Friday, December 29, 2006
Thursday, December 28, 2006
“The only thing that comes close to this is dueling.”
Utah Associate Chief Justice Michael Wilkins, on a peculiar case before the court in which a 13-year-old girl is charged as both a sex offender and a victim for having consensual sex with her 12-year-old boyfriend
Wednesday, December 27, 2006
Of course, it has particular relevance to corrections sentencing. Stability and instability are cousins of order and disorder, law obedience and law breaking, self-government and not so much. Community and culture determine levels of crime far more than anything government does, and you see through these overviews just how important they are. What also stood out for me, and clearly the authors' intent, was how their descriptions of the changes, the fears, the resistance, the perceptions, the strength and weaknesses of institutions and mores all mirrored the nation as a whole as we go through similar ebbs and flows of demographics and values, the loss of "control" and the efforts (good and bad) to combat that loss. It's clear that strong neighborhoods are our best crime control policy and that funneling money into other efforts at their expense is foolish and ultimately self-defeating.
It's not a profound message, but it's done well and memorably. Short book, worth your time, maybe even as you need something peaceful and quiet to do after the coming weekend. No need to thank me.
Tuesday, December 26, 2006
The public seems to accept the idea of residency restrictions as a method of keeping children safe from sexual predators. Town councilors in Oakland, for example, passed their ordinance with little or no opposition, or even much comment from residents, despite multiple public hearings on the matter.
The councilor who brought up the idea, Ralph Farnham Jr., said he did so at the request of two mothers concerned about the safety of their children. When asked if residency restrictions are likely to be an effective measure to cutting down on the number of incidents of predatory sexual behavior, Farnham said he was uncertain.
"I don't know that," he said. "I guess it's a place to start with."
Not really much to say after that, is there?
Monday, December 25, 2006
- Really promising research in Britain to treat alcoholics by blocking the brain's orexin system which helps to regulate feeding (and other obsessions)
- Overview of drug sentencing of women and the impact on corrections sentencing, with good reviews of how women's treatment should be different from men's and how kids can be affected (h/t Sentencing Law and Policy)
- While you're at Doug Berman's place, check out his post on how we treat drunk drivers compared to the far less numerous sex offenders. (There's a post on the role of the cultural stories we tell about offenders and the penalties we end up doling out to be done at some time in the near future. Maybe I'll do it if New Year's isn't too bad.)
- Prawfsblawg highlights the latest NYTimes mag article on the Right's conversion to interest in prisons and prisoner rehab, which may provide the necessary political support to get away from some of the counterproductive "solutions" we've pursued for a couple of decades. There's always the potential problem of giving the government the foot in the door to regulate religious practice, which will have to happen as consistent standards are required to be applied ("equal justice" and all that) beyond the feared First Amendment problems. It's a very careful balance that will put even the best corrections department directors to the test. But it's a wave that can bring improved perspective as well and Lord knows it's nice to see someone actually take that "the poor, the sick, the prisoners" stuff seriously. Something very definitely to pay attention to if you're a corrections sentencing person at all.
- Finally, a farewell and good luck to Ken Lammers over at CrimLaw Blog. His traffic has dropped (to daily levels we'd love to get actually) and he's moving to videocasts. It's not easy to blog unless you're psychotically obsessed (I've heard), but the voices need to be growing, not shrinking. His will be missed.
Sunday, December 24, 2006
There were three basic types of legislators, we learned. The first was the "delegate." This person saw his/her role purely as a conduit for constituent needs. S/he was to have no personal views or act on any actually possessed. This person was simply a channel of public opinion to be faithfully rendered. Now any halfway mammalian brain can see the problems with saying this person will know and reflect the totally homogeneous view of all the constituents. Reality forces this representative to decide whom among constituents s/he will reflect while being this "bound" voice. That in practice isn't completely untethered discretion but allows much more wiggle room than the advocates of this role solemnly proclaim.
The opposite of this role for a rep is the "trustee," the person who believes s/he was chosen to do whatever s/he thought was best, regardless of constituent perspectives. "If you knew what I know, you'd do what I'm doing" is the basic idea. The first best-known proponent of this view was Edmund Burke, who promptly was defeated the next election after espousing this. You see it in the Kennedy "Profile in Courage" stuff, including Caroline's awards, which frequently go to more recent guys who were promptly defeated since it tends not to be that popular an idea with people who, like, want their reps to do what they're told instead of playing superior.
