Mendelssohn Reimagined: The Yom Kippur Conflict

The fierce conflict that erupted in Tel Aviv’s Dizengoff Square on Yom Kippur showed how a classic political philosophy problem can come to blows. Religious organization Rosh Yehudi asked the city–seen as the bastion of civil rights and secular progress–for permission to hold an outdoors prayer with segregation between men and women. Municipal authorities refused: Tel Aviv does not hold segregated public events, a creeping problem in many municipalities in Israel. Rosh Yehudi leaders appealed the decision to the Tel Aviv District Court and were rebuffed, and nevertheless mysteriously announced that they have found a way to hold the prayer in a way that “upholds both halakhah and the law.” At the event, this way was unveiled: they did bring screens and dividers, and some of them were armed.

Secular people, angry at Rosh Yehudi’s flouting of the city and court mandates, interrupted the prayer loudly with noise and protest and removed the barriers. For religious people, this was a difficult sight to bear, as Yom Kippur is one of the only bastions of public religiosity that used to be tolerated and protected by the secular majority. Here is footage of the incident:

Video by The Holy Land, by Zahi Shaked

For more on this, you can listen to this interesting podcast, or read the opposing views of Daniela Gan Lerer and Meital Pinto. The incident also splintered the protest movement, as some thought the provocation would be counterproductive while others expressed the awakening of the secular public from decades of religious coercion.

To me, the incident underscored how much the serious issues that philosopher Moshe Mendelssohn raised in his book Jerusalem are still vividly present–and how they arise in Israel in much the same way that they arose in Germany in the late 18th century. Mendelssohn, a bright light of Western philosophy, in conversation with other Enlightenment greats like Lessing, Dohm, and Kant–whom he beat at an essay competition!–lived a life of deep contradiction (read all about his life in Leora Batnitzky’s book How Judaism Became a Religion.) He was an observant Jew who was at the same time versed in fresh Western philosophy; he wrote commentary on the Torah (which would later be banned by ultra-orthodox authorities) as well as hobnobbed with Berlin’s intelligentsia–even as he had to enter the city, where his own living situation was precarious due to his Jewishness, through the animal gate; he presented Judaism, to non-Jews, as a religion of reason, superior to Christianity in terms of its compatibility with science and reason, lauded ideals of the Enlightenment era, while at the same time explaining the importance of the embodied rituals that made Jews seem so alien to, and othered in, their European surroundings.

The advent of the modern state and the earnest focus on equality and civil rights (along with all the glaring blind spots that it had) brought to the forefront what came to be known as “the Jewish Question”: up until then, as my beloved dad described in his wonderful short story collection, Jewish communities lived amongst themselves, not really mixing up much with the general population, not regarded as full citizens, steeling themselves against pogroms and general hostility from the surrounding community, and pretty much self-governed by their own rabbis and authorities. But with new winds of civil rights and citizenship blowing in European countries, mostly in Germany, some thinkers figured that better integration and civil rights should be granted to Jews. For some thinkers, offering citizenship to Jews was important for the improvement of the Jews themselves, who were deemed backward and reviled based on their dress and customs (as well as their financial occupations); but for Mendelssohn, offering citizenship to Jews was important because Judaism should be regarded as a religion–the person’s private business, between them and their religious community–rather than a membership card in a political entity. In other words, one can be Jewish in their own home, following the customs and halakhic directives, and a full-fledged German or French citizen in the public sphere. The difference between religion and state, posited Mendelssohn, was the source of its power:

The state dictates and coerces; religion teaches and persuades. The state enacts laws; religion gives commandments. The state is armed with physical force and makes use of it if need be; the force of religion is love and benevolence.

This was directed especially as a critique of the practice of religious excommunication: Mendelssohn did not want to accord to religious leadership the statelike power of obliterating a person from their membership lists based on their inner faith or beliefs.

What’s remarkable about Mendelssohn’s writings, and his massive influence on the haskalah movement, is that they centered around the question of Jewish citizenship in European countries. The notion that Jews might at some point be citizens in their own nation-state did not come into the conversation. Just a few decades later, when the Hamburg temple would reform its liturgy, one of its main innovations would be prayer in German rather than in Hebrew, under the assumption that Hebrew was a dead language, irrelevant to the lives of the German-speaking congregation. The idea that, one day, Jewish people would congregate in a public place and pray in Hebrew was unimaginable.

