On the Administration of Tough Love

This spring brought in its wings a mountain of work: in addition to my full-time Hastings position, I guest-taught across the bridge at my alma mater, UC Berkeley. I accepted the overload job for various reasons, financial and others, but in addition to the academic joys of being near many old friends (and especially my beloved and admired mentor) and resuming old professional conversations that I enjoy, there were immense athletic joys: every day I was there, after class and office hours, I would revisit my old stomping (splashing?) grounds and swim a good workout on campus. With my favorite facility, Hearst Pool, closed, I sometimes swam in the gorgeous Golden Bear pool, surrounded by a forest and almost always empty, but most of the time I swam at Spieker Pool, the enormous Olympic-sized facility that is home to Cal’s celebrated swimming and diving teams. Oftentimes over the years, when I swam there, the Cal women’s team would be training in adjacent lanes; I was starstruck by all the fantastic athletes I cheered during Olympic games and world championships and concluded that, if I was managing one lap to every two of Missy Franklin’s, then I was not too shabby.

Like many Bay Area swimmers, I had enormous respect for Cal’s legendary champion, Natalie Coughlin; I read her biography, Golden Girl, which highlighted her special working relationship with coach Teri McKeever. Both women rose to prominence on parallel tracks: Natalie earning medal after Olympic medal, Teri becoming the first woman to coach at an Olympic level. In the book, Teri is presented as a thoughtful, considerate coach, who treats Natalie like the adult that she is, by comparison to Natalie’s prior coach at the Terrapins team. Teri is also presented as sensitive to the needs of the teammates as whole young women, often counseling them on personal and interpersonal problems.

Which is why it came as quite a shock to read in the Mercury News and in the OC Register an exposé revealing serious allegations of bullying and abuse against McKeever from several swimmers:

[I]n interviews with SCNG, 19 current and former Cal swimmers, six parents, and a former member of the Golden Bears men’s team portray McKeever as a bully who for decades has allegedly verbally and emotionally abused, swore at and threatened swimmers on an almost daily basis, pressured athletes to compete or train while injured or dealing with chronic illnesses or eating disorders, even accusing some women of lying about their conditions despite being provided medical records by them.

The interviews, as well as emails, letters, university documents, recordings of conversations between McKeever and swimmers, and journal entries, reveal an environment where swimmers from Olympians, World Championships participants and All-Americans to non-scholarship athletes are consumed with avoiding McKeever’s alleged wrath. This preoccupation has led to panic attacks, anxiety, sleepless nights, depression, self-doubt, suicidal thoughts and planning, and in some cases self harm.

Following the publication of the allegations, as the Mercury News reports this morning, Berkeley swimmers walked out on McKeever on this morning’s practice.

I found myself extremely upset at learning all this; it comes in the heels of Mary Cain’s exposé of running coach Alberto Salazar’s abuse (she thoughtfully reflects on her time training with the Nike team in this great episode of the Rich Roll podcast and in this NY Times video.) We are all still collectively reeling from the sexual abuse that Simone Biles and others suffered at the hands of Larry Nassar, and from the neglect–no, dereliction of duty–on the part of their coaches and sports association to offer them any help. These latest scandals brought home the understanding that U.S. coaches and mentors were perpetrating the same horrors as the infamous Romanian and Russian coaches. Which, as someone who teaches and mentors people at these age brackets (young adults), makes me wonder – what is the meaning, or the purpose, or the appropriate concoction, of tough love?

It’s hardly disputable that the current generation of young students/trainees/athletes have a strong culture of bringing into the light things that previous generations believed should be suffered in silence. I found this interesting article about the attributes of Gen Zers as students instructive and useful. This trait, of not tolerating abuse/indignity, has both lights and shadows. At its worst, it creates a grievance mentality that encourages people to marinate in their traumas and difficulties without fostering the resilience they need (and that previous generations seemed to possess to a greater degree) to overcome them. But at its best, it makes some of us older folks question whether we should have spoken up, rather than remain silent when we suffered similar or worse harm at the hands of the people who were supposed to teach or mentor us.

As I write this, I vividly remember a whole litany of small and medium-sized cruelties that were inflicted on me during my youth and adolescence, starting with my school’s ignorance/inaction at the sadistic and systematic bullying experiences I went through between the ages of 9 and 14, continuing with the terrifying and inhospitable (albeit publicly admired and celebrated) professors and intellectuals who taught us in law school, and then with the gallery of commanders and trainers who used us, in the army, as their psychological punching bags. If anything, I marvel at the fact that the 1980s and 1990s, when all this happened to me and around me, were years in which we gradually developed sensitivity to sexual harassment, while ignoring all other forms of harassment that were still happening, unopposed, in plain sight. We regarded all that stuff as rites of passage and fodder for our hindsight comedy about the hazing we received. The thing to do, our boomer parents taught us on the rare occasion that we revealed our unhappiness to them, was to laugh it off and develop tougher skins. And I can’t say that this advice was completely misguided: later in life, when a staff member at Hastings raised her voice at me about some administrative matter or other, I calmly replied, “Girlfriend, I have been yelled at by people much scarier than you, so I propose you lower your voice and think twice about opening your mouth again.” For me, the experience of suffering was also a gateway toward empathy and compassion: I have never been incarcerated, isolated, or on death row, and I’ve never been assaulted in prison or neglected medically, but I sure as hell know what it’s like to be lonely, hated, disbelieved, and frightened, and I feel kinship with anyone who has shared this ember of the human experience, even if superficially their lives look very different to mine. At 10 years old, I wrote in my diary, “because of what is being done to me, I vow to spend a lifetime helping the helpless and the weak against the powerful bullies.” And I hope my life’s work delivers on at least some of this promise.

