Over 4.7 million Americans are under “community corrections” supervision today—more than twice the number of individuals behind bars. Rethinking that 19th-century approach is crucial if we want to end mass incarceration, say the authors of a Harvard Kennedy School paper released today.
In our nation’s expanding discussion about eliminating mass incarceration, advocates, researchers and the media are missing a major contributor to incarcerated populations and a partial deprivation of liberty in its own right.
Mass supervision through probation and parole.
Grouped under the category of “community corrections,” America’s probation and parole systems originated in the 19th century as Progressive-era rehabilitative alternatives to incarceration. But they have effectively become feeder systems for imprisonment.
Today, with a caseload of over 4.7 million—one out of every 52 U.S. adults—community corrections agencies supervise more than twice as many people as the 2.2 million Americans behind bars.
What’s worse, every year, almost as many people enter our prisons, not because of a conviction for a new crime, but because of a violation of some condition of probation or parole.
That is why, over the past three years, a group of prosecutors, law enforcement officials, corrections and community corrections leaders, formerly incarcerated people, service providers, philanthropists and researchers have been meeting in an Executive Session at the Harvard Kennedy School to discuss what went wrong with community corrections, and what can be done to fix it.
Toward that end, the Executive Session created an unprecedented consensus paper that includes 13 proposals to reduce the footprint of community corrections, have it hew more toward justice, and make it more effective in protecting the community and empowering people to turn their lives around.
There was strong agreement with the conclusion that “America’s community corrections systems do not live up to the core principles of providing well-being and safety, parsimony (no more punishment than is needed to achieve the goals of sentencing) and justice, successful community integration, victim restoration, and respect for human dignity.”
The paper went on to declare:
“Rather than serving as an alternative to, or release valve from, imprisonment, community corrections has become a contributing factor to incarceration’s growth…Major changes are needed to make our system smaller and more focused, less punitive, more humane, and more widely guided by best practices. It will be impossible to meaningfully reduce mass incarceration in America without solving the challenges of community corrections and fulfilling its initial purpose and promise.”
The paper’s proposals include moving “from mass supervision to focused supervision” and “from punishing failure to promoting success.”
Besides the principle of refraining from unnecessary state supervision, there were some practical arguments for reducing the criminal justice footprint. Indeed, shrinking probation and parole supervision, and focusing it on those most in need, can have results that some might find surprising.
Likewise, when Arizona policymakers created incentives for people on probation to earn time off their terms for complying with court-ordered conditions and gave probation departments fiscal incentives to reduce probation revocations, new felony convictions amongst people on probation fell by 31% and revocations to prison fell by 28%.
The Executive Session also found that the “community” is often absent from “community corrections,” as too many interactions between staff and people under supervision occur across a desk in an unfriendly, citadel-like and out-of-the-way government office. As such, the Executive Session recommended that community corrections move “from isolated to integrated” and “from fortress to community-based.”
Despite the fact that research shows that communities are safer if they are more cohesive and people do better under supervision when it is viewed as fair and legitimate, too much of what passes for probation and parole supervision amounts to an exercise in “trail ‘em, nail ‘em, and jail ‘em.”
Community corrections too often neglects community— and fails to correct.
If America is to truly rid itself of mass incarceration, we have to make our probation and parole systems more integrative, less reflexively punitive, and pillars of the just principles of a democratic society.
Editor’s Note: This week is national Pretrial, Probation and Parole Supervision Week. For more information please read here.
Bruce Western is Chair of the Harvard Kennedy School Program in Criminal Justice (PCJ) and Principal Investigator of the Executive Session on Community Corrections. Vincent Schiraldi is a Senior Research Fellow at PCJ and former Commissioner of New York City Probation. They welcome comments from readers.
The authors of a study of police-civilian interactions in two cities in New York State say their findings challenge assumptions in the President’s Task Force on 21st Century Policing that simply treating citizens with fairness and respect is sufficient to restore trust and confidence in law enforcement.
Building trust and legitimacy was the first of six “pillars” identified by the President’s Task Force on 21st Century Policing as essential for police reform. The Task Force urged police agencies to establish procedural justice as the “guiding principle” in police interactions with citizens for developing that trust.
Will police departments accrue greater public trust and legitimacy by promoting procedural justice—roughly defined as the fairness with which police authority is applied—in street encounters?
We don’t believe they will.
As well-grounded in theory and empirical evidence as this prescription appears to be, we believe it rests on a misdiagnosis of organizational dynamics and public attitudes.
In our recently published study of policing, Mirage of Police Reform, we found that citizens’ assessments of procedural justice are shaped much less by how officers use their enforcement powers—such as using physical force or conducting searches—than whether they use them.
Here’s what we mean.
When people encounter police, the procedural justice that they perceive is associated with their trust in law enforcement and their sense that police deserve to be obeyed. In other words, it is linked to their perceptions about the “legitimacy” —or lack of legitimacy— of the police.
A large body of research demonstrates the strength and consistency of these empirical relationships.
Police who are “procedurally just” treat people with dignity and respect, give them an opportunity to explain their situations and listen to what they say, and explain what police have done and/or will do. By doing so, they make clear that officers are taking account of people’s needs and concerns, and are basing their decisions on facts.
With this research in mind, we worked with police departments in Schenectady and Syracuse, two cities in upstate New York, to make procedural justice a measure of performance for which police managers were held accountable.
Over the course of 18 months, we regularly surveyed people who had recent contacts with police as a result of a call for assistance, a stop, or an arrest; we summarized and reported survey results to command staffs through the departments’ Compstat meetings.
Supposing that “what gets measured gets managed,” we anticipated that managers and field supervisors would pay attention to how their officers treat citizens, and that procedural justice and public trust would thereby improve.
Robert E. Worden
But we found a mixed reception to the administrative push for procedural justice among patrol officers, field supervisors, and mid-level managers. Some officers were receptive; some exhibited a tempered receptivity; others were quite skeptical. Some platoon commanders made procedural justice a frequent topic in roll calls; others neglected it.
With the introduction of these performance measures into Compstat, we detected no significant changes in citizens’ perceptions of, or attitudes toward, police in either city. Citizen satisfaction with police was fairly high at the outset of our study, leaving only little room for improvement.
We linked survey data on citizens’ subjective experience to independent measures of officers’ overt behavior—based on structured observation through the audio and video recordings of officers’ activities which Schenectady police routinely provided. (Syracuse police had neither in-car nor body-worn cameras.) We measured both officers’ procedural justice, e.g., displays of respect, attentive listening—and procedural injustice, e.g., discourtesy, ignoring citizens’ questions—and we discovered that citizens’ perceptions are weakly related to the former and only moderately related to the latter.
Our findings contradict the claim that legitimacy is “created” through police-citizen interactions. We saw no change overall in observed procedural justice, which was moderately high in the first place; or in procedural injustice, which was uniformly low.
However, in one platoon, whose commander and supervisors were all supportive, officers’ behavior measured by procedural justice standards modestly improved.
