Like many other campuses around the United States, mine is papered with despicable flyers espousing an ignorant perspective on the Israel-Hamas war. My Jewish students are understandably upset and infuriated, and so am I. Every day brings fresh, unbearable details about the massacre. The contrast between that and my outside surroundings is a dissonance that fractures me to the core. In the coming days, many campuses, including ours, will see abominable displays of hatred, antisemitism, and a breathtaking level of illiteracy regarding international affairs. We’ll see laughable, imaginary coalitions between, say, Hamas and the fight for trans rights. This will be ugly and it will be emotionally difficult to stomach. It already has been a difficult struggle to function at work and it’s likely to endure for some time.
At such times, supporting a legal regime that has absolute free speech is deeply distressing and challenging. I finally found out who first wrote, “I detest what you write, but I would give my life to make it possible for you to continue to write”–it was Voltaire biographer Evelyn Beatrice Hall, in 1906. For First Amendment enthusiasts, this era epitomizes that sentiment–the price of freedom is walking around with a broken heart, even if the open goal of the speakers is to break it.
The image above depicts the Illinois Holocaust Museum in Skokie, IL; in the 1970s, Skokie was the setting for a free speech debate culminating in a Supreme Court decision that in many ways reminds me of the situation on the ground today. David Goldberger, at the time the legal director of the ACLU of Illinois (and later an Ohio State law professor specializing in free speech) has written a fascinating account, complete with images, of his representation of the Nazis in this case–not only what it was like to have them for clients, but also the public response. I really recommend that you read it verbatim. Among many things I didn’t know was the fact that Meir Kahane, in many ways the ideological granddaddy of murderous Jewish nationalists like Ben Gvir et al., started his activity in the US with the Jewish Defense League, who appeared at the ACLU offices with baseball bats! Another thing I didn’t know was that the ACLU’s choice to represent the Nazis in the Skokie trial led to tens of thousands of resignations, but also to some support letters from holocaust survivors who said that “they wanted to be able to see their enemies in plain sight so they would know who they were.” The ACLU is taking the same approach regarding the protests we are experiencing now.
I really recommend reading Goldberger’s entire account, and it’s even more interesting to ponder it through a comparative lens. Not all countries have absolute free speech; many place limitations on hate speech and incitement to racism or violence. That approach ushers its own host of problems: what is and is not “hate speech” or “incitement” is a subjective determination, and judicially delving into these questions inevitably brings in ideological perspectives and heuristics. I’m already seeing some troubling incidents in Israel in which universities and schools waste precious time and energy on McCarthyist investigations of their students, faculty, and staff.
It’s important to distinguish the general question of what should and should not be legally allowed from the more particular question, what these opinions tell us about the quality of the education we provide and about the quality of the people who espouse them. For some idea on how these ideas fester and infect people to this degree, read Julia Steinberg’s account of her own education. It exposes many of the flaws of what passes nowadays for progressive education, and dovetails with my unwillingness to responsibly participate in similar indoctrination efforts at my workplace and elsewhere. Steinberg’s piece was an important reminder that hateful idiots don’t spring into being, fully formed, in college or law school; they are raised to be the way they are in their K-12 years. I, for one, plan to keep a very watchful eye on my child’s education, to ensure that essentialist, separatist identitarian rubbish isn’t inflicted on the kids in this mindless manner.
It is also important to distinguish the right to free speech from the consequences of putting oneself out in public espousing horrendous views. Several law students in fancy schools are finding out, to their shock and surprise, that law firms are not all that keen to hire people who publicly extol the virtues of slaughtering, raping, maiming, burning alive, beheading, and kidnapping people. That being an antisemitic idiot with repugnant views is not a professional asset and has consequences in the job market shouldn’t be particularly surprising, unless you spent your undergraduate years under the tutelage of morally bankrupt people for whom espousing these “edgy” and “interesting” views was a calculated career strategy that catapulted them to prominence in fields like ethnic studies (read here a courageous letter by a UC Regent calling out the Ethnic Studies faculty council letter for what it is.) No wonder these students think they can spew horrid opinions in public and face no consequences whatsoever. What I find most amazing about the whole thing is that some of my colleagues are surprised by what they see on the campus quad. How is any of this surprising? Academic institutions, including the ones I work for, have breathed life into this Golem for years, and the last thing they should find astonishing is when it comes for them. They taught these people, but they didn’t educate them, and the proof’s in the rancid pudding.
