San Francisco Public Defender Jeff Adachi.
Photo by Luke Thomas
By Jeff Adachi
June 5, 2009
One of the ongoing debates of late surrounding the Community Justice Center (CJC) court concerns the question of how to force a person to change their behavior. The CJC might be viewed as a social experiment to determine whether coercion is effective in changing behavior. Will an alcohol addicted person who is hailed into court for passing out on the sidewalk stop drinking because he or she is in court facing some type of sanction?
What about a mentally ill person? Will judicial sanctions keep them from acting outside the law or engaging in destructive or obsessive behavior directly related to their mental illness? What about the crack user who continually endangers his health and drains his pocket book in order to get that one last hit? Will that person be more likely to stop their drug use if they are subjected to punishment? What about a homeless person who, night after night, sleeps on the sidewalk?
I recently met a brilliant author and political historian named Arthur Evans who wrote a book titled “Critique of Patriarchal Reason.” In Chapter Two, in a section titled “The Coerciveness of Law,” Evans writes, “whereas customs hold sway through social pressure, and personal values motivate through individual feeling, laws coerce through governmental or judicial machines set up to enforce them.”
Most people choose to comply with the law because that is how they have been conditioned. Laws that forbid malum in se conduct (conduct that is “bad” in and of itself) are usually followed by those who do not wish to violate social norms or customs that they have been taught. Other laws are followed because of personal values. A person who purposely throws an empty cup of coffee from his or her car while driving does not share the personal values of a person who strongly disfavors littering. Only if the person is “caught” and sanctioned will the person be motivated to change their behavior.
This eventual and resulting change in behavior, of course, assumes the litterer’s rational thought process. For a person who acts out of mental illness, or the kind of mental derangement that comes with abusing drugs, irrational decision-making is rarely influenced by fear of sanctions. Most people who are addicted to drugs do not think, “I should stop using or selling drugs because I might go to prison.” If that were the case, we would not have 60% of the people in prison there for using or selling drugs.
Most of the new cases that appear at the CJC fall in the category of loitering, illegal lodging, obstructing the sidewalk, and possession of paraphernalia and marijuana, petty theft and “public nuisance.” Those less likely to find their way into the CJC are litterers (only 1 case thus far), graffiti artists (3 cases), prostitutes (2 cases) and those fighting on the street (1 case).
As Evans writes, “[a] certain arbitrariness is likewise involved in the making of the laws . . . whatever the commanding entity decrees, is law. Hence in both their creation and execution, laws are arbitrary and coercive.” Many people think laws against possessing a small amount of marijuana are less about right and wrong and more about enforcing a shrinking minority view that marijuana should be outlawed in order to protect society from its harm. On the question of the law’s moral judgment, Evans argues, “laws need not have anything at all to do with right and wrong,” and “even when laws are passed to enforce supposedly universal values, they often turn out to re-enforce the value system of the principal backers of the commanding entity.”
So what are the values of the commanding entity? At the CJC, it is largely the police, who decide which cases are sent there. The police would probably say that they are responding to the needs of the greater community, who expect and demand that certain laws are enforced. But the laws that are enforced are really a combination of what the legislators have decided the laws should be, what laws the police decide to enforce and of course, what crimes are committed in a particular neighborhood.
Evans speaks from personal experience. As a pioneering civil rights activist in New York, he organized colorful and effective protests against unfair treatment and laws against gays and lesbians. His successful protests included taking over the clerk’s office and offering only gay (not straight) marriages to surprised callers and enlisting a troop of tuxedoed gay rights activists to greet then New York Governor Nelson Rockefeller at the opening night of the Opera. (He was hauled away.) He remembers the days when gays and lesbians could be arrested for showing public affection or violating the infamous “sodomy” laws that outlawed same-sex consensual relationships on the ground that these were “crimes against nature.” Ironically, these laws were justified on the grounds that they would deter homosexuality and coerce persons not to engage in same-sex relationships.
