We’ve Lost the Plot: Save John Arntz’s Job!

Living in San Francisco can be wonderful. The city is not without its problems, but its magical heart still beats strong. And then there are the moments in which I feel sickened by the extent to which we’ve become the caricature that Tucker Carlson paints of us. I felt this way when the SFUSD board spent its precious time in earnest, ignorant, ahistorical debates about renaming 44 schools (“Lincoln,” “Washington,” and “Feinstein” were not okay) while the children sat at home (do you want to do right by children of color? You do? Then educate them, for Pete’s sake!) Yesterday brought yet another example in its wings.

According to Mission Local, John Arntz, our legendary Elections Director, is not having his contract renewed. The reason? The color of his skin. Joe Eskenazi reports:

“Our decision wasn’t about your performance, but after twenty years we wanted to take action on the City’s racial equity plan and give people an opportunity to compete for a leadership position,” reads an email sent from commission president Chris Jerdonek to Arntz. “We also wanted to allow enough time for a fair and equitable process and conduct as broad a search as possible.”

The article is the gift that keeps on giving–read it in its entirety to get the full scope of this inanity, the uniform support Arntz gets from all city quarters, the feebleness of the excuses–but I didn’t need to be told that our elections are fantastic. I worked as a poll inspector for the city three times. Each time I was blown away by the marvel that is the San Francisco election. The training is thorough and complete. The technology works without fail. There are hordes of professional, competent people at the beck and call of each precinct to solve problems (which are rare and easy to sort out.) Free, fair, and functional voting is accessible to everyone, rich or poor, young or old, abled or facing difficulty (how’s that for “equity?” That’s the very definition of equity.) Every question gets an answer. Our election is the most inclusive one, language-wise, that I know, and has a wonderfully high percentage of poll workers who speak additional languages. Drivers drop poll workers at the doorstep of where they need to go. Everything is packed and labeled to perfection. The COVID-19 guidelines are eminently sensible and geared toward facilitating voting in every possible situation. I am proud to work in the SF election because it is the only thing in the city that works like a Swiss clock.

Behind this huge enterprise of professionalism and competence stands John Arntz, who runs his department so smoothly that everyone is kind, efficient, and supportive of each other–including their boss. All twelve of his underlings, unbeknownst to him, have sent a letter supporting him.

What the hell is wrong with these council members? Do they want to get sued? Did they get so much half-baked DEI training and smoke so much bad weed rolled in pages from Ibram Kendi and Robin DiAngelo’s books that they forgot that the U.S. Constitution forbids discriminating against people based on the color of their skin? Has it not occurred to them that the inclusivity of the SF election, the crown jewel of city administration–all to Arntz’s credit–is in itself a huge accomplishment from a DEI perspective?

As a friend of mine wryly commented yesterday: Every time a board or council in SF votes, a Trump voter gets his wings.

From Endurance to Strength… in Perimenopause… with Plants… with Positive Groundlessness

In the last few weeks I’ve been making big changes to my nutrition and fitness routine, which call for some careful reflection. The whole thing started when a colleague–a badass athlete in her own right–lent me her copy of Stacy Sims’ new. book Next Level, the first (as far as I know) book about perimenopausal and menopausal athlete. Just a few days later, I attended an open water swim camp in Hawaii, where my wonderful and knowledgeable coach, Celeste St. Pierre, recommended the same book, and impressed upon me the vital importance of Lifting Heavy Shit.

Up to this point, my athletic endeavors were almost squarely in the endurance world. I swam long (and slow) in open waters, transitioning then to multisport to protect myself from injury. In the heyday of my marathon swimming days, I did no cross training whatsoever – only swimming. Later, I added on calisthenics, in the form of fusion classes (which I took and taught) and antigravity fitness (using silky hammocks.) I’m not quite sure whether I was fully aware of the importance of doing all these things at the same time, and I’m also pretty sure I wasn’t told to increase the resistance and challenge or to eat more. Generally speaking, and relatedly, my weight has been almost entirely the product of my diet: when I eat more and poorly, I gain weight; when, with great control and care, I eat less and well, I lose weight. Going in the former direction is easier than the latter.