A week ago I was asked to comment on an announcement by the Governor of New Mexico who, reacting to a terrifying rise in gun violence in Albuquerque, issued an executive order that would suspend both open and concealed carry laws in Albuquerque and Bernalillo County, temporarily banning the carrying of guns on public property with certain exceptions. Following quite a bit of backlash from both parties, the Governor then limited the ban to parks and playgrounds.
Because this is not my area of expertise/publication, I quickly consulted with my colleague Prof. Jennifer Carlson, who is one of the nation’s most impressive experts on gun policy. Jennifer agreed with me that, even though the Governor’s action makes sense from both moral and practical stand point, it is not constitutionally defensible, certainly not in this judicial climate, after the Supreme Court’s recent decision in Bruen. Still, it’s worth asking ourselves the question whether, even if the constitution allows us to bear arms, it is a good idea to go ahead and do it.
Recently, the Bureau of Alcohol, Tobacco, Firearms and Explosives released a report on guns, which you can read here in its entirety. This NPR story provides some important takeaways which, in my opinion, all boil down to the same conclusion: anyone thinking that the world of gun ownership can be easily dichotomized into good guys/bad guys or legal/illegal guns is not seeing the full picture.
For one thing, it turns out that more than half of gun crimes utilize lawfully purchased guns. To this number, we must add a million stolen guns which were held in legal hands until recently. Notably, the vast majority of guns used for criminal activity are pistols, which a lot of people favor for legal personal use. I think the big question anyone considering a gun purchase should ask themselves is: are the chances that you’ll be using this gun to stop the proverbial bad guy anywhere near the chances of an accident in your household or your gun being stolen?
On a personal note, as many readers know, I was in the Israeli army for five years, engaging in no combat whatsoever (unless criminal appellate litigation counts, but it does not require guns.) For much, albeit not all, of that period, I walked everywhere with my M-16 strapped to my body, including to the bathroom. The idea of lugging around a thing that presented far more inconvenience and risk than comfort and safety holds no charm or mystique for me, and I suspect that, if the symbolic/emotional attachment to the idea of gun ownership is effectively stripped away, a lot more people will see the risk calculus as I do–because it is in congruence with the data.
In the sixties, Todd Gitlin, then a young, passionate student, became involved in the fight against the Vietnam war and in the struggle for equality. Alongside his friends at Students for a Democratic society (he was the president in 1963-1964) he agitated, organized, protested, held movements, registered people to vote in the Deep South, and fought against orthodoxy in the Democratic party and for a New Left. Many years later, already a sociology professor and incisive critic of the movement he helped create, he evocatively wrote about how much activism had meant to him. The first half of his masterpiece The Sixties reads like a manifesto of hope; the second half, though, is rife with confusion. Plans for political action got muddled with self expression and individuality a-la diggers and the Mime Troupe (to read a different perspective on those, read Peter Coyote’s fantastic memoir Sleeping Where I Fall); people he admired and respected as leaders disappointed at best and disintegrated at worst; former comrades slid further and further to the left, established the Weather Report, and engaged in clumsy but frightening violent actions Gitlin could not condone or comprehend (learn more about those in the podcast Mother Country Radicals). Gitlin’s later books reveal an author and thinker who still very much believes in the ideals of socialism and peace, but resents the splintering and performativity of identity politics that he believes shattered the movement in the 1970s.
Today I found myself going back to one of my favorite books by Gitlin, Letters to a Young Activist, which evokes that deep ambivalence and wisdom that comes only from spending years in a movement you both admire and fiercely critique. Gitlin talks about the importance of passionate motivation but also reminds young activists not to “think with their blood”; highlights the crucial role of shining a light on the wrongs of your own side, but also the importance of letting self-flagellation by the wayside; and warns against the dangers of “marching on the English department”, as it were, while one’s opponents “march on Washington.”
What brought me back to Gitlin were a number of recent conversations with younger folks I like and admire a lot about their disillusionment with infighting and lack of integrity in radical movements and organizations with noble goals and true dedication. People admired and respected in positions of leadership turn out to behave in disappointing ways; serious issues get buried or, on the opposite end of the spectrum, debated to death, complete with public denunciations and humiliations; minute complaints turn into struggle sessions that sap everyone’s will to come back; and eventually people come to demonize their comrades and brothers in arms more than they do the bad guys they are fighting against.