While it may be debatable whether laws punishing people for sleeping on the sidewalk and loitering are inherently unfair, when we begin criminalizing status offenses and using that as leverage to try and coerce behavior, we are enforcing the culture and demands of a commanding entity. A homeless person who commits a crime because of their status as a homeless person who is living on the streets becomes a ward of the court, and is then required to modify their conduct to adhere to certain conditions, i.e. find a job, live in a shelter, enroll in classes or seek public benefits. Of course, this can all be said to be in the best interest of the person.
CJC case-in-point involves a woman who is in her later years and was charged with a theft offense. She had been ordered to participate in a reentry program for women, but had not complied with the program requirements. Her case was then transferred to the CJC, and she was linked with a social worker who helped identify her needs, and recommended engagement in services. Her treatment plan included AA meetings, meeting with a housing counselor and attending a reentry program. While these needs are pressing, the woman was recently evicted from her apartment and will soon be homeless. Although she receives social security, her monthly payments are much less than her rent. As a result, most of her time is spent trying to cope with her impending homelessness. CJC can offer a temporary shelter, up to 7-days, but there are no easy fixes beyond this. Although she is good about showing up for court, there is no cure for the poverty she is struggling against. The CJC judge has given her speeches and tried to encourage her to turn her life around, but when it comes to dealing with issues of poverty, there is little the court can offer. Overwhelmed with her housing problems, she has not complied with her treatment plan. Unfortunately, no amount of coercion will likely change that.
Whether the law can be used effectively as a tool to change long term behavior and coerce specific outcomes is questionable, particularly when the person does not want to change or lacks the rational decision making process necessary to modify their behavior. Putting substance abuse and mental illness treatment aside, crimes involving poverty are not immediately solvable unless substantial resources are made available. Tangible needs cannot be satisfied by speeches and encouragement. Housing (as opposed to shelter), treatment on demand, food and health services do not magically appear, even at the Community Justice Center.
The Hunger Site
June 7, 2009 at 2:19 pm
I hope we can all put some effort into bringing this thread back into focus, on the subjects raised at the beginning by Public Defender Jeff Adachi.
The most germane and informative post on these subjects was from Ralph, early on above.
Ralph points out that a modification of Laura’s law, along the lines suggested by State Senator Leland Yee, would benefit both our neighborhoods and the people with mental problems who are out of control.
Can we all agree that the strategy suggested by Ralph is worth a try?
June 6, 2009 at 7:34 pm
Luke,
Thanks for your thoughtful post above. You ask reasonable questions and make reasonable comments, which I will try to answer.
You say:
“it would be good to know who you are referring to when you say: ‘there are progressives in SF who are opposed to making our neighborhoods safe, clean, and peaceful.’â€
I’ve been working for many years to improve the well-being of my neighborhood in the Haight.
The strongest consistent organized opposition has come from the Haight Ashbury Neighborhood Council (HANC). This is a front group for Calvin Welch, a long-time progressive patriarch who views the Haight as his personal fief.
Resistance has also come from the “S.F. Bay Guardian,†the propaganda organ of longtime progressive patriarch Bruce Brugmann.
Outrageus personal smears have come from certain ideologues in the Harvey Milk Democratic LGBT Club, especially an operative for former Mayor Art Agnos.
When Matt Gonzalez was our supervisor, he scoffed at concerns of neighbors to improve effective law enforcement in the Haight. Gonzales even opposed stay-away orders issued against known drug dealers. I kid you not.
You say:
“responsibility for public safety and sanitation falls under the purview of the mayor’s office.â€
SF has not had an effective mayor for decades. The cumulative ineptitude of recent mayors has aggravated the problem.
The supes have not been any better, especially since the take-over of the board by progressive males in 2001.
For example, Tom Ammiano, when a supe, opposed an ordinance to outlaw public drinking in the drunk-infested Panhandle. He said the ordinance was “an attack on the homeless.â€
Look at the skimpy record of the supes’ Public Safety Committee. The big priority of the current chair, David Campos, is to restore the city’s discredited practice of providing sanctuary to young illegal immigrants who are suspected felons. Yikes!
