#LSA2020: ADVOCATE

What a treat we all had this evening at the Law & Society Association Annual Meeting! We got to view the excellent Israeli documentary Advocate about attorney Leah Tsemel who represents Palestinian defendants in Israeli courts. Tsemel is revered in some circles and reviled in others for her iconcolasm, bravery, and unwavering commitment to the Palestinian struggle.

The documentary showcases one of Tsemel’s most difficult cases: the defendant, Ahmad, 13 years old, ran around with his cousin with knives. They stabbed an Israeli child, also 13 years old. The cousin (15 years old) was killed by the Israeli police/military. Throughout a horrific, brutal investigation, after sustaining serious beatings and a cracked skull, Ahmad argued that he had no intent to kill, only to frighten, and did not want to attack children. Tsemel faces a tough dilemma: because of his juvenile status, if Ahmad confesses, he won’t be incarcerated but rather sent to six years at an institution. if he goes to trial, he might face imprisonment. She is adamant that she will support his right to continue to tell his truth.

The film also tells the story of Tsemel’s life, from her experience of the 1967 occupation of Jerusalem as a law student, through her activism in socialist anti-Zionist movement Matzpen (“compass”) in the 1970s, her husband’s involvement in radical activities, and her adult children’s thoughtful, complex reflections on their family life in the shadow of their mother’s convictions and unusual career. Tsemel emerges as an unusually brave and committed person.

I was very glad to have the opportunity to see the film, and surprised at the points at which Tsemel’s life choices illuminated my own. I served for five years as a public defender at the Israeli Military Defense Counsel’s main office, where I occasionally represented people who, on the surface, are on the opposite end: Israeli soldiers who looted Palestinian homes and abused Palestinian detainees. I vividly remember an evening at which four of us, who strongly identified as left-wingers, sat at a pub in Tel Aviv and talked about our moral convictions about the occupation. Two of us said they would refuse to represent soldiers in these cases; one of them, still someone I like and admire a lot, explicitly said so to our commander and ended up getting disciplined but insisted on taking on other cases as a trade-off.

I admitted to my friends that I saw no ethical problem representing these folks (older than Ahmad, but not by much.) I sometimes worry that expressing this position will be incomprehensible, or even reprehensible, to friends who see the conflict in black and white. It was precisely because of my conviction that the occupation was vile and debased everything and everyone that touched it that I saw it as a duty to represent these soldiers. To me, they were placed by their government and their commanders in morally impossible situations akin to the student participants of the Stanford Prison Experiment. Encouraged by the overwhelming racism and intractable duality created by the conflict, and marinating in a military culture that ignored (at best) or condoned (at worst) their wrongdoing, they were victims of the horrors of the occupation, like their Palestinian counterparts (albeit, of course, not to the same degree.) When I interviewed Israeli conscientious objectors, most of them former combat soldiers, about their experiences, it was evident how tortured and scarred they were by the memories of engaging in things they now considered atrocities; this is one of the reasons I have so much respect for Breaking the Silence (“shovrim shtika”), an organization of former combatants revealing their experiences. If there is ever to be peace, everyone should have the opportunity to exorcise the demons of this horrible, violent conflict, so that real peacemaking work can be done. I see the way the occupation has damaged the occupiers every day in Israeli society–the machismo, the lack of empathy, the culture of not listening, the verbal and physical violence. Of course the other side suffers orders of magnitude more, and both sides are locked in positions in which they ascribe victimhood to themselves and crimes to the other party. These identitarian labels and the truthiness they come with are very hard to shake.

Growing up as a largely nonpolitical nerd, I was fascinated by organizations like Matzpen and by friends who had strong political consciousness, were radicalized since high school, and went to protests and somesuch. I envied, and marveled at, the ability to wake up in the morning with the unwavering feeling that One Is Doing God’s Work and that the adversaries were unquestionably the bad guys. I felt so childish by comparison because my opinions were so unformed. It was much later, in the army, that I found my own political consciousness. There’s nothing like ranks and stupidity and reading Catch-22, which felt like a documentary of my life at the time, to crystallize unfairness, injustice, inequality, and the burning need to help people caught in Kafkaesque situations not of their making. But even then, I simply couldn’t resign to a formula under which one side was the good guys and the other the bad guys. The miasma of the conflict infected everything around it, and the crumbs of ugliness that fell on my professional plate did not always neatly arrange themselves in a way that made moral determinations easy. It didn’t always favor one category of humans over the other, and it made for interesting, reflexive experiences, thinking about what world improving action I could take given what I had in front of me. Much of what I learned in practice, particularly how class differences played a horrible role ruining young people’s later civilian lives, informed and enriched my later scholarly work.

But the sense that the world of good and evil is complicated, and that there is too much suffering around me to take sides and stick with them in perpetuity, seems to have remained as a permanent feature. Today our hearts cry as protesters respond to the horrific killing of George Floyd. Opinions fly back and forth about rioting and property destruction–is it wrong, is it right, who is doing it, what would MLK say about it–and I just find that the heart is big enough to contain and feel, really feel, the suffering of everyone, before being so sure about what I think about every aspect of this situation. Maybe Leah Tsemel would shrug and simply say that the evils of racism justify any means and that it’s not for her to judge the reaction–and would feel comfortable in her unwavering commitment to this ethic, and sleep soundly. Me, I’m not sure of anything, except of the profound sadness I feel–for George Floyd’s family and friends, for his community, for Black people feeling traumatized, for Black lives being devalued, for the rage and grief that prompts people to destroy, for the unloved, cynical emptiness that would lead people to jump on the bandwagon of destruction, for the losses of local businesses, for the people challenged to respond in a human, decent way, and not knowing what to do, for everyone who is angry and sad and afraid and feeling inadequate to mend the sorrows of the world. It is a thicker, more overwhelming sensation, perhaps, of ethical humanity, but I have grown to accept what is in my crying heart–in any human heart–and its miraculous ability to hold the extremes of joys and sorrows. When called upon to rebuild, I trust in my ability to determine, as best I can, how I can reduce suffering in the world. It’s all any of us can do.