Hearing about this stuff is always heartbreaking, especially when I see folks who I know put in countless, tireless, thankless energy, time and effort into organizing and activism express disillusionment and despair. I can offer very little solace in this sort of situation; dealing with big disappointment as an idealist is really hard, and calls for more than one self-compassion break.
Kristin Neff, who has written and spoken extensively about self compassion and mindfulness, offers a three-step formula for anyone who is struggling. The first step is to admit that this is, indeed, a moment of suffering, a low point in the person’s life. The second, which I’ll elaborate more on in a bit, is understanding that suffering is universal, a part of life, and that everyone suffers–sometimes intensely–from time to time. And the third is offering oneself some kindness, either through expressing it or through a gentle hand touching one’s own heart.
I like this exercise a lot, and find the second step especially important, because as Brené Brown explains, one of the traps of shame and self-pity (by contrast to self compassion) is to see one’s experience as unique and idiosyncratic. I see a lot of this horror in young, committed activists, who are so distraught by occurrences in their group or community that they believe it must be prey to some special variety of pathology. This is where I can offer some comfort. As regular readers know, I’ve written and spoken quite a bit about the sixties, and part of my work on Yesterday’s Monsters included learning about cults and movements that swirled around the California counterculture when Manson put together his “family.” When the murders occurred, and when Manson and his followers were identified as the culprits, they evoked a wave of horror because cults and their inner workings were not well known or understood at the time. Indeed, the idea of thought control and brainwashing was associated at the time only with Communist regimes such as China and Korea (see an example of this in The Manchurian Candidate.)
But while this group stood out in the heinousness of their crimes, they were by no means the only group led by charismatic leaders and/or a vision to be plagued by exploitation, violence, and oppression. In the mid-seventies, the California legislature held a hearing for family members of young adults who had joined cults, hearing testimony after testimony about how their loved ones fell in thrall to some charismatic leader or other, started believing some stranger things, dramatically changed their appearance or habits, isolated from them to the point of estrangement, and gave all their effort and resources to the cult. Witnesses testified about the Moonies and about a variety of Christian apocalyptic cults. The legislators at the hearing tiptoed between expressing deep concern and sympathy and reminding everyone that cult members were adults with the freedom of religion and expression.
To this day, whenever I see people criticize radical activist movements that fall prey to unsavory activity and conflict, the demonizing language compares the movement to a cult. This is not a scientific or easy process, because cults turn out to be quite a malleable category. But one need not go into the reeds to identify pathological cultish elements in pretty much every activist movement, including influential and notable ones. Three years ago I wrote a post about this stuff that identified a lot of the obvious issues: betrayals of the cause, identitarian splintering, sexual exploitation or perceived exploitation, financial malfeasance, etc. Having read a lot about movements in the 1960s and 1970s, I see situations where the FBI were infiltrating and persecuting organizations and cells and eventually didn’t have to do anything to hasten their demise: these outfits crumbled on their own, without the malignant interference of the feds, because they suffered from these inherent issues. Stanley Nelson’s fantastic documentary about the Black Panthers is a case in point: there’s nothing the FBI could have done to dissolve the Panthers that Huey Newton didn’t do himself. Larry Kramer’s acerbic account of ACT UP in The Normal Heart shows the awful indifference and demonization the activists were working against, but also how they sabotaged themselves through horrendous infighting. I see this stuff again and again.
Here are some factors–and this is by no means an exhaustive list–that are part of this malignant cocktail. Oftentimes, radical organizing draws people who seek the type of camaraderie and belonging that membership in a close-knit group of likeminded people working for an important cause can provide. Some young folks get swept in this energy because home life is rife with trauma or neglect, or because their school or employment networks haven’t improved their lot socially. I’m not saying their commitment to the goal is not genuine; all I’m saying is that excitement about a common vision is infectious and promises an embrace that is very difficult to resist if one feels lonely or traumatized. The fact that a lot of radical movements strive toward ideological purity is also part of this. It isolated people and drives them further into the insular experience of the group, with no reality checks and balances on the outside. I’ve spoken to mixed-race couples that broke up on account of a commitment to racial justice that was so strong that it eclipsed years of love and commitment. I know of people who took the Liberation Pledge (not to eat where animals are served) and ended up unable to eat with anyone from their family or friend group outside vegan movements. Not only does this mean all of one’s social efforts are invested in a relatively small group of people, but that group ends up being an echo chamber and it’s very difficult to test ideas in the real world. And moreover, anytime purity and adherence to principles are the yardstick for worthiness, people turn on each other and compete over who is a more zealous advocate for social change. This process of eating each other seems to accelerate as shit starts hitting the fan, because people who are afraid and fighting for their own survival are sure to lash out at the people standing closest to them.
