Last night provided me a unique vantage point on the Boudin recall effort: I was an inspector at a polling station in Bayview-Hunter’s Point, which is a neighborhood with a long history of neglect and criminalization. It is also unique in its demographics: 33.7% African American in a city that is just under 6% African American as a whole. There were approximately 650 registered voters in our precinct. 18 voted by mail and 17 voted in person, for a grand total of 35 voters. That’s 5% of the electorate. Things were somewhat better, but not by much, elsewhere in the city. By stark contrast to the 2020 Presidential election, pre-election mail-in voting in this local election–the third in 2022!–was very low. Our Federal Election Deputy (FED), who came to visit us throughout the day, reported that the polls were quiet and dormant throughout the whole day, pretty much everywhere.
Why does this matter? Take a look at a map published in today’s Chron of the neighborhoods that voted against Boudin:
At first glance, the story appears to be that neighborhoods associated with Asian-American populations tended to support the recall more fervently. This is unsurprising, and only talked about in hushed tones even though I think it is a big part of the story. In the last few weeks I saw concerted, fervent activism in support of the recall from very similar crowds to the ones who drove the SFUSD recall from a few months ago: it’s not all about out-of-town Republican millionaires conning unsuspecting masses into false consciousness. These are pretty much the same parents who resented the performative woketalk from the Board about school renaming and lottery admissions to Lowell. I suspect that some residual energy poured over from the previous recall (which I think was 100% justified) to this one (which I think was not.) The superficial narrative might be that a permissive and forgiving attitude toward prosecuting some people (read: presumably, young African American men) incentivizes crime and victimization (read: toward, presumably, Asian American victims) in the same way that lowering standards and talking about reparations and abolitionism (read: a narrative that supports, presumably, a monolithic African American interest) harms the pursuit of hard work and excellence in education (read: the purview, presumably, of Asian American students and parents.)
This story, which suggests the fomenting of racial animus between these two groups, building on the racial conflict undertones of the previous recall, is not completely preposterous. Most of the people who came to vote in person yesterday at our precinct were African American, and from their conversations, I gathered they all came motivated to vote against the recall. But this assumes that we can understand and generalize trends from a pretty minuscule percentage of San Franciscans. It’s not that the people who live in my beautiful city don’t care about criminal justice administration. NextDoor and other social media outlets are full of people chewing each other’s heads off about whether this or that wave of smash-and-grab, retail theft, or other incident is Chesa’s fault. But how many people care enough about this to put work into reading a hefty booklet and considering their positions on a three-page ballot, in which Prop H was the very last voting issue on the back side of the third page, for the third time in a row in the same year?
Over the years, I’ve returned again and again to Vanessa Barker’s excellent book The Politics of Imprisonment. Barker conducts a three-way comparison of penal politics in three states: California, Washington, and New York, finding that California’s political culture more easily lends itself to punitive experiments because of its polarization and populism. I write about this culture in Yesterday’s Monsters, when I show how politicized and emotion-driven the issue of parole is. In this kind of political environment, where money and strong interests can push something into the ballot as well as foment a well-oiled promotion machine (complete with all the tricks and deceptions we’ve come to expect from the initiative process), it is not difficult to swing the pendulum back and forth, from big reforms to big cancellations, from experiments in jurisdictional shifts to draconian policies masquerading as victim’s rights policies, and everything in between.
Ultimately, I think that what we saw here was just an exercise in manipulating this big machine and effectuating huge change through a relatively small number of voters. Direct democracy can be, and is, too direct when it imposes this burden thrice a year on already exhausted, grieving, anguished, and ticked off people with an empathy deficit from three years of awfulness that followed four years of a different kind of awfulness. In sum, whether or not the small minority who bothered to show up at the polls has false or true consciousness matters much less, sadly, than the forces exploiting the initiative process far beyond the Bay Area.
Would it have made a difference if the entire Bayview-Hunter’s Point electorate showed up en masse and voted against this recall? Of course it would. But after everything we’ve all been through–the impoverished folks in the neglected parts of town disproportionately suffering–we just didn’t have it in us to make yesterday a proud, sparkling moment for people-powered government, and even though it’s not our fault, we will all have to live with the consequences. Increased incarceration and the return of cash bail will not deter violent crime (but people’s attention will wander, and those who supported the recall will stop paying attention). Crime might go up (despite the recall, the supporters will say, or because of the recall, the opponents will say) or it might go down (because of the recall, supporters will say, or despite it, opponents will say) and we will continue to delude ourselves that dumbing down complicated policy decisions, deceiving people with oversimplified campaigns, and seasoning everything with some piquant interracial conflict, is how democracy should work.
The truth is that crime rates are like the weather. They rise and fall for a variety of reasons, only a few of which we can measure, and most of which have nothing to do with who is in charge. They have very little to do with big punishment trends (though, in localized situations, they do depend on effective police work in solving crime, which is a damn difficult thing to do when the community doesn’t trust the police enough to help.) It takes a real sea change in policy to effectuate changes in criminality patterns. But our megalomanic assumption that we can control crime rates through tinkering with policies will persist, and we will keep tinkering, until no one has any energy left to vote.
SF-based nonprofit Urban Alchemy, which I discussed here and here, is in the news this week. First, there was BBC coverage, and this morning a lengthy investigative story in the Chron. Mallory Moench and Kevin Fagan’s story is interesting and informative, and offers lots of useful perspectives, but does adopt an unnecessarily skeptical emphasis and tone, which rankled me because I work in the Tenderloin and see the transformation it has undergone through Urban Alchemy’s intervention.
In the early pandemic months, the open drug market around my workplace was so brazen and violent that my students feared going out of their dorm rooms at the Hastings towers. Mayor Breed and SFPD tried to resolve the problem by doing police sweeps of the area, which only resulted in new people coming in to deal and shoot every day. At some point I was contacted by a civil rights org, which shall remain anonymous out of compassion, with a well meant, but absurd, invitation to support their lawsuit against gang injunctions with an amicus brief refuting the existence of the drug market. Refuting? I thought. Are you kidding me? Do you have eyes? Do you live or work here? It was a prime example of what I’ve come to recoil from: the refusal, by some quarters of the Bay Area’s delusional left, to concede that crime is real and has real victims and real implications (that’s why I have no patience for armchair abolitionism, by the way.)
Then, our Dean signed a contract with Urban Alchemy, which has them support the area adjacent to the school. This proved to be a complete game changer. The first morning I showed up to work with the UA practitioners surrounding the perimeter of the school I was amazed; the change in energy, the peacefulness, the friendliness, the sense of personal safety, were palpable. I started chatting with some of the practitioners around my workplace, who came from backgrounds of serious incarceration, and found that their personal experiences provided them with just the right interpersonal skills to intervene in complicated situations in the Tenderloin. Finally, someone is doing the right thing, I thought. There are so many occupations in which a background of criminal invovement and incarceration is a priceless resource – and this includes lawyering. Recently, I interviewed people with criminal records who applied to the California bar and wrote:
In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character.
My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage.
To Moench and Fagan’s credit, their piece does represent this view; one of their interviewees explicitly says that looking at justice involvement as an asset, rather than a barrier, is revolutionary. But overall, their reporting exceedingly amplifies the voices of the naysayers above those of the many people who live and work in the Tenderloin who are quietly grateful for Urban Alchemy’s presence in the streets. You’ll be hard pressed to find detail in their story of the many good deeds that the practitioners perform daily, ranging from lives saved with Naloxone (several times a week, I’m told) to skillfully providing my female students a sense of personal safety when walking the Tenderloin in the evening. Several students described how a practitioner subtly positioned himself between them and someone who was getting too close, and how the threatening situation evaporated before it could evolve in unsavory directions. Moench and Fagan give this a passing nod, but their piece fails to properly capture the magic.
