It looks like the event I hardly imagined could ever happen might happen: Gov. Newsom announced that he would not appeal the Court of Appeal’s decision to reinstate Leslie Van Houten’s parole. The Associated Press reported Newsom’s obligatory statement, as well as some valuable words from Van Houten’s attorney:
In a brief statement, the governor’s office said it was unlikely that the state’s high court would consider an appeal of a lower court ruling that Van Houten should be released.
Gov. Gavin Newsom is disappointed, the statement said.
“More than 50 years after the Manson cult committed these brutal killings, the victims’ families still feel the impact,” the statement said.
. . .
“She’s thrilled and she’s overwhelmed,” [her attorney Nancy] Tetreault said.
“She’s just grateful that people are recognizing that she’s not the same person that she was when she committed the murders,” she said.
After she’s released, Van Houten will spend about a year in a halfway house, learning basic life skills such as how to go to the grocery and get a debit card, Tetreault said.
“She’s been in prison for 53 years. … She just needs to learn how to use an ATM machine, let alone a cell phone, let alone a computer,” her attorney said.
In the last chapter of Yesterday’s Monsters I looked at factors that might or might not be conducive to the release of any of the people I featured in the book. What paved the way to Van Houten’s release was the reemergence of adolescence as a relevant factor for parole; she had been living an exemplary life of self-reflection and rehabilitation for many years and was nonetheless repeatedly denied based on “lack of insight”, which, as I and others have discussed, is nonfalsifiable. The Commissioners had always known that Van Houten was 19 when she participated in the LaBianca murders, but a series of Supreme Court decisions gave them explicit permission to consider her age, and that’s what tipped the scales.
I now see these cases through the broader prism that Chad Goerzen and I develop in FESTER (coming to a store near you in January 2024), which highlights the travesty of turning our prisons into geriatric facilities. Beyond the obvious issue of medical risk, there is the question of what freedom looks like to a septuagenarian leaving prison after 53 years. Even without the added difficulty of immense stigma and animosity, Van Houten, who is a bright, thoughtful, and talented person, and who has academic degrees, will find it very hard to find and hold a job in this market. She has had to endure a lot behind bars, and her reentry is unlikely to be very easy. I wish her all the best. Our paths did not cross–she did not wish to be interviewed for Yesterdays’ Monsters–but I very much hope they will some day.
It is the nature of character assassination scandals, and a consequence of their frequency, that after a while they are forgotten by all except the people whose lives were destroyed by them. Such was the fate of Michelle Dauber’s cruel and idiotic crusade against Judge Aaron Persky in the aftermath of the Brock Turner scandal, which swept a lot of ill-informed progressive punitives with pitchforks and led to the destruction of his judicial career (and later, the destruction of his livelihood as a tennis coach.)
For all the shrill shrieking about “privilege”, pretty much every criminal justice academic I respect in the Bay Area warned at the time that recalling judges for lenient sentencing (especially, as in this case, following the probation recommendation) would make punishment harsher and much worse for everyone–especially for people who looked and lived nothing like Brock Turner. I was one of the first signatories and vividly remember shouting this from the rooftops, as well as seeing it as part of an appalling pattern of the left eating its own with no rhyme or reason.
As everyone worth their salt predicted, the recall did have an effect on criminal punishment in Santa Clara county: it made it harsher. As my colleagues Sanford Gordon and Sidak Yntiso found:
Using disposition data from six California counties and arrest records for a subset of defendants, we find a large, discontinuous increase in sentencing severity associated with the recall campaign’s announcement. Additional tests suggest that the observed shift may be attributed to changes in judicial preferences over sentencing and not strategic adjustment by prosecutors. We also demonstrate that the heterogeneous effects of the announcement did not mitigate preexisting racial disparities. Our findings are the first to document the incentive effects of recall and suggest that targeted political campaigns may have far-reaching, unintended consequences.
In other words: the fearless, plucky lefties who led this hysterical campaign can take pride in the fact that their relentless persecution of Persky empowered and enhanced carceral repression across the board, not necessarily making a dent in prevention/accountability for sex crimes, and harming precisely the people without “privilege” that they presumably sought to protect with this destructive campaign.
Why am I revisiting this? For two reasons. First, because I don’t want us to forget that these sorts of actions have consequences. I know that many on the left are already sickened by years of ugly, disastrous infighting. As Freddie DeBoer recently wrote:
I certainly would not say that the age of canceling is over. There will be public scandals to come; people will suffer major career and social consequences because of public anger. Sometimes they’ll deserve it. And maybe this is just a lull and the same old songs will get sung again and again.
But at this stage I find it hard to deny that the sense of palpable fear so many operated under, the feeling that the prosecutors held all the cards, appears to be in terminal decline. People just aren’t afraid in the same way anymore. The mob doesn’t have the momentum. The big bad wolf has lost his teeth. I suspect this is for a few key reasons – the fact that all of that endless raging did precisely nothing to make the world more just, for one. The growing understanding that the human species is flawed by nature and that no one can match those standards, for another. But mostly, I think it’s the dynamic I’ve been predicting for a long time: you can only bang the gong so many times. Everybody’s receptors all got blown out. Outrage is a finite resource. People can’t maintain permanent offense forever. Most of us can’t, anyway. You can only tense a muscle for so long.
Thing is, while we are tiring of the phenomenon, the people whose lives and reputations were laid to waste are going to have to live with the consequences of these witch hunts for a long time. Judge Persky, I think of you and am so sorry for the horror that you went through.
The second reason is that an excellent, short documentary about the poisonous effect of the recall campaign is out, and until September you can watch The Recall: Reframed for free:
Today, the L.A. Times published my op-ed, in which I criticize California’s gubernatorial veto on parole which, as I explain in Yesterday’s Monsters, serves no purpose except contaminating the parole process with politics and optics. Here it is:
***
On Tuesday, California’s 2nd District Court of Appeal reversed Gov. Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the state board’s parole grant decision. Their ruling exposes deep flaws in California’s system of allowing gubernatorial vetoes in the first place.
Van Houten, a member of the infamous Manson “family,” participated in the murders of Rosemary and Leno LaBianca in 1969. She was 19 at the time. These were horrific crimes whose aftermath shattered a sense of innocence and safety for many. But it is also true that Van Houten and other teenage girls caught in Manson’s web were indoctrinated into, exploited and abused by a dangerous cult not properly understood until many years after the murders.
In prison since 1971, with her original death sentence commuted to life with parole in 1972, Van Houten has transformed herself, earning two academic degrees, participating in rehabilitative programs and expressing remorse for her crimes. After decades of prosecutors and families of the victims of Manson’s crimes opposing Van Houten’s release, the factual evidence finally outdid the political pressure: Since 2016, the Board of Parole Hearings has recommended her release five times. Gov. Jerry Brown and then Gov. Newsom reversed each decision.
The appeals court reviewed the veto through a system deferential to the governor; all they needed to uphold his decision was “some evidence” that Van Houten, now 73, presents a risk to public safety. The court concluded that his veto was “not supported by a modicum of evidence in the record.”
