It’s been a month since I posted here! Life is thick with responsibilities and joys–family, athletics, spirituality, the daily grind of work–and so I haven’t had a chance to come up for air. But I wanted to briefly comment on a recent Chron story that one of my students (thank you!) sent me. It involves an unusual request by San Francisco’s D.A., Brooke Jenkins, to solicit federal cooperation in a matter involving two men accused of (unrelated) heinous crimes who are currently abroad, having fled our jurisdiction: she wants them extradited and tried here in San Francisco.
The simple and accurate response to this is exactly the one that Supervisor Aaron Peskin, often the voice of reason on the Board, voices in the article:
[T]he waiver Jenkins is pressing for is unnecessary, because nothing in San Francisco’s sanctuary city law prevents Homeland Security from apprehending and extraditing the two fugitives so that they can be prosecuted in San Francisco. He added, moreover, that the board would have to approve an ordinance to grant the exception, which means it would have to be debated in committee, subjected to two board hearings, signed by the mayor and set on the books for 30 days before taking effect, in late March at the earliest.
By contrast, he said, “the feds can apprehend these people tomorrow.”
I feel like I need to highlight this because, in my circles and more generally, there seems to be an exaggerated sense of the protections that sanctuary cities or states can afford undocumented immigrants and other noncitizens. It seems we have forgotten the Trump days in which ICE personnel roamed the streets of the Mission looking for potential people to deport and we all had our cellphones at the ready in case someone was nabbed off the streets and needed help. They were not doing anything unlawful; they were doing something meanspirited and cruel, which is a completely different problem. While the federal government and the state of California are two separate sovereigns, they do operate in the same physical territory, a little bit like China Miéville’s book The City and the City. We don’t have to cooperate with them, but we can’t stop them from operating throughout the same geographic space on their own accord.
This has a few important corollaries. First, it is one more example in which the concept of geographic space needs to enter the criminal justice conversation. I have high expectations of carceral geography as a field of study, but I worry that it’s become basically like sociology of punishment with more abstruse jargon and a lot of metaphor, when there’s lots to be said about the practicalities of physical space. In that respect, our forthcoming book FESTER espouses a really pedestrian understanding of geography with immediate practical implications: you can’t treat prisons as if they exist apart from their surrounding counties when a deadly pandemic is on the loose. The same spatial problem, also with eminently practical implications, is present in the sanctuary city context: if you operate in the same space as someone you don’t cooperate with, at some point you will collide, and you’ll have to figure out how to work out the collision (in Miéville’s book, by the way, these situations require a third police force, called “breach.”)
Second, and related, people tend to forget the many points of contact between local and federal justice that cannot be avoided even with the most assiduous sanctuary city laws, and even if everyone on the local level religiously complies with them (some don’t.) Anytime someone is arrested, their fingerprints find their way into a federal database, where they are matched with the people who are here lawfully. If they are not, it’s not particularly challenging to figure out where they are. If local jail authorities will not allow ICE into their facilities (which, under sanctuary state/city laws, is okay), ICE officers can ambush noncitizens who are heading to meet their probation officers and arrest them in the parking lot. ICE holds on people serving state sentences are lawful and, the minute the person exits the state facility, they will end up in the feds’ hands.
The only thing limiting federal intervention is the extent to which the feds are interested in intervening, which is a direct function of presidential policy. Removal rates in the Biden era were much lower than in the Trump era. During the Obama era, they were fairly high, but federal policy emphasized people convicted of serious crimes, whereas under Trump there was the deliberately inflammatory persecution of DACA recipients (some of the most upstanding Americans I know.) Who gets targeted, and how many get targeted, is purely the function of who is president and what they (or their constituents) care about. This is stuff that local authorities can do very little about, given the many interfaces these systems share.
Legal historian Karl Shoemaker, an acclaimed Medieval historian and fellow JSP alum, wrote a fantastic book about the legal and moral rationales behind sanctuary in the Middle Ages and its decline toward the Early Modern period. As Shoemaker explains in the book, during these times, in which ecclesiastic authorities governed the legal universe, claiming sanctuary truly meant escaping any legal responsibility for one’s crime. It is no coincidence that these rationales, which seeped into British common law from ecclesiastic law, faded in the Sixteenth century, with the advent of the idea of a secular state.
