My Chesa Recall Punditry: The View from Bayview-Hunter’s Point

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.

I offered a few more thoughts on KCRW here.

Impending Closure of Death Row

A couple of days ago I spoke on KCRW about the announced closure of death row at San Quentin. Here’s the story as it appeared on the KCRW website, followed by some additional thoughts from me:

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Governor Gavin Newsom announced this week a plan to shut down the notorious death row at San Quentin State Prison. The plan would move the prison’s most condemned inmates to other maximum security prisons over the next two years, in an effort to create what Newsom calls a “positive and healing environment” at the Northern California prison. 

San Quentin has the largest death row population in the nation — nearly 700 total. And while California hasn’t executed anyone in more than 15 years, Newsom also signed an executive order imposing a moratorium on executions in 2019. 

The facility was originally a ship, and in the mid 19th century, prisoners themselves built the prison, explains UC Hastings law professor Hadar Aviram. “It’s a dilapidated facility, there are no solid doors, there are bars on the doors, ventilation is terrible. So it’s a facility that was built for 19th century standards. And just because of inertia, we are still incarcerating people in the same condition.”

She points out that the facility is located in a geographically beautiful area surrounded by expensive real estate. “In many ways, [it’s] a waste to have a prison there where people don’t enjoy the seaview and are incarcerated in terrible conditions.”

However, she notes that people currently aren’t being executed due to the moratorium, and since 1978, the state executed only 13 people, and more than 100 died of natural causes during that time. 

“Just during this moratorium that Governor Newsom introduced, more people died on death row from COVID during the horrific outbreak at Quentin than we executed since 1978. So I’m sure that is giving some pause about the utility of the exercise of keeping people there,” Aviram says. 

Because San Quentin is so old, inmates there suffered from coronavirus more than those at modern and well-ventilated facilities like the state prison at Corcoran, she says. Plus, it houses lots of people who are aging and infirm, who were thus already immuno-compromised and vulnerable to the virus.  

Emotional and political reasons may be driving votes

California voters approved a ballot measure in 2016 to speed up executions, and the measure included a provision allowing death row inmates to be relocated to other prisons where they could work and pay restitution to their victims.

Aviram says over the years, there have been several attempts to abolish the death penalty through voter initiaties, but they always lost by small majorities. 

Through inquiries, polls, and conversations with people, she says she realizes: “People are voting for the death penalty largely for emotional, sentimental, political reasons. They are more in love with a fantasy of having a sentence that’s reserved for the worst of the worst, and can deter people.” 

She describes death row in California as “basically a more expensive version of life without parole that costs us $150 million a year.”

She adds, “It’s probably a good idea to think of the death penalty as undergoing the same process as some of the people who have been sentenced to death, which is rather than an execution, the death penalty is going to die a slow natural death itself, just from disuse and from this gradual dismantling.” 

However, some district attorneys continue asking for the death penalty in capital cases, though the state doesn’t execute people anymore, as they hope the governor might revive the policy, Aviram points out. However, she says, “I think that because of the national trends … it is extremely unlikely that it’s going to come back.”

Newsom’s reimagining of prisons and what’s missing

When the governor says a “positive and healing environment,” Aviram says this means a life where inmates find meaning and usefulness (do some jobs). 

But this doesn’t completely eliminate the death penalty, she says. “Because there is still one very big and expensive piece of the death penalty that is still with us — and that’s death penalty litigation.”

“We have this facility where people are sentenced to death and are still litigating themselves post-conviction, and that litigation is actually the lion’s share of the expense. So it’s only really going to go away if and when all of those sentences are commuted, and these people are no longer litigating their death sentences at the state’s expense. So that is the missing piece.”

***

Some more thoughts: First, it’s been interesting to follow the fanciful, but often idle, talk about the real estate potential of Quentin. Readers who have been to Quentin know how beautiful the village is and how glorious the waterfront vistas are. There are plans to close four prisons, but no definite plans for Quentin. Any prospects of selling that land are to be viewed with ambivalence. On one hand, what a waste to have a prison so close to the water, without windows to enjoy the view – a place that combines suffering with beauty. On the other hand, it would be a terrible loss for the folks housed at Quentin, dilapidated and dangerous as it is, to be strewn about prisons in remote locations in the state, far away from the progressive energy of volunteers and rehabilitative programming richness of the Bay Area that people so desperately need for making parole. In my wildest fantasies, we close Quentin down, transform it into a resort/retreat for nonviolent communication and community healing, rebuild with huge ceiling-to-floor glass walls overlooking the ocean and gorgeous walking trails, and offer all the men well-paying jobs running the resort.

About the money: I predicted much of this demise, based on national trends, in Cheap on Crime, and still think that the deep decline of the death penalty is in no small part due to the financial crisis of 2008. The fact that we still spend a sizable pile of money on death row, despite the moratorium, is not surprising, and shows that the disingenuous efforts to save money via Prop 66 didn’t fulfill their purported purpose. In 2016, when giving talks about this, I used to draw the triangle of home improvement; write in its three corners: good, fast, and cheap; and tell people, “you can have two.” We can’t compromise on having a “good” death penalty (one in which there are no constitutional violations and factual mistakes), and so, it cannot be fast or cheap. The big savings will only roll in when we get rid of the litigation piece.