Since a 2008 decision from the California Supreme Court, parole boards can’t deny release based solely on the severity of a crime. Instead, they must show that the parole candidate poses a public safety risk. Boards and governors alike have circumvented this standard by using hard-to-falsify language — for example, vaguely claiming that they don’t think the inmate possesses “insight” about their crime.
In denying Van Houten’s 2020 parole bid, as the appeals court reported, Gov. Newsom argued that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying.” He was also “unconvinced” that her childhood trauma, including her parents’ divorce and a forced abortion, “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”
The court essentially called the governor’s bluff. They found that Van Houten’s extensive record showed “no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but [per state law] the Governor’s ‘decisions must be supported by some evidence, not merely by a hunch or intuition.’”
Yet allowing the governor to veto parole recommendations at all risks reducing such weighty decisions to one person’s hunch or political agenda. California is one of only two states that allow gubernatorial veto of parole. The Legislature introduced it in 1988, politicizing the parole process and adding public pressure — as well as optics — to what should be a professional assessment of risk. The veto works in one direction: The governor can only veto parole recommendations, not denials.
Any fear that the state is releasing dangerous people in droves is unfounded. Parole boards are reluctant to grant parole. According to data from the California Department of Corrections and Rehabilitation, the Board of Parole Hearings recommended it in only 20% of cases in 2019. As I explain in my book “Yesterday’s Monsters,” receiving parole at one’s first hearing is extremely rare. I found that the median time spent behind bars on a life sentence with parole in California has risen from 12 years in 1980 to 28 years in 2012 for those who have been released, and a quarter of the prison population is serving life sentences — 26,000 with parole and 5,000 without.
The role of politics was particularly clear during the COVID-19 pandemic. The aging and infirm lifer population faced serious risks of contagion and death behind bars. They also pose little to no public safety risk, as shown by robust criminological evidence. Still, Newsom agreed to release merely 8,000 people — a deficit eclipsed by incoming admissions from jails, and the vast majority with just weeks or months left of their sentences. Van Houten was up for parole in 2020 when her prison, the California Institution for Women, was experiencing a COVID-19 outbreak of more than 100 cases.
The court’s decision now puts the ball back in the governor’s court. He has a 10-day window, starting in a month, wherein he can instruct Atty. Gen. Rob Bonta to appeal this case to the California Supreme Court. Common sense should prevail and guide our leadership in Sacramento to allow this rehabilitated septuagenarian to live her life quietly on the outside.
But no matter the outcome, her journey raises serious questions about the gubernatorial veto. Do we truly need an extra layer of political considerations to assess danger to the public — or should we trust the professionals appointed by the governor, mostly from law enforcement backgrounds, to do their job?
Hadar Aviram is a professor at UC Law San Francisco. She is the author of “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” and co-author with Chad Goerzen of the forthcoming “FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster.”
Parole drama today! the California Court of Appeal for the Second District reversed Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the board’s parole grant decision.
You can read the decision in full at this link. It’s a 2:1 decision, with the majority opinion recounting Van Houten’s early history, life crime, prison history, and plans for release. Their point of departure is a standard of review that is highly deferential to the governor:
We review the Governor’s decision under the “some evidence” standard, a standard our Supreme Court has called “extremely deferential.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 665 (Rosenkrantz).) Under that standard, a simple modicum of evidence is all that is required to uphold the Governor’s decision. (Shaputis, supra, 53 Cal.4th at p. 210.) “Only when the evidence reflecting the inmate’s present risk to public safety leads to but one conclusion may a court overturn a contrary decision by . . . the Governor.” (Id. at p. 211.)
p. 43
But even under this standard of review, “we nonetheless conclude that the Governor’s reversal in this case is not supported by a modicum of evidence in the record.” (p. 44).
Their support for this assertion echoes what I said in chapter 4 of Yesterday’s Monsters: that the constant refrain that Van Houten has somehow failed to do even deeper psychic excavation into her circumstances and crime is nothing but smoke and mirrors, that it is ridiculous especially in someone so introspective, and that it is thin cover for political optics.
The Governor found that Van Houten’s “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying,” and he was “unconvinced” that Van Houten’s parents’ divorce and her forced abortion “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”
p. 44
To which I’d say, how exactly does he expect anyone to explain a bizarre stranger homicide in the context of a cult? Is there anything she could possibly say that would lead anyone in Sacramento to write, “aha, now I get it”? The Court agreed, walking us through Van Houten’s introspection in a way that shows the Governor’s reasoning for the sham that it is:
It cannot be said that Van Houten has not extensively identified and discussed the factors leading to her life crimes, only some of which briefly are referenced in the Governor’s decision. In both her interview with the CRA evaluator and at the parole hearing, Van Houten expounded at length on the causative factors, beginning with her feelings of anger and abandonment after her parents’ divorce, a stigmatizing event in that era, and how that led to drug and alcohol abuse. She ran away from home with her boyfriend, who had impregnated her. Her mother then forced her to have an illegal abortion against her wishes, unmedicated, in her bedroom, instructed to keep quiet so as to not wake her siblings.
Van Houten spoke of shutting down emotionally and feeling numb after the abortion. The CRA evaluator wrote that, even now, Van Houten “was tearful as she spoke of the abortion and what ‘might have been.’ ” Van Houten described herself at that point in time as being “ ‘[d]esperate to be accepted,’ ” and “ ‘ha[ving] no sense of value. My value came in the eyes of other people.’ ”
Van Houten stated when she met Manson cult member Catherine Share, she “was at an all-time bottom low. I had no income, I did not feel good about either of my parents, and when I met her, it seemed to me that I was being offered a pretty good life.” She described how Manson slowly indoctrinated her, often while she was under the influence of LSD. The cult was not murderous and violent at the outset—rather, she stated her time at the ranch initially “ ‘seemed fun,’ ” and the talk of and preparation for violence and revolution came later. Van Houten said she “ ‘wanted to belong and . . . wanted to belong to something that wasn’t connected to my past.’ ” Van Houten explained how Manson used her anger with her parents and her shame about the abortion to convince her to turn her back on society, accept the alternative lifestyle he offered, and reject the lessons of right and wrong she had learned in her youth. Manson successfully transformed any doubts Van Houten had about the cult into her own self-criticism for failing to achieve the enlightenment he purportedly offered. By the time Manson’s talk turned to violence and murder, Van Houten already had fully committed to him, so much so that she believed he was Christ reborn. She also believed in the impending revolution, and that remaining with Manson was key to her survival.
