Engaged Scholarship Q&A: Hadar Aviram

In our Engaged Scholarship series, we speak with members of the UC Hastings Law faculty who are influential scholars, advocates, and thought leaders. Our first conversation is with Thomas Miller Professor of Law Hadar Aviram.

Hadar Aviram is an interdisciplinary scholar whose work is focused on civil rights, law and politics, and social movements. Over the past year and a half, she has been a key voice in the national conversation on mass incarceration, parole, prison overcrowding, and COVID. She is currently co-writing a book on that cluster of topics, which is under contract with the University of California Press. Two of her previous books are Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole and Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment. This semester, she is teaching Criminal Procedure and Theoretical Criminology.

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Q: You’re a lawyer, a teacher, a researcher, an author, and an advocate. How do these identities interact in your life?

A: Each piece of my work informs the other. My scholarship is informed by real problems happening in the world and it also tries to solve those problems.

There are seasons to every academic career. When I was younger, I was more interested in being a first-rate theoretician and exploring questions for the sake of the questions. And that, of course, has value. But the older I get, the more I care about providing solutions to the serious problems we see in the real world.

Q: You’ve studied and written about a wide range of issues — from animal rights to systems theory. Over the course of the pandemic, you’ve largely written and spoken about the correctional system, as COVID has brought prison overcrowding to public light. What brought you into your work on mass incarceration?

A: At first, I worked as a lawyer, defending soldiers in military courts in Israel. My law school education was not critical in the sense that it didn’t expose how wage inequality, poverty, deprivation, and discrimination impacted the legal system. I was exposed to that in practice — and it was quite a shock. Working as a defense attorney, I learned how the legal system further oppressed people at the bottom of the social ladder.

After about four years in practice, I started my master’s in criminology. All of a sudden, I gained this new view and vocabulary to understand all the things I was seeing. That led me to pursue a PhD, in which I studied criminal justice through a social science lens.

Q: You have special expertise in California’s correctional system. What do you think people who live outside of our state might be surprised to learn?

A: Generally speaking, people outside of California think of California as a blue state, which may lead them to believe that everything that happens here reflects progressive ideologies. This could not possibly be less true about our correctional system. Our correctional system is beyond backwards, both in terms of absolute numbers—we have the largest correctional system and death row in the country—and our state- and county-level policies.

Two elements of our political culture explain why this is true. The first is that California is very polarized: Our blue areas are very blue and our red areas are very red. There is quite an assortment of different policies; different counties behave in dramatically different ways.

…people outside of California think of California as a blue state, which may lead them to believe that everything that happens here reflects progressive ideologies. This could not possibly be less true about our correctional system.

The second is that California is an extremely populistic state; we govern quite a lot via citizen initiatives and we’ve moved aggressively in that direction since the 1970s. Policies that are managed through the legislature and expert committees in other states are managed by referendums here, through this high-pitched public dialogue. I write about this in my latest book, Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole, where I explain how the Manson murders and similar high-profile, sensational crimes have shaped the way corrections look in California. Citizens are swayed by the emotion that these sensational cases generate.

California looks very different on the local and state level than it does when we face the nation. I can’t even tell you how difficult it has been for me to explain to people on the East Coast that the folks they consider heroes of the resistance to President Trump — Xavier Becerra, Gavin Newsom — have acted in incredibly villainous ways within our state, particularly in the past year. They have neglected to pursue policies that could have saved lives behind bars.

Q: Where does the movement for prison reform stand right now?

A: What could have taught us more about the fact that the world is not zero-sum than a pandemic? As I’ve talked to people about the scale of releases that are needed to prevent the disaster that happened in California prisons, what I’ve heard is, “Well, there are people who are more deserving” — like there are a set number of deaths that are going to happen and it’s going to be them or it’s going to be you. But if people get sick behind bars, then you and your loved ones get sick also. In refusing to act, you choose to incubate this disease.

Prisons have high transmissivity and the staff in county jails and state prisons have far lower vaccination rates than the general population. They’re going in and out of prisons, stopping for food on the way home, and getting themselves and their families sick. It’s not a big mystery how this happens.

What could have taught us more about the fact that the world is not zero-sum than a pandemic?

You would think this pandemic would lead us to conclude that, yes, we’re all in the same boat; regardless of whether I believe someone is worthy or righteous, if they get sick, I get sick too. That recognition has not happened.

My first book, Cheap on Crime: Recession-Era Politics and the Transformation of American Punishment, was about how the 2008 recession changed the criminal justice conversation — not because we were suddenly feeling so humane, but because we realized we couldn’t afford to lock up so many people. After that, we started moving the needle in the right direction. But it has moved far too slowly to protect prisoners from medical catastrophe, as we’ve just seen.

