Category: Uncategorized

This spring brought in its wings a mountain of work: in addition to my full-time Hastings position, I guest-taught across the bridge at my alma mater, UC Berkeley. I accepted the overload job for various reasons, financial and others, but in addition to the academic joys of being near many old friends (and especially my beloved and admired mentor) and resuming old professional conversations that I enjoy, there were immense athletic joys: every day I was there, after class and office hours, I would revisit my old stomping (splashing?) grounds and swim a good workout on campus. With my favorite facility, Hearst Pool, closed, I sometimes swam in the gorgeous Golden Bear pool, surrounded by a forest and almost always empty, but most of the time I swam at Spieker Pool, the enormous Olympic-sized facility that is home to Cal’s celebrated swimming and diving teams. Oftentimes over the years, when I swam there, the Cal women’s team would be training in adjacent lanes; I was starstruck by all the fantastic athletes I cheered during Olympic games and world championships and concluded that, if I was managing one lap to every two of Missy Franklin’s, then I was not too shabby.

Like many Bay Area swimmers, I had enormous respect for Cal’s legendary champion, Natalie Coughlin; I read her biography, Golden Girl, which highlighted her special working relationship with coach Teri McKeever. Both women rose to prominence on parallel tracks: Natalie earning medal after Olympic medal, Teri becoming the first woman to coach at an Olympic level. In the book, Teri is presented as a thoughtful, considerate coach, who treats Natalie like the adult that she is, by comparison to Natalie’s prior coach at the Terrapins team. Teri is also presented as sensitive to the needs of the teammates as whole young women, often counseling them on personal and interpersonal problems.

Which is why it came as quite a shock to read in the Mercury News and in the OC Register an exposé revealing serious allegations of bullying and abuse against McKeever from several swimmers:

[I]n interviews with SCNG, 19 current and former Cal swimmers, six parents, and a former member of the Golden Bears men’s team portray McKeever as a bully who for decades has allegedly verbally and emotionally abused, swore at and threatened swimmers on an almost daily basis, pressured athletes to compete or train while injured or dealing with chronic illnesses or eating disorders, even accusing some women of lying about their conditions despite being provided medical records by them.

The interviews, as well as emails, letters, university documents, recordings of conversations between McKeever and swimmers, and journal entries, reveal an environment where swimmers from Olympians, World Championships participants and All-Americans to non-scholarship athletes are consumed with avoiding McKeever’s alleged wrath. This preoccupation has led to panic attacks, anxiety, sleepless nights, depression, self-doubt, suicidal thoughts and planning, and in some cases self harm.

Following the publication of the allegations, as the Mercury News reports this morning, Berkeley swimmers walked out on McKeever on this morning’s practice.

I found myself extremely upset at learning all this; it comes in the heels of Mary Cain’s exposé of running coach Alberto Salazar’s abuse (she thoughtfully reflects on her time training with the Nike team in this great episode of the Rich Roll podcast and in this NY Times video.) We are all still collectively reeling from the sexual abuse that Simone Biles and others suffered at the hands of Larry Nassar, and from the neglect–no, dereliction of duty–on the part of their coaches and sports association to offer them any help. These latest scandals brought home the understanding that U.S. coaches and mentors were perpetrating the same horrors as the infamous Romanian and Russian coaches. Which, as someone who teaches and mentors people at these age brackets (young adults), makes me wonder – what is the meaning, or the purpose, or the appropriate concoction, of tough love?

It’s hardly disputable that the current generation of young students/trainees/athletes have a strong culture of bringing into the light things that previous generations believed should be suffered in silence. I found this interesting article about the attributes of Gen Zers as students instructive and useful. This trait, of not tolerating abuse/indignity, has both lights and shadows. At its worst, it creates a grievance mentality that encourages people to marinate in their traumas and difficulties without fostering the resilience they need (and that previous generations seemed to possess to a greater degree) to overcome them. But at its best, it makes some of us older folks question whether we should have spoken up, rather than remain silent when we suffered similar or worse harm at the hands of the people who were supposed to teach or mentor us.

As I write this, I vividly remember a whole litany of small and medium-sized cruelties that were inflicted on me during my youth and adolescence, starting with my school’s ignorance/inaction at the sadistic and systematic bullying experiences I went through between the ages of 9 and 14, continuing with the terrifying and inhospitable (albeit publicly admired and celebrated) professors and intellectuals who taught us in law school, and then with the gallery of commanders and trainers who used us, in the army, as their psychological punching bags. If anything, I marvel at the fact that the 1980s and 1990s, when all this happened to me and around me, were years in which we gradually developed sensitivity to sexual harassment, while ignoring all other forms of harassment that were still happening, unopposed, in plain sight. We regarded all that stuff as rites of passage and fodder for our hindsight comedy about the hazing we received. The thing to do, our boomer parents taught us on the rare occasion that we revealed our unhappiness to them, was to laugh it off and develop tougher skins. And I can’t say that this advice was completely misguided: later in life, when a staff member at Hastings raised her voice at me about some administrative matter or other, I calmly replied, “Girlfriend, I have been yelled at by people much scarier than you, so I propose you lower your voice and think twice about opening your mouth again.” For me, the experience of suffering was also a gateway toward empathy and compassion: I have never been incarcerated, isolated, or on death row, and I’ve never been assaulted in prison or neglected medically, but I sure as hell know what it’s like to be lonely, hated, disbelieved, and frightened, and I feel kinship with anyone who has shared this ember of the human experience, even if superficially their lives look very different to mine. At 10 years old, I wrote in my diary, “because of what is being done to me, I vow to spend a lifetime helping the helpless and the weak against the powerful bullies.” And I hope my life’s work delivers on at least some of this promise.

