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The paradox of over and under punishment: Reflections on President Napolitano’s recent measures

Jonathan Simon, professor of law | March 15, 2016

The revelations regarding lenient treatment to senior Berkeley administrators who violated the University’s sexual harassment policy underscores one of the great contradictions of our time: we are a society of both over and under punishment. Toward those on the economic margins, U.S. federal and state criminal law and criminal justice policy, as well as administrative sanctions in immigration, welfare, and schools, have been intensive in their search for fault and unrelentingly punitive in response — from escalating fines for the minor misconduct to incarceration and even lifetime exile for more serious or repeated crimes.

Toward those whose crimes or violations reflect their privilege and power, most of the same systems do what they can to avoid detection of misconduct and tend to be forgiving and concerned not to cast out (EVC Steele was quoted as being concerned that Choudhry’s sanction not “ruin his career”).

Paradoxically, those who benefit from leniency are exposed in due course to greater risk when their case becomes known (as they almost always will when the leniency is excessive). Had professors Marcy and Choudhry been offered and accepted appropriate sanctions, it would have been easier for them to return in a sustainable way to the university community. Proper punishment has its place, as Emile Durkheim long ago taught us, in reestablishing the bonds of social life; including for those sanctioned. But the massive over punishment of the poor has done the opposite; leading to a fraying of social bonds and weakening the legitimacy of the law — the implications of which are clearly spreading beyond the carceral state.

In that regard I welcome President Napolitano’s decision late last week to establish a special systemwide review process for senior campus administrators with sexual harassment or violence findings against them before any final disciplinary sanction is approved. This review process reflects the fact that campus-based authorities, typically the Chancellor or Executive Vice Chancellor (EVC), may be too close to such top administrators and too self-interested in institutional goals, to deliver fair justice to complainants, who will almost always be lower ranked organizationally, and one fears too often of “lower status” socially.

Systemwide authorities will have their own blind spots, but the review is likely to establish more uniform and fair standards. Most importantly, those standards and the results in types of cases (recognizing that confidentiality of employment matters may require that specific individual identities remain anonymous, although easily guessable) must be transparent and available to the widest public.

The very same problem is posed by high visibility and rank professors, like the case of astronomy professor Geoff Marcy, which was decided at around the same time as Prof. Choudhry’s. Such faculty members are very likely to be overvalued by top campus administrators, who may feel inclined to protect them over student, staff, and less regarded faculty.

I am more concerned however by the other decision taken by President Napolitano this past week: that of ordering Chancellor Dirks to bar Professor Choudhry from campus and ordering new disciplinary proceedings begin against him, despite a final settlement having been made in the summer of 2015. The latter raises profound concerns of due process by subjecting someone twice to jeopardy for same violations and subjecting them to standards not in place at the time of the misconduct. The fact that the President has only just issued a new policy on Sexual Harassment and Sexual Violence in January, and has explicitly said she wants to see more severe sanctions, makes this violation of ex post facto principles of justice seem all too likely.

The former measure raises a subtler but ever more significant concern. By barring Prof. Choudhry from campus — not as Dean, not as classroom teacher (both of which he might reasonably be barred from until further review of his case) but as a person — the order turns him into a monster and may cause unnecessary fear in a student body and staff already alarmed. If he’s so dangerous, what’s to stop him from sneaking onto campus? Will we next have police surrounding the campus? Is the man who was safe enough to run the law school unsupervised for more nine months after the original sanctions left him as Dean so dangerous that we now need a dragnet against him?

This goes too far on the record that has been released and any reasonable extension of it. Such wide swings are almost always over-corrections. Of course, protecting the victim from a triggering experience, might justify specific limitations on Prof. Choudhry’s campus presence, but great caution should be used not to exaggerate the need for that (bearing in mind that he cannot be barred from the public streets that surround our campus and so no guarantee of never sighting the person is possible).

History repeatedly shows that the stirring up of folk devils and moral panics, even raised by the occasional high-status target, invariably and inevitably falls on those marginalized by class, race, queerness, language or nationality, while shoring up the legitimacy of those in power. For example, the police dragnet would surely fall hardest on anyone calling attention to themselves along these features then it would on Prof. Choudhry himself (who is most unlikely to want to be seen in the vicinity of campus for some time).

Moreover, if Prof. Choudhry’s violations makes him too dangerous to be on campus, what about students who were convicted of sexual violations at other campuses, or felonies that sent them to prison for violent crimes? Few top administrators will be excluded by these spirals of fear, but many who have made it to Berkeley as a result of enormous personal effort against all disadvantages may well be.

Because I am a person of considerable privilege (and some power) in this community whose sense of justice has been called into profound question, let me make my personal views perfectly clear.

I condemn unequivocally Prof. Choudhry’s conduct toward Ms. Tyann Sorrell and any other members of our law school staff. Their dignity and basic respect for professional standards were grossly violated on the record established in the report of the investigation and further by the subsequent failure of top UC Berkeley officials to respond appropriately and swiftly.

EVC Claude Steele should have removed Prof. Choudhry from his position of unrestricted or accountable authority in the Dean’s office, not as a measure of retribution, but as one of restorative justice for his victim who then should have been returned to her job at the law school.

I commend President Napolitano for creating a new special systemwide review process for top administrators charged with sexual harassment (or violence) under policies published by President Napolitano in January, and recommend that she extend this to all professors who hold chairs, or are above scale in rank.

However, I urge the President to revise her instructions to Chancellor Dirks. Demonizing people and distorting procedures to get at those “devils” cannot enhance the safety and dignity of the campus community.

Acknowledgements: I would like to thank the students in my Criminal Justice Seminar (Shrinking the Carceral State) at Berkeley Law for giving me extremely helpful criticism of an earlier draft of this statement. The sentiments expressed are exclusively my own.

Comments to “The paradox of over and under punishment: Reflections on President Napolitano’s recent measures

  1. Jonathan, Thank you so much for this blog and sharing these ideas. I really agree with the positions and concerns you’ve outlined above. I also really appreciate that you included your students in constructing this argument. Dean Edleson, School of Social Welfare

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