The kicker is this: As my late, beloved colleague Gad Barzilai famously wrote in his book Communities and Law, most of the writings on multiculturalism–in many ways, a continuation of the Enlightenment-era debate–are the work of political philosophers examining the adaptation of ethnic and religious groups to largely Western societies in the United States, Canada, and Europe (Waldron, Nozick, Kymlicka, Parekh). Very little of this has engaged with non-Western societies, and particularly with Middle Eastern societies. Which brings us back to the peculiarities and endemic characteristics of the Yom Kippur conflict. One of the main admonitions of the protesters in the public debate about this was that the prayer gathering was deliberately (and provocatively) planned to take place not only in open, public place, but at a bastion of secularity. “If they want to pray with gender segregation,” goes the argument, “they are more than welcome to do so–in their own orthodox synagogues.” This argument, for me, echoes a Mendelssohnian concept of Israel as a European nation-state: the power of the state is secular and secularizing, and religion should be kept as the person’s private business, conducted in their private sphere, and certainly not endorsed by the state apparatus.

Contrast this to the position held by the organizers of the prayer gathering. Their position implies that Israel, unlike the Mendelssohnian state, boasts a unique religion-state nexus through its declaration of independence as a “Jewish and democratic country”, and has a special, privileged position for the Jewish faith that must be respected in the public sphere. The battles along this lines are many and varied, and only recently included the big blow-up over keeping Passover kashrut laws within public hospitals.

It may well be that “Jewish and democratic” are not harmonizable ideas, and that this conflict, along with its other manifestations, has brought to a head the fact that multicultural theories can produce neat analyses (and clearly defined disagreements) only in the situation that Mendelssohn and his intellectual progeny could envision: a seemingly secular state contrasted with religious subgroups. But even this is a bit farcical. The extent to which German society, presumably sterilized from religious contamination, was truly that–with Judaism having the same relationship with it as, say, Christianity–is highly dubious, and we know that many philosophers of the era (even Kant!) explicitly discussed religious elements in their state theories. Could it be that the relationship of religious Jews with their Jewish-and-democratic state is, in some way, analogous not to the relationship of Jews with 18th century Germany, but rather to the sublimated, seemingly invisible relationship of Christians and Christianity with 18th century Germany? If so, what this conflict does is bring to the forefront a sticky problem that permeated not Mendelssohn’s thinking, but the thinking of his contemporaries, who mistook hegemony for secularity and habitus for neutrality.

Good Guys with Guns?

A week ago I was asked to comment on an announcement by the Governor of New Mexico who, reacting to a terrifying rise in gun violence in Albuquerque, issued an executive order that would suspend both open and concealed carry laws in Albuquerque and Bernalillo County, temporarily banning the carrying of guns on public property with certain exceptions. Following quite a bit of backlash from both parties, the Governor then limited the ban to parks and playgrounds.

Because this is not my area of expertise/publication, I quickly consulted with my colleague Prof. Jennifer Carlson, who is one of the nation’s most impressive experts on gun policy. Jennifer agreed with me that, even though the Governor’s action makes sense from both moral and practical stand point, it is not constitutionally defensible, certainly not in this judicial climate, after the Supreme Court’s recent decision in Bruen. Still, it’s worth asking ourselves the question whether, even if the constitution allows us to bear arms, it is a good idea to go ahead and do it.

Recently, the Bureau of Alcohol, Tobacco, Firearms and Explosives released a report on guns, which you can read here in its entirety. This NPR story provides some important takeaways which, in my opinion, all boil down to the same conclusion: anyone thinking that the world of gun ownership can be easily dichotomized into good guys/bad guys or legal/illegal guns is not seeing the full picture.

For one thing, it turns out that more than half of gun crimes utilize lawfully purchased guns. To this number, we must add a million stolen guns which were held in legal hands until recently. Notably, the vast majority of guns used for criminal activity are pistols, which a lot of people favor for legal personal use. I think the big question anyone considering a gun purchase should ask themselves is: are the chances that you’ll be using this gun to stop the proverbial bad guy anywhere near the chances of an accident in your household or your gun being stolen?

On a personal note, as many readers know, I was in the Israeli army for five years, engaging in no combat whatsoever (unless criminal appellate litigation counts, but it does not require guns.) For much, albeit not all, of that period, I walked everywhere with my M-16 strapped to my body, including to the bathroom. The idea of lugging around a thing that presented far more inconvenience and risk than comfort and safety holds no charm or mystique for me, and I suspect that, if the symbolic/emotional attachment to the idea of gun ownership is effectively stripped away, a lot more people will see the risk calculus as I do–because it is in congruence with the data.

FESTER Blurb from UCI’s Keramet Reiter

Another great endorsement for FESTER comes from Prof. Keramet Reiter of UC Irvine, one of the nation’s most respected and productive scholars of extreme punishment and incarceration and the author of 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement. Keramet is the director of UCI LIFTED, a phenomenal higher education program granting incarcerated people access to, and degrees from, UC Irvine, and also spearheaded the Prison Pandemic project, which collected first-hand accounts of COVID-19 in prisons and was one of our best primary sources.