Perhaps my ability to grow a useful, and hopefully beautiful, lotus out of the mud comes from sheer good fortune: I just lucked into being genetically predisposed toward happiness and high energy and into having strong psychological muscles. Surely, at least some of my fellow Gen Xers may have emerged psychologically bruised from the roughness with which so many of us were handled. This makes me wonder whether the appearance that the Gen Zers we teach seem considerably more anxious, depressed, and psychologically brittle than us has more to do with their willingness to open up and report about their struggles than with their personalities. But it also has to do with the planetary anxiety (climate crisis, financial crises, political endgame horrors, soul crushing school shooting tragedies) that has characterized their formative years. Either way, the fact is that many of us teachers and mentors encounter young folks who struggle with very powerful demons–depression, anxiety, and others–and that raises serious questions about the extent to which great results can be coaxed out of people through “tough love.”

It’s important not to confuse “tough love” with an uncompromising approach to achievement, or even excellence. I staunchly believe that, by lowering standards, we are misguidedly providing a disservice to the people we try to help. I’ve seen this operate not only in my law school teaching, but also at Balboa Pool, where I work as a lifeguard. Some of my fellow lifeguards teach the Red Cross swim curriculum and are very adamant not to pass children to the next level unless they demonstrate having actually acquired the necessary skills. “They are taking my class,” said one of my colleagues, “not so that their parents will like me, but so that they will know how to swim,” which is not some fancy unimportant frivolous accomplishment: it is an essential lifesaving skill. When the big wave comes for you, you either swim or you don’t. Providing you with the feel-good illusion that can perform a task when you actually cannot is not helping you go forward in life. Similarly, giving you a diploma and a license to practice law when you are incapable of solving other people’s problems with knowledge and confidence is doing a disservice not only to you, but to your clients.

The issue I’m tackling here is quite different: it’s not so much about the standards but about the path toward achieving them. It looks like, at least in athletics (and perhaps in law schools – remember Prof. Kingsfield?) there is a dying breed of old-school coaches and instructors who strongly believe that the way to greatness–Olympic medals, world records, you name it–necessarily requires “toughening people up” through being mean to them. I find myself agnostic: surely some level of toughness and resilience is an important quality to cultivate in people who are aiming at performing and achieving at a high level. But does this really extend to a need to insult and humiliate? The public belittling and verbal punching doesn’t seem to produce the right results in this generation, but did it really prove successful in previous generations? Or did people like Natalie Coughlin, Dana Vollmer, and others accomplish incredible feats despite–rather than because–an atmosphere of toughness and abuse? Could it be that the successful folks were not the one on whose heads the cruelty was rained?

If, with the exposés of Salazar, McKeever, and others, the breed of “tough love” or just “tough” coaches is dying, we certainly have not done enough thinking on whether, and how, to get great results without the great cruelties and indignities. If it is possible, then what is the best model for this? I was very lucky to have, in grad school, the mentorship of Malcolm Feeley, who never once mistreated me, always regarded me as his protégé and friend, and always shone in my skies like a good fatherly sun. To this day I can always count on his steady guiding hand and good advice, and if I have achieved anything in my professional life, it was because, rather than despite, his infinite generosity and kindness. So I know that it can be done, and if a Malcolm-esque model of mentoring could be scaled up to athletics, the world would be better. This, of course, assumes that there’s nothing unique to sports that requires that cruelty be added to the cocktail of instructive styles and methods.

But let’s assume, for a dark teatime of the soul, that it does. Let’s assume that the medals and world records and all that are fueled, to some extent, by the cruelty. That there’s some demonstrable correlation between calling people names and publicly humiliating them and these same people running or swimming very fast and winning races. Do we really care about results so much that we are willing to accept any method for achieving them? Perhaps we’re not there yet. As my friend Aatish suggested in a conversation about this today, “the spectacle demands the next record being broken. No one is going to be all like – oh hey, it’s cool that the mile times will all get slower because now we’re being more ethical.”

And perhaps the same question applies to law school. In the above-linked piece that defends Prof. Kingsfield, Michael Vittielo writes, “Few commentators have asked whether law students are as well prepared today as they were thirty years ago, now that they graduate from far more student-friendly law schools, or whether they are less cynical if they attend law schools where their professors solicit their personal views.” If empirical evidence an be provided that law students are less well prepared now than they were in those rough Socratic method years–can it still be said, “okay, but we’re willing to sacrifice some preparation/proficiency because we don’t want to publicly humiliate our students anymore”?

A strange analogy comes to mind. During the 2008 Beijing Olympics, Speedo pioneered a techsuit called the LZR racer, which was proven statistically to have contributed to the many world records that were broken in the pool. Now, when looking at the record book, all records and results achieved by a swimmer wearing a LZR racer are marked with asterisks. If the analogy isn’t clear, let me spell it out. As more and more evidence of cruelty toward and neglect of young people in sports coaching surfaces, and as more and more of us find it abhorrent and unconscionable to treat people this way even if it produces results, will there ever come a time in which records accomplished partially as a consequence of humiliation and abuse will be marked with an asterisk for posterity, and will no longer be an accomplishment we are willing to tolerate?