There are many more examples. I have many pages of detailed notes on the subject, enough to write a book.
The progressives in this town are anti-law-enforcement and anti-sanitation.
You say:
“It was Progressive Supervisor Ross Mirkarimi who forced Newsom’s hand on implementing foot patrols…â€
Ross Mirkarimi has been an improvement over Matt Gonzalez. However, what effective difference has Mirkarimi’s push for foot patrols accomplished? I don’t see any.
The Haight had the best record with foot patrols under former Capt. James Long in 1996, before Ross Mirkarimi became a supervisor.
The progressives in the neighborhood hated Capt. Long. They went around with camcorders, following closely after the beat cops, egging them on, hoping they could catch some violations on the cops’ part.
Eventually Capt. Long became demoralized and left. The Haight has not had effective foot patrols since then.
You say:
“And let’s not forget it was Newsom who attempted to veto Mirk’s foot patrol legislation.â€
Gavin Newsom is a mediocre mayor, as were Willie Brown, Frank Jordan, and Art Agnos. You can have ’em all.
You say:
“I find it interesting that you have a propensity to blame all of society’s ills on a political philosophy.â€
One hundred percent of the opposition to creating effective law enforcement in our neighborhoods has come from people who identify as progressives.
The progressives who dominate City Hall today are as inept and suffocating as were the moderates who dominated City Hall when Dianne Feinstein came to power in 1978.
That’s what happens when any clique enjoys too much power for too long.
I say, play the City Hall cliques off against each other. Let’s value people over politicians.
You say:
“Progressivism is about change and reform…â€
The progressive politicians of SF have become the fixtures of a failed status quo.
It’s time to reform the reformers.
June 6, 2009 at 6:41 pm
Ruth,
We’re still waiting for you invite Arthur into the conversation. Is he a coward or, like, what? Tell us more about this man.
h.
June 6, 2009 at 6:20 pm
Ruth, it would be good to know who you are referring to when you say: “there are progressives in SF who are opposed to making our neighborhoods safe, clean, and peaceful. ”
Also: “How could neighborhood safety, sanitation, and peace not be progressive values? Yet some SF progressives claim they are not.”
And before you answer, keep in mind responsibility for public safety and sanitation falls under the purview of the mayor’s office.
It was Progressive Supervisor Ross Mirkarimi who forced Newsom’s hand on implementing foot patrols in areas most impacted by violent crime, efforts that are now resulting in far fewer homicides and other crimes.
And let’s not forget it was Newsom who attempted to veto Mirk’s foot patrol legislation.
Also, I’ve not met any Progressives who are opposed to improved public safety or quality of life concerns, and I find it interesting that you have a propensity to blame all of society’s ills on a political philosophy.
Progressivism is about change and reform, about upending the established status quo and making a path for new solutions to old problems, the same old problems you keep harping about ad nauseam.
June 6, 2009 at 5:33 pm
It has always puzzled me that there are progressives in SF who are opposed to making our neighborhoods safe, clean, and peaceful.
How could neighborhood safety, sanitation, and peace not be progressive values? Yet some SF progressives claim they are not.
If loggers go in and destroy a forest habitat, should they not be held accountable for their behavior?
If addicts, alcoholics, and drug dealers go in and destroy an urban neighborhood, should they not be held accountable for their behavior?
Isn’t the destruction of a neighborhood as terrible as the destruction of a forest grove?
Isn’t respect for one’s surroundings a basis of right living?
June 6, 2009 at 4:42 pm
So, Ruth,
How long have you known Arthur Evans? Could you get him to post here and tell us you and he are not the same person?
h.
June 6, 2009 at 3:44 pm
Follow-Up Note –
Those who claim that Arthur Evans has not put his name to his views did not carefully read the article by Jeff Adachi.