For many important biological reasons that Sims explains in a lucid, straightforward way in her book, the wellbeing and athletic priority during perimenopause and beyond should be building lean muscle and bone. For many of us, this means changing our body composition, which is not an easy thing to do and not one that can be accomplished merely with dietary changes. The building block for muscle is protein, which has to be consumed in adequate amounts, and the muscles must be used in a progressively challenging fashion for them to grow stronger.

I read the book cover to cover and then, through the recommendation of another wonderful athletic colleague, was introduced to lifter Casey Johnston and her excellent couch-to-barbell program. Two weeks ago, for the first time, I mounted plates on my barbell, and am quite fascinating with this transformation, though I still have many questions and uncertainties. Here is some of what has been happening:

  1. I am lifting three times a week – twice at the school gym with my colleague, once or twice at home. This has required a certain change to my routine. I lift on Sunday, Tuesday, and Thursday; I now swim on Wednesday, Friday, and Saturday. I also kept up my pilates on Saturday and my boot camp (which includes lifting) on Sunday. On lifting days I also do a short plyometric set (quick, HIIT-type jumping). Monday is somewhat of a lighter day, though I do ride the cargo e-bike, as I do every weekday, to drop my son off at school. That means shorter but more intense workouts, which is what Sims recommends. It does feel weird, as someone used to endurance workouts, that there’s none of the prolonged suffering that we marathoning people tend to glorify. Hilariously, I am finding the mantra “I can take anything for twenty seconds” useful for both HIIT and lifting.
  2. I am already experiencing improvement in my strength. Last week I flew to Atlanta for a conference (ASC was very good this year, and I’ve already posted about some of what I learned–on court fees and on extradition) with a big, heavy backpack containing everything I needed for four days. When I got to my airplane seat, I lifted my bag into the overhead compartment–and was immediately struck by a big difference. Reader, it was child’s play. Not that it wasn’t heavy; I was stronger, noticeably so, and it was very gratifying. Same story with groceries. My partner was astonished yesterday when I came back from the co-op with a gigantic box of produce, oat milk cartons, and the like, and carried it myself as if it was nothing despite its weird shape. All of this is very good news and provides ample motivation to keep going.
  3. The progress arc at the beginning is very satisfying. Every time I lift I think to myself, there’s no way in hell I’ll be able to lift five pounds more in two days. And then the next workout arrives, and to my astonishment, I can! I’m sure this fast progress will slow down as I progress, but for now, this linear improvement (2.5-lb increments for upper body, 5-lb increments for lower body) is providing a huge motivation boost. This is a good thing. Throughout my life, I’ve often see-sawed between two good sensations: growth (picking up a sport or a skill I know nothing about and getting through the uncomfortable months/years that it takes to become “good enough” to enjoy it) and relishing skill (making small improvements in a sport I’m already quite proficient at.) Sometimes it feels like I need to stay in my comfort zone (as with, say, swimming or flute.) Sometimes I pick up something new (such as tai chi or the handpan.) Now is a time for the latter, and I feel excitement building for when I get “good enough” to know what I’m doing.
  4. I’ve also introduced some changes to my swimming. At the open water swim camp, Celeste taught us to activate our muscles through dryland practice before getting into the water. I’m finding this highly effective, and I’ve made one more adjustment–my sets are shorter and sprintier now. I cover fewer yards overall, but the intensity of the practice has increased, which is exhilarating. I’m also hitting some surprising times with my 50s and 100s – times I hadn’t seen in the pool since I was training for Tampa Bay in 2012. At 48, this is gratifying and makes me feel like I’m doing the right thing.
  5. I’m still not 100% sure what I’m doing, nutrition-wise, despite having gotten excellent advice. Sims’ book, the coaching figures in my life, and my awesome new acquaintance, vegan fitness coach Karina Inkster, have all emphasized two principles: I have to eat a lot more than I’ve been eating, and I have to prioritize protein. These things go hand in hand, because it is a pretty impossible job to double one’s protein intake (especially on a vegan diet) and keep the caloric situation low. Sims discusses the common problem of low energy availability, or LEA, and stresses how crucial it is to fuel properly before, during, and after workouts. We vegans love to scoff at ignorant meat eaters who ask us “where do you get your protein?” and, indeed, one can get a lot of protein on a plant-based diet, but it does require more planning, as the things one should eat (good, plant based food with fiber and phytonutrients) don’t tend to come in easy protein-rich packages. On Karina’s website, one can find lots of excellent resources for protein and other nutrition strategies for vegan athletes. She even has a handy vegan protein calculator, which instructed me to eat twice as much protein as I had been eating. This means I’m chasing protein throughout the day (tofu scramble; adding vegan protein powder to green smoothies; adding hemp, flax, and chia to my morning oatmeal) and all the other calories sort of work themselves out.
  6. I’m also not sure what’s happening with my body size-wise. Despite eating almost twice what I ate during the Big Weight Loss and Health Restoring Project, and despite putting on about 12 lbs or so, my size doesn’t feel significantly different. My measurements are almost the same. The scale is unhelpful, as its body composition readings are inconsistent and bizarre. Parts of me feel more muscular, other parts softer, and, in general, I feel more like a work in progress than like the chiseled ancient Greek statue my mind imprinted on as the picture of health and strength. I can’t argue with the functional improvement, but there is definitely a part of me that is terrified of regaining all the weight I lost through so much effort–if only because I have wonderful clothes and would like to continue wearing them. This is a really interesting and juicy place to explore in meditation–attachment to body, attachment to clothes, the possibility that I purchased my current wardrobe as a protective talisman against weight gain, lots of new things to learn about myself and my relationship to my body.
  7. Spiritually, the whole thing is weird, fun, and a bit discombobulating. One of my favorite teachers, Pema Chödrön, speaks of “positive groundlessness“: coming to a sense of tentative, floating peace with the idea that nothing is permanent and there is really nothing to hold on to:

The idea of letting go of fear and becoming comfortable with groundlessness has been a recurring theme for me in the last few weeks, pretty much since I participated in the Smithfield Trial and experienced the elation of its aftermath. Recently, Wayne Hsiung and I recorded our third podcast together, in which I espoused a theory about the judge’s closed fist where it came to affirmative defenses and evidence in the trial. I’m increasingly convinced that what drives these aggressive judicial court-management maneuvers is the fear that the trial will evolve and bloat into some landmark political moment beyond the judge’s ability to handle. Fear of uncertainty, of having nothing to hold on to, no buffer or protection, drives a lot of behavior, including very bad behavior. This includes my own fear: during the trial, as Wayne and I discuss in the podcast, I was sure that taking a mistrial was the right choice for him, but he decided to take the chance and see what the jury would decide. Happily, he was proven right. It was a moment that taught me that Wayne has more guts than me, and that I need to develop my relationship with positive groundlessness.

In his book Becoming a Man, one of my favorite authors, Paul Monette, wrote: “When you finally come out, there’s a pain that stops, and you know it will never hurt like that again, no matter how much you lose or how bad you die.” I think this is true for virtually anything worth being brave about: animal rights, helping incarcerated people, fighting against an unjust regime, resisting orthodoxies (from the right and from the left), and changing something as solid and fundamental as one’s relationship with one’s body. Let’s just say this lifting journey is a wonderful opportunity to explore my own bravery in picking up something new, and it’s a spiritual journey as well.

Extradition, Extreme Punishment, and American Exceptionalism

While at the American Society of Criminology conference, I had the good luck to run into a colleague I really like and admire–Dirk Van Zyl Smit from the University of Nottingham. Dirk shared with me two recent decisions of the European Court of Human Rights (ECHR), in cases that he worked on (the ECHR allows professors to submit written briefs as “intervenors”, akin to what we do with amicus briefs here in the US), which illuminate the strange contortions that European countries go through in an effort to determine just how much they are willing to passively cooperate with USian punitive barbarism.