This brings me to another observation: There hasn’t yet been a project evaluation for Urban Alchemy’s Tenderloin intervention. Executing such a study would be a daunting task for several methodological reasons. First, there’s no comparative baseline for the intervention. The situation before their intervention was so abnormal that it would be hard to use it as a control, even if data were available. If the comparison is geographic, it would suffer from the usual problems with situational crime prevention: focusing an intervention in a particular geographical zone means that criminal activity is displaced onto adjacent zones, so the two comparators are not independent of each other. If the study is structured as an in-depth phenomenological project (which is what I would do if I were to do this–and a colleague and I are thinking about this), there’s the Star Trek problem of the Prime Directive: researchers or students hanging out in the Tenderloin to conduct observations would, themselves, change the dynamics in the area that they study. A big part of Urban Alchemy’s success lies in the fact that they do things differently than SFPD. They do not rely on surveillance cameras; in fact, they eschew them, and having any sort of documentation would be detrimental to their working model. And people standing in the corner for hours and taking notes would chill everyone’s behavior. Fieldwork here has to be conducted with care.
I have one more observation to offer: I now work in a service profession that requires crowd management and interpersonal intervention (as a city pool lifeguard) and also have multiple years of experience managing crowds in rowdy, inebriated, unusual situations (as a Dykes on Bikes registration volunteer at Pride and at Folsom Street Fair, for example.) The vast majority of people you encounter at these settings are lovely and a delight to be with. But the one or two percent who are decidedly not lovely can really test anyone’s self control. I’m talking about the driver who insists on driving the car into the area you’re trying to cordone off, the slow dude who insists on swimming in the lane with faster people and not letting them pass, or the people repeatedly told (politely) to move to the sidewalk so that they are not run over by trucks who don’t go where they’re told. My experiences are nothing compared to what the Urban Alchemy practitioners encounter every day on the Tenderloin streets. I really wish our reporting on this were sympathetic to the enormous challenges of interpersonal interactions in this very rough patch of our city and more appreciative of how much conflict and anxiety are spared when people who know what they’re doing take the lead.
So much has been said and written about the Supreme Court’s leaked majority opinion draft overruling Roe v. Wade that I hardly need to elaborate the basics. I’m not a reproductive justice expert, nor am I particularly surprised that this has happened–they are simply doing precisely what they were hired to do, which is to promulgate a theocratic, sex-negative worldview. The reason I add my voice to the cacophony is that I have a somewhat unorthodox, nuanced position on this debate, which hasn’t (I think) been aired yet–that of an adoptive mom.
We adopted our beloved son as an infant from a state that frowns upon abortions. My son’s amazing birthparents’ struggles, dilemmas, and decisions are their private business and I will not air it here or anywhere else. What I can share is that, throughout our happy life together, I have been beyond ecstatic that the world has been blessed with my son, a sparkling star of a boy–bright, empathetic, loving, friendly, kind, athletic, funny, multitalented, spirited, lively. And at the same time, every adoption involves a huge leap of love and empathy, and much pain, grief, and loss adjacent to the joy. There are no hard or fast rules about the roads taken or not taken with pregnancies. The deep regrets of placing a child for adoption, the sometimes unsurmountable hardships of parenting, and the deep regrets of terminating a pregnancy all float in a realm of possibility that I can only imagine, having been raised in a welfare state with excellent sex education and easily available contraceptives. No assumption can be made, as the right makes, that abortion invariably leads to shame and regret (see this remarkable amicus brief on behalf of law professors who underwent abortions and “believe that, like themselves, the next generation of lawyers should have the ability to control their reproductive lives and thus the opportunity to fully participate in the ‘economic and social life of the Nation’.”) Of course, the opposite assumption–that abortion brings you your life back without a trace of regret or sorrow, is also false, and part of the reason many women can’t quite find themselves in the pro-choice milieu is that, in the fierce struggle for women’s rights, little room is left to contain these sorrows and regrets.
All of this has already been said, most eloquently, by others; but the right-wingers have a ready-made answer. “Not to worry!” They cheerfully squeal. “That’s what adoption is for!” Which is where, as an adoptive mom, I need to speak up and disabuse some of the truly ridiculous illusions that our right-wing politicos and fundamental Christian buddies are willing to entertain. Namely, the notion that limiting safe, legal abortion is going to result in a boon for adoption should be patently absurd to anyone who has gone through an ethical open adoption process; the opposite is true.
Adoption professionals recoil from the idea that adoption is about “selling children”, and from here flow multiple ethical and legal limitations on the kind of assistance that adoptive parents can offer birthparents and on the interactions between the party. And yet, beyond the niceties, let’s start with the obvious: in virtually every adoption, as ethical and kind and caring as it is, children pass from poor hands to more economically advantaged hands, with money moving in the opposite direction. This means that birthparents–usually birthmoms–are at a considerable socioeconomic disadvantage, often exacerbated by being typically younger than the adoptive moms.
Forcing women who would otherwise have a (legal, safe) abortion to instead carry a pregnancy to term and place their infants for adoption throws more young women and girls with no bargaining power into the mix–often women and girls who now have to hide their pregnancies from families and boyfriends. It is not difficult to predict that women who are less equipped to carry a pregnancy to term would be the ones seeking abortions, and that requiring them to forego that option will result in pregnancies that are less safe, and therefore in infants that are more difficult to place for adoption. Hiding your pregnant belly from your mom or your friends can result in experiencing your pregnancy under conditions that are bad for you (exposure to smoke, exposure to alcohol, unhealthy diets); having such a pregnancy discovered can result in being unhoused for the duration of your pregnancy; all this instability will surely result in less responsible and consistent prenatal care.
A birthmom who knows she can’t parent will then search the Internet high and low for adoption agencies, trying to find one with serious social workers and good services. She’ll then go through an intake interview with a social worker, who will ask her about her medical history, prenatal care, and use of alcohol/drugs. I’ve taken classes with other adoptive parents: the medical history is something that can be scary for prospective parents, and birthmoms can, of course, guess this. So, what happens when someone who has not had the resources to properly care for themselves and their baby tries to place said baby for adoption? Would it surprise anyone if this would result in more deceit and evasion when interviewed by adoption agency social workers?
I can see very unhealthy prospects for the adoption market under such circumstances. With the inability to verify pregnancy details, or to provide proper care to prospective moms, unscrupulous lawyers and corrupt social workers might step in with unhealthy incentives, pressure, and coercion–akin to the worrisome trends we see in the international adoption market. This means less safety and trust precisely in a situation that requires an enormous amount of empathy and mutual trust. It means less careful vetting of adoptive parents–the actual people who are to raise and nurture this precious life. And it also means that women who might withstand the pressure and try to parent their kids might have to later relinquish them by court order, or due to other awful circumstances, which throws kids into the traumatizing world of government care at an early age and creates considerable challenges even in the happy cases that end in fostering and adoption. Many people who can become fantastic parents to infants through open adoption might not have the emotional fortitude and resources to address and heal the trauma of older kids. Corollary: Throwing birthmoms into these situations ahead of time by eliminating a safe, legal option, is not a boon for adoption–the opposite is true.
