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:
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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.
A horrendous Talmudic story tells of a wrongful conviction and its aftermath. Against the backdrop of the bitter civil conflict between the Phrarisees and the Sadducees,[1] Rabbi Yehuda ben Tabbai, who was President of the Sanhedrin, looked to score a political point by sentencing a conspiring false witness from the rivaling faction to death. It turns out, however, that he was mistaken, and his Sanhedrin counterpart, chief justice Shimon ben Shatah, quoted the appropriate rule:
Conspiring witnesses are not executed unless they are both found to be conspirators; if only one is found to be a conspirator, he is not executed. And they are not flogged if they are liable to such a penalty, unless they are both found to be conspirators. And if they testified falsely that someone owed money, they do not pay money unless they are both found to be conspirators.
Hagiga 16:2
But it was too late; the witness had already been executed. Rabbi Yehuda admitted his mistake and would never again rule on a legal point except in the presence of Shimon ben Shatah. Some sources claim that he consequently yielded his Presidency of the Sanhedrin. And his remorse was grave:
All of Yehuda ben Tabbai’s days, he would prostrate himself on the grave of that executed individual, to request forgiveness, and his voice was heard weeping. The people thought that it was the voice of that executed person, rising from his grave. Yehuda ben Tabbai said to them: It is my voice, and you shall know that it is so, for tomorrow, [i.e., sometime in the future,] I will die, and my voice will no longer be heard.
Hagiga 16:2
Looks like folks on the Oklahoma Court of Criminal Appeals [2] could take a page off Yehuda ben Tabbai’s book. My colleague Roy Peled just sent me the astonishing news that Richard Glossip–yes, the petitioner in Glossip v. Gross whose petition against the use of midazolam was rejected by the Supreme Court–has just had his execution halted. The CNN story exposed me to something I had not realized when reading the SCOTUS case: Glossip is widely believed to be innocent and Oklahoma’s Attorney General, who reviewed the case, does not stand behind the conviction. Here’s more on this (the italics are mine):
The latest round of litigation was brought to the Supreme Court by Glossip, with the support of the Oklahoma Attorney’s General office, who asked for his May 18 execution to be set aside.
The emergency hold on his execution will stay in place while the justices consider his request that they formally take up his case.
Glossip has maintained his innocence, having been convicted in 1998 of capital murder for ordering the killing of his boss.
A review launched by Oklahoma Republican attorney general found that prosecutors had failed to disclose evidence to Glossip that they were obligated to produce and that the evidence showed that the prosecutors’ key witness – the supposed accomplice of Glossip’s who committed the murder – had given false testimony.
Despite Oklahoma’s assertions that it could no longer stand by Glossip’s conviction, the Oklahoma Court of Criminal Appeal declined Glossip’s request that his execution be halted.
In their filings with the US Supreme Court, Glossip’s attorneys argued that – in addition to the obviously irreparable harm he would suffer if the execution moves forward – Oklahoma “will also suffer harm from its Department of Corrections executing a person whom the State has concluded should never have been convicted of murder, let alone sentenced to die, in the first place.”
Query: how is it possible that, despite the state’s inability to stand by the conviction, Oklahoma’s supreme appellate instance thinks that executing Glossip is fine?
Answer (via the Associated Press): Glossip’s case “has been thoroughly investigated and reviewed,” with Glossip given “unprecedented access” to prosecutors’ files, “Yet he has not provided this court with sufficient information that would convince this court to overturn the jury’s determination that he is guilty of first-degree murder and should be sentenced to death,” according to the ruling written by Judge David Lewis.
So much to be amazed at here, not the least of which is that the issue of Glossip’s actual innocence didn’t quite come up in Glossip v. Gross. There, just a brief time after midazolam played a horrendous part in the botched execution of Clayton Lockett, Justice Alito saw no problem with continuing to use it in Oklahoma executions, because Glossip couldn’t show that Oklahoma had a better option that midazolam (what kind of an argument is that? Is he a chemist? And anyway, do you know what’s better than midazolam? Death penalty abolition, that’s what). But at no point did the decision venture into actual innocence territory, which makes me wonder: would SCOTUS be less tolerant of midazolam if they were aware that Oklahoma’s top prosecutor is unwilling to stand by Glossip’s conviction? Not that questions of humane execution should be decided on the basis of innocence or guilt, but looking at this from the perspective of death penalty supporters who believe it is administered fairly, wouldn’t a credible wrongful conviction claim give you pause? Not even a bit?