A little bit of background: Article 3 of the European Convention on Human Rights states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In 1985, Protocol 6 to the Convention, which abolished the death penalty for all members, entered into effect. In accordance with the Protocol and with Article 3, all European Council members have abolished the death penalty (Belarus is not and has never been a member; Russia was recently expelled.) Moreover, the Council of Europe fights the death penalty within and outside its borders in numerous ways, including the well-documented refusal of its members to provide the U.S. with chemicals used in American execution protocols. One important aspect of this abolition-beyond-borders policy is a European Court of Human Rights case from decades ago, Soering v. United Kingdom (1989), which forbids extradition of people to the U.S. if they might face the death penalty there (virtually all European countries have extradition treaties with the US, as you can see in the above map.) Dirk tells me that the practice in these cases is to ask the U.S. to provide a guarantee that the death penalty will not be sought against the extradited person.

But what about life without parole, another form of USian extreme punishment? In Vinter and Others (2013) the ECHR found that “irreducible” life sentences were inhumane; this was applied in Trabelsi v. Belgium (2014) to the extradition setting. But later, in Harkins v. Home Secretary (2014), England’s High Court of Justice narrowly interpreted Trabelsi as applying only to life sentences that were grossly disproportionate or completely lacking in any mitigation mechanisms (such as commutation or parole.) Harkins and other cases (Wellington and Haffiz) treated Trabelsi as somewhat of an extreme aberration.

The Council of Europe’s hesitation to wage a war against LWOP makes more sense when you consider the LWOP situation in the European countries themselves, who also seem to interpret Trabelsi rather narrowly. Only Croatia, Bosnia and Herzgovina, and Portugal have abolished all forms of indefinite imprisonment. So did Spain, in 1928, but it brought the penalty back in 2015. By contrast, many countries have legally prescribed LWOP sentences: England and Wales, the Netherlands, Moldova, Bulgaria, Italy, Hungary, Malta, Cyprus, Albania, Ukraine, Serbia, and the Republic of Ireland. In some of these countries, evidentiary findings of dangerousness can prevent life prisoners to be released. In Austria and in Ukraine, the only way out of life imprisonment is presidential clemency or a finding that the person will not commit further crimes. As a consequence of Trabelsi, the Netherlands has recently allowed resentencing of life prisoners who have served at least 25 years. Even in LWOP-retentionist European countries, courts retain judicial discretion to decide whether a sentence of life should include parole or not.

One of the two recent cases before the ECHR involved Ismail Sanchez-Sanchez, who was arrested in the UK for his role in a conspiracy to ship more than 2600 kgs of Mexican marijuana to Atlanta, GA. At his extradition hearing, Sanchez-Sanchez argued that there was “a real risk that he would be sentenced to life imprisonment without parole.” The British judge, following the logic of Harkins, tried to assess the likelihood that Sanchez-Sanchez would receive LWOP at his federal trial. For the drug conspiracy alone, Sanchez-Sanchez was unlikely to receive a life sentence on any count, and it was even less likely that he would be serving his sentences consecutively. The fact that one of his co-conspirators died of a fentanyl overdose made it more likely that they prosecution would request a life sentence; such a sentence, however, would not be “irreducible”, as Sanchez Sanchez could appeal, apply for executive clemency, and/or request compassionate release.

The ECHR looked at the case through the lens of both Trabelsi and the British cases, and also received some information from the U.S. federal government that addressed both the prevalence of LWOP in the federal system and the particulars of Sanchez-Sanchez’s case. As to the latter, the U.S. Attorney specified that the prosecution recommended a life sentence for each of Sanchez-Sanchez’s conspirators, but they pled guilty and so avoided that sentence. The ECHR highlights the distinction between acknowledging that LWOP is inhumane as an institution within member countries and applying it to extradition to the US:

Within the domestic context, the applicant’s legal position, having already been convicted and sentenced, is known. Moreover, the domestic system of review of the sentence is likewise known, both to the domestic authorities and the Court. In the extradition context, on the other hand, in a case such as the present where the applicant has not yet been convicted, a complex risk assessment is called for, a tentative prognosis that will inevitably be characterised by a very different level of uncertainty when compared to the domestic context. This calls – as a matter of principle, but also out of practical concerns – for caution in applying the principles flowing from Vinter and Others, which were intended to apply within the domestic context, to their fullest extent in the extradition context. . .  Therefore, while the principles set out in Vinter and Others must be applied in domestic cases, an adapted approach is called for in the extradition context.