Additionally, if, indeed, adoption is to be the panacea for the problem of sentient life, then we should also care about the life of the birthmom after adoption–in the form of extended services to help heal the trauma, beyond some meetings with a social worker: I’m talking college money, gym membership, grocery money, job seeking support. Of course, all this assumes that Alito et al. truly want birthmoms, after giving the gift of motherhood to someone like me, to land on their feet and “fully participate in the ‘economic and social life of the Nation.” Do they?
The truth is that none of this is really about abstract notions of sentience nor about seeing the abortion/adoption thing as a zero-sum game, because it is patently clear that neither value is being advanced by forcing women to carry pregnancies to term or risk a dangerous back-alley procedure. Friends, here’s what’s going on: Justice Alito and his buddies are simply out to penalize women (the wrong sort of women?) for having sex. That the punishment might extend to other (sentient) people in the equation–a child, adoptive parents, adoption professionals–simply does not enter into their equation. The idea that someone who receives solid, reasonable, science-based sex education should be able to just say yes to sexual activity with whoever they choose, with however many people they choose, in whatever form, in whatever frequency, so long as all are of sound body and mind and consent and respect each other, is anathema to them. They know that legal prohibitions will not deter young people who have been deliberately left ignorant about the functions of their own bodies from having sex. They don’t care. Because they don’t intend to ever pick up the price tag for the many young lives that will later end up in flux, this is a complete externality to them. And that is what is so atrocious here.
This morning I spoke with David Brancaccio of Marketplace Morning Report about the perversions and frustrations of the job market for formerly and currently incarcerated workers. The broadcast version is above – here’s the longer version from Marketplace:
There’s a striking scene in Brett Story’s documentary “The Prison in 12 Landscapes” that captures the complicated and exploitative aspect of rehabilitative prison labor programs: An incarcerated firefighter, explaining how they’re not allowed to talk to others on the job, adds that — because of their criminal record — they have a slim chance of becoming a firefighter upon leaving prison.
It’s an experience that’s common not just for prison firefighters, but for people who work making telemarketing calls, care for elderly or infirm people in prison, and more, according to UC Hastings law professor Hadar Aviram.
“There are many limitations on people working in these occupations, and because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people,” Aviram said in an interview with “Marketplace Morning Report” host David Brancaccio.
While there are laws in place to protect formerly incarcerated people from hiring discrimination, Aviram noted that many barriers to employment remain, including the scarcity of rehabilitative work programs and their stringent terms and conditions.
“The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based,” Aviram said, “so oftentimes they will train people to do jobs that they can’t actually get on the outside.”
Below is an edited transcript of Brancaccio’s conversation with Aviram on the other jobs prisoners commonly do, the challenges facing formerly incarcerated people who are trying to find work and what Aviram thinks can be done to increase their chances of finding meaningful jobs that take advantage of skills learned while in prison.
David Brancaccio: In this film, we see a California wildfire at first. It turns out that one of those working on the fireline, to keep it from spreading, is a person in prison, in a special prison work program. Would a program like that be common or fairly rare?
Hadar Aviram: Here in California, it’s extremely common. And among the people who saved probably thousands of lives in the last summer, when we had the wildfires, were many, many incarcerated people working as firefighters.
“The range of occupations that people have in prison”
David Brancaccio: It’s interesting, right? Because often people don’t know that, in fact, there’s a ban on people who are incarcerated speaking with members of the public while out there fighting the fire.
Aviram: Yes, there are many limitations on people working in these occupations and, because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people. A lot of the customer service on the phone, a lot of the furniture, things that are being manufactured — sweatshirts for dozens of Ivy League universities are made in a prison in Kansas, where people are getting paid 50 cents a day. It’s really astounding, the range of occupations that people have in prison. And I think that firefighting is an especially interesting example, because they are saving lives and they are working shoulder to shoulder with professional, non-incarcerated firefighters. The big irony, of course, is that then they get out and, at least until recently, they couldn’t get a job as firefighters, despite being trained, because they have a criminal record.
When formerly incarcerated people are unable to get jobs
Brancaccio: I mean, that’s the thing. There’s, of course, a move that we’ve spent some time covering on this program to ban employers from, for the first initial part of a job application, asking if you have a criminal record, but employers have a way finding out anyway, or it comes up during the background check.
Aviram: Absolutely. I was one of the big pushers for this kind of, we call it “ban the box” initiatives, to screen people without knowing their criminal record. But, it turns out, colleagues of mine at the Urban Institute did a study and they found out that rather than employers discriminating on the basis of criminal records, they have started discriminating on the basis of race as a proxy for criminal records. So, for example, they’ll get job applications, and they don’t know which of the people have a criminal record, but they will interview the person called “Brad” rather than the person called “Jamal,” under the assumption that they are using this as a proxy for the criminal record that they don’t have an access to. It’s very frustrating, because you’re trying to create equal opportunities for everybody, but these things have such a protean quality that they pop up no matter what kind of protections you introduce in the workplace.
“Oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself.”
Hadar Aviram, UC Hastings law professor
Brancaccio: What do you do about that? I mean, you know, there’s an ongoing national discussion, at some level, about what we’re addressing here. But, in part, when people have worked alongside people that they find out have criminal records, and they see firsthand that they’re like the rest of us, sometimes that can help break down these stereotypes?
Aviram: Absolutely. And this is a truth that has been found in studies all over. I mean, people have done studies, for example, of members of fundamentalist churches that, you know, will be railing against single mothers and gay people, but then they have a gay uncle or a niece who’s a single mom and they love them to bits, and that softens, a little bit, this approach.
And the same thing holds for people with criminal records. I just saw a study done at a college where there was a strong correlation between students who personally knew fellow students who were formerly incarcerated and their opinions about: Would they befriend somebody with a criminal record? Would they be willing to date somebody who had been in prison? So, truly, personal acquaintances and education and exposure is the most important thing that we can do to break down these barriers.
Brancaccio: Back to this notion of labor done by people in prison: When the phone rings at our house, it could be someone who is incarcerated at the other end of the line?
Aviram: Yes, absolutely. This is just one of many, many, many occupations that people engage in in prisons. Phone solicitation, customer service, a lot of manufacturing of everyday items that you wouldn’t even have an idea come from prison. And, of course, a lot of the work inside prisons. I don’t know that a lot of people know this: We have a high population of people who are aging and infirm in prison. And oftentimes the people taking care of them are trained caregivers who are incarcerated themselves. So a lot of the things that we think the state is providing, it’s actually people from inside the prison who are incarcerated themselves who are doing it.
Is prison labor, by definition, exploitative?
Brancaccio: What’s your sense, having studied this — I mean, is it, by definition, prison labor, exploitative? I mean, no one’s paid market rates for that labor.
Aviram: This is a complicated question, because there’s the world that we would want to live in, in which everybody gets minimum wage and in which you are actually trained for the reality of the marketplace. And there’s the realities of the world we’re in, in which prison labor, to different extents, is exploitative, and we therefore try to sort of improve people’s lot within the conditions that they’re in.
We have to keep in mind the fact that, to some extent, prison labor is training people for conditions in the market on the outside. But the problem is that oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself. The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based, so oftentimes they will train people to do jobs that they can’t actually get on the outside. Up until recently, the firefighting was one such example, but there are many other examples. The programs that do have occupations where people can work on the outside, like marine technology or carpentry, are highly selective; very, very few people can get in. Overall, a more realistic prospect for people coming out is to become independent contractors and work for themselves.