The third type--the "politico"--predictably is a cross between the two. Tries to be up-to-date on the issues and educates his/her constituents while keeping a finger on their pulse, or in the wind, or somewhere. Balance their votes between what is good for everyone and what is so important to constituents that they can't or won't cross them. In theory, this is the best, providing the most opportunity for good, informed policy, but is difficult to pull off either personally or electorally. It's just easier to take an ideological position if you have a majority with the same view or the PR tools to convince a majority you share theirs. Gerrymandering makes this pretty easy for most reps. (Most of us cyn . . . realists would add a fourth type, the "opportunists" who say anything, dole out goodies, and claim to be all three, depending on the majority of the audience. Academics take pride in not being cyn . . . realistic, though, so we'll leave this one off.)
The question is, how appropriate would this typology be for those appointed as sentencing commissioners? At first glance, it might seem very so. We explicitly choose commissioners from specifically designated groups, with the clear implication that they are the group "representatives." Analyzing commissioner roles, then, would seem to be simply a matter of figuring out what applies. Those of you with experience with commissioners can probably already think of different commissioners who fit all types. But that conclusion, while popular, is not only superficial but also damaging to commission work. Why?
One answer should include the word "appointed." Commissioners are chosen by elected and non-elected officials, not elected themselves. Keep in mind that, given the different sizes of the groups from which they are chosen, there is a definite violation of "one man, one vote" if representation is the intent. A sentencing commission is not a legislature and the people selected to it are not there to give their groups a "vote." The purpose of every commission is to provide to its appointers recommendations as to Best Practice to achieve whatever goals and to resolve whatever problems the commission is created to address.
For commissions like CA's (and maybe CO's in the future), the problems are not only enormous, they are desperately clear. The commission is to inform state policymakers how to best use scarce (and growing scarcer) correctional resources to achieve best public safety results--IOW, "What Works?" in keeping offenders from reoffending when released and in convincing non-offenders not to start. We know what the "What Works?" is for the bulk of them, and it's rarely what the groups from which the bulk of the CA commission are to be chosen want, at least for the bulk of offenders. The state cannot afford a commission made up of "representatives," delegates or trustees or even politicos. It needs the equivalent of the Space Shuttle Columbia commission, one that defines the problems and spells out objectively what needs to be done so the onus and blame will clearly be on the policymakers who receive their recommendations.
The last thing any commission needs is a bunch of appointees who see themselves as mini-legislators with constituents to represent. That's what emasculated the commissions I served in OK and WI. (And it technically wasn't even true that the commissioners "represented" their constituencies since I talked to many of the latter and knew that what the commissioner was saying in meetings at best "represented" only a fraction of them.) Commissioners are there for their expertise and experience to delineate what is possible in light of purpose or what the impact will be on their practitioners and clients if recommendations are proposed. Everyone of them must be there with a conception of the "public good" and the recognition that that "good" is frankly NEVER the equivalent of the professional and personal vested interests of the groups from which they were chosen. (For an example, read the description of being a commissioner by one of the best, Russell Butler, on the right.)
Anyone appointed to a commission should be required to take an oath to the "good" rather than the group from which they are appointed. Performance of that oath should be monitored by the commission chair at regular periods of no more than 6 months, and that chair should have the power to remove offending vested interests. Yes, the politics of it will be troublesome but consider the alternative. All it takes, and this is from unfortunate and frustrated staff experience, is one commissioner determined to have his/her way preying on the civility of fellow commissioners (who, mainly being attorneys and/or nice people, always tend to half the loaf to get along, to keep people happy and together, to seek a settlement, halfing and halfing and halfing until there's just one crumb that's not what the preyers want . . . and they hold out for that, too) and the commission will either fail completely or just end up an "average sentence for burglary" data-reporting agency. In the end, 2,3,4 years have been wasted with minimal to show and the state worse off than when the commission started.