The first step in this “adapted approach”, according to the ECHR, is an inquiry into the “real risk” that the particular person facing extradition will receive LWOP after extradition. If so, we move on to the second step – an inquiry whether “there exists in the requesting state a mechanism of sentence review which allows the competent authorities there to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.” Because of the uncertainty surrounding Sanchez-Sanchez’s odds of LWOP, as well as the sentences of his co-conspirators, the ECHR concludes that “the applicant cannot be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold”, which renders the second step of the analysis unnecessary.

In the second case, Beverly Ann McCallum, suspected of involvement in the brutal murder of her husband in Michigan, was apprehended in Italy (the murder was a cold case from 2004, solved only in 2015.) During her years of absence from the U.S., her daughter and a friend were charged with first degree murder (the friend pled to second-degree murder; the daughter pled not guilty, was tried, and received LWOP.) The Italian court found that the extradition could go forward given the sentence mitigation options under Michigan law, and McCallum appealed. While awaiting the decision (under home arrest due to ill health), McCallum received a diplomatic note from the Eaton County district attorney, promising that if extradited she would only face second-degree murder charges (no conspiracy charges, only disinterment and mutilation of a dead body), taking LWOP off the table and resulting in a maximum sentence of life with parole. Under Michigan law, lifers are eligible for parole after 15 years, and may also petition the governor for clemency. The Italian authorities, animated by this communique, extradited McCallum to the United States.

Before the ECHR, McCallum argued that the diplomatic note contained insufficient assurances that the Eaton County DA would not revert to the serious charges (note: they did keep their promise despite the brutality of McCallum’s involvement in the murder – H.A.) The ECHR disagreed: Diplomatic notes, they wrote–

are a standard means for the requesting State to provide any assurances which the requested State considers necessary for its consent to extradition. … [T]he Court also recognised that, in international relations, Diplomatic Notes carry a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States. … [I]t seems to the Court that if, following her extradition, the original charges against the applicant were to be revived, that would not be compatible with the duty of good faith performance of treaty obligations.

The ECHR also proceeded to dismiss McCallum’s argument that her eventual release on parole depended on the unchecked discretion of the Governor of Michigan in granting clemency and was therefore “irreducible.” The Court again disagreed, highlighting the fact that the clemency power was procedural, rather than legislated, and had nothing to do with parole, which in Michigan is the sole purview of the parole board:

[T]he Court is not persuaded that the applicant’s understanding of the Michigan system is correct. It observes that. . . a prisoner’s release on parole is at the discretion of the parole board. While the Governor of Michigan indeed enjoys a broad power of executive clemency, he or she is not involved in the parole procedure. Nor do the relevant legal provisions empower the Governor to overrule the grant of parole to a prisoner. As indicated above, appeal against the grant of parole lies to the competent circuit court.

An applicant who alleges that their extradition would expose them to a risk of a sentence that would constitute inhuman or degrading punishment bears the burden of proving the reality of that risk. In light of all of the above-mentioned factors, the Court considers that the applicant has not discharged that burden. Contrary to her claim, it appears that there is no real risk of the applicant receiving an irreducible life sentence, i.e., life imprisonment without eligibility for parole, in the event of conviction of the charges now pending against her in Michigan.

I find two important takeaways here. The first is that the ECHR draws a real line between the death penalty–now widely outside of the acceptable margin of reasonable state behavior for Council of Europe members–and LWOP which, unless absolutely mandatory, remains within the realm of the reasonable. The second is that, among the members of the “extreme punishment trifecta”, life with parole–even with everything we know about the slim odds of obtaining parole–is not in the same league as LWOP, and assurances that the sentence will be the former fully satisfy the requirements of Article 3. What this teaches me is that American exceptionalism seems to have been relegated only to the world of the death penalty, and that Europe isn’t that far ahead of us in fully recognizing the possibility of LWOP as barbaric.

Fighting Ridiculous Court Fees – One Piece at a Time

I’m attending the Annual Meeting of the American Society of Criminology and finding many of the talks illuminating and refreshing. It could be that the overall quality of work has improved, or that I make better choices about which panels to attend. Either way, this morning I’m following a series of panels about improving indigent representation, and have just come out of a conversation with the folks who run the campaign to End Justice Fees.