The kind of work formerly incarcerated people end up doing
Brancaccio: That’s what people end up doing? Working for themselves?
Aviram: Exactly. For example, you’ll find people that are putting together landscaping companies, house work companies. And there are some examples that are really amazing, of nonprofits that people have put on the outside, where they’re working in the marketplace and just doing amazing things. Right next to Hastings, which is where I teach, is a neighborhood called the Tenderloin in San Francisco, which, during the pandemic, became pretty much an open-air drug market — lots of homeless people, lots of misery, mental health, substance abuse, oftentimes people overdosing. And the mayor was upset by this, and a couple of times they sent the police to clean up the neighborhood with everything that stems from that. That was extremely difficult, because there were no solutions for people other than just sort of cleaning up the aesthetics.
And then a nonprofit stepped in called Urban Alchemy. They operate public restrooms, which is incredibly important in these kinds of neighborhoods. They operated safe sleeping sites during COVID. They calmed down violence, they actually revived people with Naloxone who had overdosed multiple times every week. They did amazing things. And what enables them to do this work more effectively and more peacefully than the police, and almost without any show of force, is the fact that they are former lifers, that the people who work at Urban Alchemy acquired these peacemaking and mentoring skills that they use every day on the job in decades in prison. They were elders and mentors on the yard when they were inside, and they retain this kind of calm mentorship role on the outside. And they have done such an amazing job that the change in energy in the neighborhood is palpable.
Brancaccio: Those are special skills that are in demand. It’s a shame that some employers don’t fully recognize this.
Aviram: Exactly. There are many ways in which we look at a criminal record or a previous prison stay as a liability. This is of course difficult, because at any given moment, 1% of the entire population of the United States is incarcerated. So we have a lot of people who actually have acquired skills and strengths where they were that we can use in the marketplace. I’m not just thinking about occupations that are entry-level jobs, I’m thinking even about entry into, say, the California bar, as lawyers. Think about what somebody brings in, coming in with an insider perspective on a criminal justice system, reassuring their clients about what’s going to happen to them, you know, being able to present a realistic perspective. There are so many strengths that you acquire.
One of the most successful programs we have in California is called marine technologies, it’s people who work underwater fixing ships and underwater structures. And this is partly a skill where it’s a great advantage to be used to being in a very overcrowded environment. This is difficult for a lot of people. But people, unfortunately, who spent time in our grossly overcrowded prisons have acquired this skill. This is a market strength that is being undervalued and stigmatized for no good reason.
Brancaccio: I was reading about that marine program. Recidivism, going back to the ways of crime, is near zero for people who’ve gone through that program.
Aviram: Those are good jobs. If you get a job like that, there is no reason for you to commit crime, because you have gainful employment. We have to think more evidence-based about these kinds of programs and strengths in the market and prepare people for that.
Brancaccio: Those programs often can be expensive within the prison. Sometimes when budgets are tight, as you’ve written, that’s the program that gets cut.
Aviram: Exactly. It’s one of the downsides. And this is something that I wrote in my first book “Cheap on Crime,” that we, overall, saw the prison population shrink since 2009. This was a result of the the recession of 2008. But one of the side effects of that that was more sinister was that there were drastic cuts to rehabilitative programming. And that created a big difference, a big gap, between prisons that are set in urban centers, where there’s lots of volunteers and do-gooders that step in and create these programs. Here, for example, in San Quentin [State Prison], we have Silicon Valley entrepreneurs volunteering to teach people the internet, which is very difficult when you don’t have internet behind bars. So we have all of this programming because of the volunteers, because they’re stepping in to fill in the gaps that the state cannot fill. But there are many, many prisons in the United States that are located in these remote, rural locations, very, very difficult to get there, and very difficult to get quality programming that actually prepares people to get good jobs once they get released.
We’re already being inundated with commentary about Derek Chauvin’s conviction and I don’t feel the need to add to the onslaught with too much, so I’ll just say this: Yes, I think this is the correct legal outcome. But I worry very much about the extent to which we are trying to achieve social, racial, and economic equality through criminal verdicts. I worry when people direct their outrage at charge dismissals and acquittals, because having read Frank Zimring’s When Police Kill, I know that waiting for deliverance through the courts is much more of a disappointment than systematic hiring and training changes. And I also worry when people direct their joy (sometimes in questionable ways) at convicting verdicts as the be-all, end-all of achieving justice. Getting to real equality requires the kind of boring financial redistribution of wealth work that doesn’t make headlines or attractive tweets to the extent that a high-profile conviction does. And we have a long way to go.
One of the things mindfulness has taught me is that disappointment depends on expectations. In that respect, to say that correctional policies during COVID-19 have been a disappointment reflects, perhaps, unrealistic expectations from institutions that have been unwieldy and incredibly resistant to change even at the best of times. Perhaps it’s not that unexpected that the giant machine that protects the correctional colossus from reform was overall characterized by delays, evasive maneuvers, reversals of fortune and too-little-too-late gestures. So, if one expected mass releases, the disappointment would be commensurate with the expectations.
Still, there is an objective benchmark against which to measure my disappointment: the problem is not that the releases fell short of being what I hoped they’d be–it’s that they fell short of what was needed to curb the spread of the pandemic. We don’t have to wonder what that number would be; we had assessments of individual institutions with recommendations from physicians specializing in pandemic spread. I think that now, in mid-April 2021, we can safely say that, with respect to releases, courts have failed to provide the relief they should have provided.
We have two great nationwide summaries that support this conclusion. Brandon Garrett and Lee Kovarsky’s new piece Viral Injustice is a survey of COVID-19 correctional litigation outcomes. Garrett and Kovarsky conclude:
Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.
We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.
However, some individual state and local policymakers took steps that stand as an example of how to release a large number of people from prison — a necessary step to ending mass incarceration. And some policy changes made during the pandemic — like eliminating cruel copays for incarcerated people — are ones we need to remember and demand that they be extended permanently.
I want to throw in a few additional issues that illuminate aspects of these legal responses:
The PLRA, while greatly responsible for suffocating prison litigation, is not the be-all, end-all of the problem. Following Plata v. Newsom closely, I’m not sure how much of the inaction is Judge Tigar’s allegiance to the PLRA framework and how much of it is a culture of conciliatory, deferent approach and valuing “bringing everyone to the table” rather than ordering a solution. Some of this could be down to individual judicial personalities and some of this could be attributed to litigation cultures in different states or even in different counties. I think that our good fortune in the first round of Von Staich was because we were fortunate to get a panel that was deeply responsive to both the humanitarian emergency behind bars and to the geographical argument that the threat would extend to outside communities.
Relatedly, I don’t think that the state vs. federal litigation was the important distinction. Nor was it class action vs. habeas corpus. I think the defining feature of the litigation is the aggressive deference to correctional authorities–giving vague, modest relief knowing that correctional officers and their lawyers can sabotage it.
Generally speaking, and beyond CA, the staff has been the problem–from dragging their feet to actual frustration of purpose (by not testing, not reporting symptoms, and not getting vaccinated.) There has been precious little done to hold correctional officer unions accountable for their colossal leadership failures.
In the absence of releases, there’s been a lot of reliance on bottleneck provisions–stopping admissions from jails, which put the onus on jails to handle their own pandemic issues, often without data and without accountability. The counties have been left to figure things on their own, with dramatically varying degrees of success (see my analysis of this here.)