The key to understanding the feeble protection that sanctuary state laws offer our noncitizen friends and neighbors is to remember that, back in the Middle Ages (and certainly in Biblical times, whence the idea of sanctuary emerged,) there were no competing secular jurisdictions jockeying for position. What we call “sanctuary” is a far cry from the ironclad religious protection of yore, and would be better described as “noncooperation” with a legitimate sovereign occupying the same physical space. Can the feds find these two men who are accused of heinous crimes, see to their extradition, and hand them over to Brooke Jenkins? Sure. The question is whether they want to.
A short while ago, I chaired a panel to celebrate Paul Kaplan and Daniel LaChance’s new book Crimesploitation, which examines the lowbrow and middlebrow shows that shed glamorous and lurid light on crime: Cops, To Catch a Predator, etc. As I wrote in my review of the book, this read coincided with the week in which Adnan Syed, whose case was the subject of the first season of the podcast Serial, was set free by a Baltimore court after serving 23 years of incarceration. Here is a timeline of Syed’s case, which clearly indicates that the push to exonerate him came from the investigation in the podcast. Following in Serial’s footsteps was Undisclosed, a more pro-defense oriented podcast, which highlighted more discoveries.
In the book, Kaplan and LaChance examine a TV show that came out more or less when Serial emerged on the scene: Making a Murderer, which followed the murder case against Steven Avery and Brendan Dassey. It’s hard to argue against anything that creates a push for justice, and the authors don’t do that, but they do voice a critique against these wrongful conviction media products: by singling out specific cases of injustice, Kaplan and LaChance argue, they “fail[] to achieve the goal of critiquing the substance and structure of the criminal justice system and the bigger picture of hegemonic power relations in the United States that supports it” (94). In other words, “the protection of factually innocent people from the devastation of incarceration. . . becomes the most pressing criminal justice policy imperative, leaving untouched the question of why such a devastating punishment is so easily and readily meted out.”
Kaplan and LaChance’s critique is well taken. The concern is that the focus on innocence will gloss over the fact that guilty people, as well as the innocent ones, don’t deserve neglect, sadism, cruelty, incompetence, and other cruel and, sadly, not unusual aspects of incarceration. I saw some of this play out in the conversation about vaccines, when jail vaccine advocates referred to the presumption of innocence to make a bid for vaccines that everyone, guilty and innocent alike, should have received immediately simply by virtue of being human and in a congregate setting with little control over their surroundings (and said so here.) But wrongful convictions are their own genre of awfulness, and while we need to support everyone who is incarcerated, I don’t think that infighting between innocence projects and prison advocacy projects helps the overall goal of making the world a better place.
Moreover, I think I am more optimistic than Kaplan and LaChance about these shows. For every person who might watch them and think, “wow, this is a unique instance of miscarriage of justice” there must be several who walk away from it thinking “if this atrocity happened in a case that was highlighted by a podcast, imagine how many more people are languishing in prison for crimes they did not commit who haven’t been featured in podcasts yet.” I said as much in my commentary on the podcast and on the radio.
Happily, the high-profile success of the vanguard shows of this genre led to a whole slew of podcasts seeking justice for the wrongfully convicted. Just recently, the podcast Proof led to the exoneration of two men in Georgia. At the same time, a seemingly contradictory trend is visible: podcasts that reopen cold cases and present theories of the case can help revive interest in unsolved murders and sometimes put terrifyingly violent people behind bars, as well as highlight atrocious behavior that might or might not be criminally defined in an effort to get justice for the victims. I say “seemingly” because, in both cases, the underlying assumption seems to be: podcasters can grease and speed up the wheels of justice faster and better than, say, Innocence Project lawyers.
Why is that? Consider what might be the first example of this genre: Paradise Lost and Paradise Lost 2, the documentaries about the murders of three children in West Memphis, Arkansas, and the convictions of Damien Echols, Jesse Miskelley and Jason Baldwin. The documentaries evoked enormous interest in the cases, and with the weight of celebrities and advocates, within a few years, everyone who knew something about these cases became convinced that the three were wrongly convicted. This newly fueled interest led to some movement in the case, ending in a new trial for Echols and, eventually, in an Alford plea for all defendants that set them free. Shortly after the plea, understanding the power of media, Echols and his wife Lorri Davis produced a documentary of their own in 2012, which featured better forensics and more novel analyses of the evidence.