Then there’s Oklahoma’s Criminal Court of Appeals, which seems unperturbed by a conviction that the state itself finds worrisome enough to disavow. Is finality really that important?
Let’s keep tabs on this case as it progresses.
[1] At some point I’ll write more about this bitter conflict – I’m reading Flavius Josephus’ commentary on the last days of Judah, and finding it an astute, sobering analysis of social movements, civil conflict, mainstream/radicalism discord, and the destructive force of church/state disputes.
[2] Oklahoma is unique in that its Court of Last Resort is split into two courts: the Oklahoma Supreme Court handles civil appeals, and the Oklahoma Court of Appeals handles appeals from the District Courts. For more, see here.
“Of what shall a living man complain, each man for his sins?” (Lamentations 3:39). “Of what shall a living man complain?” – it is sufficient for him that he is alive. Rabbi Levi said: The Holy One blessed be He said: Your life is in My hands, yet you complain? Rabbi Huna said: Let him stand like a mighty one, confess his sins, and not complain. Rabbi Berekhya said: Of what shall he complain about the One who gives life to the worlds? If he seeks to complain, it should be each man for his sins.
Eikhah Rabbah 3: 13
There’s a superb story in this morning’s Guardian by Sam Levin about what Gov. Newsom’s Quentin “Scandinavization” means for the people on death row. Levin had incredible access and interviewed some fascinating people, whose voices we almost never see in print: the people on death row themselves, who are coming to terms with an unfathomable change in their lives and future prospects. It may surprise those of us unfamiliar with death row that the change is not universally celebrated, and that some people feel downright dread about the prospect of being surrounded by people and other stimuli. Some express serious concerns about being transferred away from their family and lawyers. Others are thrilled with the new experiences, including those of the natural world, even as they are reeling from them:
Leaving death row was immediately overwhelming. His group of about a dozen men, heading to a prison outside Los Angeles in July 2021, made a brief stop in the Central Valley, and as they stepped off of their bus, many of them froze in their tracks, he said.
For the first time in decades, they were standing on grass.
When they explained to a guard why they were so stunned, the officer allowed them to walk to an even lusher patch of grass nearby. “We just marveled at the softness and the smell of the grass and the earth. It was remarkable. The officer let us stand there and watch as we left our footprints in the grass. It’s just an amazing thing that people take for granted.”
At their new prison, Correll Thomas, 49, who had been on death row since 1999, experienced sensory overload: “On the yard, it’s just movement – people running laps at different speeds, people doing push-ups and exercising, someone’s throwing a football back and forth, people playing soccer while others are playing football. I was keeping my head on a swivel, trying to take in as much as I can, turning right to left every two seconds. On death row, we don’t have such fast movements.”
This stuff–the opening of possibilities for people whose life was entirely doomed–is huge. It’s a scenario I’m intimately familiar with, because of my work on members of the “Class of ’72” and their parole hearings. In 1972, the California Supreme Court decided People v. Anderson, which found the death penalty unconstitutional because of its barbarism. The decision would be publicly lambasted and later reversed, and the death penalty would return in 1978, but the people who were on death row at the time–including Charles Manson, Dennis Stanworth, and Sirhan Sirhan–had their sentences commuted. Life with parole was not an option at the time, and so, all these people, who were not supposed to see the light of day, started coming up for parole in the late 1970s.
