CARES Act Relief for Incarcerated People

The Coronavirus Aid, Relief and Economic Security (CARES) Act provides assistance to hospitals, nonprofits, individuals, and businesses. Among other provisions, the CARES Act provides individuals who earn less than $75,000 annually with a direct payment of $1,200, plus an additional $500 for every qualifying child age 16 or under. Married couples who file a joint return and earn less than $150,000 are eligible for up to $2,400 plus an additional $500 for every qualifying child age 16 or under.

On September 24, 2020, Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California issued an Order certifying a nationwide class of people incarcerated in state and federal prisons, and granting the plaintiffs’ motion for preliminary injunction requiring the U.S. Department of Treasury, the U.S. Internal Revenue Service, and the United States of America to stop withholding CARES Act stimulus funds from plaintiffs or any class member on the sole basis of their incarcerated status.

The Judge’s preliminary injunction further ordered the defendants to reconsider their prior denial of advance refund payments to any person based on incarcerated status within 30 days, whether the denial was based on a 2018 or 2019 tax return, or on claims filed through the IRS’s online “Non-Filer” portal.

Earlier, on August 1, 2020, Lieff Cabraser and the Equal Justice Society filed a groundbreaking lawsuit against the United States Department of the Treasury and Internal Revenue Service on behalf of a nationwide class of people who were incarcerated at any time from March 27, 2020 to the present—that is, people serving a sentence in state or federal prison. The lawsuit seeks to have a court order the Defendants to issue CARES Act stimulus relief to all eligible incarcerated people, or up to $1,200 per eligible person plus $500 per qualifying child.

Lieff Cabraser have put together an easy-to-follow FAQ for you, explaining who is eligible and how to file a claim.

Explainer on Politics of Replacing Justice Ginsburg

Millions of people grieve the loss of legal giant Justice Ruth Bader Ginsburg today and appreciate her enormous contributions to fairness and equality. I would have loved to discuss Justice Ginsburg’s legacy in criminal justice decisions (I’m planning to do that in class on Monday) but apparently we don’t get a second to mourn and respect, because we’ve already been thrown into an imbroglio of political machinations and cost-benefit tactics. Today I did an explainer with Manny Yekutiel of Manny’s, which I’m happy to share in case it is useful.

Help Floridians Regain the Right to Vote

Florida is one of only four states in which people with felony convictions permanently lose their right to vote. In November 2018, Floridians sought to change this by passing Amendment 4 by a majority of %64.55. Amendment 4 would automatically restore the right to vote for people with prior felony convictions, except those convicted of murder or a felony sexual offense, upon completion of their sentences, including prison, parole, and probation.

Since the passage of Amendment 4, politicians have piled challenge upon challenge in the way of people seeking the right to vote. The latest hurdle came today, when the 11th Circuit ruled en banc that Florida may require people with a past felony conviction to pay off all fines and fees before they can get their right to vote back–even if they cannot afford to do so.

The only explanation I can find for this is an entitlement effect. I grew up in a country in which everyone, even people doing time in prison at the time of the election, can vote, and it would never occur to me that it’s possible or fair to do otherwise. But I suspect that what is at work here is an insidious version of the entitlement effect: They feel comfortable doing this because their point of departure is lifetime disenfranchisement. To them, it’s not about giving people what every citizen has and should have–it’s about gifting people a privilege they haven’t had in a long time.

We can do something about this. Hop on this website and plonk a few shekels to help your fellow Americans – Floridians who want to participate in our democracy and are being thwarted by politicians and courts – vote in the upcoming election. It’s good for Florida, it’s good for racial and economic justice, and it’s good for all of us, because you know that winning Florida is crucial in this election. According to Jeff Manza and Chris Uggen, at least one presidential election (now two, likely) and eight congressional ones would have gone the other way if people with felony convictions could vote. Prove them right by changing history and expanding democracy.

Blackface Scandals Are the Logical Conclusion of the Performative Goodness Race

As if we don’t have bigger tofu slices to fry–with 57 days till the election, we absolutely do–the academic/activist left is atwitter (pun intended) about yet another blackface scandal. This time, it’s Jessica Krug, African and Latin American history professor at George Washington University, whose identity as “Jess La Bombalera” was, as it turns out, fictitious: she grew up Jewish in Kansas City. Facing imminent unmasking by colleagues who suspected that something was awry, Krug published a self-excoriating screed on Medium, in which she admitted to fabricating “a Blackness that I had no right to claim: first North African Blackness, then US rooted Blackness, then Caribbean rooted Bronx Blackness.”

This mess comes to us just a few years after the exposure of Rachel Dolezal, the NAACP official who cultivated an African-American-passing appearance and sparked a debate on whether “transracial” was a “thing,” and a few months after the death of author H.G. Carrillo (“Hache”) of COVID-19, which exposed his lifelong fabrication of a Cuban-American identity. Because of the nature of the identity-manufacturing–white people posing as black–Krug and Dolezal drew understandable ire, and both scandals erupted amidst waves of uprising about racial inequality.