Commissions are not legislatures and commissioners are not legislators. The roles have some similarities, but those similarities confuse differences that are far more important. Commissions have jobs of expertise and wonkery to do. Best Practice is the finding of careful analysis and evaluation, not the outcome of a democratic vote. The policymakers are the ones to take the votes, and the constituency groups will be free to work at that level. Having commissioners who see their roles as "winning" on commission recs will doom a commission at the start. Those serious about an influential commission will cut that off at the roots before it can even grow. CA looks like it will be the penultimate example of why.
Saturday, December 23, 2006
Axelrod had already established himself as an international relations specialist, especially with this applications of cognitive schema and mapping. But he’s made his most lasting mark with E of C, one of the first and still most important computer simulations, back in the day when desktop PCs were still pretty much sci-fi and being written off as unworkable by IBM.
What Axelrod did was perversely simple by today’s standards. He sent out a request to a range of scholars across many disciplines to have them submit what they thought would be the strategy that would pile up the most points in a long-term game of “Prisoner’s Dilemma.” Then he ran them against each other to determine what the most successful strategy was.
Don’t know “Prisoner’s Dilemma”? I could just tell you it’s a game played with weird enthusiasm by a bunch of academic nerds seeking esoterica for publication. But, less snidely, the game basically posits that you and your buddy have been caught dead to rights on a lesser offense, but the cops believe (but can’t prove) you’ve done worse together. To prove the latter, they have to get confessions. Now, being smart interrogators, they separate you two and offer you a deal. You finger your partner for the crime—he does the full time for the worser offense, you walk. Of course, he’s being offered the same deal, so, if you both rat each other out, you’re both doing harder time. On the other hand, if you both keep quiet, you’ll get a lesser sentence than if you both snitch. What do you do?
Axelrod assigned values to the four options—you “defect” and your partner “cooperates,” vice versa, you both snitch, or you both keep quiet—and played out the strategies. It doesn’t take a genius to figure out that, short-term, defection will be more popular, having the biggest payout and all if your partner is stupid enough to trust you. But, over the long-term, especially when you don’t know when the game will end, is it still smarter to be a jerk all the time?
No. Turns out that defectors bring on defectors, and the harsher penalties. But then, cooperators don’t do well either because, known for their predictable and certain cooperation, the defectors can dump on them at will and still pile up the big gains. Which leads us to the simple strategy for winning long-term—that is, reciprocity or TIT FOR TAT. Which is exactly what it sounds like—whatever is done to you, do it back. Defect, defect, defect until the idiot figures it out. Once you’re both on “cooperate,” you’ll get consistent points even if they aren’t the highest possible per turn. And groups of interacting cooperators, having demonstrated their willingness to defect when defected upon, pile up the points.
Now, Axelrod later found that a little mercy sometimes worked a little better(if the partner mistakenly defected or only did it once in a very great while, like your sad, sad lovelife), but overall TIT FOR TAT was an amazingly successful strategy. Change the rewards for defecting or cooperating, or course, and the game can change dramatically. But the message was essentially this: Do unto others as you would . . . well, you get it. And it was scientifically proven.
The implications for criminal justice should be obvious. Transgressions must be met in proportion to the harm done, and defectors must be rewarded for choosing to cooperate. The costs of defecting must be made higher than those of cooperating or certainly of doing nothing in response at all. This speaks to the punishment aspect. But first, we have to guarantee a definite response. Certainty comes first, then severity (which is as crim theory also has it), meaning policy that short-changes proactive prevention or apprehension and accountability in the name of perhaps possible later punishment will be short-sighted and less effective. Then, once the proportionate response has been made, we must reward the prodigal defectors for their return to cooperation. If we don’t, if we keep them from jobs, from voting, from living among us, then there are no points in cooperating, are there? And we know how to spell “recidivism.” Yes, you do prison, but only as demonstrably necessary to counteract the defection and as part of a holistic crim just policy strategy.
Axelrod’s book, and subsequent sequel, The Complexity of Cooperation, have far more depth and nuance than I can relate here, including the answers to the objections you undoubtedly came up with as you read my summary. And his major concern was international relations, not interpersonal ones. But the lessons apply to any interactions in which gains and losses are distributed based on practicing reciprocity or on asserting superiority—parents/children, bullies/bullied, sweetie/sweetie, crook/cop, boss/employee, prosecution/defense, political party/political party. A lot of great analysis has connected Axelrod’s dots in the last 26 years. There’s a lot more to be learned and applied. It’s good to see the book still has an audience. I hope you’ll be in it.