The fact that crappy things are happening to committed activists throughout the social justice field is not cause for cheer, but I think that anyone who thinks their organization is uniquely pathological might derive some comfort from knowing that, apparently, homo sapiens seems to find a way to ruin communities centered on ideals and struggles pretty much all the time. I don’t think we’ve found a way to organize and seek social change that doesn’t end up marred in these kinds of self destructive crap. I wish we could, but I’m in my late forties, have organized and agitated plenty, and I’m just not seeing it. The one that came closest to being a healthy organizing container, for me, was the #StopSanQuentinOutbreak coalition; it wasn’t without its warts, but it was highly effective and overall a really positive, supportive environment. I suspect the magic had something to do with the fact that, in addition to the long-term decarceration vision, we had tangible, short-term emergency goals, and thus no time for faffing. Perhaps human nature, like nature in general, abhors a vacuum, and will fill any available space with infighting and oneupmanship.
I don’t know what the answer is. But I do think that understanding we’re talking about universal phenomena that radical movements go through can be helpful to people who think they’re stuck in a uniquely dysfunctional scenario. Every unhappy family, as Tolstoy famously wrote, is unhappy in its own unique way, but they are still all unhappy. And that means that any person who believes in an ideal, a vision, a blueprint for far-reaching social change, and is committed enough to put a lot of work into it, will experience heartbreak from time to time. If this is you now, then it’s simply your turn. Offer yourself all the kindness you need to get through the rough patch, and then see if there’s another path for you to change the world or bring about your values in a way that supports your heart better.
One more indictment! This time, it comes from Fulton County, Georgia, where Trump tried to bulldoze the Secretary of State into “finding” him enough votes to win. Eighteen additional friends (and 30 unnamed co-conspirators, probably anonymized to entice them to flip on the named defendants as in the recent federal indictment) come aboard for the ride with RICO violations and a conspiracy. Read the indictment in full here.
This is a lengthy indictment, containing 41 charges, the first of which is a violation of the Georgia RICO Act, which requires that the defendants “while associated with an enterprise, unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, such enterprise through pattern of racketeering activity.” Beyond the strategic value of using the RICO Act as a framework for the conspiracy (it is easier to prove than its federal equivalent, and it encompasses a lot of the remaining charges, thus helping create a streamlined narrative), there’s something symbolic about relying on a statutory machine birthed for the purpose of bringing down crime organizations, which, come to think of it, is exactly what this enterprise was.
One’s gotta love the simplicity of the opening paragraph:
Defendant Donald John Trump lost the United States presidential election held on November 3, 2020. One of the states he lost was Georgia. Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined conspiracy to unlawfully change the outcome of the election in favor of Trump. That conspiracy contained common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and in other states.
After defining the relationship between the defendants and their co-conspirators as an “enterprise,” the indictment continues its on-the-nose organized crime reference by listing the “manner and methods of the enterprise”: holding hearings in which they issued false statements about the election results, repeating these falsehoods to various office holders in Georgia, convening a fake slate of electors (complete with forged documentation–as part of the Eastman-Chesebro scheme), false accusations of election workers, stealing data, soliciting the assistance of Pence and the DOJ to bring about the reversal of fortune in Georgia and, of course, the inevitable coverup, including perjury.
As per RICO requirements, the indictment then lists 161 racketeering acts, breaking the aforementioned modus operandi into discrete events. These are a real eye opener even for those of you who were following the events in real time. At the time, I was under the impression that the Trump phone call to Georgia Secretary of State Brad Raffensperger was the coup de grâce of the whole thing, and I don’t think that was far from the truth, particularly if you listen to the whole thing:
I remember listening only to the critical bit, in which Trump bullies and threatens Raffensperger, but in the full recording you can hear his usual tactics: bombard the listeners with facts that sort of sound valid but are completely false, and revert to insults, etc., when that doesn’t yield immediate submission.
