Tuesday, October 31, 2006
UCLA law professor Sharon Dolovich and Washington University law professor Margo Schlanger are co-editors of a new Social Science Research Network journal, Corrections and Sentencing Law and Policy.
Corrections and Sentencing Law and Policy Abstracts will provide a forum for works-in-progress, abstracts, and completed articles dealing with the broad range of doctrinal, theoretical, and policy issues relating to the punishment, sentencing, and re-entry of convicted criminal offenders. Topics include (but are not limited to) prison and jail conditions and life; prisoners' rights; probation, parole, and re-entry; prison and jail administration; imprisonment and diversionary sentencing, and the death penalty.
The journal also invites submissions dealing with the implications of incarceration and other criminal punishments for families, communities, and society as a whole.Contributions from all disciplines are welcome, and scholars working in this area are encouraged to submit their work.
To Subscribe, click here:http://hq.ssrn.com/jourInvite.cfm?link=corrections-sentencing-law-policy
To view papers, click here:http://www.ssrn.com/link/corrections-sentencing-law-policy.html
The journal’s advisory board includes Douglas Berman (Ohio State Moritz College of Law); Lynn Branham (Thomas Cooley Law School); Brett Dignam (Yale Law School); Malcolm Feeley (Boalt Hall); David Garland (NYU Law School); James Jacobs (NYU Law School); Dan Kahan (Yale Law School); Pam Karlan (Stanford Law School); Ira Robbins (American University Law School); Carol Steiker (Harvard Law School); Robert Weisberg (Stanford Law School); and Larry Yackle (Boston University School of Law).
SSRN’s on-line research network disseminates abstracts and working papers of researchers internationally in a variety of subject areas.
SSRN UserHeadQuarters: http://hq.ssrn.com
[Remember in the future that we have a link to this new journal on the right side here if you want to check in and this post has disappeared. We're looking forward to seeing what this venture will produce. Give it props when you can.]
Grits for Breakfast has been prodding me for supporting restrictions on sales of meth ingredients and for wanting meth production and distribution managed from south of our border. Actually, since I live on Actifed in the summer, the restrictions annoy me. Here's reality. Meth is the drug du jour, running its course for a while until something new comes along or bad experience with old drugs fades in memory. We cycle drugs that way in our culture, and meth is going through all the stages of past ones, like crack or ecstasy in recent years. IOW, we have it and will have it, whether it's made by Mom and Pop or by foreign crime types. That part's a tossup to me. I'm looking at the secondary effects as it cycles and at when the cycle is complete. There are no good choices as it plays itself out so I'm not supporting anything. But do I want children here exposed to meth as it's made. No. I don't want them hurt, and I don't want to pay for their care. Do I want former meth houses, toxic and harmful, sold here as new? No, I don't. Am I pushing at least some of the costs off on other nations poorer than we are? Yes, I am. Do I like that? No, I don't, but I'd rather have the money to put into treatment, prevention, econ dev so people don't have to make meth to make money. Will the savings go there? No, not much, but more than if we have it made here. Is this all cynical and self-serving? Not all, but enough. But it's the best I can see. Is TX in the path of all this, hurt more than those not on the meth border? Yes. Still doesn't change the cost-benefit tilting (just slightly) to stopping meth from being made here. Grits lives in TX and clearly has a different C-B. Who's right? Neither of us since consequences aren't yet known and people would give (are giving) them different weights if they were. But that's my response. (Except I think I'd play up gangs' roles in distribution more if I were taking Grits' position.) . . .
Finally, we talk a lot here about future correctional health costs, mainly from aging inmates, but there are present concerns as well, AIDS obviously, and hepatitis C. This report from St. Louis U. Liver Center scientists shows significant progress at controlling the disease, in terms of drugs used and of therapy to reverse damage in chronic hepatitis C cases. No indication what the costs will be at this point, but they would have to be high to be worse than what the disease itself is doing to budgets.
The previous discussion focused on the effectiveness of Drug Courts, and found a lot of reputable evidence that they are effective. However, one can be effective in enacting a policy that has misplaced priorities. So we need to examine the policy.
I promised on Oct. 27 to take up the policy issue soon, in particular the arguments that
- Drug courts diminish the advocacy role of defense counsel.
- Judges are called to be treatment leaders, yet lack the training and credentials to oversee treatment administration.
Central to drug courts is the understanding that involuntary treatment can be effective and that thousands of people that have gone through treatment in drug courts would not have sought out nor had access to treatment otherwise. It is coercion. It requires both judges and defense counsel to play different roles, as part of a probnlem-solving team.
Thus, questions about ethics and advocacy arise. The National Center for State Courts (NCSC) has an excellent resource here providing some useful discussion of ethics. I quote from it extensively below. Another excellent resource is the Center for Court Innovation here.
Regarding the role of defense counsel, the NCSC summarizes the problems as:
“The lawyer’s goal [in drug court] is not to win or to intimidate, but to do what is therapeutically best for the client. This goal seems in opposition to the lawyer’s mandate of zealous advocacy…. [despite] ABA Model Rule 2.1 [which] allows attorneys to exercise independent professional judgment and, if relevant, provide extralegal advice.”
Issues that may arise for defense counsel include how to balance one’s duties on the problem-solving team (that includes the prosecution and judge) jibe with one’s duty to the client, how to deal with a client that “snitches” on others in program, how to handle information from the defendant that relates to acts while in the program (problematic as attorney/client privilege does not extend to future crimes), and shifts in the burden of proof.
The NCSC advises that defense counsel fully advise client before opting for a problem-solving court. Defendants should know their options, program requirements, and their
legal rights. It also argues that defense counsel stay involved in the development of problem-solving courts to make the defense bar’s concerns heard.
I have not been a defense counsel, and not interacted with many in this setting. These do seem like tough issues though. I hope some of you out there will share your stories.