Friday, December 22, 2006
Thursday, December 21, 2006
Wednesday, December 20, 2006
Tuesday, December 19, 2006
I've talked repeatedly about how the biggest crime deterrent effort we can make is to give everyone a belief that laws are just and fairly administered, a la Tom Tyler's Why People Obey the Law (reviewed last month or so). So look at this case this way: not too long ago, a middle-aged powerful white man not only walked free after being uncovered for the same behavior, he is now feted and hailed by large crowds as their hero or villain while a young, powerless black man is spending 10 years in prison for the same action. You want young black men to obey the law? When law does this? Please.
About a decade ago Gary LaFree (U-MD crim program--#1 in the nation, I taught seminars there!!!) published Losing Legitimacy, a book linking the crime increases from the 70s into the 90s with the decline in legitimacy of all US institutions, not just government, over the same period. LBJ and Nixon, Watergate, Iran-Contra, Lewinsky, Iraq, innumerable smaller scale travesties by officials at all levels, in all institutions. Exactly the same time. Before impeachment-gate, though, we had sort of cooled down ethics-challenged-wise and the polls showed growing support for all institutions again, before the s_m_n-stained dress and before pretend WMD. In other words, the decline in respect for institutions paralleled the decline in law obedience. As support rebuilt, crime went down. As respect has fallen again, crime starts going up again. Coincidence? Maybe. But that's a lot of smoke, especially when you consider again that our decrease in crime doesn't really correspond well to any of the major policy actions we've taken to combat it, in light of Canada's similar declines without doing any of those things. And Gary is one of the brightest guys you'll ever meet, now handling a major homeland security grant at U-MD. Does it really sound so silly, in light of his research and Tyler's, that having a legal system that produces such conspicuously divergent results for people of different ages, colors, and power would have the long term effect, if prevalent everywhere, of creating a law-disobeying culture?
All I'm saying is that, just because you have the power to invoke corrections sentencing, you don't have to when the payoff will be so minimal compared to the costs. The prosecutors and court did all criminal justice a major wounding with this case. The unfairness of it and all the similar injustices will reverberate and reinforce all the things that people who want an excuse to break the law and stick the system will need to justify those actions. No one was protected here. There was no victim (besides the guy in prison). A life may be irreparably damaged. And the expenditures could have gone to prevention of real crimes and victims. The state legislature changed the law because of this case, for God's sake, but its genius justices can't connect the dots. The only upsides are that we showed that black boy, by golly, and proved sodomy wrong. Now find us some stones and bring on those adulterers, divorcers, cutters of beards, and eaters of shellfish.
Too much of our corrections sentencing policy could tell the same story. Maybe the attention that Doug and others are bringing to this case will cause us to back off just a little and use a little more sense next time. It's not just an embarrassment to GA. It's an embarrassment to the entire nation. We can't afford any more of these assaults on law's legitimacy and future acceptance of our policies. This hole is too deep already. It's time to stop digging.
Monday, December 18, 2006
The other set of article/reviews deals with violence risk screening in community corrections, where such assessments are vital for agents as well as general citizens. Kim a couple of weeks back gave you an excellent overview of the article and the issues it raises so I’ll just add a couple of thoughts.
The editorial intro was probably as valuable to me as the set itself, noting the basic methodological and administrative problems with risk assessments but also lauding the academic-practitioner partnerships that we’re seeing developed in this area. I found the overviews of effective assessment generally and specifically in Multnomah Co. (OR) interesting and thorough. I also appreciated the clear implication that these instruments are likely to be widely used due to the high costs of developing and administering them in individual jurisdictions. I found myself imagining each new “advance” in technocorrections being adopted for the same cost-cutting reasons . . . and posing similar questions of methodology, administration, and ethics. I hadn’t thought of this area as a possible resource for that one, but it may be. In any case, good articles, all worth your time.
Saturday, December 16, 2006
Friday, December 15, 2006
Enjoy the weekend. Be sure to eat out.