All the parole hearings I’ve looked at from the early 1980s reflect a sense of great public panic about the prospect that these folks would receive what was considered the standard sentence for murder at the time–fifteen years or so at most–and the sense of urgency to keep them behind bars. I wouldn’t be surprised if the rapid and considerable increase in the average length of a sentence for murder was because of the concerns about disproportionate punishments in these high-profile cases. Which raises a really interesting question: if you were supposed to be executed and you’ve had a reversal of fortune, are you supposed to just be grateful and roll with the punches of absurdity at the parole board? If you’re then barred from taking any programming because of protective segregation or whatnot, should you just shut up and say thank you, because you weren’t going to receive any programming anyway? Or are we willing to revise our opinions about people’s fates over time.
My colleague Alessandro Corda drew my attention to a new and intriguing development in retributivism: Julian Roberts and Nethanel Dagan propose revising our notions of just deserts. Rather than a “static” assessment of severity, conducted and calcified at a particular point in time, they propose a “dynamic censure” model, which is flexible to changes in censure that occur as time passes. Here they explain this model in their own words:
According to the dynamic model, the amount of censure that an offender deserves for his crime may change in response to certain acts of the offender. Sensitivity to some post-offence and, particularly, post-sentence behaviour thereby becomes internal to assessments of (continuing) deservedness of punishment. According to what we term ‘ static ’ desert, post-offence conduct does not affect the seriousness of the crime or the offender ’ s culpability for the offence. Under a purely desert-based sentencing rationale, the focus of the sentence is, therefore, tightly drawn upon the culpable act or omission. The offender’s general lifestyle and his actions after the commission of the crime should carry no weight. They are not seen as affecting an offender ’ s culpability and are therefore excluded from the sentencing equation.
A responsive censure-based approach, however, necessarily expands the ambit of inquiry at sentencing. Penal censure engages the offender in a more clearly communicative manner. Andreas von Hirsch and Andrew Ashworth capture the essence of the concept in this way: ‘ The punishment conveys to the actor a certain critical normative message concerning his conduct … this message treats him as a moral agent – that is an agent capable of moral deliberation ’. These authors further note that ‘ When the offender is thus censured, a moral response on his part is deemed appropriate ’ , but then suggest that ‘ The censure, however, serves only to give the actor the opportunity to make such a response ’ . Yet does it make sense to provide offenders with an opportunity but to then remain oblivious to whether they avail themselves of the opportunity ? We argue that the censuring authority should be attentive to the fruits of the offender ’ s moral deliberation, as they may affect the degree of censure that is (or remains) appropriate.
Even more importantly, a responsive censure approach draws the sentence administration phase into the purview of desert-based punishment. Desert theory contains restraining arguments for the punitiveness of the state, such as the ‘ drowning out ’ argument, progressive loss of mitigation for repeat offenders, the principle of parsimony, and related decremental penal strategies. However, desert theory fails to offer any restraints on the severity of punishment after sentencing, no matter what offender does thereafter. The punishment phase itself – which can last for years and even decades, sometimes for an offender’s entire natural lifespan – creates a normative ‘ vacuum ’ for desert theory. In contrast, we argue that a responsive censure-based account offers an important resource for evaluating the degree of deserved punishment into the administration of the sentence.
Roberts J. & Dagan N. (2019). “The Evolution of Retributive Punishment: From Static Desert to Responsive/Dynamic Penal Censure.” In: A. du Bois-Pedain & A. Bottoms (eds.) Penal Censure: Engagements within and Beyond Desert Theory, pp. 141-159 Oxford: Hart.
One possible critique of Roberts and Dagan’s groundbreaking article is that they are doing nothing more than articulating utilitarian reasons, such as rehabilitation, within the retributive framework. To which one might answer: Why is that a bad thing? If a person manages to avail herself of rehabilitative options, isn’t that as much a statement of the rebalancing of good and evil in their case as it is of their future reentry prospects? I think one can make a case about both. This also helps explain why, for example, I feel differently about the release prospects of Sirhan Sirhan and Yigal Amir. The former has been in prison for 55 years, improved himself in countless ways, picked up far fewer disciplinary write-ups than one would expect for such a long incarceration, and expressed serious contrition and a change of heart about terrorism and about violence as a solution for the world’s problems. The latter has been inside less than 30 years, expresses no contrition whatsoever, and is pretty much the same person he was when he went in. Even from a purely retributive perspective it feels like one of these people is more deserving of freedom than the other.
