Author: W. David Ball

W. David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.

The Spiritual Benefits of Protest

These are extraordinary times, and I am planning to put my privilege on the line over the next four years. If it comes to pass that my opposition to the Trump administration’s policies makes me sufficiently partisan that I can’t be seen as a fair broker in the future, that will surely be the least of my problems. I’m not anti-market, or anti-Republican, but I am against policies that simply serve to exacerbate income inequality on some vague, unproven theory that the ultra-wealthy, who have lower marginal utility for each extra dollar, will somehow get that money into the hands of the middle class. Supply-side economics doesn’t work; the Laffer curve doesn’t suggest that cutting taxes will always increase revenue (depends where on the curve you are); and there is no evidence that private charity will step in to boost food security, health care, and education the way that government programs do. I don’t think now is the time to normalize, or be polite, or fear that taking a stand will somehow hurt me in the future. Democrats are the only ones who worry about that kind of thing anyway.

Today was a difficult day for me as for so many others, but I went with my wife and younger son to a demonstration in our town. I’m somewhat skeptical of demonstrations, particularly those in the Bay Area. I don’t think that anyone will take notice of this particular demonstration and change a single policy, and this is surely not what I meant about putting my privilege on the line. That will come later; most people here agree with me.

Continue reading “The Spiritual Benefits of Protest”

Network Architecture, Social Media, and Social Justice: Some Preliminary Thoughts

Since the election, I’ve seen a lot of writing about the ways in which social media can help explain our contemporary political divide, from the rise of fake news on Facebook to the belated ban of racists on Twitter (sorry, I don’t use the politically correct term “alt-right”, and, by the way, how ironic is it to be PC about that group, of all people) to the existence of news bubbles (as foretold by Eli Parisier). I worry, though, that too much of this conversation focuses on policy fixes, and not enough looks at the deeper issues: how these systems and networks are designed from the ground up. We seem to be talking about how to fix Facebook, but not about whether Facebook is ultimately able to be fixed.

Facebook is private property and its rules of discourse are governed by proprietary algorithms designed with revenue-maximization-not social benefit-in mind. Any social benefits-and there are many-are incidental. So even though it acts as a de facto town square, it’s really a town mall. And that makes the ground rules-and our ability to change them-different. The same is true of all other platforms, not just Facebook. What I want to explore is how particular architectures embed certain kinds of expectations about people and their needs, and the ways in which these structures facilitate certain activities and circumscribe others.  Ultimately, is there a way for us to consider society as we build out new platforms, particularly when it comes to social media, where people are both the producers of value and its consumers? Put another way, how is it possible that, after the rise of literary theory, we are not thinking more deeply about a system where private corporations control the ways in which language is produced, distributed, and consumed? Surely that is affecting its content-and its potential.

If Walter Benjamin were alive, I imagine he would talk about the ways in which the cyber flaneur is constrained. We live in intentional online communities. There is little juxtaposition or happenstance. We go online, typically, with a search in mind-and even though we use a “browser” to get there, we are motivated to get to our destination. Searching and browsing are fundamentally different. Alternatively, we are on Facebook, which is less directional. We are looking for stuff to see, but we are only doing this from known entities, not ones we happen to encounter, and this stuff to see is typically disconnected from our corporeal selves that eat, live, work, play, and travel through real spaces, through different neighborhoods whose inhabitants have different perspectives. Even our offline movements are increasingly point-to-point, designed with minimal travel times in mind, through the aid of navigation apps.

How you feel about this depends on what your goals are (and where you are in the system). The mid-20th century drive to build highways through American city centers made a certain kind of sense: it allowed for speedy transfer of surburbanites to their work in the urban core. As long as this was the goal, highways were the answer, and the governmental subsidies that embedded these policy choices made sense. But highways through cities, of course, also destroy urban neighborhoods, make mixed-use development more difficult, and create sprawl and its attendant social isolation. You can either read the Power Broker or have grown up in suburban Atlanta to understand that. So if your goal is vibrant city life, highways-and subsidies-don’t make sense. I fear that we are currently building highways and gated communities in cyberspace without thinking about their potential side effects. We are only concerned with efficiency, not sustainability. Continue reading “Network Architecture, Social Media, and Social Justice: Some Preliminary Thoughts”

Attention White People: Your Economic Grievances Do Not Excuse Your Racism

My wife and I did GOTV in Las Vegas on Monday and Tuesday. Half an hour before the Nevada polls closed on Tuesday night we were knocking on doors when I suddenly noticed a red laser pointer on my chest. I looked around, then saw it move to my wife. (For those of you who don’t know, laser-sighting mechanisms are used on firearms.) We were being sent a message. We crossed the street and the red dot kept reappearing. I looked back and saw someone standing in the shadows of a cracked open door aiming the laser pointer (attached to who knows what). We called an Uber and left.