Sherlock Holmes Revisited: Re-Creative Reading

A couple of years ago I took a facilitator training in VTS (Visual Thinking Strategies), a nuanced and inclusive way of looking at and speaking about art. At the training, we learned to facilitate conversations about art among students of all ages, brought about by complex, ambiguous images. The power of VTS lies in the simplicity of the method. The students are asked three questions: (1) What is going on in this picture? (2) What do you see that makes you say that? and (3) What more can we find? The facilitator then skillfully rephrases what the students say, clearing their perspectives of preconceptions, and opening the door to a multiplicity of interpretations.

Because these questions are not rooted in any preconceived notions about the art, they open the enjoyment of art and the meaning-making process to a variety of audiences of all ages, from police officers to medical students. Not only does this method subtly encourage inclusivity and pluralism without shaming, but it also increases powers of observation and interpretive flexibility.

One of the many things that are interesting about VTS is that there are many layers of engagement with art. Abigail Housen, whose research informed much of the VTS approach, identifies five stages of aesthetic development:

Stage 1 – Accountive
Accountive viewers are storytellers. Using their senses, memories, and personal associations, they make concrete observations about a work of art that are woven into a narrative. Here, judgments are based on what is known and what is liked. Emotions color viewers’ comments, as they seem to enter the work of art and become part of its unfolding narrative.

Stage 2 – Constructive
Constructive viewers set about building a framework for looking at works of art, using the most logical and accessible tools: their own perceptions, their knowledge of the natural world, and the values of their social, moral and conventional world. If the work does not look the way it is supposed to, if craft, skill, technique, hard work, utility, and function are not evident, or if the subject seems inappropriate, then these viewers judge the work to be weird, lacking, or of no value. Their sense of what is realistic is the standard often applied to determine value. As emotions begin to go underground, these viewers begin to distance themselves from the work of art.

Stage 3 – Classifying
Classifying viewers adopt the analytical and critical stance of the art historian. They want to identify the work as to place, school, style, time and provenance. They decode the work using their library of facts and figures which they are ready and eager to expand. This viewer believes that properly categorized, the work of art’s meaning and message can be explained and rationalized.

Stage 4 – Interpretive
Interpretive viewers seek a personal encounter with a work of art. Exploring the work, letting its meaning slowly unfold, they appreciate subtleties of line and shape and color. Now critical skills are put in the service of feelings and intuitions as these viewers let underlying meanings of the work what it symbolizes emerge. Each new encounter with a work of art presents a chance for new comparisons, insights, and experiences. Knowing that the work of art’s identity and value are subject to reinterpretation, these viewers see their own processes subject to chance and change.

Stage 5 – Re-Creative
Re-creative viewers, having a long history of viewing and reflecting about works of art, now willingly suspend disbelief. A familiar painting is like an old friend who is known intimately, yet full of surprise, deserving attention on a daily level but also existing on an elevated plane. As in all important friendships, time is a key ingredient, allowing Stage 5 viewers to know the ecology of a work — its time, its history, its questions, its travels, its intricacies. Drawing on their own history with one work in particular, and with viewing in general, these viewers combine personal contemplation with views that broadly encompass universal concerns. Here, memory infuses the landscape of the painting, intricately combining the personal and the universal.

As we saw at our facilitator training, the vast majority of people who look at art make observations that reflect stages 1 and 2–which is not to say that they are limited, or uninteresting; plenty of deep observations can emerge from these stages. Stage 3 typically reflects prior knowledge in art history or technique, whereas Stage 4 reflects a deeply intimate and emotional relationship with the art. Stage 5, we were told, typically reflects viewers of advanced ages, who have had the experience of engaging with a particular work of art over the course of their lives, which entwines the evolving personal experiences of the viewers with the universal (and possibly changing) themes of the work.

Today I had the luxury of revisiting Housen’s important work by experiencing what re-creative enjoyment of art looks like in the realm of literature: I read Ruth Wilson’s wonderful book The Jane Austen Remedy. To get a sense of Wilson’s project, here she describes it in her own words:

In my eighties I reappraised Jane Austen’s fiction in a doctoral thesis, and was commissioned to explore my own identity, dispositions and values in a recently published reading memoir.

Now I find that the processes of rereading, investigation and reflection have led me to the best time in my life. Reading memoirists raised issues in my mind about memory, truth telling and artistry. In weaving together these aspects of my own reading experiences in my thesis, I discovered parts of myself and aspects of my most intimate relationships that I had not previously explored.

On the one hand I felt removed sufficiently to take stock of the best and worst of times in my life. And on the other, I became deeply immersed in the reflective process. I was surprised to realise that longstanding dissatisfactions were evaporating around me. I was experiencing waves of exhilaration while my level of wellbeing soared beyond anything I had previously known. While writing the memoir, reading, writing, and rereading occupied my days and gave them added meaning.

Wilson wrote her doctoral dissertation on the experience of reading Austen as promoting empathy in her mid-80s. She devotes a chapter to each novel, unpacking the relevance of themes to her own life and to universal issues and exposing layers of understanding and relevance that have evolved throughout her repeated engagement with the texts in her life. In that sense, Wilson’s appreciation of Austen’s body of work is the literary equivalent of Housen’s fifth stage of aesthetic appreciation.