This is one of those occasions when it helps to consider the criminal justice system as a system. Mentally ill people disproportionately come in contact with the CJ system, from arrest to incarceration. Our jails and prisons contain a disproportionate and growing number, as documented by BJS here:
At midyear 2005 more than half of all prison and jail inmates had a mental health problem, including 705,600 inmates in State prisons, 78,800 in Federal prisons, and 479,900 in local jails. These estimates represented 56% of State prisoners, 45% of Federal prisoners, and 64% of jail inmates.
Further, the mentally ill prisoners are at least somewhat more dangerous to citizens, other inmates, and staff - both based on prior record and current infractions. The BJS study notes that State prisoners who had a mental health problem (61%) were more likely than State prisoners without (56%) to have a current or past violent offense. The BJS study also notes that State prisoners who had a mental health problem were twice as likely as State prisoners without to have been injured in a fight since admission (20% compared to 10%). This means staff will be under pressure to respond professionally to a particularly troublesome clientele. One of the issues raised in the documentary is that employee training is vital to appropriate response.
Jurisdictions such as my own are grappling with ideas for better procedures. For example, one of the earliest points of contact with the CJ system is at arrest. Police departments are attempting to build interdisciplinary crisis response teams to link police with mental health services – which may mean diversion from the criminal justice system to treatment in an inpatient or outpatient setting. Whether diversion occurs or not, police need to be trained in detection and treatment to identify the problem early and deliver the appropriate response, and that may mean calling on other professionals. And of course we all know that inter-agency and inter-discipline teams are complicated and require skillful coordination to work.
Later on down the line, after arrest, specialized courts are also appearing to address the problems raised by the mentally ill in the CJ system (here). For pre-trial/probation/parole departments, timely linkage of mental health professionals for pre-trial releasees, probationers and parolees can avoid costly incarceration in some cases and trouble later (e.g., here and here). If incarcerated, prisons and jails need resources devoted to mental health treatment, and staff trained in emergency response. Federal prisons and most State prisons and jail jurisdictions, as a matter of policy, provide mental health services to inmates. However, staff training, or lack of it I should say, appears to have been a major problem documented in Up the Ridge.
Thursday, December 14, 2006
- Doug Berman catches a nice article on how the (im)maturity of teen brains is popping up as a possible factor at trial. As we all know from Edward Levi's intro to legal reasoning, it doesn't take long for these things to fuzz up and bleed into findings no one predicted, opening the door for the MRIs and other technocorrections concerns we've been raising. (Fuzz and bleed? Sorry. I told you I'm recovering.)
- Real Cost of Prisons has a couple of good items--one on the $500 m. CO needs to house its 5000 new inmates in the near future and one on Marc Mauer's latest "incarceration nation" piece.
- And here's an interesting piece. Turns out that OK is facing a major prison population problem and is considering structured sentencing as a means of dealing with it . . . sorta what got me to go to work for its sentencing commission in . . . 1995. If you're wondering how I got that giant bruise and soft spot in the middle of my forehead, well, now maybe . . . .
“In the last decade, 245 prisons sprouted in 212 of the nation's 2,290 rural counties, many in Great Plains towns of Colorado, Oklahoma and Texas that had been stripped of family farms and upended by the collapse of the 1980's oil boom, said Calvin L. Beale, senior demographer at the Economic Research Service of the Agriculture Department.Mr. Beale said an average of 25 new rural prisons opened each year in the 1990's, up from 16 in the 1980's and 4 in the 1970's. Growth followed. In the 212 prison counties, the population rose 12 percent in the 90's, far more than rate of 1.5 percent in the preceding decade. Three small Oklahoma cities with new prisons — Hinton, Sayre and Watonga — grew more than 40 percent.”
And there is little question that Main Street (in this case Sayre, OK) wants the prisons:
“As in many other small towns around the country, a three-year-old, $37 million,However, there has been little empirical research on the viability of using prison sitings as an economic recovery tool. This prompted a Sentencing Project study here on the economics of this choice, examining 25 years of economic data for rural counties in New York, covering both (1) counties in which prisons were built and (2) those without any facilities.