The advent of the vaccine made a difference, both in terms of state enthusiasm to help incarcerated populations and in the courage of courts. How vaccines played into advocacy and litigation is a complicated story, which Chad and I will analyze more thoroughly in our book-in-progress, #FESTER: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract, UC Press.) In a nutshell, vaccines opened an avenue that allowed courts to avoid grappling with their paralysis regarding releases and recur to a short-term strategy to provide immediate relief from the current pandemic. And even this was not always necessary, given that many states got ahead of the courts and gave the vaccines.
The most notable aspect of the deference/reluctance to do more for prison and jail populations was the prevalence of zero-sum games of deservedness (“grandma before inmates!”), which ignored obvious implications of geography and epidemiology: the idea that people in congregate settings, no matter who they are, face more risk, and that spaces that are jurisdictionally/institutionally set apart from society at large are, in fact, permeable to disease. This is going to be the main premise of #FESTER.
The deservedness argument posed some difficulties in advocacy and organizing: does making the argument that jail populations are largely presumed innocent introduce the deservedness scale, which as Kovarsky and Garrett show was at play in the overall picture of relief? And, how to advocate short-term for vaccination while advocating long-term for releases?
At the time, I hypothesized that there were knowledge gaps in immigration, which were not completely closed since the Supreme Court’s decision in Padilla v. Kentucky (2010). I was not the only one; in this piece, Gabriel Chin discusses the professional toll that Padilla advising would take on defense attorneys, who would now have to specialize in immigration law. Even in Padilla itself, Elena Kagan–then the U.S. Solicitor General–spoke about her concerns that an entire cadre of professionals would now need to acquire expertise in an adjacent (and not particularly easy to master) field.
True, Padilla did not require defense attorneys to become full-fledged immigration law experts. It only required them to advise clients of the immigration consequences of their conviction if those were clear. The problem is that one needs to know at least something about immigration law to even identify the appropriate statutes (for example, is the person admitted or not admitted to the U.S.? in the former case, the law is in INA §237; in the latter, in INA §212.) You can’t know whether the answer is clear without understanding what the question is, and that in itself requires expertise. A big part of the wisdom, from a defense attorney’s perspective, is having the basic skills to understand whether the immigration determination is even within the attorney’s wheelhouse.
Since Padilla was decided, public and private criminal attorneys have adopted a wide range of approaches to close the knowledge gap. For the purpose of creating my module, I assembled two focus groups of friends from various areas of practice. Beyond two immigration experts (an immigration law prof and a lawyer at an immigration rights nonprofit) I had three prosecutors, one appellate attorney, three public defenders and two defense lawyers in private practice. Before practice-teaching them the modules I created, I asked them where they got their immigration law expertise. I got quite a variety of answers:
One prosecutor said that their office took immigration consequences into account when charging; they had an immigration unit staffed by experts. The other prosecutor said that the D.A. ignored all immigration matters and instructed them to proceed as if immigration consequences did not exist. Out of the defense attorneys, the appellate lawyer was unfamiliar with the field (this is unsurprising, as appellate lawyers would only rarely encounter it.) The bigger, urban public defender offices had immigration units in-house, staffed by experts. In one rural public defender’s office, one person at the office specialized in immigration law and became the office’s unofficial go-to “expert.” In another rural office, everyone learned a little and called immigration nonprofits when they needed advice. The private attorneys were lost at sea and would use published materials from nonprofits when advising their clients. Everyone professed great ignorance and panic at being entrusted with counseling clients on immigration consequences.
The focus groups conversations convinced me that there is great need to add the basics of crimmigration to criminal procedure courses–at least the advanced bail-to-jail courses that are taught to people seriously contemplating criminal justice careers.
What to teach
In shaping the curriculum, I consulted with Phil and with my colleague and friend Tally Kritzman-Amir on what to teach. I decided that the students needed to know what what would touch on their criminal practice (and if they wanted to know more about immigration law, they could take a specialized course.) As criminal attorneys they are most likely to encounter crimmigration when advising clients whether to plead guilty or when negotiating charge bargains, so they would need to be familiar with the most popular removal grounds–aggravated felonies, crimes of moral turpitude, and some of the specific removal grounds–and acquire the skill of ascertaining whether a particular criminal conviction satisfies any of these. Many interesting crimmigration topics, including a detailed history of the immigration code, the immigration removal procedure, detention and bond, and immigration protections, were left out of the curriculum. To facilitate learning, I broke the crimmigration unit into three modules:
Module 1: Background to crimmigration (including Padilla and science-based readings refuting the immigration-crime nexus and examining the emergence of IIRIRA and today’s removal grounds); The admissibility doctrine (distinguishing between admitted/deportable and non-admitted/inadmissible noncitizens, defining “conviction” under immigration law, knowing the consequences of these definitions and distinctions); the categorical and modified-categorical analysis (the basic analytical tool the students would be using in Modules 2 and 3.)
Module 2: Aggravated felonies (explaining what generic offenses are., focusing on the categories of “crime of violence” and “trafficking in a controlled substance”, and highlighting the difference between elements of a generic offense and circumstance-specific elements, such as loss to the victim.)
Module 3: Crimes of moral turpitude (explaining the category within and outside the context of immigration, practicing some cases); the specific grounds of drugs, firearms, and domestic violence
The choice to front-load the mechanics of the categorical analysis reflected the fact that, of all the material I teach in the course, this would be one of the most difficult skills to master, in no small part because the federal removal grounds are so thin, vague, and poorly drafted, and state law can so often be overbroad and abstruse. This was also the reason I chose to sequence the entire crimmigration unit after teaching double jeopardy and sentencing. I reasoned that, at this point in the course, the students would have mastered the art (hopefully taught to them in 1L criminal law) of breaking an offense into its elements. Before teaching double jeopardy, I provided them with a prerecorded refresher on elements of the offense, reminding them that this skill matters beyond substantive criminal law. This way, prior to studying the crimmigration unit, they would practice this skill when determining whether two offenses count as the “same offense” for double jeopardy purposes (under Blockburger) and when determining whether a particular fact must be alleged in the charging document and found by a jury beyond reasonable doubt (under Apprendi.) These two topics would also serve as a rehearsal before learning the categorical analysis and make it more comprehensible.
A note on terminology
The first question I faced was what to call the new unit. I automatically gravitated toward the term “crimmigration”, popularized in Juliet Stumpf’s seminal article. The term has gained considerable traction, becoming the title of César Cuauhtémoc García Hernández’s book and eponymous blog. But then I received a thoughtful note from a colleague who explained that, when Stumpf adapted the term, it was being used in white nationalist/neo-Nazi circles with racist and xenophobic connotations. Its portmanteau construction can also be seen as reinforcing a particular set of suggestions about immigration and criminality that we seek to reject–namely, that there is a nexus between immigration and criminality. My colleague suggested the colloquial alternative “crim-imm”, or the clunkier “convergence between immigration control and crime control” (which reflects, quite well, Stephen Legomsky’s wonderful piece about the asymmetric convergence between the two fields.)
My colleague’s comments were well-taken, and I gave them a lot of thought, but finally decided to keep “crimmigration” as the unit title. There’s value in introducing students to the field by the name the field is known, so that if they seek to know more, it’s accessible and available to them. I also think that terminology isn’t static–it changes over time, and there have been multiple examples of derogatory terms being redeemed and put into empowering use by the people they sought to oppress.