Perhaps my ability to grow a useful, and hopefully beautiful, lotus out of the mud comes from sheer good fortune: I just lucked into being genetically predisposed toward happiness and high energy and into having strong psychological muscles. Surely, at least some of my fellow Gen Xers may have emerged psychologically bruised from the roughness with which so many of us were handled. This makes me wonder whether the appearance that the Gen Zers we teach seem considerably more anxious, depressed, and psychologically brittle than us has more to do with their willingness to open up and report about their struggles than with their personalities. But it also has to do with the planetary anxiety (climate crisis, financial crises, political endgame horrors, soul crushing school shooting tragedies) that has characterized their formative years. Either way, the fact is that many of us teachers and mentors encounter young folks who struggle with very powerful demons–depression, anxiety, and others–and that raises serious questions about the extent to which great results can be coaxed out of people through “tough love.”

It’s important not to confuse “tough love” with an uncompromising approach to achievement, or even excellence. I staunchly believe that, by lowering standards, we are misguidedly providing a disservice to the people we try to help. I’ve seen this operate not only in my law school teaching, but also at Balboa Pool, where I work as a lifeguard. Some of my fellow lifeguards teach the Red Cross swim curriculum and are very adamant not to pass children to the next level unless they demonstrate having actually acquired the necessary skills. “They are taking my class,” said one of my colleagues, “not so that their parents will like me, but so that they will know how to swim,” which is not some fancy unimportant frivolous accomplishment: it is an essential lifesaving skill. When the big wave comes for you, you either swim or you don’t. Providing you with the feel-good illusion that can perform a task when you actually cannot is not helping you go forward in life. Similarly, giving you a diploma and a license to practice law when you are incapable of solving other people’s problems with knowledge and confidence is doing a disservice not only to you, but to your clients.

The issue I’m tackling here is quite different: it’s not so much about the standards but about the path toward achieving them. It looks like, at least in athletics (and perhaps in law schools – remember Prof. Kingsfield?) there is a dying breed of old-school coaches and instructors who strongly believe that the way to greatness–Olympic medals, world records, you name it–necessarily requires “toughening people up” through being mean to them. I find myself agnostic: surely some level of toughness and resilience is an important quality to cultivate in people who are aiming at performing and achieving at a high level. But does this really extend to a need to insult and humiliate? The public belittling and verbal punching doesn’t seem to produce the right results in this generation, but did it really prove successful in previous generations? Or did people like Natalie Coughlin, Dana Vollmer, and others accomplish incredible feats despite–rather than because–an atmosphere of toughness and abuse? Could it be that the successful folks were not the one on whose heads the cruelty was rained?

If, with the exposés of Salazar, McKeever, and others, the breed of “tough love” or just “tough” coaches is dying, we certainly have not done enough thinking on whether, and how, to get great results without the great cruelties and indignities. If it is possible, then what is the best model for this? I was very lucky to have, in grad school, the mentorship of Malcolm Feeley, who never once mistreated me, always regarded me as his protégé and friend, and always shone in my skies like a good fatherly sun. To this day I can always count on his steady guiding hand and good advice, and if I have achieved anything in my professional life, it was because, rather than despite, his infinite generosity and kindness. So I know that it can be done, and if a Malcolm-esque model of mentoring could be scaled up to athletics, the world would be better. This, of course, assumes that there’s nothing unique to sports that requires that cruelty be added to the cocktail of instructive styles and methods.

But let’s assume, for a dark teatime of the soul, that it does. Let’s assume that the medals and world records and all that are fueled, to some extent, by the cruelty. That there’s some demonstrable correlation between calling people names and publicly humiliating them and these same people running or swimming very fast and winning races. Do we really care about results so much that we are willing to accept any method for achieving them? Perhaps we’re not there yet. As my friend Aatish suggested in a conversation about this today, “the spectacle demands the next record being broken. No one is going to be all like – oh hey, it’s cool that the mile times will all get slower because now we’re being more ethical.”

And perhaps the same question applies to law school. In the above-linked piece that defends Prof. Kingsfield, Michael Vittielo writes, “Few commentators have asked whether law students are as well prepared today as they were thirty years ago, now that they graduate from far more student-friendly law schools, or whether they are less cynical if they attend law schools where their professors solicit their personal views.” If empirical evidence an be provided that law students are less well prepared now than they were in those rough Socratic method years–can it still be said, “okay, but we’re willing to sacrifice some preparation/proficiency because we don’t want to publicly humiliate our students anymore”?

A strange analogy comes to mind. During the 2008 Beijing Olympics, Speedo pioneered a techsuit called the LZR racer, which was proven statistically to have contributed to the many world records that were broken in the pool. Now, when looking at the record book, all records and results achieved by a swimmer wearing a LZR racer are marked with asterisks. If the analogy isn’t clear, let me spell it out. As more and more evidence of cruelty toward and neglect of young people in sports coaching surfaces, and as more and more of us find it abhorrent and unconscionable to treat people this way even if it produces results, will there ever come a time in which records accomplished partially as a consequence of humiliation and abuse will be marked with an asterisk for posterity, and will no longer be an accomplishment we are willing to tolerate?