These findings make sense from the perspective of institutional behavior. The technology of policing—the process of turning the “raw materials” of community conditions and individual crises into the finished products of safer neighborhoods and resolved situations—is not well-developed, and a limited understanding of how and how much police contribute to desired social outcomes makes it difficult for anyone to assess how well police are performing.
The public’s demands on police therefore often rest on assumptions that positive outcomes will follow from the adoption (or imposition) of particular organizational forms, such as community policing, civilian review of complaints, and early intervention systems for misconduct. But in fact such forms often fail because they are only loosely coupled with the technical “core” of policing, where the work is performed—mainly in patrol.
Since the procedural justice of officers’ actions is not normally measured, everyone could assume that when a department “adopts” procedurally just policing, its commitment is honored on the street. But the implementation of administrative mandates is determined by officers’ interpretations of their meaning. The procedural justice model would likely be weakly implemented in any case, even if it might nevertheless have symbolic appeal to the community.
Meanwhile, the behavior that tends to generate police-community friction—such as the use of physical force or searches of vehicles or persons—would remain unaddressed. It’s not that we think that procedurally just policing is a bad idea – far from it. But as a reform prescription, our findings lead us to conclude that it offers false hope for better police-community relations.
As pointed out above, individual officers’ decisions about whether to use their coercive authority matter far more to public perceptions of police legitimacy than how they use it. Searches negatively affect citizens’ assessments of their contacts with police (unless they accede to them). So does the use of physical force.
We conclude that public trust in the police is closely tied to these critical exercises of authority. The experiences of some police agencies suggest that regulating these aspects of police performance will be more effective at achieving police “legitimacy” than mandating certain types of behavior to achieve “procedural justice.”
The Cincinnati Police Department is sometimes mentioned as an example of successful reform, partly because the frequency with which Cincinnati police use physical force has declined substantially. We believe that one key aspect of reform there involved use-of-force policies and procedures that were at least moderately coupled with street-level practice.
Supervisors were empowered to supervise—not merely to enforce policy but to guide officers in developing and using effective tactics. Such coupling cannot be taken for granted—the Ferguson Police Department had a similar policy on the books—but can be achieved and sustained.
Robert E. Worden is the Director of the John F. Finn Institute for Public Safety, and Associate Professor of criminal justice at the University at Albany, SUNY. Sarah J. McLean is the Associate Director and the Director of Research and Technical Assistance at the John F. Finn Institute for Public Safety, Inc.They welcome comments from readers.
Texas criminologist William Kelly’s new book calls for a top-to-bottom transformation of a justice system that recycles thousands of Americans without offering them a way to change the behavior that sent them behind bars. He explains his recipe for “disruptive innovation” in a conversation with TCR.
Kelly, a University of Texas-Austin sociology professor, has long been one of the country’s toughest justice critics. In this book, he offers a plan for top-to-bottom transformation of the system, in collaboration with federal judge Robert Pitman and psychiatrist William Streusand.
A key “disruptive innovation” of the book’s title would include reforms to rein in the charging powers of prosecutors. Kelly recommends the creation of independent panels of clinical experts that would screen offenders and recommend to prosecutors who ought to be diverted to treatment.
“There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system,” Kelly says. Arrestees with mental illness, substance-use disorders, homelessness and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.
In a conversation with TCR Contributing Editor David J. Krajicek, Kelly explains why he believes the system should incorporate more carrot and less stick for offenders and how the Trump administration’s approach threatens to make things worse. He also suggests that the public already has a more sophisticated view of how to fix the system than our political leaders.
The Crime Report: What is the impact of the country’s justice policy failures?
William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.
What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.
TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?
Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters re-offending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…
We need to provide clear incentives to motivate changing how we think about crime and punishment. Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials. Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads. Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.
TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?
Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”
Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a reluctance to really embrace meaningful, comprehensive criminal justice reform.
TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?
Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law-and-order candidate and resurrect the war on drugs?
TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?
Kelly: You focus on the enormous financial waste that the justice policy has produced. While there will be endless debates about what’s right or just and who deserves what, it is pretty hard to ignore the bottom line. A recent study estimates that the criminal justice and collateral social costs of tough on crime is $1 trillion per year. And it’s hard to reconcile 65 percent recidivism.
TCR: Who’s to blame for the state of “correctional malpractice” you say we are in?
Kelly: First and foremost, elected officials who have blindly championed “tough on crime” policies to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime—mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill.
But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance-use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies has created problems that by default are managed by the criminal justice system.
Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.
TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses. Is there a scientific path forward?
Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.
TCR: You note an overlooked data point: The country has 21 million people with substance-use disorders, the world’s third-highest rate. What explains this particular American exceptionalism?
Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.
Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replacement of the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the justice system.
TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on co-morbidity among inmates.
Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as co-morbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance-use disorder. Neuro-cognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.
When we do attempt to address these problems–diversion to a drug court or a mental health court–our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore co-morbidity.
TCR: What do the rest of us in a presumably civilized society owe these damaged people?
Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves: lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.
TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well. You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?
Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand.
Our Western allies have better outcomes for those they incarcerate because they focus on preparing offenders to be released and live crime-free, productive lives. Our approach often is to de-humanize prison inmates and emphasize punishment over rehabilitation. We do little to facilitate successful reentry into society.
Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.
TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.
Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality. One of the key issues here is making good decisions about who to divert and who to prosecute.
We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of re-offending, and make recommendations to prosecutors.
The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.
TCR: And this is the “disruptive innovation” of your book title?
Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.
We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.
TCR: And how might it be greeted by prosecutors, who hold all the power right now?
Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads.
The primary reasons that prosecutors’ caseloads are so large and unmanageable relate to the failure to reduce recidivism.
TCR: You say these changes will force us to redefine success in our justice system. How so?
Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice–legislators, police, prosecutors, defense attorneys, judges, and corrections officials–should all be held responsible for recidivism reduction. That would also be a disruptive change.
TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.
Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges.
The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.
TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversionsomehow informed the book’s content.
Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, it could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.
I’m not sure that being sick informed the content, but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.
David J. Krajicek (@djkrajicek), a contributing editor with The Crime Report, has been writing about criminal justice since the 1970s. He welcomes readers’ comments.
A June 22 Supreme Court ruling that evidence which might prove a defendant’s innocence does not necessarily have to be presented by prosecutors represents a major setback to constitutional guarantees of a fair trial, argues the founder of the National Registration of Exonerations.
On June 22, in Turner vs. United States, the Supreme Court, by a 6 to 2 vote, affirmed the murder convictions of seven men. Unlike most Supreme Court decisions, Turner went largely unnoticed.
It deserves more attention, but not because it announced a new legal rule. Instead, Turner reaffirmed a terrible old rule that has done great harm to the accuracy of criminal trials, and will continue to do so.
The crime in the Turner case was horrific: in 1984, a middle-aged woman was grabbed off the street in Washington D.C., beaten, sexually assaulted and killed in an alley. The defendants were convicted on the theory that they were part of a group of a dozen or more who committed this atrocity. No DNA, fingerprints or physical evidence of any other kind connected any of the defendants to the crime.