#LSA2020: Interacting in the Age of Zoom

This afternoon’s panel, titled Writing as Resistance: The Role of Literature in Law and Society, was delightful and mind opening. Chaired by LSA President Penelope Andrews (New York Law School) and moderated by Kendall Thomas (Columbia), it featured Qudsia Mirza (University of London), Valerie Napoleon (University of Victoria), Ruthann Robson (CUNY) and Patricia Williams (Northeastern.)  

I appreciated the different takes on literature and on literacy: the role literature played in pedagogy, mobilizing to seek literacy–all fascinating. But what most spoke to me was Patricia Williams’ observation about the craziness and granularity of interacting with each other via Zoom. “Positivists are held captive in a metaphor,” she said, “and here we are in a world dreamed by a group of positivists.” She also managed to capture the absurdity we all feel but seldom express so well, that speaking to each other on Zoom while viewing our own faces is the ultimate manifestation of W.E.B. DuBois’ concept of double consciousness: “watching myself as I watch others watching me.”

#LSA2020: Risky Research in Dangerous Places

Today we opened the Law and Society Association’s Annual Meeting, an annual highlight of my professional life. Had we not been sheltering in place, I’d be in Denver, learning from all my friends; fortunately, we haven’t had to cancel, and instead we are holding the entire meeting virtually. I’m very proud that my collaborative research network, CRN27–Punishment and Society, has a robust presence at the meeting–21 panels strong! I’ll be blogging about some of the panels here.

The opening panel this morning brought together scholars who conduct risky research in dangerous places. I was very impressed with all my colleagues on the panel–many of them new(er) to the field–who are doing amazing work under incredibly challenging circumstances. Their bravery, wholehearted commitment to the work, reflexivity about their role, and concern for their subjects, shone through all the talks. Here are a few takeaways from the panels:

Egor Lazarev (University of Toronto) opened by speaking about his research on the rule of law in Chechnya. I was struck by his straightforward assessment that things on the ground do not look as uniformly dangerous as they seem on TV, as well as by the way he used regular phone calls with his mother to keep her abreast of his research, fully aware of the fact that the conversation was probably eavesdropped on.

Viviane Weitzner (McGill University), who studies the movement against mining among indigenous communities in Colombia, inspired me by talking about how elders in the communities she studied offered her spiritual protection through protective rituals. I was especially moved by the fact that she included that, in a genuine way, in her account of how she kept safe.

Filiz Kahraman (University of Toronto) spoke of the challenges and dangers that she and her Turkish colleagues faced as a consequence of signing the Academics for Peace and Justice petition. She showed that the punitive consequences against them were arbitrary and stifling, and reminded all of us, when conducting international research, of the importance of partnering with local academics (and giving them credit.)

Hind Ahmed-Zaki (University of Connecticut), who has studied violence against women in Tunisia, spoke about the importance of being reflexive about our dual role as researchers and, often, as supporters and advocates for the movements we study. Among other things, her care and compassion for her subjects meant that she refrained from interviewing some people out of concerns about retraumatizing them.

Walid Salem (University of Washington) spoke of his arrest in Egypt and offered a lot of food for thought about how IRBs can protect scholars facing frightening consequences. He urged universities to be more thoughtful in how they frame permissions and protections for researchers, reminding us that, without institutional protection, a scholar could be stranded (or worse) in a hostile setting.

Kim Lane Scheppele (Princeton University) spoke of her open critique of the Orban regime in Hungary and the death threats she has received as a consequence. She pointed out that most countries do not keep a tally of death threats, and about needing to take them seriously; they are often treated as covered by freedom of speech even though they are not.

Beyond being incredibly grateful for the groundbreaking research these incredible colleagues conduct under such precarious conditions, I am grateful for the online platform. Who knows how many of our colleagues who face such adversities would be able to fly out and attend a physical conference?

To Be Believed: Christian Cooper and the Scottsboro Boys

A few years ago we had a minor scandal at Hastings. A first-year female student who lived in our dorm reported an intruder to campus police. She came to her apartment, she said, and found an African American man, well dressed (“could pass for a student” was the description we learned through the Jeanne Clery Act disclosure campus police sent us via email) rummaging through her underwear drawer. For a few weeks, our African American students were under surveillance. Then, we got a cryptic message from the police, saying that the investigation had ended and no offense was committed.

I put the whole thing out of my mind until a year or so later, when I taught race and crime and we watched this excellent clip of Gregory Peck as Atticus Finch cross-examining Collin Wilcox as Mayella Ewell:

My students said, “holy crap, that’s exactly what happened with this girl.”

“Wait, WHAT?” I said. “Explain.”

So they did. It turned out the story was as follows: the student who had made the complaint wanted to move in with her boyfriend. In an effort to show him how dangerous the Tenderloin was, she manufactured the story of the intruder out of thin air. For weeks, the investigation went on, understandably enraging our Black Student Association, and then she finally broke down and admitted she had fabricated the whole thing.

The literature on racial hoaxes is pretty consistent: people make up stories for their intended audience, based on their assumptions of what would be believed. When white people engage in a racial hoax, it is aimed for a white audience, and usually evokes some version of the hypermasculinized, predatory black man. When black people engage in a racial hoax (yes, this happens, too), it is aimed for an audience of people of color, and revolves around hate crime (admittedly, there are so many true reports of hate crimes that it is hard to assess the rate of the false ones–which is exactly what makes hate crimes believable to people on the receiving end of so many real ones).