Again relying on the NCSC report, the problem-solving model changes the judge’s traditional role to “powerful motivator, confessor, task master, cheerleader, and mentor.” Many judges demonstrate enthusiasm for this role. The NSCS rhetorically asks how such processes can be reconciled with existing ethical duties of judges.
Potential problems for judges may include increased levels of community involvement, ex parte communication with defendants, the need to praise or sanction the defendant must be balanced with the judge’s commitment to impartiality, problem-solving courts probably rely coercive intervention more than traditional courts, and certainly rely on a team approach more than traditional courts.
“Some possible solutions to judicial ethics issues include:
· Use the Memorandum of Understanding (MOU) from start of process
· Have mechanism to resolve issues before they arise
· Rely on and be familiar with resources for judges (e.g., canons, presiding judge, ethics
hotline, etc.) to ensure no violations,” etc.
Judges as Treatment Administrators
A small fraction of today’s offender population is served by drug courts, despite widespread substance abuse dependency issues and treatment needs. A recent study of jail inmates found that in 2002 -
68% of jail inmates reported symptoms in the year before their admission to jail that met substance dependence or abuse criteria.
16% of convicted jail inmates said that they committed their offense to get money for drugs.
Prison and other correctional populations are unlikely to be very different from jails. Drug courts are resource intensive and serve a small fraction of the correctional population’s demonstrated need. Can we afford to expand this problem-solving approach even if we deem it effective AND we conclude it does not sacrifice other features of our justice system?
Well, maybe we can do it on the cheap, you say? To what extent can or should the problem-solving techniques used in drug courts be extended to conventional courts? Certain features can be and are transported, such as direct judicial questioning of the defendants and problem-solving court orders. Some judges use split sentences, a period of incarceration to be followed by probation, as a means of ongoing supervision. All the above are problem-solving approaches in a more conventional setting.
How about the issue of treatment and social services? To me this gets to the heart of the second issue raised on October 27, the question of whether judges are the best treatment administrators. Is it good correctional practice to have judges ordering detailed services from corrections officials, often without risk or needs assessment that are becoming a standard part of correctional supervision? Aren't correctional administrators better placed to monitor both availabilty and administration of therapy and programs? To me, oftentimes, the answer is yes. We’d like to hear from you out there with direct experience on this point.
Also it raises the question of whether judges can leverage social services outside a drug court context. Is the judge going to order social service providers to place defendants at the head of the line for scarce public services? Ahead of the rest of the community? Are probation departments expected to cover the costs?
These are all tough ethical issues. Please give us some feedback from your experiences.
Monday, October 30, 2006
Saturday, October 28, 2006
This is part of what I'm talking about when I talk about the plateauing of guidelines as a means of shaping sound sentencing or structuring policy and resources. The original momentum for guidelines, it's always seemed to me, came from the general cultural mistrust in the 70s into the 90s of professionals and their discretion to make important decisions in our lives at the time. (See teachers, tests and standards; doctors, HMOs; ministers, rise of "tell me what I want to hear" churches, etc. I don't include policy analysts here because our complaint is that we've never been allowed to make those decisions.) While those attitudes are still certainly at play, the backlash against the "solutions" has gotten stronger, and I believe it's also reflected in this poll. Inherent in guidelines, mandatory mins, three strikes, etc., is the notion that judges don't know as much about what they're doing as they think and that regular folks can make decisions just as good or better. For all the activity we yet see in these areas, particularly man-mins, they really have not captured the flag, and it looks like judgments of judges and the wisdom of those who would control them are swinging back the other way. Within that context, interest in guidelines has shifted more to advisory than prescriptive, if interest remains at all. That's why, in the current milieu (I really was trying to stay away from that word, but I ran out of synonyms), options like sentencing information systems and Judge Marcus' "smart sentencing" that inform judges and policymakers about what's happening and best practice are building an upsurge. I'm not tolling a death knell for guidelines, and certainly not for commissions which might actually play a more relevant role with the new approaches, but I do think that those concerned about sentencing, corrections, resources, and justice should take note of polls like these. They indicate that the ground has shifted and that new strategies and approaches are warranted.
Guidelines were never an easy sale in any case. These polls indicate that it's just going to be harder.
Friday, October 27, 2006
On September 25, 2006, the U.S. Department of Health and Human Services released the attached Substance Abuse Treatment Advisory entitled: "The Role of Biomarkers in the Treatment of Alcohol Use Disorders". NADCP is disseminating this advisory to keep drug court practitioners current on the state of the science associated with ethyl glucuronide (EtG) testing and its use in alcohol abstinence monitoring.
The advisory contains the following guidance:
"Currently, the use of an EtG test in determining abstinence lacks sufficient proven specificity for use as primary or sole evidence that an individual prohibited from drinking, in a criminal justice or a regulatory compliance context, has truly been drinking. Legal or disciplinary action based solely on a positive EtG, or other test discussed in this Advisory, is inappropriate and scientifically unsupportable at this time. These tests should currently be considered as potential valuable clinical tools, but their use in forensic settings is premature."
The fact that SAMHSA's Center for Substance Abuse Treatment (CSAT) was reviewing the interpretation and utilization of EtG testing results comes as no surprise. However, the stark conclusions rendered in this guidance document will likely come as a shock to many drug court professionals. Since its introduction and commercial availability, within the last couple of years, ethyl glucuronide (EtG) testing has become widespread. The conclusions of the SAMHSA advisory will undoubtedly have a significant chilling effect on the continued use of this alcohol abstinence-monitoring tool.
This advisory concludes that the science of EtG testing - our capability to employ highly sensitive testing procedures to detect recent ethyl alcohol exposure - has outpaced our ability to appropriately interpret the test results in a forensically defensible manner. The conclusions expressed by SAMHSA are not the result of inherent flaws in the testing science for EtG, but rather in our inability to interpret those results in a way that allows the reliable differentiation as to the source of the alcohol - consumption versus unintended exposure. CSAT, through its National Advisory Council, has concluded that there is inadequate research data about the populations being tested to evaluate an "individual's likely exposure to products containing nonbeverage alcohol, and the consequences for the individual and society of the individual's being erroneously labeled."