What happened with the West Memphis Three case is instructive. The media can bring to the public voices form the scene. Unbound by technicalities and rules of evidence and of legal ethics, they can reinterview witnesses, examine forensic evidence with improved technologies, and have candid conversations with legal actors (some of whom might be retired at that point.) They can tell a story in emotionally artful ways that can persuade the public that an injustice has been done. I’m beginning to think that the Innocence Project might want to invest a considerable part of its budget in podcasting.
One argument against the use of podcasts in this way might be that they draw arbitrary, sporadic attention to certain cases at the expense of others. That is surely a problem. But isn’t sporadic, arbitrary attention that corrects injustice better than no attention at all?
The other challenge might be that the proliferation of these podcasts, with every fresh journalist or journalism aspirant hoping to be the one to stand on the courtroom stairs and celebrate, their impact will become marginally smaller, to the point that we will stop paying attention. I don’t think we’re at that inflection point yet. Moreover, the exoneration technologies (primarily the improvement and lower costs of DNA testing) are exposing more and more of these cases (there are also stark racial patterns) and I think we still need all the podcasts we can get.
I’m attending the Annual Meeting of the American Society of Criminology and finding many of the talks illuminating and refreshing. It could be that the overall quality of work has improved, or that I make better choices about which panels to attend. Either way, this morning I’m following a series of panels about improving indigent representation, and have just come out of a conversation with the folks who run the campaign to End Justice Fees.
Those who followed the report on Ferguson are not strangers to the problem, but the public at large is likely ignorant of the immense (to the tune of billions of dollars!) toll of court fees and warrants. Even to me–who thought nothing would surprise me after learning about pay-to-stay and the resulting lawsuits–some of the details were shocking. The campaign’s website offers a wealth of information on the different things people get charged for: electronic monitoring, probation (yes, you pay for the pleasure of being monitored!), and–much to my horror–legal defense. Remember Gideon v. Wainwright, the landmark Warren Court case that required states to fund the defense of the indigent? Well, it turns out that, in 42 states, free representation means free for those who pay the fees (three figure amounts that many defendants cannot afford.)
Just like I found out in Cheap on Crime about pay-to-stay schemes, the absurdity of padding the pockets of municipalities and counties by charging the poor, rather than the rich, is in plain evidence. The fees are rarely recouped, resulting in crushing debt that kills the spirit of countless families and does not make up for the deficits. Figuring out the expense of keeping this ridiculous system in place is difficult (I wish someone took this on! I would, but my plate is full), but even though the numbers are elusive, I don’t think it’s outlandish to assume that pursuing lawsuits against hundreds of thousands of people for not paying what, for them, is a lot of money, but for the system is pennies, is not an economically efficient scheme. That this is costly beyond the obvious is evident from yet another horrible data point: in the Alabama Appleseed survey of people with court debt, they found that 38% of respondents had to resort to actually committing a crime in order to be able to pay the court fees (which are sometimes imposed for mere infractions or traffic violations.)
The good folks from End Justice Fees have come to the conclusion that advocacy works better than litigation for eliminating these fees. Here are some of the ground that they’ve made in California, per their website:
CA AB 199 makes the balance of any court-imposed costs assessed prior to July 1, 2022 unenforceable and uncollectible and vacates any portion of a judgment imposing civil assessments charged by traffic courts
Eliminated 17 additional criminal administrative fees and vacated $534 million in outstanding debt (2021).
California’s Families Over Fees Act repealed 23 criminal administrative fees and vacated $16 billion in outstanding debt (2020)
California ended the assessment of new juvenile fees (2017) and discharged outstanding fees (2020)
Ordinance eliminated local criminal administrative fees imposed in San Francisco (2018)
San Francisco made all jail phone calls free for incarcerated people and ended commissary markups (2020)
San Diego eliminated fees for phone calls and video visits (2022)
I’m also happy to report that, per their presentation, we are among the minority of states that do not charge people for their own representation which, under Gideon, indigent folks should pay for free.
The crux of the problem, with litigation, is that Bearden v. Georgia, the case often used to argue against punishing the poor for being poor, requires an investigation of means before incarceration–but the practice in many places is to arrest people for the purpose of assessing their means, which is technically a violation of Bearden but municipalities and courts claim is the only practical way to get ahold of the person.
This strikes me as the sort of initiative that decent people of all political stripes can and should get behind. It should yield the sort of coalitions I covered in Cheap on Crime and bring about more justice on an everyday level without slogans. Want to “dismantle” “abolish” “repeal” “defund” stuff? Here’s a good place to start on the ground and deliver immediate relief to people struggling with financial craziness.
