41 minute read
CULTURE
Herman J. Mankiewicz (Gary Oldman) and his wife Sara (Tuppence Middleton) enjoy a beverage in Mank.
Mank Is Fake News About Fake News
But by inventing a plot point in his biopic about Herman J. Mankiewicz, David Fincher creates an inadvertent truth about our political moment. BY HAROLD MEYERSON
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Central to the lore of classic Hollywood are tales of disconsolate screenwriters rendered cynical and selfloathing by the indignities that producers and studio moguls heaped upon them, and by their own failures to walk away because they were being paid too much to leave. From F. Scott Fitzgerald’s The Last Tycoon to the Coen brothers’ Barton Fink and Hail, Caesar! the story of the hard-bitten and much putupon screenwriter has long been the subject of novels and plays, of screeds and parodies.
But stories of screenwriters at work don’t really lend themselves to the big screen, or even the small one. Typing, dictating, even wadding up paper and throwing it away isn’t the stuff of high drama. William Holden’s occupation as a screenwriter in Sunset Boulevard is a sidelight to a larger story about the evolution of movies, in which Gloria Swanson’s faded star is central. Humphrey Bogart’s screenwriter is the main character of In a Lonely Place because he may be a murderer.
That may be why films about actual screenwriters are so rare. The sole exception to this rule is Trumbo, which dealt with the struggles of screenwriter Dalton Trumbo, who was briefly imprisoned for contempt of Congress for his refusal to testify to the House Un-American Activities Committee, and then blacklisted by the studios for what they believed was his onetime membership in the Communist Party and his decision not to rat on his fellow lefties. During his decade on the blacklist, Trumbo authored screenplays under various pseudonyms, which won Oscars for other writers who’d been given the credit. He then broke the blacklist when Kirk Douglas and Otto Preminger each decided they’d credit him for writing their respective films (Spartacus and Exodus). In other words, Trumbo told the story
of a political period that shook the nation and the film industry, viewed through the prism of the Trumbo family’s ordeal.
There’s plenty of human drama in the life of Herman J. Mankiewicz, the subject of Mank, the new film by director David Fincher with a decades-old script by Jack Fincher, his late father. Mankiewicz was abundantly cynical and deeply self-loathing even before he got to Hollywood. But once he arrived, despite the contempt in which he held both the industry and its product, he thrived.
For a time, Mankiewicz recruited a generation of playwrights and journalists to come west to craft the words for talking pictures; produced some brilliant, anarchic comedies (including two Marx Brothers classics) himself; and turned out other scripts that pleased the studios, even when he knew they were dreck. On his own volition, he penned an antiHitler drama in the month following the Nazis coming to power in 1933, which predicted the murderous violence of the then-fledgling Third Reich. Mankiewicz tried to find a studio with the guts to produce it, but the studios, fearing the loss of their German market, turned him down.
By the mid-1930s, though, the subversion of propriety and logic that had once suffused his comedies had given way to a deeper subversion of his own talents. By the time we meet him in Mank, it’s 1940, and he hasn’t written or produced or even completed anything worthwhile in years. He’s still known as a devastating wit, and also for drinking himself into recurrent stupors and gambling away both his own money and whatever he’s sponged from studios and friends. But his fabled wit was confined to the spoken, not the written, word. (The alcoholism and gambling dated back at least to Mankiewicz’s college years at Columbia. His classmate, the great comedy writer Morrie Ryskind, told me when I interviewed him in the 1970s of the couplet he had composed that was affixed beneath Mank’s photo in the Columbia yearbook: We’ll say this much for HJ Mank / When anybody blew, he drank.)
But we also meet Mankiewicz at a moment of potential resurrection. His wit, and the brilliance behind it, attracted one more migrant from Broadway to Hollywood: Orson Welles, the 24-year-old theatrical phenom and radio genius. Welles spent hours with Mankiewicz, cooking up possible projects for his debut film. They settled on dramatizing the life of a media baron modeled on William Randolph Hearst, whom Mankiewicz knew well, having been for a time a regular guest at San Simeon, home to Hearst’s palatial, bizarre estate. The result was the original script for Citizen Kane, which critics and historians have ranked over the subsequent eight decades as one of the greatest movies ever made.
Both Mankiewicz and Welles knew they were playing with dynamite by creating a character so unmistakably modeled on Hearst, whose papers not only helped ensure the success of Hollywood’s films and stars for decades, but also had no hesitation going after anyone whom Hearst wanted to target. (The one remaining American newspaper still functioning in the old Hearst spirit is Rupert Murdoch’s New York Post.) Moreover, Hearst’s longtime friendship with the most powerful studio mogul, MGM’s Louis B. Mayer, made the project even riskier. After Kane was finished but before it was released, Mayer actually offered RKO, the studio that had produced it, a cool million dollars in return for RKO destroying it. Fortunately, RKO refused the offer.
For Mankiewicz, Kane ran the risk that Hearst would view the film as a betrayal and sic his newspapers on him (which he eventually did three years later, when Mankiewicz’s drunk-driving arrest provided the pretext for front-page “exposés” in Hearst papers across the country for nearly a month). The Finchers endeavor to explain why Mankiewicz not only went through with the project, when he had dropped so many others, but also fought, successfully, to get credit for the screenplay, though his initial contract with Welles required him to ascribe credit for their work solely to the director. Pride of authorship, pride of having his name attached to what he knew would be a great film, pride in work that followed the great fall of his career—all these are the answers that Mank quite accurately provides.