There’s no better proof that the death penalty is on its last leg than the fact that Joseph Diangelo, the Golden State Killer, was sentenced to life without parole. If not the most notorious and heinous criminal in the history of California, then who? And the logic in Diangelo’s case applies to everyone else–why the death penalty? So they can continue litigating at the state’s expense and die a natural death? Whose interests does this serve?

About the actual job of relocating death row people to other prisons/general population: this is going to be a complicated and delicate job, and my fear is that it will be entrusted to folks who are not tuned in to the complexities. They would be moving people who have been effectively “at home” in solitary confinement in unique conditions, many of them for several decades, into facilities with much younger people and a very different energy. There could be animosities and alliances that are difficult to predict and go beyond crude racial/gang affiliations. This is true, generally speaking, for every prison transfer (long time readers remember the fears and concerns surrounding CDCR’s plan to comply with the landmark decision in Von Staich through transfers to other facilities); in the case of the death penalty, there are other factors, not the least of which is the unique combination of notoriety and frailness of the people to be transferred.

There’s also the question whether dismantling death row, what with its symbolic hold over the Californian imagination, slows down the dismantling of the death penalty itself. Without the physical reminder of the remnants of this archaic punishment, and with the growing resemblance of the death penalty to the two other members of the “extreme punishment trifecta” (life with and without parole), does the effort to abolish the death penalty lose its steam? The uphill battle for activists will be to spin this development to argue that the death penalty has been defanged beyond its utility; now that we’re left with only its negative aspects (to the extent that some people think it has advantages) it’s time to stop hemorrhaging state funds for incessant litigation.

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Today I’m at the Annual Meeting of the Western Society of Criminology, speaking about FESTER. My panel starts at 8:15am island time in the Waianae room – come say hi!

Omicron, Sirhan Parole Denial, Academic/Activist Exhaustion: Four Thoughts

  1. Denying parole to aging, infirm people at this moment in time is… maddening. Several journalist friends called me yesterday about Gov. Newsom’s reversal of Sirhan Sirhan’s parole grant. Anyone who has read Yesterday’s Monsters will guess I am not surprised–in fact, I predicted this outcome, which was foreshadowed in his no-on-recall campaign, on this very blog. Just as with Leslie Van Houten’s parole bid, the fifty-year cling to political and optical considerations is jarring: fully rehabilitated people, advanced in years and presenting no risk to society, confined during a time of pandemic spike in prisons, to which they are especially vulnerable because of their age. Maddening but unsurprising. I think I’ve said it all so many times–what more is there to say?
  2. They worried about staff shortages b/c of vaccine mandate. They got staff shortages b/c of COVID. Yes, Omicron in prisons and jails clearly shows that we have learned nothing. But there is one new factor in this wave: a massive infection spike among the staff. Take a look at CDCR’s employee COVID ticker: as of this morning, there are 4,419 staff cases. Most facilities have more than 100 sick staff. Recall that the opposition to Judge Tigar’s vaccine mandate–in CCPOA’s appeal, the Governor’s supporting brief, and the Ninth Circuit’s decision to stay the mandate–was that vaccine requirements could lead to mass resignations and a difficulty in staffing prisons. I’m assuming that the irony of having to staff prisons when the staff sickens by droves is completely lost on everyone, so I feel compelled to flag it: for exactly the reasons CDCR and CCPOA state, it is impossible to run a prison in which wide swaths of the staff knowingly render themselves potentially unable to work. If allowing medically irresponsible decisionmaking among employees is a priority, something must give–and the obvious corollary (I’m so tired of saying this again and again) is: we must incarcerate far fewer people than we do because we cannot provide minimal, constitutionally compliant care for them under current circumstances.
  3. No good deed goes unpunished #1. Everyone in academia is exhausted, worn, burned out, just like yours truly. As in Tolstoy’s opening for Anna Karenina, there are infinite variations to the unhappiness, but the aggregate effect is the same: people trying to keep afloat by teaching their classes and having no bandwidth for anything else. I’m experiencing this on both sides: solicitations to review, to participate in panels, to assess grants, to do this or that, are flooding my inbox and I’m overwhelmed, just like everyone else. At the same time, as the book review editor for Law & Society Review, I’m finding it difficult to get reviewers and, when I do, the reviews arrive late or not at all. I get it. I really, truly do. The effort to keep the giant machine grinding beyond the essential components of the job, in the face of all THIS, is bewildering. It occurred to me that one way to help a little bit would be to compensate (not lavishly, but reasonably) for people’s efforts in this direction. Peer reviewing an article? Cash. Supervising a student’s independent work? Cash. Heavy-load committee? Cash. Panel appearance requiring preparation? Cash. This would be especially wonderful for the folks who are trying to write their way out of adjuncting while teaching at several institutions. Many of us, even in these high-prestige occupations, suffered a financial blow; many of us have spouses who had to quit or restructure their jobs to provide childcare, or have had to do that ourselves. Money is important in itself–it’s how we afford our lives–and it would also signal some recognition and gratitude for our efforts.
  4. No good deed goes unpunished #2. Speaking of lack of recognition and gratitude, this morning’s L.A. Times features the story of Patrisse Cullors, one of the national leaders of Black Lives Matter, who had to quit her position and regain her mental health in the face of threats from without and incessant critique from within that made her life a misery. I’m in a variety of activist scenes because of my work and I know exactly what she’s talking about. There is something very unhealthy, very rotten, in how we manage interpersonal relationships in activist spaces, and the unbearable ease of vomiting negativity and mobbing people on social media is enough to break anyone’s spirit. I would really like to create a sanctuary for exhausted activists and advocates–a place where people can come refresh their spirits and take care of themselves. Our movements for change will not survive if we continue treating each other like trash.