Twenty-six years later, the defendants’ attorneys learned that prosecutors had concealed a laundry list of evidence that would have helped their defense at trial.
In particular, one witness identified a man at the scene of the crime as James McMillian, a local resident who was arrested several weeks later for beating and robbing two other neighborhood women, and was later convicted for robbing, sodomizing, and murdering a third young woman in an alley. And another witness testified that he heard moans—apparently from the victim—coming from inside a garage that was too small for a crime with 12 or even six perpetrators.
The Justice Department agreed that this evidence should have been disclosed at trial. The only issue was whether concealing that evidence made the trial fundamentally unfair, and requires a new trial.
In Brady v. Maryland, in 1964, the Supreme Court ruled that the government is constitutionally obligated to disclose evidence that is favorable to the defense in a criminal trial if that evidence is “material” to the case.
Later cases held that evidence is only “material” under Brady if there is a “reasonable probability” that the outcome of the trial would have been more favorable to the defendant if the evidence had been disclosed. Otherwise, under Brady, the prosecution may conceal favorable evidence from the defense and the trial court.
This standard is impossible to apply.
A prosecutor has to decide whether to disclose favorable evidence before the trial begins. At that point, she does not know what her own witnesses will say under oath (there are many surprises) let alone what the defense might put on. How can she possibly know before trial whether undisclosed evidence might tip the jury’s decision at the end of that trial? And who would trust a lawyer to make that decision about a case she herself is litigating?
Trial lawyers often believe, unrealistically, that their cases are airtight. In this setting, self-confidence is self-serving: it can lead prosecutors to decide that it’s OK to hide troubling evidence, which makes their job a bunch easier.
When a prosecutor does hide evidence, chances are nobody will ever know. If somehow it does come out, a court reviewing the case faces the same impossible question—what might have happened at trial if these facts had been known to the defense?—with an added twist: Judges are extremely reluctant to reverse jury verdicts and order new trials.
Not surprisingly, they usually conclude that concealed evidence was “immaterial” and therefore never had to be disclosed in the first place.
That’s just what the Supreme Court did in Turner. The majority points out that the hidden evidence is only exculpatory if McMillian committed the crime alone and not as another member of a large group. But none of the defendants disputed the prosecution’s claim that the victim was attacked by a group. Instead, each said that he was not involved, but his co-defendants might have been—and two additional defendants pled guilty and testified for the government in return for reduced sentences.
In that context, the majority concludes that disclosing the hidden evidence would have made no difference; presumably because there was little or no doubt that the defendants were in fact guilty.
However, as Justice Kagan points out in her dissent, no defendant argued that the murder was the work of a single person because they had no idea that there was evidence to support that claim. If they had known what we now know, the trial might have been totally different, including what was disputed and who testified. The two defendants who pled guilty might not have done so, and all of the defendants might have been acquitted—perhaps because they are innocent.
Is that a pipedream?
Consider two disturbingly similar cases:
In 1989, five teenagers in New York confessed to being part of a gang that attacked and raped the victim in the Central Park Jogger case, but each denied actually raping her. They were all convicted in 1990—but exonerated 12 years later when DNA confirmed the confession by an older serial rapist and murderer that he committed the crime alone.
Also in 1989, six defendants were convicted of jointly assaulting, raping and murdering an elderly woman in Beatrice, Nebraska. Four of them had confessed, and five pled guilty in return for reduced sentences. In 2009, all six were exonerated when DNA evidence proved the crime was committed by a lone man from Oklahoma whom none of the innocent defendants knew.
Nobody doubted the guilt of these eleven defendants when they were convicted—even through, as in Turner, no physical evidence connected them to the crime. All but two had confessed; several pled guilty; none argued that the crime in their case was the work of a single person. All that would have changed if the defense had any information identifying the real criminals.
Concealing exculpatory evidence is not a rare problem. In 2013, then-Chief Judge Alex Kozinski of the Ninth Circuit Federal Court of Appeals wrote that “There is an epidemic of Brady violations abroad in the land,” because courts have defined “materiality” so narrowly that prosecutors rarely if ever have to face consequences if they hide evidence that favors defendants.
The National Registry of Exonerations (which I founded) lists 2,061 innocent defendants who were convicted of crimes in the United States and later exonerated, from 1989 on, including 802 who were convicted of murder. In half of the murder exonerations (398/802) the prosecution concealed exculpatory evidence at trial, including 17 cases with innocent murder defendants who pled guilty, 57 with defendants who falsely confessed, and 91 with supposed accomplices who confessed and falsely implicated the defendants.
And of course, as Judge Kozinski has noted, the great majority of similar cases are never detected, and the defendants, if they are innocent, are never exonerated.
I don’t know whether the defendants in the Turner case are innocent or guilty, or how their trial would have turned out if all the evidence had been fairly presented. Unlike the Supreme Court, I don’t believe we can tell by looking back and guessing 25 years after the fact.
Our best hope for avoiding tragic mistakes is to present all the evidence that matters the first time around.
Why not eliminate the “materiality” requirement entirely and treat access to exculpatory evidence like other aspects of a criminal defendant’s constitutional right to a fair trial? If exculpatory evidence is concealed, it’s a violation of the Constitution, period.
This would not mean that every violation requires a new trial. Courts often uphold convictions despite constitutional violations, because they are convinced beyond a reasonable doubt that the violation had no impact on the outcome. But that’s a tougher exception to meet, and it includes a critical message: Hiding exculpatory evidence is always a violation of the constitution.
Justice Kagan concedes in her dissent that the majority’s conclusion in Turner “is not indefensible.”
That’s right, unfortunately, given the rule the Supreme Court applied. But that rule itself is indefensible, and should be changed.
Samuel Gross is professor of Law at the University of Michigan, and the founder and Senior Editor of the National Registry of Exonerations. He welcomes readers’ comments.
Financial journalist Jesse Eisinger argues in a new book that federal agencies like the Department of Justice and the Securities and Exchange Commission are “broken” systems that allow corporate bosses to evade the criminal consequences of wrongdoing. He explains why in a conversation with TCR.
When Pulitzer Prize-winner Jesse Eisinger covered capital markets for the Wall Street Journal and Conde Nast Portfolio in the early 2000s, he began to see early hints that the subprime market bubble was close to bursting. When the inevitable crash happened, he probed further into the roots of the disaster for ProPublica. His exploration of what he terms “bad behavior” has now turned into a book that bluntly takes the federal government to task for not prosecuting the financial skullduggery that seemed hard to miss at the time.
Like the book’s title, “The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives,” Eisinger doesn’t mince words. In a conversation with TCR Deputy Editor Victoria Mckenzie, he explains how the “culture” of prosecution at the Justice Department has subtly changed as “hot-shot” government lawyers look forward to lucrative careers as white-collar defense attorneys, why he thinks the Obama Administration accentuated the shift, and why the DOJ should consider hiring lawyers who are older and come from more diverse backgrounds.