Those who followed the report on Ferguson are not strangers to the problem, but the public at large is likely ignorant of the immense (to the tune of billions of dollars!) toll of court fees and warrants. Even to me–who thought nothing would surprise me after learning about pay-to-stay and the resulting lawsuits–some of the details were shocking. The campaign’s website offers a wealth of information on the different things people get charged for: electronic monitoring, probation (yes, you pay for the pleasure of being monitored!), and–much to my horror–legal defense. Remember Gideon v. Wainwright, the landmark Warren Court case that required states to fund the defense of the indigent? Well, it turns out that, in 42 states, free representation means free for those who pay the fees (three figure amounts that many defendants cannot afford.)

Just like I found out in Cheap on Crime about pay-to-stay schemes, the absurdity of padding the pockets of municipalities and counties by charging the poor, rather than the rich, is in plain evidence. The fees are rarely recouped, resulting in crushing debt that kills the spirit of countless families and does not make up for the deficits. Figuring out the expense of keeping this ridiculous system in place is difficult (I wish someone took this on! I would, but my plate is full), but even though the numbers are elusive, I don’t think it’s outlandish to assume that pursuing lawsuits against hundreds of thousands of people for not paying what, for them, is a lot of money, but for the system is pennies, is not an economically efficient scheme. That this is costly beyond the obvious is evident from yet another horrible data point: in the Alabama Appleseed survey of people with court debt, they found that 38% of respondents had to resort to actually committing a crime in order to be able to pay the court fees (which are sometimes imposed for mere infractions or traffic violations.)

The good folks from End Justice Fees have come to the conclusion that advocacy works better than litigation for eliminating these fees. Here are some of the ground that they’ve made in California, per their website:

  • CA AB 199 makes the balance of any court-imposed costs assessed prior to July 1, 2022 unenforceable and uncollectible and vacates any portion of a judgment imposing civil assessments charged by traffic courts
  • Eliminated 17 additional criminal administrative fees and vacated $534 million in outstanding debt (2021).
  • California’s Families Over Fees Act repealed 23 criminal administrative fees and vacated $16 billion in outstanding debt (2020)
  • California ended the assessment of new juvenile fees (2017) and discharged outstanding fees (2020)
  • Ordinance eliminated local criminal administrative fees imposed in San Francisco (2018)
  • San Francisco made all jail phone calls free for incarcerated people and ended commissary markups (2020)
  • San Diego eliminated fees for phone calls and video visits (2022)

I’m also happy to report that, per their presentation, we are among the minority of states that do not charge people for their own representation which, under Gideon, indigent folks should pay for free.

The crux of the problem, with litigation, is that Bearden v. Georgia, the case often used to argue against punishing the poor for being poor, requires an investigation of means before incarceration–but the practice in many places is to arrest people for the purpose of assessing their means, which is technically a violation of Bearden but municipalities and courts claim is the only practical way to get ahold of the person.

This strikes me as the sort of initiative that decent people of all political stripes can and should get behind. It should yield the sort of coalitions I covered in Cheap on Crime and bring about more justice on an everyday level without slogans. Want to “dismantle” “abolish” “repeal” “defund” stuff? Here’s a good place to start on the ground and deliver immediate relief to people struggling with financial craziness.

SB 731: Record Sealing and Second Chances

A couple of weeks ago, we passed SB 731, which is another round in a set of efforts to give people with criminal records a fighting chance in life, and in the job market in particular. This Vox article (one of their better “explainers”) comprehensively lays out what the bill will do:

If signed, SB 731 would significantly expand automatic sealing eligibility for people who served time in prison. And while people with violent, serious felony records would not be offered the automatic “clean slate,” they could, for the first time, petition to have their records sealed. Virtually all ex-offenders, except registered sex offenders, would now be eligible for relief.

Under SB 731, while landlords and most employers would not be able to view expunged records, public and private schools would still be able to review them during job background checks. Law enforcement, courts, and the state justice department would also still have access to the sealed records, and individuals would be required to disclose their criminal history if asked about it when applying to serve in a public office, among other exceptions. And the law would not apply to sex offenders.