Plenty of personal trauma and pathology is evident in both stories, but Durkheim taught us to see even the most personal phenomena as social facts. Given the progressive obsession with performance, these scandals are a Petri dish for dissection and, faithful to the trappings of the genre, most of these have revolved around the authenticity (or lack thereof) of apologies. But I found an especially insightful twitter thread by Yarimar Bonilla, who astutely remarks that it was “[k]ind of amazing how white supremacy means [Krug] even thought she was better at being a person of color than we were.” Bonilla offers revealing examples of how expertly Krug trafficked in the tropes of progressive oneupmanship:

She always dressed/acted inappropriately—she’d show up to a 10am scholars’ seminar dressed for a salsa club etc—but was so over the top strident and “woker-than-thou” that I felt like I was trafficking in respectability politics when I cringed at her MINSTREL SHOW. In that sense, she did gaslight us. Not only into thinking she was a WOC but also into thinking we were somehow both politically and intellectually inferior.While claiming to be a child of addicts from the hood, she boasted about speaking numerous languages, reading ancient texts, and mastering disciplinary methods—while questioning the work of real WOC doing transformative interdisciplinary work that she PANNED. She consistently trashed WOC and questioned their scholarship. She even described my colleague Marisa Fuentes as a “slave catcher” in the introduction to her book. Kind of amazing how white supremacy means she even thought she was better at being a person of color than we were.That pathology remains evident in her mea culpa article. Somehow she manages to remain ultra woke and strident, still on her political moral high horse, caling for white scholars to be cancelled –in this instance her own white self.

Yarimar Bonilla on Twitter, Sep. 3, 2020

Bonilla is not the only scholar who blamed white supremacy–in this particular case, Krug’s whiteness–for the scandal: elsewhere on twitter, Sofia Quintero quipped that “[n]othing says white privilege like trying to orchestrate your own cancellation.” But I think there’s something else going on here. As many people have observed, Krug materially benefitted from her deceit, through fellowships and opportunities open to underrepresented people of color. The benefits, however, don’t end there, and it’s time to be honest about this. Overall (no matter how much our Attorney General chooses to ignore this), white people enjoy preferential treatment across the board, starting with the very basic good fortune to avoid humiliating, dangerous, and sometimes lethal encounters with the police, and continuing through intergenerational wealth, opportunity, and representation. However, there are pockets and milieus–and they are not minuscule or insignificant–where being a person of color confers real, valuable social advantages. I happen to know this milieu, the academic-activist pocket, quite well, and I think the social dynamics in it explain a lot. It’s not just scholarships and fellowships (though there are examples of material benefits.) It’s the mantle of authenticity, the uncontested ability to hold a moral high ground, and the sometimes-explicit, sometimes-tacit permission to treat others publicly with disdain.

The moral high ground is not unrelated to material benefits in academia (such as they are, given the initial barriers to academia for people from marginalized backgrounds in the first place), but the mantle of superior morality in itself is a precious commodity for some academics/activists. Because white people cannot be black (or can they? Read Adolph Reed’s take on racial essentialism, if you can get around his disregard for Caitlyn Jenner), the next best thing is to be the best white person they can possibly be, which is why we engage in the pageantry of racial confessionals every time yet another horrific killing of a black person produces a swell of uprising against racial inequality (that there’s immense grief and rage is understandable, and it has to go somewhere, but it’s telling that it goes into this variant of moral theatre.) Krug and Dolezal knew full well that, in this competition, it’s turtles all the way down, and simply drew the obvious conclusion: the only way to win the performative goodness race, the ultimate white progressive oneupmanship, is to subvert the whole thing by becoming black yourself.

Except, as Bonilla astutely tells us, and as Krug and Dolezal have taught us, it doesn’t end there, because it turns out that white people haven’t cornered the market on performative goodness. It plays out in remarkably similar ways among academics and activists of color, where strident and edgy performance of authenticity confers the symbolic benefits of being better than other (less radical, less woke, more white-conforming) nonwhite people. Inevitably (and this is true even if you aren’t a white person pretending to be nonwhite), someone’s going to be woker than you, purer than you, more authentic and edgy than you (as Touré Reed wrote, the demand for this kind of performance is a problem in itself.) One’s own goodness is a helluva drug; one needs larger and larger doses, ad infinitum. On the brink of being unmasked, Krug correctly deduced that the only move left on the chessboard was self-cancelation: embracing an ethos of zero forgiveness and zero redemption must exact the ultimate price. After all, she says, “my politics are as they have ever been, and those politics condemn me in the loudest and most unyielding terms.”