The Crime Report: What drove you to write the book?
Jesse Eisinger: (When I moved to Pro-Publica) we did a series of stories about bad behavior from the banks in the lead-up to the financial crisis. Misleading investors about CDOs [Collateral Debt Obligations]. It was sort of excavating the big short trade, where people were secretly betting against these structures. And what we found was a hedge fund that had secretly gone to investment banks to have them make these mortgage securities, and then secretly was betting against them. Sometimes the investment banks knew.
We found a lot of other (bad) behavior in this CDO market, which were bundles of bundles of mortgages, very complicated instruments, and we thought it was obvious that there was going to be a huge crackdown coming. And then really nothing happened. No criminal investigations. My book is not a criminal brief, making the case for prosecutions of some individuals. I’m not a lawyer, that wasn’t the task I set before myself. But I set out to explore why this (prosecutions) isn’t happening. And one of the reasons it’s not happening is that they didn’t really even look. If you don’t look, you’re not going to find crimes.
It started to dawn on me that the Department of Justice and the SEC were broken institutions when it came to corporate white-collar (crime) enforcement. In the wake of the financial crisis, I started to see other examples in the tech world, in the pharmaceutical world, in the industrial world, in retail— Walmart, Google, Pfizer— companies that were making mistakes, admitting to wrongdoing, (even) criminal wrongdoing, but no senior individuals were being charged. I realized that this is a broken system, and I thought this really needed some kind of true examination from a historical perspective. I wanted to figure out— how did this evolve?
TCR: One of the large themes in your book was that zealous DOJ prosecutors in the early 2000s actually created the market for white collar criminal defense (or ‘Big Law’), and the two almost evolve into a single entity in some senses. You write that it is now almost a forgone conclusion that a young prosecutor will end up in a lucrative private firm.
JE: That’s a really big part of the problem, and I wanted to do trace how it came to happen. When you had these big white-shoe law firms in the 1950s, 1960s, they didn’t do criminal representation for their corporate clients. That was done by boutique (firms) that specialized in criminal law. In fact the criminal bar was kind of looked down upon by the white-shoe firms at that point.
Today, there’s a seamless world, where prosecutors– mostly young— in the Southern District and Main Justice, the hottest shots from the Department of Justice, almost all go to white collar criminal defense work after their stint at the DOJ. Essentially, the DOJ is being treated like a training ground for future criminal defense lawyers.
The people at the Southern District and now in Main Justice are the best of the best of the best. They have gone to the best high schools, to get into the best colleges, to get into the best law schools, to get the best clerkships, and then they’ve gotten these very competitive jobs as prosecutors. They’re pleasers. They’re not free spirits, they’re not entrepreneurs particularly— they’ve taken a relatively safe path to be lawyers. They are straight arrows— admirable people who want to do public service. It’s not the ‘bro’ culture of Silicon Valley. But they’re kind of rigid in their thinking.
(But when) you’re in the prosecutorial role, it’s a completely different incentive. You need to be a displeaser, you need to seek to deprive people of their liberty when they’ve done something wrong. And when you’re going up against corporate criminals, you’re going up against the sons and daughters of your professors or the parents of your classmates. There’s a sort of elite affinity where they just don’t look at well dressed, articulate, well-dressed bankers from Goldman Sachs, and see a criminal.
TCR: You write that in fact, these young prosecutors have to become “class traitors.”
JE: Yeah. (Robert) Morgenthau was a traitor to his class. But these [current] people are not, by and large, and it takes an enormous effort for them to overcome that, and I just don’t think they can.
TCR: When you get into the Obama period, those are really the “scorched earth” chapters. But did this shift have roots in the Enron and Andersen prosecutions of the early 2000s?
JE: The point of those [Enron/Andersen] chapters is that it is the most recent high-water mark for corporate prosecutions– but it is also the beginning of the undoing. And they have success prosecuting the top executives from Enron, and they also end up prosecuting the top executives from Worldcom, Adelphia, Tyco, Global Crossing. They bring the top executives from Health South to trial. So they really do most of the big marquee corporate scandals of the age, they manage to prosecute the executives.
Prosecutors will say those were easier, more obvious crimes, or those were inevitable, or it was obvious that they were going to get the Enron guys because that was a total fraud— but in fact, I don’t agree with any of that. I don’t think it was inevitable that they were going to prosecute those people. And especially I think that getting the two heads of Enron, Ken Lay and Jeff Skilling, was extremely difficult. They had to work for years at it. They got a little lucky, they worked very hard. They had very good strategy. They didn’t have any direct evidence against them, so they had to flip people, work your way up the way you need to do it if you’re prosecuting the mob. And they did.
What happens, bizarrely, is that the lesson from the Arthur Andersen prosecution becomes unlearned, or the Department of Justice learns the entirely opposite lesson from it— which is that we should never prosecute another large company again, because we throw people out of work. There are collateral consequences–either systemic disruption of the markets (we see that later in the financial markets) or we see people being put on the street, unemployed. I don’t think that’s proper for a prosecutor to think about.
We don’t think of the collateral consequences of putting an embezzler in prison, or a murderer in prison, or the thief of a television in prison. But we do think about it with a corporation.
TCR: Although reformers do talk about that when it comes to street level crime, it’s one argument for reducing sentences, punishment, etc— you’re hurting families, you’re hurting society, the economy [mass incarceration].
JE: My argument is, in a nutshell, we should put fewer of a certain kind of person in prison, and more of another kind of people in prison— basically, fewer young black men and more older white men, to be overly simplistic about it.
I think putting (an executive) in prison for three to five years is something they need to refocus on. They need to go back to prosecuting individuals, and they need to seek sentences— but they shouldn’t seek draconian, insane sentences. One of the problems is that they prosecute so few individuals that they throw the book at them. They overcharge them, they invest so many resources and time into it and then they want to get some extraordinary prison sentence out of it— 18 years, 30 years.
TCR: Is that what happened when former acting Attorney General Sally Yates came in, and tried to bring the focus back to prosecuting individuals rather than just settling with companies?
JE: Yes. It was too early to see whether the Yates memo was taking effect, and now under (Attorney General Jeff) Sessions it seems highly unlikely that they’ll do that. So I’m extremely skeptical that they’ll be tougher on corporate criminals than the Obama administration, and the Obama administration was extremely light-handed. But we have to see. What’s going to happen I think in the Sessions case is that they’ll get a few low-level individuals, but they’ll not even do the corporate settlements, so that settlements will come way down.
I think the fact that we don’t prosecute criminal executives in this country undermines the sense of justice for the person on the street. I think that they see this as a rigged system, and it is a rigged system. It’s rigged in the favor of these criminals who can commit crime with impunity as long as you’re in a certain position in a corporation.
TCR: Why was there so much political fear and meddling from the front office during the Obama administration?