But there’s no larger narrative framing Herman Mankiewicz’s life and career and decision to take on Hearst, something that could drive the story beyond the clicking of typewriters and the fight over screen credit. So the Finchers, in the best Hollywood tradition, invented one.
In Mank, the heart of the drama is the belated revenge that Mankiewicz takes on Hearst and the studios for their attacks on the 1934 California gubernatorial campaign of author Upton Sinclair, a socialist who won the Democratic nomination that year. Sinclair, the muckraking writer who’d won national acclaim for exposing the abuse of slaughterhouse workers, the animals they dismembered, and everyone who ate meat, in his 1906 novel The Jungle, had run for governor of California twice before on the Socialist Party line, never winning more than 2 percent of the vote. The first year of Franklin Roosevelt’s presidency and the nation’s Depression-era leftward movement, however, led him to believe he could more effectively advance a socialist agenda by running as a Democrat.
Having won the Democratic primary, to general astonishment, on a platform to “End Poverty in California” (known as the EPIC movement), Sinclair appeared to be leading his Republican opponent, a reactionary named Frank Merriam, as November’s election drew near. Then, the state’s Republican establishment—in particular, Harry Chandler’s Los Angeles Times, Hearst’s several
William Randolph Hearst, played by Charles Dance in Mank
California-based papers, and the Hollywood studios—decided to do whatever it took to defeat Sinclair.
Hearst was no stranger to fake and manipulated news. His papers’ depiction of the explosion that had sunk the battleship USS Maine in Havana’s harbor in 1898 falsely attributed the Maine’s demise to the machinations of the Spanish government (Cuba was then a Spanish colony). His paper’s hysterical agitation for retaliatory military action played a key role in pushing the McKinley administration to embark on our first extra-continental imperialist war, in which we wrested control of both Cuba and the Philippines.
It was no great stretch, then, when Hearst’s California newspapers began running stories in 1934 that “reported” on Sinclair’s plans to expropriate small shops and homes (which didn’t actually exist). It was actually the L.A. Times, owned not by Hearst but by Harry Chandler, that took the lead on this, but since Hearst is a key figure in Mank and Chandler isn’t in the picture at all, the Times escapes unscathed in the Finchers’ film. (It didn’t escape Mankiewicz’s sardonic wit. Reviling not just the paper’s reactionary politics but the jejune boosterism that had it put a Los Angeles angle on every story it could, he once said that the quintessential Times headline would be “L.A. Dog Chases L.A. Cat Over L.A. Fence.”)
Of course, Americans had long been accustomed to political fabrications in newspapers, particularly those, like Hearst’s and Chandler’s, whose political slant was well established. The core method of destroying Sinclair’s political hopes highlighted in Mank, and the more innovative one, involved the production and distribution of fake newsreels that were screened before feature films—essentially, the first filmed attack ads in history.
Fiction films had long depicted completely false versions of history, of course (The Birth of a Nation and Gone With the Wind being two prime examples). But the moviegoing public was unaccustomed to seeing fictional agitprop presented as documentary news. This hits home harder than newspapers’ fabrications, adding the greater authority of a filmed event: In newsreels, that was really FDR speaking, Hitler gesticulating, the Queen Mary docking in New York Harbor.
The studio moguls of 1934 had an ax to grind. They not only loathed Sinclair’s socialism, but also feared his promises to raise their taxes. (In the early 1930s, Mayer was the highest-salaried executive in the nation, and the finance chair of the national Republican Party.) And so, Mayer’s MGM, at the instigation of production chief Irving Thalberg, began assigning directors and cinematographers to film “interviews with prospective voters”—actually, studio extras—that were scripted to depict Merriam supporters as good, solid Americans and Sinclair supporters as foreignaccented Bolsheviks. They even appropriated footage from the Warner Brothers’ picture Wild Boys of the Road, and shot footage of their own of their extras jumping from freight cars, which the newsreel narrators said were shots of dangerous hobos arriving in California in anticipation of a Sinclair regime that would pay them to loll around and make trouble. All this material was bundled together and presented as regular newsreels to the millions of Californians who went to the movies every week. Thus bolstered, Merriam staged a remarkable come-from-behind victory in November’s general election.
In order to posit Mankiewicz’s hatred of Hearst and Mayer as central to his determination to épater le bourgeoisie—at least the Hearst and Mayer wing of the bourgeoisie—in his screenplay for Kane, the Finchers place Mank squarely in the middle of the studios’ machinations. In an exchange with Thalberg, Mankiewicz refuses the studio’s demand that he, like all studio employees, contribute $20 to Merriam’s campaign. (In reality, only a handful of stars who were both so left and so popular that they could reject that demand— chiefly, Warner Bros.’ James Cagney—refused to pay and endorsed Sinclair.) As he leaves his meeting
with Thalberg, Mank notes in passing that for an industry that had created fearful horrors like King Kong, it shouldn’t be all that hard to create a Sinclair as monstrous as Kong.
This sparks Thalberg’s idea for the phony newsreels. Mankiewicz then fights in vain to keep the studios from running them in every movie theater in California. The Finchers also create a budding director friend of Mankiewicz’s whom MGM hires to shoot those “newsreels”—who is so remorseful at the role they played in Sinclair’s defeat that he subsequently kills himself. Motivation aplenty for Mank’s scripted revenge!