Is there another way out of this grim festival of condemnation and self-condemnation? Yes, but only if we see the recent slew of blackface scandals differently. Whether or not Dolezal or Krug “get”, to use another odious idiom from this milieu, to be redeemed, is not particularly interesting to me; like Bonilla, I don’t think we can or should spend energy marinating in the bacchanalia of punishment that this sort of thing dredges up. Instead, I suggest that people like Dolezal, Krug, and Carrillo–like the many people who “passed” before them across racial lines in America–have valuable lessons to teach us about the social cost-benefit calculus of passing. If we view these scandals as social facts, we learn where the perceived advantages and drawbacks lie, and might come to important conclusions.

I remember reading Philip Roth’s The Human Stain with great interest and great discomfort. Roth’s protagonist, Coleman Silk, is an academic widely perceived as a Jew, whose life is destroyed following innocent quip at a classroom–using the word “spooks” for “spies”, a term that also carries racially-derogatory connotations. Subsequently, it is revealed that Silk is actually African American but had been passing as a Jew since a stint in the Navy. He completed graduate school, married a white woman and had four children with her, never revealing his African-American ancestry to his family. As Roth writes, Silk chose “to take the future into his own hands rather than to leave it to an unenlightened society to determine his fate”.

The Human Stain is crafted around a real story–the witchhunt against Roth’s friend Melvin Tumin for a similar innocent utterance. It’s not the only example: John McWhorter relays a similar incident, and if you want something more recent, this idiotic USC reaction to absolutely nothing is a prime example. Roth’s spin on this story of “cancelation” teaches us the same conclusions: endless competitions of moral superiority, lacking in compassion and forgiveness and hingeing on identity as the ultimate arbiter of all things, end up with the snake swallowing its own tail. It’s not a coincidence that Roth chooses to contrast the witchhunt with its logical conclusion: it’s the perfect confluence of our search for racial benefits and our appetite for meting out costs.

In other words, Krug, Dolezal, et al. are being reviled for being exceptions, aberrations, when they are mere corollaries of the game that everyone around them plays on the regular–a game of excoriations, public apologies, public rejections of apologies, obsessions with performance and appearance. I’m going to venture a not-very-wild guess that they are not the only ones. People of all colors in this mileu are so invested in this game, so I’d be surprised if there weren’t other passers around, trying to circumvent the white goodness competition only to find themselves playing the person-of-color goodness competition. Racism and racial inequality have wrought many ills, but this is one we can actually fix ourselves. Let’s stop playing this game, okay? It’s occupying so much cultural room that there isn’t enough left to do the actual work of racial equality–donating to worthy causes, supporting political candidates that move us farther in terms of racial and economic equality, revamping business to allow all families the chance of intergenerational wealth. How about, rather than tying ourselves up in knots about how we can come up with more, better, symbolic representation of our goodness, we call it quits and focus on quietly and efficiently doing the right thing? We could if we learned the right lesson from these scandalous morality tales, but I’m not holding my breath.

For a more lighthearted take on this, I highly recommend this hilarious conversation between Trevor Noah and Michelle Wolf. It suffers from some of the essentialist ailments I talked about (if she “passes” for a person of color, how can she “cry her way out of a ticket?”), but it’s so enjoyable nonetheless.

Nov. 2020 Ballot Endorsement: Yes on 17

Currently, the California Constitution, in Article II, Section 4, provides that “The Legislature shall. . . provide for the disqualification of electors while . . . imprisoned or on parole for the conviction of a felony.”

Accordingly, people who are serving a sentence in a state or federal prison, or have been released and are on parole, cannot be registered to vote. As of 2016–after our litigation efforts to get it done sooner failed–this restriction does not include people who are doing time in jail, even for felonies, nor does it include folks on community probation. But this leaves people on parole disenfranchised. According to the Prison Policy Initiative, as of Dec. 31, 2016, there were 89,586 people on parole. This is not a big number, because after Realignment, most people with felony convictions are supervised by the counties in the community (in addition to the already existing large probation population)–as of Dec. 31, 2016, we had 235,918 on probation. According to the Yes on 17 campaign, the number of parolees now is even smaller–they estimate that 50,000 people on parole are ineligible to vote under the CA constitution.

Prop 17 would change that. It is a Constitutional amendment that would grant people who served a federal or state prison sentence the right to vote as soon as they complete their sentence. If we pass this proposition, we’ll join the following states, which allow parolees to vote: Hawaii, Illinois, Indiana, Maine, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, and D.C.

A “yes” vote on 17 has many benefits. As Jessica Willis and I wrote elsewhere, civic reengagement of people after they return home from a prison sentence is a crucial step in restoring their trust, loyalty, and sense of a stake in their community. It makes communities safer by ameliorating the already-difficult trajectory of reentry and reducing recidivism. It mitigates racial injustices (most parolees are people of color.) And it brings much-needed perspectives, with important experiences, into the democratic process, which includes voting for people like prosecutors and judges.