JE: Before we get to timidity, there are a few things to point out. One is that the resources have shifted, so that there are fewer people in the FBI who are really trained in this. The SEC was hollowed out in the second half of the Bush administration, and so it was suffering, morale was really in bad shape. Those are two sort of structural problems that the Obama administration had going into the financial crisis, that they couldn’t really do anything about. So that’s sort of step one.
Step two is after a decade of focusing on settlements, there has been an erosion of talent. Erosion of skill, especially trial skill. They do fewer trials, and this is happening across the criminal justice system. The problem with doing fewer trials, especially in the corporate white collar space, is that your skill set erodes, you become very scared of trials, they seem very difficult to do, you’re going up against defense attorneys that have done a lot of these cases and had trials, so you’re enormously intimidated by the prospect of having to persuade a jury.
So it’s not just timidity: I think they have lost the ability to prosecute these cases.
TCR: Effectively, this has cut out the public?
JE: It has cut out the public, because the public cannot see the evidence— they don’t have an airing of the wrongdoing, and public airing of wrongdoing is an enormously beneficial thing for a society. The sense that no one was held accountable, there’s no debate— fueled the rise of Donald Trump. I mean, Donald Trump talked about Goldman Sachs owning politicians.
Of course, then he installs Goldman Sachs executives in the White House and gives it over to the bankers and corporations— but he tricked his supporters into thinking that he was somehow their champion, by attacking corporations for not being held accountable.
TCR: In the book, you make a strong call for diversity in the justice department.
JE: Part of the solution is more diversity— and I don’t mean just the way the phrase is used in terms of gender diversity or racial diversity. What I’m talking about is class and geographic and professional diversity. You want to break the grip that the elite law schools have on feeding the Department of Justice’s elite offices. Go to Wisconsin, go to Minnesota. Go out of Virginia and go to Georgia tech. Go to the West Coast, go to Montana.
The other thing is that you need age diversity. There’s a culture at the Department of Justice, if you’ve worked there for six or eight years or longer, then you’ll start to be looked down upon, like you’re a “lifer.” What we should do instead is get some people who are sick and tired of corporate law at age 52, and 55, who know where all the bodies are buried, and want to spend the last ten years of their careers serving society, and doing public service. They’re not trying to burnish their resume, you want them to be sick and tired of it.
And then I think you need plaintiffs’ lawyers, you need advocates, you need consumer lawyers— you don’t just want defense lawyers, or future corporate defense lawyers to go become prosecutors. And if you break that mold, you’ll start to help the culture.
I think they need to do many more trials. They need to seek lower sentences, so that any one single trial isn’t invested with all this importance. The other thing that they need to do is to focus on individuals, and somehow allow prosecutors to work on cases that don’t come to fruition very quickly, that build slowly and quietly,
TCR: How many prosecutors, and former prosecutors, did you speak to in the course of writing this book?
JE: Probably well over a hundred— dozens and dozens.
TCR: What insight did you get into how an irascible, tough white-collar prosecutor shifts to representing corporate criminals? What did people think that they were doing? How did they describe it?
JE: Well, it’s a real mix— from people who weren’t that interested in being prosecutors, they were always interested in making a lot of money and being defense lawyers, but this was a way to burnish their resumes. There are some people on the opposite spectrum, who feel a little bit rotten about it, but they felt like they had no choice because they needed to support their family.
And also they had no choice because in their careers, they had to keep moving. They had been conditioned to always be succeeding,
TCR: When it comes to financial crime, why is ignorance of the law a defense?
JE: It’s very hard to understand. In street crime, you don’t have to prove mens rea, because you’re essentially supposed to know that drug dealing is wrong, or murder is wrong, or recklessly driving a vehicle is wrong. And so that’s all implicit— it’s part of the law, but it’s implicit. But in white collar law, and this is the most difficult thing— you have to demonstrate that… so, mens rea is not just special to white collar law, corporate law. But the problem is that when you’re dealing with accounting, or securities, things like that, you have to show that not only was the accounting wrong, but you knew it.
And it makes some sense, I think. You don’t want to throw people in prison for innocent mistakes. The problem is, it makes it so difficult to actually prove a crime that they become wary of it and they don’t even try.
TCR: And this further insulates executives?
JE: Executives have an enormous amount of insulation, and they also get to rely on the experts— they rely on legal counsel, they rely on accountants, and you have to break that. And the way you break that is you need to pick your cases of accountants and lawyers and investment bankers who are giving advice to these executives, who turned out to be criminal. And because of that, you put these professional classes, these professions… the law, accounting, auditing, on notice. And there’s a real deterrent effect.
Victoria Mckenzie is Deputy Editor (Content) of The Crime Report. This interview has been condensed and edited for space. Readers’ comments are welcome.
Will the proposed Hearing Protection Act, which would make noise suppressors for firearms easier to obtain, contribute to more gun violence? In response to a recent TCR Viewpoint, a firearms expert dismisses the idea as “flawed.”
This bill, introduced last January and supported by the National Rifle Association, would amend the Internal Revenue Code to eliminate the $200 transfer tax on firearm silencers and “treat any person who acquires or possesses a firearm silencer as meeting any registration or licensing requirements of the National Firearms Act with respect to such silencer.” The bill also amends the federal criminal code to preempt state or local laws that tax or regulate firearm silencers.
While the author backs up her argument with some facts and numbers, her argument is flawed and misses the point.
Barton maintains that gun owners already have suitable hearing protection, which provides ample protection from the noise of a firearm being fired. She quotes several sources to explain why suppressors alone will not be sufficient to reduce noise of a firearm being fired to an acceptable level.
The article implies that folks firing a gun are too lazy to want to wear ear protection, and that they’d prefer to put a suppressor on their guns. Barton writes:
Simply put, we shouldn’t make silencers easier to get just because gun owners can’t be bothered to use the hearing protection already available to them
She goes on to write that suppressors are a threat to overall public health and safety, claiming that the sound of a gun being fired is a good alarm for people to let them know there is danger and that they should call the police.
The article goes on to argue that criminals would want to use suppressors to avoid detection. She seems to imply that suppressors are bad because gun owners are lazy, and criminals want to use them for nefarious reasons.
Let me explain why this is wrong.
No one disagrees with the statement that guns are noisy. To give you an idea of just how noisy guns are: the typical 9mm pistol (one of the most common gun calibers in the U.S.) produces approximately 160 decibels of noise. That is even louder than a jet taking off, which produces 140 decibels!
The National Institute on Deafness and Other Communication Disorders (NIDCD) states that when a person is repeatedly exposed to noise levels of 85 decibels or more, noise-induced hearing loss (NIHL) can set in. This means that shooting a firearm can have a big impact on your hearing.
Earplugs and earmuffs do provide shooters with some protection from the excessive noise levels, but not enough. If you wear earplugs and earmuffs, the earplugs might reduce the noise level by 26 decibels and the earmuffs might reduce it by 34 decibels. If you wear earplugs and earmuffs together, it should then reduce the total noise level by 41 decibels.
That still does not reduce the noise level to below 85 decibels, which means more protection is needed to reduce the noise level.