One problem, however: None of this actually happened. There’s no record of Mankiewicz inspiring Thalberg, imploring MGM not to distribute the newsreels, or even favoring Sinclair. His younger brother Joe (better known today as the writerdirector Joseph L. Mankiewicz), then a lowly contract writer for MGM, actually penned some of the studios’ radio ads for Merriam, while the real director of the fake newsreels never showed any remorse for the deception. The entire motivating force of the Finchers’ film was conjured up out of whole cloth. But despite that, the story of Mank—if not Mank— resonates 80 years later.
It’s only because of these Finchercreated motivations for their protagonist, and the quarter-century delay in finding a studio (Netflix) willing to produce the script, that the issues of socialists breaking out of the third-party ghetto by running as Democrats, and the efficacy of fake news to defeat any liberal candidate, have come to the screen at the very moment when they’ve never been more timely. Mank opened on Netflix one month and a day after the 2020 election, the very moment when the really fake news that only rampant fraud and Venezuelan voting-machine software had kept Donald Trump from a second term was inspiring perhaps the greatest threat ever posed to American democracy.
Fake news has been central to the American right’s political appeal for a long time. The 1934 Republican campaign against Sinclair featured not only the studios’ and the newspapers’ descent into fraudulence, but also the creation of the first professional campaign consultancy. As Greg Mitchell documents in his history of the ’34 election, The Campaign of the Century, Clem Whitaker and Leone Baxter came together to craft ads and mailings against Sinclair just as preposterous as the newsreels, then went on to pioneer campaign advertising and mailings over decades of work for right-wing candidates.
The attacks they waged against Sinclair set the template for attacks on later generations of progressive candidates. One young progressive who first became politically active on Sinclair’s campaign was Jerry Voorhis, the headmaster of a school for impoverished children who himself was elected to Congress from an exurban Los Angeles district two years later. There, he served for a decade until defeated in 1946 by an ambitious young Republican named Richard Nixon.
The distinguishing feature of Nixon’s campaign was to attack Voorhis—a brilliant and creative liberal with social democratic beliefs—as a Communist sympathizer, though in fact Voorhis was a staunch and very outspoken anti-Communist. Nixon actually understood Voorhis’s real politics very well. Years later, when onetime Voorhis aide Stanley Long chided Nixon about his campaign, Nixon told Long, “Of course I knew that Jerry Voorhis wasn’t a Communist. But it’s a good political campaign fire to use. I had to win.”
Does the continued efficacy of campaigns like Nixon’s validate the complaints of today’s centrist Democrats that the presence of avowed and voluble socialists in their party dims prospects in the swing districts Democrats need to win? One such Democrat, Harley Rouda, who was elected to the House in a historically Republican Orange County district in 2018, only to lose that seat to a Republican in 2020, has argued that the Democrats need to counter “the narrative that Democrats are more and more leaning toward socialism.”
But just as Sinclair inspired young leftists like Voorhis and Augustus Hawkins (who in 1934 became the first Black person elected to the California legislature, having campaigned with EPIC’s backing) to run as Democrats, so Bernie Sanders inspired Alexandria Ocasio-Cortez and other young social democrats to run for and win congressional seats on the Democratic line. More fundamentally, after decades in which American capitalism has funneled all wealth and most income to the top, the most recent (2019) Gallup and Pew polls on the topic both found that 65 percent of Democrats have a favorable view of socialism. Rouda to the contrary, more and more Democrats are leaning toward socialism. That’s not fake news, though it certainly is fraudulent to depict most Democratic elected officials as socialists, or as willing enablers of their socialist colleagues. Then again, from Sinclair to Voorhis to Obama to Biden, Republicans have depicted Democrats as socialists or Trojan horses for socialism (and worse: communism!) for nearly a century, whether they are or not.
There may be a historic statute of limitations on this attack, as the specter of communism recedes into the fuzziest of memories among Americans who came of age after 1989. But whether the right has socialism to rail against or not, the events of the past few months make clear that its ability to craft fake news that rouses the fury of its base against Democrats and modernity doesn’t depend on troublesome socialists.
Ironically, Mankiewicz was one of the very first film industry figures to sound the alarm about fake news— only it wasn’t the fake news that the studios had produced. It was the fake news that Josef Goebbels had produced, the anti-Semitic falsehoods that had played a central role in the Nazis’ rise to power. That’s a story the Finchers don’t tell, and it wouldn’t have provided the kind of direct motivation to Mankiewicz’s work on Kane that his Fincher-augmented anti-studio animus delivers. Then again, both Mankiewicz and Welles were “premature anti-fascists,” and who’s to say that those gut convictions didn’t contribute to the emotions and creativity that gave us Citizen Kane? n
How Biden Should Prosecute Corporate Crime
In top-to-bottom criminal justice reform, let’s not forget the top.
BY BRANDON L. GARRETT
Now is an ideal time to reconsider how we approach a wide range of criminal offenses, as part of top-to-bottom criminal legal reform. Every new administration has put its stamp on federal prosecution policies, and the Biden Justice Department will not be an exception. Just as important, many more prosecutors, defense lawyers, and lawmakers at the state and local level are committed to reform. COVID-19 has radically changed the stakes when a person is placed in custody, turning minor sentences into possible death sentences. We are also still dealing with the criminal response to the last financial crisis. There is so much work to do.