The Governor found Van Houten’s extensive discussion of the causative factors inadequate to explain her life crimes. This necessarily implies the Governor believes there are additional factors for which Van Houten has failed to account, factors that, unaddressed, create a risk of violent recidivism. There is no indication in the record, however, of a latent underlying factor that potentially could result in violent conduct, nor has the Governor identified one. The CRA evaluator found Van Houten did not meet the criteria for psychopathy or a personality disorder, and there was no evidence of a thought disorder, hallucinations, or homicidal or suicidal thoughts or behavior. The evaluator further found it “very likely” that Van Houten’s youth at the time “significantly impacted” her involvement in the life offense, a factor obviously no longer applicable five decades later. The CRA’s finding that Van Houten presented a low risk of recidivism was consistent with similar evaluations over many years. Van Houten, moreover, has no history of violence either before the life crimes or in the 50 years since, and the prison staff regarded her highly enough to place her in positions of leadership within the prison, including facilitating groups intended to help other inmates with their rehabilitation.
The record shows no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. 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.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
pp. 45-47
The unwritten part of this is pretty obvious to me: the only factor that can explain this veto is political optics, and California law does not allow Governors to veto people’s parole because it will look bad and people will write mean things on Twitter.
The only remaining question is: What happens next? It is quite possible that Gov. Newsom will instruct Attorney General Bonta to appeal this to the California Supreme Court and to ask for an en banc decision, which will further delay proceedings. I was asked today whether they could hold Van Houten in prison while they do that. I honestly am not sure. I will say, though, that if she’s released pending the CA Supreme Court decision, it’ll be the second time she’s spent some time on the outside–this is what happened when her request for a new trial was approved in 1979.
There is another reason why Newsom’s decision was outrageous: you may not remember this, but when Van Houten’s case was pending before Newsom, CIW, where she is incarcerated, had a horrendous COVID-19 outbreak. As I wrote at the time, to keep a 72-year-old woman in prison when she has no disciplinary record whatsoever and is lauded and appreciated for her superb behavior and personal growth at a time when her congregated facility has a huge outbreak was inhumane. I really hope our leaders in Sacramento can let go of ego and optics, set aside their personal aspirations and dread of negative publicity, and do what is unquestionably the right thing here: let this go and allow this low-risk septuagenarian woman with advanced degrees to live her quiet life on the outside.
As some of you know, I’m beginning to work on a new project that sits at the intersection of new media, victimology, and law enforcement. I’m interested in the true crime podcast community, especially in podcasts targeting unsolved crimes. One of the questions I’m deeply interested in is the give-and-take between official law enforcement and podcasters (whether family members of the victim or third parties), which seems to range from hostility, through begrudging acceptance, all the way to pretty warm cooperation.
One notable example is Chris Lambert‘s excellent podcast Your Own Backyard, which is a thorough investigation of the disappearance of Cal Poly student Kristin Smart in May 1996. Lambert, who started off as an absolute stranger but established a warm collaborative relationship with the Smart family, has produced a true investigative masterpiece, chock-full of resources, first-hand testimony, circumstantial evidence examination, and intelligent inquiry into various forensic science disciplines (including human remains dogs and ground-penetrating radar). Most remarkably, Lambert’s podcast not only reawakened public interest in Smart’s disappearance, but also brought in new witnesses from the woodwork. Lambert’s dogged perseverance, intelligent analysis, and commitment to finding out the truth earned him the trust of the surrounding community and of law enforcement, and it looks like the police greatly benefitted from his work.
Throughout the entire lifespan of the case, there was only one viable suspect in Smart’s disappearance: fellow student Paul Flores, who helped an inebriated Smart get home from a party and was the last person to see her alive. Flores and his parents acted evasively and suspiciously over the years; Lambert’s investigation revealed that Flores was a predator who made women uncomfortable before Smart’s disappearance and, years after the event, a prolific rapist of multiple women. As Lambert provocatively posited in the podcast, Flores would have to be the unluckiest man alive for Smart’s disappearance to have been a coincidence.
Smart’s body was never found, but there was some evidence of human remains at Flores’ father’s house. The San Luis Obispo DA decided (thanks in great part to Lambert’s work and the evidence unearthed by the podcast) to charge Flores with murder and his father with being an accessory after the fact (to solve the confrontation problems in trials with codefendants, there were two different juries attending the same trial; I can talk more about this method, and how effective it is in solving Bruton/Gray/Cruz confrontation problems, in a future post). In March, the jury convicted Flores of the first-degree murder of Smart, and he was sentenced to 25-years-to-life in prison. This is a remarkable result given the passage of time and the hurdles in prosecuting no-body homicides.
I recommend listening to the whole podcast–it’s truly one of the better exemplars of this genre. One of the many things I find interesting, though, is the extent to which the existence of the podcast and its centrality to the case played a part in the criminal trial. In an effort to remain objective, Lambert, who recounts the trial in the later podcast episodes, matter-of-factly reports courtroom mentions of his own podcast without editorializing. But the defense (as a defense attorney, I gotta give kudos to Robert Sanger for what I think is undoubtedly a pretty heroic showing of professionalism with a client who is a pure, unadulterated garbage of a human being) repeatedly refers to the podcast and its encroachment on the case. Witnesses are asked about their participation in performative support for the Smarts (such as the entire investigative and prosecutorial team wearing purple, Smart’s favorite color) and about the extent to which the podcast propelled them to step forward. I’m pretty sure there will be arguments aplenty about bias and prejudice on appeal, and I worry that the podcast’s huge contribution to the investigation will seriously backfire.
Which brings me to one of my concerns about new media and law enforcement in general: Overall, I’ve been really impressed with the power of podcasts, especially their contribution to diversifying and enriching the victims’ rights movement. But is it time to have a sit-down, perhaps at CrimeCon, and set up some ethical rules, or best practices? Not everyone is Sarah Turney or Chris Lambert, not everyone does their homework in a dogged, meticulous way, and I worry that the need to come up with provocative encounters, confront suspects, dig up drama, etc., might backfire especially when podcasts finally succeed in greasing the wheels of the criminal process. Some things I think are worth considering are:
At what point should podcasters who are not themselves related to the victim reach out to the victim’s family? Is it ever okay to produce a podcast that the victim’s family does not support? What if the podcast casts suspicion on the family itself?
What kind of relationship should podcasters foster with the police? At what point should they hand evidence over to the police? Is this relationship akin to the police’s communication with traditional journalists?
Who owns footage obtained and produced by podcasters? Is there ever some sort of evidentiary privilege akin to the one granted to traditional journalists?
How much verification is required from podcasters (say, by contrast to police detectives checking alibis or triangulating evidence)?
What are the rules of engagement when reaching out to suspects? If podcasters take risks, how, and to what extent, does the police need to support and protect them–especially when law enforcement does not think that confronting the suspects is prudent?
Do podcasters have responsibility for the public chatter generated around the podcast? Wild theories, blame casting, and garden-variety shitposting that might happen, including, for example, posts that disparage the victim and/or their family?
What are the considerations that govern the way in which the story is told? For example, is it ethical to refrain from disclosing certain incidents/developments out of artistic concerns, or to make the narrative more dramatic and engaging? And what about the tone of reportage? Some of these podcasts (emphatically, NOT Lambert’s or Turney’s) have a humorous, flippant tone–is that something that should be frowned upon, especially if the victims’ families are not on board?