Q: Earlier this month, the UN IPCC released another terrifying climate report. There are so many huge issues in need of our attention that even people who care can feel immobilized. How can we motivate each other to push for change?

A: For any revolution to succeed, lots of different things need to happen at the same time. Political advocacy needs to happen; we must continue to apply pressure and lobby the legislature and have quiet talks with staff at the governor’s office. Just recently, we’ve introduced and advocated for a bill before the assembly [AB-1210] to change the composition of California’s Board of Parole Hearings. This idea came out of my work on Yesterday’s Monsters, my book about parole. Virtually all the people who currently serve as parole commissioners are former cops, police chiefs, sheriffs, and correctional officers. There are no parole commissioners from the therapeutic professions, education, and so on. These people could add so much because you need to know a lot about substance abuse, trauma, mental health, and all sorts of things as you evaluate parole requests — and at present, that knowledge is just not there. But we can improve it.

And at the same time, we must continue pressing in the courts and continue hoping courageous judges will step up. There is a recent article by Lee Kovarsky and Brandon Garrett [“Viral Injustice,” forthcoming in the California Law Review] looking at COVID and the prison decisions courts have made nationwide. Their research shows that courts are afraid to let people out; most remedies offered are very narrowly tailored. Judges have generally been hesitant to find constitutional deficiencies or to order releases.

There is room for everybody in this project because every kind of work is sorely needed.

We have seen some exceptions—for instance, the decision that my [In re Von Staich] team got at the Court of Appeal from Justice Kline, who said the California Department of Corrections and Rehabilitation had to shrink San Quentin’s prison population by 50% in order to control COVID. That was a very courageous decision. Of course, it then got reversed, and we’re now in the fact-finding court again, waiting for an order. But we must continue pressing, because we can only get those courageous judgments if we have hope it will happen.

Finally, there is the public education and advocacy piece. I don’t know how many people realize that we have decades of extremely robust criminological research showing that people age out of violent crime in their mid-to-late 20s. We’re holding huge numbers of people in their 50s, 60s, and 70s — and these are people whose bodies have aged much faster than they would have on the outside, as prison is a brutal environment. If these people were released from prison, you would be paying a lot less, but you would not be less safe. Indeed, you would be safer from disease because they would no longer be in an environment where they are likely to get sick and get you and your loved ones sick. There’s a lot of public education along those lines that needs to be done.

Q: Advocacy and academia both have notorious burnout rates. You’ve recently written movingly about reclaiming your health and some of the practices that have helped you feel grounded. What have you learned about yourself this year?

A: My health has deteriorated in a serious, serious way in the course of my work. I made a few key decisions during the pandemic, one of which was to put my health first, because that is what allows me to help other people. Of course, I’m speaking from an extremely fortunate place — I don’t have a loved one behind bars, my family is well, and academics largely kept our jobs.

At the same time, if you are fortunate, the temptation is to say, well, worrying about my stress is a bit precious and other people have it much worse. Which is of course true, but stress is real and it can kill you. There is a mounting pressure that results from having multiple conversations every day with people that are telling you about horrific things happening in the world. To keep your own resilience and your own little torch of hope lit so you can speak for them is extremely important.

If you are fortunate, the temptation is to say… other people have it much worse. Which is of course true, but stress is real and it can kill you.

I’ve taken steps to repair my health and it’s gotten much better. Now, I analyze: What is the optimal contribution I can make in this situation? Which contribution will advance the movement the farthest without making me sick or making my loved ones suffer? Talking for the sake of hearing yourself talk or having a clever soundbite on Twitter is not useful. This is not where the real suffering is happening, and it is not where the real improvement will happen. During the pandemic, many of us learned this is not where we will be of service.

I’m not Christian, but one of my favorite spiritual scriptures is the Prayer of St. Francis: “Lord, make me an instrument of thy peace.” I like to wake up and think, Okay, how can I be an instrument of God’s peace today? What’s the best way for me to do that, without my ego, my stuff, or infighting getting in the way?

COVID has exposed a lot of our failures — the problems in our educational systems, in our healthcare systems, the travesty of how we treat people in our prisons. We have also seen each other’s resilience and compassion.

At the turn of the new year, I got a “Season’s Greetings” postcard from prison on which someone wrote, “Thank you for being our voice. We so appreciate it.” I was happy that people inside know we are trying to help. But I also just thought about the fact that this person is living in what is essentially purgatory, yet he is still extending me kindness and grace. It’s absolutely stunning.