Two new books, Federal District Judge Jed S. Rakoff’s Why the Innocent Plead Guilty and the Guilty Go Free and law professor Jennifer Taub’s Big Dirty Money, illuminate the choices we face in reforming a criminal justice system that readily offers leniency, but largely only to corporations and the most privileged.
Mass incarceration is a “scourge”: That is how Judge Rakoff begins. He then carefully describes how innocent people can and do plead guilty, faced with the overwhelming threat of prosecutorial power. Trials have almost disappeared today, and judges must often treat those guilty of crimes “like dirt” because of toughon-crime statutes that have imposed inflexible and draconian sentencing guidelines. Often former prosecutors themselves, judges may also be inclined to view long sentences not as a problem but as a solution.
Along the way, Rakoff explains, not only have vast numbers of people been sentenced to far more time in prison than they remotely deserve, but innocent people have been convicted, even sentenced to death, based on flimsy forensic evidence, coerced confessions, and lying informants. DNA exonerations and a large body of scientific research have brought to light the “real and continuing” possibility of wrongful convictions due to eyewitness misidentifications. But in the face of all these concerns, the response from prosecutors has been slow, grudging, and sometimes vociferous in objecting to much-needed fixes. So the wheels of justice grind on without pause.
Yet, farther into the book, Rakoff turns to the types of offenders who can evade the scourge of mass incarceration by relying on the very discretion and mercy so often lacking in everyday justice: the white-collar and corporate offenders. Rakoff changes tone here and calls for speedier and harsher efforts to prosecute white-collar criminals. He bemoans that “not a single genuinely high-level executive was successfully prosecuted in connection with the Great Recession.” Our system is so “very aggressive,” but not where individuals have a “corporate shield” to hold over themselves, despite engaging in “colossal fraud.”
When we consider reforming our criminal legal system, a basic question is whether we level up or level down: Should we treat the poor more like the rich, or the rich more like the poor? In a system that over-criminalizes the poor for petty conduct, uses excessive police force, imposes fines that create cycles of debt, locks family members apart, superspreads COVID, and enforces pervasive racial injustice, it is hard to see the need for harsher justice. Yet the most privileged white-collar and corporate offenders receive kid-gloves treatment that arouses legitimate outrage, particularly when fraud begets systemic risk that endangers the entire economy. If we are to reorient criminal justice toward the crimes that matter and release the vast majority of people held for crimes of poverty and illness, we should re-examine how we treat those at the top of the social system, as well as the bottom.
That deep divide between the privileged and the helpless lies at the heart of Rakoff’s book. As a lifelong servant of the law, who loves the law and speaks its language elegantly, he nevertheless asks: “How can we claim that justice is equal,” when every day in our legal system, “we imprison thousands of poor Black men for relatively modest crimes but almost never prosecute rich, white, high-level executives who commit crimes having far greater impact?”
The culture of corporate and white-collar impunity is Taub’s theme in Big Dirty Money. How, in the country of mass incarceration, with 2.3 million in prison, has no one been prosecuted for crimes ranging from Purdue Pharma’s illegal misbranding of OxyContin, to Pacific Gas & Electric’s role in the deadliest blaze in California history, to Wells Fargo’s abuses in setting up millions of accounts for customers who did not ask for them? The carceral drumbeat begins from the first pages of the book. Taub notes that from 2002 to 2006, the Department of Justice targeted large numbers of CEOs, corporate prosecutors, CFOs, and others. Then, after the 2008 financial crisis, that pattern “broke down.”
We know so little about the extent or nature of many corporate crimes that it is hard to say whether more top-level prosecutions would matter. In general, more severe sentences do not deter crime, but catching criminals more often does. Prosecutors have made efforts to target individual offenders in some areas, but it isn’t clear whether even high-profile cases, such as the Enron-era prosecutions, have made a difference in corporate behavior.
In 2015, in response to criticism, Deputy Attorney General Sally Yates issued a new Department of Justice memo prioritizing individual investigations and prosecutions in corporate cases. Little changed. As I wrote at the time, bringing more such cases is easier said than done. It would take substantial resources to prosecute individuals in every corporate-crime case; I’ve described how the following years saw no rise in individual charging accompanying corporate prosecutions. Under the Trump
B O O K S
WHY THE INNOCENT PLEAD GUILTY AND THE GUILTY GO FREE: AND OTHER PARADOXES OF OUR BROKEN LEGAL SYSTEM
BY JED S. RAKOFF Farrar, Straus and Giroux BIG DIRTY MONEY: THE SHOCKING INJUSTICE AND UNSEEN COST OF WHITE COLLAR CRIME
BY JENNIFER TAUB Viking
administration, the Yates Memo was softened, reflecting the reality that the administration was unwilling to commit the resources necessary to prosecute cases against individuals in complex corporate environments. We would need a serious corporatefraud task force to do it.