To my delight and nourishment, I am finding that the same is true for me as I reengage again with texts I have read and loved throughout my life: Arthur Conan Doyle’s canon of Sherlock Holmes stories. I already shared here that this is likely going to be my next book project. I’m finding layers of personal and professional meaning that was added to the stories throughout the years. In my childhood–I first encountered the stories when I was ten years old–I found the deductive process intoxicating, particularly when demystified as a scientific series of steps. But over the years, I learned more about this. My criminological education and my richer background in law and the social sciences highlighted other themes: the centrality of the positivist criminological paradigm in the Holmesian universe, understandable given the period’s great excitement about the scientific method, the measurability of social facts, and the medicalization of crime (the inspiration for Holmes was Doyle’s mentor, Dr. Joseph Bell.) This brought out of the shadows some of the more unsavory aspects of the stories: the racism, misogyny, colonial paternalism, social Darwinism, etc., which are highlighted throughout the canon. This critique is much more salient to me now than it was earlier in life, but I can unearth more layers beneath and above it: the understanding of the fear of crime as an unknown/unexplainable phenomenon that might become just a bit less unruly if we can subdue it to the laws of nature. I see the same animus behind the current tendency, for example, to unfairly blame Chesa Boudin for everything that is wrong in the dystopian San Francisco zeitgeist.

There are other readings of the text that have spoken to me over the years. As I grew up and acquired experiences–ranging from sublime to heart-shattering–with various affaires-de-coeur, queer readings of the Holmes canon, especially understandings of his relationship with Watson, became salient as possibilities. Then, inspired by my colleague and friend Ethan Leib’s work on friendships, I began to wonder what was more revolutionary: to ascribe sexual meaning to a relationship that is ostensibly portrayed as platonic and friendly, or to ascribe this relationship intimate importance despite the lack of an explicit sexual aspect? It is a complicated friendship, which includes true love, professional camaraderie, and on occasion, shocking emotional abuse, that brings to the surface themes that we generally are happy to explore in romantic liaisons but do not deeply analyze in platonic friendships, and in that sense brings a revolutionary aspect to the book.

And then there is my own move to the new world and the colonialist reading of what America, and Americans, is/are all about; Doyle’s exoticization of both America and Australia evoke some interesting parallels in American Political Development (APD) and in the USian tendency to exoticize the Global South. This becomes especially salient in novels and books describing the frontier, including The Valley of Fear, A Study in Scarlet, The Boscombe Valley Mystery, The Noble Bachelor, and others.

In short, much of the canon, like the Austen canon, is not just about the work itself, but also about the ongoing relationship, over decades, between the work and the reader, themes constantly sharpening and blurring, progressing and receding in importance, as my relationship with the inhabitants of 221B Baker Street deepens. I feel it’s time to write about this interplay and to celebrate this canon, especially because, as opposed to Jane Austen’s works, it was meant to be read serially, in the Strand newspaper, by people of all walks of life, each of whom would project their own interests and values on the narrative.

Urban Alchemy in the News

SF-based nonprofit Urban Alchemy, which I discussed here and here, is in the news this week. First, there was BBC coverage, and this morning a lengthy investigative story in the Chron. Mallory Moench and Kevin Fagan’s story is interesting and informative, and offers lots of useful perspectives, but does adopt an unnecessarily skeptical emphasis and tone, which rankled me because I work in the Tenderloin and see the transformation it has undergone through Urban Alchemy’s intervention.

In the early pandemic months, the open drug market around my workplace was so brazen and violent that my students feared going out of their dorm rooms at the Hastings towers. Mayor Breed and SFPD tried to resolve the problem by doing police sweeps of the area, which only resulted in new people coming in to deal and shoot every day. At some point I was contacted by a civil rights org, which shall remain anonymous out of compassion, with a well meant, but absurd, invitation to support their lawsuit against gang injunctions with an amicus brief refuting the existence of the drug market. Refuting? I thought. Are you kidding me? Do you have eyes? Do you live or work here? It was a prime example of what I’ve come to recoil from: the refusal, by some quarters of the Bay Area’s delusional left, to concede that crime is real and has real victims and real implications (that’s why I have no patience for armchair abolitionism, by the way.)

Then, our Dean signed a contract with Urban Alchemy, which has them support the area adjacent to the school. This proved to be a complete game changer. The first morning I showed up to work with the UA practitioners surrounding the perimeter of the school I was amazed; the change in energy, the peacefulness, the friendliness, the sense of personal safety, were palpable. I started chatting with some of the practitioners around my workplace, who came from backgrounds of serious incarceration, and found that their personal experiences provided them with just the right interpersonal skills to intervene in complicated situations in the Tenderloin. Finally, someone is doing the right thing, I thought. There are so many occupations in which a background of criminal invovement and incarceration is a priceless resource – and this includes lawyering. Recently, I interviewed people with criminal records who applied to the California bar and wrote:

In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character.

My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage.

To Moench and Fagan’s credit, their piece does represent this view; one of their interviewees explicitly says that looking at justice involvement as an asset, rather than a barrier, is revolutionary. But overall, their reporting exceedingly amplifies the voices of the naysayers above those of the many people who live and work in the Tenderloin who are quietly grateful for Urban Alchemy’s presence in the streets. You’ll be hard pressed to find detail in their story of the many good deeds that the practitioners perform daily, ranging from lives saved with Naloxone (several times a week, I’m told) to skillfully providing my female students a sense of personal safety when walking the Tenderloin in the evening. Several students described how a practitioner subtly positioned himself between them and someone who was getting too close, and how the threatening situation evaporated before it could evolve in unsavory directions. Moench and Fagan give this a passing nod, but their piece fails to properly capture the magic.

