Tuesday, April 7, 2015

Homicide on Video: What Is It Going to Take?

Here is the unedited footage of the shooting of Walter Scott in South Carolina, three days ago.



I have now watched the clip three times--almost as many times as I watched the footage of Oscar Grant's killing, and of Eric Garner's killing, and of countless others. I am having a hard time seeing it as anything but murder, with a bloodcurdling effort to cover the murderer's tracks after the fact. Then again, when I had watched the video of Oscar Grant's killing, and of Eric Garner's killing, and of countless others, those were also hard to interpret as anything but murder, and each of those times ended in what I can only describe as absolute legal impotence, and each of those times I've looked at my screen, incredulous, thinking, "what more could you possibly want/expect to see before you called this what it is?"

I am trying to imagine how this footage can be interpreted in a different way--what sort of teary-eyed testimony the cop might give in his own defense--and how a rational jury could possibly interpret this footage as anything but murder. I am trying to get into the head of the cop's defense attorney, to think how he can possibly describe this footage in a different way. I can't even imagine such a scenario. But you know what? I had the exact same thoughts when I saw Eric Garner's killing, and we all know how *that* turned out. It seems like the evidence is getting better and better, but the results are not, and we are fast losing hope that there is such a thing as "perfect" video footage of murder.

Ask yourself, gentle reader: all those other times you saw unspeakable horror on video, did you not say to yourself, as I did, this time it's the ultimate evidence? This time the evildoer won't get away? What makes us think that this one, this last one, will be different? That this time someone has finally managed to catch indefensible evil on tape? That this one won't be a hung jury or some involuntary manslaughter or somesuch? And if this one isn't, what more could "they" possibly need to see what we see? What, if not this--if not Eric Garner--if not Tamir Rice--if not any number of videos we've seen--is going to be incontrovertible evidence of murder? Will there ever be incontrovertible evidence? What, for Heaven's sake, is it going to take?

My heart is with the many sad and angry people in South Carolina who are trying to make sense of it, some of whom may have just realized that Ferguson is not a place, it is a state of consciousness. Yes, black lives matter. They should matter. But until all lives matter equally, none of us should feel calm, or safe, or contented.

The screaming, struggling civilian was a dark man with a face white as flour from fear. His eyes were pulsating in hectic desperation, flapping like bat’s wings, as the many tall policemen seized him by the arms and legs and lifted him up. His books were spilled on the ground. “Help!” he shrieked shrilly in a voice strangling in its own emotion, as the policemen carried him to the open doors in the rear of the ambulance and threw him inside. “Police! Help! Police!” The doors were shut and bolted, and the ambulance raced away. There was a humorless irony in the ludicrous panic of the man screaming for help to the police while policemen were all around him. Yossarian smiled wryly at the futile and ridiculous cry for aid, then saw with a start that the words were ambiguous, realized with alarm that they were not, perhaps, intended as a call for police but as a heroic warning from the grave by a doomed friend to everyone who was not a policeman with a club and a gun and a mob of other policemen with clubs and guns to back him up. “Help! Police!” the man had cried, and he could have been shouting of danger. 

--Joseph Heller, Catch-22

Friday, March 27, 2015

President Obama Interviews David Simon

A truly epic meeting has happened at the White House: President Obama interviewed David Simon, creator of the masterpiece series The Wire.

Yes, you read right, and you can see the entire interview below.



This interview is incredible on several levels. First, it is a strong testament to the power of a cultural piece in shaping discourse around big policy issues. If any television series is worthy of this honor, surely it is The Wire, which, through its depiction of the drug trade in Baltimore, has expanded America's perspective of the criminal justice system to the schools, the political system, and the media.

Second, this dialogue is truly wonderful to experience. As I write in Chapter 5 of Cheap on Crime, the Obama campaign was the first presidential campaign since Nixon's that did not feature crime control and punitivism as a central feature. I read this as a testament to the power of recession-era politics to reshape the political conversation. And the followup during the presidency has also been remarkable: no matter what you think about Obama's foreign or economic policy, it is his presidency that fostered the bipartisan initiative to deescalate federal punishment, as well as the Holder and Cole memos to refrain from intervention in marijuana enforcement in legal states. What this remarkable interview reveals are the complex motivations behind this change. In Cheap on Crime I argue that the recession created conditions under which politicians of all stripes can foster non punitive reforms without suffering electoral and public consequences; but even if that's what brings people to the table, it is only partly what fuels these changes. This interview is a combination of financial issues (particularly when Obama and Simon discuss the difficulty of young men with felonies to engage in the job market) and broader issues of dignity, like the ones Jonathan Simon covers in Mass Incarceration on Trial. To Obama, perhaps unsurprisingly, what is salient in this picture is boys growing up with absent fathers, or with fathers in prison, and he particularly mentions the fourth season of The Wire, which addresses the schools.