Thing is, reading each of the additional acts fleshes out a story of brutal, systematic intimidation, complete with utter disregard for the safety of election workers who simply did their job and were rewarded with death threats. The remaining 40 charges are of more particular crimes: forgeries, impersonations, threats against public office holders, etc. The emerging picture is well worth the criminal enterprise framing; this indictment, even more than the federal ones, calls Trump and his lackeys what they are.
It’s a surreal experience to read the new Trump indictment, which you can find here verbatim with NYT annotations, while in Israel – it reads disturbingly prophetic about other parts of the world. It’s also been deeply unpleasant to relive the events from last year, as they are narrated chronologically and concisely (rather than revealed daily through the news cycle.) I just spoke about this with the one and only Mitch Jeserich on KPFAand here’s a link to the show. Here are some of the basics.
Charges
The indictment consists of four counts, all of which are based on the same factual basis:
Conspiracy to Defraud the United States, which requires proving that (a) two or more people (b) conspire to commit an offense against or defraud the United States and (c) at least one of them commits an act to further the conspiracy (5yrs max and/or a fine);
Conspiracy to Obstruct Justice, which requires proving that (a) two or more people (b) conspire to obstruct justice [see below] and (c) at least one of them commits an act to further the conspiracy (sentence is the same as for obstruction, a 3yr exposure);
Obstruction or Attempted Obstruction of Justice, which requires proving that the defendant (a) knowingly (b) use intimidation/threats/corruption to (c) persuade or attempt to persuade another person to (d) change documents or withhold records needed for an official proceeding, or, which is more directly applicable here, that the defendant (a) corruptly (b) obstruct, influence, or impede, (c) an official proceeding (3yr exposure); and
Conspiracy Against Rights, which requires proving that (a) two or more persons (b) conspire to injure, oppress, threaten, or intimidate any person (c) in the free exercise or enjoyment of any right or privilege [in this case, the right to vote.]
Who
Only Trump is listed by name in the indictment, with six other co-conspirators referenced by numbers. The purpose is, likely, to leave the door open for any of them to decide to testify against Trump before they are named and officially charged. Five of the co-conspirators are fairly easy to identify based on the information we already have about the 2020 election putsch: Co-conspirator 1 is Rudy Giuliani, Trump’s right-hand and spreader-par-excellence of manufactured election fraud conspiracies; co-conspirator 2 is John Eastman, the spirit behind the effort to puppeteer Pence, VP and President of the Senate, into subverting his ceremonial role by refusing to certify the electors for Biden and certifying fake electors for Trump in their stead; co-conspirator 3 is Sidney Powell, disgraced attorney who tried (and lost) Trump’s baseless election cases; co-conspirator 4 is Jeffrey Clark, Trump’s man in the Department of Justice who met with Trump behind his bosses’ back to further the conspiracies even they would not back and tried to fire his own boss; co-conspirator 5 is likely Kenneth Chesebro, the mind behind the fake electors’ scheme and the operator filing sham legal proceedings so as to swindle the fake electors into agreeing to participate in the scam; I’m unclear on who the sixth co-conspirator can be, and it looks like mainstream media commentators are alsounsure. This person, who is described as a “political consultant,” was behind some of the memos that crafted the language submitted to the fake electors.
What They Did
The story of what happened before January 6th was eclipsed by the violent putsch that follows, which is why you can be forgiven for forgetting the details (they were also doled out chaotically and serially while the events were happening.) Reading the indictment brought the story and the characters back into clear focus, and here’s a simple (hopefully not oversimplified) chronology.
The way the U.S. presidential election works is this: each state has its own regulations for figuring out the popular vote.
This means that, when challenging presidential election results, candidates have to interact with state bureaucracies and pursue litigation in the different states attacking the integrity of the election. The indictment does not attack all of Trump’s litigation challenges which, while frivolous (32 submitted, 0 won) were not unlawful. It focuses on illegitimate pressures and threats that Trump & Co. placed upon various state bureaucrats, most famously in Georgia (the “find me enough votes” threat emitted to the Georgia Secretary of State, now the focus of a state criminal investigation that might ensnare Trump in more criminal proceedings.) Trump’s incessant harassment of state bureaucrats–most of them loyal to Trump, people who worked for his campaign and hoped he would win but did not go as far as to throw the election his way–consisted of banding around (and repeating) false theories of fraud (which Giuliani and others parroted around social media), consistently ignoring the refutations of state officials, lying to them about supposed evidence that backed up the conspiracy theories, threatening them with criminal charges or political consequences, and repeatedly pestering them to deliver results in the face of no factual support for fraud claims.