Ethyl alcohol is ubiquitous in our environment. A very brief list of sources - medicines, foods, beverages, personal care products, cleaners, herbal preparations, etc. There is currently insufficient information to assess the degree to which any one of these sources (or indeed, a combination of sources) can result in the incidental exposure to ethyl alcohol and the subsequent production and identification of EtG in urine.
For some time, many of us in the scientific community have been urging programs utilizing ethyl glucuronide testing to set the cutoff concentration high enough to avoid the potential of "innocent positive" results from inadvertent or environmental alcohol exposure. Unfortunately, the lure of the highly sensitivity EtG test combined with attempts to obtain "zero-tolerance" monitoring led many to ignore the risks despite mounting concerns. Many programs (mostly non-drug court related) continued to apply the 100 ng/mL cutoff that has undoubtedly led to inappropriate license revocations, unwarranted job dismissals and imprisonment of innocent persons. On August 12, 2006, the Wall Street Journal in a front-page article on EtG featured the following headline; "A new screen detects Sunday's gin in Monday's urine but it may be ensnaring some innocent people too." In the face of perceived injustices, adverse publicity and the misuse of EtG testing results, SAMHSA has taken a hard line regarding the on-going use of these analyses for criminal justice and forensic purposes.
The advisory will be viewed by many drug courts as rendering any EtG result as legally inadmissible for the purposes of client sanctioning. However, it would be unfortunate if programs abandon EtG testing altogether. Ethyl glucuronide remains an effective alcohol abstinence monitoring tool that permits rapid therapeutic intervention.
In conclusion, drug courts are strongly urged to review this advisory and assess its impact on current policies and procedures related to the monitoring of clients for alcohol usage via EtG testing. As the advisory concludes, until further research enhances our understanding of the test's positive predictive value and the potential sources of false positives, caution is advised when interpreting EtG testing results. NADCP will keep you informed of future research findings and their impact on court proceedings.
Paul L. Cary
Toxicology & Drug Monitoring Laboratory
University of Missouri Health Care
Columbia , Missouri
In social science the phenomenon is well enough known to have its own concept--"moral panics." They're as well-defined and predictable as eclipses, which also scared ignorant people who listened to opportunistic shamans who played their fears and explained causes and effects in equally certain and totally wrong terms. As we've emphasized here lately, there are good (that is, effective) ways to deal with sex offenders of all types (starting with identifying the type you actually have) and bad (that is, counterproductive and ultimately more dangerous to children) ways. IOW, there is real policy that truly tries to understand and deal with a problem and there is pretend policy that understands little and wants people to believe a problem is dealt with when it is not. This is not the former. (Pattis probably doesn't want to read about this case involving a third-degree misdemeanant being sent back to his family in Canada and the howls from politicians there. Same mentalities, just different faces and mountains.) In the end it's sad really, but we're dealing with humans, after all.
Steven Erickson argues in the brief posting that there are serious questions about drug courts, Effectiveness questions and Policy questions. Let’s look at effectiveness today.
Erickson argues that many studies are fatally flawed by:
- Intent-to-Treat analysis is not performed, meaning only program completers were part of the treatment group, not drop outs, thus inflating the success rates.
- Comparison Groups are missing or not truly comparable.
- Follow-up periods are too short.
- Sweeping Conclusions of success are belied by low completion rates.
The key to Erickson’s argument is the use of the terms “many studies” and “most studies” when citing fatal flaws. But the Campbell Crime & Justice Coordinating Group here discusses the scientific standards more completely than Erickson, and the means to weed out flawed studies. Systematic reviews are the key to screening out the flawed studies that Erickson rejects:
“Unlike traditional ways of reviewing and summarizing research on ‘what works’, systematic reviews use scientific and explicit methods to identify, screen, appraise and analyze evaluation studies. This kind of rigorous review produces the most reliable evidence on what the science says about a particular question.”
Meta-analysis is then used to survey the cumulative results of the studies that pass muster, often carefully controlled experiments.
Such a meta-analysis was conducted by David B. Wilson, OJ Mitchell, and Doris MacKenzie here. Here are there conclusions:
- Drug courts are an effective policy for handling drug offenders
- Best estimate: offending reduced approximately 24%
- Drug courts generally cheaper than alternatives (e.g., prison)
- This meta-analysis supports a policy of continued expansion of drug courts
(By the way, if a new drug protocol improved survival rates by "24%", would Erickson call that an absurdly "sweeping conclusion."
As "Drug Courts: The Second Decade," (see NCJRS) concludes recently “a number of randomized and controlled experimental studies published in peer-reviewed journals have found that drug court graduates have significantly lower rearrest rates—lasting more than 2 years beyond graduation—than those who do not participate in the program.”
So “many” studies are not fatally flawed, and in fact display some of the highest standards of social scientific evidence. So much so that one author, John Goldkamp, an acknowledged expert in the field, considers the question whether drug courts work the wrong question. Goldkamp’s presentation at NASC here mentions at least 10 reputable studies in what is not intended to be a comprehensive list. He is so certain of the positive findings of enough reputable studies that he does not ask “Whether” drug courts work, but rather “How” do they work and “Why” do they work, when they work.
I will mention one of the most reputable published studies with positive results:
“Long-term effects of participation in the Baltimore City drug treatment court: Results from an experimental study” in the Journal of Experimental Criminology (April 2006) by Denise C. Gottfredson, et. al. This study exhibits NONE of Erickson’s fatal flaws with a careful comparison group and three year follow-up.
Erickson, citing Judge Hoffman from North Carolina, argues that drug courts are bad public policy:
- Drug courts diminish the advocacy role of defense counsel.