Which brings me to the second issue. Immigration law currently uses the term “alien” to refer to noncitizens (here’s a CIS primer on definitions). Several students emailed, feeling jarred by the statutory terminology, saying it sounded “racist” (I think they meant xenophobic or dehumanizing.) I know this sentiment is shared by many, to the point that the Biden Administration is poised to change the term. I confess that I’m not an enthusiastic convert to the terminology obsession, which does not show any signs of abating. I get it–I’m not stupid–words can create reality. But we’re imbuing words with much more power than they have, I think, and this constant cycle of the linguistic washing machine is diverting attention from more important matters. It reminds me of how, as a child, I heard adults around me say “she has a bad thing… they found something…” treating the word cancer as if it was Voldemort. If a horde of dedicated, progressive-minded Biden officials do a “find + replace” function on the immigration code and replace all instances of “alien” with “noncitizen”, but leave all the removal grounds intact and continue to deny basic Gideon rights to people facing permanent banishment from the country, the enlightened terminology is not going to cheer me up. And given that the zeitgeist is all about certifying only the oppressed for speaking about their own oppression, I am happy to tell you that, prior to my naturalization in 2015, I was an “alien” for fifteen years–an alien student, a nonresident alien with extraordinary abilities, a resident alien–and I always found the term humorous and not dehumanizing at all. If foreigners are dehumanized and marginalized in the United States–and they absolutely are–it’s not because of what the INA calls them; it’s because of what we are misled to think about them. Nationalists were not born with the term “alien” at hand. “Alien” means foreign; it was then borrowed to describe extraterrestrial life. Whatever “they” took, “we” can reclaim, for whatever value of “they” and “we.” In class, I use “noncitizen” when I talk (or, when relevant, “lawful permanent resident” or “visa holder”), and “alien” when I’m quoting legislature, and I leave it at that.
What to read
For this course, I use an electronic casebook hosted by ChartaCourse, which gives me great control ver my materials. I assigned a bit of Legomsky’s article, sections from the INA, and some key cases. The selection of cases presented some challenges, though. The categorical and modified categorical analyses, which are the cornerstone of crimmigration, were established in federal cases, Descamps and Mathis, both of which deal with portions of the Armed Career Criminal Act (ACCA.) This presented a dilemma. On one hand, I wanted the students to know that the categorical analysis will come in handy in a variety of federal legal contexts; on the other, I didn’t want to confuse them and muddle the issue by making them read cases that are not about immigration. I opted for omitting Descamps and assigning only the portion of Mathis that explains the analysis.
As to the rest of the cases, I had to be quite selective and a harsh editor. The cases come from various federal courts and from the Board of Immigration Appeals (BIA), and they often involve various issues that pertain to the immigration side of the case, e.g., adjustment of status issues or removal protections. For the limited purpose of criminal practice, the students don’t need to know that. There are also cases that deal with interesting but arcane immigration law sections, and the choice I made was to focus on the common deportation and inadmissibility grounds. I can already see how making the choice to teach these materials will require keeping abreast of the information in a field adjacent to my own with its own precedents, etc., but there are blogs and other good people working on this, and honestly, after Padilla, I do think it’s our responsibility to teach this.
Finally, my materials include one of the best helping tools for criminal lawyers: the ILRC reference table and notes. It is detailed and trustworthy but, as I found, not exhaustive. I’m trying to teach the students not to rely on the table as the be-all, end-all of crimmigration (even though it’s very useful to have on hand) in the same way that I was taught, when I learned statistics, how to calculate F-values and t-values by hand while also learning STATA. There is immense value in doing the exercise by oneself, and I wanted to put people on the path to proficiency.
Since the second semester of the pandemic, I transitioned my classes to a flipped classroom model: the students receive readings and prerecorded lecturettes in advance. In class, I go over the basics, and the bulk of the time is devoted to solving problems in small groups. Oftentimes, my problems are shaped after real cases. This proved to be a bit tricky in crimmigration. The cases are very complicated and require serious paring down. They are also often BIA cases, which means there are lots of adjacent, ancillary issues to be resolved on the immigration front. This means the hypotheticals need to be carefully edited, and that the ones based on real cases cannot be the first problems that the students solve. I have had to come up with simpler, two-liner problems that the students solve, and then graduate to problems based on recent cases.
Basing the problems on real cases also presented a problem involving the hermeneutics of immigration law. Because removal grounds are so generalized and vague, and because it is difficult to tell, just from looking at a state statute, whether it is divisible or not, there’s an abundance of caselaw, precedent, and courtroom documentation that needs to be looked at to ascertain how to resolve the problem. In the context of a classroom exercise, it is essential that all the information the students need be within the four corners of the problem. So that, too, requires attention in fashioning the problems. And, of course, working through these hypotheticals can be frustrating to the students, because it is ultimately not where the heart of their practice will lie, and it requires them to visit an entire different world of legal meaning-making. Which brings me to the heart of the matter.
The heart of the matter
I think the frustration and incredulity that the students might encounter when studying this material comes from a pretty understandable source: after all, I am essentially teaching them how to twist and turn their main occupation to bypass the perversion that is immigration law. Rather than looking at what a defendant did and charge them with that, they now have to think ten steps ahead, consider what the feds might do, and craft the whole narrative of the case away from the truth if they are trying to avoid immigration consequences.
What mitigates this frustration, though, is the other component at the heart of the matter: I kept banging the same drum again and again in class–the fact that, across all places, crime categories, and legal statuses, immigrants commit less crime than the native born. I usually deeply dislike facile, oversimplified slogans, but in this case there’s robust social science supporting that, and I had to talk about that again and again because the perception of an immigration/crime nexus is incredibly pervasive and very resistant to modification–more resistant than any other myth of immigration. I think the students might feel better about learning how to perform this analysis if they know that the purpose is to prevent situations in which ancillary, collateral consequences eclipse the actual criminal process and frustrate its goals.
Stressing the moral imperative to take this so-called externality into account in criminal lawyering is important for another reason. That the categorical analysis is technical and ignores the facts of the cases creates the risk that class will become a glib game, akin to the fantastical hypos that are often part and parcel of teaching 1L criminal law. The somber, urgent quality that accompanies the perceived domestic crises (the prime example is the relationship between police departments and communities of color) can be absent from this unless personal stories of people are brought forth. And the absurdities need to be highlighted for people to feel that what they are doing is not just an intellectual exercise of overlaying one offense on top of the other, but a valuable effort to save families from falling apart.
Striking the right balance
Toward the end of the third module, I asked my students whether learning this material made them more or less confident about their ability to do this. Responses were mixed (even though they knew nothing about this analysis before taking the unit!). I’m not sure that’s a bad result. On one hand, per Padilla, you want the students to feel empowered to offer this kind of advisory to their clients–it is their constitutional duty. On the other, you don’t want them to be overconfident about their ability to clearly predict the immigration consequences of everything under the sun. In this respect, Padilla is too optimistic about the ability of a criminal lawyer to tell a simple crimmigration case from a complex one. Immigration law is ever-changing, very responsive to the blowing of political winds, and what my students are taught about immigration law might not be good law under a new administration. Rather than have them freeze in panic, I would like to empower them to take action: call an immigration lawyer or a nonprofit and consult. Because this isn’t going to be sustainable for every lawyer/client, I think that ultimately the answer to the problem of advising noncitizen clients should be a combination of two factors: the emergence of law school clinics whose job is to offer Padilla support to public and private defense attorneys, and the establishment of an excellent MCLE credit network that keeps criminal lawyers abreast of pertinent developments in immigration law.