1,440-inmate, 270-employee, all-male prison is responsible for lifting
Sayre's spirits and reigniting its economy."In my mind there's no more
recession-proof form of economic development," said Jack McKennon, 52, the city
manager who persuaded the Corrections Corporation of America to put its prison
in Sayre. ‘Nothing's going to stop crime.’”
The authors find that prisons create new jobs, but not necessarily for local residents, who may not be in a position to be hired for these jobs. Key findings include:
- Unemployment rates moved in the same direction for both groups of counties and were consistent with the overall employment rates for the state as a whole.
- Counties that hosted new prisons received no economic advantage as measured by per capita income.
Later the report notes that prison proponents contend that rural prisons will produce a multiplier effect (in theory, each dollar travels through the economy as it is spent and received, and the effect is the portion of the original dollar that remains in the local economy, as compared to the portion that “leaks” out to other areas.)In theory, a prison becoming embedded in the local economy becomes a development lynchpin. However, government or private prison jobs run a poor second to agriculture for its ability to produce a local multiplier effect.
The Sentencing Project report concludes:
“Results of this analysis of prison siting in rural counties in New York State since 1982 indicate that reliance upon a prison as a means of economic development is short sighted and not providing any long-term growth. The siting of a prison did not significantly influence either unemployment or per capita income. Moreover, once a town hosts a prison and becomes known as a “prison town,” discussion of other means of economic development is likely to evaporate.”
In short, while I'm not sure this single study can be regarded as in any way definitive, maybe we need another rural economic development plan.
Wednesday, December 13, 2006
A relatively new documentary film, Up the Ridge, is not in widespread distribution yet (see below). I suggest you look for it.
Nick Szuberla and Amelia Kirby are volunteer DJs for the Appalachian region’s only hip-hop radio show. They received letters from inmates of a newly-opened, super-max prison (Wallens Ridge State Prison in Big Stone Gap, VA - let me tell you, that's a pretty remote place - I've been to that town). The letters detailed prison abuses (including inmate deaths) and racial tension within the prison, primarily between ill-trained guards and contract prisoners brought in from other states (Connecticut, New Mexico, etc.) to fill available space. So what did the DJs do? They became filmmakers, documenting the prison industry in their community. Up the Ridge deals with the impact of moving large numbers of inner-city minority offenders to distant rural outposts.
The film raises many troubling issues. One is the use of prison jobs as an economic development tool for rural areas, and the potential racial and cultural conflicts created by this strategy. US prison populations grew by 1.1 million people from 1980 to 2000, disproportionately affecting minorities. African Americans have six and one-half times the lifetime risk of going to prison as compared to whites, and Hispanic risk is four times white risk. Of course, some disparity is warranted by the risk to public safety and the differential crime rates among groups. However, the film addresses the clash of cultures brought on by this prison construction boom, disproportionately incarcerating minorities, and disproportionately located in rural areas which may have overwhelmingly white populations in desperate need of jobs. Of course, these problems may remain latent, and prison management problems are surely substantially to blame in this case.
Another issue is the mix of offenders for whom super-max prisons were designed to house, and intended procedures for housing them, as compared to actual practices. Human Rights Watch issued a briefing paper here which addresses several of the issues, in what I think is a balanced manner. (Human Rights Watch is an independent, nongovernmental organization dedicated to protecting the human rights of people around the world, and has been critical of various aspects of US incarceration policy.)
"A human rights assessment of supermax confinement requires consideration ofMany of these issues come into play in this one-hour documentary. Up the Ridge documents that Wallens Ridge prison was accepting inmates from other states that were not violent criminals, in part because super-max facilities are expensive to built and operate and need to be full. The conditions also appear unduly harsh, and many inmates had medical or mental problems for whom that treatment was unbearably cruel - in fact, lethal.
three factors: eligibility criteria, specific conditions, and the duration of confinement. Each must be considered in relation to the others. For example, extreme restrictions and controls that might be considered reasonable in dealing with incorrigibly violent inmates become excessive for inmates who are not. Deprivation of sources of stimulation, human contact, and activity that may not be unbearably cruel for some inmates can become torture when imposed on mentally ill inmates. Harsh conditions that might not be unacceptable for a month or two become inhuman and degrading when imposed for years."
See a clip here.
Pre-purchase a DVD here.