Why have privileged offenders escaped liability? Rakoff offers several diagnoses. Prosecutors “had other priorities”—like mass incarceration. Corporate cases can involve technical financial rules, big data, and millions of pages of records, as well as employees with overlapping roles and authority. Understanding internal records and practices, and nailing down who did what, can require tens of thousands of hours and entire teams of lawyers. Federal prosecutors’ offices, as well resourced as they are, do not have the ability to bring many such cases. Only by prosecuting the company can prosecutors secure, from the company’s own team, access to all of that internal information. In effect, prosecutors deputize the corporation to investigate itself. Without vastly expanded regulatory enforcement wings across all of the relevant administrative agencies, relying on corporations to self-investigate and self-report is a fact of life.
A common theme that Rakoff shares with Taub is that corporations themselves distort prosecutions by focusing prosecutors on the firm itself rather than on individuals. As I have documented in my data-tracking, prosecutors have turned to informal deal-making, increasingly entering deferred prosecution or non-prosecution agreements filed largely out of court, without the firm getting a criminal record. I agree with Rakoff that many of these agreements are “lax and dubious,” and I have detailed the sausage-making that goes into producing these settlements.
Despite the uneven results, there are still important reasons to target corporations. The corporation is the crime scene: Only the firm will have the emails, documents, and other records concerning who did what and where the money went. Speaking of money, jailing individual offenders does not make victims whole. Except in rare cases like the OxyContin litigation involving the Sackler family, individual executives usually cannot pay hundreds of millions of dollars to compensate victims. Individual offenders also cannot reform corporate practices to make sure that future misconduct is detected and prevented.
Rakoff and Taub do not suggest that targeting a few dozen more executives would accomplish meaningful deterrence or reform. Indeed, unless something more fundamental changes in our enforcement system, a firm will just discard former executives and move on to new schemes. Instead, Rakoff and Taub mean to end a culture of impunity and lax enforcement. That desire can veer into populist retribution with little long-term impact. As Taub notes, after “top-shelf felons” such as Michael Milken and Jeff Skilling have been prosecuted and completed prison stints, they have been able to relaunch their careers “with little lasting stigma.” Those examples highlight the comparative injustice that poor people face from lasting sanctions after a conviction, whether it is loss of voting rights or disqualification from employment. We need to focus on leveling up: Successful re-entry is what we should want for all persons leaving custody each year in this country. It should not just be the largest corporations that receive rehabilitative deferred prosecution agreements. People should receive them, routinely.
Detecting corporate crime is particularly important, Taub correctly emphasizes, and investing in better detection may be far more effective than aiming to impose severe sentences on a few higher-ups. Fraud, by its nature, involves concealment, even from the victims who may be fleeced, whether they are customers, shareholders, the government, or the public. Expanding the rewards for journalists and whistleblowers would help to incentivize efforts to uncover corporate wrongdoing. Much of that work may support civil, not criminal, investigations, but that is a good thing.
To end over-criminalization, civil enforcement can replace criminal enforcement. Recovering the money lost by victims requires hard work, and prosecutors are not the best suited for it. Expanding investigative and enforcement resources is crucial. Taub notes that the IRS alone is unable to collect an estimated $800 billion in taxes that are owed each year. We also need to improve funding for corporate investigations at other agencies such as the Securities and Exchange Commission and the Environmental Protection Agency. Civil suits by private lawyers or statelevel attorneys general may also be more effective than federal prosecutions. We need more serious tools, including stronger regulatory measures, to ensure that hucksters do not act with impunity. Indeed, Rakoff asks whether the Trump administration’s “across-the-board deregulation” may have created new systemic risks of financial fraud. Criminal prosecutions cannot replace sound regulation and oversight of industries that can endanger the public.
Six Guidelines for Corporate Prosecutions There are changes that the Department of Justice can make to address the crisis that Rakoff and Taub illuminate. The Biden campaign promised it would focus on reducing incarceration, rooting out racial and income-based disparities in punishment, and strengthening rehabilitation. Although mass incarceration is largely a state phenomenon, new federal incentives and federal use of clemency can help reduce imprisonment. The Department of Justice can play a leadership role in policing reform. It could create an Innocence Commission to detect and remedy wrongful convictions. Federal legislation can promote bail reform, alternatives to incarceration, and improved criminal system data collection.
The guidelines for corporate prosecutions will also no doubt change under the Biden administration. Here are six specific ideas.
First, out-of-court corporate deals should end. We need legislation to set rules for judicial approval of deferred prosecution agreements and their oversight. Whether or not that happens, the DOJ can take action. Federal prosecutors should not use
Biden’s Department of Justice can end out-of-court corporate settlements and non-prosecution agreements.
non-prosecution agreements that are not filed in court, except in narrow circumstances. Pleas should be preferred, so that the corporation is on probation. And there should be an office of corporate probation created to ensure serious monitoring.
Second, we need to know whether compliance is working. In the past, corporate agreements ended without any meaningful check on whether the company had fixed the problems. Even in cases where there was an outside monitor, the reports and the work of those monitors were not made public. Instead, compliance should be empirically validated, in specific cases and over time. Compliance should be tested by prosecutors and by administrative agencies, as Gregory Mitchell and I have written. Indeed, the DOJ and agencies can be a clearinghouse for self-critical data collected from such auditing, and for compliance practices that are shown to be successful.
Third, whistleblower programs should reward the reporting of malfeasance, over and above rewards to corporations that self-report. We need to uncover misconduct, hopefully before it festers and results in serious criminal conduct and social harm.