If anything, Prop 17 does not go far enough–like everyone else, the person would need to register to vote, which is an extra step that creates a hindrance; if it passes, many people might not even know, upon release, that they are eligible to vote. But this goes to my general gripe with a system that requires registering to vote, as opposed to rendering all citizens automatically eligible to vote when they reach voting age; I’ve written before about how U.S. illogical obstinance about a simple measure–the provision of a national identity card to every American citizen when they turn 18–perpetuates a problem that is very easy to solve. But even within the constraints of the existing system (every country has tics and wrinkles–the ones here are obvious to me because I didn’t grow up here,) I can see a solution. When I became a citizen in 2015, as soon as all of us new Americans exited the beautiful Paramount Theatre where our naturalization ceremony was held, we passed through three booths: passport application, social security application, and a happy and energetic voter registration posse. Putting together a similar setup at the exit door of the prison is a piece of cake. All CDCR needs is a computer with a working Internet connection and this handy link, and everyone–EVERYONE–on the day of their release can leave CDCR facilities as a registered voter. As to the expense involved in doing all this, LAO estimates a one-time expense in updating state systems, followed by an annual expense representing the need to print and mail additional ballots and voter materials–exactly what you and I get as registered voters.

There really are no downsides, unless you’re a moralistic curmudgeon who for some reason believes that we should continue disenfranchising people after they’ve served their prison sentence. Let’s bring more people into our democracy. Vote Yes on 17.

2020 Presidential Endorsement: Biden-Harris

As has been my custom, I’m going to provide blog endorsements for criminal justice propositions and candidates as the November election approaches. Today we start with the top of the ticket–candidates for President and Vice-President.

If you’re anything like me, you’ve been getting dozens of idiotic political fundraising gambits via email and text. One of my favorites was the faux survey: “Do you prefer Sanders and Klobuchar/Biden and Warren/Harris and Castro to Trump and Pence?” To which I often replied, “I prefer a colonoscopy and a root canal to Trump and Pence.” I think what we have here is not what I would have wanted, but it’s nowhere near a colonoscopy and a root canal, and it’s a light-years-far cry from Trump-Pence.

***

Suppose, for your birthday, you receive a catalog with two gift choices: a steaming pile of poop and a basketball. You must have one or the other; if you pick, you get the one you chose, and if you don’t pick, one will be chosen for you. You can’t opt out. Alas, you wanted a pony. But a pony is not on offer.

What do you do? You might pout, you might shout, but eventually you pick the basketball. Because there’s something you know for sure: you don’t want the pile of poop.

You don’t scribble, “I WANTED A PONY!!!!!” with your colored pencils all over the catalog. There is no #%^@ing pony. There’s only poop and basketball.

***

Six years ago, an Orange County federal judge, Judge Cormac Carney, ruled that the death penalty in California was cruel and unusual because of the delays in its administration. This decision provoked much excitement in the anti-death-penalty community. It did not mean immediate abolition, because it was just one habeas case. But it could lead to abolition, and all the Attorney General had to do was refrain from appealing the decision and get out of the way. At the time, I organized a petition, which 2,178 people signed, essentially urging then-Governor Brown and then-Attorney General Harris, both of whom were personally opposed to the death penalty, “don’t just do something! Sit there.” Many lawyers and advocates were extremely excited about the prospect of finally getting to work on ridding ourselves from the shame and the expense of California’s broken death penalty. And then, two days before the appellate clock was to run out, the AG’s office decided to appeal the decision.

To my surprise, and to their credit, one of AG Harris’ assistants called me on my cellphone and explained why they decided to do so. They interpreted Judge Carney’s decision as making new law on habeas, which is prohibited, per Teague v. Lane (1989), because of retroactivity issues. The technical wrinkle is this: habeas petitioners’ cases are already final, and if a new law is announced in their cases, it cannot apply to similarly situated defendants, because their cases are also final. So the Supreme Court decided to relegate habeas to the law of yesterday, which is unfair and outrageous, but it is technically the law.

Jones v. Chappell then landed at the Ninth Circuit as Davis v. Jones. At the oral argument, Jones’ attorney made a valiant effort to argue that Judge Carney did not make new law, but rather applied good old Furman v. Georgia. The effort failed, though it did have some merit. The decision was a big disappointment, and we ended up with six more years of a death penalty in which no one was executed but your tax dollars, and mine, funded $150 million a year per death row person in litigation fees. Our effort to repeal via voter initiative didn’t work, and met with nasty resistance in the form of a competing, misleading, unjust proposition, which is still tangled up in litigation to this day. It also met with the preciousness of progressives who believe that the good was the enemy of the perfect, and astoundingly voted no on abolition. So it went until Gov. Newsom finally pulled the plug, but of course, without judicial support (or legislation,) we’re still paying the litigation fees, and we will continue to pay until some brave judge does something or until a majority of Californians finally votes to abolish.

I was very upset about the AG’s decision. I thought it was the wrong call, policywise and moralitywise, and said so on numerous occasions.