- Judges are called to be treatment leaders, yet lack the training and credentials to oversee treatment administration.
This will be the subject of a later post – maybe one of you will volunteer to take this on? Suffice it to say that he may have a stronger case here.
Thursday, October 26, 2006
Wednesday, October 25, 2006
One of the articles that I mentioned last week "DNA is Not Destiny" (Discover Magazine, October 2006) was good reading, distantly related to your favorite subject, "technocorrections." The article was about the chemical markers that switch particular genes on/off. The general term is epigenetics. Here's a good summary of the article, from the article itself:
The mind-set at the moment is that the information we inherit from our parents is in the form of DNA. Our experiment demonstrates that it's more than just DNA. In a sense, that's obvious, because what we inherit from our parents are chromosomes, and chromosomes are only 50 percent DNA. The other 50 percent is made up of protein molecules, and these proteins carry the epigenetic marks and information.
And what function does the epigenome perform?
[G]enes themselves need instructions for what to do, and where and when to do it. A human liver cell contains the same DNA as a brain cell, yet somehow it knows to code only those proteins needed for the functioning of the liver. Those instructions are found not in the letters of the DNA itself, but on it, in an array of chemical markers and switches, known collectively as the epigenome, that lie along the length of the double helix.
. . .
We commonly accept the notion that through our DNA we are destined to have particular body shapes, personalities and diseases. Some scholars even contend that the genetic code predetermines intelligence and is the root cause of many social ills, including poverty, crime and violence. "Gene as fate" has become the conventional wisdom. Through the study of epigenetics, that notion at last may be proved outdated.
The article says that diet, environment, and pre- and post-natal exposure to vitamins, toxins, etc. can alter the epigenome, affecting the _expression/suppression of genes related to disease, behavior and cognitive development. Moreover, epigenetic changes made in the parent generation can turn up several generations down the line, long after the original trigger for the change has been removed. Thus,
our diet, behavior and environmental surroundings today could have a far greater impact than imagined on the health of our distant descendants. . . . The logic applies backward as well as forward: Some of the disease patterns prevalent today may have deep epigenetic roots. [Marcus] Pembrey and several other researchers, for instance, have wondered whether the current epidemic of obesity, commonly blamed on the excesses of the current generation, may partially reflect lifestyles adopted by our forebears two or more generations back. Michael Meaney, who studies the impact of nurturing, likewise wonders what the implications of epigenetics are for social policy. He notes that early child-parent bonding is made more difficult by the effects of poverty, dislocation and social strife. Those factors can certainly affect the cognitive development of the children directly involved. Might they also affect the development of future generations through epigenetic signaling?
One of the experiments discussed in the article involved the “emotional” development of rats. Rats that were neglected as youngsters produced more of the stress hormone cortisol in startling/stressful situations. Consequently, they reacted “nervously.” Rats that were nurtured by attentive mothers were more likely to remain calm. The author notes that the genetic sequence silenced by the attentive mother rats has a close parallel in the human genome. According to Michael Meaney, a biologist at McGill University , “it’s just not going to make any sense if we don’t find this in humans as well. The story is going to be more complex that with the rats because we’ll have to take into account more social influences, but I’m convinced we’re going to find a connection.”
Meaney also notes that trichostatin A — a drug used to simulate the effects of good and bad parenting in the experiment — is chemically similar to the drug valproate, which is given to people as a mood stabilizer.
Thanks to both, and let me repeat how appreciative we are of anything that you think will contribute to our little discussion group here. Just hit "contact or contribute" on the right or send a comment. It will be very welcome.
Tuesday, October 24, 2006
Tom says we need to discriminate between provocations that are determinate, such as criminal conduct during an offense, and indeterminate ones such as the future risk a defendant poses -- at points that may be far in the future (after years of service on a long sentence, for example). See my comments to #4 below.
“Clearly, sentences should be both determinate and indeterminate. Here are just some of the advantages of doing so:
“1. Good time and program participation credit could be applied to the determinate part of an offender’s sentence. Plea-bargaining should be limited in the same way. Offenders would still have an incentive, but this will not affect the public’s safety by forcing a premature reduction in the level of restraint imposed.
“2. Policy makers should decide how much risk is tolerable, under specified circumstances, just as they decide the extent to which offenders should be held accountable.
“3. Amalgamated sentencing systems invite sentencing double talk, which is a form of demagoguery. Differentiating between provocations and the responses to each has the advantage of breaking the policy making process into bit sized chunks, where each policy can be addressed rationally on its own terms. It also provides a means for managing the system incrementally, taking costs into consideration.
“4. There is not reason at all to treat juveniles and adults differently as to risk (indeterminate). But juveniles may be held to a lower accountability standard (determinate), graded perhaps by age. Juveniles are simply less mature and culpable than adults, but may be just as dangerous, or even more so.
“5. Decision-makers will find it easier to describe their sentencing judgments.
“6. All participants will find it easier to understand precisely how decision-makers arrive at their judgments.
“7. Appellate courts will find it easier to review sentencing judgments by the lower courts and determine whether they were reasonable.”
I would like to link Tom’s point #4 to a story Doug Berman provides in Sentencing Law and Policy here. The story notes that Virginia judges more frequently mitigate sentences for young offenders than older ones, despite the higher average risk that young offenders pose. Tom’s point, that there are both indeterminate and determinate considerations, and that in a determinate system judges are asked to make both at the point of the sentencing hearing, is food for thought, don’t you think? As always, thanks Tom.
Monday, October 23, 2006
When I listen to policy types in criminal justice, it's clear that far too many of them have never been budget analysts or have ever grasped the concept of fiscal responsibility. Or, rather, they look at it and decide it's not for them. "Public safety is priceless," they intone. "You can't put a price on human life."