Fourth, corporate fines should normally be calculated to make sure that a company did not profit from crime. In the past, fines have been heavily discounted, and under the Trump administration there was a focus on not “piling on” fines. To be sure, companies should not be double-fined, and setting off payments to other jurisdictions or countries is sensible.
Fifth, individual prosecutions should focus on the most responsible and senior individuals. The Yates Memo should be restored, but in a modified form to make clear that civil sanctions may be appropriate for many lower-level corporate figures and that it is equally important to change incentives within the firm to ensure internal discipline when people break the law.
Sixth, prosecutors should make public what happened in corporate criminal cases, including records of ongoing monitoring and compliance issues. Relatedly, repeat criminal action by corporations should bring clear and predictable penalties. More severe consequences are warranted when a company cannot end its lawbreaking practices. Rakoff cites my data concerning corporate recidivism in my 2014 book Too Big to Jail and, unfortunately, these recurring patterns may persist. I created the Corporate Prosecution Registry, a collaboration between the law schools at Duke and the University of Virginia, because no tracking existed for corporate crime.
The world of corporate criminal enforcement has evolved considerably over the past two decades, and individual people should benefit from lessons learned. We need more diversion, deferred prosecution agreements, and rehabilitation for individuals, not just for corporations that pledge good behavior after being accused of the largest-scale crimes imaginable.
We need to channel understandable outrage away from our worst carceral impulses, toward criminal legal reform. Too often, the privileged walk free, when people languish in our jails because they cannot pay cash bail, or they are killed in police encounters over petty enforcement, or they lose their driver’s license because they cannot pay traffic tickets. The solution is not to draw tighter chains around both the privileged and the weak. As Rakoff puts it, “Our current system of justice is beset by hypocritical pretensions, conundrums, paradoxes, and shortcomings.” That’s not just a call to outrage. It’s a call to action. n Brandon Garrett is the L. Neil Williams Professor of Law at Duke University School of Law. He directs the Wilson Center for Science and Justice at Duke, and his latest book, Autopsy of a Crime Lab: Exposing the Flaws in Forensics, will be released in March.
Love, Labor, Lost
To Sarah Jaffe, the idea that you can love your job has become a trap.
BY LAUREN KAORI GURLEY
B O O K S
Two days before a mob of Trump supporters stormed the halls of Congress and drowned out the rest of the news cycle, more than 220 workers at Google announced that they had unionized with the Communications Workers of America.
Unsurprisingly, Silicon Valley industry leaders responded with disdain and mockery to the news. Coal miners and meatpacking workers were exploited and needed unions to protect them, their argument went, but it is hard to make the same case for Google’s software engineers, who chose their jobs, are passionate about what they do, and earn average compensation of over $164,000 a year to work in state-of-the-art offices complete with gyms, arcades, and foosball tables; massage rooms; and kitchens stocked with free Ghirardelli chocolates, organic string cheese, roasted seaweed snacks, La Croix soft drinks—the list goes on.
These superficial benefits mask significant labor problems at Google, from “systemic compensation disparities against women,” as the Department of Labor found in 2017, to the $90 million exit package awarded to former executive Andy Rubin after accusations of coercing a subordinate to perform oral sex, to the classification of at least half the workforce as contractors, without benefits or protections from discriminatory conduct or even access to town hall meetings and holiday parties. But the perks themselves are part of the problem. They are dangled at workers to keep them inside the building, working longer hours, devoting their entire waking moments to the company. It sounds privileged to frame foosball tables as a form of exploitation, but it contributes to a mentality of substituting work for the rest of your life.
In her sweeping new book, Work Won’t Love You Back: How Devotion to Our Jobs Keeps Us Exploited, Exhausted, and Alone, veteran labor journalist Sarah Jaffe argues that it’s not just at Google or in Silicon Valley where there’s a startling dissonance between the passion, love, and care society tells workers to devote to their jobs and the exploitative realities they face at work.
“We’re expected to enjoy work for its own sake,” Jaffe writes. “[T]he things we used to keep for ourselves—indeed, the things the industrial workplace wanted to minimize—are suddenly in demand on the job, including our friendships, our feelings, and our love.”
Jaffe herself notes that, as much as she loves her job as a freelance journalist, and the moments of joy it brings, it still cannot be a source of true happiness. “Most jobs will not make us happy, and even the ones that do will often be a source of deep frustration,” Jaffe writes. “I am writing these words, for example, at 8:00 p.m., eating microwaved soup from its plastic container, having now spent twelve hours in front of a computer screen, and I have it pretty good.” (I too have it good, and have my dream job as a reporter at Vice, but it’s 7:00 p.m. and I am eating a bowl of week-old pasta after a long day of work as I write this article.)
The “labor of love” myth, or the impulse to love work, may appear to be a perennial. But in actuality, it developed in the post-Fordist, neoliberal era. Unlike today’s creative and care industry workers, General Motors autoworkers in the 1950s were never expected to project the appearance of gratitude or passion while assembling car parts. In the latter half of the 20th century, when corporations sent manufacturing jobs from the United States and Europe to the global South where labor was cheaper and regulations were nonexistent, jobs in services, retail, tech, and health care took their place. These jobs often require workers to wear a smile no matter how they’re feeling, and buy into the “love what you do” concept, whether that be at Walmart, Planned Parenthood, or Google. (Perversely, working in an Amazon warehouse now demands some of this performative enthusiasm as well.)