I think it’s fair to read the Guardian piece with an open mind, without drawing comparisons between life on death row and life in general population. There is only one road in your life, and that’s the road your life ends up taking. Gratitude is always a wonderful thing to feel and express, but there is plenty to fix in general population and in the parole process as well. Where someone should or should not have ended up is far less important then where they actually are. Let’s fashion our policy to acclimating these folks to the yard 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.
While at the American Society of Criminology conference, I had the good luck to run into a colleague I really like and admire–Dirk Van Zyl Smit from the University of Nottingham. Dirk shared with me two recent decisions of the European Court of Human Rights (ECHR), in cases that he worked on (the ECHR allows professors to submit written briefs as “intervenors”, akin to what we do with amicus briefs here in the US), which illuminate the strange contortions that European countries go through in an effort to determine just how much they are willing to passively cooperate with USian punitive barbarism.
A little bit of background: Article 3 of the European Convention on Human Rights states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In 1985, Protocol 6 to the Convention, which abolished the death penalty for all members, entered into effect. In accordance with the Protocol and with Article 3, all European Council members have abolished the death penalty (Belarus is not and has never been a member; Russia was recently expelled.) Moreover, the Council of Europe fights the death penalty within and outside its borders in numerous ways, including the well-documented refusal of its members to provide the U.S. with chemicals used in American execution protocols. One important aspect of this abolition-beyond-borders policy is a European Court of Human Rights case from decades ago, Soering v. United Kingdom (1989), which forbids extradition of people to the U.S. if they might face the death penalty there (virtually all European countries have extradition treaties with the US, as you can see in the above map.) Dirk tells me that the practice in these cases is to ask the U.S. to provide a guarantee that the death penalty will not be sought against the extradited person.
But what about life without parole, another form of USian extreme punishment? In Vinter and Others (2013) the ECHR found that “irreducible” life sentences were inhumane; this was applied in Trabelsi v. Belgium (2014) to the extradition setting. But later, in Harkins v. Home Secretary (2014), England’s High Court of Justice narrowly interpreted Trabelsi as applying only to life sentences that were grossly disproportionate or completely lacking in any mitigation mechanisms (such as commutation or parole.) Harkins and other cases (Wellington and Haffiz) treated Trabelsi as somewhat of an extreme aberration.
The Council of Europe’s hesitation to wage a war against LWOP makes more sense when you consider the LWOP situation in the European countries themselves, who also seem to interpret Trabelsi rather narrowly. Only Croatia, Bosnia and Herzgovina, and Portugal have abolished all forms of indefinite imprisonment. So did Spain, in 1928, but it brought the penalty back in 2015. By contrast, many countries have legally prescribed LWOP sentences: England and Wales, the Netherlands, Moldova, Bulgaria, Italy, Hungary, Malta, Cyprus, Albania, Ukraine, Serbia, and the Republic of Ireland. In some of these countries, evidentiary findings of dangerousness can prevent life prisoners to be released. In Austria and in Ukraine, the only way out of life imprisonment is presidential clemency or a finding that the person will not commit further crimes. As a consequence of Trabelsi, the Netherlands has recently allowed resentencing of life prisoners who have served at least 25 years. Even in LWOP-retentionist European countries, courts retain judicial discretion to decide whether a sentence of life should include parole or not.
One of the two recent cases before the ECHR involved Ismail Sanchez-Sanchez, who was arrested in the UK for his role in a conspiracy to ship more than 2600 kgs of Mexican marijuana to Atlanta, GA. At his extradition hearing, Sanchez-Sanchez argued that there was “a real risk that he would be sentenced to life imprisonment without parole.” The British judge, following the logic of Harkins, tried to assess the likelihood that Sanchez-Sanchez would receive LWOP at his federal trial. For the drug conspiracy alone, Sanchez-Sanchez was unlikely to receive a life sentence on any count, and it was even less likely that he would be serving his sentences consecutively. The fact that one of his co-conspirators died of a fentanyl overdose made it more likely that they prosecution would request a life sentence; such a sentence, however, would not be “irreducible”, as Sanchez Sanchez could appeal, apply for executive clemency, and/or request compassionate release.