Of course they do, all the time, and, had they ever worked in a budget office, maybe they'd understand how. Every dollar they insist should go to their vision of justice is a dollar taken from a poor kid's possible college education (as a former poor kid, this pisses me off especially), a parent's placement in a well-certified nursing home, an economy that could draw or repel new, long-term businesses. But it goes beyond that. When you look closely at "public safety," it turns out that's not even protected. "Public safety" doesn't mean strict police work to prevent crime from happening, adequate resources for prosecution or courts to make sure the arrest leads to conviction, or putting enough effort into juvenile programs where future crime could really be stunted. Those areas all get short-shrift. No, "public safety" only means punishment, the "expressive justice" we discussed the other day.
This is so clearly short-sighted that only truly tunnel-visioned people could miss it. And I'm not just talking about what happens to the rest of crim just. Public safety involves many other things. Do you like eating contaminated foods? Taking undertested drugs? Driving on dangerous, poorly maintained roads, crumbling bridges? Sure, take money from education because, lord knows, we don't need the civilization and pro-social learning that can be achieved if adequately funded and supported. But all that's irrelevant to those who see "public safety" very narrowly. Maybe someday Hollywood will do a movie or tv series about a hero who ensures spinach pickers wash their hands, but until then, those stories don't sell. "Money is no object when lives are on the line," we hear. That's right. Why, it just grows on trees.
I didn't fully realize the extent of this "grows on trees" attitude until I got involved in OK's sentencing "reform" effort in the mid-90s. At that time, the state DAs and victims groups were pushing a proposal that would have tripled OK's prison pop in 20 years (hard to believe, I know, but I did the projections). My boss, the state sentencing commission director, put it directly to the director of the state's District Attorneys Council--how do we fund all these other important needs if we pass this "reform"? The answer--"That's not our problem."
There you go, the whole argument and explanation for why our present prison policy costs more and more with so demonstrably limited effectiveness (unless you count high recidivism and exponential expense growth as effective), bluntly but honestly presented: "That's not our problem."
I realize this is not a shock to anyone, nothing new. We did a "CA Challenge" about it not so long ago. So why bring it up now? Because of these stories I ran across this evening, on the future costs of deteriorating public infrastructure, on its competition not just with cj funding but even education, on the politics of judicial elections, on yet another state finding "not our problem" a problem, and on a sentencing commission guy being told by a "grows on trees" opponent that he wants people hurt because he understands trade-offs have to be made.
No solution in sight to all this? Well, I have one. New rule: Before anyone can run for public office, they have to have been a budget analyst. Believe me, you'll never look at the world the same way.
And they're all so hip, too.
"Drug Courts Reexamined," a free online event November 13, 2006 2:00–4:00 pm (eastern time)
Featuring: Michael Rempel, Research Director at the Center for Court Innovation. Peter F. Luongo, Ph.D., Director of the Maryland Alcohol and Drug Abuse Administration.Judge Terry D. Terrell, First Judicial Circuit Court of Florida.Moderated by Thomas J. Charron, Executive Director of the National District Attorneys Association.
Hosted by: Harvard University's Government Innovators Network, the National Institute of Justice of the U.S. Departmentof Justice, and the online housing resource KnowledgePlex.
Experts in drug treatment and criminal courts will discuss research on adult drug court outcomes and costs, andthe factors that affect program implementation and impact.
Some issues for discussion are:
For which offenders are drug courts a better option than other court and corrections alternatives, and why?
What should we expect in terms of relapse, recidivism, and other outcomes such as employment?
What treatment models, services, and related resources limit or enhance drug courts?
What threatens program success, and how do judges and other drug court team agencies address these threats?
What is the future of drugs courts—grassroots development, standardization and replication, or institutionalizationof program components into traditional criminal courts?
What aspects of drug courts need further research and evaluation?
For details and registration please visit "Drug Courts Reexamined".
On Friday the AP ran a story quoting Corrections Department director Jon Ozmint as saying South Carolina's prisons could become more difficult to manage if most inmates are required to serve 85 percent of their sentence (the so-called Truth-in-Sentencing or TIS standard), as proposed.
Mr. Ozmint said that proposal doesn't give inmates any incentive to behave, further arguing that “If split into two groups, the group of inmates that could earn upward of 20 percent off its sentence would be better behaved than a group that could only earn up to 15 percent off.” The state’s attorney general, who proposed a new 85% to-be-served TIS standard disagrees, arguing that sentences in SC don’t mean what they say anymore.
"Eliminating parole will increase the rate of growth in prisons," Mr. Ozmint wrote. "In every state where parole has been eliminated, in whole or in part, this has been demonstrated." The AG spokesman disputed this also, and I must say that I think there is evidence to back Mr. Ozmint in general, but he overplayed his hand.
Growth of prisons and Truth in Sentencing
Now there are many things we know about Truth in Sentencing policies. As to Mr. Ozmint’s second point, the link between TIS and prison growth, it is possible to raise time to be served in prison as a percentage of the sentence and not see an immediate increase - if the announced sentence is adjusted downward to balance things out. The VA Criminal Sentencing Commission, where I once worked, did this by ratcheting down the announced penalties to accommodate the longer time to be served. So he's wrong to say "every" state.
I must admit though that Mr. Ozmint’s more general point is almost surely right, because few states took as careful a scalpel to their policy surgery. In fact, I have no doubt that “Truth in Sentencing” policies nationwide have led to a growth in prison populations, as cited by Blumstein and Beck in this BJS publication. Blumstein and Beck, both highly respected researchers, conclude:
“Overall … the growth in prison populations continues, primarily due to increases in the length of time served. Some of the policy questions identified are whether the benefits of incarceration justify the costs compared to the cost- benefits of alternatives to incarceration, and whether incapacitation benefits are worth the costs when time served extends into the age range when criminal behavior declines. Future research will explore the relationship between incarceration policies and crime rates.”
The evidence is strong on this general point.