The article seems to imply that suppressors are an alternative to other hearing protection solutions, namely earplugs and earmuffs. But that is not the case. Suppressors should be used in conjunction with earplugs and earmuffs. The principle is simple, the more you are able to reduce noise to your ears, the less impact there will be on your hearing.
So while a suppressor only reduces noise level by about 20 to 35 decibels, if it is used with earplugs and earmuffs, it will help to get the noise level closer to the 85 decibel mark.
I would suggest the following equation: Suppressor + Earplug + Earmuff = Better Hearing Health Protection
The second argument against suppressors is basically that criminals will use it for criminal activities and that loud gunshots act as an alarm.
If we were to ban everything that could be used for criminal activities, shouldn’t we then also ban the Internet? The Internet is after all where a lot of crimes seem to be committed these days!
If a criminal wants to use a suppressor, he or she can just search the Internet to find out how to make one themselves. There are literally thousands of videos on Youtube that will show you how to do it.
Here are some examples:
According to The Washington Free Beacon, records from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) indicate that there are approximately 1.3 million suppressors registered in the U.S..
The ATF confirms in effect that suppressors are rarely used in crime. They have recommended prosecution of suppressor-related crimes 44 times per year over the last decade (that means that only .003 percent of suppressors are used in crimes each year).
Several other countries allow gun owners to own suppressors. These include many European countries such as Denmark, Finland and Sweden. They certainly do not have a gun crime epidemic as a result of suppressors.
The article concludes its argument against suppressors with this little gem:
In short, I believe that unless you’re a spy, an assassin or the like, there’s no legitimate reason to have a silencer for a gun.
I strongly disagree with that statement. Any hunter or person who fires their firearm on a regular basis has a legitimate reason to have a suppressor on their firearm, which is to protect their hearing health, as well as the hearing health of folks around them.
Suppressors are a valuable aid in reducing folks’ exposure to too loud noises. Making it easier and quicker to obtain is a good thing.
Joe Bradley is the editor of smokingbarrelusa.com, a blog that promotes responsible gun ownership, as well as helps debunk myths about guns and gun owners. He welcomes comments from readers.
Even when information about online trafficking victims is brought to the attention of law enforcement, they can still be treated as “disposable people” by the system meant to protect them, says a trafficking expert.
Child sex trafficking is a clandestine crime that has increasingly moved off the streets and online over the last decade. However, even when information about these crimes is brought to the attention of law enforcement, victims can still be treated as “disposable people” by the system meant to protect them.
However, as the following story suggests, there is little awareness of how these social media platforms can be used to identify victims, much less what happens to these victims post- “rescue.”
On May 29, 2017, Sandra Sparks, Executive Director of ERASE Child Trafficking, was tagged in an anonymous tip on her organization’s Facebook page about an “underage runaway” in Louisiana who was seen having sex with an “old man” in his truck. She was linked to the girl’s social media account.
“PLEASE alert authorities,” a subsequent post appealed. “There is an underage runaway being trafficked.”
After visiting the social media account, Sparks discovered that the 16-year-old girl, whom I will refer to by the pseudonym “Princess,” had been trafficked for months, despite being previously rescued and returned to her family.
The girl’s social media account, which chronicles her life being trafficked, ballooned with over 60,000 followers in a little over a month.
She told them in one post:
If it wasn’t for u guys I’d b dead I’m not even suicidal anymore.
When they weren’t looking, “Princess” took pictures and videos of her traffickers and posted them for her followers to see. She wrote:
If my pimp saw my page he would literally grab his pistol and shot (sic) me… I do it in secret.
She claims that one of the men pimping her is wanted for gun offenses, and another has multiple warrants out for his arrest. In one of her pictures, “Princess” is shown holding an AK-47 and in several others she appears to be snapping images as the traffickers physically abuse her.
She captioned one image, “Pray for me.”
“Princess” also secretly takes pictures of the men who pay for sex with her. One of them is a truck driver who she calls “Santa.” The old, white, man has a long white beard and white hair, with an oversized frame. There are several pictures of “Princess” in a black bra lying next to a shirtless “Santa.”
She claims that he gave her $100 after their sexual encounter, but her pimp took the money away.
Another one of the men who pays for sex with “Princess,” she nicknamed “Bill Cosby” because of his resemblance. The man, who is also a truck driver, is shown on video asking “Princess” for directions to a motel room. Later, she posted pictures and video of the same man laying on a motel bed, rolling and smoking a joint.
In many of the videos “Princess” appears to be happy and smiling, despite living in a roach-infested room and sleeping on a mattress with no sheets or on a towel on a bathroom floor. She is told to have sex with multiple older men per night, while her pimps collect the money.
But she claims there is nowhere for her to escape to.
In one of her videos, she said:
A lot of people are telling me that I should just leave this situation. A lot of people don’t realize I don’t really have a choice, because I ain’t got nowhere else to stay. So if I get up and I leave right now and say, ‘I ain’t coming back, I’m not working for you,’ I won’t have nowhere to sleep and ya’ll don’t understand that.”
“Princess” told her followers that her mom died when she was only 13 years old and her life has been hell ever since. She also reveals that her dad is a pastor in New Orleans.
Some of the videos are extremely sexually explicit, taken mid-coitus with the men raping her for money. The posts prompt mixed reactions from her followers. Some encourage her to continue the pornographic exploits, while others urge her to find a pimp to take better care of her by feeding her properly, as well as providing her with clothes that fit and an appropriate residence.
Some try to convince her to go back home or to a homeless shelter, so that she can leave the sexual exploitation she is facing.
Upon learning of this sex-trafficking situation, Sandra Sparks immediately alerted both state and federal law enforcement. However, the girl’s social media posts continue.
Although some agencies are trying to use the information contained in her posts to help locate “Princess” and bring the men exploiting her to justice, past rescues have failed to provide the girl with trauma-informed services. Instead, she tells her followers that previous rescue attempts left her jailed and then returned to the same living situation that she ran away from.
There is no guarantee if—or when—“Princess” will be found.
She has already been erroneously criminalized and hasn’t received appropriate services, which is unfathomable considering that “Princess” is a sex-trafficked minor, but her experience is not uncommon.
In order to better combat sex trafficking, law enforcement must be given the resources—and the support—to swiftly intervene in these situations and connect sex-trafficking survivors like “Princess” with long-term, trauma-informed care by trained service providers.
Websites and social media services can be used as a catalyst for sex-trafficking victim identification and rescue, but this is meaningless if there isn’t expeditious and appropriate response.
Dr. Kimberly Mehlman-Orozco holds a Ph.D. in Criminology, Law and Society from George Mason University, with an expertise in human trafficking. She currently serves as a human trafficking expert witness for criminal cases and her book, “Hidden in Plain Sight: America’s Slaves of the New Millennium,” will be published by Praeger/ABC-Clio this year. She welcomes readers’ comments.
Prisons should be wary of private communications firms that “exploit” incarcerated individuals by charging high fees for the use of their services, the Prison Policy Initiative warned in a study of a computer tablet program offered to Colorado prisoners.