I’m not particularly interested in hounding Amy Cooper or in the waves of (understandable but counterproductive) vitriol, threats, and schadenfreude that are coming her way. I’m more interested in the quick, reactive thought process that landed her in threatening-black-man territory after Christian Cooper made his reasonable, polite request (and wisely recorded the aftermath.) The reason white women make accusations against black men is that they know they have the social capital to be believed.

Nothing is new under the sun. Michael Klarman wrote a classic article about the nine black men who were falsely accused of raping two white women on a freight train in Northern Alabama. He comments:

In such cases, guilt or innocence usually mattered little. As one white southerner candidly remarked in 1933, ―If a white woman is prepared to swear that a Negro either raped or attempted to rape her, we see to it that the Negro is executed. Prevailing racial norms did not permit white jurors to believe a black man‘s word over that of a white woman; prevailing gender norms did not allow defense counsel to closely interrogate a white woman about allegations involving sex. As one contemporary southern newspaper observed, the honor of a white woman was more important than the life of a black man.And because most southern white men believed that black males secretly lusted after ―their women, they generally found such rape allegations credible.

Michael Klarman, Scottsboro. Marquette Law Review, 2009.

Nothing is new under the sun. I am nauseous with anger this week over what Christian Cooper has endured, and over how precarious is situation was–how quickly this allegation could have turned into the stomach-turning horrific tragedy of George Floyd’s killing (the heart cries with so much grief this week; how can any of us breathe when some of us are not allowed to?) But this is exactly the crux of the issue: who is and is not believed is a reflection of deeply engrained, sinister, ugly cultural myths, and all the criminal justice reforms in the world has not yet succeeded in sweeping these away.

Mango Chutney

Visiting my great-aunt Carmella always felt a bit like diving into an E.M. Forster or a Rudyard Kipling book. She and her late husband, Uncle Eli, traveled extensively abroad on account of his business, and each time they returned to Israel there was lots of stuff reminiscent of literary colonialism all over the place: African fabrics, wooden sculptures, ivory miniatures, soft pillows and throws, that sort of thing. Even the few objets d’art evoking similar connotations that my grandparents had (a spectacular person-sized Thai lamp comes to mind!) turned out to be gifts from Carmella. Carmella’s gorgeous condo in Jaffa was lavishly furnished with items from all over the world. Long before I learned about the ills and suffering wrought by British colonialism (to which I was a ridiculously late newcomer, given that I *lived* in former colonies, one of them British, all my life!) I tended to romanticize this exotic stuff, and so enjoyed the beauty of the Indian handcrafted goods and the chinoiserie.

Part and parcel of this exotic lavishness was the snack tray, which always featured terrific delicacies I’d never seen before: imported cheeses, savory tinned things with foreign packaging, fancy crackers, you name it. Nary a commonplace chocolate in sight. Once we showed up and were treated to a tray of cheeses and a magical jam-like substance. Carmella, who always spoke to you assuming you knew what she was talking about, saw my face light up after taking a bite, and nonchalantly said, “oh, you like the chutney?”

So *that’s* what this is, I thought. Now, whenever I read Forster or Kipling and someone mentioned chutney, I knew what they were on about. I far preferred it to jam, because it was sweet and sour and savory and spicy all at once. Later in life I read up a bit on the history of chutney and learned that many of the fruit preparations are not authentic Indian foods, but rather Indian-inspired European concoctions. Anglo-Indians at the time of the British Raj recreated Indian chutneys using English orchard fruits, such as sour cooking apples and rhubarb, and added raisins or other dried fruit.

Even though chutney is very easy to make, it would not have occurred to me to do so if we had not untimely polished off the jar of quince chutney that my friend Nancy makes over at Vermont Quince. If you can order it, you’re in for a treat, and if not, read on, make mango chutney, and be your own hero.

  • 2 ripe and juicy mangoes, chopped into tiny cubes
  • 1/3 red onion, very finely minced
  • 4-5 garlic cloves, very finely minced
  • 1/3 cup Thompson raisins
  • 1/4 cup agave syrup
  • 4 tbsp apple cider vinegar
  • 1 splash balsamic vinegar
  • 3-4 square inches ginger, very finely minced
  • pinch of salt
  • pinch of cayenne

Mix all this in a small saucepan. Cook on medium-to-low heat for 30 minutes. Done.

I like eating this with cashew cheese on bread, but it goes with lots of things: rice, curries, mashed potatoes, crackers, chips. It keeps well in the fridge if stored in a sealed jar–the agave and vinegar help with preservation, which might be why British soldiers and civil servants carried it around and liked it so much.

Next time I make it, I’ll add toasted spices like cumin seeds, coriander, and nigella.

On Credibility and Goodness

The last few days have seen numerous stories discrediting Tara Reade, the woman who accused Joe Biden of rape, to the point that convictions based on her testimony could be overturned.

After reading these stories, I sat with my emotions, realizing I predominantly felt relief. Now I could vote for Biden, which I was going to do anyway, *and* not feel like a person tainted with badness and dishonesty. I am not the hated, unprincipled centrist! I am not a traitor to the feminist cause! I can be utilitarian and good at the same time! Looking around progressive social media, I could read the same sentiment between the lines of all commentators rushing to malign Reade. We are vindicated as Good People (TM) and can go ahead and do the right thing with our virtue unsullied.