Newsom’s Captive Supporters: COVID-19, Sirhan Parole, the Recall, and the Illusion of a Blue State

Tomorrow, the Californians who have not yet voted by mail will participate in yet another recall election. I’ve already spilled enough pixels explaining why I voted no, and why you should do the same. But I do want to say something about the deep ambivalence that prison activists and advocates probably feel around this election. People can and should contain multitudes of contradictions and complicated opinions.

Over the weekend, Bob Egelko of the Chronicle wrote this interesting and insighftul piece about Sirhan Sirhan, now 77 years old after five decades in prison for the murder of Robert Kennedy. Sirhan was recommended for parole by the board,, which means that his case is now on Newsom’s desk. And as Egelko explains (with a little assist from Stanford’s Bob Weisberg and from yours truly), the political calculus is heavily rigged against Sirhan:

“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.”

Newsom’s leading opponents in the recall are well to his right politically and would seem equally unlikely to approve Sirhan’s parole. And 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.”

Egelko is right on the money, as was Jonathan Simon in Governing Through Crime: it is an asset to left-wing politicians to position themselves as tough-on-crime where their supporters have no leverage. This is especially true in California which, as Vanessa Barker explains, is a populist, polarized state. The only two discounts on that front have been recession-era fiscal concerns and riding a popular racial justice wave in progressive cities. And keep in mind that Sirhan is not alone: the entire “Class of ’72′”–the folks whose sentences were commuted after People v. Anderson, including the Manson family members–has been reviled for decades. After the return of the death penalty, the weakening of the parole system, and the politicization of the whole process, the prospects of release for anyone who could peel centrists off the left base became dim. Egelko explains why:

The law allowing the governor to veto parole decisions was passed after courts rejected Gov. George Deukmejian’s attempt in 1983 to block the parole of William Archie Fain, who had served 16 years in prison for murder and rape in Stanislaus County. The Legislature put Proposition 89, a state constitutional amendment, on the ballot in 1988 and it was approved by 55% of the voters.

Even before the ballot measure, convicted murderers were seldom paroled, even after decades in prison. The board has historically approved their release in less than 10% of the cases, and in some years less than 5%, leaving the others to continue serving life sentences.

Gov. Pete Wilson overruled the board about 30% of the time. His successor, Gov. Gray Davis — who declared, soon after his election, that “if you take someone else’s life, forget it” — vetoed all but six grants of parole, just above 1% of the total approved by the board. Gov. Arnold Schwarzenegger rejected about 70% of the board’s parole decisions.

The trends shifted under Gov. Jerry Brown, who overturned the board only about 20% of the time, and so far under Newsom as well.

And warnings of the dangers of paroling convicted murderers do not appear to be supported by the evidence: Between 1995 and 2010, 48.7% of all former prisoners in California went on to commit new crimes after their release, but among the 860 prisoners convicted of murder who were paroled, only five — 0.58% — had been jailed or imprisoned again, according to a report by the Stanford Criminal Justice Center.

“You age out of violent crime,” said Hadar Aviram, a law professor at UC Hastings in San Francisco.

But while Newsom has overseen the court-ordered reduction of the prison population, now at lowest its level since 2006, and has proposed closing two state prisons by 2023, Aviram — author of the recent book “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” — said Newsom’s response to the proposed parole of a Charles Manson follower was a likely indicator of his future decision on Sirhan.

The parole board has repeatedly recommended release of Leslie Van Houten, who was convicted of taking part in two of the Manson family’s Los Angeles-area murders in 1969, when she was 19. While Van Houten has a clean prison record and has earned college degrees behind bars, Newsom said in November that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying” — his second veto of her parole, after two similar decisions by Brown.

“The gubernatorial veto was introduced in 1988 anticipating precisely this scenario,” Aviram said. It was a “power shift,” she said, from “professionals,” such as psychologists and prison counselors who advise the parole board, “toward the limelight of sensationalized, politicized coverage” and changed outcomes.

The upshot of all this: I feel quite bitter. In the last few weeks I’ve seen the people who have ample cause for resenting Newsom–the people whose family and friends are behind bars, facing risk of illness and death because this administration wallowed and waffled on releases while at the same time vigorously defending medical atrocities, indifference and ineptitude in court–unequivocably and firmly doing the right thing, voting “no” on the recall and encouraging everyone they know to do the same. I resent that they are being put in this position. I resent that we are all being put in this position. I resent that a politician whom I deeply admire for what he has done for same-sex marriage and death penalty abolition takes the easy and expedient way–again and again!–whenever someone behind bars is concerned. I resent that incarcerated people and their families are always the sacrificial lambs in these left-versus-right California tumbles, because the right-wing candidates are perceived as much worse. I resent that the incentive structure is always stacked against releasing old and sick people from prison–even though there is compassion and redemption to be gained and nothing to be lost from a public safety perspective. I resent that the people doing the hardest activist work stand to gain absolutely nothing–no sympathy, no consideration, no concessions, no compassion, no fairness–from doing the right thing for everyone else.

In sum, if you feel resolute and at the same time awkward about your “no” vote, you’re not alone. You’re part of a captive support contingent for blue politicians in California–some members of which are literally captive. It is possible to accept that anyone on the replacement list–particularly Larry Elder–would be disastrous as governor, and to respect and admire Newsom as a capable and experienced politician, while at the same time deeply resent the fact that, once again, urgent human rights issues–true life-and-death matters–have been swept under the rug.