The ECHR looked at the case through the lens of both Trabelsi and the British cases, and also received some information from the U.S. federal government that addressed both the prevalence of LWOP in the federal system and the particulars of Sanchez-Sanchez’s case. As to the latter, the U.S. Attorney specified that the prosecution recommended a life sentence for each of Sanchez-Sanchez’s conspirators, but they pled guilty and so avoided that sentence. The ECHR highlights the distinction between acknowledging that LWOP is inhumane as an institution within member countries and applying it to extradition to the US:
Within the domestic context, the applicant’s legal position, having already been convicted and sentenced, is known. Moreover, the domestic system of review of the sentence is likewise known, both to the domestic authorities and the Court. In the extradition context, on the other hand, in a case such as the present where the applicant has not yet been convicted, a complex risk assessment is called for, a tentative prognosis that will inevitably be characterised by a very different level of uncertainty when compared to the domestic context. This calls – as a matter of principle, but also out of practical concerns – for caution in applying the principles flowing from Vinter and Others, which were intended to apply within the domestic context, to their fullest extent in the extradition context. . . Therefore, while the principles set out in Vinter and Others must be applied in domestic cases, an adapted approach is called for in the extradition context.
The first step in this “adapted approach”, according to the ECHR, is an inquiry into the “real risk” that the particular person facing extradition will receive LWOP after extradition. If so, we move on to the second step – an inquiry whether “there exists in the requesting state a mechanism of sentence review which allows the competent authorities there to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.” Because of the uncertainty surrounding Sanchez-Sanchez’s odds of LWOP, as well as the sentences of his co-conspirators, the ECHR concludes that “the applicant cannot be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold”, which renders the second step of the analysis unnecessary.
In the second case, Beverly Ann McCallum, suspected of involvement in the brutal murder of her husband in Michigan, was apprehended in Italy (the murder was a cold case from 2004, solved only in 2015.) During her years of absence from the U.S., her daughter and a friend were charged with first degree murder (the friend pled to second-degree murder; the daughter pled not guilty, was tried, and received LWOP.) The Italian court found that the extradition could go forward given the sentence mitigation options under Michigan law, and McCallum appealed. While awaiting the decision (under home arrest due to ill health), McCallum received a diplomatic note from the Eaton County district attorney, promising that if extradited she would only face second-degree murder charges (no conspiracy charges, only disinterment and mutilation of a dead body), taking LWOP off the table and resulting in a maximum sentence of life with parole. Under Michigan law, lifers are eligible for parole after 15 years, and may also petition the governor for clemency. The Italian authorities, animated by this communique, extradited McCallum to the United States.
Before the ECHR, McCallum argued that the diplomatic note contained insufficient assurances that the Eaton County DA would not revert to the serious charges (note: they did keep their promise despite the brutality of McCallum’s involvement in the murder – H.A.) The ECHR disagreed: Diplomatic notes, they wrote–
are a standard means for the requesting State to provide any assurances which the requested State considers necessary for its consent to extradition. … [T]he Court also recognised that, in international relations, Diplomatic Notes carry a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States. … [I]t seems to the Court that if, following her extradition, the original charges against the applicant were to be revived, that would not be compatible with the duty of good faith performance of treaty obligations.
The ECHR also proceeded to dismiss McCallum’s argument that her eventual release on parole depended on the unchecked discretion of the Governor of Michigan in granting clemency and was therefore “irreducible.” The Court again disagreed, highlighting the fact that the clemency power was procedural, rather than legislated, and had nothing to do with parole, which in Michigan is the sole purview of the parole board:
[T]he Court is not persuaded that the applicant’s understanding of the Michigan system is correct. It observes that. . . a prisoner’s release on parole is at the discretion of the parole board. While the Governor of Michigan indeed enjoys a broad power of executive clemency, he or she is not involved in the parole procedure. Nor do the relevant legal provisions empower the Governor to overrule the grant of parole to a prisoner. As indicated above, appeal against the grant of parole lies to the competent circuit court.