But how about Mr. Ozmint’s first point, that TIS will hamper institutional control of inmates. Again, there is some evidence, but I think he is on shaky ground here and would love to see readers supplement my understanding.
This Research Triangle Institute study indicated that NC’s move to TIS (100%, not 85%) led inmates to commit infractions at a higher rate than inmates serving sentences under the previous law. The study was of pretty high quality, it seems to me, but I think one could quibble about their conclusions. For example, can they really control for all the changes going on in NC sentencing and corrections at that time? This is important from a research point of view because the NC sentencing system, held up as a model in many ways, specifically chose to use scarce incarceration resources on the most serious felons, increasing the severe offender mix in its prisons. So one would expect more infractions not because of problems inherent in TIS, but because there are more hard-core offenders in the prison population. Thus, we need more proof than one RTI study to believe these results. The science in evidence-base policy requires replication of results.
In contrast, a New Jersey study expected that the requirement that violent felons serve at least 85 percent of their sentence (NERA policy) would increase prison disciplinary infractions. However, results of qualitative and statistical analysis “did not confirm the [increase in] prison disciplinary infractions.” Comparisons “were made between the rate of incidents of violence committed by NERA-sentenced prisoners versus inmates sentenced before NERA. Results indicate that inmates sentenced under NERA actually committed less disciplinary infractions than did there non-NERA counterparts.”
So the jury is still out on Mr. Ozmint’s contention that prisons will be more difficult to manage. Anybody out there have more on this?
I’ll let Tom McGee have the last word from an earlier post. Agree or disagree with his views, in his comment to my September post in So You Want to Structure Sentencing? Part III. His is a principled stand on the subject of correctional decisions and based on evidence:
“Judges are not well situated to make decisions about controlling a perpetrator’s risk and decisions about rehabilitation. Both of these kinds of decisions are likely to change, sometimes often, and must be indeterminate….Beyond this, correctional resources are costly and scarce. Decisions about the use of these resources have to be made in such a way that gives priority to those who are most likely to succeed. Judges are not logistically situated to accomplish this task.” Tom suggests a graded deprivation approach, with both determinate and indeterminate elements.
Friday, October 20, 2006
So why do we have the one we have, with continued use of so many demonstrably ineffective policies and programs, with the growing Gordian Knots of our prison policies in more and more jurisdictions? In my last post, I noted that some of us take responsibility on ourselves. It's our failure to "get our message out," they say, or "we need to enable our users." Okay, yes, we can be pedantic and our contacts too limited (I'm speaking for myself here, but feel free to join in), but, as I've made clear, I don't buy much of that.
The users (public and their reps) also have responsibilities as citizens and officials that they are not living up to. Figuring out how to sell our spina . . . broccoli as ice cream to self-indulgers, or worse, make broccoli ice cream, diverts us and promises no better success. I'm a strong advocate of transparency and public outreach, and I've practiced what I preach. And, because I've been on the front lines, both in cj and as a small town school board member for 9 years, I've been on the highs and the lows of the experience. With all due respect to the "enabling users" advocates, it won't get the job done. There's that "horse to water" thing involved.
So what can we do, beyond improving ourselves and our "message"? I know that I frequently come off here as a Cassandra (at best), but I still can be an idealist. I'm not for throwing in the towel, just for being realistic about opportunities and probabilities for success. And, as I said in the last post, I actually do think there is something more we can do.
The conference's theme was "Informing Public Policy," but it could just as easily have been "Everybody's An Expert." It was mentioned frequently that we fail to make headway with "what works" because everyone in the public believes s/he is an authority on crime themselves, its causes, who does it and why. That those people are almost always not just wrong but counterproductively and dangerously so doesn't stop them because there are always bureaucrats (aka us) to blame. How many years of a "drug war" does it take, or how many people incarcerated but not corrected, before we recognize some "if you keep doing the same thing over and over . . . " at work here? But when all that make the news are the failures, when movies and tv only show us purely innocent victims and purely evil villains, when fear and need for control above all dominate our discourse, it's not that surprising that people keep asserting themselves with tried-and-untrue remedies.
We used to do that in another area, too--health. Everybody had a remedy, passed along faithfully that, as in criminal justice, generally did more harm than good but was continued because more effective alternatives couldn't work their way through the fear and blather. How did we stop that, get to today's far better prospects in policy and future? By professionalizing bodies of knowledge in engineering and medicine and the people who practiced them. Yes, I know people still ingest roots and forgo surgery, smoke, down wings and 45-oz. gulps. But name an area of public welfare more advanced over the last century, the last 3 centuries. And it's because the fields of public health finally had recognized professional expertise. Few people claim to know how to do sanitation systems better, and most will have that lump removed when the doctor says to. So, IMO, one of the chief means we in crim just policies need to adopt to "get our message out" is to professionalize it.
But we have crim programs at universities now, you say. Well, they had engineering schools and medical programs way back when. That's not all it takes. A few years back I had the very good fortune of teaching a policy and programming seminar for 3 years for the professional Master's program at the U of MD's number one in the country Criminology & Criminal Justice program. It was specifically designed on paper to be at least a step toward what I'm proposing here. However, in practice, it was primarily academic and research. Each semester I had numerous students tell me that mine was the only course they took related to what they would do in practice. The rest were crim theory and advanced methodology that rarely sees the light of day in state or local operations. That's not a knock on the great people at UMD. They taught what they knew, which is the best n the nation. But it just meant that their program, as excellent as it demonstrably is, was not designed for what I'm talking about here.
Math, physics, chem--they all needed engineering schools to translate their findings into action. Same for biology and chem with med schools. Crim Just practice needs the same, to take the valuable research and results from all the great crim and public affairs programs (UMD isn't the only one, as readers who graduated from the others have been screaming at me for paragraphs now) and translate them in the same way into authoritative practice that can't be disputed by people who argue "but we always dumped our poop this way."