A couple of years ago I took a facilitator training in VTS (Visual Thinking Strategies), a nuanced and inclusive way of looking at and speaking about art. At the training, we learned to facilitate conversations about art among students of all ages, brought about by complex, ambiguous images. The power of VTS lies in the simplicity of the method. The students are asked three questions: (1) What is going on in this picture? (2) What do you see that makes you say that? and (3) What more can we find? The facilitator then skillfully rephrases what the students say, clearing their perspectives of preconceptions, and opening the door to a multiplicity of interpretations.

Because these questions are not rooted in any preconceived notions about the art, they open the enjoyment of art and the meaning-making process to a variety of audiences of all ages, from police officers to medical students. Not only does this method subtly encourage inclusivity and pluralism without shaming, but it also increases powers of observation and interpretive flexibility.

One of the many things that are interesting about VTS is that there are many layers of engagement with art. Abigail Housen, whose research informed much of the VTS approach, identifies five stages of aesthetic development:

Stage 1 – Accountive
Accountive viewers are storytellers. Using their senses, memories, and personal associations, they make concrete observations about a work of art that are woven into a narrative. Here, judgments are based on what is known and what is liked. Emotions color viewers’ comments, as they seem to enter the work of art and become part of its unfolding narrative.

Stage 2 – Constructive
Constructive viewers set about building a framework for looking at works of art, using the most logical and accessible tools: their own perceptions, their knowledge of the natural world, and the values of their social, moral and conventional world. If the work does not look the way it is supposed to, if craft, skill, technique, hard work, utility, and function are not evident, or if the subject seems inappropriate, then these viewers judge the work to be weird, lacking, or of no value. Their sense of what is realistic is the standard often applied to determine value. As emotions begin to go underground, these viewers begin to distance themselves from the work of art.

Stage 3 – Classifying
Classifying viewers adopt the analytical and critical stance of the art historian. They want to identify the work as to place, school, style, time and provenance. They decode the work using their library of facts and figures which they are ready and eager to expand. This viewer believes that properly categorized, the work of art’s meaning and message can be explained and rationalized.

Stage 4 – Interpretive
Interpretive viewers seek a personal encounter with a work of art. Exploring the work, letting its meaning slowly unfold, they appreciate subtleties of line and shape and color. Now critical skills are put in the service of feelings and intuitions as these viewers let underlying meanings of the work what it symbolizes emerge. Each new encounter with a work of art presents a chance for new comparisons, insights, and experiences. Knowing that the work of art’s identity and value are subject to reinterpretation, these viewers see their own processes subject to chance and change.

Stage 5 – Re-Creative
Re-creative viewers, having a long history of viewing and reflecting about works of art, now willingly suspend disbelief. A familiar painting is like an old friend who is known intimately, yet full of surprise, deserving attention on a daily level but also existing on an elevated plane. As in all important friendships, time is a key ingredient, allowing Stage 5 viewers to know the ecology of a work — its time, its history, its questions, its travels, its intricacies. Drawing on their own history with one work in particular, and with viewing in general, these viewers combine personal contemplation with views that broadly encompass universal concerns. Here, memory infuses the landscape of the painting, intricately combining the personal and the universal.

As we saw at our facilitator training, the vast majority of people who look at art make observations that reflect stages 1 and 2–which is not to say that they are limited, or uninteresting; plenty of deep observations can emerge from these stages. Stage 3 typically reflects prior knowledge in art history or technique, whereas Stage 4 reflects a deeply intimate and emotional relationship with the art. Stage 5, we were told, typically reflects viewers of advanced ages, who have had the experience of engaging with a particular work of art over the course of their lives, which entwines the evolving personal experiences of the viewers with the universal (and possibly changing) themes of the work.

Today I had the luxury of revisiting Housen’s important work by experiencing what re-creative enjoyment of art looks like in the realm of literature: I read Ruth Wilson’s wonderful book The Jane Austen Remedy. To get a sense of Wilson’s project, here she describes it in her own words:

In my eighties I reappraised Jane Austen’s fiction in a doctoral thesis, and was commissioned to explore my own identity, dispositions and values in a recently published reading memoir.

Now I find that the processes of rereading, investigation and reflection have led me to the best time in my life. Reading memoirists raised issues in my mind about memory, truth telling and artistry. In weaving together these aspects of my own reading experiences in my thesis, I discovered parts of myself and aspects of my most intimate relationships that I had not previously explored.

On the one hand I felt removed sufficiently to take stock of the best and worst of times in my life. And on the other, I became deeply immersed in the reflective process. I was surprised to realise that longstanding dissatisfactions were evaporating around me. I was experiencing waves of exhilaration while my level of wellbeing soared beyond anything I had previously known. While writing the memoir, reading, writing, and rereading occupied my days and gave them added meaning.

Wilson wrote her doctoral dissertation on the experience of reading Austen as promoting empathy in her mid-80s. She devotes a chapter to each novel, unpacking the relevance of themes to her own life and to universal issues and exposing layers of understanding and relevance that have evolved throughout her repeated engagement with the texts in her life. In that sense, Wilson’s appreciation of Austen’s body of work is the literary equivalent of Housen’s fifth stage of aesthetic appreciation.