An applicant who alleges that their extradition would expose them to a risk of a sentence that would constitute inhuman or degrading punishment bears the burden of proving the reality of that risk. In light of all of the above-mentioned factors, the Court considers that the applicant has not discharged that burden. Contrary to her claim, it appears that there is no real risk of the applicant receiving an irreducible life sentence, i.e., life imprisonment without eligibility for parole, in the event of conviction of the charges now pending against her in Michigan.
I find two important takeaways here. The first is that the ECHR draws a real line between the death penalty–now widely outside of the acceptable margin of reasonable state behavior for Council of Europe members–and LWOP which, unless absolutely mandatory, remains within the realm of the reasonable. The second is that, among the members of the “extreme punishment trifecta”, life with parole–even with everything we know about the slim odds of obtaining parole–is not in the same league as LWOP, and assurances that the sentence will be the former fully satisfy the requirements of Article 3. What this teaches me is that American exceptionalism seems to have been relegated only to the world of the death penalty, and that Europe isn’t that far ahead of us in fully recognizing the possibility of LWOP as barbaric.
SF-based nonprofit Urban Alchemy, which I discussed here and here, is in the news this week. First, there was BBC coverage, and this morning a lengthy investigative story in the Chron. Mallory Moench and Kevin Fagan’s story is interesting and informative, and offers lots of useful perspectives, but does adopt an unnecessarily skeptical emphasis and tone, which rankled me because I work in the Tenderloin and see the transformation it has undergone through Urban Alchemy’s intervention.
In the early pandemic months, the open drug market around my workplace was so brazen and violent that my students feared going out of their dorm rooms at the Hastings towers. Mayor Breed and SFPD tried to resolve the problem by doing police sweeps of the area, which only resulted in new people coming in to deal and shoot every day. At some point I was contacted by a civil rights org, which shall remain anonymous out of compassion, with a well meant, but absurd, invitation to support their lawsuit against gang injunctions with an amicus brief refuting the existence of the drug market. Refuting? I thought. Are you kidding me? Do you have eyes? Do you live or work here? It was a prime example of what I’ve come to recoil from: the refusal, by some quarters of the Bay Area’s delusional left, to concede that crime is real and has real victims and real implications (that’s why I have no patience for armchair abolitionism, by the way.)
Then, our Dean signed a contract with Urban Alchemy, which has them support the area adjacent to the school. This proved to be a complete game changer. The first morning I showed up to work with the UA practitioners surrounding the perimeter of the school I was amazed; the change in energy, the peacefulness, the friendliness, the sense of personal safety, were palpable. I started chatting with some of the practitioners around my workplace, who came from backgrounds of serious incarceration, and found that their personal experiences provided them with just the right interpersonal skills to intervene in complicated situations in the Tenderloin. Finally, someone is doing the right thing, I thought. There are so many occupations in which a background of criminal invovement and incarceration is a priceless resource – and this includes lawyering. Recently, I interviewed people with criminal records who applied to the California bar and wrote:
In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character.
My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage.
To Moench and Fagan’s credit, their piece does represent this view; one of their interviewees explicitly says that looking at justice involvement as an asset, rather than a barrier, is revolutionary. But overall, their reporting exceedingly amplifies the voices of the naysayers above those of the many people who live and work in the Tenderloin who are quietly grateful for Urban Alchemy’s presence in the streets. You’ll be hard pressed to find detail in their story of the many good deeds that the practitioners perform daily, ranging from lives saved with Naloxone (several times a week, I’m told) to skillfully providing my female students a sense of personal safety when walking the Tenderloin in the evening. Several students described how a practitioner subtly positioned himself between them and someone who was getting too close, and how the threatening situation evaporated before it could evolve in unsavory directions. Moench and Fagan give this a passing nod, but their piece fails to properly capture the magic.