But schools devoted to criminal justice policy administration alone won't be enough. We also will need the cj equivalent of the AMA (or ABA for lawyers), a national body that can take stands, buffer members, and call BS on the nonsense on stilts that too often passes for deliberation in crim just policymaking. The leaders of that body are the ones who will need to do the public outreach and aggressively promote "what works" against challengers who push the cj equivalent of blood-letting to cure the problems. Having a chairperson of sufficient skill and personality to handle the media and legislatures would be an added plue. But this would provide the missing link to the "enabling users" piece, the missing authoritative infrastructure that is needed to change the equation between those users and what we provide. It might take a generation to reach the same point as engineers and physicians, but as an eternal optimist I think it can be done.
But how? Universities and crim programs could take the lead, maybe those "law and society" programs we've talked about here before. But why should they? UMD turns people away or out and has more to replace them. And current faculty would have to scrap or revamp their current activities and interests. We'd lose more than we gain from that.
No, new programs designed specifically for criminal justice policy and administration would have to be developed, staffed by the Kim Hunts, Mark Bergstroms, Rick Kerns, the Chip Coldrens, Stan Orchowskys,the Kim Englishs out there with both the experience and credentials to lead the way. To convince universities to start these programs, either the feds would need a new LEAA-type initiative (only we old-timers don't have to go to a search engine right now), or one of the recently interested non-profits like Soros or Pew would need to be willing to endow programs and positions. The realist in me says the feds don't have the money or interest, and the foundations are still too subject to the old criticisms that they're only interested in funding specific projects to promote their strict top-down objectives. But maybe I'm wrong (I thought the Bears would kill the Cardinals). Maybe they would pursue a broader, open-ended agenda. Or maybe there's an academic entrepreneur out there with enough energy and clout to get it rolling (you listening, Berman?).
My point is just that we're not the first group of well-trained and experienced folks who had trouble getting "what works" out there and overcoming long practice backed by inertia, tradition, and fear. There are successful models to follow. As with everything, it will take will and money, but frankly more of the first than the second. We're not far away from a viable answer, but we have to look in its direction and decide to move that way. We know how to get there.
Or, as a very wise woman once said, "We know what works."
First, the Attorney General rightly noted that violent crime is still low relative to much of the last 30 years, and he does not offer new federal money to combat this threat, at least until further study. So far makes sense to me.
So USDOJ government is proposing a study:
Specifically looking at trends in gang violence, drug trafficking, and how inmates released from prison may have contributed to the increase. The Usual Suspects, perhaps? Not unreasonable, though I hope this is only some example and not a comprehensive list of topics.
The study will be rolled out in three phases: 1) looking at crime increases in cities, 2) analyzing those results for any trends, and 3) identifying federal programs that can help. Hmmm. Let's check those out a bit.
1. Looking at Cities.
Good idea, from where I sit. Cities have spent a lot of resources on Homeland Security, and traditional law enforcement and prosecution resources are already strained (aren’t they always?), COPS program de-funded, etc. Comparative analysis of urban areas makes sense, if that’s where the up-tick is, and it does seem so.
It is appropriate for the nation’s law enforcement officer to try and get ahead of the curve. And it is hard to get ahead of a curve, primarily because many curves are “white noise.” And curves continue to curve one way, then another. Whoo, I'm getting dizzy.
Six months or 18 months does not make a trend. The more reasonable time period (a decade or more) and more prominent trend (downwards) is the Crime Drop in America during the 1990’s and into most of this century so far (See Blumstein and Wallman’s (eds.) great book here). The authors thoroughly explore the role of guns, the limited but measurable role of prison expansion (but clear diminishing returns of continued prison growth), changes in drug markets (at first chaotic, then more controlled), policing, economic opportunity, and demographics. A tour-de-force and an important starting place for a prospective study. The popular book Freakonomics also theorizes on the subject here.
The Danger of Microfocus: One problem involves reading too much into a short term spike. This point is rather obvious and is most likely to occur in “moral panics” based on exaggerated claims, media hype, and fear. If It Bleeds It Leads. There will be many turning points in the short run (witness the nonsense of day-to-day interpretation of every blip in the Dow Jones average, as if each daily turn was important to the big picture and in any way intelligible).
The Drive to Find a Cause: Statisticians refer to Regression Toward the Mean. Think of it like gravity, what comes up must some down (or vice versa in this case) – toward some average (natural?) level. Crime was way down, now its up. That might be it, and we don’t need a big study for that.
Bottom line on studying up-tick as a Trend: Hey, if it gets us looking at 3) Policy, then more power to the Justice Dept. Let’s not over-hype the trend yet, though.
3. Policy – specifically federal or state programs/policies.
Well, naturally the federal government is specifically interested in how it spends its (Oops, I mean Our) dollars. But States are the “laboratories” for policy experiments according to Justice Brandeis (New State Ice v. Liebmann, 1932). The federal government needs to fund comparative state studies of policy impact. What works in state CJ policy? What steps are required to do that right? Why?
It’s a big, but not insurmountable task.
Why not just assume more incarceration, or more police for that matter, works? Such political claims have worked before. Well, the medical model of progress suggests that, before prescribing course of treatment, modern medical science requires a strong standard of evidence of effectiveness, usually through random clinical trials before widespread introduction of a treatment. The folks at the Campbell Collaboration are blazing a trail here for CJ policy. Public safety requires our due diligence in determining what works.
Let’s take the example of the role of Incarceration Policy in crime changes as an example. Sentences to a period of incarceration could be studied across both time (1970- 2006, say) and space (geographically) – these usually take a form labeled quasi-experiments (“almost” experiments). Other approaches – true experiments that feature random clinical trials to be used where and when appropriate and feasibleUp-tick in violent crime - are called for. The goal is to separate the random fluctuations from key influences, both policy and environmental causes.
Differences in programs and policies that affect crime could be sifted out from other factors like those mentioned in the Crime Drop, yielding some compelling ideas about what works.