To my delight and nourishment, I am finding that the same is true for me as I reengage again with texts I have read and loved throughout my life: Arthur Conan Doyle’s canon of Sherlock Holmes stories. I already shared here that this is likely going to be my next book project. I’m finding layers of personal and professional meaning that was added to the stories throughout the years. In my childhood–I first encountered the stories when I was ten years old–I found the deductive process intoxicating, particularly when demystified as a scientific series of steps. But over the years, I learned more about this. My criminological education and my richer background in law and the social sciences highlighted other themes: the centrality of the positivist criminological paradigm in the Holmesian universe, understandable given the period’s great excitement about the scientific method, the measurability of social facts, and the medicalization of crime (the inspiration for Holmes was Doyle’s mentor, Dr. Joseph Bell.) This brought out of the shadows some of the more unsavory aspects of the stories: the racism, misogyny, colonial paternalism, social Darwinism, etc., which are highlighted throughout the canon. This critique is much more salient to me now than it was earlier in life, but I can unearth more layers beneath and above it: the understanding of the fear of crime as an unknown/unexplainable phenomenon that might become just a bit less unruly if we can subdue it to the laws of nature. I see the same animus behind the current tendency, for example, to unfairly blame Chesa Boudin for everything that is wrong in the dystopian San Francisco zeitgeist.

There are other readings of the text that have spoken to me over the years. As I grew up and acquired experiences–ranging from sublime to heart-shattering–with various affaires-de-coeur, queer readings of the Holmes canon, especially understandings of his relationship with Watson, became salient as possibilities. Then, inspired by my colleague and friend Ethan Leib’s work on friendships, I began to wonder what was more revolutionary: to ascribe sexual meaning to a relationship that is ostensibly portrayed as platonic and friendly, or to ascribe this relationship intimate importance despite the lack of an explicit sexual aspect? It is a complicated friendship, which includes true love, professional camaraderie, and on occasion, shocking emotional abuse, that brings to the surface themes that we generally are happy to explore in romantic liaisons but do not deeply analyze in platonic friendships, and in that sense brings a revolutionary aspect to the book.

And then there is my own move to the new world and the colonialist reading of what America, and Americans, is/are all about; Doyle’s exoticization of both America and Australia evoke some interesting parallels in American Political Development (APD) and in the USian tendency to exoticize the Global South. This becomes especially salient in novels and books describing the frontier, including The Valley of Fear, A Study in Scarlet, The Boscombe Valley Mystery, The Noble Bachelor, and others.

In short, much of the canon, like the Austen canon, is not just about the work itself, but also about the ongoing relationship, over decades, between the work and the reader, themes constantly sharpening and blurring, progressing and receding in importance, as my relationship with the inhabitants of 221B Baker Street deepens. I feel it’s time to write about this interplay and to celebrate this canon, especially because, as opposed to Jane Austen’s works, it was meant to be read serially, in the Strand newspaper, by people of all walks of life, each of whom would project their own interests and values on the narrative.

My heart is crying. One of the best people I’ve known was prematurely taken from us. My beloved friend Tally Kritzman-Amir, an international human rights, immigration, and refugee law scholar of global renown, was beaten at 43 by a ferocious, aggressive cancer, leaving behind her husband, our dear friend Yoni, and their two young daughters, the wonderful Orr and Shir. She also leaves behind a loving extended family and thousands of friends throughout the world, many of whom benefitted from her selfless, pragmatic contributions.

Tally’s cynical, sometimes dark sense of humor belied a heart of pure gold and an uncanny capacity to find the most practical and effective way to do good in any situation. She devoted precious time to legal and economic interventions on behalf of the most disempowered, desperate people on the planet. A few weeks before her untimely death she befriended Gloria, a refugee from Africa seeking treatment for aggressive cancer in Israel, and successfully fundraised for her treatment. It is so typical of Tally to turn the world upside down even in her last breaths to improve someone else’s lot, to see her own horrific affliction as a gateway toward empathy and connection with others. All this with no fanfare, no social media bullshit, no performance or self aggrandizement whatsoever. Just a pure soul and a perfectly calibrated moral compass.

My family and I had the great joy to be close friends with Tally and her family at Cambridge, where we considered them our family. At every corner of our Harvard journey, she was there, building community for us, gathering items, facilitating annoying errands, looking for housing, and walking me through campus bureaucracy. She was at the heart of a vibrant community, drawing connections between people, her kind heart and razor sharp mind working in concert to connect A’s bounty to B’s needs, always selflessly, humbly, without asking for praise or recognition.

On the very day that she was laid to rest, an Israeli judge approved a visa for a couple of Ukrainian refugees, citing Tally’s work and paying tribute to her goodness and solid principles. When people pass away, I often say, “a great light has dimmed.” So great was the light that shone purely from Tally’s soul that it continues to illuminate the world after her departure. I will miss my beloved friend very, very much and send my deep condolences to Yoni, Orr, Shir, the family and friends, and the entire world, who has lost a fierce warrior of love and belonging.

This week I started working at my new side hustle: I’m volunteering as a lifeguard at my local pool to acquire the requisite experience hours for a salaried lifeguard job with the city. I’m happy to report that I’m finding it just as exhilarating and rewarding as I expected.

Every job has discontents, and professional jobs are cushier than many other occupations, which makes whining about academia trite and tiresome. Still, the last few years have eroded much of what I enjoyed about my academic work environment, and finding myself in a new professional context was refreshing. I like the fact that people are measured and judged in a more straightforward, honest way on a job that involves a fitness/alertness component. I like the fact that the job is completely stripped of markers of prestige (I work alongside people of all ages, occupations, and walks of life.) But mostly, I’m immensely enjoying the service aspect of the job.