The harm reduction community is deeply dispirited over Gov. Newsom’s rejection of the proposed safe drug injection/overdose prevention site in Oakland. Marisa Kendall reports for the Mercury News:
Senate Bill 57 would have allowed the two Bay Area cities to become among the first in the country to open facilities where users could bring drugs and consume them in a safe, supervised setting. The bill passed the state legislature this month. But after rejecting the bill, Newsom expressed worry that the law could actually make the drug crisis worse in those three cities.
“The unlimited number of safe injection sites that this bill would authorize — facilities which could exist well into the later part of this decade — could induce a world of unintended consequences,” he wrote in a veto message. “It is possible that these sites would help improve the safety and health of our urban areas, but if done without a strong plan, they could work against this purpose.”
Newsom added that he is instructing the secretary of Health and Human Services to convene a group of city and county officials to discuss overdose prevention strategies and how to implement a more limited pilot program.
This is a great disappointment, but not a big surprise. Kendall ties this position to Newsom’s possible presidential candidacy:
The move comes amid mounting speculation that Newsom might be eyeing a presidential run. And while it’s unclear whether those ambitions played into his decision, rejecting the bill likely will only help him on the national stage, where the majority of voters would likely balk at the idea of facilitating drug use, said Claremont McKenna College political science professor Jack Pitney.
“There’s a solid policy rationale for the veto,” Pitney said, “but politically, he’s dodged a potentially big problem.”
I have a few thoughts to offer about this observation. For many years–since my graduate school days in the early 2000s–I liked Newsom and believed in him, though I always knew that a politician is a politician, not the messiah (some of the Obama disappointees fell into that trap.) I admired his administration’s bold moves to the point that I was delighted to be considered for his penal code revision commission and sorely disappointed not to have been picked. In hindsight, though, not working for this administration was a blessing. I can’t imagine being able to help the people at San Quentin as much or in the ways that I did if I felt bound by loyalty to the Newsom administration.
Watching Newsom, Bonta, and others handle the executive and judicial aspects of the COVID-19 crisis was sobering. In Chapter 7 of our forthcoming book FESTER (the manuscript is due with UC Press this week!) we make the following observations about Newsom:
[T]he Governor’s [paltry COVID-19 release] program was overly sensitive to public backlash, and featured the classic hallmarks of the age-violence-risk paradox. Bifurcation—applying early releases and good time credits only to nonserious, nonviolent, nonsexual offenses—was in evidence in every category on the plan, despite the lack of correlation between the crime of commitment and risk to public safety. At first blush, such kowtowing to public outcry would seem uncharacteristic of Newsom, whose political path, from his early days as Mayor of San Francisco, featured bold, high-profile moves to advance progressive values and objectives, which he presented as doing the right thing no matter the backlash. His move to legalize same-sex marriage in California—the subject of ferocious litigation that culminated in a Supreme Court victory—was perceived by some, at the time, to be political suicide. Similarly, his moratorium on the death penalty was criticized for not reflecting the wish of a small but consistent majority of Californians. In both of these cases, Newsom correctly read the political winds, and his predictions proved true; his self-styled image of an idealistic pioneer was boosted by the fact that his executive decisions preceded wider societal shifts. But Newsom’s reluctance to release people convicted of violent crime reflected age-old wisdom in California politics that, even in the bluest of counties, it is not a wise political move to flout entrenched fears of violent crime. Reflective of the justifiability of this concern was a disparaging story in the Los Angeles Times about Newsom’s plan titled, “California is releasing some murderers due to COVID-19. Some say it should free more.” After a barrage of phone calls from Coalition members, the newspaper changed the headline, but the content, which rehearsed tired tough-on-crime tropes from the Reagan administration days, remained unaltered: the writers chose to interview crime victims who, while entitled to their personal opinions, were neither the statewide curators of victims’ perspectives nor qualified to offer broad insights on emergency healthcare policies. They also mentioned, without a shred of irony, Willie Horton.
. . .
Three examples of such aging, low-risk people drive home the extent to which age-violence-risk paradox was part of the Newsom administration’s calculus. Twice during the pandemic, the parole board recommended parole for Leslie Van Houten, born in 1950 and housed at California Institute for Women (CIW.) Van Houten had been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what appear, in light of her exemplary prison record, pure political spite. Van Houten has maintained a clean disciplinary record, participated in a variety of laudable programs, and incessantly excavated her psyche to show “insight” to the Board. She participated in the Manson murders when she was 19 years old, manipulated and sexually exploited in a setting that, with today’s #MeToo sensibilities, might have shed a completely different light on her involvement.