Here is Keramet’s endorsement for FESTER:

Aviram, with Goerzen, has produced another tour de force unpacking a new legitimation crisis in California’s punishment infrastructure. Marshalling evidence from litigation, first-person narratives, administrative data compilations, and their own advocacy work, Aviram and Goerzen meticulously analyze how COVID-19 outbreaks in California prisons and jails cruelly terrorized incarcerated people and also exacerbated health risks in the surrounding communities. Impressively, the book reads like a true crime thriller – about the horrors wrought not by the people inside prisons but by the people running and overseeing those prisons. Poignant details of everyday life in prisons in crisis make vivid the book’s pointed policy critiques: information gaps about criminal legal system practices, in combination with dangerously inaccurate assumptions about the impermeability of prisons and jails, produce dangerous incarceration conditions. And dangerous incarceration conditions put us all at risk.

FESTER Blurb from the Chronicle’s Jason Fagone

I’m very pleased to share the first book blurb for FESTER, from star journalist and author Jason Fagone. As a reminder, Jason was part of the San Francisco Chronicle team that broke the story of the San Quentin outbreak. He is also the author of a terrific nonfiction book, The Woman Who Smashed Codes: A True Story of Love, Spies, and the Unlikely Heroine Who Outwitted America’s Enemies.

Here is what Jason has to say about FESTER:

Myths can kill, and FESTER dissects a vicious one: the idea that prisons are worlds apart, isolated from their surrounding communities. With passion, rigor, and a flair for storytelling, Aviram and Goerzen show how California’s fealty to this myth placed whole cities at risk during the coronavirus pandemic, transforming the state’s overcrowded prisons into virus bombs that exploded outward. An indictment of a failed system and the politicians and judges who prop it up, this stunning book is also a call to action, laying out reforms that could save lives the next time a deadly virus proves that we’re all connected.

Changing the Burden of Proof for Judicial Review of Parole Denials

This week, SB 81, having been approved by the Senate, will land on Governor Newsom’s desk. The bill addresses judicial review of the parole board’s decision to deny parole. The latest edition of the bill, if passed, will add the following language as Section 3041.8 to the California Penal Code:

(a) Upon the denial of parole to a parole candidate, following a parole consideration hearing, the Board of Parole Hearings shall notify the parole candidate of their right, after completion of all applicable review periods, to petition a court for a writ of habeas corpus.

(b) The parole candidate may request that the court appoint counsel for the purpose of preparing the petition. The court may appoint counsel upon this request.

(c) A parole candidate who has been denied parole after reaching their minimum eligible parole date as described in Section 3041, their youth parole eligible date as defined in Section 3051, or their elderly parole eligible date as defined in Section 3055 has made a prima facie case for relief and the reviewing court may not summarily deny a petition for writ of habeas corpus filed pursuant to this section.

(d) The court shall uphold a decision to deny parole only if the court finds, by a preponderance of the evidence, that the person presents a current, unreasonable risk of danger to others. If the court finds the parole denial was not supported by a preponderance of the evidence, the court may issue an order for a new parole hearing, with or without limitations as to what evidence the Board of Parole Hearings may consider.

The most notable aspect of this proposal is that it sets an evidentiary standard for the court’s decision. While the reasons for the parole denial will remain vague (“insight,” “nexus,” etc.), at least the evidentiary side of things will be better grounded.

This is not just semantic or technical. Recall how Gov. Newsom vetoed Leslie Van Houten’s parole, arguing that she was still a risk to public safety? And how the Court of Appeal called his bluff? Here’s what they said: “The Governor’s concern that there is more than meets the eye is, on this record, speculation, but the Governor’s ‘decisions must be supported by some evidence, not merely by a hunch or intuition.'” The latter part is language from In re Lawrence. It will be good to have all this grounded in actual probability and common sense, not just in the gut feelings of people whose default is to be overly cautious about release.

DO SOMETHING! If this seems like a good idea to you, call the Governor’s Office at (916) 445-2841 and express your support for more robust and well-framed judicial overview of parole boards.

Happy New Jewish Year to all. May we all become מתירי אסורים – unchaining those suffering in bondage – this year and always.

Canteen vs. Chow Hall: Let’s Have Enough Love in Our Hearts for Two Wars

After much consternation and many compromises, AB 474 cleared the Appropriations Committee last week and is headed for a floor vote at the California Assembly. The bill regulates the markups at prison canteens, setting prices at a level that “will render each canteen self-supporting,” which effectively means a reduction in canteen markup rates from 65% to 35% for the next 4 years (until 2028). On January 1st 2028, CDCR may ratchet up the markup rate to make canteens “self-supporting.”