I continue to be shaken by this, but I also know that it is an exceptional moment in my life. At no point did I feel like I was without recourse. I had the money to call someone to get me out of there, and I know that if I had called the cops, I would be believed. I’m white. (My wife is brown, but, in these kinds of situations, for reasons that are both sad and distressingly normalized, I am the designated spokesperson for our family.) I know that my voice counts. When I talk to officials, my opinion isn’t automatically viewed with suspicion, or qualifiers, or modifiers. I have full citizenship and freedom-by which I mean, as Nina Simone described in the excellent documentary What Happened, Miss Simone?, that I am free because I am (generally) not afraid.

Flash back about 15 years. I was hanging “remember to vote” literature on people’s doors early one morning in Echo Park, a neighborhood in Los Angeles. A friend of mine was running for city council; his father, at the time, was District Attorney. I saw a black-and-white police car speeding towards me on the wrong side of the road. They pulled up on the sidewalk in front of me, jumped out, and yelled “Stop!“ I looked around, wondering who was in so much trouble. Then they drew their weapons and yelled “Stop!” again, at which point I realized I was the one in trouble. I was cuffed as one officer, weapon drawn, yelled “What are you doing?” I said, “Handing out flyers for Eric Garcetti.” He yelled the same question again; I gave the same answer. He was so convinced that I was doing something wrong that it took a while for the data to sink in with him and his partner, even though my story checked out at every point: all the campaign lit in my bag, the button I was wearing, the lack of contraband. In the meantime I had to deal with passersby in cars and on foot staring at me, the man in cuffs, being interrogated by the cops.

This, too, shook me, but it was also, as I knew even then, a one-off event. I didn’t have anything to hide. I even knew the DA. I thought that when the cops were coming, they weren’t coming for me. This is because I’m so white that when I see the cops, I think, instinctively, that they are there to protect me. That when you call them, you will be believed. That good things will happen once they get there. I actually feel like the experience of being stopped wrongly has given me some insights that most white people don’t have-what it is like to be telling the truth but to be powerless (at least initially) to make someone believe you. To be hassled and shamed. To have someone point a gun at you. Even though I am an insider, it scared the hell out of me. I have no idea what it would feel like to be an outsider, to have that happen and not “know people” who would help me. To have that be more than just one story, but, instead, just a part of life-not even that noteworthy. My telling this story as an unusual event is itself part of the privilege of being white.

Continue reading “Attention White People: Your Economic Grievances Do Not Excuse Your Racism”

Criminal Law Professors: Think Globally, But Try to Write (State and) Locally

Last week, via the always-informative Doug Berman, I read with great interest about the latest Quick Facts reports from the U.S. Sentencing Commission-in particular, the one concerning Felon in Possession of a Firearm offenses (pdf). However, a quick glance at the quick facts leads me once again to conclude that the federal system commands a disproportionate amount of attention among legal academics. Given that almost all the criminal justice action in the United States occurs at the state and local level (except for crimes committed on national park land, interstate crimes, certain drug offenses, securities fraud, etc.), it is baffling to me that so much criminal justice scholarship focuses on the federal system. Many years ago I joked with my friend and colleague John Pfaff (a must-follow on Twitter) that we should channel our mutual frustration with this focus into a paper called Enough is Enough. While I understand that there are interesting issues at the federal level-and while I appreciate and respect many of the scholars doing work in this field-the fact is that time spent on the federal system is time not spent on the much larger-and more significant-state and local systems. This post is a plea for scholars-and those who publish them-to consider doing/publishing more work on state and local systems.