I’m interested to hear from you what other concerns/thoughts you have about these podcasts. And let’s keep tabs on the appellate process in the Flores case.
Comment: I’m still in Israel by my dad’s bedside – I write just to have a placeholder for ideas that pop in my head during my morning run before I head to the hospital every day. Please, no cumbersome professional requests during this trying time for me and my family.
The Gemara relates: Rav bar Sherevya had a trial pending before Rav Pappa. Rav Pappa seated him and also seated his litigant counterpart, who was an am ha’aretz (a simple man, not a rabbi). An agent of the court came and kicked and stood the am ha’aretz on his feet to show deference to the Torah scholars there, and Rav Pappa did not say to him: Sit. The Gemara asks: How did Rav Pappa act in that manner by not instructing the am ha’aretz to sit again? But aren’t the claims of the am ha’aretz suppressed by Rav Pappa’s perceived preferential treatment of Rav bar Sherevya? The Gemara responds: Rav Pappa said to himself that the litigant will not perceive bias, as he says: The judge seated me; it is the agent of the court who is displeased with me and compelled me to stand.
Shevuot 30b
Understandable outrage is brewing among many folks around me: At a San Francisco trial of a man accused of stalking and groping women, all the jurors are male. How could this happen? And is it lawful? Let’s go over some terminology:
Population: everyone who lives in the county.
Sampling frame: the group of people from which one can draw a sample. For our purposes, the folks whom the law deems eligible to serve on juries in the county.
Venire: Everyone who received summons to appear for jury selection (the selection process itself is called “voir dire.”)
Panel: The people who are eventually seated on a particular jury.
The constitution requires that the jury be drawn from a “fair cross-section” of the population: in other words, that the jury pool–the overall sampling frame from which people are summoned for the venire–be reflective of the population. If some recognizable minority group is systematically disqualified from serving, the selection method is unconstitutional. In the landmark case Taylor v. Louisiana, the Supreme Court invalidated a jury selection scheme by which women were not summoned at all to the jury pool unless they explicitly chose to opt in. Similarly, schemes like Texas’ “key man” system, where there’s some official who gets to pick and choose who’s on the jury (and thus, for example, underrepresents Mexican-Americans) have been invalidated.
Having a sufficiently diverse jury pool, however, does not guarantee the empaneling of a diverse jury. Consider the following example: you have 100 pebbles, 50 of which are gray and 50 of which are purple.
The statistical odds of drawing a purple pebble are 0.5, which means that, in a random selection of 12 pebbles, the stats predict you have great odds of having a mix of gray and purple pebbles. But you can easily imagine many random drawings that will only include gray pebbles.
This is exactly what happened here, except for an important fact: the twelve jury members were not drawn at random. Annie Vainshtein and Nora Mishanec reported for the Chron:
During jury selection, some women said they could not impartially weigh the evidence that would be presented at trial due to personal experiences with sexual assault or harassment, or negative feelings toward Hobbs’ attorney, which prompted Superior Court Judge Harry Dorfman to dismiss them.
Others from the pool were unable to serve on the jury for different reasons; one woman said she had booked an upcoming cruise. Several jurors, one of whom was male, were dismissed after expressing opinions including that “sexual predators” should be segregated from society, and even face the death penalty.
By the end of jury selection, the only woman selected was an alternate juror, who will hear all of the evidence but vote on the verdict only if needed.
Here’s the thing: robust social science research tells us that, when looking at groups of people in the aggregate, people’s life experiences and worldviews, which are often a function of their demographics, impact how they will assess evidence and judge a case. Which is why, even without resorting to the services of expensive trial consultants, prosecutors assume that people of color will be favorable to the defense, and defense attorneys assume that white men will be more punitive. The name of the game in voir dire then becomes getting rid of as many people whom you suspect will be unfavorable to your side. The problem is that, even though we can make these generalizations regarding groups, we have a deep social distaste about making them regarding individuals: people generally recoil from being told that they must think a certain way because of who they are, even though in the aggregate we know such statements to be true. This is why one can’t mount a for-cause challenge for disqualifying a woman, any woman, from the trial of an alleged stalker/groper just on the basis of her sex/gender. In science, it’s known as the group-to-individual (G2i) problem, and it affects various areas of legal decisionmaking.
Over the years, parties have tried to skirt this problem by using peremptory challenges to get rid of demographics they suspected of being unfavorable to them; the advantage of this strategy was that peremptories didn’t require an explanation. But the Batson doctrine allows the opposite party to challenge such use of peremptory challenges when they reveal a pattern of discrimination against a suspect racial or gendered group. It used to be the case that all the prosecution had to do was provide a race neutral explanation for their challenges (which, admittedly, would be difficult if there was evidence to refute this.) Now, California’s new peremptory challenge laws, enacted through AB 3070, make it a lot more difficult to get away with this sort of thing, because the prosecution’s explanation has to be reasonable, and it also cannot correlate with a seemingly race-neutral explanation that strongly correlates with race, gender, or any other suspect category.
But this is not what happened here! The women were dismissed using for-cause challenges because they directly opined that they would not be able to impartially weigh the evidence. This I find dubious (though not impossible) and it leaves me with serious discomfort. To drive home the problem, consider the following analogy: assume a white police officer is on trial for shooting and killing an unarmed black man. Imagine that, at jury selection, every single black prospective juror says that they would not be able to impartially weigh the evidence and, consequently, we end up with an all-white jury. Does this pass the “fair cross section” test? Yes–there were people of various races in the jury pool. Does this pass the Batson test? Sure! No peremptory challenges were used; everyone who was struck was struck for cause. Are you comfortable with the outcome?
How could this have been fixed? First, I think that prospective jurors can and should trust their ability to make good decisions with the life experience that they have. Like 50% of the people on the planet, I have been sexually harassed, catcalled, groped, pestered for sex, and other fine experiences. Does that mean I would not be able to seriously consider the possibility that a person who did this to others was severely mentally ill, or that there was an eyewitness identification problem? I worry that the emphasis we put on group identity in contemporary discourse has locked people into beliefs that they are immutable members of whatever demographic they belong to and there’s nothing more to them, and that is impoverishing and disappointing. Second, I think the onus here was on the prosecution to ask the prospective jurors questions that would probe the extent of the bias. For example, I think a fair question would have been, “would your experience with harassment lead you to find someone guilty even if there was defense evidence that the police got the wrong person, or even if there was persuasive psychiatric evidence that the defendant didn’t know what he was doing?”
If such a stunning number of women find themselves unable to fairly adjudicate a sexual harassment case, then the root of the problem here is not the jury selection process itself. It is the fact that harassment experiences in public space are so common and far more malignant than people think. In her book License to Harass, my colleague Laura Beth Nielsen exposes the unbearable lightness of offensive speech in public space and the many insidious ways in which it affects people’s everyday lives and decisions. It turns out that even behaviors that might not be a big deal on a one-off basis can add up to the point that people are so fed up with them that they don’t feel they can be objective on a jury.