I am writing this because phone calls from news agencies looking to do some muck racking have already begun. I’m going to decline any and all interviews about Harris, and I want to be crystal clear why. My target audience is the folks who were hoping for a different ticket. I explained the background above to clarify that I, too, had a different ticket in mind. I wanted Elizabeth Warren to be the Presidential nominee. But Elizabeth Warren is not on the ticket.

Joe Biden and Kamala Harris are.

I want to make it crystal clear that I am shelving any and all reservations about the Democratic 2020 ticket, and am urging you to vote Biden-Harris, with or without enthusiasm. Your enthusiasm is not that important (though, if you can muster some, you’ll feel better.) Your vote is. Monumentally so.

In the coming months, we will hear a lot about who Biden and Harris are, but one thing I’m pretty clear on is that they are colossally different than the criminal junta that has been running things in the last three and a half years, buying their way to power through treason and backroom deals with enemies, locking up children, letting families starve, making nepotistic appointments of unsuitable, barely-literate idiots who ruin whatever they are in charge of, destroying our precious planet, sending government goons to beat and abuse protesters, encouraging and goading non-government goons to shoot, run down, and murder people, trafficking in horrific tropes to ally themselves with actual Nazis.

The situation, in short, is this, my friends. Behind Curtain no. 1: Nazis. Behind Curtain no. 2: not Nazis.

The pony is not on the ballot. The bedrock of our democracy is. You’re not getting a custom-fit ticket, you’re choosing from a catalog with two products. The choice is obvious.

Don’t Get Yanked by a Bad Man’s Chain

By all rights, we should spend our day mourning a national civil rights hero and taking heed of his stirring words of inspiration, as well as his eulogy given by another national hero. But a man who is their exact opposite–the psychopathic, semi-literate career criminal in the White House–won’t let attention drift from him and his infantile antics for a second, and so we now have this stupidity to deal with. The two-dime reality show host did what two-dime reality show hosts do: create some distraction to send you reeling and make your heads spin. And suddenly I’m prepping for a TV interview about this nonsense, which happens in 20 minutes, and there’s nothing to say, because it’s a nonstarter.

Yet again, our self-styled despot has composed some poorly-worded tweet with his signature preschool syntax and too many exclamation marks that threatens the basic civic fiber of governance and, like the circus masters of yore, whips everyone into a frenzy: exclamations, explainers, constitutional law primers, apologies, predictions, only to tell us that it was a joke.

He’s a bad man and an idiot. Leave him alone. Focus on John Lewis’ inspiring legacy:

Though I may not be here with you, I urge you to answer the highest calling of your heart and stand up for what you truly believe. In my life I have done all I can to demonstrate that the way of peace, the way of love and nonviolence is the more excellent way. Now it is your turn to let freedom ring.

When historians pick up their pens to write the story of the 21st century, let them say that it was your generation who laid down the heavy burdens of hate at last and that peace finally triumphed over violence, aggression and war. So I say to you, walk with the wind, brothers and sisters, and let the spirit of peace and the power of everlasting love be your guide.

John Lewis, Together, You Can Redeem the Soul of Our Nation, Washington Post, July 30, 2020

Let’s bring change to this land and cleanse it from this scourge on November 3.

The Last Whiplash of the Balrog

In J.R.R. Tolkien’s Lord of the Rings, the Balrog is an ancient monster, a relic from times past, who lurks beneath the surface. When the Fellowship of the Ring crosses the Bridge of Khazad-dûm, they provoke the Balrog, who angrily attacks them. Gandalf, the wizard, successfully fights the monster, but at the very last minute, as the Balrog plunges to its death, it flings its whip one last time, capturing Gandalf and dragging him along into the abyss.

The U.S. death penalty in the 21st century is like the Balrog—an ancient monster, a relic from times past, still grasping and lashing its whip even as it approaches its demise. The score, state-by-state, is even: 25 states have retained it, 22 states have abolished it, and three (including California, home to the largest death row in the country) have instated moratoria upon its use. Even in retentionist states, the rate of executions has slowed down to almost a grinding halt, and initiatives to abolish the death penalty frequently appear on the ballot. Paradoxically, as Daniel LaChance explains in his book Executing Freedom, it retains the support of the majority of people even as it loses practical ground. Much like people on death row, most of whom die natural deaths after decades of incarceration and litigation, the death penalty itself is dying a slow, natural death. This is a confluence of several factors: recession-era politics that drew attention to the immense, disproportionate expenditure on capital punishment; the rising prominence of the innocence movement, which shone a light on the widespread problem of wrongful convictions; and the Obama-era attention to racial disparities in criminal justice, among others.

Tolkien is a master storyteller, and he sets up the moment when the Balrog’s whip ensnares Gandalf as poignantly tragic—a sudden, unnecessary reminder that, even at its demise, the archaic still has bite. This is how last week felt. Taken together, the decision in Barr v. Lee and the three executions that followed were a persuasive catalogue of the evils of the death penalty, straight out of the abolitionist playbook.

