Thursday, October 19, 2006

Research and Expressive Justice

At the Friday morning roundtable on sex offender recidivism at the BJS/JRSA conference last week, JRSA Research Director Stan Orchowsky started it off by noting that, of all the gaps between what policymakers do in criminal justice and what we know about offenses, offenders, and how to manage them most effectively, the gap with sex offenses is largest. Then Kim English, the CO Statistical Analysis Center director, proceeded, with the help of very experienced colleagues, to demonstrate. (CO in this country (or Canada if you like that country) is the place you should go if you're serious about sex offenses. If you're not, just about anywhere else will do.)

They described the successful efforts in CO and what the research showed. Oddly enough, the talk on what is effective included no mention of castration (chemical or otherwise, neither of which actually guarantee success ending sexual assaults, which Kim described in ways I won't detail in a family blog), mandatory minimums (victims and their families will file fewer charges because the offenders are overwhelmingly loved ones), or housing restrictions (let's create gypsy bands of homeless perverts with no incentive to stay straight, why don't we?). No, what they described was insightful and practiced, with nary an ounce of touchy-feely (we decided it was hard to keep terms appropriate when talking about this), but it took work, patience, vigilance, and tolerance of inevitable human failure (ours, not the sex offender's). A quick ten bucks to anyone who thought "United States" as you read that list. (The reports of Kim and her staff on this can be found here.) What's amazing, though, is that CO officials do seem to pay at least some attention, although from comments it's clear not enough to guarantee adherence to reality in the face of political/media wisdom.

The question the rest of the participants grappled with as much as the details of really having an impact on sex offenders was the one I noted yesterday: How do we get policymakers, on issues making it to public concern (research as more impact on under-the-radar problems, until they hit radar anyway), to base policy on what will work instead of the popular but groundless "conventional wisdom"? How do we close the gap between what we pretend will work because it sounds good v. what really will work but is hard, takes money and time, and won't be 100% successful because, unfortunately, we're human?

Well, I guess I sort of answered that, didn't I? There are two aspects of sex offending, though, that illuminate the overall problem for most offenses, aspects spelled out for us by crime journalist David Anderson in his Crime and the Politics of Hysteria over a decade ago. One is the concept of "expressive justice," which came here with the Calvinist settlers and has marked our criminal justice policy ever since. He defined it as "laws, policies, and practices that are designed more to vent communal outrage than to reduce crime." We can argue about the inherent value of this policy motivator, but that will just be opinion. The practical effect of it will always be to ignore any evidence or information that doesn't support the communal outrage and to embrace practices that will not be economically justifiable, whether professional analysts like it or not. And, as I noted a while back, there is actually a rationality to doing cost-ineffective things if it prevents calculating offenders from figuring out what they can get away with doing to you.

Clearly, sex offenders call up as much or more outrage as any other offense. That's because they fit well the second important aspect of Anderson's analysis: the criteria necessary to get the news media's attention to make certain crimes worthy of extensive coverage:
  1. luridly violent crimes with serious injury or death
  2. middle-class, usually white, victims
  3. wholly innocent victims
  4. randomly-selected victims
  5. offenders with history with the criminal justice system (which should have managed them better or kept them locked up

Sound familiar? Did the names "Jessica," "Polly," "Megan," or others come to mind? (We reflected at the roundtable how attaching a name is all it takes to denigrate the legacy of the victimized child whose name is borrowed to pass laws that inevitably and counterproductively end up creating less justice and likely more victims. But the policymakers get elected, the parents get on tv, and the news media prosper.)

Faced with the outrage and demands of "expressive justice" marshalled to protest victimization of the innocent, what policymaker or practitioner would be stupid enough to say, "Yes, but our research shows . . ."? (Actually, Anderson details how, when that does happen, the inevitable response is, "I'm not a number! I'm not one of your statistics!!") So bad, sometimes horrendous policy happens even though people like Kim can give chapter and verse on what it will bring. We can see the cliff coming full speed ahead, but we can't stop. People, businesses, governments, nations--they all have the same excuses, the same devotion to sunk costs, the same fear of changing unless forced to, the same beliefs that they're really good and nothing that bad could actually happen to folks like us. Then, smash.

Ultimately, expressive justice and citizen inertia are why our extensive research has not resulted in the better, safer, most cost-effective society we could have. We can't really claim to be ignorant of this. We've been told. But, like health care, another ship looking for an iceberg, we know how high the bills will get if the money's not coming from our own pockets and no expense is too great for our vision of justice. "How dare you put a price on human life?" is the response to rational, realistic thought in both health care and criminal justice. People are all too happy to pay a "justice premium" if they're using house money.

Until people pay the costs directly or they become irrefutably too high for the community (and maybe not even then, eh, CA and TX?), we can "enable users" the best we can, we can educate and inform, but, especially in our self-drama-filled culture extolling human exultation, evidence will almost always lose to a scary story or one in which we play the heroes and consecrators until reality becomes too costly to ignore. Therefore, the answer to how we get our research listened to and used better is not to make ourselves better understood or to somehow learn how to communicate to the public better. What is it then?

Ah, that's tomorrow.

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