If that’s what happened here, it’s a damn shame. Because the irony is that the very fact that there are many other people like this guy (who maybe just yell obscenities, rather than grope, and thus completely escape public censure) is what makes it impossible to adjudicate this guy by a true jury of his peers, which should include women.
There’s understandable community upheaval about a recent tragedy that rocked downtown San Francisco: A security guard at a downtown Walgreens store shot and killed Banko Brown and, the D.A. decided, will not be facing criminal charges for homicide. In this CBS-5 story, I explain what is happening to the extent I can, not having seen the evidence.
Why is the D.A. not pressing charges? The D.A.’s office has issued a statement according to which, having viewed the store’s video footage of the incident, they find that “[t]he evidence clearly shows that the suspect believed he was in mortal danger and acted in self-defense” and that, while Brown’s killing was a “tragedy,” “[they] cannot bring forward charges when there is credible evidence of reasonable self-defense. Doing so would be unethical and create false hope for a successful prosecution.”
How do they establish if someone acted in reasonable self defense? According to California’s model jury instructions (CALCRIM), a defendant prevails on self defense if they used force against another person while (1) reasonably believing that they, or someone else, “was in imminent danger of suffering bodily injury,” (2) reasonably believing “that the immediate use of force was necessary to defend against that danger,” and (3) “used no more force than was reasonably necessary to defend against that danger.” Note that it’s not enough that someone subjectively believes they are in danger; you prevail on this defense if a reasonable person in your shoes would’ve felt the same. The question of proportional force is also one on which there could be disagreement.
Hold on, why is this even a self defense issue and not a lethal force issue? The rules on lethal force apply only to government agents: federal and local police. The Fourth Amendment offers people protection from unreasonable search and seizure by the government. This is not the case here. The Walgreens security guard was, indeed, armed and working, but he was working for a private company. That’s why the D.A.’s office is viewing this incident through the lens of self defense, which applies to any altercation between two private people.
Shouldn’t we hold security guards and other pseudo-police officers, like private patrols, to a higher standard? I think that’s an excellent question, especially with the proliferation of private policing of all sorts. This is also far from the first time that someone was shot to death by private security personnel (see here, here, here, and here, to name just a few.) My friend Sarah Fielding, now the managing attorney at Legal Services of Northern California, once wrote a fantastic paper about neighborhoods who crowdfund for private security, and is interviewed in this fantastic Al Jazeera piece, where she and others express concerns that more exclusive, wealthy neighborhoods essentially just “send in a check” to fund their own justice, which disproportionally targets outsiders. All of these are serious problems that raise grave concerns. But the Fourth Amendment only applies to government agents and there’s precious little we can do about that.
If this is truly nothing more than a conflict between two private people, why all the political upheaval? Obviously, despite the fact that the shooter was not a police officer, the nature of this incident makes people see it through the lens of community outrage about police overreach. I’m seeing echoes of this even in Aaron Peskin’s reported entreat that the D.A. reconsider. People are falling into the predictable camps: pro-law-and-order, dismayed-of-downtown-chaos folks who support the D.A. and explain how sick they are of the robberies and petty thefts that have scared away many major retailers from the downtown areas, support the decision not to prosecute and see it as a victory for public safety. On the other hand, abolish-dismantle-repeal folks who, in accordance with the usual progressive punitivism protocol, think that we should not harshly enforce the law except against those we dislike (cops, guards, right wingers), see this as further evidence that Jenkins is making charging decisions that further oppress the oppressed. We don’t have the evidence, and so we are projecting our overall worldviews about the underlying problems of poverty, suffering, law enforcement, and dilapidation, onto this incident. This is where people’s strong views come from. The lesser the evidence, the more room there is for our worldviews to inform our imaginations.
We know there was only one gun at the scene–the guard’s. In light of this, isn’t it obvious that the security guard committed unjustified homicide? Folks, I don’t know. And neither do you, because we haven’t seen the video footage that the D.A. used to make the determination. For all we know, it might’ve seemed to the guard as if the victim was armed. Or not. We simply can’t know the answer to this without seeing the video.
Fine, then why won’t the D.A. show us the video, so we can be the judge of that? That’s a fair question. The understandable logic is: if it’s really that cut and dry that the security guard was in reasonable fear of his life, why is the D.A.’s office being so secretive about it? Because the public has deep interest in these issues, and in seeing justice done, California law was recently amended to require prosecutorial offices to share footage of lethal police shootings with the public within 45 days. But again, this doesn’t mean a general requirement to share investigative material with the public in any case that involves two private people, as the case is here. And, to be fair to the D.A., I can see some good reasons not to share the footage. We know from prior cases involving video footage of violence, sometimes lethal, that even when people have access to the evidence, their interpretations of what they see depend on their worldview. Fourteen years ago, I saw the cellphone footage of the killing of Oscar Grant and thought to myself, “I’m watching an execution, and there’s no way anyone could watch this video and think otherwise.” And, lo and behold, twelve Los Angeles residents disagreed with me. The D.A. might not want to get into these kinds of controversies if the law doesn’t require them to, nor do they want to incite confrontations and violence against the security guard. Still, it’s hard not to walk away from this with a bad feeling about the lack of transparency.
Then why not prosecute, and let a jury decide if it was self defense or not? Without seeing the video, it’s impossible to answer this question, but it’s definitely a fair one. I will say that the burden of bringing a case to trial is much lower than the burden required for conviction: all the prosecution needs is probable cause, as opposed to the much higher burden of beyond reasonable doubt. The idea is that you go to trial with a minimum of probable cause (the threshold the judge requires at a preliminary hearing) and continue developing the evidence as you go along. But in cases that are very public and sensitive, prosecutors sometimes hold themselves to a higher standard (e.g. Muller’s prosecutions of Manafort et al.) We should also keep in mind that prosecutors have two kinds of considerations that go into charging decisions: instrumental considerations–i.e., will this case end in a conviction and thus be a worthy expenditure of state effort and resources–and expressive considerations, i.e., what do my constituents want and expect. I think Jenkins is as aware of what her constituents want as Boudin was aware of his, and charging decisions will differ accordingly.
Rabbi Levi son of Rabbi says…The Holy One said to Moshe “You will make a menorah of pure gold” (Shemot 25:31).
Moshe responded: how will we make it?
God responded: “It will be made of hammered work” (Shemot 25:31).
But Moshe struggled and went down and forgot how to make it.
He went up again and said: My Master, how do we make it? God said: “It will be made of hammered work” (Shemot 25:31).
But Moshe struggled and went down and forgot.
He went back up and said: My Master, I forgot it!
God showed Moshe, and Moshe still struggled. God said to him: “See and create” (Shemot 25:40), and took a menorah of fire and showed him how it was made.
But, it was still a struggle for Moshe!
The Holy One said to Moshe: Go to Betzalel, and he will make it.