Sure there are obstacles to be overcome:
Sentencing information is not readily available or accessible to independent review, allowing experimental replication etc. And experiments require reporting on the results (as Marc Miller puts it “laboratories are where people conduct experiments and report on their findings.”), thus we have to know what each state did (programs and policies, in detail and at the street level) on a common scale. We have to play nice and share. Not impossible, so let’s get started.
AG Gonzales can leave a lasting legacy in this area. He is making some of the right noises. Let’s support him in this.
Thursday, October 19, 2006
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:
- luridly violent crimes with serious injury or death
- middle-class, usually white, victims
- wholly innocent victims
- randomly-selected victims
- 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.
Wednesday, October 18, 2006
What does this have to do with corrections sentencing? I’ll get there. First, let’s go back to the recent BJS/JRSA conference last week.
The new head of the Bureau of Justice Statistics, Jeffrey Sedgwick, spoke at the conference, and, for the first time in the many years I've attended these, I enjoyed a BJS director's speech. Personable, knowledgeable (an academic), and a policy geek, he was very impressive after those who were less so. Plus, he didn't blow on and on. In fact, he got finished too quickly, and JRSA staff had to scramble to fill the Q&A time. (At one point, I thought they were going to ask him his pick for the Super Bowl.)
That's not to say I liked what he said. For a couple of reasons. More practically, he spelled out the Office of Justice Programs' priorities for the coming year. Internet child porn. Terrorism and homeland security. Identity theft. Weapons violence. Human trafficking. Notice anything here? Anything of immediate relevance to most of what we do in corrections sentencing? At a time when we desperately need good info, data, and leadership on sentencing, recidivism, reentry, and comparisons of prison to alternative sanctions, we get a list straight from prime-time tv. Not his fault. Not even likely his priorities. But it shows you where the feds' heads are.
"CSI-Law & Order."
Which actually was the second reason I didn't like what he said. The guy comes from the old school of analysis--thorough data, clear exposition, complex thought about complex topics. Yet he admitted that he's an old fogey in today's modern times. People don't learn or think the way they used to in a "literate" world so they don't get or pay attention to old ways of presenting evidence and options. The answer to this? We in corrections sentencing and the rest of crim just analysis have to get better at reaching out and making ourselves clear to these "happy" and "confident" souls. The people who get their cj knowledge from "CSI-L&O" and "Grand Theft Auto."
Shouldn't we just toll the bells for our nation's future right now?
Now, in fairness, these are not his words. His words were that we should "enable our users" to better grasp and apply our work. There is a disconnect between people who know the data, research, foundations of a policy area and the public. So, rather than have expectations for the public and policymakers as citizens and officials to be better aware, informed, and capable of rational action, we have to adjust what we say to them to their current levels of involvement and knowledge (that is, "Dancing with the Stars" and "Deal or No Deal"). Rather than challenge citizens and their elected reps to be the best they can be, we need to engage them in their current media, like video games. Sound like the first paragraph? See where it goes?
It’s hard really to argue with Dr. Sedgwick. In practical terms, he's probably right. The sweep of history is certainly not moving in the direction of reasoned discourse. There's probably no hope right now of our current citizenry living up to the requirements of citizenship as envisioned by the people who put this republic together. But that's a problem that I don't believe any amount of "enabling" will allow us to overcome.
Too cynical, you say? What a defeatist. What's the evidence for such a dour conclusion?
It's called Stealth Democracy, written a few years back by two poli sci types. It basically found through extensive surveys that the American experiment in self-government has failed. Their findings were, simply, that Americans did not want to be bothered with involvement in the government policy affecting their lives except when they decided they did. And then they expected the resulting government to just give them exactly what they wanted when they wanted it. IOW, the result was a stealth democracy, one operating under the radar, and effective control.
This potentially is a very dangerous situation, full of portents for deceptive, manipulative public officials. But what if, like Dr. Sedgwick, you take the "public" part of "public servant" seriously? Then you devote yourself to capturing citizen attention however you can, even when those citizens are resolutely determined to ignore you and to leave their capacities for understanding and action undeveloped next to the remote or game control. Is it then worth your time to focus on pressing problems, like prison populations and re-increasing crime, that need attention when you're dealing with folks who turn off anything that costs, takes work, and sounds hard? Or do you go for the prurient--child porn, human trafficking, ID theft--that, while important, do not affect as many or as much as that exponential rate of inmates will? Do you give folks what they need, whether they want it or not, or do you try to entice them with the same logic that got us "The Bachelor" and "Laguna Beach"? Do you deal with our problems directly, or do you follow the same process that replaced Walter Cronkite and John Chancellor with Barbara Walters and Nancy Grace?
This isn't elitism. I'm white trash to the bone, with the bio and family to prove it. It's reality. It affects every aspect of American life today. Groupmind and whatever the market will bear v. standards and realistic appraisals of the oncoming future. Listening to people who study and know what they're talking about v. the lowest common denominator (LCD) to get the most votes and support. The first gives you a chance. The second is CA's Gordian Knot, all symbolism, no substance. Pretend policy.
I just don't see how we make things better by following the "dumbing down" philosophy that's brought us where we are today. Dr. Sedgwick is truly a smarter and more accomplished person than I am, and, if he can make it work, he'll get my vote for anything (unless it has to do with Salma Hayek). But the Stealth Democracy guys didn't really leave anyone optimistic about the future of our government system, a system running on LCDs instead of the citizens we were supposed to be. "Enabling" them would truly be a feat. I just can't help feeling it will look like "Grand Theft Auto."
I do think we can do better, though, enabling aside. In a couple of days, I’ll explain why. Tomorrow, though, I’ll talk a little more about the problem itself. And Friday I’ll tell you what I think is our best option, better than just hope that we can touch people who don’t care or want us to touch them. On that kind of icky thought, let’s end for now.