As someone interested in both prisons and food, I’ve organized events that classified correctional institutions as food deserts, and rightly so: the cuisine is horrendous. When I visited a Brazilian maximum-security prison a few years ago, I marveled at the organic vegetable garden that surrounded the facility and enriched the decent and nutritious meals served there. The battle to lower canteen prices reminded me of those experiences and raises the question: would we be so worried and upset about canteen markups if the regular meals were decent?

I think the answer is: it’s all about balance. A few years ago, I attended a panel about food and law, in which one of the speakers, a law professor and farmer, expounded on the need to bring native foods back to the communities, claim ownership of native crops, etc. etc. I raised the question of prison canteens, and the fact that some of the most oppressed people on the planet just want some comfort and simple pleasure from their food and might not be aggressively lobbying for heirloom beans. The guy almost chopped my head off and was incredibly rude and dismissive. By pure coincidence, linguist Janet Ainsworth was in the audience, conducting fieldwork on gender norms in academic settings, and wrote up the following (M was the anti-colonial radical-farmer-cum-academic guy, I was the F Qer who was thrice interrupted):

During their panel presentations, three of the four panelists invoked critical ideological positions as underpinning their presentations—both men and one woman. Specifically, one of the two F speakers referenced Critical Race Theory in her presentation, one M panelist referenced critical theory (unspecified), anti-racism, anti-subordination, anti-capitalism, anti-colonialism, and anti-neo-liberalism in his presentation; the other M referenced critical race theory, anti-capitalism, anti-racism, white privilege, and anti-colonialism in his presentation. Conspicuous by its near absence was feminist theory; it was referenced by one of the F speakers once in a response to a Qer. In immediate response one of the M panelists interrupted and responded critically to her suggestion that feminism had a progressive role to play in the topic; she immediately took an apologetic turn, beginning “Yes, yes, I didn’t mean to say…”

This session was marked by interruptions and negative assessments by the male panelists of the speaking turns of the F Qers. One M panelist interrupted F Qers on two occasions, the other M panelist interrupted F Qer speaking turns on six occasions. This more aggressive M panelist began one of his response turns with “I disagree with everything you said,” his response turn took 3 minutes and 52 seconds. (My qualitative assessment of that turn was that it was only very tangentially related to the point that the initial Qer had made.) The same F. Q’er began a follow-up turn, and after eight seconds, the same M. panelist interrupted again, beginning his turn with “No, what you must understand is…” His turn continued for 6 minutes and four seconds. The same F Q’er tried again to take a speaking turn; this time he interrupted her after four seconds. Two of the F. panelists at this point called him by name twice, in what appeared to be an attempt to open a space to speak for the F Q’er. He ignored both F. panelists and took another two minute and 18 second speaking turn. This M panelist interrupted the speaking turn of an additional F Qer later in the session, and he also interrupted the speaking turn of one of the F panelists in her response to a Qer.

Janet astutely remarked about this exchange:

One striking observation is that the male panelists who in their presentations most explicitly and frequently remarked upon their commitment to left-wing and critical theory stood out in the nature of their interactions with female questioners and co-presenters. They interrupted women, negatively assessed female contributions, and seemed unwilling to engage with them, instead taking long speaking turns that were irrelevant to the points earlier made by women speakers. This sample is far too small to suggest that male academics whose presentations prominently reference their commitments to left-wing political theory are more likely to discursively bully women academics. . . However, it does suggest that merely having an academic understanding of power, privilege, and hegemony is not sufficient to counter the tendencies of some male academics to utilize their discursive privileges to silence and discipline women in the academy even today.

But I digress (thanks for indulging me in this little exorcism; who hasn’t interacted with a chauvinist brute at a conference from time to time?) The point is that we must cultivate enough love in our hearts to fight two simultaneous wars. The short-term fix for the prison nutrition crisis is reasonable pricing at the canteen, because people must have access to something comforting and not torturous to eat. The long-term fix must acknowledge that even a 35% markup is an exploitation; canteen foods are goods that currently have no viable alternative. Incarcerated people can’t choose not to eat them, because the default option is inedible. Consequently, for people who want to eat what their palates recognize as food–100% of the prison population–the canteen has a monopoly, and the markup cannot be avoided. If canteens want to make a profit, improving prison food is the way to go; high pricing for luxury items is fair only if they are truly luxury items, not essentials.

The problem of short-term versus long-term goals is a mainstay in social justice struggles. I see it again and again. During COVID-19, as we describe in Chapter 4 of FESTER, activists had to tackle the trade-off between the short-term struggle to make vaccines accessible and increase vaccine acceptance (short-term life-saving measure) and the long-term struggle to save lives from pandemics and other diseases through population reductions (the only viable long-term solution to the prison disease problem.) The challenge was that the vaccines provided courts and politicians respite from the pressing questions of overcrowding, and were universally used as an excuse not to release nearly enough people.

