precedes Buddhism: as I learned during my work on Yesterday’s Monsters, The Tibetan Book of the Dead contains a very intricate cosmology and a theory about the cycle of death and rebirth that has been, to a great extent, lost in translation and in cultural context. And because of that, the second context is the popular reduction to “do good deeds, get enlightened; do bad deeds, get reborn.” This popular interpretation rankles many people, and understandably so, because many of us understand it to mean that everything bad that happens to someone is that person’s choice. And those of us in the social sciences know that’s not the case: there are a lot of environmental factors that build into the fate. Example: audit studies. Two people apply for the same job and send the same CV. Comparable education, comparable skills. But the one called Brad gets the job and the one called Jamal doesn’t. So how is Jamal an “owner” of his own karma?” If viral testing is available only to wealthy celebrities, is it some sort of divine reward for being good?

So when I say “accepting” this reality I don’t mean shut down your social critique or delude yourself that this is okay. This is where the difference between “is” and “ought” is critical. You can believe that some social or political or economic situation should be better, but it will be very hard for you to make it better if you get caught up in not accepting that it is, in fact, not better now. Come to terms with what is actually going on, and with the fact that many factors come together to create these inequalities, or miscarriages of justice. Not only does it help you shift over faster, but it also shrinks your own complicity in whatever is going on to its true size.

At Al-Anon, a sister organization of AA catering to relatives and friends of people with alcoholism, the slogan is The Three C’s. We didn’t cause it – it is not our fault that the other person drinks, it is their private battle, We can’t control it – we have no power over the other person’s desire to drink, We can’t cure it – it is an illness that cannot be cured through any known medical remedies. This can be very hard for family members to accept, because sometimes a relative who has a drinking problem will accuse us of driving them to drink. And there are of course a lot of conditions and causes that come together in creating a drinking problem, some that are the person’s choice and some that are not. But accepting this, and being able to sit with the suffering of the problem without selling ourselves a story about it, is a key step.

So the idea is not for you not to care. You care deeply and open your heart. And you accept that things involve suffering. And you sit with the suffering, and your willingness to sit with it without leaping to “fix” it gives you the pause that you need to respond skillfully to the task ahead.

Let me give you some examples. One of the aspects of my job is that every day I learn about something that is going on in the world that is absolutely horrible. In 2013—and this is after many years of work!—I sat with a California Senator and he said, “we have to do something about juveniles in solitary.” And my mind began to reel: Juveniles in solitary? And immediately the mind is thrown in a thousand different directions. I get letters from prison every week. People sharing things that are really hard to believe are happening. And having this equanimity practice, developing the capacity to accept that yes, this is a thing that happens in the world, and just sit with it—gives you the pause you need to come up with a plan.

When my colleagues started hearing about COVID-19 in prisons and jails, and knowing what we know about the conditions in prison, the really flawed healthcare. So these places are a real Petri dish for contagion, and the suffering is immense. And a group of friends of mine put together a spreadsheet, and they are collecting information from all the prisons and the juvenile facility and the immigration detention centers about how many people are infected, and what the visitation policies are like, and what quarantine is like. Now each and every one of these stories is a microcosm of suffering magnified, and you can just stare at this and think, “this is unbearable.” But taking the pause to look at this—and yes, we are all collectively responsible for how many people are in prison, but each of us personally is not responsible for the entire crisis. That would be an oversized perspective of the self, and there’s even a little bit of megalomania that can sneak in there. But instead, this pause gives us the chance to make a group effort to propose regulations, to reach out to administrations—each in their own locality, each according to their skills and abilities, and make a difference from a place of skilled response.

Perhaps it would be helpful to end with an anecdote that Frank Ostaseski tells in his book The Five Invitations:

Once during a talk in Germany, Bernie Glassman Roshi referenced Avalokiteśvara, the bodhisattva of compassion. The deity is pictured with a thousand arms. In each hand, there is an ear to hear the cries of the world. A thousand arms are there to respond. Bernie was suggesting that compassion is a natural and appropriate response to suffering. A man stood up and said, “This is all well and good, but I don’t have a thousand arms. I have only two arms. What am I supposed to do to alleviate all that suffering?” Bernie paused, then very beautifully said, “You’re wrong.” The man insisted, “No, I am quite sure I have only these two arms.” Bernie asked everyone in the room to raise both their hands up in the air. There were over five hundred people in attendance. “Look,” he said. “A thousand arms.”

Glassman provided the best example of the important mix between compassion and equanimity, which you can also find in the words of Rabbi Tarfon in the Mishna: “It is not upon you to finish the work, but neither are you free to desist from it.”

Go forth and build the world; add the one block that is within your power and skills. 