Jaffe argues that these jobs demand total devotion and excessive emotional labor, tricking workers into thinking that there’s something deficient about them if they don’t achieve self-actualization at work. Today’s workers should even be grateful for the opportunity to work; underpaid teachers and nannies should show up for children armed with an unlimited wellspring of love every day of the week; engineers, artists, and academics should come to work with a supply of passion and creative genius that never runs dry.
“Exploitation is not merely extrabad work, or a job you particularly dislike,” Jaffe writes. “Exploitation is wage labor under capitalism, where the work you put in produces more value than the wages you are paid are worth.” That’s how you can tell a story about a well-off programmer at Google, free artisanal snacks and soft drinks and all, being exploited by a company that raked in $34 billion in net income in 2019.
Jaffe’s book is divided into two parts. The first debunks the myth of the “labor of love” in care jobs, from its origins in the women’s domestic sphere in the home to paid domestic work, teaching, retail, and the nonprofit sector. As she notes, she could have just as easily filled this section with deep dives into the emotional labor of nurses, grocery store cashiers, call center operators, or restaurant servers. Case studies feature contemporary workers living both in the United States and United Kingdom, where Jaffe has spent much of the past few years. A running theme throughout this section is that jobs that require the most emotional labor are often lowestpaid or unpaid, and feminized, with the expectation that women should fill these roles.
These chapters reflect Jaffe’s years of interviewing workers and reporting in the field, from the Los Angeles
WORK WON’T LOVE YOU BACK: HOW DEVOTION TO OUR JOBS KEEPS US EXPLOITED, EXHAUSTED, AND ALONE
BY SARAH JAFFE Bold Type Books
teachers strike of 2019 to a workerled campaign against Toys “R” Us’s liquidation in 2018 to a union drive at Planned Parenthood of the Rocky Mountains in 2017. Many of these labor organizing stories are featured in her indispensable podcast and archive of the labor movement, Belabored.
In a chapter on teaching, Jaffe traces how public-school teaching jobs came to be so poorly compensated and devalued, through a short history of the profession. Originally a parttime job for men in the earliest days of the United States, teaching transformed into low-paid women’s work in the 1830s. Labor wars in Chicago and New York City in the early 1900s led to unionization, and swift demonization from politicians and administrators, condemning teachers as “hellraisers” instead of “saints.” Jaffe describes how reformers de-skilled teachers in the 2000s by adding standardized-testing requirements that put interpersonal skills into the background, and introducing programs like Teach for America, where college graduates were parachuted into charter schools for short-term gigs. A wave of wildcat teachers strikes swept conservative states in 2018 in order to lift povertylevel wages and get students basic supplies.
It becomes clear through this case study how the dynamics of capitalism since its earliest days have shaped such contradictory and impossible expectations for teachers, who are asked to give all of their time and love to their students with little compensation.
The second section of Jaffe’s book focuses on the creative industries, from the video game programmer to the unpaid intern and the adjunct professor to the pro athlete. Jaffe investigates how workers in creative careers, herself included, came to be “expected to find the work itself rewarding, as a place to express their own unique selves, their particular genius.” Yet heaps of invisible and tedious labor go into making a magazine like Vogue or Harper’s Bazaar, a video game like Dungeons and Dragons, or a Jeff Koons art installation. “In these jobs,” Jaffe writes, “we’re likely to be told that we should
A “Red for Ed” teacher solidarity action in Bloomington, Indiana
be grateful to be able to work in the field at all.”
As Jaffe writes in her chapter on interns, most interns work “in order to one day get one of those jobs that are worth loving.” Scholars have defined internships as “hope labor.” Interns are often expected to perform emotional labor as well as the task at hand for free, even and especially in the most prestigious workplaces—the U.S. Congress, the U.K. Parliament, Hearst and Harper’s magazines. Because they’re competing to be hired for paid jobs, interns often have no choice but to act grateful for the opportunity. In 2019, when Congresswoman Alexandria Ocasio-Cortez (D-NY) decided to pay her interns $15 an hour, she sent shock waves through the House of Representatives. At the time, 90 percent of House members did not pay interns. In 2012, an accessories intern at Harper’s Bazaar, Diana Wang, sued Hearst Magazines for violating federal and state labor law by requiring that she work for 55 hours a week unpaid until 10 at night, which became a federal class action lawsuit.
Internships, in other words, are really just a justification for the most egregious race to the bottom. They also reproduce economic and racial stratification in certain industries based on who can afford to take an internship, i.e., who has the financial security to work for free for months on end, often in an expensive city. “[T]he internship actually drives down wages by introducing a new wage floor—free—into the system,” Jaffe writes. “[T]hey must be willing to do whatever is asked and do it with a smile.” (Full disclosure: I interned at The American Prospect in 2015 for a $400 weekly stipend—and financial help from my parents and college.)
Jaffe’s solution again is found in collective action, with a joyfully militant moment in the winter of 2019 when tens of thousands of unpaid interns marched in the streets of Quebec to demand a fair wage and formal recognition under the law. Part of the problem with the internship setup is that interns, who are not technically employees, have no formal processes to report sexual harassment or discrimination. These Canadian interns, Jaffe writes, “questioned why certain jobs were well-paid while others were undervalued, and they challenged the rules of behavior that taught young workers, most of them women, to be meek and retiring and always ready to serve.”