If signed into law, record relief would become available for most defendants convicted of a felony on or after January 1, 2005, if they had completed their sentence and any remaining parole and probation, and had not been convicted of a new felony offense for four years. Advocates originally wanted records sealed after two years, but that version failed to clear the state assembly a year ago.

Rachel Cohen, “California could give more than a million people with criminal records a fresh start,” Vox, Sep. 9, 2022

If you’re unfamiliar with background checks, you’d be stunned by the sheer number of occupations and life transitions that require clean criminal records. It’s pervasive and it has a deeply unsavory racial aspect. David McElhattan of Purdue University found out that, between 1983 and 2013, the number of institutional thresholds where background checks frighteningly mushroomed, and not only that: The rate at which state institutions adopted background checks increased as African-Americans represented larger shares of state criminal record populations. McElhattan also found considerable support for racial economic threat and, to a lesser extent, ethnic economic threat–and only a weak association between background checks and violent crime.

A few years ago, I was part of a statewide effort to give people with criminal records the ability to at least get through the first stage of employment screening, which resulted in the Ban the Box initiative. Not only did we believe this would lead to less discrimination against people with criminal records, but we thought it would minimize employers’ use of criminal records as a proxy for race. I wrote about this experience here, and especially about its aftermath: to my deep disappointment, my colleagues Jennifer Doleac and Benjamin Hansen found out that employers, unable to discriminate against people based on their criminal record, went back to… discriminating by race as a proxy for criminal records. I concluded that race in America has a protean quality that makes discrimination pop up somehow, no matter what we try to do to undo it. This led me to the bitter observation that any effort to curb overt racism (such as in Foster v. Chatman) seems to just drive the racism underground. What prosecutors once did by scribbling notes at the margins of their work product, they probably now do via snapchat.

This doesn’t mean we have to stop trying, and I’m glad we’ll have a chance to see whether SB 731 works as planned. But my problem with the incompleteness of this bill goes deeper than that: like pretty much everything else I’ve been paying close attention to in the last few years, the people left outside this bill are precisely the people who would benefit the most from it, and the surest bets on clean slate proposals. I refer to people released from prison after serving very long stretches of time for, well, violent crime.

As I explained in Yesterday’s Monsters, and as we further explain in FESTER, any time leniency or mercy comes up, politicians and the public are conditioned to create an exception for “violent offenders”, which we imperfectly define as people convicted for violent crimes. For the many reasons that my colleague David Sklansky explains in his new book, it is not always clear what counts as a “violent crime”–and for the reasons my colleague Susan Turner has repeatedly explained, there isn’t really much of an overlap between the crime of conviction and the risk the person actually poses.

There is an excellent reason for this, which I’ve come to refer to as “the age-violence knot”: people who are convicted of violent crimes are sentenced to long stretches–sometimes decades–in prison. Because of that, when they come out, sometimes after numerous hearings, they are much older–and are now an important demographic in California (a quarter of our prison population is over 50.) Tomorrow is my 48th birthday, and I have increased appreciation of the way age changes mentality–and I, of course, benefit from freedom, loving people, resources, an excellent education, a comfortable job, a lot of sports, and healthy nutrition. Imagine what 20-30 brutal years in these areas do to a person’s body and soul. We know people tend to age out of violent street crime in their late 20s; they become far less risky and far more expensive (healthcare-wise) the more they are incarcerated. My fieldwork for Yesterday’s Monsters included visiting places in which parole agents spoke with a lot of respect and care about these aging folks, many of them lifers, as mature, nonviolent, mentoring influences both in the yard and on the outside. These are precisely the people that are already going to face a ton of discrimination in the job market because they’d be fighting for jobs against much younger candidates, and with a complicated résumé to explain. The advantages of giving these folks a leg up are manifold, and the only reason we don’t do it is the murky political optics of “forgiving violent people.” As long as we exclude this group, we’ll continue to miss out on getting the most bang out of the reentry buck, and it’s beginning to feel like I will have to sing this refrain for many more years of my career.