Lifeguarding offers a sublime combination of calm and focus. I sit by the water, which has always been my favorite place, and find a precious balance between the stillness of being of quiet service to people and the alertness to things that might happen before they happen. Empathy and perspective-taking are relevant to the job in surprising ways – most of the time one can prevent all kinds of calamities and crises not through heroic water rescues and CPR, but through anticipating what might happen, putting oneself in the place of a swimmer or exerciser, and preempting the problem by addressing their needs. The job offers varied avenues for service: lowering some of our senior swimmers to the water in a special chair, offering a toy to a kid, politely but efficiently moving people along lanes so that they are swimming with people at their speed, offering an aspiring triathlete a couple of pointers about their stroke. I’m really having a terrific time.

Lest anyone think that the COVID scourge is gone from California prisons, this morning’s ticker shows 351 active cases, 62 of which are at San Quentin. There are also, at the moment, 261 active cases among employees.

My coauthor Chad Goerzen has created a model of prison-community transmissivity, the basic features of which we will present in a future post here in the blog and in our forthcoming UC Press book Fester. For now, I can share that we are able to point to a number of deaths in the community (counties neighboring CDCR facilities) that we can causally attribute to the prison outbreak. Our efforts support and bolster a prior nationwide report by the Prison Policy Initiative (authored by Gregory Hooks and Wendy Sawyer) to a similar effect, though our model, which is local, can show direct causality and geographical ties. This is important to us because of the misguided zero-sum mentality that accompanied much of the community thinking about COVID – a “better them than us” sentiment that reflects lack of basic understanding of how prisons work, how viruses work, and how both of these factors can affect the surrounding community.

In other news, Aparna Komarla of the COVID-19 in Custody Project reports a worrisome, but utterly unsurprising, issue: the Sacramento sheriff refuses to discuss vaccination rates among his staff:

The first health order was issued in July 2021 and requires surveillance testing for unvaccinated correctional officers. The second order was issued in August 2021 (latest amendment was in February 2022) and mandates vaccines and boosters for a small group of non-medical officers working in the jails’ healthcare settings (ex: staff working in jail clinics). If the sheriff’s office in Sacramento is implementing and monitoring compliance with these orders, a record of vaccinated and unvaccinated employees must exist. But they insisted in their responses that no such records were available. 

Our most recent public records request for the staff vaccination rate, however, received a different response. We were told that the Sacramento sheriff’s office is implementing and complying with the CDPH’s July 2021 health order, but they would not release their vaccination rate as it violated the employees’ medical privacy rights. 

“The Sheriff’s Office strongly values our employees’ privacy and is concerned with the risk of unlawful data collection regarding employee medical data,” read their response. They cited California Government Code 6254(c.) and 6255, which give public agencies the right to not release files that are an unwarranted invasion of personal privacy. 

Their response is egregious for two reasons. One, it contradicts their previous stance that no records of the staff vaccination rate are available. And two, since we asked for the vaccination rate of the entire office and not the vaccination status of each employee, no one’s privacy would have been compromised. An aggregated vaccination rate (ex: 60% of employees are fully vaccinated) reveals nothing about the identity of those who chose to or chose not to get vaccinated. 

Further, if medical privacy was a legitimate barrier, then the sheriff’s offices in Alameda, Santa Clara and San Francisco counties would not have been able to provide their vaccination rates. The Sacramento Sheriff’s response is unreasonable to say the least, and it illuminates a pattern of evading data transparency despite their legal obligations.

To me, this is one more reminder of a principle I talk about in Bottleneck (soon to become chapter 4 of Fester): the ineffectual nature of whatever powers the Board of State and Community Corrections (BSCC) can assert over sheriffs. In addition to the many examples I cite there of county sheriffs not reporting COVID data at all (especially before August 2020, when the BSCC issued a request, but quite significantly even after), Aparna Komarla and her staff reported that, even when things are going on in jails, there is no effort to help others learn from positive examples, and that, as late as January 2022, the Sacramento Sheriff was hiding case rates at his facility. It should be obvious why in jails, which are closer to the community and have a more transient and temporary population (more community transmissivity and less community solidarity) and lower population vaccine rates, the staff vaccination rates should be a source of serious concern.

It’s true that, with the new variants and with diminishing returns of protection from the vaccine and boosters, this is a problem that cannot effectively be fixed now: the damage is already done. But the resistance to disclose the information is telling because vaccine rates (reflecting attitudes toward vaccination) are also bellwethers of other sentiments among staff. I’ve already written elsewhere about the paucity of information about the political views of prison and jail staff, and about the question whether the antivax campaign in this population reflects just that–antivax sentiments–or something bigger, like Petri dishes of Trumpism, virulent antiestablishment sentiments, or complete political capture of custodial staff unions. I think it’s really important to know who exactly we are dealing with here, because these are people entrusted with the care of vulnerable populations who get no sympathy from the public and, consequently, there are few checks on their attitudes and behavior. If the sheriff won’t provide these checks, or report about the situation, no one else will be able to effectively ensure that people are punished according to the California Penal Code and not according to the COVID-denialist whims of the guards.

So much has been said and written about the Supreme Court’s leaked majority opinion draft overruling Roe v. Wade that I hardly need to elaborate the basics. I’m not a reproductive justice expert, nor am I particularly surprised that this has happened–they are simply doing precisely what they were hired to do, which is to promulgate a theocratic, sex-negative worldview. The reason I add my voice to the cacophony is that I have a somewhat unorthodox, nuanced position on this debate, which hasn’t (I think) been aired yet–that of an adoptive mom.

