#LSA2020: ADVOCATE

What a treat we all had this evening at the Law & Society Association Annual Meeting! We got to view the excellent Israeli documentary Advocate about attorney Leah Tsemel who represents Palestinian defendants in Israeli courts. Tsemel is revered in some circles and reviled in others for her iconcolasm, bravery, and unwavering commitment to the Palestinian struggle.

The documentary showcases one of Tsemel’s most difficult cases: the defendant, Ahmad, 13 years old, ran around with his cousin with knives. They stabbed an Israeli child, also 13 years old. The cousin (15 years old) was killed by the Israeli police/military. Throughout a horrific, brutal investigation, after sustaining serious beatings and a cracked skull, Ahmad argued that he had no intent to kill, only to frighten, and did not want to attack children. Tsemel faces a tough dilemma: because of his juvenile status, if Ahmad confesses, he won’t be incarcerated but rather sent to six years at an institution. if he goes to trial, he might face imprisonment. She is adamant that she will support his right to continue to tell his truth.

The film also tells the story of Tsemel’s life, from her experience of the 1967 occupation of Jerusalem as a law student, through her activism in socialist anti-Zionist movement Matzpen (“compass”) in the 1970s, her husband’s involvement in radical activities, and her adult children’s thoughtful, complex reflections on their family life in the shadow of their mother’s convictions and unusual career. Tsemel emerges as an unusually brave and committed person.

I was very glad to have the opportunity to see the film, and surprised at the points at which Tsemel’s life choices illuminated my own. I served for five years as a public defender at the Israeli Military Defense Counsel’s main office, where I occasionally represented people who, on the surface, are on the opposite end: Israeli soldiers who looted Palestinian homes and abused Palestinian detainees. I vividly remember an evening at which four of us, who strongly identified as left-wingers, sat at a pub in Tel Aviv and talked about our moral convictions about the occupation. Two of us said they would refuse to represent soldiers in these cases; one of them, still someone I like and admire a lot, explicitly said so to our commander and ended up getting disciplined but insisted on taking on other cases as a trade-off.

I admitted to my friends that I saw no ethical problem representing these folks (older than Ahmad, but not by much.) I sometimes worry that expressing this position will be incomprehensible, or even reprehensible, to friends who see the conflict in black and white. It was precisely because of my conviction that the occupation was vile and debased everything and everyone that touched it that I saw it as a duty to represent these soldiers. To me, they were placed by their government and their commanders in morally impossible situations akin to the student participants of the Stanford Prison Experiment. Encouraged by the overwhelming racism and intractable duality created by the conflict, and marinating in a military culture that ignored (at best) or condoned (at worst) their wrongdoing, they were victims of the horrors of the occupation, like their Palestinian counterparts (albeit, of course, not to the same degree.) When I interviewed Israeli conscientious objectors, most of them former combat soldiers, about their experiences, it was evident how tortured and scarred they were by the memories of engaging in things they now considered atrocities; this is one of the reasons I have so much respect for Breaking the Silence (“shovrim shtika”), an organization of former combatants revealing their experiences. If there is ever to be peace, everyone should have the opportunity to exorcise the demons of this horrible, violent conflict, so that real peacemaking work can be done. I see the way the occupation has damaged the occupiers every day in Israeli society–the machismo, the lack of empathy, the culture of not listening, the verbal and physical violence. Of course the other side suffers orders of magnitude more, and both sides are locked in positions in which they ascribe victimhood to themselves and crimes to the other party. These identitarian labels and the truthiness they come with are very hard to shake.

Growing up as a largely nonpolitical nerd, I was fascinated by organizations like Matzpen and by friends who had strong political consciousness, were radicalized since high school, and went to protests and somesuch. I envied, and marveled at, the ability to wake up in the morning with the unwavering feeling that One Is Doing God’s Work and that the adversaries were unquestionably the bad guys. I felt so childish by comparison because my opinions were so unformed. It was much later, in the army, that I found my own political consciousness. There’s nothing like ranks and stupidity and reading Catch-22, which felt like a documentary of my life at the time, to crystallize unfairness, injustice, inequality, and the burning need to help people caught in Kafkaesque situations not of their making. But even then, I simply couldn’t resign to a formula under which one side was the good guys and the other the bad guys. The miasma of the conflict infected everything around it, and the crumbs of ugliness that fell on my professional plate did not always neatly arrange themselves in a way that made moral determinations easy. It didn’t always favor one category of humans over the other, and it made for interesting, reflexive experiences, thinking about what world improving action I could take given what I had in front of me. Much of what I learned in practice, particularly how class differences played a horrible role ruining young people’s later civilian lives, informed and enriched my later scholarly work.