Moshe told Betzalel, and he immediately made it. Moshe was amazed and said: How many times did the Holy One show me, and I still struggled to make it! But you, who never saw it, knew how to make it by yourself!
BaMidbar Rabah 15
One of the professional events I most look forward to each spring is the Virtual Workshop on Contemporary Parole–a fantastic two-day online gathering of a rigorous group of people producing exceptional work, which we’ve now held for the third year in a row. The papers are always superb and so is the camaraderie and commentary. I got to present a draft version of my new Sirhan Sirhan paper, as well as hear really terrific work on various aspects of parole: gang validation, racial proxies, young adulthood, and others. I can’t go into too much detail, because these are all works in progress and we’ll probably see polished versions of everything getting published soon enough. But one thing that stood out to me was the uptick in really interesting work utilizing machine learning.
I know next to nothing about machine learning and, like Moshe in the midrash above, I might be too old a dog to learn that particular trick. I mean, in the Sirhan paper, n=1. Thing is, the midrash really resonates with me because I, too, feel a lot like Moshe when I hear someone else talk about a fantastic skill they have and how they put it to good use. It looks like, despite God’s repeated tutorials, Moshe’s goldsmithing skills weren’t up to snuff. Thankfully, there were other Israelites with that particular skillset: Betzalel was a gifted goldsmith who made a spectacular menorah on the first try (this is why Israel’s fantastic art school is named after him.) While unable to emulate Betzalel’s feat, Moshe had acquired a basic understanding of the necessary artistry and workmanship, so he could appreciate why Betzalel’s finished product was of such high quality. In other words–I don’t employ machine learning in my own work, but I know enough about it to be amazed when I read a paper that uses it well.
To understand the promise of machine learning, let’s first talk about how we do parole research the old-skool way. A multivariate regression works much like the denouement in an Agatha Christie mystery novel. You know the drill: Poirot gathers all the usual suspects in a room and goes through a litany of their motivations, opportunities, debunked alibis, you name it. He eliminates them one by one until he can point to the culprits. The important point is that Poirot selects who goes into the parlor for that last scene: people get there by invitation, and Christie is careful to craft the scene so that it’s pretty much always a finite and manageable list of people. When I run a regression, I pretty much do the same: I think about the dependent variable–the phenomenon I’m trying to explain–and I try to come up with a list of the independent variables that might explain it. For example, if my determinate variable is a parole grant, I ask myself: Do people who are represented by a private attorney do better than people who are represented by a panel attorney? Do people whose hearings happen in the morning fare better than folks who are heard in the afternoon? If victims and/or prosecutors show up for the hearing, does that make a difference? Does the professional background of the commissioners matter? Do people in some prisons stand a better chance of being granted parole? You can tell that each of these assumptions has a certain logic behind it (you get what you pay for; people are more attentive and in a better mood when they are not tired or hungry; professional background goes into constructing people’s worldviews; some prisons have better rehabilitative offerings than others, which improves one’s case.) I put all of these “suspects” in a room (the regression equation,) run the numbers, and see which comes out significant.
One of the problems with this model is that regression models rarely offer a complete and exhaustive prediction of the phenomenon they try to predict. There is even a statistic, the r-square, that measures how much of the dependent variable is explained by the set of independent variables we coded for. But there could be many factors that play into a parole grant that cannot be adequately captured by the variables we identified. In other words, 21st century law enforcement doesn’t solve crime by putting twelve people in a parlor; if there is forensic evidence at the scene, it gets analyzed, plonked into giant databases, and could generate hits that are one-in-a-million, not one in twelve.
Enter machine learning. As we’re all now figuring out through our use of ChatGPT, artificial intelligence excels at digesting large amounts of text, identifying repetitive patterns, and throwing those patterns into a model. AI is intertextual in that it can assess the impact of any factor in the database on any other factor. As my colleague Kristen Bell and others explain in this paper, this allows the tool to mine parole transcripts for repeated words to get a sense of factors that would not be salient to us in a traditional regression. Moreover, the capacity of these tools is enormous, so one can feed the machine tens of thousands of cases and get a very powerful sense of what is going on. There are even tools like SuperLearner, which can apply multiple machine learning tools to a dataset, coming up with the best of several models. My colleagues Ryan Copus and Hannah Laqueur do exactly this.
Machine learning has many applications in criminal justice, as this excellent NIJ article explains. The critiques that are leveled on machine learning often revolve around its most common criminal justice use: predicting reoffending risk. As explained in this solid blog post, critics worry that any predictive analysis based on historical crime data will reflect (and thus reinforce) existing biases embedded in the criminal justice system, and perpetuate misconceptions and fears through the feedback loop of basic predictions on past decisionmaking. In other words, as my colleague Sandy Mayson argues, the problem is with the nature of prediction itself. You rely on a biased past, you get a biased future.
What researchers like Bell, Copus, Laqueur and others contribute is the potential of turning the use of the predictive tool on itself and using it not to predict the risk of those subjective to the system, but rather the factors that impact the decisions that the system itself makes. For example, if private attorneys do a better job than state-funded panel attorneys, wouldn’t we want to know this, and wouldn’t it be important to figure out exactly what it is about their performance that makes the difference in the outcome? Using AI can help identify, for example, terminology used by lawyers, thus giving us a sense of the “flavor” of representation that parole candidates receive.
When done well, this technique has fantastic potential to teach us about the hidden nooks and crannies of the parole hearing machine that we would not be able to flag on our own. You don’t have to be an AI whiz to understand and appreciate machine learning research; you just have to understand what it does and appreciate its strengths and weaknesses.
A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal.
Mishna Makkot 1-10
So too for those who are liable for capital punishment or lashes: their death or lashing does not atone for them until they repent [do teshuvah] and confess verbally [do vidui].
Mishne Torah LaRambam, Repentance 1:1
It’s hardly debatable that Richard Nixon’s presidency was a watershed moment in American criminal justice. Even the scholars who point to punitive tendencies among his predecessors will admit that Nixon’s presidential campaign highlighted crime—and particularly judicial permissiveness in the face of rising crime rates—as a key political issue, and that his presidency made good on the promises to become tougher on crime.
Having lived under this regime for 50 years, it’s hard to speculate what our system would look like if Nixon had not been elected. We did come very close: Nixon’s most promising challenger for the presidency was Democratic Senator Robert Kennedy, well-respected and admired, and a former Attorney General. But shortly after Kennedy announced his victory in the California Democratic Primary at an event at the Embassy Hotel, a young Palestinian refugee, Sirhan Sirhan, darted toward the Senator and fired several shots from his revolver. Kennedy was killed and four other people were injured by the gunfire.
Sirhan was sentenced to death, but experienced a stunning reversal of fortune. In 1972, the California Supreme Court found the death penalty unconstitutional, and the 107 people on death row at the time–including the Manson family members and Pinole murderer Dennis Stanworth–had their sentences commuted to life with parole. By the time California brought the death penalty back in 1978, alongside the option of life without parole, the “Class of ’72” people were already preparing for their upcoming parole hearings. One of them was Sirhan Sirhan.