We adopted our beloved son as an infant from a state that frowns upon abortions. My son’s amazing birthparents’ struggles, dilemmas, and decisions are their private business and I will not air it here or anywhere else. What I can share is that, throughout our happy life together, I have been beyond ecstatic that the world has been blessed with my son, a sparkling star of a boy–bright, empathetic, loving, friendly, kind, athletic, funny, multitalented, spirited, lively. And at the same time, every adoption involves a huge leap of love and empathy, and much pain, grief, and loss adjacent to the joy. There are no hard or fast rules about the roads taken or not taken with pregnancies. The deep regrets of placing a child for adoption, the sometimes unsurmountable hardships of parenting, and the deep regrets of terminating a pregnancy all float in a realm of possibility that I can only imagine, having been raised in a welfare state with excellent sex education and easily available contraceptives. No assumption can be made, as the right makes, that abortion invariably leads to shame and regret (see this remarkable amicus brief on behalf of law professors who underwent abortions and “believe that, like themselves, the next generation of lawyers should have the ability to control their reproductive lives and thus the opportunity to fully participate in the ‘economic and social life of the Nation’.”) Of course, the opposite assumption–that abortion brings you your life back without a trace of regret or sorrow, is also false, and part of the reason many women can’t quite find themselves in the pro-choice milieu is that, in the fierce struggle for women’s rights, little room is left to contain these sorrows and regrets.

The philosophical debate about when life begins is, to my mind, a red herring. For what it’s worth, and this may surprise my lefty friends, on the abstract philosophy point I’m with the pro-lifers: I do believe that a form of life–sentience–begins at conception, and I find that congruent with my sentiments on other aspects of sentience, such as nonhuman animal rights. The problem is that the pro-life right-wingers lose interest in supporting said life from the moment it emerges from the womb, as evidenced by the lack of parental leave, child care, quality early education, and decent, government-funded healthcare for all. They are also not interested in sparing such life from emerging in the first place through comprehensive sex education and widely available contraceptives.

All of this has already been said, most eloquently, by others; but the right-wingers have a ready-made answer. “Not to worry!” They cheerfully squeal. “That’s what adoption is for!” Which is where, as an adoptive mom, I need to speak up and disabuse some of the truly ridiculous illusions that our right-wing politicos and fundamental Christian buddies are willing to entertain. Namely, the notion that limiting safe, legal abortion is going to result in a boon for adoption should be patently absurd to anyone who has gone through an ethical open adoption process; the opposite is true.

Adoption professionals recoil from the idea that adoption is about “selling children”, and from here flow multiple ethical and legal limitations on the kind of assistance that adoptive parents can offer birthparents and on the interactions between the party. And yet, beyond the niceties, let’s start with the obvious: in virtually every adoption, as ethical and kind and caring as it is, children pass from poor hands to more economically advantaged hands, with money moving in the opposite direction. This means that birthparents–usually birthmoms–are at a considerable socioeconomic disadvantage, often exacerbated by being typically younger than the adoptive moms.

Forcing women who would otherwise have a (legal, safe) abortion to instead carry a pregnancy to term and place their infants for adoption throws more young women and girls with no bargaining power into the mix–often women and girls who now have to hide their pregnancies from families and boyfriends. It is not difficult to predict that women who are less equipped to carry a pregnancy to term would be the ones seeking abortions, and that requiring them to forego that option will result in pregnancies that are less safe, and therefore in infants that are more difficult to place for adoption. Hiding your pregnant belly from your mom or your friends can result in experiencing your pregnancy under conditions that are bad for you (exposure to smoke, exposure to alcohol, unhealthy diets); having such a pregnancy discovered can result in being unhoused for the duration of your pregnancy; all this instability will surely result in less responsible and consistent prenatal care.

A birthmom who knows she can’t parent will then search the Internet high and low for adoption agencies, trying to find one with serious social workers and good services. She’ll then go through an intake interview with a social worker, who will ask her about her medical history, prenatal care, and use of alcohol/drugs. I’ve taken classes with other adoptive parents: the medical history is something that can be scary for prospective parents, and birthmoms can, of course, guess this. So, what happens when someone who has not had the resources to properly care for themselves and their baby tries to place said baby for adoption? Would it surprise anyone if this would result in more deceit and evasion when interviewed by adoption agency social workers?

I can see very unhealthy prospects for the adoption market under such circumstances. With the inability to verify pregnancy details, or to provide proper care to prospective moms, unscrupulous lawyers and corrupt social workers might step in with unhealthy incentives, pressure, and coercion–akin to the worrisome trends we see in the international adoption market. This means less safety and trust precisely in a situation that requires an enormous amount of empathy and mutual trust. It means less careful vetting of adoptive parents–the actual people who are to raise and nurture this precious life. And it also means that women who might withstand the pressure and try to parent their kids might have to later relinquish them by court order, or due to other awful circumstances, which throws kids into the traumatizing world of government care at an early age and creates considerable challenges even in the happy cases that end in fostering and adoption. Many people who can become fantastic parents to infants through open adoption might not have the emotional fortitude and resources to address and heal the trauma of older kids. Corollary: Throwing birthmoms into these situations ahead of time by eliminating a safe, legal option, is not a boon for adoption–the opposite is true.

Additionally, if, indeed, adoption is to be the panacea for the problem of sentient life, then we should also care about the life of the birthmom after adoption–in the form of extended services to help heal the trauma, beyond some meetings with a social worker: I’m talking college money, gym membership, grocery money, job seeking support. Of course, all this assumes that Alito et al. truly want birthmoms, after giving the gift of motherhood to someone like me, to land on their feet and “fully participate in the ‘economic and social life of the Nation.” Do they?