But the sense that the world of good and evil is complicated, and that there is too much suffering around me to take sides and stick with them in perpetuity, seems to have remained as a permanent feature. Today our hearts cry as protesters respond to the horrific killing of George Floyd. Opinions fly back and forth about rioting and property destruction–is it wrong, is it right, who is doing it, what would MLK say about it–and I just find that the heart is big enough to contain and feel, really feel, the suffering of everyone, before being so sure about what I think about every aspect of this situation. Maybe Leah Tsemel would shrug and simply say that the evils of racism justify any means and that it’s not for her to judge the reaction–and would feel comfortable in her unwavering commitment to this ethic, and sleep soundly. Me, I’m not sure of anything, except of the profound sadness I feel–for George Floyd’s family and friends, for his community, for Black people feeling traumatized, for Black lives being devalued, for the rage and grief that prompts people to destroy, for the unloved, cynical emptiness that would lead people to jump on the bandwagon of destruction, for the losses of local businesses, for the people challenged to respond in a human, decent way, and not knowing what to do, for everyone who is angry and sad and afraid and feeling inadequate to mend the sorrows of the world. It is a thicker, more overwhelming sensation, perhaps, of ethical humanity, but I have grown to accept what is in my crying heart–in any human heart–and its miraculous ability to hold the extremes of joys and sorrows. When called upon to rebuild, I trust in my ability to determine, as best I can, how I can reduce suffering in the world. It’s all any of us can do.

To Be Believed: Christian Cooper and the Scottsboro Boys

A few years ago we had a minor scandal at Hastings. A first-year female student who lived in our dorm reported an intruder to campus police. She came to her apartment, she said, and found an African American man, well dressed (“could pass for a student” was the description we learned through the Jeanne Clery Act disclosure campus police sent us via email) rummaging through her underwear drawer. For a few weeks, our African American students were under surveillance. Then, we got a cryptic message from the police, saying that the investigation had ended and no offense was committed.

I put the whole thing out of my mind until a year or so later, when I taught race and crime and we watched this excellent clip of Gregory Peck as Atticus Finch cross-examining Collin Wilcox as Mayella Ewell:

https://www.youtube.com/watch?v=_6qQ7l8pRGo

My students said, “holy crap, that’s exactly what happened with this girl.”

“Wait, WHAT?” I said. “Explain.”

So they did. It turned out the story was as follows: the student who had made the complaint wanted to move in with her boyfriend. In an effort to show him how dangerous the Tenderloin was, she manufactured the story of the intruder out of thin air. For weeks, the investigation went on, understandably enraging our Black Student Association, and then she finally broke down and admitted she had fabricated the whole thing.

The literature on racial hoaxes is pretty consistent: people make up stories for their intended audience, based on their assumptions of what would be believed. When white people engage in a racial hoax, it is aimed for a white audience, and usually evokes some version of the hypermasculinized, predatory black man. When black people engage in a racial hoax (yes, this happens, too), it is aimed for an audience of people of color, and revolves around hate crime (admittedly, there are so many true reports of hate crimes that it is hard to assess the rate of the false ones–which is exactly what makes hate crimes believable to people on the receiving end of so many real ones).

I’m not particularly interested in hounding Amy Cooper or in the waves of (understandable but counterproductive) vitriol, threats, and schadenfreude that are coming her way. I’m more interested in the quick, reactive thought process that landed her in threatening-black-man territory after Christian Cooper made his reasonable, polite request (and wisely recorded the aftermath.) The reason white women make accusations against black men is that they know they have the social capital to be believed.

Nothing is new under the sun. Michael Klarman wrote a classic article about the nine black men who were falsely accused of raping two white women on a freight train in Northern Alabama. He comments:

In such cases, guilt or innocence usually mattered little. As one white southerner candidly remarked in 1933, ―If a white woman is prepared to swear that a Negro either raped or attempted to rape her, we see to it that the Negro is executed. Prevailing racial norms did not permit white jurors to believe a black man‘s word over that of a white woman; prevailing gender norms did not allow defense counsel to closely interrogate a white woman about allegations involving sex. As one contemporary southern newspaper observed, the honor of a white woman was more important than the life of a black man.And because most southern white men believed that black males secretly lusted after ―their women, they generally found such rape allegations credible.