Similarly, I would like to believe that we all want to eradicate rape culture, and that we all know that is a long-term struggle and a worthy one. At the same time, I would really love it if nobody got raped tonight (a short-term struggle.) For that reason, I advocate sensible behavior and caution: self defense classes, a buddy system, and a lot of judgment and circumspection around any situation involving alcohol. Long-term activists might bristle against this advice because it places the responsibility for rape prevention on the putative victims. This, I’m sorry to say, is nonsense; if you are assaulted it is not your fault! it is the fault of your assailant. And at the same time, we do not live in a world devoid of bad people, and if you get drunk or put yourself in vulnerable positions you are taking a risk that bad people will exploit the situation and do bad things to you.

Want another one? When we voted on death penalty abolition, activists argued it would only entrench life without parole, which was “the other death penalty.” Getting rid of the death penalty was a short-term struggle; getting rid of extreme incarceration, including life without parole, would be a long-term struggle. In response, I wrote this:

Unfortunately, the struggle against life without parole cannot begin until we win the struggle against the death penalty, which is within reach. This is, unfortunately, how political reform works: incrementally, with bipartisan support, and supported by a coalition. As I explain in Cheap on Crime, incrementalism produced the considerable reforms that occurred since 2008, and this one will be no exception.

The prison food struggle exhibits the same characteristics, and I think this requires a dialectic approach. I fully support the fight to reduce markups today, and at the same time I support continuing to fight for a world in which the food one is supposedly getting for free somewhat dulls the necessity for markup reductions. The problem, as we see with prison disease prevention and with rape prevention, is that sometimes short-term and long-term struggles can get in each other’s way. In those situations, I recommend thinking about the viability of the long-term goal and operating accordingly.

Searching Cars with Dogs and the Big (?) Trespass Comeback (?): Idaho v. Dorff

As I was preparing to teach the first Fourth Amendment class, I got an email from our appellate advocacy team: would I be willing to be on a panel about Idaho v. Dorff, an Idaho Supreme Court case that has been granted cert by SCOTUS recently? I read the whole decision – you can do the same here at this link – and honestly, I’m not sure how much of a big deal this is. Here’s the back story:

On a night in August 2019, a patrol officer from the Mountain Home Police Department initiated a traffic stop on a vehicle. The patrol officer reported witnessing the driver “make an improper turn,” “cross three lanes of traffic and then fail to use [his] turn signal.” Two men were in the vehicle: Kirby Dorff, the driver, and Mitchell Hall, a passenger. After the patrol officer stopped the vehicle in a grocery store parking lot, Dorff told the officer that he did not have a valid driver’s license or proof of insurance in the vehicle. During the time the patrol officer was speaking with Dorff and Hall, a K-9 officer arrived on scene with his drug dog, Nero.

The K-9 officer circled Dorff’s vehicle twice with Nero. Nero never entered the interior compartment of the vehicle.However, as Nero circled the vehicle, Nero directed his nose close to the vehicle’s seams (nearly touching the vehicle in many instances); entered the wheel well areas with his snout; and reached for the vehicle’s undercarriage with the same. On Nero’s second pass, body-camera footage from the on-scene officers shows Nero made two potential contacts, and one explicit contact, with the vehicle’s exterior surface: first, on the rear passenger side of the vehicle (briefly as he jumped up); second, on the front passenger side of the vehicle (again, briefly as he jumped up); and third, on the front driver side of the vehicle—this time planting his front paws to stand up on the door and window as he sniffed the vehicle’s upper seams. During this time, the K-9 officer made upward gestures, purportedly “[p]resenting areas for [Nero] to sniff.”The K-9 officer later testified that Nero alerted during his explicit contact with Dorff’s vehicle, i.e., after Nero stood up and put his front paws on the front driver side door and window.

Following Nero’s alert, on-scene police officers searched Dorff’s vehicle.In it, they found a pill bottle, folded papers, and a baggie—all containing white residue that later tested positive for methamphetamine.The officers also found “[a] purple container filled with a green leafy residue” in the trunk.