First was the decision itself, which followed the expected 5-4 pattern. In the spirit and tradition of death penalty litigation in the last few decades, it revolved around what Justice Harry Blackmun referred to in the early 1990s as “tinkering with the machinery of death.” Blackmun could afford a direct, stop-beating-around-the-bush approach to the tiresome and technical minutiae of postconviction litigation, but capital defense lawyers cannot; arguments about human rights and racial disparities have long been futile, for various procedural reasons, and the limits of the sayable on appeal and on habeas revolve around chemicals and number of injections. Justice Breyer’s dissent echoed Blackmun’s distaste with what death penalty litigation has become, remarking, “[t]his case illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishmen[t]’”. Justice Sotomayor, in turn, remarked on the absurdity of doing justice to fundamental questions via “accelerated decisionmaking.”

Then came the three executions, the first sneaking up on the American public while we were sleeping in our beds. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victim’s families to spare him the death penalty. The judicial and executive branches’ trampling of the victim’s requests followed the usual capital punishment theater in which, as Sarah Beth Kaufman explains in her new book American Roulette, prosecutors, governors, and death penalty advocates use victims as a prop, assuming that punitiveness is faithful to their wishes. As I documented in my book Yesterday’s Monsters, in California (as in other states) the voice of victims has been captured by a small group of white, middle-class victims of stranger homicides which, albeit sincere about their own punitive sentiments, do not represent the demographics or wishes of most survivors of violent crime. The first-ever national survey of crime survivors paints a more realistic picture. Twice as many victims prefer that the criminal justice system focus more on rehabilitation than on punishment; victims overwhelmingly prefer investments in education and in job creation to investments in prisons and jails, by margins of 15 to 1 and 10 to 1 respectively; by a margin of 7 to 1, victims prefer increased investments in crime prevention and programs for at-risk youth over more investment in prisons and jails; 6 in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation than lengthy prison sentences. The assumption that the only good victim is a punitive victim does not have a factual leg to stand on.

The execution that followed was of 68-year-old Wesley Purkey, who was described by his lawyer, Rebecca Woodman, as a “severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease” and does not understand “why the government plans to execute him.” The debate over Purkey’s mental illness was emblematic of the decades and billions of dollars spent poring over the fitness of elderly, decades-long death row residents, for execution. Reading of Purkey’s execution reminded me of how COVID-19, which is ravaging San Quentin’s death row as I write this, is making a mockery of our state’s well-intended moratorium. More people on death row have died of the virus during this moratorium than have been executed by the state in the entire century, which in itself should raise serious qualms about the ethical validity of the debate whether this or that individual is healthy enough to be killed by their government.

Finally came Dustin Honken’s execution, which offered a grim reminder of the gap between the inexplicable federal enthusiasm for executions and the waning interest of states in the penalty. Honken is the first person from Iowa to be executed since 1963; Iowa abolished the death penalty in 1965. Honken’s lawyer, Shawn Nolan, said, “There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.”

In her dissent, Justice Sotomayor expressed concerns about the procedural framework used to greenlight these three executions, a grant of the federal government’s emergency application, which “inflicts the most irreparable of harms without the deliberation such an action warrants.” But my deeper concern is about the inexplicable zeal that animated the emergency application in the first place. As a deadly pandemic ravages cities and towns, as the American public wakes up to the fragility of human life, the federal appetite for cheapening it by pursuing human-inflicted killings in the name of dated approaches is astounding. That it is in step with the Trump administration’s embrace of old-school punitivism does not make it any less perplexing, nor any less tragic. The Balrog of the death penalty is taking its last steps, but its last whiplash, an echo of what passed as justice in the olden days, stings as viciously as ever.  

The Meaning of Life: A Friend’s Murder and the Recent Federal Executions

I was quietly reading Robin Wall Kimmerer’s Braiding Sweetgrass and thinking about yesterday’s post on the interconnected dance of life, when Facebook, with its indelible memory, reminded me: It is six years to the day that my colleague Dan Markel, a criminal law professor at Florida State University, was murdered, shot to death in his garage.

The sensation of shock, like unsavory gray smoke filling my lungs, making me nauseous with incomprehension, has stayed with me, and seems to have been universal. Dan was so alive–isn’t that what is always said of the dead?–a true, energetic community builder, the architect of Prawfs Blawg, the inaugurator of CrimFest, both of which have outlived him. A loving father to his two young boys, of whom he always spoke with such affection. The nauseating smoke whispered, how? why? who? Theories spread among Dan’s friends and colleagues; blogs were ablaze, picking up the shreds of Dan’s life, looking for some conflict, strife, danger, something that would explain the unexplainable. Underneath it all, unspoken save, perhaps, in the offices of my friends’ therapists, was the uncomfortable but true realization, this doesn’t just happen to someone I know. People living comfortable lives of safety and social advantage, lives that do not grow in the shadow of street violence or require it, were deeply unsettled. If we could only find out why, we felt, perhaps, this senseless thing will make sense; something in Dan’s life, in his relationships and entanglements, would make sense of this out-of-place death.