Adachi points out that Evans is the author of “Critique of Patriarchal Reason.” You may want to put this title in Google and see what comes up. You can’t get more out of the closet than this.
By the way, Paul Oskar Kristeller has called Evans’ book “a major contribution to the study of philosophy and its history.”
Those who have never heard of Paul Oskar Kristeller may want to put his name in Google, too, and see what comes up.
June 6, 2009 at 12:22 pm
“Senator Leland Yee sponsored Senate Bill 1606, which if it had passed, would have removed a number of costly and burdensome requirements in Laura’s Law … ”
– Ralph
Thanks for your thoughtful comment. It goes to the heart of the matter.
The city needs to have some mechanism for reining in people who are out of control and who refuse treatment. Laura’s law, or some adaptation thereof, would fill the bill.
Unfortunately, any push to implement Laura’s law for SF will immediately run into stiff opposition. There are those here who scoff at the very idea of enforcing minimal standards of civilized behavior.
If their attitude had prevailed throughout history, we would all still be living in caves and eating each other for lunch.
It’s time to move SF out of the caves.
June 6, 2009 at 10:29 am
Arthur,
I take pride in who I am and what I do. That’s why I sign my name to everything I write. Dump the ‘Ruth’ facade and sign your product. Or, are you ashamed of your own name as much as you are about everything else about yourself?
Ruth R. Snave …. C’mon Ouuuuut!
h.
June 6, 2009 at 8:43 am
H Brown is right!
Arthur Evans wrote “Mein Kampf”!
And he is responsible for all the hate and intolerance in the world today!
And he put the witch up to taking Toto, too!
Let’s all stop reading him. Otherwise, diversity of thought will break out here. Imagine the consequences!
June 6, 2009 at 7:49 am
Jeff,
Your post is absolutely amazing. You do realize that ‘Ruth R. Snave’ who was first to answer and praise you is Arthur Evans? He just rearranges the letters to his name to create a false front because no one will read him otherwise.
That’s because he’s been preaching hate and intolerance around these parts for the last several decades. No one hates or has less sympathy for the people you defend than Arthur Evans. Or, is it Ruth R. Snave today?
You been snookered, counselor. What’s next? Perhaps you could review Mein Kampf and point out the best ideas contained therein. I’m sure that Faith Le Lord will respond positively.
Sincerely,
Baron h. World
June 5, 2009 at 10:11 am
Better:
But tomorrow, many city resource centers which do excellent work for the homeless day in and day out, year in and year out, will be making plans to shut for good– with no permanent replacement services in sight.
June 5, 2009 at 10:02 am
In Singapore, the government has been largely successful shifting the cultural norm from a me-first mindset to a shared civic responsibility. It did this (here simplifying) through numerous public campaigns and intolerance of any deviance from its goals.
New York City, also, is often touted for its downtown “cleanup” after a powerful corporate consensus with figurehead Rudolf Giuliani cracked down on petty crime and urban neglect.
Critics might say Singapore and New York City’s “improvements” are superficial and hide some ugly realities, but many residents seem to be proud of the results, and visitors are often awestruck by what they see.
What works elsewhere is not for San Francisco which has its own unique experience and culture.
I like reading Adachi’s thoughts because I think he is in touch with the unique realities and challenges here in San Francisco. I do not think our city can be remodeled along the Prussian lines adopted elsewhere without seriously endangering what is best about our city. San Francisco is a tolerant city. We try very hard to be a democracy. We try very hard to care about our poorest and most vulnerable.
We have a fundamentally genteel, enlightened, and egalitarian city– so long as equal opportunity for health resources, education and work is preserved and encouraged.
Even our mayor, who seems led by advisers who preach a fashionable tough love while actually protecting moneyed interests, seems to me personally and genuinely concerned about the city’s core values. I always wish he would follow his heart more often than these advisers. I truly believe he has a better shot at being governor if he fired them.
At this very moment, my stomach is turning thinking about the semi-annual “compassion circus” taking place at the Bill Graham Auditorium.