This sense of relief told me something important–something that I had been talking around for years, even as I wrote about the Kavanaugh confirmation hearings and about progressive punitivism in general. Regular readers know that the progressive tendency to fiercely advocate for due process and abolitionism and all that jazz, only as long as it’s not someone we (the collective “we”) hate, has irritated me for years. In my article about progressive punitivism I ascribed this tendency to the overall prevalence of punitivism as the go-to tool to approach any social malaise. Americans of all stripes and political persuasions, I said, have been so steeped in the idea that the only tool they have is the criminal justice hammer that now everything looks like a nail to them.

I’m beginning to think I’ve let progressives off the hook too easily. As I recently said, I’m realizing that, even in the most supposedly benign, nonpunitive, restorative, transformative, call-it-whatever-fancy-name-you-like process, the bottom line–even when wrapped in do-gooder jargon, everything boils down to the underlying question: What happened? Is the victim telling the truth? Is the offender telling the truth? Who should we believe?

My colleagues at the Cultural Cognition Project have conducted a robust series of experiments, using factorial vignette surveys, which have proven again and again that people’s world views, particularly whether they are authoritarian or communitarian (read–roughly equivalent to the stereotypical American right-vs.-left-winger), significantly shape the way they not only form opinions, but perceive facts. Every year I rely on their excellent experiment involving Scott v. Harris, in which their conservative and progressive respondents differed on their perception of the same car chase video–the former believing that the driver risked the public and the police to the point that the police was right to run him off the road, the latter believing that the police was at least partially, if not wholly, to blame for the outcome. This was not a high school debate; the respondents all viewed, with their own eyes, a grainy but informative six-minute black-and-white video of the chase. But what they viewed and what they saw were two different things, with the latter strongly shaped by their life experiences and values.

No one is immune to these distortions; if biases and heuristics didn’t cloud our rationality, Daniel Kahneman and Amos Tversky’s work would not have won the Nobel prize. But from the people who present themselves as the party of truth, the antidote to the Trumpian web of lies and fantasies, one expects better.

The issue of false allegations and #believewomen is a classic example. There is factual disagreement, which maps neatly unto political dividing lines, on what percentage of complaints about sexual harassment/assault/abuse are false. The actual percentage is obviously unknown, so our life experiences and values fill it in. Thing is, the progressive side of the map has wrapped its beliefs about this in an issue of virtue. The groupthink is so powerful not just because this is what we believe, but also because anyone who believes otherwise is a bad person. Progressive ideology props itself up by the self righteousness of its devotees. To be deemed a bad person, a person without virtue, is destructive in this milieu. To minimize the very real and understandable distress that people feel at being discredited morally, publicly, via social media as some sort of expression of liberal-centrist privilege or “white tears” is to miss out completely on how oppressive this thought control machine has become, and how even questioning the bon ton can discredit and destroy people’s careers, relationships, and reputations.

There are many harms stemming from this equivalence between factual perceptions and moral virtue. As some have pointed out apropos the Tara Reade business, every false complaint harms the credibility of true complainants. But this story has also brought into crystalline focus the discomfort people feel when they have to backtrack from one of these #believewomen situations that turn out to be unmerited. We already know the truth doesn’t matter anymore. What matters is that now there is plenty out there, circulating around social media and people’s minds, about Joe Biden and rape. What matters is that people with valuable information who might question or discredit unproven allegations have hesitated–and will continue to hesitate–to come forward out of fear of appearing to be bad people, with all the professional and personal implications of lack of virtue that are all too real for progressives. What matters is that our feet are glued into the sticky cesspool of virtue, like flies caught in molasses, and it keeps us from coming to every situation we encounter, particularly those with very high stakes, with a beginner’s mind, ask ourselves, “is it true?” and answer, “I don’t know.”

How to Vent During a Pandemic

A few years ago, Susan Silk and Barry Goldman penned a wonderful article in the L.A. Times about how to cope with situations involving suffering and grief. They advised to draw a set of concentric circle, with the person directly experiencing the distress at the center, the people closest to them around them, situating people on a continuum to closeness to the situation:

Here are the rules. The person in the center ring can say anything she wants to anyone, anywhere. She can kvetch and complain and whine and moan and curse the heavens and say, “Life is unfair” and “Why me?” That’s the one payoff for being in the center ring.

Everyone else can say those things too, but only to people in larger rings.

When you are talking to a person in a ring smaller than yours, someone closer to the center of the crisis, the goal is to help. Listening is often more helpful than talking. But if you’re going to open your mouth, ask yourself if what you are about to say is likely to provide comfort and support. If it isn’t, don’t say it. Don’t, for example, give advice. People who are suffering from trauma don’t need advice. They need comfort and support. So say, “I’m sorry” or “This must really be hard for you” or “Can I bring you a pot roast?” Don’t say, “You should hear what happened to me” or “Here’s what I would do if I were you.” And don’t say, “This is really bringing me down.”

If you want to scream or cry or complain, if you want to tell someone how shocked you are or how icky you feel, or whine about how it reminds you of all the terrible things that have happened to you lately, that’s fine. It’s a perfectly normal response. Just do it to someone in a bigger ring.

Comfort IN, dump OUT.

Susan Silk and Barry Goldman, How Not to Say the Wrong Thing, Los Angeles Times, April 7, 2013

I mentioned ring theory in my mindfulness meditation course Sheltering in Compassion when we talked about reactivity to pain and fear. Later, my friend Sarah made a really important observation: because on social media one has a large and diverse audience, the rings get “smooshed together.” Some of the people you speak to are closer to grief than you are, and some are farther away.

The pandemic really drives home this “ring smooshing” situation. It is tempting to offer the comparing mind free rein to scan around and assess who got dealt better or worse hands than ourselves. But the comparisons are always incomplete, because while you might have the external parameters of another person’s situation (and sometimes not even that), you do not have their internal experience. Some people might be busier than others, or caring for more people, while others may feel more isolated and lonely. In short: When we complain online, we don’t know whether we are being read by people in a closer or a farther away ring. Being mindful of the impact of our complaints of others, and noticing when we hoard emotional energy, is valuable.