Prisons should be wary of private communications firms that “exploit” incarcerated individuals by charging high fees for the use of their services, the Prison Policy Initiative (PPI) warned in a report today.
In a study of a contract awarded by the Colorado Department of Corrections to GTL (formerly Global Tel*Link) to provide computer tablets to inmates of the state’s prisons, PPI charged prisoners would be forced to pay “exploitive pay-to-play” and subscription-based fees far higher than they would pay outside.
For example, inmates would have to pay 49 cents per electronic message or $19.99 a month for a music subscription. The contract gives GTL the power to raise prices when it suits the company’s interests, or “to back out of the contract if it doesn’t make as much money as it hopes to,” wrote Stephen Raher in the report, entitled, “The Wireless Prison: How Colorado’s tablet computer program misses opportunities and monetizes the poor.”
“What makes the Colorado/GTL contract especially frustrating is that it could have been an innovative step toward providing incarcerated people with useful technology,” Raher wrote. “Experts who have studied government technology contracting warn that projects often fail because details are not sufficiently thought through.
“The Colorado DOC seems to have walked down this familiar path by focusing largely on its own financial interest without giving much thought to the user experience or the financial impact on incarcerated people and their families.”
Raher said his study should serve as a “cautionary tale” to other state corrections systems who are using or contemplating similar programs.
He noted that Pennsylvania now has a similar system, where inmates are charged $147 for the tablet. South Dakota has selected GTL to roll out tablets later this year; Indiana has accepted bids for a tablet system in its prison system, and hopes to award a contract later this year; and the Alabama prison system may be soliciting bids late. In addition, several larger jails also offer tablets.
“One of the most common complaints about life in prison is the overwhelming boredom,” Raher wrote. “Thus, selling entertainment to incarcerated people is somewhat like selling food to hungry airplane passengers: there’s one source, and the provider can charge what it wants, regardless of quality.”
A debate over jail expansion in New York’s rural Dutchess County reflects the issues driving the spike in U.S. jail populations, and the arguments about how to address it.
New York’s Dutchess County, a leafy place of winding country roads, farms, and old mansions overlooking the Hudson River, is a haven for New York City professionals seeking a quieter country life and cheaper housing. But it has a grimmer side.
Unemployment and urban blight plague its small communities and, like many other rural jurisdictions around the country, it is facing growing problems of substance abuse and drug addiction.
The evidence is tragically visible in the Dutchess County jail, located in the county’s largest city of Poughkeepsie, which recorded a 50 percent increase in detentions between 1997 and 2016.
The 400 or so people currently held behind bars are straining the small facility (capacity 250), a solid-brick structure built in the 1980s located in a residential neighborhood near a golf course.
The overcrowding persuaded Republican county legislators last year to approve a $192 million bond issue to build both a new 596-bed jail and a new sheriff’s office.
Not everyone believes building a bigger jail is the answer to the county’s social problems.
Joel Tyner, a Democratic legislator in the county for the past 14 years, argues that taxpayers’ resources that could be better used to fund innovative strategies such as treatment counseling and alternatives to incarceration.
“We shouldn’t be arresting all of these people,” he says.
The debate over the Dutchess County jail is a microcosm of similar arguments across the U.S. heartland, where job losses, youth unemployment, economic underdevelopment—and the spreading opioid epidemic—fed the anger that helped elect President Donald Trump last fall.
The spike in jail detentions in rural areas like Dutchess is one of the key factors driving America’s increasing numbers of incarcerated individuals, according to a recent survey and report by the Vera Institute of Justice and the MacArthur Foundation’s Safety + Justice Challenge.
Some 30 percent of the 2.2 million people behind bars are in the nation’s 3,000 county jails, and rural areas have experienced the biggest increases, according to the Vera study.
The jail populations that have experienced the largest growth are in small counties, with populations under 250,000. Dutchess County’s population, which has grown from 280,000 to 297,000 since 2000, is just slightly above the sample.
Vera report co-authors Ram Subramanian and Jacob Kang-Brown trace the rural jail increase to two principal factors: more people awaiting trial, and the increased use of jail beds for individuals detained by other local governments or who are being held at the request of federal authorities (for alleged violations of immigration laws).
In Dutchess, there are no individuals held under Immigration and Customs Enforcement “detainers” (even though experts estimate as many as 60,000 undocumented immigrants work in Dutchess and nearby countries)—and authorities say there are no plans to use the new jail for those purposes.
But there has been an increase in the numbers of individuals awaiting trial—many of them detained for minor drug offenses. Dutchess County jail housed 278 individuals awaiting sentencing in 2016, making up more than half of the total.
Moreover, up to 80% of the people held in Dutchess county jail suffer from some combination of mental health issues and substance abuse, according to the Dutchess County Criminal Justice Council.
Dutchess County Executive Marcus Molinaro
Defenders of the jail expansion in Dutchess County argue that increasing the number of beds will in fact help authorities address the behavioral issues that brought individuals into trouble with the law in the first place, while ensuring public safety.
“The current jail house was (not) built with the idea of restoring inmates’ lives,” said Marcus Molinaro, the County Executive and the main driving force behind building a new jail.
“I can find no legitimate reason to maintain the current county jail unless you think the warehouse model should be used going forward, which I don’t.”
The county’s District Attorney, William Grady, who was reelected in 2015 on a tough-on-crime platform, contends that it is too “risky” to free detainees awaiting trial.
“A drug-dependent individual who commits crimes to subsidize his habit is a risky person to have let go free in the community,” said Grady who predicts that the county’s jail population will grow even larger in coming years because of the influx of New York City residents seeking cheaper housing.
“Programming to treat those people is obviously most appropriate, but [they have] to wait for admittance to these programs by being held in jail,” he told The Crime Report
But legislators like Tyner and Francena Amparo, another county Democrat who was elected in 2011, say the county’s existing treatment facilities and programs, such as the Youth Bureau, which provides counseling and other services to at-risk youth, are in fact facing budget cuts.
“It’s pretty clear that substance abuse and mental issues are not being addressed enough,” Amparo said. “There aren’t enough rehabilitation facilities and clinics for those individuals, and they’re going to end up in jail at some point.”
Robert Wright, director of Nubian Directions, a youth-training program based in Poughkeepsie, said that school dropouts often end up getting caught in the criminal justice system.
“We’re seeing a lot of kids drop out of high school here and unfortunately many of them end up in jail,” Wright said.
The debate in Dutchess is also in some ways a reflection of a polarization in the political climate nationwide, where advocates of “tough on crime” measures now feel empowered by a federal government that is placing renewed emphasis on punishment.
Some local critics point out that Dutchess County Sheriff Adrian “Butch” Anderson, whose website describes him as a “cops’ cop,” was such a prominent and vocal supporter of Donald Trump during the last campaign that he was named to the President-elect’s transition team. The Trump/Pence ticket narrowly won the county last November with 58,163 votes (the Clinton/Kaine ticket got 56,874).