This brings me to another observation: There hasn’t yet been a project evaluation for Urban Alchemy’s Tenderloin intervention. Executing such a study would be a daunting task for several methodological reasons. First, there’s no comparative baseline for the intervention. The situation before their intervention was so abnormal that it would be hard to use it as a control, even if data were available. If the comparison is geographic, it would suffer from the usual problems with situational crime prevention: focusing an intervention in a particular geographical zone means that criminal activity is displaced onto adjacent zones, so the two comparators are not independent of each other. If the study is structured as an in-depth phenomenological project (which is what I would do if I were to do this–and a colleague and I are thinking about this), there’s the Star Trek problem of the Prime Directive: researchers or students hanging out in the Tenderloin to conduct observations would, themselves, change the dynamics in the area that they study. A big part of Urban Alchemy’s success lies in the fact that they do things differently than SFPD. They do not rely on surveillance cameras; in fact, they eschew them, and having any sort of documentation would be detrimental to their working model. And people standing in the corner for hours and taking notes would chill everyone’s behavior. Fieldwork here has to be conducted with care.

I have one more observation to offer: I now work in a service profession that requires crowd management and interpersonal intervention (as a city pool lifeguard) and also have multiple years of experience managing crowds in rowdy, inebriated, unusual situations (as a Dykes on Bikes registration volunteer at Pride and at Folsom Street Fair, for example.) The vast majority of people you encounter at these settings are lovely and a delight to be with. But the one or two percent who are decidedly not lovely can really test anyone’s self control. I’m talking about the driver who insists on driving the car into the area you’re trying to cordone off, the slow dude who insists on swimming in the lane with faster people and not letting them pass, or the people repeatedly told (politely) to move to the sidewalk so that they are not run over by trucks who don’t go where they’re told. My experiences are nothing compared to what the Urban Alchemy practitioners encounter every day on the Tenderloin streets. I really wish our reporting on this were sympathetic to the enormous challenges of interpersonal interactions in this very rough patch of our city and more appreciative of how much conflict and anxiety are spared when people who know what they’re doing take the lead.

Ninth Circuit Strikes Down Guard Vaccine Mandate

In an unfortunate, albeit not unexpected, decision, the Ninth Circuit reversed Judge Tigar’s vaccine mandate. You can read the decision in full here.

The reasons, in short, are as follows: the judges considered CDCR’s efforts in “making vaccines and booster doses available to prisoners and correctional staff, enacting policies to encourage and facilitate staff and prisoner vaccination, requiring staff to wear personal protective equipment, and ensuring unvaccinated staff members regularly test for COVID-19. . . symptom screening for all individuals entering the prisons; enhanced cleaning in the facilities; adopting an outbreak action plan; upgrading ventilation; establishing quarantine protocols for medically vulnerable patients; and testing, masking, and physical distancing among inmates” sufficiently ameliorative to reduce their misdeed below the threshold for an Eighth Amendment violation and “[a] decision to adopt an approach that is not the most medically efficacious does not itself establish deliberate indifference.”

Chapter 6 of our book, which discusses COVID prison litigation, is called “The House Always Wins.” This decision is a textbook example of the pathologies of prison litigation and why it fails to address problems in real time. It doesn’t even matter whether the litigation is happening on the federal or state level, because the basic problems are the same: the courts focus on the prison setting more than on the law, continuously contort the Eighth Amendment to defend prison administration, and ignore the basic regulatory requirements in the free world, assuming the prison is so different that they don’t apply. In addition, there is an interagency “game of chicken” that stalemates any efforts at providing timely help during an emergency: the natural actors that should quickly intervene in such situations are the governor and the prison authorities. Since neither has any incentive to do anything helpful, and since the people entrusted with the immediate care of the inmates are in a union that has been completely politically captured, the courts have to make noises of stepping in, but dragging their feet means that dynamic situations change and transform long before they have a chance to intervene.

I think that what happened with this Ninth Circuit decision mirrors what happened with the San Quentin litigation. Recall that, back in November, Judge Howard found that the botched transfer from Chino constituted an Eighth Amendment violation, but the vaccines changed the game and rendered relief moot. I suspect that the Ninth Circuit judges were affected by the fact that, due to the new variants and new endemic realities of COVID, the diminishing returns of vaccination mean that the urgency behind vaccinating the guards (which had already begun to fade by the time Judge Tigar decided to act) is far less salient than it was in winter 2021, when their opposition to vaccination was at its strongest and their compliance could have made a real difference. In other words, this is a classic demonstration of how justice delayed is justice denied.

The other issue is the inherent limitation of litigation, which is backwards-looking. In the Quentin case, Judge Howard explicitly said that he did not look to the next variant or to the next pandemic; his job was just to assess the violations of the past. As we see again in the Plata case, this fundamental trait of litigation is unfortunate for dynamic situations because, as Wes Venteicher reports in this morning’s SacBee:

Now another wave could be coming. The corrections depnartment reported its largest week-over-week increase in new cases, measured as a percentage, in the last week of April. New cases increased by 820%, reaching 322 infections from the prior week’s low figure of 35. About 97,000 people are incarcerated in the state’s 34 prisons. The biggest increases in the last two weeks have been at San Quentin State Prison, Pelican Bay State Prison, California Health Care Facility in Stockton, California Medical Facility in Vacaville and Ironwood State Prison in the southeast corner of the state, according to a corrections department infection tracker.