Many of the people leading this movement—for instance, in the Stop San Quentin Outbreak Coalition—have just been released. You would think a person getting out of prison would want to find a place to live, get a job, and start repairing their relationships. Some of these people have been out of society and away from their families for decades. But they immediately roll up their sleeves and work for the friends they left behind. How beautiful is that? You build on that work, and it helps you keep going.

Q: Many of us are having these conversations with our families and closest friends, but you’re sharing your experience in the public sphere. How did you make the decision to be known beyond your academic and legal work?

A: I think it’s good to be integrated. One thing that we’re all tired of, particularly in the wake of #MeToo, is that people who have hurt others so often appear to be virtuous. When you find out how they conduct themselves in private, it makes you cringe. I strive as much as possible to be genuine: to be the same person in public that I am in private.

Q: What are you currently working on?

A: Right now, my partner, Chad Goerzen, and I are working on a co-authored book about COVID and California prisons, under contract with UC Press. It will be called FESTER. Essentially, our book uses carceral geography as a theoretical framework that you need to think about prison as a real space. Not just a jurisdictional or legal construct, but as something that actually exists in the physical world—a place that has a gate that people come in and out of. The book will include interviews, participant observations, legal analysis, and transmissivity models. Thankfully, so many people have done vitally important work on what’s happened. UCLA Law COVID-19 Behind Bars Data Project has collected lots of data and UC Irvine Prison Pandemic has collected oral histories from people who called in to share what’s been going on behind bars. We will rely on those and many other stories.

Our book uses carceral geography as a theoretical framework that you need to think about prison as a real space.

I’ve been working on a piece that was started before the pandemic. The piece looks at animal rights activists who engage in direct action, which is to say they break into factory farms and release animals that are sick or dying from the horrific conditions inside. Several of these activists have found themselves charged in state and federal courts with trespass and larceny and all kinds of criminal offenses. They are trying to leverage these criminal trials, in which they themselves are the defendants, for animal liberation. And I’m working on another piece about direct action for animals and repercussions through criminal justice channels; I find this intersection fascinating.

Q: It’s incredible that after all this time in lockdown, you’ve signed on to write a book with your partner. That’s a lot of togetherness!

A: Working together has actually been really fun! My partner is a fantastic data scientist; he’s not an academic, but he has published extensively in his field. This is the first time we’ve had a professional collaboration in addition to our nearly 20-year personal partnership. And not only is it fun, it’s comforting that, when you read the news or get a piece of data, there’s somebody in the house who not only knows what you’re talking about but is just as engaged in what’s going on as you are. That’s a very special feeling.

Q: What do you hope each student takes away from your class?

A: This is an incredibly important moment to study criminal procedure. The conflation of the pandemic and the murder of George Floyd has made a lot of people aware of things that those in the field have been aware of for decades: that the encounter between the police and the citizen crystallizes the government’s power in its most pure form and that we must ensure the police doesn’t overreach in those situations. My hope is that people will learn to engage with the news they read from a more knowledgeable frame of mind.

For the folks who take criminology, one cool thing they can take away from it is interesting theoretical frameworks and vocabularies to understand conversation about crime. For example, we’ve seen a lot of conversations in San Francisco about the growth of the drug markets or the increase in domestic violence during shelter in place. I want my students to ask: Why is that happening? What is it about this situation that could lead to a rise or a fall in crime rates? Is this a crowded battle for opportunity? Is crime a matter of personal pathology or a matter of social pathology? Does every society have crime?

Being engaged with your own life allows you to cultivate the attention, compassion, and inquisitiveness you need to improve the lives of other people.

During shelter in place, other crimes went down. There is, for example, less opportunity to burglarize someone’s house while everybody is at home. These increases and decreases raise questions about not only why people commit crimes, but why certain behaviors get defined as crimes while others don’t.

We might think about the “safe sleeping sites” we have all around the city. How is it that we’ve come to criminalize the situation of not having a home? How do the behaviors that are adjacent to it, such as urinating in the street, become crimes? The students will gain an interesting framework to examine everything unfolding in public space and to be more inquisitive.

Q: What’s the most important piece of wisdom you’ve received?

A: The most important thing I’m working through—and that I might advise my students—is to be 100% present and invested in what is going on in your life. Live at the edge of your seat. Have that curiosity. Have that inquisitiveness. Have the energy to root for the outcomes you’re looking for. Being engaged with your own life allows you to cultivate the attention, compassion, and inquisitiveness you need to improve the lives of other people.