This led them to more searches and more evidence, all of which would fall apart if the initial search was unreasonable. Which, of course, Dorff claims it was. Here’s the footage from the search – you be the judge:

Exhibit A
Exhibit B

Fourth Amendment enthusiasts in the crowd may recall that, in 1967, the Warren Court replaced the trespass test with a subjective-objective privacy test: police action is a “search” or a “seizure” if it violates the target’s reasonable expectation of privacy. Anyone seeking to suppress evidence has to show that they had a subjective expectation of privacy in the premises/effects, and the court must find that it’s an expectation society accepts as reasonable. But in 2012, the Roberts Court held that they had never completely abandoned the trespass doctrine. Following up on this logic, the Idaho Supreme Court digs deep into 18th century British Law (I read 20 pages of Blackstone blathering so that you don’t have to) and found that the touching of the car with the dog’s paws is “intermingling,” which constitutes trespass to chattel, and is thus a “search.” Okay.

I have two thoughts about this. The first one is that, watching the videos, I think one could make a plausible case that the dog-on-car-door action in this case was a search even under the reasonable expectation of privacy test. The video is truly worth a thousand words. First of all, not to put too fine a point on it, Nero is a big-ass dog. It reminds me of Dr. Mortimer’s immortal words: “Mr. Holmes, they were the footprints of a gigantic hound!” And Nero was leaning on the window for a good six seconds, wasn’t he? That’s clearly visible in Exhibit B. I think the extent to which this was a menacing, intrusive situation can be sensitive to the size of the dog and to the length of the intrusion. Seeing Nero slobber in my car window would definitely make me feel like some boundary between me and the world has been intruded.

The second thought has to do with Nero’s handler, who seems to be motioning upwards and even, if I’m not mistaken, saying “up” at some point. This is related to my general disgruntlement about how our exploitation of animals extends law enforcement activities. The Fourth Amendment applies only to state action, which raises the question – what is Nero, exactly? A cop? An instrument of a cop? A civilian police employee or volunteer? Some animal rights theorists are pursuing animal personhood in the form of labor rights for police dogs. Is the determining factor whether Nero is his own agent, or following his handler’s command? Or is the extent to which his whole life revolves around being useful to humans in detecting drugs determinative in making anything he does into state action, regardless of whether he is responding to a command at that particular moment?

I talked about this with some eminent Fourth Amendment eggheads, who do not think this case will be a big deal in the long run. First of all, the Supreme Court granted cert but will likely not reverse and it just not that interested in Fourth Amendment issues. And second, this case can easily be limited to its facts. I’m not so sure. Consider the fact that the Golden State Killer was caught, in part, through removing DNA from the exterior of his car. Would that behavior now require a warrant? Does this mean we now treat every vehicle–not just vehicles located in the home’s driveway–as a protected constitutional zone?

The Magic of Characters

Agatha Christie novels have such convoluted plots that they sometimes feel like protracted solutions to SAT questions. Sometimes I wonder why they’ve been so successful and continue to be so. This morning, at about 4am, a piece of the answer came to me.

I was listening to a terrific audiobook, narrated by the gifted Emilia Fox, and it was to her great credit (and perhaps my great detriment) that the narration was so fantastic that I could not go back to sleep. In the first few chapters she describes the train voyage of Mrs. McGillicuddy, in which she witnesses a horrible crime through the window near her seat.

I really recommend listening to the whole thing, but especially to the first few chapters:

The solution, etc., is interesting, but what I find really grabs my attention is Christie’s sensitive and deeply relatable description of Mrs. McGillicuddy’s frustration at not being believed. She doesn’t have to spell out “ageism” and “sexism” for the reader (or listener) to be irate on Mrs. McGillicuddy’s behalf, as she is being pooh-poohed by various railway employees who think she is fantasizing. The relief you feel when she gets to her destination–her old friend Jane Marple’s home–and is finally believed, her evidence taken seriously and respectfully, and her mind set at ease as Miss Marple takes over the investigation. Whether or not one loves the usual Christie machinations that follow, those first few chapters are such a gem.

First Peek at the Cover Art for FESTER

Last night we were ecstatic to receive the cover art for FESTER. UC Press has always done right by me–we had a back-and-forth about Yesterday’s Monsters that was very productive, and to this day people remember Cheap on Crime as “the one with the stripes”–but I think this is the best cover they’ve designed for me so far. I like it for three main reasons:

(1) The color. THE COLOR! I love it! Sickness green. You can’t avoid it. You can’t ignore it. It’s so sick. It’s so sickening. It’s the color of miasma and nausea. It evokes with such visceral precision the story we tell in the book. And, people will remember “that green one.”

(2) The map. This was my proposal to the press, and I’m really glad they took me up on it; the execution, of course, is much nicer and cleaner than anything I could’ve possibly produced. You’ll notice it is a map of California, with coronaviruses indicating the locations of CDCR prisons. Inside the book, in Chapter 5, you’ll see another version of this map, which overlays the prison locations on the entire state’s COVID-19 map, which we think drives home the point we make there, and throughout the book: when and where people get sick behind bars, everything around them is sick, because prison is not isolated from its surroundings, but rather along a continuum. I love that this spatial idea, according to which we are not safer when our fellow Californians age and ail behind bars, made it to the cover in such a neat, communicative way.