Today, Project Homeless Connect and its army of well-intentioned sunshine volunteers will work miracles for hundreds of homeless who may well succeed, besides getting their photograph taken, in getting a haircut, a tee-shirt, maybe some glasses, maybe a bed….
But tomorrow, many city resource centers which do that sort of work for the homeless day in and day out, year in and year out, will be making plans to shut for good– with no permanent replacement services in sight.
June 5, 2009 at 7:11 am
Last legislative session state Senator Leland Yee sponsored Senate Bill 1606, which if it had passed, would have removed a number of costly and burdensome requirements in Laura’s Law, an assisted outpatient treatment (AOT) program passed by the California Legislature in 1999. SB 1606 probably languished in the legislature because of its rush to pass a budget. To date, San Francisco has not implemented Laura’s Law ostensibly because it is too expensive. I urge Senator Yee to resurrect this amendment to Laura’s Law.
For the uninitiated, an AOT program allows court-ordered, intensive outpatient treatment for people with severe mental illnesses who refuse medication because their illness impairs their ability to make rational decisions. Laura’s Law provides for a 180 day period of intensive treatment under the supervision of the court. While we as a society must safeguard the civil rights of the unfortunate, we also have an obligation to care for those who are unable to care for themselves. Laura’s Law provides safeguards to protect the civil rights of those being considered for the AOT program.
Currently AOT can only be used if a county’s board of supervisors enacts a resolution to implement and independently fund a discrete Laura’s Law program. SB 1606 would eliminate this requirement. Under SB 1606, an AOT program would be available statewide as a tool that can be, but would not required to be, used to efficiently treat the most problematic patients. SB 1606 would give the San Francisco Department of Public Health complete discretion over whether or not to initiate an AOT program but would be precluded from doing so if the services needed for a particular AOT treatment plan are not available within San Francisco’s delivery system.
With the passage of SB 1606, counties would no longer have to set up new agencies with extremely high staff-to-patient ratios. Instead, counties would be given more flexibility to use existing mental health services, rather than establishing a brand new program. In addition, a county would no longer have to have various minimum levels of unconnected voluntary services before it could use the AOT program; would allow intensive AOT services without the need to make these services available to all consumers on a voluntary basis before implementing the AOT program for those who specifically need it; and it would provide a means to keep people released from hospitals stable in the community.
An amended Laura’s Law could be invoked by the Community Justice Center and provide a more flexible, alternative to the present system. With so many reductions in social services, a more user friendly Laura’s Law would provide a useful tool for the courts and health care providers. Hopefully, Senator Yee will reintroduce SB 1606.
June 5, 2009 at 6:22 am
RUN JEFF RUN.
June 4, 2009 at 11:51 pm
Jeff Adachi is one of the most intelligent people in SF politics and certainly one of the most intelligent of progressives. It’s a delight to debate with Adachi because he has a high regard for evidence and logic.
Adachi is right to note that it is an essential feature of the law to be coercive, as pointed out in the book “Critique of Patriarchal Reason.” But that doesn’t mean that such coerciveness is always, or even mostly, misplaced.
There are many people living on the streets of this city who are nomadic addicts and/or alcoholics. Some can be helped and want to be helped. They deserve to get the help they seek.
There are others, however, who refuse help and who are beyond help. It is an unfortunate fact of life that many addicts and alcoholics will never be able to recover from their addictions. The failure rate for all recovery programs is significant, even for those who are highly motivated.
The general public must be protected from the damage and injury that addicts and alcoholics cause. Just as the driving public must be protected from the harm caused by drunk drivers.
Only one force in society is capable of providing such protection reasonably, the force of the law. The alternatives are personal retribution or group vigilante activity. And who needs either?
Let us provide help to addicts and alcoholics who want it and can benefit from it. But let us also frankly acknowledge that there are addicts and alcoholics who are hopelessly out of control.
Only the coerciveness of the law can protect the public from those who are out of control.