If you are a criminal procedure professor who read this, feels inspired, and wants to teach my bail-to-jail course with my immigration materials, contact me (or contact ChartaCourse.)
This morning, House Managers are presenting the prosecution’s case at the second impeachment trial of Donald Trump. Much has been said, and will be said today, about the legal strategy they have adopted: laying out a broad narrative of Trump’s elaborate scheme to persuade wide swaths of the American public of his baseless claim that (1) the election was stolen, (2) something must be done to “stop the steal,” and (3) the way to do so is to “fight like hell.” This narrative is designed to address the predicted defense strategy, which will try to undermine the causal link between Trump’s January 6th comments and the pre-planned actions of his supporters.
The prosecution’s case uses videos and screen captures of tweets, complete with a trigger warning for violence and language. I’ve been taken aback by the visceral reaction I’m having to the evidence, and a quick check-in with friends and colleagues reveals that many people feel this way this morning.
The visceral pain is especially acute whenever Trump himself is depicted. His voice is difficult to hear and reading his tweets onscreen is generating somatic upheaval. The distress I am feeling whenever I am exposed to his image or utterances is palpable.
One mindfulness technique especially useful for working with difficult emotions is R.A.I.N. This technique requires recognizing the difficult emotion, allowing it to exist (accepting that it is there, rather than pretending that all is well), gently investigating its quality, and then nourishing oneself with self compassion. Having recognized the visceral pain I feel, I move on to accept that my reality today includes and encompasses this pain. This has important implications for how my day will unfold, as I resolve not to ignore these feelings, but rather to allow myself to sit with them.
When I turn to investigate my emotion, I realize how much it resembles, in quality, the sense of being in the throes of a powerful addiction. Not because we enjoyed our Trump exposure, but because our panic, dread, and horror at the wickedness, corruption, and cruelty that he wrought on a daily basis made us uniquely attuned to his moods. For four years, our circadian rhythms revolved around his whims, tweets, and outrages; we were blown to and fro by the winds of his capricious hires and firings; we woke up with a jolt every morning, steeling ourselves to act, protest, comment, explain, and arrange our lives in a way that protected us and our loved ones as best we could.
In short, we were hooked on Trump.
Thinking about the way in which even those of us who raged and fought against Trump were addicted to the dramatic media cycle he generated goes a long way toward explaining why so many people are not yet feeling the relief they expected to feel after his exit from the scene. Consider what happens when a powerful stimulant/intoxicant is removed from your system. Initially, one experiences deep withdrawal. The sensation of high alert and the compulsion to be attuned to the presence of the powerful substance are hard to shake, and like collective survivors of profound abuse, we are still easily jolted, looking behind our shoulder with suspicion to see if our tormentor will reemerge.
Listen to your sensations, to your fight-or-flight instinct still potent within you. They are telling you that you have been deeply wounded, repeatedly, daily, for years, and that the healing the election brought was superficial. It will take years–maybe decades–to process and heal the trauma.
Also, observe the light your own feelings are shedding on the sensations and motivations of the insurrectionists. They were on the opposite side to yours. If you were yanked by Trump’s chain hour after hour for four years, imagine this powerful sensation of addiction magnified among his lackeys and supporters. Imagine the powerful withdrawal sensations, palpable and plainly on display in the videos depicting their rage during the attack. Imagine what the Twitter deprivation, living without him constantly feeding their life force, is doing to their insides on a daily basis. Consider how much longer the social media ban on him must continue to wean people from such a powerful drug. And consider how this visceral, somatic deprivation played into the insurrection itself. Consider what the way you embody this withdrawal and trauma today teaches you about the sensed reality of the angry, violent people you saw on video. Consider also how this trauma is experienced today by the people whom whose presidency hurt the most.
Now, introduce self compassion into your examination. It is understandable that you feel this way. You and everything that is dear to you has been abused, and your whole reality revolved around protection from the abuse, for a long time. You can tell yourself, “it’s okay; he’s gone.” You can consider whether a cup of tea or a walk might help. You can commit to checking in with other people who may feel this way today.
Take good care of yourselves today. This will take decades to process, but accepting your feelings as they are is an important step.
Against this backdrop, the choice to focus now on Ramirez and his heinous crimes is a curious one, and the series does not offer a lot in the sense of narrative or cinematic innovation to justify the subject. The story is told from the perspective of two intelligent and sympathetic LAPD detectives–then-newcomer Gil Carrillo and veteran Frank Salerno–and several retired crime scene technicians, who in four episodes follow through the trail of horrific murders. The still shots from the various murder scenes are enhanced through cinematography that somewhat brings them to life and accompanied by chilling music. Thankfully, at least the victims themselves–both those deceased and those who survived–are portrayed with restraint and respect, and on occasion (albeit not always, which struck me as somewhat distasteful) their relatives comment on their lives, evoking sympathy and humanity. These graceful interview scenes lift the series from a sequence of excessive gore, and I wish there were more of them.
As to Ramirez himself, the show does not delve much into his own mind beyond short, clichéd quotes about the “inherent evil in all human kind” and “Satan [as] a stabilizing presence” displayed between scenes. Having read and watched a lot of the Manson literary and cinematic canon, I think a deliberate choice was made here not to glorify Ramirez in a similar way. At some point, one of the detectives even said that they considered whether Ramirez was a Manson copycat, which strengthens my belief that this approach was carefully considered. The choice not to follow the legacy of Mansonist efforts to delve into the minds of heinous murderers a-la Dahmer, only recently continued with Aquarius and Mindhunter, means the focus of the show is mostly on the police investigation.
But even here, the show’s coverage of the LAPD’s eponymous “hunt” offers some contradictions. Carrillo and Salerno are sympathetic, interesting interviewees; Carrillo’s background is explored in depth, including his early prescient conclusion that seemingly unrelated crimes were perpetrated by the same person. He attributes this insight to a class he had taken, in which Robert Morneau referred to “a deviancy that says, ‘I like to see the frightened look on your face.'” Rather than digging into the motivation, this illuminated Carrillo’s crime scene analyses and explained why the murders were perpetrate in a particular way (i.e., why the killer had waited for the victims to see him, rather than kill them from behind or in their cars.) But at the same time, we get glimpses into what appears to be epic incompetence in interagency collaboration. A golden opportunity to zone in on the killer through a distinctive sneaker shoeprint was wasted, even though only one pair of black sneakers of that brand had been shipped to Los Angeles. Similarly, the opportunity to fingerprint a car that the suspect had touched in the course of a traffic stop was squandered. And amazingly, a clever trap at Ramirez’s dentist’s office did not function. Eventually, Ramirez was caught not by police officers, who allowed him to walk before them unnoticed after his appearance was already well known, but by alert members of the public. The focus on Carrillo and Salerno’s solid crime scene investigation draws attention from the sad conclusion that, had the LAPD had their act together and collaborated, Ramirez would have been caught earlier and lives would have been saved. Having studied the Manson murders in detail, it seems that little was learned since the fiascos of the Tate-LaBianca investigations, which were also characterized by department siloing and insularity (Bugliosi is full of braggadocio about his own heroic role in the case and very eager to throw blame onto the LAPD, but at least in that instance the objective facts seem to support his perspective.)