(3) The font and the way the word breaks down the middle. They could’ve written it on the diagonal, or in smaller print, but they wanted it to be HUGE.And it *should* be huge. We’ve been spelling FESTER in all-caps for a reason, and I’m so glad they kept it that way for the cover. It is only now, presented with the cover art, that friends of mine are finally “getting” the title: it’s not just the disease that is festering. It’s the massive neglect and dehumanization that festered there for decades. The outbreak is nothing more than a trigger that activated existing vulnerabilities. And don’t forget how the coronavirus permeates not only the state map, but also the letters. Everything about this cover is overlaid and permeable.

We are told that FESTER copies will be at the warehouse in January and available in bookstores, brick-and-mortar and online, in March. I will keep you all posted as to developments and as to the book party and tour.

Self-Compassion for Disillusioned Activists

In the sixties, Todd Gitlin, then a young, passionate student, became involved in the fight against the Vietnam war and in the struggle for equality. Alongside his friends at Students for a Democratic society (he was the president in 1963-1964) he agitated, organized, protested, held movements, registered people to vote in the Deep South, and fought against orthodoxy in the Democratic party and for a New Left. Many years later, already a sociology professor and incisive critic of the movement he helped create, he evocatively wrote about how much activism had meant to him. The first half of his masterpiece The Sixties reads like a manifesto of hope; the second half, though, is rife with confusion. Plans for political action got muddled with self expression and individuality a-la diggers and the Mime Troupe (to read a different perspective on those, read Peter Coyote’s fantastic memoir Sleeping Where I Fall); people he admired and respected as leaders disappointed at best and disintegrated at worst; former comrades slid further and further to the left, established the Weather Report, and engaged in clumsy but frightening violent actions Gitlin could not condone or comprehend (learn more about those in the podcast Mother Country Radicals). Gitlin’s later books reveal an author and thinker who still very much believes in the ideals of socialism and peace, but resents the splintering and performativity of identity politics that he believes shattered the movement in the 1970s.

Today I found myself going back to one of my favorite books by Gitlin, Letters to a Young Activist, which evokes that deep ambivalence and wisdom that comes only from spending years in a movement you both admire and fiercely critique. Gitlin talks about the importance of passionate motivation but also reminds young activists not to “think with their blood”; highlights the crucial role of shining a light on the wrongs of your own side, but also the importance of letting self-flagellation by the wayside; and warns against the dangers of “marching on the English department”, as it were, while one’s opponents “march on Washington.”

What brought me back to Gitlin were a number of recent conversations with younger folks I like and admire a lot about their disillusionment with infighting and lack of integrity in radical movements and organizations with noble goals and true dedication. People admired and respected in positions of leadership turn out to behave in disappointing ways; serious issues get buried or, on the opposite end of the spectrum, debated to death, complete with public denunciations and humiliations; minute complaints turn into struggle sessions that sap everyone’s will to come back; and eventually people come to demonize their comrades and brothers in arms more than they do the bad guys they are fighting against.

Hearing about this stuff is always heartbreaking, especially when I see folks who I know put in countless, tireless, thankless energy, time and effort into organizing and activism express disillusionment and despair. I can offer very little solace in this sort of situation; dealing with big disappointment as an idealist is really hard, and calls for more than one self-compassion break.

Kristin Neff, who has written and spoken extensively about self compassion and mindfulness, offers a three-step formula for anyone who is struggling. The first step is to admit that this is, indeed, a moment of suffering, a low point in the person’s life. The second, which I’ll elaborate more on in a bit, is understanding that suffering is universal, a part of life, and that everyone suffers–sometimes intensely–from time to time. And the third is offering oneself some kindness, either through expressing it or through a gentle hand touching one’s own heart.

I like this exercise a lot, and find the second step especially important, because as Brené Brown explains, one of the traps of shame and self-pity (by contrast to self compassion) is to see one’s experience as unique and idiosyncratic. I see a lot of this horror in young, committed activists, who are so distraught by occurrences in their group or community that they believe it must be prey to some special variety of pathology. This is where I can offer some comfort. As regular readers know, I’ve written and spoken quite a bit about the sixties, and part of my work on Yesterday’s Monsters included learning about cults and movements that swirled around the California counterculture when Manson put together his “family.” When the murders occurred, and when Manson and his followers were identified as the culprits, they evoked a wave of horror because cults and their inner workings were not well known or understood at the time. Indeed, the idea of thought control and brainwashing was associated at the time only with Communist regimes such as China and Korea (see an example of this in The Manchurian Candidate.)