Almost immediately after his arrest, and throughout his trial and incarceration, Sirhan was interviewed by many psychiatrists. They noted his traumatic childhood in Palestine, his harrowing journey to Jordan as a refugee, the horrendous violence he witnessed as a young child. They identified psychosis and paranoia. But by the mid-1970s, he seemed to settle down, to the point that the parole board–on par with how things were done in those days–sat down to set a parole date for him. They settled on 1984; 16 years was plenty for first-degree murder back in those days. If this seems oddly lenient to you, keep in mind that Sharon Tate’s family members thought it would be an uphill battle to keep the Manson girls behind bars in 1978.
Sirhan’s early hearings in the late 1970s were basically status conferences, which followed up on his rehabilitative journey in prison. But things took an interesting turn in 1982. On April 26, a Monday, the parole board convened for a week-long hearing in his case, whose purpose would be to determine whether to rescind his 1984 parole date.
The impetus for this unusual step was threefold. First, as Sirhan’s release date approached, the Board faced unexpected gale force winds of public disapproval. The Commissioners received of 3,961 letters; 8,127 signatures of petitions; and 50 city and county resolutions requesting the recission of Sirhan’s parole date. The November 1981 assassination of Egyptian president Anwar Sadat, on the heels of his historical peace agreement with Israel, reminded the public of yet another anti-Israel act of terrorism, spurring these letters on and drawing connections between the two acts.
Second, the Board explained, new evidence had come to light that called into question the prior portrayal of Sirhan as a docile, rehabilitated inmate. The information included a Playboy article called “inside Sirhan”, as well as numerous threatening letters Sirhan had sent from prison to various individuals, and documentation of his threatening personality in his central file. “Generally,” the Commissioners explained, “the information specified above alleges that Sirhan has made threats against various people, and that he has exhibited other behavior indicating that he is not suitable for parole.”
The third ground for the hearing, however, was legal: the board maintained that its 1975 predecessor, which set Sirhan’s 1984 date, erred in exercising its authority. The question for discussion would be: “[D]id the parole granting panels fail to exercise independent discretion in finding Sirhan suitable or in establishing a period of confinement? The panel’s failing to consider the nature of the offense and the victim in finding Sirhan suitable for or in establishing a period of confinement.” The Board answered this question in the affirmative: they claimed that the 1975 Board abused its discretion by “fail[ing] to appreciate and fully assess the magnitude of the crime for which Sirhan was convicted.”
Sirhan’s attorney, Luke McKissack, balked at these reasons for recission. All the details about Sirhan’s crime, its seriousness, and its magnitude, he said, were widely known at the time of his trial and had no place at his parole hearing. As to Sirhan’s presumably threatening behaviors, McKissack explained, they should be understood in the context of his traumatic upbringing and unusual confinement situation. McKissack recounted some of Sirhan’s traumatizing experiences in Palestine—killings, mutilations, and mass atrocities, which “Sirhan, at four years of age, obviously would be affected by seeing that kind of violence.” He also explained that Sirhan’s threats should not be taken seriously: his 14 years in protective custody “could be the equivalent of twenty or twenty-five years for somebody else. . . from the onset he knew that anybody might kill him” and his threats should be seen as what they were: the airing of frustrations made “ten years ago when Sirhan was depressed, psychologically disturbed and reflective of that situation and not as high-powered as the district attorney makes it out to be.” During those years, McKissack explained, Sirhan witnessed other people—some convicted of multiple murders—being paroled, and it was understandable that he was frustrated and felt that he was singled out: “It doesn’t seem to me that in order to qualify for being paroled, that a person has to think that everything that occurred to him in life is fair.” Sadat’s assassination, he said, had nothing to do with Sirhan, who was being scapegoated: “In 1982, in an election year, with international events out of control, everybody is frustrated. It’s: Find someone to jump on.”
The Board was undeterred. On April 27, 1982, the Commissioners interrogated their predecessor, James Hoover, a member of the committee that set Sirhan’s original parole date. The resulting exchange reads like a remarkable showdown between the rehabilitative, professional, low-key logics of 1970s parole decisions, and the much more emotional and political tenor these decisions would reflect in the 1980s. Hoover had no love for Sirhan, obviously, but he thought his job was to judge Sirhan impartially on the basis of his prison performance:
Brown: It was your impression from 75-20 that everyone had to have a parole date set?
Hoover: That was my impression, as long as there was no negative factors in file.
Brown: Initially you could find no reason to deny the setting of the parole date?
Hoover: I could find no reason. I might mention in my own mind that I wanted to find a reason. . .
You have got to remember that our median time for murder first was only about fifteen years. So that means we had an awful lot of low cases and an awful lot of high cases. . . our legislature in their great wisdom did not say, “Well, if you shot a Senator you ought to do so many years. And if you shot Jose Gonzales down in the barrio, you only do this many years”. . . At that period of time this was what was acceptable. It may not be acceptable today, but at that period of time that was the guidelines. And my feeling was, there was nothing to justify. . . I thought that was ample punishment picking that period of time, that time in space of society and what people expected.
Hoover didn’t want Sirhan to walk, but he did what he thought was his job:
W]hen I saw [the psychiatrist], I said, first thing out of my mouth, ‘Shit. This son-of-a-bitch ain’t going nowhere.’ That was just—it was the flash that came up. And then I think she said, ‘Well, show me why not.’ And that’s when I went to the file. I thought, certainly I’ll be able to have all these negative things in file. I mean, it was just set in my mind. I just walked into it and without review, just off the top of my head.
Hoover’s 1982 colleagues, needless to say, did not see eye to eye with him on this. They rescinded his date, citing not only his threatening behavior but also the 1975 Board’s mistake in discounting the magnitude of his crime. The New York Times story about the recission features clearly retributive rationales:
‘’The people of the world will breathe a sigh of relief tonight because Sirhan will remain in prison,’’ said District Attorney John Van de Kamp of Los Angeles, who had pushed for canceling the Sirhan parole date. ‘’The message must be sent out in clear and unmistakable terms that political assassination will not be tolerated in this society – and those who engage in it must pay the price.’’
‘’He deserves never to be set free,’’ said State Treasurer Jesse Unruh, who as the California manager of Robert Kennedy’s campaign for the 1968 Democratic Presidential nomination was present when the New York senator was shot. ‘’I’ve been battling that parole date since 1975.’’
As we all know, Sirhan, who is now 79 years old, remains behind bars. In 2021 he was recommended for parole, but Governor Newsom reversed; in 2023 he was again found unsuitable for parole. In his last few hearings–probably to heed the California Supreme Court’s admonishment in Lawrence–the Board stopped citing the magnitude of the crime and started giving us, instead, the usual parole word salad about insight and accountability and looking inward, the whole psychic excavation enchilada. But the archaeology of the hearings plainly shows what happened: as of 1982, the parole board started seeing itself responsible not just for assessing the parole candidate’s prison journey, but for curating and appeasing the public sentiment about his or her crime.