But complaining can have a detrimental effect on our own wellbeing as well as that of others. Recently, I came across Cianna Stewart’s No Complaining project, and read her book (more of a workbook) with great interest. As she points out, hearing oneself complain can generate despair, aggravate depression and anxiety, and, importantly, give the person a sense that they are “stuck in the complaint”, thus divesting us from the power to figure out solutions to our problems. Stewart, who worked in HIV prevention during the AIDS epidemic, knows a lot about the importance of changing the script of a negative, self-defeating narrative.

So, should we clam up and never complain? Should we say that everything is hunky dory at all times? Suppressing or denying all negative experiences and feelings, sometimes extremely manifested as “toxic positivity“, does not make the negative experiences or feelings go away, and ignores an important cue that we are experiencing something meaningful. Any emotion, positive or negative, is our mind’s way of calling attention to something important about the human experience.

Nor does intellectualizing the feeling or telling ourselves stories about it help. Some of the behaviors we frame as “healthy venting” aren’t; they foment the sensation and cause artificial upheaval, propping ourselves up through a sense of righteousness that masks any insights we could draw from a quiet reflection on the situation. So, both expressing and repressing unpleasant feelings can take the shape of resistance to what they have to teach us.

A good way through the muddle is to heed the Buddha’s instructions on right speech (samma vaca), which is part of the Eightfold Path, to abstain from “lying, from divisive speech, from abusive speech, and from idle chatter.” I found lots of fantastic resources and examples of right speech, ranging from Marshall Rosenberg’s well-known classic Nonviolent Communication to Beth Roth’s terrific article about improving communication with her teenage son. In the context of complaining, the elements of right speech can help us discern whether our complaints are making the world (including our own minds and spirits) better:

Is It True? Unexamined emotional upheaval can lead us to be stuck in a rigid view of a situation in which we are 100% right and the other person is 100% wrong. This is seldom true. When I revisit painful conflicts from many years ago, I invariably find that, with the perspective of time, I can open myself to a broader view of the situation. This is not easy to do when I’m “hooked” and in the throes of the strong emotion. All the more reason to sit quietly with the emotion, befriend it, try to find out what it needs or what it wants to teach me, and only then respond. I’ve mentioned here before Byron Katie’s The Work; while I have reservations about how she runs the workshops, I think using this worksheet to process a situation can be helpful as a mind-opening tool.

Is It Gossip? I once visited a Waldorf school , where the principal told me of the school’s efforts to foster a healthy communication culture not only among the students, but among the administrators and teachers. One of their most important communication rules was “go to the source, or let it go.” This prevented gossip from leading to misunderstandings and festering in the community without solution. It also occurs to me, along the lines of Cianna Stewart’s work, that going to the source empowers the person with the grievance to shift the situation in a constructive way, whereas witnessing oneself gossip without solution doesn’t help. I’m going to add to this that “callout culture”, which is sometime hailed as “speaking truth to power,” is not exactly a “go to the source” solution. True, the source will be exposed to what is going on, but so will many others: callouts are a social theater and have an audience. Precisely because of the performative aspect, the supposed benefits of “starting a conversation” or “bringing about a reckoning” usually fail to manifest (I’ve written about this here and here and talked about it here.) Whatever can be resolved with a direct conversation, should, and going behind someone’s back or broadcasting broadly should be done only when there are important considerations that rule out going to the source.

Is It Abusive? Relatedly, complaints should be framed in a constructive way. Lashing out at people, especially in public or behind their backs, or engaging in cynicism and ridicule, is counterproductive. Striving to find a way to say even difficult things with kindness not only encourages a broader view of the situation, but also goes a longer way toward ensuring that our speech has its desired effect.

Is It Necessary? Online discourse has a democratizing feature–the virtual floor is open to anyone who has an opinion and wants to share it. Consequently, we are bombarded with hot takes and opinions from all directions; even when we have good crap detection skills, it is still time consuming and burdensome to deal with the incessant flow of opinions. This pandemic time is teaching me great lessons about the need to be more discriminating in my online communications, if only not to overburden people who are already drowning in a sea of things to read, to process, to engage in. I’ve started asking myself whether what I have to say really adds anything to what is already out there. A related important inquiry has to do with the social footprint of the speaker. My good fortune in life and what I do for a living mean that I often get to hold the proverbial talking stick, and have become mindful of the importance of passing it to voices that receive less than their due attention, or speaking for them if their own voices are muted by tragedy or lack of social advantage (speaking for incarcerated people during this pandemic, for example, is crucially important, because it is hard for the public to get the information firsthand, but whenever possible we should hear from people released from prison and from families of prisoners.)

Underscoring these four guidelines is the fundamental question: Am I expressing myself to deflect, ignore, or rid myself of feelings that have important lessons to teach me? Or am I engaging with my feelings, aware of them, accepting their valuable teachings, and then skillfully considering where my words might have the most beneficial effect? It is not necessarily true that “if you don’t have something positive to say, it’s best to say nothing at all”; sometimes negative things need to be said, pain needs to be voiced and honored, for things to change. Let’s put our precious and valuable words to their best effect.

COVID-19 Violations in Streets and in Suites: On the Inequitable Enforcement of Noncompliance

The New York Post reports good news (in itself a newsworthy event):

The NYPD will no longer make arrests or hand out tickets if people flout the mask-covering rules in the Big Apple, the mayor said Friday.

“Absent a serious danger to the public, NYPD will not take enforcement actions for failing to wear face coverings,” Mayor Bill de Blasio said during his daily press conference.

The shift in enforcement comes two days after another controversial video emerged of a police interaction with a woman and her young child in the subway over a mask.