Candidate Donald Trump and Sheriff “Butch” Anderson. Photo courtesy Anderson website
But critics of the Administration’s approach to justice argue that hardline strategies are especially counter-productive in smaller communities.
The Vera report, for instance singles out the five-fold increase in pretrial detainees since 1970 —from 82,900 people in 1970 to 462,000 in 2013, as a significant driver of the jail increase.
Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, a Washington, DC-based nonprofit, says many of those people don’t need to be in jail at all.
Economic factors—namely inability to afford bail—rather than criminal risk, are the main reasons why the pretrial population is so high, she says, adding that many rural jurisdictions could take a cue from urban areas that have begun to move away from the money bail system.
“Places like [Washington] D.C. don’t use money bail at all,” she told The Crime Report. ”They release about 95 percent of people pretrial. So it works and we know it works.”
At the same time, she argued, authorities should also reduce the number of arrests by issuing citations or summonses in lieu of arrest.
Detention in jails, she said, should be restricted to those at the “highest level” of risk to the community.
“We should be able to identify and detain those people lawfully instead of saying ‘million dollar bond’ and then being scared when they make it,” she said.
Nevertheless, in places like Dutchess County, attempting to implement these solutions can only happen if all the local players agree.
“A community would be better served by investing in community-based solutions (but) each county is going to be unique in its own way,” acknowledged Vera co-author Jacob Kang-Brown.
But he added: “Once enough places try solutions, they will then be able to land on what’s most effective, based on frequent experimentation.”
Such a consensus seems unlikely in Dutchess County, at least for now.
While the New York State legislature has earmarked about $550,000 for a “youth services and crime prevention study” in the county, according to a document by the county’s criminal justice council, no additional funds appear to have been set aside for creating new programs.
Tyner, the Dutchess County legislator, says he hasn’t given up trying to change the county’s criminal justice priorities.
“I’m trying to wake up my fellow democrats and activists who can help,” he says.
“It’s not too late.”
Eric Jankiewicz is a New York-based writer and a contributor to The Crime Report. He welcomes readers’ comments.
Mass migration fueled by drought and changing weather patterns is an incubator for terrorism, warns the director of John Jay’s terrorism center.
Global warming haunts the imagination of most critically aware people on the planet. Signs of climate change are everywhere: in rising sea levels, melting ice caps, more violent storms, and spreading deserts in sub-Saharan Africa.
Despite the bold efforts in some areas to develop alternative sources of energy, the radical change, if not collapse, of civilization as we know it seems imminent. Whole economies could well be disrupted with implications for massive transfers of populations.
In the United States, we are comparatively numb to the consequences of severe climate change.
Those on Cape Cod could see the value of their real estate erode; much of South Florida may have to be given up for waste; and the heat and fires in the Southwest could erode the health of everyone from Los Angeles to Austin.
But as Pope Francis has pointed out in his majestic encyclical, Laudato Si of 2015, the world’s poor—those in the global south and least responsible for climate change—are the ones already most at risk and certain in the future to bear the brunt of the changes.
The deaths could be in the hundreds of millions; the suffering unimaginable.
One underappreciated dimension of global warming is its relationship to security. Environmentalists in general work diligently to awaken Americans to the dangers of climate change and to develop ways of mitigating the disasters we face.
But for the most part the worlds of climatology and security diverge sharply.
Only the military has been reflecting on issues of security in relationship to global warming for the last 15 years, but even their focus is on what they fear is the potential of wars over resources that could spill over into larger conflicts.
I have been studying climate change and terrorism seriously now for the last four years. One example of my concerns was the war in Syria. A drought there from 2006 to 2011 pushed some 800,000 people from their land in rural northeastern Syria.
The climate refugees inundated the cities, especially Aleppo, putting great stress on available resources.
The social and economic disruptions caused by the drought, against the backdrop of the Arab Spring, in a small country led by a brutal dictator, brought on a civil war that began in March of 2011.
We cannot understand ISIS except in the context of global warming.
Within two years, Syria became a failed state, which in turn attracted hundreds of Jihadi groups. Out of that chaos, the leader of the violent pack turned out to be the Islamic State of Iraq and Syria (ISIS). The drought didn’t create ISIS, which surged forth in June, 2014 to wreak havoc; but we cannot understand that uniquely apocalyptic group except in the context of global warming.
Another example is Bangladesh. This country of 160 million people lies perilously close to sea levels that are themselves on the rise. The country also possesses a fragile democracy with many Jihadi political entities and an unknown number of individuals and groups waiting for their moment to emerge.
Bangladesh itself was created from East Pakistan in the wake of the 1971 Bhola Cyclone and the civil war and genocide that followed. Global warming, by all accounts, unsettles weather patterns and tends to intensify storms. A newly violent cyclone in the future could kill tens of millions in a heartbeat.
Social and political chaos would result. Millions of climate refugees would flock toward India, which, anticipating just such an eventuality, has constructed a vast wall along its border (some 750 kilometers is complete).
It won’t keep people out.
New violence, even genocide, could well arise between India’s billion Hindus and its minority Muslim population of about 150 million people. Such ethnic war could well bring Pakistan into the fray. And both India and Pakistan bristle with nuclear weapons.
With a colleague, I recently conducted some opinion research on American attitudes about climate change and security. Working with GfK custom Research and LLC (GfK), we asked some focused questions on this issue to a statistically significant group of Americans.
Our recent report, produced by the John Jay College Center on Terrorism suggests that the public—even those who believe that climate change is happening and that human actions are causing or contributing to it—remains largely unfamiliar with the idea of a connection between climate change and security.
Just 38 percent of all respondents, and 42 percent of those who think human-caused climate change is occurring, acknowledged that climate change may multiply global threats such as political violence or mass migrations, or act as a catalyst for conflict.
Even fewer, only about 14 percent of all respondents, had ever heard or read that a severe drought in Syria, likely caused or worsened by climate change, was one of the factors that helped spark (and continue to fuel) the conflict.
But there was one encouraging note we learned from our survey. Respondents indicated they were open to change their behavior if they came to believe that climate change and security were causally interrelated. Participants reported the greatest willingness to take action if U.S. national security, rather than global security, were at stake.
What kind of “action”?
Taking an inclusive approach to “openness,” encompassing “definitely,” “probably,” and “maybe” responses, we found that 90 percent of those who think human climate change is occurring were open to modifying their voting priorities, and 93 percent were open to seriously considering lifestyle changes, if they perceived a threat to national security.
When excluding “maybe” responses, willingness to “probably” or “definitely” adapt behavior along the same lines measured at 66 percent and 67 percent respectively among those who think that human-caused climate change is occurring.
Charles B. Strozier. Photo by Donnelly Marks.
These are cautiously hopeful findings. They suggest most Americans are open to the idea of climate change while at the same time uninformed about what is happening.
Greater knowledge of the imminent dangers could bring actual personal and political change. The moral here is clear. Inform the public.
Charles B. Strozier is professor of history and founding director of the Center on Terrorism at John Jay College. Readers’ comments are welcome.