How to fix this? Abolish the gubernatorial veto. Diversify parole boards. Change parole from a wacky card game with no rules, which the house always wins, to an instrument of true hope and transformation. But none of this will happen before tomorrow. So, we will dutifully vote “no”, because we are not single-issue dolts, and continue to await the change that never comes.

Parole News & Another Great Review of Yesterday’s Monsters

The COVID-19 crisis is truly driving home one of the main themes of Yesterday’s Monsters: The counterproductivity and cruelty of incarcerating aging, infirm people for interminable periods. I wrote about this on the UC Press blog and have a new piece coming out of the International Criminal Law Review. But better than anything I could write on this is this phenomenal episode of Ear Hustle with Leslie Van Houten, in which her reflective nature and elegant turns of phrase drive home the outlandishness of spending fifty years of one’s life behind bars. I’ve commented on the irony of yet another gubenatorial veto on Van Houten’s release precisely when her prison was experiencing a serious outbreak, and it shows again how the shadow of the past and political hysteria still drive parole outcomes. Highly recommended.

Along the same lines, the new issue of Critical Criminology features a great new review of Yesterday’s Monsters by Rita Shah, author of The Meaning of Rehabilitation and Its Impact on Parole. Here it is, reproduced in its entirety:

Twenty-twenty was a watershed year for conversations around criminal justice reform, abolition, and transformative justice. Calls for change gained public support in ways rarely seen before. The combined ills of COVID-19 and police brutality highlighted issues within the “criminal legal system”Footnote1 of the United States (US) that could no longer be ignored. And yet, one area of the system remains in the background: community corrections. For all the calls to reform or abolish the carceral state, the “Cinderella complex” surrounding community supervision (Robinson 2016) helps maintain these systems as public secrets (Shah 2020). One book published in 2020 that aims to shed light on issues within a part of these systems—parole—is Hadar Aviram’s Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole.

Aviram’s book makes it clear that parole, particularly parole hearings, must be a part of conversations around criminal justice reform and transformative justice, and she uses an unusual case to do so. As Aviram notes in the Preface and Acknowledgments, she never intended to write a book about the Manson Family. Similarly, many of us never intend to read a book about the Mansons. In this case, however, not doing so would be a mistake. Yes, it is a book about the Manson Family. But it is also not a book about the Manson Family. Aviram deftly uses the story and lore of the Mansons as a vehicle to take a deep dive into the very opaque process of parole hearings and release decisions. Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole is also an examination of societal views on violent offenses and an exploration of how assumptions and prejudices about those who commit such crimes haunt the US criminal legal system decades after the fact. “The too long, didn’t read” summary for Aviram’s book is: come for the Manson Family cases; stay for the carceral critique.

Aviram’s book is divided into an Introduction and seven chapters. In the Introduction, Aviram provides the impetus for the book: she notes that violent crimes are a key point of analysis because they often lead to dramatic changes in criminal justice policy; she explains why the Manson Family hearings offer a unique window into how parole hearings operate, particularly given the extensive records available; and she describes the notion of parole as a performative space as a way of framing parole hearings. The following two chapters contextualize the analysis presented in the book. Chapter One provides a fantastic crash course on parole, including its purpose, how the role of parole within corrections has changed over the years, and how the parole system operates, including the administrative side of parole and the parole hearing process, as well as how legal cases impact the process. Chapter Two takes a broader look at the California penal system and examines how the return of the death penalty in the late 1970s, the rise of victims’ rights advocacy, and cases such as those involving the Manson Family sowed the seeds for a trifecta of extreme punishments: 1) the death penalty; 2) life without parole; and 3) life through the constant denial of parole or, what Aviram (2020: 40) calls, “life de facto.” These three punishments, Aviram argues, provide the background for two key themes about parole hearings that are presented in the remaining chapters.

The first key theme, the role of narrative in parole hearings, is brought to light in Chapters Three through Six. Narrative plays a role in these hearings in four ways. First, in Chapter Three, Aviram uses narrative analysis to discuss the various stories that were used to explain the Manson Family murders and how the “Helter Skelter” narrative rose to prominence. Aviram expands this analysis in Chapter Four to show how the “Helter Skelter” narrative impacts the Manson Family’s parole hearings and the story that parole board members expect in such hearings. In Chapter Five, Aviram shows how the desire for a specific story by board members impacts parole hearings for all individuals under consideration, not just the Mansons. Finally, in Chapter Six, Aviram introduces the notion of the “Bardo”— the idea that one’s future is predicated on one’s past—and how it can be used to conceptualize the entire process of release to parole.

The analysis presented in these four chapters echoes an oft-repeated line from Hamilton: An American Musical: “Who lives? Who dies? Who tells your story?” In the case of parole hearings, who tells the story and the narrative chosen is the crux for determining who lives and who dies. As Aviram argues, the key to the narrative for all parole hearings is the notion of insight, which seems to be a stand-in for rehabilitation. Like rehabilitation (see Shah 2017), 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 this, ironically, requires insight on behalf of the parole board to know what they want to see and the ability to convey that to the individual being considered. Hence, both insight and rehabilitation raise questions about how success is defined and who gets to define it (see, e.g., Heidemann et al. 2015). These questions become key as the notion of “success” seems to be the basis of the narrative the board is seeking, even if that is not what they call it.