Ultimately, the only way to learn lessons for the next variant, the next pandemic, the next health crisis, is to conclude the obvious: it is impossible to save lives and provide decent healthcare to 100,000 people in California if the people entrusted with their care do not prioritize their wellbeing. Given that we do not seem to be able to attract people who have the prisoners’ best interests in mind to fulfill custodial positions, from the top, through the unions, to the rank-and-file, the only tenable conclusion is that we cannot and should not incarcerate nearly as many people as we do now. This will be the main conclusion of Fester, though we do make many other recommendations.

Endorsement: NO on Chesa Boudin’s Recall

The unbearable lightness of recalling people in California means that we have to be grownups and distinguish between two very different scenarios: saving our city or state by getting rid of idiots and nincompoops versus expressing existential discontent in an unhealthy way by throwing away capable, conscientious, hardworking officials with whom we sometimes disagree.

The recent school board recall belonged in the former category. The well funded, rage-fueled effort to recall our District Attorney, Chesa Boudin, is squarely in the latter.

I’m not a close friend of Chesa’s and I don’t know him very well, but I’d like to think of us as collaborators. We’ve been on the radio together. We’ve done projects together. We’ve appeared at press conferences together. I know quite a bit about the spirit of public service and sound policy that drives how Chesa conducts himself in office, because I know how he has shaped his position on a variety of issues. We don’t agree on everything, but he is the real deal.

Chesa is not a diplomat, has not mastered the art of the non-apology apology or the compliment sandwich, and has not shined when confronting the classic San Francisco performative outrage festival. But this does not change the fact that he does his job and does it well.

I know you are continuously bombarded with well-funded scare tactics, fearmongering signs and flawed statistics, and when there’s so much untruth around you, you’re bound to start believing it. In the name of all that is holy, think for yourself–the way you did when you stood up for your children and threw three performative stooges off the school board. There were solid statistics and finances backing you up then. This time, the reliable data points in the opposite direction – AGAINST the recall.

Think that crime is up? You feel subjectively unsafe? This is not Boudin’s fault. Crime is up everywhere and brutal prosecutions are not the answer. In the city, violent crime is stable and homicides are down. Homicide conviction rates are up. Filing rates in nonviolent crime are up. Car burglary ring has been busted.

If, after all is said and done, you still think that you’d prefer a traditional DA to bloat our prisons and jails, you can do it at the ballot box when Boudin stands for reelection. Don’t cheapen an important emergency tool by misusing it against a capable and hardworking public servant.

I know many sensible people who are frustrated by the progressive left’s insistence that no, there is no problem here, and I have deep sympathy for this frustration. Believe me, I’ve been dumbfounded by efforts to rope me into writing amicus briefs denying the serious drug and property crime problems plaguing the city. And I know that these sensible people are going to misuse this bad-faith recall as a piñata to whack their frustrations at. This is not a good use of the recall power.

Want more? Read David Sklansky’s sensible takedown of the recall extravaganza as well as the Chronicle’s position. Neither is a progressive fantasy fest. They are simply looking at what is happening in the city and breaking down for you what is, purely and simply, an unsubstantiated smear campaign.

In Memoriam: Dr. Tally Kritzman-Amir

My heart is crying. One of the best people I’ve known was prematurely taken from us. My beloved friend Tally Kritzman-Amir, an international human rights, immigration, and refugee law scholar of global renown, was beaten at 43 by a ferocious, aggressive cancer, leaving behind her husband, our dear friend Yoni, and their two young daughters, the wonderful Orr and Shir. She also leaves behind a loving extended family and thousands of friends throughout the world, many of whom benefitted from her selfless, pragmatic contributions.

Tally’s cynical, sometimes dark sense of humor belied a heart of pure gold and an uncanny capacity to find the most practical and effective way to do good in any situation. She devoted precious time to legal and economic interventions on behalf of the most disempowered, desperate people on the planet. A few weeks before her untimely death she befriended Gloria, a refugee from Africa seeking treatment for aggressive cancer in Israel, and successfully fundraised for her treatment. It is so typical of Tally to turn the world upside down even in her last breaths to improve someone else’s lot, to see her own horrific affliction as a gateway toward empathy and connection with others. All this with no fanfare, no social media bullshit, no performance or self aggrandizement whatsoever. Just a pure soul and a perfectly calibrated moral compass.

My family and I had the great joy to be close friends with Tally and her family at Cambridge, where we considered them our family. At every corner of our Harvard journey, she was there, building community for us, gathering items, facilitating annoying errands, looking for housing, and walking me through campus bureaucracy. She was at the heart of a vibrant community, drawing connections between people, her kind heart and razor sharp mind working in concert to connect A’s bounty to B’s needs, always selflessly, humbly, without asking for praise or recognition.

On the very day that she was laid to rest, an Israeli judge approved a visa for a couple of Ukrainian refugees, citing Tally’s work and paying tribute to her goodness and solid principles. When people pass away, I often say, “a great light has dimmed.” So great was the light that shone purely from Tally’s soul that it continues to illuminate the world after her departure. I will miss my beloved friend very, very much and send my deep condolences to Yoni, Orr, Shir, the family and friends, and the entire world, who has lost a fierce warrior of love and belonging.