Even as the focus on audacity, deductive work, and targeted legwork draws attention away from omissions and organizational hurdles, Night Stalker is a reminder of what good policing should be. It is poignant to watch an investigation in the 1980s, with 1980s technology, as the FBI pieces together last week’s insurrection at the Capitol and attempts to track down the perpetrators, a job much easier than Carrillo and Salerno’s because of the plethora of social media evidence and the availability of facial recognition technology. It is also poignant to think about the most recent example of excellence in policing: Capitol police officer Eugene Goodman’s clever, creative, and courageous act of baiting and tricking the mob away from the unguarded door behind which the legislators hid, armed only with a nightstick and facing dozens of angry insurrectionists yelling racial epithets at him. As I’ve said many times before, I don’t think the problem is too little or two much policing; it’s the wrong kind of policing altogether, which relies on crude, humiliating, and ineffective methods like stop-and-frisk at the direct expense of the classic crime solving work features in the Night Stalker. Give me a police force full of Eugene Goodmans, Gil Carrillos, and Frank Salernos, and I’ll be a happy camper. If the show reminds us (and the FBI, and the LAPD) that good policing is valuable and scarce, then it has been a worthwhile endeavor.
In case the horrific damage Trump and Trumpism have done to our democracy was not obvious from the horrendous crimes in plain view of the last few days (or the last four years, including human rights crimes masquerading as policies) today we have evidence on the local level of how deeply the notion that democracy can be purchased and toyed with has resonated with some Silicon Valley dolts. Not that these people needed Trump’s encouragement to think of San Francisco as window dressing for their lives, and of all of us as “local color” providing a picturesque setting for their VC deals. But today really takes the cake with an idiotic fundraiser, organized by this guy, who seems to think that his claim to virtue–being ridiculously and ostentatiously rich in a city where other members of the human race have to starve, defecate, and die in the streets–is a proper substitute for actual criminal justice expertise.
This initiative comes in the heels of a horrific tragedy–a fatal car accident that claimed the lives of two women. The man behind the wheel, Troy McAlister, was intoxicated and driving a car he had stolen from a date. Because Chesa Boudin ran on a progressive prosecutor platform, the focus is on prosecutorial missteps that led to McAlister being free: before this recent crime, he had been headed toward trial in late 2018 on two counts of second-degree robbery in connection with a 2015 holdup in a San Francisco store. Boudin’s office “referred these cases to parole because we believed there was a greater likelihood of him being held accountable and having the kind of intervention that would protect the public and break this cycle of recidivism.”
Since I know something about parole, I can explain that there are two ways in which people on parole end up back in prison: either they commit a new crime, for which they are prosecuted and tried (this can take months, if not years) or they commit a parole violation that lands them back in prison. Oftentimes, there’s an overlap. While some parole violations are technical and trivial, others amount to new crimes. It is not unreasonable to think that a parole violation route will be more efficient than a new prosecution, though things have somewhat changed in terms of the implications. Before the Schwarzenegger Administration’s parole reform, parole violators pretty much automatically ended back in prison, even for very minor violations–resulting in a prison population comprised of 50% of the people doing time not for new crimes, but for parole violations. The reform, aimed at alleviating the obscene 200% overcrowding in the system, aimed to give parole agents more discretion and a range of intermediary sanctions before throwing them back in the slammer, depending on discretion and on how severe the violation was and how risky the person was judged to be.
Like any situation involving risk prediction, when deciding whether to remand a person to CDCR or use an intermediary sanction, parole agents could be right or they could be making one of two types of mistakes. False negatives are situations when the person is assumed to not be much of a risk but then commits a new crime (such as McAlister). False positives are situations where a person is kept behind bars, mistakenly perceived as a release risk, when had they been released, they would not have committed a crime. Obviously, we only hear about false negatives, not false positives, because they appear to be penalty-free. But false positives also have a grave price. As of today, 133 people have died of COVID-19 behind bars. Most of those people were aging folks, who are largely assumed to have aged out of crime, and who would have posed no danger to the outside world had they been released (which would have saved their lives.) Their illnesses and death, in turn, resulted in infections, illnesses, and deaths in the communities surrounding the prison. It’s just that our society is not particularly inclined to value the harm and price paid by these people and their families as we value the lives on the outside. But any time we make a judgment call about risk, we might be making either mistake. And that means that some mistakes, which are horrible, and tragic, and senseless, and enraging, cannot be prevented. This is a horrible truth to live, but it doesn’t necessarily indicate that there’s something systemically wrong at the prosecutor’s office or at the parole agent’s office. It indicates that someone made a horrible mistake.
Moreover, our attention to particular instances of false negatives blur their overall context. Every fatal traffic accident that happens in San Francisco, of which there are dozens every year, leaves a deep wound of grief in its aftermath. Many of them are as preventable as this one. And the vast majority of them never make the news, because they don’t involve parolees, which is why we deal with them through initiatives such as Vision Zero, rather than through hatchet jobs against our elected officials.
So why are we making this horrific tragedy into a cause célèbre? Because there are political hatchets being forged, such as this “astroturf fundraiser” (as my friend Chris Johnson called it), about which there isn’t much to say that isn’t obvious. However, obscene wealth seems to make people impervious to the obvious, so here it is: It turns out that we have a magical and effective mechanism in the United States for holding prosecutors “accountable to the people.” It’s called voting.The people wanted a progressive prosecutor and, should they be displeased, they can elect someone else. Voting comes in pretty handy in procuring accountability, because it is available to people who have less money than Mr. Calacanis. The funny thing is that, throughout the last decades, because of aggressive fearmongering propaganda, voting regularly and reliably produced aggressive prosecutors who almost singlehandedly drove our mass incarceration crisis. Now, we’ve been through the 2008 financial crisis, and the Obama administration, and the horrors of Trump and a second recession, and the American public has apparently come to the conclusion that they are ill served by this sort of prosecutorial policy, and so theyarechoosingsomethingelse.
Mr. Calacanis knows this, of course. He and his ilk have been more than happy with this system as long as the hoi polloi reliably voted for the kind of prosecutors they like, but democracy doesn’t suit them quite to the same degree when the plebeians want social services, relief from cash bail, a wrongful convictions unit, and humane jails. So when he claims to speak for “the people,” he is not championing you and me–he’s championing his rich buddies, whose favorite pastime is to abuse and exploit California’s delicate democracy and treat it as a playground for their contemptible ideologies and ridiculous experimentation. This is not a particularly original move. Calacanis is merely following in the footsteps of several folks just like him, like the wealthy guy who gave us Marsy’s Law (which we have to blame for having so many old and sick people behind bars, denied parole in the face of COVID-19 for no logical reason) or the clown who wanted to split California into six states. It should also come as no surprise that these folks believe that investigative journalism, just like democracy, is something you simply buy with Silicon Valley money–even though we have excellentinvestigativejournalists at the San Francisco Chronicle who are all over this story and are not for sale.
Look, I’m not an idiot. I know that politics-for-sale is festering throughout this great nation, and I cling to my youth in Israel, where that was not the case to this depraved degree, mostly for sentimental reasons. I know that the social democracy in the Old Country breathes no more, but its memory and ethos live on, and I have daily proof that even that faint memory works better than than the corrupt, unbridled capitalism of the U.S., in the form of people from my age cohort in Israel posting pictures of having received the vaccine I can only dream about. I remember being physically nauseated when I read the Mueller report, partly because it gave me a window into the lives of oligarchs who think nothing of buying caviar for $30,000. Mr. Calacanis and his buddies are obviously not as rich as their Russian counterparts (that must sting,) but they’re trying to play the same game. And it is universally loathsome, regardless of whether the perpetrators wear ostrich jackets or Patagonia fleece vests.