Severe as these behaviors were, the heart of the indictment has to do with how Trump and his co-conspirators attempted to manipulate the electoral college process to thwart the popular vote. This NPR story, published during Trump’s scheming but before January 6th, offers a good primer to how states select their electors. In short, there are 538 electors, one for each U.S. senator and U.S. representative, plus three for Washington, D.C. Electors are selected by the state, usually from lists made by state parties. In 32 states and D.C., electors must vote for the candidate the party has nominated, and the Supreme Court has found that laws that bind electors to the outcome of the popular vote are constitutional. The list of electors by party is certified at the state level and then sent, through a special verification process, to the senate, where it is ceremonially certified by the Vice President. The electors then cast their votes–if a candidate won by majority, he or she receives all the electoral votes–and thus the presidential election is decided (watch this video of how the electors announce their vote casting.)
Trump’s conspiracy targeted this process. [Probably] John Eastman and [probably] Kenneth Chesebro concocted a legal theory according to which the Vice President, who is also the President of the Senate, holds an authority over the electoral process that goes beyond his purely ceremonial role of certifying the electors. According to their theory, Mike Pence could simply refuse to certify the electors’ votes, opting instead to certify votes by a slate of alternative electors casting their votes for Trump. To make this theory into reality, they reached out to prospective electors to persuade them to participate in this scheme. Some refused to have anything to do with it, and many others expressed doubts about the legality of this plan. To mollify and assuage them, the co-conspirators lied to some of the alternative electors in some of the states, telling them that their votes for Trump would only be used in the event that litigation produces evidence of election fraud. For verisimilitude of these false claims, Trump’s operatives–Giuliani, Powell, and their lackeys–actually filed frivolous cases in the seven states in which this plan was pursued, persuading the so-called alternative electors that things were being set in motion that could result in their votes counting (the plan was to push forward these fictitious votes regardless of the lawsuits.) In some cases, the co-conspirators (notably, Chesebro) crafted the fallacious elector certificates themselves. The co-conspirators tried to push these slates of electors onto the Vice President’s staff, in some cases with the staff members declining to receive them on his behalf.
Pence also had to be convinced to go along with this scheme, and so, Trump et al. conducted numerous meetings with Pence, putting direct pressure on him to participate in the face of his repeated declarations that he did not believe he had the authority to thwart the popular vote. Trump’s choice of words at these meetings matters: he threatened Pence to publicly criticize him for his refusal to participate in the plan (this rebuke reverberating in the social networks during the ramp-up toward January 6) and included only certain people at the meetings (notably, not the White House Counsel, who repeatedly stated that the plan was not legitimate.) Trump also used Jeff Clark to pressure his superiors at the Justice Department (notably, Jeffrey Rosen, then the Acting Attorney General) to go along with the electoral thwarting plan. You can find more information about the near-catastrophe in the Justice Department in this Washington Post piece. Essentially, if Rosen et al. were not going to go with the fraudulent electoral votes, Trump would fire them and place Jeff Clark atop the Justice Department; he backed down from this plan only when told by White House counsel that mass resignations would ensue.
Even though the indictment does not tackle Trump’s role in inciting the Jan. 6 putsch, it does tie those events to the charged offenses. While engaging in the machinations required for the fraudulent electoral plan, Trump continuously manufactured public belief in the integrity of the plan by tweeting about it to his fans and stoking their anger toward Pence and others who would not play ball. This was the trigger for the Jan 6 gathering, which Trump initiated, and the hook for the insurgents’ rage.
Criminal Behavior vs. Atrocious Behavior that Isn’t Criminal
The indictment seeks to provide clarity on what parts of Trump’s behavior surrounding the elections were and were not criminal. Much of his truly atrocious behavior, such as the lies he massively and systematically spread about the legality of the election, were the epitome of maliciousness and political irresponsibility, but according to the indictment do not constitute criminal offenses, as they fall under the umbrella of free speech: Trump had “a right, like any American. . . to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” He also had a right–which he used, by engaging in frivolous litigation–to use legitimate means to challenge the results of the election. The indictment distinguishes these behaviors from the unlawful steps Trump and his co-conspirators undertook to change the results of the election–namely, threats, pressure, and efforts to bring about a fictitious and delusional legal process by which Pence, singlehandedly, would discount the votes of American citizens and instead would hand the decisionmaking process to fake electors.