The mystery of Dan’s murder lingered on, picking up steam occasionally on blogs, for two years. Whenever I met other friends and colleagues of Dan’s, we shook our heads. “We just want to know what happened,” we said. The aching gap Dan left in the professional and social fabric of our trade was lovingly mended by friends who took the mantle of organizing. Then, two years later, we found out. It was sordid, disturbing, the stuff of low-grade cold-crime television shows in which a deep-voiced anchor dramatizes the events. They were Luis Rivera, 33, and Sigfredo García, 34, murderers for hire, and the only plausible connection between them and Dan was the mother of García’s children, Katherine Magbanua, who was dating a rich Florida dentist, Charlie Adelson.

Adelson was Dan’s brother in law. Dan and his ex-wife, Wendi Adelson, had divorced in 2013, and were amidst an ugly custody battle; Dan had won an order prohibiting Wendi from moving to Miami with the children, and filed a motion that would have prohibited Donna, Wendi’s mother, from being alone and unsupervised with the children due to alleged disparaging remarks about Dan. The investigators alleged Magbanua made the connection between the Adelson family and Garcia , that she received a large amount of money from the Adelsons following Dan’s murder, and that Magbanua was the first call Garcia dialed after Markel was murdered.

All this added up to arrest warrants against García, Magbanua, and Rivera, but not against the Adelsons. Despite repeated efforts to trip them, they have eluded law enforcement efforts at gathering more evidence against them. Rivera turned state witness, García was convicted, and Magbanua, who remained steadfastly silent even in the face of a threat with Florida’s death penalty, won a mistrial (ten jurors voted to convict, two to acquit.) Magbanua is to be retried for the murder. Much as I find it loathsome and distasteful to lionize and sanctify the three apprehended parties to a murder-for-hire because they are “poor people of color,” I can understand and empathize with the sentiments of injustice: the rich and powerful have managed to escape all consequences of their likely actions. Given what we know, what plausible explanation could there be for all this except the Adelsons’ desire to get Dan out of the way? Not one member of the Adelson clan evokes even a shred of sympathy: In a particularly cruel move, Wendi Adelson immediately proceeded to remove Dan’s last name from those of the children and denied them contact with their paternal grandparents. And yet, the police claims not to have cobbled enough probable cause for an arrest.

Thing is, what I think happened and what the law, which requires stringent beyond-reasonable-doubt proof, asserts happened, are two different things. The law does not operate in a vacuum, and people of means have many ways to insulate themselves from incriminating behavior and paper trails. I know many of my friends and colleagues who grieve for Dan hope for justice in the form of criminal consequences for the Adelsons. Much as I fail to comprehend the moral makeup of the Adelsons, I’ve always been pretty clear on the fact that I would not feel even a little bit better about this tragedy if I heard that the police arrested Donna, Charlie, or Wendi. Moreover, I didn’t feel relieved or vindicated when the police waved the threat of capital punishment over Katherine Magbanua’s head. Not only did it not work, in Magbanua’s case, and not only does this use of the death penalty as a bargaining tool create ugly disparities between sentences in abolitionist and retentive states, but I found the whole entanglement with the worst aspects of Florida’s criminal justice system tasteless given Dan’s own scholarly stance against the death penalty. My conversations with many of Dan’s friends and colleagues revealed that they, too, felt like knowing what had happened and making their mind about the culprits was sufficient. What horrors, albeit deserved, could the criminal justice system possibly visit upon the Adelsons that would make us feel better about the grievous loss of our friend?

I’m not particularly surprised that so many people’s grief over Dan’s death didn’t manifest as a desire to see his killers–all of them, including the ones too dainty to pull the trigger–harshly punished. I see the same from families and friends of homicide victims all the time. The first-ever national survey of crime survivors show that victims are far less punitive than Twitter would have you believe.

Not everyone is nonpunitive, of course. The Tate family, whom I discuss at length in my book Yesterday’s Monsters, were instrumental in shaping public perception of what victims want, as was Mark Klaas. I don’t think any of these people has been manipulative or insincere or has not suffered unimaginable pain; I do think, however, that their voices are mistakenly assumed to represent what most victims want, which is not the real picture. Nor is this an illness particular to the conservative right; the fault lies just as much with the folks who wrote fashionable pieces about how Jean Brandt’s act of faith and forgiveness toward Amber Guyger was “problematic” in that it “allowed whites to benefit from black forgiveness”, because some people on the left are apparently so enlightened that they can educate people on how to properly grieve their relatives. I saw the same dynamic in some of the astonishing reactions on Christian Cooper’s sane and measured response to the police investigation of Amy Cooper’s false complaint about him to the police, those accusing him of “performing a disservice” to African Americans nationwide, because apparently (1) everything has to be a performance and (2) the only true path to social justice is through arrests, charges, and convictions.

