A Summer Classic: Moral Panic Over A Pier Shooting

Guest Blog Post by Professor Jonathan Simon

It is a reminder of how hard the past is to leave behind (especially when your leading politicians belong to it). By now the whole nation knows the basic facts: Francisco Sanchez, a 45- or 52-year-old Mexican national, shot and killed Kathryn Steinle, 32-year-old resident of a nearby suburb, in a chance encounter along San Francisco’s popular, and seemingly safe, waterfront Embarcadero Boulevard last week.

It had all the makings of what criminologists call a “moral panic” — an untoward event, small or large, that becomes a vehicle for vast social and political anxieties over race, class and national identity. A low-status villain — non-white, poor, non-citizen, long criminal record, multiple incarcerations — kills a high-status victim — white, middle class, citizen, mother of children, never been in trouble with the law.  It occurs where it should not, in a place associated with comfort and recreation. Events like this sometimes stay just local news, but given the right conditions, they can blow up into a policy storm of significant magnitude. Will this one?

It comes at a time when white anxiety over the growing Latino population in the United States has become a dominant obsession with the Republican party. Indeed, Republican politicians have found themselves in something of a dilemma over which to attack among two of their favorite targets: liberal cities like San Francisco or the Obama administration.

Since the dominant media narrative has focused on the decision of the San Francisco sheriff’s department to release Sanchez, after the marijuana possession warrant he was being held on was dismissed — without notifying ICE (the Immigration Control and Enforcement agency) as requested — Republicans and now Senator Diane Feinstein, have decided to focus their rage on the city’s sanctuary policy, which mandates non-cooperation with the aggressive detention and deportation policies of recent years. Feinstein wrote SF Mayor Ed Lee yesterday, excoriating the City and its sanctuary policy, and all but blaming them for the crime.

Familiar narrative

The story line is a familiar one to politicians of Feinstein’s generation, who rose to maturity and power addressing it. In Feinstein’s case, this was quite literal, as she became mayor of San Francisco in 1978 after the high-profile City Hall murders of Mayor George Moscone and Supervisor and civil-rights leader Harvey Milk.

According to the logic that became common sense during the high crime eras of the 1970s, 1980s and 1990s, state and local justice systems were overwhelmed by crime and prone to ignoring criminal threats by dumping known threats on the streets. According to this thinking (which I described at length in my 2007 book Governing through Crime), only tough laws limiting judicial discretion, and federal mandates requiring that felons serve the vast majority of their sentences and protect Americans. The result: mass incarceration and mass deportation.

A closer look at the narrative surrounding the Sanchez case reveals it for the ideological construction it is. In fact, Sanchez epitomizes why the logic of exclusion and segregation that undergird our wars on crime and terror can never achieve public safety.

Start with the focus on San Francisco’s sheriff and the city’s sanctuary policy. It seem obvious and outrageous to Sen. Feinstein that Ms. Steinle would not have been killed that night but for the sheriff’s and city’s failure to incarcerate him until he could be deported.

But who was really the proximate cause of Mr. Sanchez’s presence in San Francisco? He didn’t start here, but instead in federal prison, where he was serving time for repeated unlawful entries to the United States.

Nothing in federal law required ICE to bring Sanchez to San Francisco to address a 20-year-old warrant for marijuana possession. Such charges are routinely dismissed in San Francisco and other cities, and the feds had apparently deported him five times during that period without feeling compelled to bring him to answer justice in San Francisco. Most likely the overworked ICE staff found the warrant and realized it would be easier to dump him on San Francisco then complete the paper work necessary to deport him promptly (or even generate the kind of immigration warrant rather than “hold” what would have prevented Sanchez’s release even under the sanctuary policy).

Dangerous felon?

A second phony element is the idea that Sanchez was obviously dangerous because of his seven felonies. In fact, as the media realized pretty early, all but one of these felonies were for drugs or illegal reentry, and only one was for assault (the least serious form of crime against the person, the equivalent of a fist fight).

If anything, Sanchez’s record is monument to how stretched the felony concept has become in our time. Seven felonies sure sound scary, until you actually look at them. There is nothing about his record that would have signaled to San Francisco sheriff’s deputies that Sanchez posed a serious threat. He appeared to be a not untypical inmate in the jail: poor, disorganized, a drug user without a stable family or work life, and probably some mental illness (indeed I suspect he has a chronic mental illness and decompensated for lack of proper treatment during his federal imprisonment).

The shooting of Kathryn Steinle appears to be a tragic escalation of Sanchez’s lifestyle. The weapon was apparently found on the beach (latest reports suggest it belonged to a federal agent). He admits to having been high on cannabis and sleeping pills. She was shot in the back, consistent with his “accident” defense. His most persistent deliberate pattern was apparently returning to the United States — not to prey on its citizens a la Donald Trump, but to support himself and perhaps to stay in contact with family here.

So what to conclude from the Sanchez case? Trying to protect ourselves from random violence by incarcerating and deporting people, on the basis of race and often-inflated criminal records, is deeply flawed (and far from the slam-dunk solution that Sen. Feinstein believes).

Lessons from criminology

The underlying theory here is that crime is a product of dangerous people. Lock up or deport the dangerous people and the problem is solved. But criminology now suggests that crime is situational, a product of people with chaotic lives, substance abuse, and chance encounters in environments that provide either accelerants or de-accelerants (think of the gun that Sanchez found).

There is no perfect solution, save for the ideal of fixing all our “broken toys” (and even unbroken ones break in the spur of the moment). Instead, careful mental-health screening of the jail population, and attentive post-release efforts to keep people with mental health needs and drug-abuse histories on the right medications and off the wrong ones, could do far better than incarceration for people like Sanchez (what about his previous imprisonments protected us?).

Nor, quite clearly, is deportation a solution. For two decades now, we’ve been aggressively deporting people we label “criminal aliens,” creating significant gang problems in countries like Guatemala and El Salvador (many of them, in fact, have recreated the same gang milieus they used to survive in the United States) without doing much to reduce crime here.

I suspect this moral panic will run its course without uprooting San Francisco’s sanctuary policy or placing Donald Trump in the White House. The general trend is away from harsh and exclusionary policies in both criminal justice and immigration.

Sadly, the punitive storm that has arisen around Francisco Sanchez and the killing of Kathryn Steinle is a reminder of how powerful the hold of crime-panic journalism, and hyperventilating crime-warrior politicians like Feinstein, remains on our public policy and how slow reform will probably be.

Jonathan Simon is a professor of law at UC Berkeley and Faculty Director of the Center for the Study of Law & Society.  This article was originally posted at The Berkeley Blog