This distinction might be clear to me and you, but I decided to take a trip through the looking glass and read up on Fox News to see what Jonathan Turley and Andy McCarthy are peddling. Out of all the drivel in that story (political witchhunt yada yada) the least preposterous proposition comes from Andy McCarthy, who has this to say about the fake electors theory: “[I]n this country, what we do with frivolous legal theories is we figure that the jury system will take care of it or the political system will. We don’t criminalize them. And that’s what this indictment attempts to do.” In other words, McCarthy seems to bundle John Eastman and Ken Chesebro’s fake electors plan with the legitimate efforts to reverse the course of the election: rather than a malicious, fictitious scheme to wrest the election results from the hands of the electorate, this was merely a legal theory–and don’t all legal theories stand a chance? The answer the indictment provides is this: there’s a difference between submitting to a court the possibility that the Dominion machines were flawed or that people who shouldn’t vote did (nonexistent folks, nonresidents, noncitizens, dead people), all of which are legitimate challenges to the election whether they succeed or (as in this case) fail, and submitting a proceeding according to which it is, on this planet, totally fine to substitute actual votes for imaginary ones and then threaten, pressure, and push people to pretend that the imaginary votes are real. At least McCarthy admits the theory was “frivolous”; even a broken clock shows the right time twice a day.
The Mental Element (Mens Rea)
All the charges pursued in the indictment require a fairly high degree of intent: conspiracy calls for intent to further the aims of the conspiracy itself, and obstruction of justice requires general intent. For our purposes, a criminal conviction here could result only if a jury agrees that Trump actually knew that the false fraud theories he was peddling on social media and threatening state secretaries to accept were, indeed, false. The indictment spends a long time elaborating how we know that Trump was lying, rather than delusional. I’m not sure the distinction is as clear to me as it is to them. We’re clearly talking about someone with serious delusions of grandeur, and I think that serial liars and psychopaths are successful in what they do because, on some level, they believe the lies they tell. I wonder whether the defense theory here will be that the lies were actually true (this is not a winning proposition in court, but they might luck out with some Trumper jurors) or that Trump thought they were true (which is also going to be tough to prove, given the multiple sources, including people close to him and credible to him, who repeatedly tried to disabuse him of these notions.) I’m betting his ego will not let him claim any sort of mental deficiency or clinical delusion.
What This Portends for 2024
Dan Rather (whose newsletter Steady is always a worthy read) wrote today:
Today marks a reckoning, but it’s far from a resolution. The danger Trump and his legions of MAGA supporters pose remains very present, very real, and very dire. The polls indicate this con man, divisive charlatan, and wrecking ball to the rule of law is running away with the Republican nomination for the presidency. And he looks, at this point, despite everything, to be competitive with President Biden. He could be reelected.
The more scrutiny he receives, the more evidence of his unfitness for office is laid out publicly, the more his stalwarts rally behind him. Trump has no coherent or persuasive rejoinders to the numerous charges he faces. He instinctively relies on his overused playbook of lies, divisiveness, and dystopian rhetoric. It’s all he’s got. Nevertheless, his crowds roar their delight without hesitation.
This is certainly true with respect to the Fox News commentators whose takes I read this morning, and I’m sure the talking points were set long ago. Nothing will persuade the truly faithful. A lot of what will happens here depends on timing. Should Trump be able to run and, perhaps, get elected, all this effort will come to naught, and if, Goddess forbid, I were on the defense team, my number one mission would be to file for continuances upon continuances. It’s not likely that there will be immediate movement on this in a criminal courtroom anytime soon. The voir dire will be absolute hell and the media coverage will be ridiculous.
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:
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 short while ago, I chaired a panel to celebrate Paul Kaplan and Daniel LaChance’s new book Crimesploitation, which examines the lowbrow and middlebrow shows that shed glamorous and lurid light on crime: Cops, To Catch a Predator, etc. As I wrote in my review of the book, this read coincided with the week in which Adnan Syed, whose case was the subject of the first season of the podcast Serial, was set free by a Baltimore court after serving 23 years of incarceration. Here is a timeline of Syed’s case, which clearly indicates that the push to exonerate him came from the investigation in the podcast. Following in Serial’s footsteps was Undisclosed, a more pro-defense oriented podcast, which highlighted more discoveries.