Hizzoner said he wanted to reset the city’s approach on enforcement.

“The reset will be this: We start with the fundamental notion the NYPD is here to protect lives, to save lives, and where we see the greatest danger to lives in terms of the coronavirus and the areas where we can enforce is around gatherings, particularly large gatherings, so that’s where we’re going to focus,” the mayor said.

NY Post, May 15, 2020

Amidst the angry exhortations to “stay the f*ck home” and the like, fervent enforcers and shamers may have missed the news: NYPD has made dozens of arrests, most of them of people of color, and some of them violent. The focus on shaming people for behavior in the outdoors continues: here in San Francisco, people’s aggressiveness toward perceived violations has percolated to a point that one of my favorite journalists, Heather Knight, had to shame the shamers for targeting the (largely nonwhite) children of first responders. Only today at the skate park (our updated stay-at-home order allows us now to be there) someone thought it proper to video film the skating kids, including my 2.5-year-old son; needless to say most of the kids were not white. Of course, it’s not just police that is doing this racialized enforcement, as this ugly incident and these ugly incidents show.

We already know about the racial disparities in COVID infections and deaths, and today’s news highlights the counterpart: people at the bottom of the social ladder are also on the receiving end of the brunt of social distancing enforcement. A good way to make sense of this is to go back to the basics of theoretical criminology.

Conflict criminology, a strain of theoretical criminology originating in the 1960s and 1970s, highlighted the way in which the definition of crimes and enforcement of laws affirmed and exacerbated the existing unequal social order.

Thomas Bernard explains its premises:

  1. One’s “web of life” or the conditions of one’s life affect one’s values and interests.
  2.  Complex societies are composed of groups with widely different life conditions.
  3.  Therefore, complex societies are composed of groups with disparate and conflicting sets of values and interests.
  4.  The behavior of individuals is generally consistent with their values and interests.
  5.  Because values and interests tend to remain stable over time, groups tend to develop relatively stable behavior patterns that differ in varying degrees from the behavior patterns of other groups.
  6.  The enactment of laws is the result of a conflict and compromise process in which different groups attempt to promote their own values and interests.
  7.  Individual laws usually represent a combination of the values and interests of many groups, rather than the specific values and interests of any one particular group. Nevertheless, the higher a group’s political and economic position, the more the law in general tends to represent the values and interests of that group.
  8. Therefore, in general, the higher a group’s political and economic position, the less likely it is that the behavior patterns characteristic of the group (behaviors consistent with their values and interests) will violate the law, and vice versa.
  9. In general, the higher the political and economic position of an individual, the more difficult it is for official law enforcement agencies to process him when his behavior violates the law. This may be because the types of violations are more subtle and complex, or because the individual has greater resources to conceal the violation, to legally defend himself against official action, or to exert influence extralegally on the law enforcement process.
  10. As bureaucrats, law enforcement agencies will generally process easier rather than more difficult cases.
  11. Therefore, in general, law enforcement agencies will process individuals from lower rather than higher political and economic groups.
  12. Because of the processes of law enactment and enforcement described above, the official crime rates of groups will tend to be inversely proportional to their political and economic position, independent of any other factors (such as social or biological ones) that might also influence the distribution of crime rates.

Thomas Bernard, Distinction between Conflict and Radical Criminology

Radical criminology goes even further:

  1.  No consensus exists in society on the basic values and interests of individuals, and on the contrary, society is characterized by conflict on these issues.
  2. Society in general is divided into classes whose members have similar values and interests, the principal classes being those who own the means of production (the ruling class) and those who are employed in production (the working class). The principal conflict in society is between the ruling class and the working class.
  3. Crimes are defined as socially harmful actions that violate basic human rights. That includes both “street” crimes in which the lower class preys on itself and on others, and ruling class crimes in which the lower class is victimized through unemployment, pollution, and exploitation. Because the law is a tool of the ruling class in its conflict with the working class, the socially harmful actions of the ruling class are generally not defined as crimes by the official criminal justice system.
  4.  Conventional criminologists accept the definitions of crime provided by the law, and so assume a technocratic role in the social control of the working class. They do this through “correctionalism,” which attempts to reconcile the working class to the structure imposed by the ruling class, and through “reformism,” which attempts to improve the operation of the criminal justice system and increase its effectiveness in controlling the working class.
  5.  Radical criminologists reject the definitions of crime provided by the law and study all socially harmful behaviors that violate basic human rights. They argue that contradictions in the capitalist economic system are the underlying causes of these behaviors.
  6. The crime problem can be solved only by the overthrow of the capitalist economic system and the establishment of a socialist state. Once capitalism is overthrown, the law in its present form will eventually become unnecessary, as the conflicts between classes will have been resolved.
  7. The principal task of radical criminology is to promote the overthrow of the capitalist economic system, and thus radicals must guard against the danger of “cooptation,” that is, having specific points of radical criminology accepted by mainstream criminology and placed in a context that does not promote the overthrow of capitalism.

Bernard, see above

This distinction shows radical criminology as much more engaged with the Marxian social structure, and having more to say about what the crimes really are. Even though the two theoretical strains differ in the extent to which they accept the existing definitions of crime, the classic distinction between “crimes in the streets” and “crimes in the suites” comes in handy. The wealthy and socially powerful wreak harms that quite possibly should be defined as crime (corporate malfeasance, environmental crime), but sometimes escape the definitions altogether, because the law serves the interests of the ruling class or, if it exerts autonomy, overall supports the existing unequal social order. When the wealthy and socially powerful *do* commit crimes that are defined as such, they avoid enforcement either because they commit them in places and manners that escape detection, or because they wiggle their way out of criminal entanglement using social advantage and connections.