Unfortunately, for the individuals involved in the Manson Family cases, the narrative desired is also impacted by the narrative told about the crimes themselves. As Aviram notes, while the narrative that “stuck” was the “Helter Skelter” narrative, two more sympathetic and arguably more accurate narratives—that of a cult and that of common criminals—also exist. Nevertheless, the “Helter Skelter” narrative is the one used against the Manson Family members. In doing so, the parole board members and the victims and their representatives use the narrative to write a book with a predetermined ending, and no matter what the characters do or what the system allows them to do, the book will end the same way. This is made abundantly clear in the story of one Manson Family member, Susan Atkins, who, while literally on her death gurney, was still denied release for fear of her “dangerousness.”Footnote2

Indeed, adherence to the desired narrative—one that focuses on the ability to build a life in prison as expected by the parole board but one which is often difficult to achieve—reveals a frustrating Catch-22. On the one hand, the parole board requires attending programs, many of which do not exist or are not accessible because of housing and work schedules, and it dismisses the sort of self-led programming individuals participate in to try to meet this requirement. Thus, the parole board’s refusal to acknowledge the reality of life in prison is used to undermine attempts at progress and thus deny release. On the other hand, the parole board chides individuals for not obtaining specific job skills. This can lead to an undermining of parole plans—such as the case of Manson Family member Bobby Beausoleil, who showed evidence that obtaining a well-paying job is possible—which also leads to a denial of release. In other words, the narrative is set, and parole board members utilize their knowledge in ways that ensure the ending they desire.

For individuals seeking parole, the parole board’s preferred narratives also raise real questions about when or even if it possible to become an “ex” or “former,” whether it be offender or incarcerated individual. Individuals before the parole board are made to re-tell their histories over and over again, and the parole board relies heavily on the initial conviction and past infractions, risk assessments, and therapist notes when making their decision. This makes it virtually impossible for those eligible for consideration to ever become more than who they were. The “moral memory” holders present at the hearings—the prosecutors, victims, and victims’ representatives—certainly do not help in creating new narratives about the present or future.

The second key theme, the notion of the “Bardo,” appears in Chapters Six and Seven. As noted above, the concept of the “Bardo” is introduced in Chapter Six as an analogy for how one’s future is dependent on one’s past rather than one’s present. In the concluding chapter, Chapter Seven, Aviram continues this discussion, noting that the “Bardo” is a liminal space between death and rebirth. For the parole hearings, the “Bardo” is “a cycle between hope and disappointment, preparation and hibernation, action and inaction, self-improvement and self-assessment, in which inmates have to participate and lawyers act as ‘hope managers’” (Aviram 2020: 206). This cycle creates a situation where, at least during the parole hearing, individuals eligible for consideration remain stuck in a liminal space, not fully incarcerated but not yet free, both human and yet not-human. While Aviram focuses on parole, the concept of “Bardo” and analysis presented point to two larger issues within the criminal legal system as a whole: 1) the notion of the system as “effective”; and 2) the challenge of reentry to society post-release.

First, the “Bardo” raises questions about how effectiveness is measured by the parole board members and by other aspects of the system. The parole board, as Aviram highlights, focuses on a particular rationale for its decisions: an individual who is being considered for parole and has successfully completed programs and/or met the amorphous requirements the board sets for release are due solely to the successful nature of the incarceration experience. But those who fail—even when the failure is due to the systematic problems of incarceration—fail solely because of their own (in)ability to obtain proper insight and meet the unattainable requirements. In other words, the parole board deeming someone suitable for release is a testament to the idea that “prison works,” but denying release is a testament to the parole board’s role in maintaining public safety. The parole hearings are a classic case of the house always wins. But this faulty logic is precisely the logic that enables the “Bardo” to survive. The liminal space between death in prison and rebirth in society is maintained not through any real notion of making the right decisions, but through the illusion of prisons as a “correcting space” and “public safety” as a catch-all justification for carceral spaces—two terms that arguably create yet another “Bardo” and that help the board members justify their roles.

In reading Aviram’s analysis, I would argue that the notion that the house always wins can also be applied to other aspects of the criminal legal system. For probation and parole supervision, for instance, successfully navigating and being discharged from supervision is due entirely to the effectiveness of supervising agents. Getting revoked, however, is entirely the fault of the individual and a sign of the system maintaining public safety regardless of larger social factors at play. Again, the house wins. For policing, a drop in crime rates is a sign of the effectiveness of policing. A rise in the crime rate is a sign that there is not enough policing. Again, the house wins. In other words, the entire criminal legal system is a “Bardo”—one that holds society in between death (framed in language that evokes fear of crime critiques) and rebirth (framed in the language of public safety). And the language of the “Bardo” is used to maintain and justify the system’s existence and assure its continuation.

The second issue Aviram’s discussion points to is the “Bardo” of parole and reentry, more broadly. Parole, itself, is a liminal space—one that functions as a state-run reentry program: one in which an individual is free but not really free. While on parole, the conditions one must follow and the fear of revocation ensure the individual is constantly aware that he/she/they is/are still held by a sentence of the state and a reminder that the system is designed to uphold the notion that those under supervision are inherently bad and destined to fail (McNeill 2019). Furthermore, collateral consequences continue to impact them (see, e.g., Brisman 2004, 2007; Williams and Rumpf 2020). In fact, unless one’s criminal history is purged completely, all individuals with a record remain entangled in a lifelong “Bardo”: they are both in society but not of it.