This brings me to another observation: There hasn’t yet been a project evaluation for Urban Alchemy’s Tenderloin intervention. Executing such a study would be a daunting task for several methodological reasons. First, there’s no comparative baseline for the intervention. The situation before their intervention was so abnormal that it would be hard to use it as a control, even if data were available. If the comparison is geographic, it would suffer from the usual problems with situational crime prevention: focusing an intervention in a particular geographical zone means that criminal activity is displaced onto adjacent zones, so the two comparators are not independent of each other. If the study is structured as an in-depth phenomenological project (which is what I would do if I were to do this–and a colleague and I are thinking about this), there’s the Star Trek problem of the Prime Directive: researchers or students hanging out in the Tenderloin to conduct observations would, themselves, change the dynamics in the area that they study. A big part of Urban Alchemy’s success lies in the fact that they do things differently than SFPD. They do not rely on surveillance cameras; in fact, they eschew them, and having any sort of documentation would be detrimental to their working model. And people standing in the corner for hours and taking notes would chill everyone’s behavior. Fieldwork here has to be conducted with care.
I have one more observation to offer: I now work in a service profession that requires crowd management and interpersonal intervention (as a city pool lifeguard) and also have multiple years of experience managing crowds in rowdy, inebriated, unusual situations (as a Dykes on Bikes registration volunteer at Pride and at Folsom Street Fair, for example.) The vast majority of people you encounter at these settings are lovely and a delight to be with. But the one or two percent who are decidedly not lovely can really test anyone’s self control. I’m talking about the driver who insists on driving the car into the area you’re trying to cordone off, the slow dude who insists on swimming in the lane with faster people and not letting them pass, or the people repeatedly told (politely) to move to the sidewalk so that they are not run over by trucks who don’t go where they’re told. My experiences are nothing compared to what the Urban Alchemy practitioners encounter every day on the Tenderloin streets. I really wish our reporting on this were sympathetic to the enormous challenges of interpersonal interactions in this very rough patch of our city and more appreciative of how much conflict and anxiety are spared when people who know what they’re doing take the lead.
Tomorrow, the Californians who have not yet voted by mail will participate in yet another recall election. I’ve already spilled enough pixels explaining why I voted no, and why you should do the same. But I do want to say something about the deep ambivalence that prison activists and advocates probably feel around this election. People can and should contain multitudes of contradictions and complicated opinions.
Over the weekend, Bob Egelko of the Chronicle wrote this interesting and insighftul piece about Sirhan Sirhan, now 77 years old after five decades in prison for the murder of Robert Kennedy. Sirhan was recommended for parole by the board,, which means that his case is now on Newsom’s desk. And as Egelko explains (with a little assist from Stanford’s Bob Weisberg and from yours truly), the political calculus is heavily rigged against Sirhan:
“Anybody that has ever walked into my office, you have to walk by photographs of Bobby Kennedy’s funeral procession, those famous train photos,” the governor said, according to a transcript provided by his office. “The first photograph, the only photograph you will see in my office is a photo of my father and Bobby Kennedy just days before Bobby Kennedy was murdered.”
Newsom’s leading opponents in the recall are well to his right politically and would seem equally unlikely to approve Sirhan’s parole. And any decision to release Kennedy’s murderer would surely become a flash point in the 2022 governor’s election.
“I’d be shocked if Newsom didn’t reverse” the parole board’s decision, said Robert Weisberg, a Stanford criminal law professor. Although the governor would have to explain why he believed Sirhan still posed a threat of violence, Weisberg said, he would most likely be “responding to a public view that this guy’s crime was so heinous that he shouldn’t be paroled.”
Egelko is right on the money, as was Jonathan Simon in Governing Through Crime: it is an asset to left-wing politicians to position themselves as tough-on-crime where their supporters have no leverage. This is especially true in California which, as Vanessa Barker explains, is a populist, polarized state. The only two discounts on that front have been recession-era fiscal concerns and riding a popular racial justice wave in progressive cities. And keep in mind that Sirhan is not alone: the entire “Class of ’72′”–the folks whose sentences were commuted after People v. Anderson, including the Manson family members–has been reviled for decades. After the return of the death penalty, the weakening of the parole system, and the politicization of the whole process, the prospects of release for anyone who could peel centrists off the left base became dim. Egelko explains why:
The law allowing the governor to veto parole decisions was passed after courts rejected Gov. George Deukmejian’s attempt in 1983 to block the parole of William Archie Fain, who had served 16 years in prison for murder and rape in Stanislaus County. The Legislature put Proposition 89, a state constitutional amendment, on the ballot in 1988 and it was approved by 55% of the voters.