Social distancing violations are no different, in this respect, than any other type of crime. The most tragic example of “crimes in suites” in this pandemic that I can think of is the horrific story of the first known COVID-19 casualty in Brazil, Cleonice Gonçalves. Cleonice worked as a domestic worker at a wealthy Rio de Janeiro neighborhood. Her employer, who had just returned from holiday in Italy, was feeling ill and sought testing for coronavirus, but apparently did not inform Gonçalves, who had worked for the family for decades. The employer recovered; Cleonice died.

But this story holds the key to explaining why, through a conflict criminology lens, it is poor people and people of color that are bearing the brunt. First, wealthy people can avoid violating the law altogether. Some of us are riding this out in vacation homes, where they have extensive grounds, pools, and play structures, while some of us live in apartment buildings and projects devoid of natural beauty and space, who have to look for respite in city parks and beaches. Being able to afford grocery and takeout deliveries spares one the need to go outside and, by consequence, the possible formal and informal social control if one happened to forget their mask at home. Those of us with more social advantages have a more reliable internet connection, more access to toys and books for our children, which allows us more flexibility in entertaining our kids and thus less need to go outside.

Second, when wealthier people violate social distancing mandates, they can afford to do so in ways that keep their behavior undetected. Sneaking out to get your hair cut (or worse, having your hair stylist to come to your house), having your house cleaned by a cleaner who travels over to you (and faces risks outside and, worse, at your home), and quietly socializing with others indoors, allows you to engage in behaviors that are much more harmful to public health than outdoor mask-non-wearers.

Third, relatedly, law enforcement focus and priorities play a role in where crime is enforced. This is not news, of course, though the question of whether high enforcement priorities are necessarily racist is more complicated than it seems. But it is rather obvious that privacy concerns and the practicalities of law enforcement target places where people with less social advantage are more likely to be. Even if the police know that so-and-so has a house cleaner, coiffeur, or masseur come in once in a while, there are many practical and ethical disincentives to enforcing inside the home (they should get a warrant, right?).

Fourth, when the people at the lowest rungs of the social order violate the stay-at-home mandates, what they do is more likely to be perceived by all of us, including well-meaning folks, as a problem and a violation. Last week, UC Hastings and other Tenderloin institutions and businesses sued the city of San Francisco for the worsening conditions in the Tenderloin neighborhood. The increasing congregation of unhoused people in tents, in close proximity to each other, without bathrooms or hygienic facilities or reliable healthcare, is risking them first and foremost, but also, of course, others in the neighborhood. And yet the concern is, of course, that when law enforcement intervenes, it will be to “clean” the sidewalks and remove the nuisance-turned-serious-contagion-risk, rather than put together long-term plans to house and treat these folks properly. This is right out of the Anatole France maxim that critical criminologists quote all the time: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”

The irony, of course, is that the “crimes in suites” are much more perilous, from a public health perspective, than the “crimes in streets.” The risk of becoming infected outside is considerably lower than the risk from indoor congregations. The truth is that the ire about the spring break revelers in Florida was misdirected at their daytime beach activities, and should have been directed at the indoor partying later at night. But we focus on enforcement outdoors for the same reason that we look for a lost wallet at night under a street lamp: not because it’s more effective, but because it’s easier.

The tragedy of this is not just the hostile interpersonal environment this creates, but the concern that, if law enforcement intervenes because of some concerned citizen’s complaint, folks who are lacking social advantage to begin with will end up in jails and prisons, where their risk of contagion is so much higher, contributing to the scary incubators of disease that we are fostering in our prisons these days.

I suggest we all think about this the next time we have an urge to scowl at someone on the sidewalk. Your intentions are good, and you want us all to stay healthy, but your ire is misdirected at targets that endanger you less, and who are themselves endangered more by your actions.

The Judean People’s Front vs. the People’s Front of Judea

There’s a wonderful scene in Monty Python’s Life of Brian in which the titular character meets the People’s Front of Judea. Or, at least, that’s what he thinks. It’s best to let the scene speak for itself:

My book in progress about animal rights activists who open rescue animals from factory farms looks at how a social movement seeking to transform the law uses its own criminalization as landmark litigation for animal liberation. You’d think their major challenges would come from outside the organization itself–say, from a society habituated to the exploitation of animals, ridiculous criminal charges, a hefty lobbying machine, and the like. But these pressures seem matched by destructive conflict from within–not so much between different animal rights organizations, though that’s a factor, of course, but between the existing leadership and disillusioned former members turned fierce opponents.

I have a lot of thoughts about the particulars of the conflicts I’m seeing in my case study, but it made me ponder the role that bitter personal acrimonies play in the life of progressive organizations. It’s hard to keep a movement going with allegations flung back and forth. Some folks soldier on; just a few months ago we saw DeRay Mckesson trash Shaun King and King publicly reply. It’s hard to tell how much damage these accusations do to an organization that overall does very laudable work.