Triggers and Vulnerabilities: Why Prisons Are Uniquely Vulnerable to COVID-19 and What To Do About It

covid-19 virus illustration
When I reviewed the causes and effects of the 2008 Financial Crisis for Cheap on Crime, I relied partly on a series of lectures given by Ben Bernanke, Director of the Federal Reserve. As he explained it, the Great Recession was a case of “triggers and vulnerabilities:”

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).

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.

Bernanke’s distinction between triggers and vulnerabilities is useful to the current crisis as well. Today we learned that a man behind bars in Chino is the first acknowledged COVID-19 casualty in CA prisons, and that 59 of his fellow prisoners have tested positive. As of today, we’ve also seen the first positive test in the San Francisco jail system. It’s all going to mushroom from here.
Several of my colleagues (see especially here and here) 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?
Think of COVID-19 as the trigger, and think of the disappointing–even shocking–reluctance of federal courts to do the right thing as another trigger. These triggers operate against a background of serious vulnerabilities, some of which preceded the decision in Brown v. Plata and some of which emerged from it.
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. Despite ridiculous expenses, every six days, a CA inmate would die from a completely preventable, iatrogenic disease. The cases that spearheaded Plata, including the story of Plata himself, were emblematic of this (see Jonathan Simon’s retelling of these stories here.)
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.
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 Plata. 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.
So, now we face this trigger–COVID-19–with the following vulnerabilities:
  1. We still have a bloated system, because the Court used the wrong standard to create minimal space between people for their immediate welfare.
  2. We’re now dealing with lots of small systems that answer to lots of different masters and have different priorities and ideologies.
  3. 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.
  4. We have gotten used to doing a “health vs. public safety” equation that doesn’t make sense and biases us against people who committed violent crimes at the wrong time and for the wrong reasons. 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… introducing private prisons into the mix.
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.
And if you wonder whether this can be contained in prisons, well, it can’t. Guards don’t live in prison, obviously; prison staff has already been diagnosed positive in multiple prisons. 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.

What should we do about it? Follow the excellent roadmap that Margo Schlanger and Sonja Starr charted here, 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 implores in this piece and use your executive power to save lives.

Cause of Death

Source here.

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 CDC reports for causes of death in 2017 based on vital statistics, you’ll see homicide ranked anywhere between #106-108 (interestingly, “legal intervention” is ranked 109.)

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.

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.

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 explained yesterday, are old and sick and also happen to have committed violent crime decades ago.

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.

If I put the state’s resistance to do the right thing here together with the mismanagement of homeless populations, 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.

In Tricycle Magazine, Chenxing Han writes so beautifully:

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. 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.   

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.

Yes, We *Have* to Release People Originally Convicted of Violent Crime: The Last Hearing of Susan Atkins

Manson follower Susan Atkins loses 13th attempt at freedom -- and ...
Susan Atkins wheeled into her last parole hearing in 2009, accompanied by her husband,
James Whitehouse. Photo credit: Ben Margot for the Associated Press.

Latest news on prisoner release: A couple of days ago, the three-judge Plata panel denied relief for procedural reasons (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.

In the aftermath of putting up my petition 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 not necessarily an indication of their violent tendencies at present, nor does it predict their recidivism.

In Cheap on Crime and elsewhere 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 this excellent Prison Policy report explains–is that these kind of reforms ignore the majority of people in prison, who happen to be doing time for violent crime.

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.

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 therefore far less of a public risk of reoffending than a younger person who’s been inside for a few months for some nonviolent offense.

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?

Is it really because of a mission to protect the public? Because old, sick people are not a safety risk to the public.

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”?

The correctional system’s ignorance of old age and sickness is a topic I know something about. In Chapter 6 of my book Yesterday’s Monsters 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.

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:

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.

The Parole Board refused to release Atkins, arguing that “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.

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?

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?

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.

Get in touch with our common humanity. Write to the Governor. Sign my petition. Do something.

Gov. Newsom, Please Release More Prisoners to Prevent CDCR from Becoming a Mass Grave

Dear Gov. Newsom,

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.

I appreciated learning about your recent commutations, as well as about the plans you have put in place to release 3,500 prisoners from CDCR custody. It is a good start, but, unfortunately, it will likely be merely a drop in the bucket.

Less than a decade ago, the Supreme Court found healthcare conditions at CDCR so appalling 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.

And that’s without a pandemic going on.

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.

The Public Policy Institute of California, 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.

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?

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.

The scale of releases we should contemplate is in the tens of thousands, not in the thousands. If you do not act now, within a few short weeks, the CDCR will become a mass grave.

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 they are your constituents and you must consider their welfare.

Please, act now, before thousands of lives are lost.

Readers, please join this open letter by signing my petition.