TV Review: Murder, Mystery, & My Family

“The British justice system is the envy of the world; but, in the past, mistakes have been made.” So begins every episode of the British series Murder, Mystery, & My Family. It has an interesting, if formulaic, premise: in each episode, a relative of a deceased person who had been convicted of murder (most often hanged, but sometimes imprisoned and later died) seeks to revisit the circumstances of the crime and the trial and, possibly, obtain a judicial decision that the conviction is “unsafe” (i.e., reversible on the basis of a legal error or insufficiency of evidence.) The featured crimes are murders and serious felonies from 1970 and earlier, in which there is a question mark over the conviction.

That the investigation is initiated and driven by a family member, rather than by the legal officials–barristers Sasha Wass, QC, and Jeremy Dein, QC, as well as Judge David Radford–provides a curious emotional hook to the narratives. Even for crimes committed more than a hundred years ago, the relatives begin each episode deeply invested in “clearing the family name”–as if their dead relatives’ crimes can blemish later generations–and become even more convinced of their relatives’ innocence as the investigation progresses. When they speak of their deceased ancestors, they sound like someone testifying for a relative at a sentencing hearing today; in one case, in which several sailors were accused of harassing and raping a woman before driving her to jump off a vessel and drown, the relative referred to one of the sailors, who was hanged before she was born, as “a bit of a lad, but he couldn’t have done this.” Family ties and family shame run deep, and the relatives speak to social historians and crime writers who illuminate some of the period details: why people were having frenzied extramarital affairs shortly after the war, how poverty would have impacted family dynamic, why a doctor’s word about the medication of a patient would matter more than a nurse’s, etc. The relatives also visit the courts and prisons in which events unfolded, invariably exhibiting deep grief and distress when finding a grave or a place of execution.

While this emotional journey unfolds, Wass and Dein investigate the legal aspects of the case. They consult forensics specialists–usually pathologists and ballistics experts–as well as forensic psychologists, who read letters by the victims and perpetrators and opines as to their state of mind. They also take a close look at the court transcript. Their conversations about the evidence are a great display of the ideal roles of prosecutor and defense attorney: Dein zealously searching high and low for reversal grounds, Wass an impartial officer of the court who sometimes agrees with Dein about due process violations but whose prosecutorial lens is unmistakable in her descriptions of events (“and after they got the victim to transfer her estate, they figured they’d bump her off.”) The standard for declaring an historical conviction unsafe, per Judge Redford, seems to resemble the U.S. standard for reversal on collateral review: either a blatant legal error or new evidence that could not have been (and was not) exhausted in the proceedings many decades ago.

In both cases, they face problems of anachronisms and retroactivity. In many of the featured cases, the forensic evidence itself has long been destroyed or lost, and all the experts have to go by are reports written by doctors and scientists who might have been the luminaries of their time, but had to contend with their contemporary methods and technologies (in one memorable episode involving arsenic poisoning, we learn that arsenic occurs naturally in the body, a fact unknown at the time that the victim’s body was exhumed and examined due to uproar and conjecture.) On their face, the reports sometimes show biases (the deceased is said to have been poisoned, when the poison may well have been self-ingested.) In other cases, some forensics remain, but are difficult to analyze because their condition has deteriorated. One is left with the uneasy feeling that hundreds of cases, now final, involving less zealous relatives (and perhaps less made-for-TV facts) could be reversed on the same grounds.

As to the legal grounds, Judge Radford is put in the complicated position of calibrating what counts as due process today with the standards of yesteryear. It’s easier to find legal errors when procedure would have been unacceptable at the time as well as now, such as when the accused was not represented. One example involves the repeated uncovering of what Dein refers to as “police verbals”–unverified paraphrases of what the suspect supposedly said by investigating officers–which seem absurdly unreliable in the face of today’s UK practice of recording all police interrogations. But what about judicial remarks to the jury that would be considered biased today, and merely reflected prevailing values and mores at the time? Many such remarks feature references to gender and class that would have seemed natural and proper to judges in the late 19th century but today are beyond the pale. How Judge Radford dukes this out remains somewhat opaque because, by contrast to the approachable, TV-friendly self-presentations of Wass and Dein, the judge remains in character throughout, and is not part of the debrief at the end of the episode. Nor does his reasoning always satisfy the relatives who, when the conviction is upheld, vow to continue digging into the case.

Anyone interested in legal history, postconviction remedies, and forensics would find this show, despite its contrivances, interesting and well worth watching.

Lifeguarding Debut

This week I started working at my new side hustle: I’m volunteering as a lifeguard at my local pool to acquire the requisite experience hours for a salaried lifeguard job with the city. I’m happy to report that I’m finding it just as exhilarating and rewarding as I expected.

Every job has discontents, and professional jobs are cushier than many other occupations, which makes whining about academia trite and tiresome. Still, the last few years have eroded much of what I enjoyed about my academic work environment, and finding myself in a new professional context was refreshing. I like the fact that people are measured and judged in a more straightforward, honest way on a job that involves a fitness/alertness component. I like the fact that the job is completely stripped of markers of prestige (I work alongside people of all ages, occupations, and walks of life.) But mostly, I’m immensely enjoying the service aspect of the job.