The interpersonal conflict aspect doesn’t get enough attention in social movement literature, and I think we should remedy that, because accusations, hatreds, gossip, and splintering cause real harm: it deprives movements of valuable contributions. As Jo Freeman noted in her legendary essay about trashing in second-wave feminism, people who survive this sort of vicious interpersonal stuff tend to “hang around the fringes of the movement” or peel off, often internalizing the effects of the harsh interpersonal burn. Of the women she met after she was trashed, who met up later and vowed to get together more often, she says: “Instead we each slipped back into our own isolation, and dealt with the problem only on a personal level. The result was that most of the women at that meeting dropped out as I had done. Two ended up in the hospital with nervous breakdowns. Although all remained dedicated feminists, none have really contributed their talents to the Movement as they might have. Though we never met again, our numbers grew as the disease of self-destructiveness slowly engulfed the Movement.” That is such a shame, and I suspect that today this is exacerbated because everything is publicly aired on social media, as Jill Filipovic discusses here. Cancel culture can flatten the often complex backgrounds for these acrimonies and cause real havoc in organizing. They also tend to linger in awful ways: I’m reading and appreciating Starhawk’s The Empowerment Manual, which addresses the interpersonal conflict as a big part of what happens in collaborative spaces. Starhawk has decades of experience with cohousing, progressive spiritual organizing, and other collaborative movements, and it’s telling that she prefaces her case studies by saying that “[m]ost will have names and details changed to protect the privacy of all involved – and to keep me from spending my golden years dealing with hurt feelings and bitter attacks from those I might offend.” Which, even as she is optimistic about the possibility of overcoming these difficulties, tells you something about how resentments over this stuff can fester for decades.

It’s important to think about where these conflicts come from, why they happen, and whether they are inevitable. Because so much of our organizing these days is identity driven, many of the internal conflicts within movements and organizations have to do with identities. Here are a few grounds for conflict that I’m noticing in the organizations around me:

Perceived betrayals of the cause. These often have to do with some members or leaders compromising over values that other members perceive as essential to maintain without compromise, such as coalitions with moderates or conservatives, seeking personal comforts when others are making sacrifices, or eschewing a personal habit that some members perceive as essential to the movement.

Identity revelations and authenticity issues. I’ve seen this come up a lot in context of race and sexuality, where even organizations who ostensibly declare that identity is not a barrier for entry become Petri dishes for criticisms about members and spokespeople who are “not black enough” or “not queer enough” to speak for the membership. I’ve also seen versions of this crop up in organizing around sex worker labor rights.

Not giving credit where credit’s due. This becomes especially objectionable when a member takes credit for an idea or a contribution of someone from a disadvantaged group.

#metoo accusations. This deserves a category of its own, because I often see accusations of sexual misbehavior–not necessarily criminal offenses, even being a jerk in a romantic context suffices–flung on both sides of interpersonal conflicts. The “allegation-as-fact” characteristic of some of the #metoo discourse amplifies the serious nature of this, because to dispute the allegations is to incur an additional negative mark, that of minimizing and disbelieving women.

Financial malfeasance. Organizations that are driven by vision and charisma are not always 100% clear, to begin with, on how raised funds will be allocated, and as a consequence there could be bitter disputes about how the money was spent or shared.

This mini-typology is just the beginning–I’m hoping to come up with a more comprehensive framework for understanding this. I’m also hoping to figure out whether this stuff is inevitable, and is simply part of the life cycle of any collaborative effort.

Part of the issue with these identity-driven conflicts is that, in progressive organizing, we tend to subscribe to the notion that “the personal is political.” But if that’s the case, aren’t personal conflicts and their destructive aftermaths also political? They certainly have political impact, in terms of splintering organizations and paralyzing progressive action. As many folks have observed, shaping political action through identity is a mixed bag, in that it can stand in the way of diversity. Starhawk writes:

Some kinds of diversity are not meant to work together: if our goal is to ban the growing of genetically engineered crops in our county, we’re not going to work well with Monsanto. Yet we should also beware of drawing too tight a circle. If everyone in our group has to be a vegan, polyam-orous, non-gender-specific advocate for peace, we’re going to lose. To win, we need a coalition of conventional farmers, organic growers, ranchers, vineyard owners and environmentalists who might hold widely divergent views on gender bending, gay marriage and foreign policy but agree on the food system they want to see.

Starhawk. The Empowerment Manual (p. 32). New Society Publishers. Kindle Edition.

This seems like an application of the more general problem that Francesca Poletta discusses in Freedom Is an Endless Meeting, which looks at participatory democracy through a historical lens. While Poletta is overall sanguine about the potential of collaborative processes to produce real change–she discusses the real successes of depression-era labor educators and Mississippi voting registration workers–she finds that when organizations model their political structure and process after cultural models that don’t work–“familiar nonpolitical relationships such as friendship, tutelage, and religious fellowship”–they face the sort of issues that are a bug, not a feature, for these relationships, but become a bug if one wants to be politically influential: problems of inclusivity and procedural murkiness.

But I suspect there’s another reason why these conflicts become so acrimonious. Working for many progressive causes, such as environmental and social justice, comes with a heaping helping of despair. It is draining to see the suffering and destruction on such a massive scale, and it often feels insurmountable even to the most committed activists. Without solid resourcing tools to contain and sit with the sorrows of the world, a lot of this frustration and despair can fester, looking for a “hook”, and attaching itself, tragically, to the people who might be closest to the sufferer. I don’t mean to suggest that the complaints are always or often baseless. Regardless of their credibility, they evince some channeling of more general, existential despair. It’s the sort of thing that makes all of us, in these scary times, channel our inchoate fears toward lashing at each other for noncompliance. Imagine this happening to a group of people who, on a permanent basis, are facing boulders of fear and grief about the planet as political “first responders” to the griefs of environmental destruction, economic inequality, racism and injustice. That this is deeply upsetting stuff goes without saying.

Which brings me to the real question: Is any of this inevitable? Can we learn to process our grief and outrage, with ourselves and others, in a way that brings about growth and prevents long-term resentments? Is it possible–if not in all cases, than at least in some–to overcome these conflicts and bring people back into the fold? Or is it just the nature of human collaborations that they have a life cycle, and personal stuff poisons the well at some point?

I don’t have an answer yet. I’m thinking about this as I see this unfold in my case study and elsewhere. I want to believe that nothing is insurmountable, but I see a lot of negative examples. Tell me the story of your organization, and how you overcame (or didn’t) a season of interpersonal anger and strife.