As one of us has explained elsewhere, the Manson family cases shine a light on the question of redeemability, featuring people who have clearly done their utmost to undergo, live, and exude transformation but whose notoriety stands in their way. But van Houten’s two last hearings featured an additional consideration: the parole hopeful was over 70 years old and CIW, where she was housed, was experiencing an outbreak just as she was denied parole.
Another notorious member of the “Class of ‘72’”—the 107 people condemned to death whose sentences were commuted to life with parole after People v. Anderson—was Sirhan Sirhan, who had assassinated Robert Kennedy. At the time of his COVID parole hearing, Sirhan was 77 years old. The Chronicle’s Bob Egelko forecasted his parole bid:
“Anybody that has ever walked into my office, you have to walk by photographs of Bobby Kennedy’s funeral procession, those famous train photos,” the governor said, according to a transcript provided by his office. “The first photograph, the only photograph you will see in my office is a photo of my father and Bobby Kennedy just days before Bobby Kennedy was murdered.”
At the time of Sirhan’s parole bid, Newsom was facing a recall election in which he had everything to lose, and absolutely nothing to gain, from releasing Sirhan. As Egelko explained, Newsom’s leading opponents in the recall, all of whom were well to his right politically, would seem equally unlikely to approve Sirhan’s parole. Moreover, any decision to release Kennedy’s murderer would surely become a flash point in the 2022 governor’s election.
“I’d be shocked if Newsom didn’t reverse” the parole board’s decision, said Robert Weisberg, a Stanford criminal law professor. Although the governor would have to explain why he believed Sirhan still posed a threat of violence, Weisberg said, he would most likely be “responding to a public view that this guy’s crime was so heinous that he shouldn’t be paroled.”
Predictably, Newsom vetoed Sirhan’s parole and, perhaps hoping to win political points while facing a recall election, took the trouble to pen an op-ed about it in the Los Angeles Times:
“Kennedy’s assassination not only changed the course of this nation and robbed the world of a promising young leader, it also left his 11 children without a father and his wife without a husband. Kennedy’s family bears his loss every day. Millions of Americans lost a unifier in a time of national turmoil and grief, just nine weeks after the assassination of the Rev. Martin Luther King, Jr., and four-and-a-half years after the murder of Kennedy’s brother, President John F. Kennedy.
“Yet, after decades in prison, Sirhan still lacks the insight that would prevent him from making the kind of dangerous and destructive decisions he made in the past. The most glaring proof of Sirhan’s deficient insight is his shifting narrative about his assassination of Kennedy, and his current refusal to accept responsibility for it.”
The language in Newsom’s op-ed echoes the concept of “insight”, which parole researchers broadly agree is a deliberately opaque, vague term used to justify denials based on the now-prohibited consideration of the heinousness of the original crime. Kathryne Young explains that “insight” is. Kristen Bell identifies the same obfuscation with regard to juvenile parole hearings. And Rita Shah, in a review of my previous book Yesterday’s Monsters, pithily explains that “Like rehabilitation, insight seems be a bullshit term as determining whether one has gained insight or is on the road to rehabilitation appears to be the criminal legal system’s equivalent of ‘I’ll know when I see it.’”
But the absurdities in Van Houten and Sirhan’s cases pales in comparison with the continued incarceration of Gerald Albert Oates who, at the age of 94, is the oldest living person incarcerated at CDCR. After a parole denial in 2018 because, unbelievably, Oates is still categorized as “high risk” by CDCR,[8] he remained incarcerated throughout the COVID-19 crisis, apparently surviving the Newsom Administration’s project to identify priorities for release. Oates’ case highlights the extent to which the calcification of fear and loathing of so-called “violent offenders”, wrought by the age-violence-risk paradox, stood in the way of making parole decisions that made sense, practically and medically.
There you have it: a politician I used to respect and admire. Over the course of the last few years, I have come to realize that his true gift is his keen sense of smell for where public opinion will be two weeks from now, appearing as a maverick when pushing initiatives that he knows will shortly enjoy wide public support. Because he knows that people addicted to drugs in the streets and people languishing in overcrowded prisons (1) don’t vote and (2) don’t matter to voters, he can afford to continue running California as if their lives don’t matter at all.