In this post I will focus on two sets of data that, in my view, illustrate the disproportionate focus on the federal system: articles written about the Armed Career Criminal Act (ACCA) and articles written about Blakely and Booker (two cases that affected state and federal sentencing guidelines under the same rationale). I will also suggest some theories about why legal scholars focus on the federal system-but, just to preview, it’s not because the federal system is bigger (its only about 13% of the total prison population and there are no jail sentences or parole), nor is it because there’s a Supremacy Clause in criminal law. Continue reading “Criminal Law Professors: Think Globally, But Try to Write (State and) Locally”

Bayes, Race, and Police Killing

Much has already been written about the draft paper by Roland Fryer, An Empirical Analysis of Racial Differences in Police Use of Force. Fryer makes several findings in his paper, but says the “startling” finding is that “Blacks are 23.8 percent less likely to be shot by police, relative to whites.” (p24-though Fryer observes that non-lethal force is much more likely to be used against blacks than whites). What he means by that is not that more white people in his study were shot at than blacks-indeed, in his data (Table 1C), 46% of total police shootings were of black people (as opposed to 24% non-black, non-Hispanic) and 52% were black in Houston, where he did much of his detailed analysis (compared to 14% non-black, non-Hispanic). The analysis he performs says for any given encounter between cops and citizens, whites are more likely to be shot. But controlling for police encounters removes much of the disparity of interest, as others have said (see Michelle Phelps’ take here, and another take here), and as Fryer himself acknowledged in a Times Q&A).

I’m going to add a slight methodological wrinkle based on my sabbatical project: learning Bayesian data analysis, but know that the definitive Bayesian analysis has already been written by Cody Ross, A Multi-Level Bayesian Analysis of Racial Bias in Police Shootings at the County-Level in the United States, 2011-2014. This is just the Cliff’s Notes version. But I figure that’s suitable for a blog. So what could a Bayesian approach help us with?

Bayesianism, in my view, helps surface some common problems about how to analyze results. Bayesian analysis is particularly good for conjoined probabilities: the probability that, given X, Y is true (written, reading right to left, as p(Y|X), leading some to translate it to plain English as the probability of Y given X). The initial thing to note is that p(Y|X) is not the same as p(X|Y). Given that I can see the sun, the probability that it is daytime is high (unless I’m in outer space). But it’s less likely that, given that it’s daytime, I can see the sun (I might be indoors, it might be cloudy or foggy, the sun might be behind a building, etc.). But Bayesianism is also particularly good at expressly taking into account how we should read evidence like Fryer’s, and why “controlling” for the number of stops obscures more than it reveals.

Let me give an example. Let’s say there’s a fatal, but rare, disease, where the probability of any individual having the disease is 1 percent (in equation form, p(D)=.01). We have a test for it, but our tests aren’t that great. If you have the disease, your likelihood of testing positive for it is 80 percent (p(Pos|D)=.80). If you don’t have it, you are likely to get a false positive about 60 percent of the time (p(Pos|not D)=.6). Here’s the pre-Bayesian, “blacks and whites are stopped roughly equally” question: if you get a positive test, is it more likely than not that you have the disease?

Continue reading “Bayes, Race, and Police Killing”

Pay for Performance in Prison

This week I’m headed out to the Law and Society meeting in New Orleans, where I will be participating in two panels and avidly attending many more. The title of this post refers to a draft of my most recent article, Pay for Performance in Prison: Using Healthcare Economics to Improve Criminal Justice. I’m presenting this paper as part of a roundtable discussion on Friday at 4:45, Rationing Criminal Justice (I’m also participating in a roundtable Thursday at 12:45 on Marijuana Federalism).

Here is the abstract of the paper, as well as some thoughts on the future of the project:

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A Misdirected COMPAS

I’m generally a fan of the use of actuarial tools in criminal justice. These tools help estimate the risk of a given event (say, failure to appear in court or rearrest) based on factors that are statistically correlated with that event. Part of my support for actuarial tools comes from my belief that criminal justice is as susceptible (if not moreso) to implicit bias as other human endeavors, and that, without necessarily meaning to, judges and prosecutors, who hold the majority of power in the criminal justice system, will implicitly make different evaluations of people based on their race. Discretionary decisions are hard to review. Actuarial tools can guide or replace that discretion with something that, in theory, is more accurate, transparent, and fair. Actuarial tools also fit well into the overall move to justify practices with evidence.