Even before the ballot measure, convicted murderers were seldom paroled, even after decades in prison. The board has historically approved their release in less than 10% of the cases, and in some years less than 5%, leaving the others to continue serving life sentences.
Gov. Pete Wilson overruled the board about 30% of the time. His successor, Gov. Gray Davis — who declared, soon after his election, that “if you take someone else’s life, forget it” — vetoed all but six grants of parole, just above 1% of the total approved by the board. Gov. Arnold Schwarzenegger rejected about 70% of the board’s parole decisions.
The trends shifted under Gov. Jerry Brown, who overturned the board only about 20% of the time, and so far under Newsom as well.
And warnings of the dangers of paroling convicted murderers do not appear to be supported by the evidence: Between 1995 and 2010, 48.7% of all former prisoners in California went on to commit new crimes after their release, but among the 860 prisoners convicted of murder who were paroled, only five — 0.58% — had been jailed or imprisoned again, according to a report by the Stanford Criminal Justice Center.
“You age out of violent crime,” said Hadar Aviram, a law professor at UC Hastings in San Francisco.
But while Newsom has overseen the court-ordered reduction of the prison population, now at lowest its level since 2006, and has proposed closing two state prisons by 2023, Aviram — author of the recent book “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” — said Newsom’s response to the proposed parole of a Charles Manson follower was a likely indicator of his future decision on Sirhan.
The parole board has repeatedly recommended release of Leslie Van Houten, who was convicted of taking part in two of the Manson family’s Los Angeles-area murders in 1969, when she was 19. While Van Houten has a clean prison record and has earned college degrees behind bars, Newsom said in November that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying” — his second veto of her parole, after two similar decisions by Brown.
“The gubernatorial veto was introduced in 1988 anticipating precisely this scenario,” Aviram said. It was a “power shift,” she said, from “professionals,” such as psychologists and prison counselors who advise the parole board, “toward the limelight of sensationalized, politicized coverage” and changed outcomes.
The upshot of all this: I feel quite bitter. In the last few weeks I’ve seen the people who have ample cause for resenting Newsom–the people whose family and friends are behind bars, facing risk of illness and death because this administration wallowed and waffled on releases while at the same time vigorously defending medical atrocities, indifference and ineptitude in court–unequivocably and firmly doing the right thing, voting “no” on the recall and encouraging everyone they know to do the same. I resent that they are being put in this position. I resent that we are all being put in this position. I resent that a politician whom I deeply admire for what he has done for same-sex marriage and death penalty abolition takes the easy and expedient way–again and again!–whenever someone behind bars is concerned. I resent that incarcerated people and their families are always the sacrificial lambs in these left-versus-right California tumbles, because the right-wing candidates are perceived as much worse. I resent that the incentive structure is always stacked against releasing old and sick people from prison–even though there is compassion and redemption to be gained and nothing to be lost from a public safety perspective. I resent that the people doing the hardest activist work stand to gain absolutely nothing–no sympathy, no consideration, no concessions, no compassion, no fairness–from doing the right thing for everyone else.
In sum, if you feel resolute and at the same time awkward about your “no” vote, you’re not alone. You’re part of a captive support contingent for blue politicians in California–some members of which are literally captive. It is possible to accept that anyone on the replacement list–particularly Larry Elder–would be disastrous as governor, and to respect and admire Newsom as a capable and experienced politician, while at the same time deeply resent the fact that, once again, urgent human rights issues–true life-and-death matters–have been swept under the rug.
How to fix this? Abolish the gubernatorial veto. Diversify parole boards. Change parole from a wacky card game with no rules, which the house always wins, to an instrument of true hope and transformation. But none of this will happen before tomorrow. So, we will dutifully vote “no”, because we are not single-issue dolts, and continue to await the change that never comes.