As a journalist myself, I can thank my union, the Writers Guild of America, East, and the organizing of my colleagues who came before me for most of the good things about my job—my annual salary increases, my editorial freedom, my six-week severance package if I get laid off, and my relatively inexpensive health and dental insurance.
Should this “labor of love” myth be put to an end? Jaffe says it’s complicated. As long as humans live under capitalism, ordinary people don’t have much of a choice but to continue spending the majority of our waking hours at work to sustain our lives. Workers across the board—interns, public-school teachers, even Google engineers—should take every opportunity they have to organize and demand less time at work and more free time for pleasure, relaxation, and personal growth with friends, family, lovers, and neighbors. As Jaffe writes, “Work will never love us back. But other people will.” n
Heaps of invisible and tedious labor go into making a magazine, a video game, or a Jeff Koons art installation, seen here.
Lauren Kaori Gurley is a senior staff writer at Vice’s tech desk, Motherboard, and a former Prospect intern.
Defenders of democracy
By Randi Weingarten, President AMERICAN FEDERATION OF TEACHERS
ike Sept. 11, 2001, when foreign terrorists permanently changed our lives, the attempt on Jan. 6, 2021, by domestic terrorists, incited by President Donald Trump, to violently overthrow our government and assassinate leaders at the Capitol, will forever change America. Even as the Biden administration embarks on its ambitious agenda, Trump and his most strident allies are still perpetuating the big lie that the election was stolen, to sow distrust and undermine our democracy. As this new chapter in our history is unfolding, America’s teachers are helping students examine in real time these dangerous and disturbing events. Adrian Reyna, an eighth-grade U.S. history teacher in San Antonio, had planned a lesson contrasting the 1918 flu pandemic and the coronavirus pandemic. But when his students entered class after the Jan. 6 seige, Reyna shifted gears to discuss the events at the Capitol. Because of the pandemic, he had to do this both online and in person, focusing first on “the human part of what we do in school,” checking to see how students were feeling. Then, mindful of the initial confusion and chaos during events like 9/11, Reyna reminded his students to “make sure we’re working with facts and correct information.” The class had just studied the Supreme Court ruling that speech creating a “clear and present danger” (such as “falsely shouting ‘fire’ in a theater,” as Oliver Wendell Holmes famously wrote) was not protected by the First Amendment. Reyna assigned students homework: Watch a 13-minute clip of Trump’s remarks at the rally before the riot at the Capitol, then consider whether the First Amendment protects his speech or if he should somehow be held accountable for it.
For Stephen Lazar’s students, the insurrection was a personal affront. “What they saw more than anything else was white privilege,” said Lazar, who teaches a U.S. history and English humanities course to 11th-graders at Harvest Collegiate High School in New York. “They felt deeply the double standard of policing of protest, many of them having experienced the threat of riot police when marching through New York’s streets in Black Lives Matters protests last spring and summer.” When Lazar opened the discussion on Jan. 7, “It was the horror of the inaction of the police that students wanted to talk about, so we did,” he said. “But then I showed them the speeches of senators—Democrats and Republicans—berating the insurgents and putting forth a vision of an America that perhaps never was, but one day could, and I choose to believe will, be.” Sarah Lerner knew that the images of armed rioters could be triggering for her students. Lerner teaches English and journalism at Marjory Stoneman Douglas High School in Parkland, Fla., where 17 students and faculty members died in a shooting massacre nearly three years ago. “We understand what it’s like to be running, hiding, not knowing who’s out there or if I am next,” she said. The day after the storming of the Capitol, Lerner brought it up in her classes, sensitive to how students might be feeling. “I let them know that I’m here to talk or listen or refer them to someone if I can’t help them.” They thanked her, but most wanted to get on with the lesson. Lerner is the adviser for the school yearbook. She talked to her editors the day after the siege. They didn’t want to get “too heavy,” Lerner said, but the yearbook will cover the insurrection, because, like every year, “it’s a time capsule of the year.” Sari Beth Rosenberg teaches 11th-grade social studies and U.S. history at the High School for Environmental Studies in New York. Once her students processed their reactions—from lack of surprise to outrage—Rosenberg made sure they understood basic facts. “The certification of Electoral College votes isn’t on most Americans’ minds, and definitely not most kids’ minds,” she said. She wanted her students to know why protesters, many of whom became insurrectionists, were in Washington, what Congress’ duty was, and that, despite the storming of the Capitol and some members of Congress baselessly seeking to decertify votes, democracy worked.
“A lot of kids are getting their news on TikTok and Instagram, some of it good, some of it bad,” Rosenberg said. Teachers need to fill in the gaps and help students discern facts from falsehoods, she continued, adding that she is especially concerned about the spread of debunked conspiracies.
“Events are constantly changing,” Rosenberg said. “Our students are looking to us.”
American democracy itself is at stake. I take comfort in knowing that the new administration is committed to our democratic ideals, and that America’s teachers are guiding young people to think critically, to discern fact from fiction, to appreciate diversity and respect differences, and to develop the muscle to be engaged citizens. Thank you, America’s educators.
Photo: Adam Derstine
America’s teachers are helping students examine dangerous and disturbing events in real time.
Weingarten, right, on Oct. 9, 2020, with Marcia Howard, a Minneapolis high school English teacher, whose students live near where George Floyd was killed. Howard is here every day, protecting the youth and demanding justice.