In the book, Kaplan and LaChance examine a TV show that came out more or less when Serial emerged on the scene: Making a Murderer, which followed the murder case against Steven Avery and Brendan Dassey. It’s hard to argue against anything that creates a push for justice, and the authors don’t do that, but they do voice a critique against these wrongful conviction media products: by singling out specific cases of injustice, Kaplan and LaChance argue, they “fail[] to achieve the goal of critiquing the substance and structure of the criminal justice system and the bigger picture of hegemonic power relations in the United States that supports it” (94). In other words, “the protection of factually innocent people from the devastation of incarceration. . . becomes the most pressing criminal justice policy imperative, leaving untouched the question of why such a devastating punishment is so easily and readily meted out.”
Kaplan and LaChance’s critique is well taken. The concern is that the focus on innocence will gloss over the fact that guilty people, as well as the innocent ones, don’t deserve neglect, sadism, cruelty, incompetence, and other cruel and, sadly, not unusual aspects of incarceration. I saw some of this play out in the conversation about vaccines, when jail vaccine advocates referred to the presumption of innocence to make a bid for vaccines that everyone, guilty and innocent alike, should have received immediately simply by virtue of being human and in a congregate setting with little control over their surroundings (and said so here.) But wrongful convictions are their own genre of awfulness, and while we need to support everyone who is incarcerated, I don’t think that infighting between innocence projects and prison advocacy projects helps the overall goal of making the world a better place.
Moreover, I think I am more optimistic than Kaplan and LaChance about these shows. For every person who might watch them and think, “wow, this is a unique instance of miscarriage of justice” there must be several who walk away from it thinking “if this atrocity happened in a case that was highlighted by a podcast, imagine how many more people are languishing in prison for crimes they did not commit who haven’t been featured in podcasts yet.” I said as much in my commentary on the podcast and on the radio.
Happily, the high-profile success of the vanguard shows of this genre led to a whole slew of podcasts seeking justice for the wrongfully convicted. Just recently, the podcast Proof led to the exoneration of two men in Georgia. At the same time, a seemingly contradictory trend is visible: podcasts that reopen cold cases and present theories of the case can help revive interest in unsolved murders and sometimes put terrifyingly violent people behind bars, as well as highlight atrocious behavior that might or might not be criminally defined in an effort to get justice for the victims. I say “seemingly” because, in both cases, the underlying assumption seems to be: podcasters can grease and speed up the wheels of justice faster and better than, say, Innocence Project lawyers.
Why is that? Consider what might be the first example of this genre: Paradise Lost and Paradise Lost 2, the documentaries about the murders of three children in West Memphis, Arkansas, and the convictions of Damien Echols, Jesse Miskelley and Jason Baldwin. The documentaries evoked enormous interest in the cases, and with the weight of celebrities and advocates, within a few years, everyone who knew something about these cases became convinced that the three were wrongly convicted. This newly fueled interest led to some movement in the case, ending in a new trial for Echols and, eventually, in an Alford plea for all defendants that set them free. Shortly after the plea, understanding the power of media, Echols and his wife Lorri Davis produced a documentary of their own in 2012, which featured better forensics and more novel analyses of the evidence.
What happened with the West Memphis Three case is instructive. The media can bring to the public voices form the scene. Unbound by technicalities and rules of evidence and of legal ethics, they can reinterview witnesses, examine forensic evidence with improved technologies, and have candid conversations with legal actors (some of whom might be retired at that point.) They can tell a story in emotionally artful ways that can persuade the public that an injustice has been done. I’m beginning to think that the Innocence Project might want to invest a considerable part of its budget in podcasting.
One argument against the use of podcasts in this way might be that they draw arbitrary, sporadic attention to certain cases at the expense of others. That is surely a problem. But isn’t sporadic, arbitrary attention that corrects injustice better than no attention at all?
The other challenge might be that the proliferation of these podcasts, with every fresh journalist or journalism aspirant hoping to be the one to stand on the courtroom stairs and celebrate, their impact will become marginally smaller, to the point that we will stop paying attention. I don’t think we’re at that inflection point yet. Moreover, the exoneration technologies (primarily the improvement and lower costs of DNA testing) are exposing more and more of these cases (there are also stark racial patterns) and I think we still need all the podcasts we can get.
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.