The truth is that none of this is really about abstract notions of sentience nor about seeing the abortion/adoption thing as a zero-sum game, because it is patently clear that neither value is being advanced by forcing women to carry pregnancies to term or risk a dangerous back-alley procedure. Friends, here’s what’s going on: Justice Alito and his buddies are simply out to penalize women (the wrong sort of women?) for having sex. That the punishment might extend to other (sentient) people in the equation–a child, adoptive parents, adoption professionals–simply does not enter into their equation. The idea that someone who receives solid, reasonable, science-based sex education should be able to just say yes to sexual activity with whoever they choose, with however many people they choose, in whatever form, in whatever frequency, so long as all are of sound body and mind and consent and respect each other, is anathema to them. They know that legal prohibitions will not deter young people who have been deliberately left ignorant about the functions of their own bodies from having sex. They don’t care. Because they don’t intend to ever pick up the price tag for the many young lives that will later end up in flux, this is a complete externality to them. And that is what is so atrocious here.

I’m wrapping up my fourth semester of flipped classroom pedagogy, and I think I have a verdict: it’s preferable to my previous lecturing-plus-discussion model, and even though it’s a lot of work for both me and the students, the benefits are considerable.

The model works like this: In preparation for each class, the students read the materials on my electronic casebook (on the ChartaCourse platform) and watch a prerecorded lecturette I’ve made, which summarizes the cases, offers additional points and socio-legal insights, and provides flowcharts and guidelines for legal analysis. I’m now on my third version of these lecturettes, and I think I’ve managed to produce something of passable production value. Here, for example, is one of the lecturettes of which I’m most proud – the one about out-of-court codefendant confessions:

Because the students come well prepared, I don’t have to spend/waste time on lengthy lectures in class. I go over some of the basic issues, add examples and stories, and answer questions. The bulk of our time together is spent working on problems and simulations in small groups. Usually, the students receive a few hypothetical scenarios, discuss them in small groups, and formulate a solution which they then post to our discussion forum. Sometimes, I’ll create more elaborate simulations for them: this year, we did a two-week plea bargaining exercise, a big jury selection exercise, and a federal sentencing simulation. After the groupwork concludes, we debrief together. This means the students go over each unit of material five times: through the reading, the lecturettes, my highlights, their own independent work, and our debriefing session.

So far, I haven’t been able to coast on lecturettes from previous years, because I had recorded them on Panopto, which is not fantastic, and have had to re-record them from scratch on Zoom. As you can see above, the quality is pretty neat and I can use animation and other tricks to explain complicated concepts. Hopefully, in future years I’ll only have to record lecturettes that update the existing ones when legal changes occur. I’m also quite impressed with the students’ hard work in class and in the small group. This method works very well in a small class in person, and also scales up quite marvelously online.

If you want to flip your classroom and need some help or advice, please contact me! It really is a wonderful way to teach.

It’s been a while since I posted here; my two jobs have kept me busy (this semester I’m adjuncting at Berkeley on top of my full-time Hastings position,) as have my family and my athletic pursuits. I successfully completed the Oakland Marathon (see my proud photo with the medal!), am training for several big events this year including the Tiberias Marathon, and we found a wonderful school for our son. I’ve also written three pieces (a book chapter about the persecution of animal rights activists and two papers based on chapters 6 and 7 of Fester) and am working on the fourth (a comparative analysis of approaches to intra-racial crime in Israel and the U.S. through the lens of American Political Development.) All of this means that I’ve had far less patience and forbearance for the vicissitudes of social media.

We’re being encouraged to “engage,” “interact,” and be “relevant” to public discourse through these channels, but this morning I spent some time rethinking the role that my so-called “engagement” has been playing in my personal and professional life. I kept saying that twitter was useful to me in that it put me in touch with very dear people who had important information on COVID in prisons and jails, but now that the fieldwork for Fester is largely finished, I can always contact these good folks via email. I also kept saying that, when I’d retire, as a gift to myself, I’d quit twitter. Why wait?

I know that, for many colleagues, twitter can be invigorating, validating, and community generating, but it has not played that role in my life. What I get from the platform is, largely, annoyances, as well as a strange compulsion to explain myself to complete strangers. I feel manipulated by the outrage machine, and there’s a constant sense that there’s a way to really proliferate and enjoy oneself there and I just didn’t get the memo. I also find that the erosion of free speech and civil discourse, which I have valued about my job in the past, are worse on these platforms–it’s a magnified version of the discontents of my in-person job. Rarely have I come across anything original or interesting there, and I can’t think of a single situation in which an idea I saw there contributed to my work. Perhaps some opportunities have come my way via social media, but many more have come through traditional reputational channels. In sum, the net effect on my professional and personal quality of life has been negative, so, why do it?

In any case, I think I’ll come back to writing some longer pieces here more frequently. Blogging has consistently been a good way to generate and develop ideas that later find their way into my articles and books (this is especially true about Cheap on Crime and Fester.) If you’d like to engage, you’re welcome to read here, as I’ll be spending less (possible no) time elsewhere.

If you are an academic who has made a success of their career with little to no social media presence, I would love to hear from you. That is what I want for myself and I’m looking for role models.

Unbelievable and unconscionable. NBC News report:

A federal appeals court on Friday temporarily blocked an order that all California prison workers must be vaccinated against the coronavirus or have a religious or medical exemption.