Combined, the two themes regarding the role of narratives and the implications of the “Bardo” show that those sentenced to life with the possibility of parole are damned if they do and damned if they do not. Aviram highlights how life with the possibility of parole is, indeed, “life de facto”: it is essentially a life without the possibility of parole, which is, in turn, a stand-in for the death penalty. What emerges is a reminder that the system functions exactly as it was meant to. While Aviram offers suggestions for improving the parole hearing process, the analysis raises serious questions as to whether parole is a system worth saving. Thus, while Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole does not explicitly support abolitionist arguments, it could be used to do so. But that is not its only use. Aviram’s book is also a testament to the value of historical, narrative, and qualitative analysis. Scholars and students wishing to learn more about these methods, about parole, or about how to tackle the behemoth that is the criminal legal system “Bardo” will find this book a useful read.

Many thanks to Rita for this careful read and excellent review–and especially for the useful zinger “the house always wins”, which perfectly captures how parole works and what we need to fix.

Christ, These Parole Officers!

Today brings a special offering from the Tenth Circuit: Janny v. Gamez exposes (and finds unconstitutional) some religious coercion in reentry programming. The facts:

Mark Janny was released from jail on parole in early 2015. His parole officer, John Gamez, directed Mr. Janny to establish his residence of record at the Rescue Mission in Fort Collins, Colorado, and to abide by its “house rules.” After arriving at the Mission, Mr. Janny learned he had been enrolled in “Steps to Success,” a Christian transitional program involving mandatory prayer, bible study, and church attendance. When Mr. Janny objected, citing his atheist beliefs, he alleges both Officer Gamez and Jim Carmack, the Mission’s director, repeatedly told him he could choose between participating in the Christian programming or returning to jail. Less than a week later, Mr. Carmack expelled Mr. Janny from the Mission for skipping worship services, leading to Mr. Janny’s arrest on a parole violation and the revocation of his parole.

That this offends the First Amendment should be obvious–but apparently wasn’t to the parole officer. And I think it would be a mistake to view this through a narrow prism of preferential treatment for evangelical Christianity. I say this because, in Yesterday’s Monsters, I devoted a considerable amount of the narrative to the way the parole commissioners treated Susan Atkins, Bruce Davis, and Tex Watson, all of whom are born-again Christians. I wrote:

A charismatic, proselytizing religion, characterized by the consistent responsibility to offer ministry to others and draw them closer to a personal relationship with their Savior. Offering testimony in this religious context is surprisingly similar to expressing and performing “insight” before the Board. The act of Christian testimony often includes references to previous life, and maximizing one’s bad acts prior to conversion plays an important rhetorical role in highlighting the magnitude of the transformative experience. It can be analogous to the “I once was blind, but now I see” narrative of insight, with the important distinction that the insight is specifically religious. But for the Board, accepting a religious conversion wholesale is a dangerous proposition. The hearing transcripts of Davis, Watson, and Atkins demonstrate various ways in which the Board is uncomfortable with the role of religion in the inmates’ lives: it is out of the Board’s scripted plan for the inmate; it is insincere; or, it is too sincere for the prison environment.

As I show in the narrative, the Board flunks Susan Atkins for ministering to her fellow inmates (literally a captive audience–but offering testimony is part of the mandates of evangelical Christianity); Bruce Davis for preferring the programs he runs in the prison to the official psychological counseling and for having “replaced Manson with Jesus”; and Tex Watson for bonding with a relative of his victims over their shared faith. So I don’t think what’s going on here is some sort of bias in favor of Christians.

Instead, it makes more sense to see this through the prism of the postrecession absence of proper rehabilitation and reentry programming. Into the void caused by states’ ineptitude and austerity stepped organizations that retained their funding base, and it’s not particularly surprising that, in this deeply religious country, many prison ministries are religious.

Back in the 1990s, I remember talking to a prison reentry pioneer in Israel who explained that he’d partner with anyone who offered a positive path of redemption: a secular kibbutz, an ultra-Orthodox yeshiva, a general contractor offering construction jobs, whoever had something to bring to the table. And I think it’s a great approach–provided that people like Mark Janny, who want their reentry without a side helping of accepting Jesus as their personal savior, have a choice.

Support A.B. 1210 – Diversify the Parole Board

This morning I’m scheduled to testify before the Senate Public Safety Committee in support of AB 1210 (Ting). The proposition is to diversify the parole board by including commissioners with a variety of professional backgrounds, including therapeutic backgrounds.

Those of you who read Yesterday’s Monsters may recall that, while the Board is diverse in terms of race and gender, it is not diverse in terms of professional background. The vast majority of commissioners come from law enforcement backgrounds: former sheriffs, police chiefs, and correctional officers. This has far-reaching implications as to the nature and result of the hearings.

The current composition of the board dates back to several transformations in California punishment that happened throughout the late 1970s and 1980s. Over the years, the time before the initial hearing and between hearings increased; actuarial risk assessment replaced correctional counselors and psychologists; the role of prosecutors and victim supporters vastly increased; and voters approved a gubernatorial veto on parole board decisions to release. Despite repeated instruction from the California Supreme Court to focus on future prospects and risks, the Board acts defensively, finding ways to bypass this requirement and deny parole on the basis of crimes that happened decades ago—even to people who, according to vast criminological research, have long ago aged out of crime. As a consequence, recommendations for release are rare, accounting for only 16-17% of all hearings.