Michael Klarman, Scottsboro. Marquette Law Review, 2009.

Nothing is new under the sun. I am nauseous with anger this week over what Christian Cooper has endured, and over how precarious is situation was–how quickly this allegation could have turned into the stomach-turning horrific tragedy of George Floyd’s killing (the heart cries with so much grief this week; how can any of us breathe when some of us are not allowed to?) But this is exactly the crux of the issue: who is and is not believed is a reflection of deeply engrained, sinister, ugly cultural myths, and all the criminal justice reforms in the world has not yet succeeded in sweeping these away.

More Progressive Punitivism: And Today We, the Woke, Will Tell You How to Grieve Your Brother

If you’re anything like me, you might have spared a moment or two from focusing on the impeachment brouhaha to follow the horrific tragedy involving Amber Guyger, the white woman who shot her African American neighbor, Botham Jean, arguing that she mistook his flat for her own. And if you’re anything like me, you were probably surprised, and perhaps moved, to read about Jean’s brother, Brandt, who after Guyger’s conviction and sentence hugged her and expressed forgiveness.

And if you’ve spent any time online in the last day or two, you’ve seen that everyone whose brother was not murdered recently had Opinions about this. As NPR explained, it “sparked a debate.”
I’m in a rush to get a little bit more work done, so I’ll keep this short: There has been a lot of chatter from well-meaning, righteous folks, using all the correct Woke argot, about things we’ve already read in op-eds a thousand times: how forgiveness and restorative justice just give white people a reprieve because they reinforce racial hierarchies and excuse structural inequality yada yada yada. This sort of chatter, right here, is what I argue in both Yesterday’s Monsters and in Progressive Punitivism has been the ultimate paradigm in American criminal justice policy. It doesn’t matter if you’re a fierce punitive right winger or a fierce punitive progressive social justice crusader–you’ve spent decades marinating in a national animus that tells you that everything that is wrong in the world is criminal justice related and that harsh punishment is the only solution. 
It is important to listen to victims. Very. It is important to have all the compassion in the world for victims. And at the same time, first and foremost, our obligation to victims is to help them not be just “victims” as soon as possible. What we are doing with the reification of this punitive perspective is reinforcing the notion that the only appropriate way to deal with social ills is to punish; that to forgive is weak and subservient; and that people should never move on from their own victimization–even if it’s healing TO THEM, even if it helps THEM, even if it is THEIR way of dealing with grief.

Which means that we’re all about listening to victims–but only if they sing the punitive tune we like to hear.

I would humbly suggest to all the self appointed social justice critics of Jean’s big heart that perhaps there isn’t only One Right Way to handle the murder of your sibling, and that perhaps the decent thing to do is to let people grieve and process in whatever way seems appropriate to them. 
I would also suggest that critiquing someone’s admittedly uncommon way of handling his grief as if he doesn’t know what he’s doing is as paternalistic as the hierarchies the commentators supposedly condemn. 

CJCJ Study: Drug Arrests Plummet, Racial Disparities Persist

drug arrests stats chart

I got a lot of commentary, in person and on Facebook, after my post about Ban the Box backfiring. Folks were expressing serious frustration with how an idea that seemed so good–pushing people away from racial discrimination by proxy–turns out to do something spectacularly bad in the world–pushing people toward direct racial discrimination. Today’s post is along the same vein, but somewhat less depressing.

A new CJCJ study by Mike Males and William Armaline finds a spectacular decline in arrest rates for drug offenses in San Francisco. But when they broke the arrests down by race, this is the pattern that emerged:

Now, several things are notable. First, the decline is significant – even for African Americans. Which is arguably a very good thing for everyone. Second, while the racial disparity is still enormous–felony drug arrests for African Americans were ten times higher than those of people of other races–it is a significant decline from previous levels of disparity (the peak year for discrimination was 2008, when African Americans were 19.2 times more likely to be arrested for a felony drug offense than people of other races.) Finally, disparities typically shrink, rather than disappear overnight, so this could be a move in the right direction.

But this raises the question of how we measure progress. Are things better when there are overall arrests, even when large disparities (which are uncorrelated with other measures of involvement in these offenses) persist? What is the goal of relaxing drug policies?

Recently, the standard war-on-drugs-responsible-for-mass-incarceration story has been criticized, and it does seem to be a bad explanation for the overall picture. But the basic argument that drug arrests tend to target the African American population is not new. Amanda Geller and Jeffery Fagan have an excellent paper about marijuana arrests in NYC that tells a similar story. We really have to do better.