Why is all this making me so sad today? Because amidst these frightening times, that should by right make all of us deeply grateful for life and concerned to preserve its fragility, incomprehensibly, the federal appetite for executions reached a boiling point, and sometime last week, while we were all asleep, the Supreme Court kosherized three executions. Each, in its way, highlighted the deeply misguided aspects of the death penalty. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victims’ families against his execution. Wesley Purkey’s execution of a “severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease,” whose lawyer, Rebecca woodman, said does not understand “why the government plans to execute him” was a grim reminder of the idiocy of incessant, expensive litigation to ensure that people are healthy enough to be killed by the state; And Dustin Honken’s attorney, Shawn Nolan, underscored the fallacy that people are unchanging and irredeemable: “”There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.” In keeping with the usual pattern of death penalty litigation, which Justice Harry Blackmun called “tinkering with the machinery of death“, the dissents were all about method and process, rather than about the heart of the matter.

That this–a reaffirmation of our government’s commitment to a punishment that is, itself, dying a slow death (like many of death row inmates themselves)–is our takeaway from this pandemic, is mind boggling, but I see the same mentality among those wondering why we worry about people on California’s own death row catching COVID-19. Being on death row is hardly a natural consequence of one’s actions, as so many of my colleagues have explained over the years, and so the shrugging of shoulders, accompanied by a more or less crude version of “you do the crime, you do the time” or “we have to make priorities” astounds and perplexes me. As we inch toward November, the urgency of a vote that affirms everyone’s value in the dance of life becomes clearer and clearer. And then, we begin the hard work of reshaping the arc of progress, which has taken a very, very wrong turn.

Country for Some Old Men: The Roger Stone Pardon and the COVID-19 Prison Crisis

I confess to being a bit bewildered by the outrage building around Trump’s recent pardon of his business partner Roger Stone. Not because this is not outrageous–read Robert Mueller’s op-ed about Stone’s direct involvement in the misdeeds that led to Trump’s impeachment–but because Stone is only the last in a long list of people pardoned by Trump. The never-ending parade of horrors may have numbed some of us, but you might still remember the pardon of Joe Arpaio (the “penal cartoon” who ran Arizona jails as spectacles of dehumanization and humiliation).

Trump is not the only president to have used his commutation powers in controversial ways. As this excellent NPR piece explains, both Bushes and Clinton were criticized for misuse of their powers, as was Obama for the sheer number of commutations. What is unique about Trump’s pardons and commutations is that, with a handful of exceptions, they were given to people in furtherance of his own personal interests or to people prominently featured on Fox News. Moreover, Trump has virtually ignored the Department of Justice’s Office of the Pardon Attorney, whose function is to parse out the thousands of pardon requests it receives every year and make recommendations to the President. Usually, the President follows the Office’s recommendations, but not in this case, and as Mitch Jeserich and I discussed this morning on KPFA’s Letters and Politics, this means not only that Trump’s business partners and go-betweens are rewarded for their crimes, but also that ordinary people’s petitions are ignored and recommendations about them go unheeded. Trump’s adulation and courtship of celebrities is one contribution to his assault on the rule of law (with the notable exception of Kim Kardashian’s influence on the First Step Act). Combine all of this with Bill Barr’s jockeying of Manhattan federal prosecutors and you’ll find a continuation of the same trends.

One issue that Mitch and I discussed today was the public discourse around Roger Stone’s age and (he’s 67), and the argument that, with the pandemic ravaging prisons, he would be “put at serious medical risk in prison“. Of course age and health condition are valid considerations, but let’s keep things in context. Here’s a breakdown of the federal prison population by age. Close to 20% of them are aged 51 and older. Throw in people aged 46 and above, and you’re at almost a third of the prison population. That’s tens of thousands of people. One person, albeit famous/infamous, is a drop in the bucket, so forgive me if I’m not persuaded by the argument that this reflects sensitivity to public health.

Source: Federal Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_age.jsp

Worried about older people catching COVID-19 in federal prisons? Let them go–not only the ones that are doing time for being presidential go-betweens, but those who are doing time on a Frankenstein-like construction of enhancements and multiplications on nonviolent drug offenses (this is not as much of a thing in state prisons, but it is a huge factor in federal ones).

Speaking of state prisons, the situation at San Quentin continues to be dire. Over the weekend, they’ve seen 204 new cases. Notably, those are 204 positives out of a total of 259 tests, so things are going horribly wrong there. There are also 167 new cases at CCC (reflecting a major testing push), 15 new cases at CCI (hundreds of new tests there, as well as in DVI), 8 new cases at CRC, 5 new cases at WSP, 1 new case at SOL, 1 new case at CAL, and 2 new cases at CHCF (this is particularly worrisome because this Stockton prison houses a medically vulnerable population.)

In short, gentle readers, things are not going well. Stay tuned for updates.