It is unsurprising that a group comprised almost exclusively of law enforcement officers is professionally and culturally predisposed to accept court records and disciplinary write-ups as incontrovertible truth, makes biased assumptions about people from their demeanor and body language, and tends to accept simplistic narratives at the expense of more complicated stories involving people’s environment and circumstances. The commissioners also exhibit complacency regarding the woeful inadequacies of our prison programming system, laying the blame for inaccessible or nonexisting rehabilitation programs on the parole applicants themselves. Despite some continuing education workshops, the commissioners as a group do not possess deep professional knowledge on issues such as substance abuse and mental health.

The commissioners regularly pride themselves for being able to detect false remorse or lack of insight. Unfortunately, this self-assessment claim is contradicted by robust empirical research. In experiments, law enforcement officers regularly express significantly more certainty about their ability to detect lies–and regularly do significantly WORSE than general population in telling truth and lies apart.

We are at a unique moment in history, in which we acknowledge that multiple forms of wisdom and expertise—not only the expertise of law enforcement officers—are essential to solve social problems and offer hope to families and communities. Tune in to the hearing today and make your voice heard in support of this important change.

New Policy re Good Time Credits toward Release at CDCR: Truth, Misrepresentation, and Panic

On Friday afternoon, CDCR announced an amendment to its regulations regarding the earning of good time credits. It’s always important to pay attention to such regulations, because as Kevin Reitz, Ed Rhine, and their colleagues at the Robina Institute remind us, whether a sentence is determinate or indeterminate is a question with many moving parts and many institutional actors, including prison administrators.

The new regulations are good news, albeit modestly so. For people doing time for nonviolent felonies, the good time credits will increase from 33% to 50% credit earned. For people doing time for violent felonies, the increase will be from 20% to 33.33%. In addition, the new regulations establish a new credit, called “minimum camp credit”: those who make it to conservation camps, earn a day for each day at the camp.

Reading these plain facts doesn’t suggest much cause for alarm, does it? But someone at the Associated Press decided that injecting some inflammatory, dehumanizing language was de rigueur, so they published this article, which was originally titled “76k California violent, career felons get earlier releases.”

The article is not only inflammatory, but deeply misleading. The number of people eligible for credits is far fewer than 76,000. First, the people presumably doing time for the most serious offenses–lifers without parole and people on death row–are ineligible for the credits. Second, for all those serving life sentences with the possibility of parole, release is not automatic, but rather conditioned upon success before the parole board which, if you’ve read Yesterday’s Monsters, you know is exceedingly rare (less than 20% of applicants receive parole.) Third, anyone who is already in the parole pipeline–including people with youth offender parole dates (who have aged out of crime) and people with elderly parole dates (who have also aged out of crime)–is not eligible. Fourth, the credits will be fairly modest because the regulations are not retroactive: the new percentage will only apply to the remaining portion of the person’s sentence, effective May 1, 2021. And finally, the choice of headline highlighting “violent, career felons” produced (as far as I could see) the predictable fatuous shrieks on Twitter, I’m sure will play a role in the similarly fatuous recall campaign, and is not the sort of thing that is conducive to reasonable conversations about criminal justice reform.

The regulations are a small step in the right direction. In the last few weeks, Chad and I are noticing increases of approximately 150-200 people at CDCR, presumably intake from jails. To curb new outbreaks and prevent the next pandemic, we must keep prison population lower to offset these transfers.

Diversify CA’s Parole Board and Broaden Medical Parole: Support AB 1210 and 960!

Here’s the letter I submitted in support of AB 1210 and AB 960 today. To do the same, click here!

Dear Committee Members,

Letter of Support: AB 1210 and AB 960

My name is Hadar Aviram. I am a UC Hastings law professor specializing in corrections and the author of a recent book about parole in California, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (UC Press, 2020.) I write to offer my strong support for two measures discussed at today’s hearing: AB 1210 and AB 960.

AB 1210 is an essential step for reforming parole. While the BPH is diverse in terms of gender and race, it is not at all diverse in terms of professional background. My research revealed that, almost invariably, gubernatorial appointees to the BPH are former law enforcement officers from the police and correctional fields. This means that, continuing education notwithstanding, the board is truly impoverished in terms of several topics that are incredibly germane to the commissioners’ deliberation: substance abuse, mental health, and the like, which are part and parcel of the skillset of people from the helping professions. In addition, my research reveals that the commissioners are overconfident about their ability to discern remorse or insight from nonverbal clues such as the parole applicant’s demeanor. This confidence is unfounded: robust social science research shows that law enforcement officers, who believe they are better than the general population at detecting sincerity or release, are actually worse at it in controlled experiments. This is another reason to diversify the board.

I also offer my strong support for AB 960. I am currently working on a book about the COVID-19 crisis in California prisons (under contract, UC Press) and have several publications out on the topic. Among the things I have found is that the Governor’s release policy was flawed not only in its modest numbers, but also in terms of determining *who* was to be released. I suspect that the tendency to release people with short sentences toward the end of their sentence was largely political, to avoid backlash; in fact, the people who are older and serve longer sentences (now about a third of the CA prison population) are the ones who pose the least risk to the outside and who need the most help because they, themselves, are at medical risk. It is essential not to pollute public health considerations with a flawed discourse of deservedness. We must expand medical parole, not only for the sake of abating this pandemic, but also for the sake of preventing the next.

Many thanks for adding my research into your considerations. I am happy to provide any further information you need.