I am therefore extremely troubled to learn (via Doug Berman) about this study of the COMPAS risk assessment tool undertaken by Pro Publica (methodology here), which found that, as used in Florida, the predictions of risk were inaccurately biased on the basis of race. COMPAS, which stands for Correctional Offender Management Profiling for Alternative Sanctions, is the intellectual property of a private corporation, Northpointe. Jurisdictions using COMPAS enter data on a number of issues and a proprietary, non-public algorithm converts these data points into a risk score. By comparing COMPAS risk scores with criminal records, Pro Publica reporters were able to assess how accurate the predictions were. The results? “In forecasting who would re-offend, the algorithm made mistakes with black and white defendants at roughly the same rate but in very different ways,” over-estimating risk for black defendants (when compared with actual reoffending rates) and under-estimating risk for white defendants (when compared with actual reoffending rates). This means, in practical terms, that black defendants were unjustly denied favorable release terms and white defendants were unjustly granted them.

Because I am, in general, in favor of risk assessment tools, I want to take this opportunity to clarify that being in favor of evidence-based practices and risk-assessment tools does not mean that all tools are equal, nor that they can be installed without modification or monitoring. It is extremely important to have good tools, good training, and good practices.

There are a few best practices that should always be followed. Continue reading “A Misdirected COMPAS”

Indian Blood

Part of the fallout from the Elizabeth Warren-Donald Trump tweet feud is the reintroduction of Warren’s contested claims of Native American ancestry. Without getting into the details of Warren’s claim, with which I am unfamiliar, this provides an opportunity to discuss how such claims are established (at least with respect to five tribes).

The National Archives maintains a website for researching Native American heritage with various historical documents. In this post, I’ll focus on the “Five Civilized Tribes in Indian Territory” (Cherokee, Creek, Choctaw, Chickasaw and Seminole) listed on the Indian census known as the Dawes Rolls (1898-1914). The “Five Civilized Tribes” are the tribes that were forcibly resettled into Oklahoma (many on the Trail of Tears); being listed on the Dawes Rolls was proof of tribal membership and entitled one to an allotment of land. Of course, even these historic rolls depended on accurate recordkeeping and accurate initial assessment, which was difficult given the circumstances. Careful recordkeeping was but one casualty of the genocide of Native American people.

The Dawes Rolls (and similar materials) now matter for those seeking to establish a claim of tribal membership. The Archives has a helpful tutorial that shows users how to track their ancestors using the example of a man named Napoleon Ainsworth, a member of the Choctaw tribe.

As it happens, Napoleon Ainsworth was my grandmother’s grandfather.

Continue reading “Indian Blood”

Volunteer Prosecutors

I recently had coffee with a former student who told me this story about her post-graduate employment.  She worked at a local DA’s office for a few months as a post-bar clerk, then as a volunteer. She had to live at home and go on MediCal (California’s low-income medical program).  While a volunteer she basically had all the responsibility of a paid employee, including cases that were “hers”—except she wasn’t necessarily expected to work a full 40 hours. I have another student who got hired at a local DA’s office after “volunteering” with no pay for an entire year. Another of my former students had three jury trials as a volunteer. Some counties do pay either a stipend or an hourly rate, but even then the volunteer DA’s employment status is like that of contractors, with no benefits.

I found this troubling. When I asked some other criminal law professors around the country if they were aware of anything similar in their jurisdictions, many of them had. Here, for example, is New York’s program, and here is an Above the Law post on a federal program.  Young lawyers, many with significant educational debt, doing prosecutions for no money.

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Re-Imagining Criminal Justice

I met recently with a nonprofit organization that seeks to reduce prison usage in the United States.  After our meeting, I tried to come up with a list of ideas and policies that I think should have wider circulation amongst the body politic that would help to promote a deep re-thinking of mass incarceration.  I thought I would share these ideas here, knowing that I’ve probably left a bunch of things out and knowing also that I probably need to make some other things clearer.  I welcome everyone’s feedback!

Click for the list…. Continue reading “Re-Imagining Criminal Justice”