A panel of the 9th U.S. Circuit Court of Appeals granted a request for a stay of September’s lower court order pending an appeal. It also sped up the hearing process by setting a Dec. 13 deadline for opening briefs.

The vaccination mandate was supposed to have taken effect by Jan. 12 but the appellate court stay blocks enforcement until sometime in March, when the appeal hearing will be scheduled.

It is absurd to deny that a horrifying and preventable catastrophe has played out in California prisons. So far, more than 50,000 people—more than half the state’s prison population – has contracted COVID-19, and 242 people have died. The California Inspector General’s reports, as well as federal and state court findings, reveal a picture of shocking indifference, shortsightedness, and neglect in the California Department of Corrections and Rehabilitation’s (CDCR) handling of the pandemic—complete with irresponsible transfers, an overwhelm of the prison healthcare system, low testing rates, a rumor mill of fearmongering and disinformation, and unreliable data collection.

For a year and a half, advocates for incarcerated people fought in federal court to obtain relief. The lawsuit began as a plea to reduce prison population, which for much of the pandemic hovered around 100% of design capacity. But with the advent of vaccination, and after an uphill battle to ensure that prisoners, like other people living in congregate settings, receive it, the lawsuit’s focus became much more modest: a mandate that correctional staff (the main transmitters of the pathogen) become vaccinated. Despite concerns that prisoners, who have lost all faith in CDCR, would be suspicious of the vaccine, advocacy groups comprised of physicians, family members, and recently released people, succeeded in providing accurate and trustworthy medical information, resulting in high vaccine acceptance rates among the prison population. The picture is completely different regarding prison staff. Throughout the pandemic, correctional officers told incarcerated people that COVID-19 is a hoax and that the vaccine would kill them; neglected to wear PPE in enclosed spaces and mocked prisoners for doing so; ordered prisoners to clean cells of infected people; fed prisoners insufficient, unpalatable food when the pandemic ravaged kitchen workers; and planned a correctional officers’ union event in Las Vegas amidst the pandemic wave of late 2020, which was abandoned only under public pressure. Even as their colleagues ailed and died, many correctional officers persisted in COVID-19 denialism and anti-vaccine sentiments.

The stay is the last in a long series of concessions and placations by government officials to the powerful prison guards’ union. Throughout the litigation, Judge Tigar exhibited remarkable patience and tolerance for bad faith arguments, trying to foster cooperation rather than impose orders and congratulating attorneys for the prison guards’ union for even sitting at the (virtual) table. Then, Governor Newsom—ostensibly, the outspoken architect of California’s science-forward vaccination policy and of vaccine mandates in schools—supported the guards in their bid to evade vaccination (the prison guards’ union reportedly contributed $1.75 million to Newsom’s anti-recall campaign). Attorney General Rob Bonta, who publicly decried the pandemic crisis at San Quentin as an Assemblymember, changed his tune as soon as he took office, and has allowed his employees to defend the prison system’s unconscionable policies. This disturbing pattern offers somber proof that all government branches are paralyzed not only by fear of unflattering optics—the people who should be first in line to be released, elderly and infirm prisoners, are often serving time for serious, violent offenses—but also by the manipulations of the prison authorities and the prison guards’ union. In one case, justice delayed due to these evasive maneuvers was, literally, justice denied: Just a few weeks ago, Judge Howard of the Marin Superior Court found that the ill-fated transfer that started the horrific San Quentin outbreak constituted an Eighth Amendment violation—but offered the prisoners no relief, because the vaccines supposedly “changed the game” to a point that lifesaving population reductions are moot.

But the threat is not moot; currently, there are several active outbreaks in California prisons and dozens of active cases. Studies are increasingly showing that the congregate setting in prisons, complete with flawed ventilation, lack of social distancing, and the rise in prison population, pose continuous risks. Efforts to control prison populations by stopping jail transfers are currently causing massive outbreaks in several county jails. Moreover, the emergence of new variants, such as Omicron, does not bode well for correctional facilities.

The risk extends far beyond the prison gate. For our forthcoming book about the California COVID-19 prison crisis, my coauthor Chad Goerzen and I have found worrisome correlations between prison outbreaks and spikes in cases in surrounding and neighboring counties. We should all know by now that the pandemic is not a zero-sum game, and that viruses do not decide which hosts to inhabit based on arguments of moral deservedness or the California Penal Code. If prisons are allowed to incubate dangerous variants, the risk to you and your loved ones increases.  

The Ninth Circuit reasons that anti-vaccination sentiments run rampant among prison guards (we do not know why, as no one has ever systematically surveyed the political views of correctional officers) and assumes (without foundation) that, in the face of vaccine mandates, many might quit their well-paying jobs, leaving our vast prison system understaffed. This scenario was feared, but failed to realize, in many other employment sectors with mandates, where vocal protestations and threats of resignation gave way to vaccine compliance. But even if the threat of correctional officers’ resignations is real, we must ask ourselves why courts and government officials are so stubbornly clinging to the idea of overcrowded prisons as a social good. If it is impossible to hire and retain correctional staff who can provide a standard of care that complies with minimal Eighth Amendment requirements, then it is impossible to incarcerate as many people as we do. We must reckon with the fact that we cannot, lawfully and constitutionally, house more than 100,000 people—a quarter of whom are over 50 years old—if the staff entrusted with their care cannot be bothered to take minimal precautions to protect their captive wards from disease.