Best,

Hadar Aviram

Aging, Trials, Accountability, and Justice – International and Domestic

I’ve just attended the first day of a terrific workshop on the aesthetics and visualities of prosecuting aging and frail defendants. The papers are fascinating and take on not only multiple sites of international criminal trials, but also philosophical positions about the value and drawbacks of putting very old people on trial for very serious crimes. Coming to the workshop with what seems to be the only paper on domestic (albeit internationally renown) criminal justice, I found the similarities and differences very thought-provoking.

For one thing, there is a robust body of literature on the complicated jurisdictional, institutional, and thematic distinction between “international” and “domestic” criminal justice (for just one example, here’s an excellent paper in which Shirin Sinnar complicates the international/domestic distinction for terrorism.) What counts as a “mass atrocity” is also complicated to define. The subjects of my paper–the Manson Family members, whom I wrote about in Yesterday’s Monsters–are not that easily distinguishable from some of the perpetrators of international atrocities tried in international courts. The heinousness and notoriety of the crimes in both places is a factor (the Manson murders were internationally infamous) and the setting for the crimes was not dissimilar: young people during turbulent times committing heinous crimes with mob mentality at the behest/out of fear of charismatic and threatening leadership.

Because of these similarities, I was struck by how much my experience studying aging in the CA prison system has placed my opinions outside the cultural norm of international legal scholarship. The first thing that surprised me was the notion that aging and/or frailty do not matter in the context of criminal dangerousness, which stands in opposition to the robust field of life course criminology, which consistently finds that people age out of crime. I obviously don’t reject the idea that aging, frail people can give orders to do horrible things (we’ve just had four years with just such a person at the helm) but I wonder whether, as to people actually committing the atrocities with their bodies, we should reject life course criminology outright as it applies to defendants before international courts (that these people may continue to uphold racist ideologies in old age is deplorable, but uncoupled from the ability to act upon these ideologies it’s less worrisome unless they’re in some sort of power position.)

Another theme that emerged was the question whether “justice delayed”–because the person was apprehended decades after the fact–necessarily decreased the quality of justice. One of the arguments made was that time has led to a reevaluation of some atrocities (e.g., rape was not seen as a genocide strategy for a long time.) I appreciate the logic but am not sure that, in every single instance, the passage of time is going to bring about more justice, or that our current perceptions of justice are universally better than the ones in times past. Nor do I think it’s fair in 100% of cases to impose our current standards of behavior on people who operated in a different contextual realm (I think it goes without saying that, in the rape example, this is valid–but am not sure that subjecting people who committed crimes in the 1970s to the kind of sentencing that became popular in the 1980s and 1990s is fair.) I also have to wonder why the question of innocence/mistaken identity is absent from the conversation.

Some assumptions were made about defendants in these trials–namely, that they were “posers” and that their frailty was a charade. That may be true for some people–a few examples pop to mind–but my experience studying aging in prisons has taught me that these are the exceptions, rather than the rule.

Finally, there was the idea that treating aging people with leniency was ageist and robbed them of their dignity, which is philosophically interesting; generally speaking, placating people rather than engaging them in debate is infantilizing them. But that assumes that the way accountability and punishment is meted is, indeed, an expression of dignity, and I that is the last word I would use to describe the experience of incarceration in the United States.

Given that I don’t really buy a hard-and-fast distinction between international and domestic criminality in these respects, I had to think long and hard about why my feelings on aging on parole (particularly, Susan Atkins’ 2009 hearing and the reluctance to release aging people now because of COVID) differed so much from those expressed in the international scholarship, and I realized that there was one pertinent difference: for the most part, the international conversation revolved around the international law equivalents of Joseph DeAngelo, the Golden State Killer, who evaded justice for decades, and whose spectacle of aging is their first encounter with the criminal justice apparatus. The people I studied had been embodying the experience of being subjected to justice for decades.

This is important, because the embodiment of justice matters. It’s not just about how much time has passed; it’s about how it passed. By contrast to corporeality (the relatively unmediated materiality of the body,) by embodiment I refer to the body as a vehicle or medium of social agency (e.g., as related to spaces and contexts that surround it, specifically the carceral space.) When a person’s body is on display at a parole hearing, the body itself is a meaningful social fact in five ways:

  • An aging body is a nonverbal reminder of time that has passed since the offense was committed–more specifically, the contrast between the youthful, violent body at the time of the offense and the aging body present in the room.
  • Moreover, an aging body evinces the impact of decades of prison life on the body (the embodied evidence of the action of “justice”)
  • Because, as I explain at length in Yesterday’s Monsters, performance is a key factor on parole, the body is also a physical container for expressions of insight/remorse (this is why a commissioner telling a large black parole applicant “you seem angry” is a response to embodiment.)
  • Because parole is, at least in part, a site of prediction of the parole applicant’s prospective future on the outside, the body is also a site of prediction of work prospects, healthcare needs, etc.
  • Finally, the very presence of the parole applicant’s body is often explicitly contrasted to the absence of the victim’s body–particularly by the prosecutor and the victim’s next-of-kin.

The impact of this embodiment–a body evincing a life under carceral authority, as opposed to a body allowed to age freely on the outside–cannot be overstated, and can go a long way toward explaining why I saw things differently at today’s workshop. To the workshop participants’ great credit, they could see the important difference between the trial’s role of accountability and social processing and the question of subsequent punishment for someone old and frail.