But while this group stood out in the heinousness of their crimes, they were by no means the only group led by charismatic leaders and/or a vision to be plagued by exploitation, violence, and oppression. In the mid-seventies, the California legislature held a hearing for family members of young adults who had joined cults, hearing testimony after testimony about how their loved ones fell in thrall to some charismatic leader or other, started believing some stranger things, dramatically changed their appearance or habits, isolated from them to the point of estrangement, and gave all their effort and resources to the cult. Witnesses testified about the Moonies and about a variety of Christian apocalyptic cults. The legislators at the hearing tiptoed between expressing deep concern and sympathy and reminding everyone that cult members were adults with the freedom of religion and expression.

To this day, whenever I see people criticize radical activist movements that fall prey to unsavory activity and conflict, the demonizing language compares the movement to a cult. This is not a scientific or easy process, because cults turn out to be quite a malleable category. But one need not go into the reeds to identify pathological cultish elements in pretty much every activist movement, including influential and notable ones. Three years ago I wrote a post about this stuff that identified a lot of the obvious issues: betrayals of the cause, identitarian splintering, sexual exploitation or perceived exploitation, financial malfeasance, etc. Having read a lot about movements in the 1960s and 1970s, I see situations where the FBI were infiltrating and persecuting organizations and cells and eventually didn’t have to do anything to hasten their demise: these outfits crumbled on their own, without the malignant interference of the feds, because they suffered from these inherent issues. Stanley Nelson’s fantastic documentary about the Black Panthers is a case in point: there’s nothing the FBI could have done to dissolve the Panthers that Huey Newton didn’t do himself. Larry Kramer’s acerbic account of ACT UP in The Normal Heart shows the awful indifference and demonization the activists were working against, but also how they sabotaged themselves through horrendous infighting. I see this stuff again and again.

Here are some factors–and this is by no means an exhaustive list–that are part of this malignant cocktail. Oftentimes, radical organizing draws people who seek the type of camaraderie and belonging that membership in a close-knit group of likeminded people working for an important cause can provide. Some young folks get swept in this energy because home life is rife with trauma or neglect, or because their school or employment networks haven’t improved their lot socially. I’m not saying their commitment to the goal is not genuine; all I’m saying is that excitement about a common vision is infectious and promises an embrace that is very difficult to resist if one feels lonely or traumatized. The fact that a lot of radical movements strive toward ideological purity is also part of this. It isolated people and drives them further into the insular experience of the group, with no reality checks and balances on the outside. I’ve spoken to mixed-race couples that broke up on account of a commitment to racial justice that was so strong that it eclipsed years of love and commitment. I know of people who took the Liberation Pledge (not to eat where animals are served) and ended up unable to eat with anyone from their family or friend group outside vegan movements. Not only does this mean all of one’s social efforts are invested in a relatively small group of people, but that group ends up being an echo chamber and it’s very difficult to test ideas in the real world. And moreover, anytime purity and adherence to principles are the yardstick for worthiness, people turn on each other and compete over who is a more zealous advocate for social change. This process of eating each other seems to accelerate as shit starts hitting the fan, because people who are afraid and fighting for their own survival are sure to lash out at the people standing closest to them.

The fact that crappy things are happening to committed activists throughout the social justice field is not cause for cheer, but I think that anyone who thinks their organization is uniquely pathological might derive some comfort from knowing that, apparently, homo sapiens seems to find a way to ruin communities centered on ideals and struggles pretty much all the time. I don’t think we’ve found a way to organize and seek social change that doesn’t end up marred in these kinds of self destructive crap. I wish we could, but I’m in my late forties, have organized and agitated plenty, and I’m just not seeing it. The one that came closest to being a healthy organizing container, for me, was the #StopSanQuentinOutbreak coalition; it wasn’t without its warts, but it was highly effective and overall a really positive, supportive environment. I suspect the magic had something to do with the fact that, in addition to the long-term decarceration vision, we had tangible, short-term emergency goals, and thus no time for faffing. Perhaps human nature, like nature in general, abhors a vacuum, and will fill any available space with infighting and oneupmanship.

I don’t know what the answer is. But I do think that understanding we’re talking about universal phenomena that radical movements go through can be helpful to people who think they’re stuck in a uniquely dysfunctional scenario. Every unhappy family, as Tolstoy famously wrote, is unhappy in its own unique way, but they are still all unhappy. And that means that any person who believes in an ideal, a vision, a blueprint for far-reaching social change, and is committed enough to put a lot of work into it, will experience heartbreak from time to time. If this is you now, then it’s simply your turn. Offer yourself all the kindness you need to get through the rough patch, and then see if there’s another path for you to change the world or bring about your values in a way that supports your heart better.