To be honest, I’m not sure retribution has no place in release decisions. While working on Sirhan’s parole hearings, I repeatedly thought of another political assassin: Yigal Amir, the third-year Israeli law student who assassinated Prime Minister Itzhak Rabin. In 2023, it is hard to not see Rabin’s assassination as the watershed moment that ushered Binyamin Netanyahu’s ascendance to state leadership and, as Israel faces a severe constitutional crisis that threatens to disproportionately affect Palestinians and other non-Jews, to balk at the possibility that Amir should ever be paroled. In the following video, an excerpt from an excellent satirical show called The Chamber Quintet, actor Rami Heuberger depicts Yigal Amir. He smiles at the camera and said, “in twenty years, I’ll receive clemency. You know that’s true. Deep inside, you know it.” The effect is chilling:
The prospect of parole, clemency, or a pardon for Amir is not farfetched at all under the auspices of Israel’s 37th Government. Would that really be so much more horrible than a parole for Sirhan? What about when Amir is 79 years old? I’m not sure. But I also feel that we need to talk honestly about the role, if any, that retribution should play in parole decisions, and about the extent to which we entrust Board members to properly calibrate the resulting punishment in the face of political and social considerations and public upheaval. In any case, I find it poignant that Sirhan became a victim of the era of punitiveness that he ushered with a bullet.
A huge beef is brewing across the Bay Bridge between Alameda County’s new District Attorney, Pamela Price, and Judge Mark McCannon. The backstory involves a plea agreement reached in the case of Delonzo Logwood, who is charged with a triple homicide. Looking at an exposure of 75-to-life, the proposed plea agreement would drop two of the murder charges and consist of only 15 years for the third.
Judge McCannon reportedly balked at the plea deal, saying that he has had sleepless nights over the triple murder case, and that he could not hand out a sentence that was not just and deserving. The judge also scolded Logwood from the bench, saying, “[y]ou can’t think an apology will make this all better. . . What are you sorry for if you didn’t do anything?”
In response, both the prosecution and the defense moved for a recusal, and the judge refused to recuse himself. Now, D.A. Price, elected on a progressive platform, is waging war against the judge, trying to get him disqualified from any case handled by the D.A.’s office. Here’s a video in which she explains why:
The basic doctrine that addresses the situation comes from a D.C. Circuit Court case called U.S. v. Ammidown. The defendant arranged to have his wife murdered by a much younger man, Lee. At the last minute, he changed his mind, and wanted Lee to “only” kidnap her and extort money from her. But Lee did end up killing Mrs. Ammidown, and both men were caught and prosecuted. In return for Ammidown’s cooperation in testifying against Lee–a much younger and more dangerous man–the D.A. agreed to downgrade the charges to second-degree murder; the judge, however, was not on board, and said that the charges were a “tap on the wrist.” He convicted Ammidown of first-degree murder and sentenced him to life.
On appeal to the D.C. Circuit Court, the sentence was vacated and the judge was ordered to accept Ammidown’s original guilty plea. Judge Leventhal, who wrote the opinion, explained that judges are not bound by plea agreements and are allowed to “blow up” these deals. But this course of action must be reserved for rare occasions, and follow these guidelines:
First, the trial judge must provide a reasoned exercise of discretion in order to justify a departure from the course agreed on by the prosecution and defense. This is not a matter of absolute judicial prerogative. The authority has been granted to the judge to assure protection of the public interest, and this in turn involves one or more of the following components: (a) fairness to the defense, such as protection against harassment; (b) fairness to the prosecution interest, as in avoiding a disposition that does not serve due and legitimate prosecutorial interests; (c) protection of the sentencing authority reserved to the judge. The judge’s statement or opinion must identify the particular interest that leads him to require an unwilling defendant and prosecution to go to trial.
We now turn to the content of these components, and begin by passing any discussion of fairness to the defense, since it is not directly involved in the case at bar and it has already been identified in the precedents referred to earlier in this opinion. As to fairness to the prosecution interest, here we have a matter in which the primary responsibility, obviously, is that of the prosecuting attorney. The District Court cannot disapprove of his action on the ground of incompatibility with prosecutive responsibility unless the judge is in effect ruling that the prosecutor has abused his discretion. The requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons. That much, indeed, was proposed by the Advisory Committee, and the Supreme Court’s amendment obviously did not curtail the proposed authority of the judge. The judge may withhold approval if he finds that the prosecutor has failed to give consideration to factors that must be given consideration in the public interest, factors such as the deterrent aspects of the criminal law. However, trial judges are not free to withhold approval of guilty pleas on this basis merely because their conception of the public interest differs from that of the prosecuting attorney. The question is not what the judge would do if he were the prosecuting attorney, but whether he can say that the action of the prosecuting attorney is such a departure from sound prosecutorial principle as to mark it an abuse of prosecutorial discretion.
In like vein, we note that a judge is free to condemn the prosecutor’s agreement as a trespass on judicial authority only in a blatant and extreme case. In ordinary circumstances, the change in grading of an offense presents no question of the kind of action that is reserved for the judiciary.
U.S. v. Ammidown (1973), Op. Ct. by Judge Leventhal.
The takeaway for judges is a strong discouragement from blowing up deals unless they have an excellent reason. Any time a judge flouts a plea deal, the sentence is more vulnerable on appeal, so most judges don’t do it lightly. Judges usually respect plea deals because they have long-standing working relationships with the DA’s office and they have to trust their judgment. Moreover, blowing up a deal is such an unusual occurrence that judges have to explain themselves in a lot of detail (to legitimize the sentence and protect it from appellate reversal). This, of course, requires going into why the judge does not trust the D.A. to have taken the public interest sufficiently into consideration. In doing so, judges sometimes use strong words, but per Ammidown, speaking too strongly is also a problem.
Does blowing up one deal amount to judicial prejudice of the sort that can be said to sour the judge’s relationship with the entire D.A.’s office? In other words, will D.A. Price prevail in trying to get Judge McCannon disqualified from all cases her office handles? That seems a bit of a stretch, and it speaks volumes about the underlying political issues surrounding her election and what her office stands for. Newspapers have reported that the office is somewhat is turmoil, with people quitting and openly challenging the office’s values and priorities. This is a pretty natural consequence of the office changing political direction with the election of a progressive leader–we saw this during Chesa Boudin’s tenure in San Francisco, also. As we see in the video, D.A. Price disputes these former prosecutors’ allegations.
The usual way of addressing possible judicial prejudice is by asking for recusals on a case-by-case basis. There are some situations where a more general disqualification is appropriate: consider, for example, a situation where the judge marries the D.A., in which case they really should not handle cases that the office brings (and best for everyone if the two work in different counties altogether.) This is quite unusual, and I wait to see how it unfolds. Regardless of whether Price will be successful in her bid, starting a massive feud with a judge on YouTube does not portend well for Alameda County.