Lifeguarding offers a sublime combination of calm and focus. I sit by the water, which has always been my favorite place, and find a precious balance between the stillness of being of quiet service to people and the alertness to things that might happen before they happen. Empathy and perspective-taking are relevant to the job in surprising ways – most of the time one can prevent all kinds of calamities and crises not through heroic water rescues and CPR, but through anticipating what might happen, putting oneself in the place of a swimmer or exerciser, and preempting the problem by addressing their needs. The job offers varied avenues for service: lowering some of our senior swimmers to the water in a special chair, offering a toy to a kid, politely but efficiently moving people along lanes so that they are swimming with people at their speed, offering an aspiring triathlete a couple of pointers about their stroke. I’m really having a terrific time.

Not Exactly From Scratch Vegan Mac ‘n’ Cheese

Our story begins with a sniffly child in need of comfort (not the plague! We tested) and a mom sprouting a migraine halo. This situation led to us deciding on a low-key movie evening, and the child asked for mac ‘n’ cheese. Not having in me to cook, I called our trusty food deliverance app and ordered the famous vegan mac from Homeroom. We were foiled, however, as it took them about an hour to find a delivery driver, and the child’s need for comfort was growing more urgent and weepy by the moment.

Rather than spend precious minutes listening to muzak on customer support, I took matters into my own hands. We had all kinds of awesome dairy alternatives in the fridge, so I improvised, and used Banza in lieu of semolina pasta to bring some nutrition (protein, fiber) into the situation. It turned out pretty good, if I may say so, and we immediately tucked in. A few minutes later, a delightful and very apologetic delivery driver showed up with the restaurant version. Rio ruled Ima’s version better than the restaurant’s (and I trust him, as I don’t think he has already learned to lie for social convenience)! Upon Chad’s return home, I administered a blind tasting test to Chad and he, too, declared my version superior to Homeroom’s, which is high praise.

Chad opining on the relative virtues of the two dishes

To make a long story short, if you find yourself in dire straits, have some Miyoko’s products lying around, and want to be your own hero, here’s how I did it:

Ingredients

  • 1 package Banza pasta
  • 1 tsp Miyoko’s cultured butter
  • 2-3 tbsp Miyoko’s liquid mozzarella
  • 1/3 cup Ripple plant milk – unsweetened
  • 1/2 tsp nutmeg

salt, pepper, onion flakes, and garlic powder to taste

Cook Banza pasta according to instructions–get it somewhere between al dente and al denture (it’s children comfort food, not an effort to evoke a Tuscan gourmet experience.) Strain and immediately return to the pot. Add all other ingredients, mix well, and cook a bit on low heat until the fake dairy thickens and becomes gooey and delicious. Taste to fix the spices and flavors (you might need a smidgeon more salt and pepper) and serve.

I bet smoked paprika, some turmeric, and a few extra nutritional yeast flakes would make this yellower and tastier, but the child prefers his comfort dishes bland. You, of course, are free of such constraints, so enjoy!

Initial Thoughts for Sherlock Holmes Book

Things that I’m passionate about have always found a way into my scholarship–I’ve written about marathon swimming, redball crimes, and Sherlock Holmes. This last obsession is lifelong: I read my first Sherlock Holmes story when I was 10 (and had nightmares for weeks because of the Adventure of the Cardboard Box), did several pilgrimages to 221b Baker Street, contributed to an annotated version of The Norwood Builder, and marshaled the knowledge I gained through my work with Malcolm Feeley on the history of female crime to create a typology of female characters in Sherlock Holmes stories.

In recent months, as I’ve been running increasingly long distances (in preparation for the Oakland Marathon and other races), I’ve listened to the entire Sherlock Holmes canon again (Librivox treats us to the wonderful renditions of David Clarke and YouTube treats us to the fantastic renditions of Greg Wagland.) This reacquaintance with the stories has made me deeply ambivalent about the social order in Doyle’s universe of crime; Doyle was a man of his time, with opinions of his time (about women, foreigners, people of other races, ethnicities, and religions, occurrences in various parts of the world, the metropole-colony relationship, animals, social classes), many of which have aged very poorly. At the same time, being intimately familiar with the criminological innovations and trends of the 19th century (including an enriching visit to the Museo Lombroso in Turin) has added a deep dimension of understanding and excitement to my enthusiasm about the stories: they reflect an era of immense novelty and discovery at the intersection of science and criminal detection, as well as a deep love of logic and deduction. Beyond that, the magic of the stories is still there: the gothic aesthetic, the marvel at shrewd interpretations, the marriage of forensics with imagination, and the literary trickery.

This has given me an idea: to write a book in which a criminologist (me) takes you, the Sherlock Holmes lover, by the hand, showcasing and explaining themes in the stories. I will set the scientific stage for Holmes’ method through the scientific innovations of the 19th century, introducing you to Quetelet’s statistics, Bertillon’s forensics, and Lombroso’s postmortems; walk you through the magic and horror of evolutionary frenzy, as Darwinian insights become twisted into concerns about atavism and sinister simians; examine the American and Australian colonies as landscapes of wild criminality; talk about the geography of crime in town and country; discuss the roles of ethnic, racial, and religious differences in “othering” and exoticizing criminals; and show how, in a society where classes and “places” were crystallized, class jumping or class transgression can be a crime in itself. Each book chapter will illuminate one of these themes through extensive analysis and quotes from several stories, which should make it fun as a reading companion to the entire canon.

Welcome to 221B Baker Street. Mrs. Hudson will serve some tea and scones; put on your house robe and slippers and enjoy your stay.