Last comment: Whatever Newsom is doing is playing out marvelously in California, where a recent poll shows him a reelection shoe-in (long-time readers will recognize his opponent, Brian Dahle, an old-skool law and order guy who opposed the recent prison closure in Susanville.) But it might not earn him as many points as he hopes in less-blue pastures on the national stage; he’s not getting any love for this on Fox News, where they can see right through it (even a broken clock shows the right time twice a day.)
Well, it’s happened: A search of Trump’s Mar-a-Lago residence yielded numerous items, all of which are listed in the search warrant, which you can read here in all its glory.
If you still can’t make heads nor tails of this, it’s because all we have seen so far is the warrant, which lists the place to be searched and items to be sealed, and not the affidavit, in which law enforcement officers detail their probable cause for the judge. As explained here, for reasons involving the ongoing investigation, it is unlikely that we’ll actually see the affidavit before formal charges are brought, so speculation abounds. Nevertheless, there are some things we can learn from the warrant. Here’s the description of the items sought:
a. Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes;
b. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material;
c. Any government and/or Presidential Records created between January 20, 2017, and January 20, 2021; or
d. Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.
Contrast this with the three crimes listed in the warrant and you get a fuller picture of the suspicions against Trump. Here’s an excerpt from this New York Times story, which describes these federal laws:
The first law, Section 793 of Title 18 of the U.S. Code, is better known as the Espionage Act. It criminalizes the unauthorized retention or disclosure of information related to national defense that could be used to harm the United States or aid a foreign adversary. Each offense can carry a penalty of up to 10 years in prison.
Despite its name, the Espionage Act is not limited to instances of spying for a foreign power and is written in a way that broadly covers mishandling of security-related secrets. The government has frequently used it to prosecute officials who have leaked information to the news media for the purpose of whistle-blowing or otherwise informing the public, for example.
Importantly, Congress enacted the Espionage Act in 1917, during World War I — decades before President Harry S. Truman issued an executive order that created the modern classification system, under which documents can be deemed confidential, secret or top secret. The president is the ultimate arbiter of whether any of those classifications applies — or should be lifted.
As a result, while these classifications — especially top secret ones — can be good indicators that a document probably meets the standard of being “national defense information” covered by the Espionage Act, charges under that law can be brought against someone who hoarded national security secrets even if they were not deemed classified.
The list of items that the warrant authorized the F.B.I. to seize captured this nuance. It said agents could take “documents with classification markings,” along with anything else in the boxes or containers where they found such files, but also any information “regarding the retrieval, storage or transmission of national defense information or classified material.”
The government has not said what specific documents investigators thought Mr. Trump had kept at Mar-a-Lago, nor what they found there. The inventory of items was vague, including multiple mentions of “miscellaneous top-secret documents,” for example.
But the invocation of “the retrieval, storage or transmission” of secret information in the warrant offered a potential clue to at least one category of the files the F.B.I. may have been looking for. One possible interpretation of that phrase is that it hinted at encrypted communications, hacking or surveillance abilities.
The other two laws invoked in the warrant do not have to do with national security.
The second, Section 1519, is an obstruction law that is part of the Sarbanes-Oxley Act, a broad set of reforms enacted by Congress in 2002 after financial scandals at firms like Enron, Arthur Andersen and WorldCom.
Section 1519 sets a penalty of up to 20 years in prison per offense for the act of destroying or concealing documents or records “with the intent to impede, obstruct or influence the investigation or proper administration of any matter” within the jurisdiction of federal departments or agencies.
The warrant does not specify whether that obstruction effort is a reference to the government’s attempts to retrieve all the publicly owned documents that should be given to the National Archives and Records Administration, or something separate.
The third law that investigators cite in the warrant, Section 2071, criminalizes the theft or destruction of government documents. It makes it a crime, punishable in part by up to three years in prison per offense, for anyone with custody of any record or document from federal court or public office to willfully and unlawfully conceal, remove, mutilate, falsify or destroy it.
Given that the ongoing investigation is still shrouded in mystery, assuming that there isn’t some glaring horror, this is beginning to look like Al Capone’s prosecution for tax evasion.
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:
This interviewis part of our series Econ Extra Credit with David Brancaccio: Documentary Studies, a conversation about the economics lessons we can learn from documentary films. We’re watching and discussing a new documentary each month. To watch along with us, sign up for our newsletter.
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.
Hadar Aviram
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.