Third, which is poignant, is what Obama says toward the end of the interview: that perhaps the time has come to address the structural issues that lead to overincarceration in the first place. Is he referring to poverty? racism? social stratification? The time to address these differences through deep economic change is sorely overdue, but with a Republican congress any effort to make America more egalitarian and less stratified generates cries of "communism!" panic that echo the 1950s. I have no doubt that Obama and Holder have deeply understood and internalized the lessons of The Wire, but I can also see why translating these lessons to practical political gains in a complicated field of political struggle is a big challenge.

I applaud Obama and Simon for this remarkable conversation.

Thursday, March 26, 2015

Blue Ribbon Committee Report on Marijuana Legalization

The Blue Ribbon Committee Report on legalization is out, and it raises a lot of interesting issues. It's a short and interesting read. It doesn't dwell much on the failed effort to pass Prop 19, and it looks at the initial experiences of the four states (and DC) who legalized marijuana as possible guidelines.

Among the topics discussed in the report are questions of enforcement with regard to minors and travel; concerns about workplace and environmental safety; level, type, and usage of taxation; structuring the business end of things; issues concerning the distinction between medical and recreational marijuana; and the need for statewide uniformity.

A few things worth noting:

1. The report hardly discusses tobacco and alcohol regulation as comparisons, and the references to tobacco are limited to the issue of advertising.

2. Very little attention is paid to the political configuration that makes statewide policymaking in California particularly weak - namely, polarization and neopopulism.

3. Not enough attention is paid to what we already know from economic studies of legalization and taxation: there is already some useful information coming in from CO and WA, and there will be more from other states (I will post some links in a future discussion.)

4. The distinction between marijuana and other drugs, and the retrenchment of the latter category, is worth discussing, even if there are good arguments to justify it.


I will be speaking about the report on KQED this afternoon.

Monday, March 2, 2015

Solitary Confinement Video by Molly Crabapple

Residence Requirements for Sex Offenders Struck Down

This morning, in re William Taylor et al., the California Supreme Court struck down the provisions of Jessica's Law that restricted registered sex offenders from residing within 2000 feet of a school or park.

The bottom line is as follows:

[W]e agree that section 3003.5(b)‟s residency restrictions are unconstitutional as applied across the board to petitioners and similarly situated registered sex offenders on parole in San Diego County. Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness
among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety. It thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state‟s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.

Nonetheless, as the lower courts made clear, CDCR retains the statutory authority, under provisions in the Penal Code separate from those found in section 3003.5(b), to impose special restrictions on registered sex offenders in the form of discretionary parole conditions, including residency restrictions that may be more or less restrictive than those found in section 3003.5(b), as long as they are based on, and supported by, the particularized circumstances of each individual parolee.

While the Orange County Register believes that it is unclear whether the ruling has effect outside San Diego County, it seems that a legal provision that is unconstitutional in one area of California is just as unconstitutional in another. Of particular interest is the impact of San Francisco, which, because of the layout of schools and parks in it, is essentially inhabitable to sex offenders under Jessica's Law. This meant a large proportion of homeless and transient sex offenders, which, as one of them said to ABC news, "are actually walking time bombs out here because we are suffering from sleep deprivation". 

Tuesday, February 24, 2015

Wed, Feb 25, 6pm: SF Release Party for Cheap on Crime

Cheap on Crime is out in print and you're all invited to celebrate!

What: Book reading, signing, Q&A, conversations, great food and drinks

Where: Book Passage, the bookstore at the Ferry Building, San Francisco 

When: Wednesday, Feb. 25, 6pm

See you there!

Event page

Tuesday, February 10, 2015

Upcoming Events

This is a big week!

On Wednesday 2/11 you're invited to attend the UC Hastings release party for Cheap on Crime, held at the Alumni Reception Center at 3:30pm.

And on Friday 2/13 you're invited to attend the Hastings Law Journal symposium on federal sentencing reform, which, among other topics, will include a panel on the economics of sentencing inspired by Cheap on Crime.

If you can't catch any of these, do not despair: there will be a community release party for Cheap on Crime on 2/25 at Book Passage, the bookstore at the Ferry Building, at 6pm.